JUDGMENT B.P. Singh 1. This is an appeal against the judgment and order dated 7th December, 1979 passed by Sri B. K. Jain, Special Judge, Jhansi in Special Case no. 3 of 1977 State v. Shyam Behari under section 161 IPC and section 5 (2) of the Prevention of Corruption Act, P. S. Nawabad, District Jhansi. 2. The case of the prosecution, as has been unfolded in the evidence of Suraj Prasad (PW 1) and Laxmi Prasad Sharma (PW 2), may briefly be stated as follow. Laxmi Prasad Sharma (PW 2) is a resident of Uldan and was a teacher in Jawahar Lal Nehru High School, Utdan during the year 1976-77. Smt.Shanti Devi, the daughter in law of Laxmi Prasad Sharma (PW 2) was employed as an Assistant Teacher in Barua Sagar Primary School. Smt.Shanti Devi's husband, Arvind Kumar, was a lecturer in Ram Sahai Inter College, Barua Sagar. 3. Smt. Shanti Devi was placed under suspension by the authorities concerned with effect from 6-5-1976. On 13th May, 1976 Laxmi Prasad Sharma (PW 2) came to the office of the District Basic Shiksha Prishad and met the accussed Shyam Behari Sharma at about 2.00-2.30 p. m. The accused, Shyam Behari Sharma, was the dealing clerk regarding transfer suspension etc, of the teachers in the Jhansi district. On being enquired about the reasons for Smt. Shanti Devi's suspension, the accused gave out that Laxmi Prasad Sharma (PW 2) should not bother about the grounds or reasons for suspension and that he (the accused) would get the matter set right if he was paid a sum of Rs. 300/- for the same. The accused further gave out that he would also help in the subsequent transfer posting of Smt. Shanti Devi but he would take Rs. 100/- as advance and balance of Rs. 200/- was to be paid on the completion of the job, Laxmi Prasad Sharma (PW 2) agreed to the proposal and promised to pay Rs. 100/- to the accused on 14-5-1976. The accused had then asked Laxmi Prasad Sharma (PW 2) to come to the Board Office on 14th May, 1976. 4. Laxmi Prasad Sharma (PW 2) came out of the Board Office and sat for sometime near the courts' crossing. In the meantime at about 4 p. m. his son, Arvind Kumar, happened to come there from the side of Barua Sagar. 4. Laxmi Prasad Sharma (PW 2) came out of the Board Office and sat for sometime near the courts' crossing. In the meantime at about 4 p. m. his son, Arvind Kumar, happened to come there from the side of Barua Sagar. Laxmi Prasad Sharma (PW 2) discussed the proposal of the accused with his son. Arvind Kumar, Arvind Kumar then informed his father that in the past also the accused had demanded Rs. 500/- by way of bribe for getting Smt. Shanti Devi's transfer stayed from Uldan to Pachwara and that the accused must be dealt with strictly and he should be trapped in the act of accepting the bribe. Laxmi Prasad Sharma (PW 2) wanted to talk to Civil Police but his son, Arvind Kumar, informed him that S. P. (Vigilence) was camping in the Circuit House, Jhansi and the matter should be brought to the notice of S. P. (Vigilence). After this decision Arvind Kumar went away, LAXMI Prasad Sharma (PW 2) then wrote an application (Ex. ka 8), which was addressed to S. P. (Vigilence), for laying the trap relating to the demand of bribe by the accused. Laxmi Prasad Sharma (PW 2) then went to Circuit House, Jhansi, and gave the application (Ex. ka 8) to S. P. (Vigilence) After reading the application (Ex. ka 8) S. P. (Vigilence) asked Laxmi Prasad Sharma (PW 2) to come on the next morning. 5. On 14th May, 1976 Laxi Prasad Sharma (PW 2) took a hundred rupee note with him and reached Circuit House, Jhansi at about 8.00-8. 30 a. m. Laxmi Prasad Sharma (PW 2) had to wait for sometime as S. P. (Vigilence) was busy in having his breakfast. In the meatime Suraj Prasad, Inspector (Vigilence) (PW 1) and Inspector Hari Nandan Singh had also reached there. After a short while S. P. (Vigilence) Uma Shankar (PW 7) called Laxmi Prasad Sharma (PW 2) and recorded his statement. The hundred rupee note was also examined by S. P. (Vigilence), Sri Uma Shankar (PW 7) and Laxmi Prasad Sharma (PW 2) was made to sign the statement. S. P. (Vigilence) (PW 7) had directed Laxmi Prasad Sharma (PW 2) to hand over this very note in bribe to the accused. The hundred rupee note was also examined by S. P. (Vigilence), Sri Uma Shankar (PW 7) and Laxmi Prasad Sharma (PW 2) was made to sign the statement. S. P. (Vigilence) (PW 7) had directed Laxmi Prasad Sharma (PW 2) to hand over this very note in bribe to the accused. The hundred rupee note was handed over back to Laxmi Prasad Sharma (PW 2) and the later had signed the statement as well as the receipt for having received back the hundred rupee note. 6. S. P. (Vigilence), Sri Uma Shankar, then directed Suraj Prasad (PW 1) to lay the trap and necessary orders (Ex. ka 1) were passed. Suraj Prasad (PW 2), Inspector Har Nandan Singh, constable Brij Mohan Tewari, constable Devta Din and Laxmi Prasad Sharma (PW 2) left the circuit house and came upon the Elite Public Crossing. Suraj Prasad (PW 1) then directed Laxmi Prasad Sharma (PW 2) to meet him at about 1.15 p. m. under the Chiraul tree situate in the eastern portion of Jhansi Collectorate. 7. Suraj Prasad (PW 1) then directed the Inspector Hari Nandan Singh to procure witnesses. Hari Nandan Singh succeeded in procurring Majid Khan and Nazir Khan as witnesses of public and took them with him to police club, Jhansi. The witnesses expressed their willingness to be witnesses of the trap. 8. Thereafter Suraj Prasad (PW 1), accompanied by Sri Hari Nandan Singh, constable Devta Singh, constable Brij Mohan Tewari and the two witnesses, came to the eastern portion of the Collectorate at about 1.00 P. m. Laxmi Prasad Sharma joined them. Necessary instructions regarding the laying of the trap were then given by Suraj Prasad (PW 1). The hundred rupee note was examined and was shown to the witnesses under the memo (Ex. ka 2) with the direction that Laxmi Sharma was to hand over this very note in bribe. According to the plan Suraj Prasad and others were to remain inside the tea stall of Pt. Harigan Mahesh Prasad and Laxmi Prasad Sharma (PW 2) was to come there alongwith the accused and the bribe was to be paid in the full view of the witnesses. Laxmi Prasad Sharma had then gone away. At about 2.20 p.m. Laxmi Prasad Sharma (PW 2), accompanied by the accused, came inside the tea stall and sat on a separate table. Laxmi Prasad Sharma had then gone away. At about 2.20 p.m. Laxmi Prasad Sharma (PW 2), accompanied by the accused, came inside the tea stall and sat on a separate table. Both of them started taking tea, Laxmi Prasad Sharma (PW 2) then took out the note and saying that the accused was to get the suspension order of Smt. Shanti Devi revoked, handed over the note to the accused. Laxmi Prasad Sharma (PW 2) had also given out that Smt. Shanti Devi was not to be transferred from Uldan. The accused accepted the note in his left hand and asked Laxmi Prasad Sharma (PW 2) not to worry in that matter. Immediately thereafter Suraj Prasad (PW 1), after introducing himself, pounced upon the accused and recovered the hundred rupee note (Ex. 1) from the left hand of the accused. The note (Ex. 1) was placed in the envelop (Ex. 2). The accused was searched and one purse, five keys, two fountain pens and one dot pen were recovered. These articles were also placed in an envelop. The recovery memo (Ex. ka 3) was duly prepared by Suraj Prasad (PW 1) and the memo was also signed by the witnesses. A copy of the recovery memo was handed over to the accused under the receipt (Ex. ka 2) A report of the trap (Ex. ka 5) was prepared by Suraj Prasad (PW 1). Another report addressed to S.O. Police Station Nawabad (Ex. ka 6) for registering the case against the accused was also prepared by Suraj Prasad (PW 1). 9. Thereafter Suraj Prasad (PW 1) took the accused and the recovered hundred rupee note and articles to P.S. Nawabad. S.O. Jagdish Singh was present at the police station and he passed an order (Ex. ka 7) upon the report (Ex. ka 6) directing the Head Constable to register the case. 10. S. I. Vijai Singh (PW 8), who was posted as Head constable in P.S. Nawabad in May 1976, bad prepared FIR (Ex. ka 24) on the basis of the report (Ex. ka 6) and had also made G D. entry (Ex. ka 25) regarding the commission of the crime. The case was investigated by Inspector Chandrapal Singh (PW 6) from 19-5-76 under the orders (Ex. ka 15) of S. P. Jhansi On the same day the I.O. had recorded the statement of Inspector Suraj Prasad in Lucknow. ka 6) and had also made G D. entry (Ex. ka 25) regarding the commission of the crime. The case was investigated by Inspector Chandrapal Singh (PW 6) from 19-5-76 under the orders (Ex. ka 15) of S. P. Jhansi On the same day the I.O. had recorded the statement of Inspector Suraj Prasad in Lucknow. On 21st May 1976 the I.O. inspected the scene of occurrence and had prepared the site plan (Ex. ka 16). On the same day the I.O. had handed over the keys to Ram Dev Sharma, Head clerk of the Board. On 22-5-1976 the I.O. recorded the statement of Head clerk Ram Dev Sharma, Laxmi Prasad Sharma and Majid Khan After completing the investigation and after obtaining the sanction (Ex. ka 14) from Shri Kishori Lal Bajpai. Basic Shiksha Adhikari, Jhansi, the I.O. submitted the charge-sheet (Ex. ka 19) in the case. 11. The accused pleaded not guilty and claimed to be tried. At the trial the prosecution examined 8 witnesses i.e. Suraj Prasad Inspector Vigilence PW 1) Laxmi Prasad Sharma (PW 2), Majid Khan (PW 3), Ram Singh Sharma (PW 4), Kishori Lal Bajpai (PW 5), Inspector Chandrapal Singh (PW 6), S.P. Uma Shankar (PW 7) and S.I. Vijai Singh (PW 8). The accused examined Ram Singh (DW 1). 12. Learned Sessions Judge accepted the evidence of PWs and held that the accused was guilty of offence under section 5 (2) of the Prevention of Corruption Act under section 161 of IPC. Consequently one year's RI for the offence under section 5 (2) of the Prevention of Corruption Act and a sentence of six months' R1 for the offence under section 161 IPC was awarded. Both the sentences were to run concurrently. Aggrieved by the judgment and order of the trial court the accused Shyam Behari Sharma has come in appeal. 13. I have heard learned counsel for the parties and have gone through the record of the case. Before dealing the witnesses of trap, I may discuss the evidence of the remaining witnesses. Ram Singh Sharma (PW 4), who was posted as Head clerk in Basic Shiksha Parishad, Jhansi, has stated that on 14-5-1976 the accused Shyam Behari Sharma was on duty in the office. Before dealing the witnesses of trap, I may discuss the evidence of the remaining witnesses. Ram Singh Sharma (PW 4), who was posted as Head clerk in Basic Shiksha Parishad, Jhansi, has stated that on 14-5-1976 the accused Shyam Behari Sharma was on duty in the office. He has also stated that in January 1976 clerks had atttended the office of the Parishad even during the holidays and on 11th and 12th January, 1976 which were holidays, some clerks including Shyam Behari Sharma had come to the office of the Parishad and had even signed the attendance register. He has also stated that in May 1976 the accused was dealing with the work relating to the female teachers and preparation of the bills of the salary. The list (Ex. ka 1) relating to distribution of work was also proved by Ram Singh Sharma (PW A). He has also proved the suspension order (Ex. ka 12) relating to Smt. Shanti Devi. 14. Kishori Lal Bajpai (PW 5), who was posted as District Basic Shiksha Adhikari, Jhansi in September November 1976, has proved the sanction (Ex. ka 14). He has insisted that he had accorded the sanction for the prosecution of the accused after going through the relevant papers including the case diary of the case. Inspector Chandrapal Singh (PW 6) has deposed about the various steps which were taken by him during the course of investigation. S. P. (Vigilence) Uma Shankar (PW 7) has corroborated the evidence of Suraj Prasad (PW 1) and Laxmi Prasad Sharma (PW 2) regarding the happendings which took place in circuit house, Jhansi on 13-5-76 and 14-5-76. He has also proved the statement of Laxmi Prasad Sharma (PW 2) Ex. ka 21, and his signatures (Ex. ka 23) upon the hundred rupee note (Ex. 1) SI Vijai Singh (PW 8) has proved the FIR (Ek. ka 24) and G.D. entry (Ex. ka 25). 15. I have gone through the evidence of these witnesses. Their evidence has not been seriously challenged before me. These witnesses have no concern with the complainant or the accused and were not supposed to depose falsely in the case. 16. The case of the prosecution regarding the main trap rests upon the evidence of Suraj Prasad, vigilence Inspector (PW 1), Laxmi Prasad Sharma (PW 2) and Majid Khan (PW 3). These witnesses have no concern with the complainant or the accused and were not supposed to depose falsely in the case. 16. The case of the prosecution regarding the main trap rests upon the evidence of Suraj Prasad, vigilence Inspector (PW 1), Laxmi Prasad Sharma (PW 2) and Majid Khan (PW 3). I have gone through their evidence in the light of the arguments advanced at the Bar. I may point out at the very outset that the case of the prosecution is full of improbabilities and the evidence led by the prosecution has left much to be desired. The case of the prosecution is that the daughter-in-law of Laxmi Prasad Sharma, Smt. Shanti Devi was placed under suspension on 6-5-1976 and on 13-5-76, Laxmi Prasad Sharma (PW 2) had come to Jhansi to make enquiries in this connection. He had met he accused who had assured him not only to get the suspension order revoked but also to be helpful in the subsequent posting of Smt. Shanti Devi at the desired place provided Laxmi Prasad Sharma (PW 2) was agreeable to pay a sum of Rs. 300/- by way of consideration. If Laxmi Prasad Sharma (PW 2) is to be believed, he had agreed to the suggestion of the accused and it was only at about 4.00 p.m. on the same day that he decided to make a complaint to the Vigilence authorities after having talked with his son Arvind Kumar, who by chance happened to meet him upon a crossing at Jhansi at about 4.00 p.m. Laxmi Prasad Sharma (PW 2) has insisted that his son had told him that on an earlier occasion when Smt. Shanti Devi was transferred he had contacted the accused for the change of the posting of Smt. Shanti Devi, the accused had demanded a bribe of Rs. 500/- and for this reason a lesson was to be taught to the accused. 17. It is really surprising that when the accused had demanded a bribe of Rs. 500/- for the simple service of getting the transfer order changed, how could a paltry sum of Rs. 300/- be demanded for getting the suspension order revoked specially when the accused himself had absolutely no authority to revoke the said suspension order. 17. It is really surprising that when the accused had demanded a bribe of Rs. 500/- for the simple service of getting the transfer order changed, how could a paltry sum of Rs. 300/- be demanded for getting the suspension order revoked specially when the accused himself had absolutely no authority to revoke the said suspension order. Further more, Laxmi Prasad Sharma (PW 2) has claimed to have met the accused at about 2.30 p.m. on 13-5-1976 in the office of the Zila Basic Shiksha Parishad. Jhansi. The evidence on the record suggests that it was highly unlikely, if not impossible, for Laxmi Prasad Sharma (PW 2) to be present in Jhansi at 2.00 or 2.30 p.m on 13-5- 1976. He had admitted that on 13-5-1976 he had gone to his school where he was a teacher. In cross examination, he had admitted that in May, 1976, the working hours of the school were from 6.30 A.M. to 12.30 p.m. and that on 13-5-1976 he had left the school after its closure. Before leaving the school, he had applied for leave for 14th May, 1976 and had sought permission to leave station after the closure of the school on 13-5-1976. Thus, in all likelihood, Laxmi Prasad Sharma (PW 2) himself left Uldan town some time after 12 30 p.m. He has further claimed that from Uldan he had come on cycle to Bangra which was at a distance to [0 Kilometers from Uldan. He has alio stated that at Bangra he had boarded the Bus for Jhansi and that the distance from Bangra to Jhansi was about 50 Km. when Laxmi Prasad Sharma (PW 2) had left his school in Uldan and had covered 10 km by a cycle and a further 50 km in Bus, he was not likely to reach the office of the Zila Basic Shiksha Adhikari at 2.00 p.m. or 2.30 p.m. on 13-5-1976 even if it is conceded for the sake of argument that he was lucky to get a Bus at Bangra as soon as he reached there. The matter does not rest here. IT is not disputed now that 13 May 1976 was a public holiday for the office of Basic Shiksha Adhikari, Jhansi. Laxmi Prasad Sharma (PW 2) claims that he met not only the accused in the office but also the senior officer Smt. Shangloo. The matter does not rest here. IT is not disputed now that 13 May 1976 was a public holiday for the office of Basic Shiksha Adhikari, Jhansi. Laxmi Prasad Sharma (PW 2) claims that he met not only the accused in the office but also the senior officer Smt. Shangloo. IT is not possible to accept the above statement of Laxmi Prasad Sharma (PW 2) in the absence of any other reliable evidence to show that Smt.Shangloo and the accused had come to their office on a holiday i.e. 13-5-1976. If the meeting of Laxmi Prasad Sharma (PW 2) with the accused on 13-5-1976 in the office of Basic Shiksha Adhikari, Jhansi, becomes doubtful, the very basis of the prosecution case falls to the ground. 18. Yet there is another circumstance which belies the case of the prosecution. If Laxmi Prasad Sharma (PW 2) is to be believed, he was asked by the accused to come to the office with Rs- 100/- on 14-5-1976. Thereafter, the entire preparation for laying the trap was made and it was on their own that the raiding party officials had fixed the place of the payment of bribe as the tea-stall near the Collectorate. The trap party had reached the Collectorate without ascertaining the fact whether the accused had or had not arrived in his office. The trap officer was so sure about the plan that he along with his witnesses took position in the tea stall and waited for the complainant to come there along with the accused. If these witnesses are to be believed, the accused came with the complainant Laxmi Prasad Sharma (PW 2) and in the full view of a number of persons in the tea-stall demanded the bribe and also gave assurance that everything needful would be done. Such a conduct on the part of a government official would not be a natural conduct. No one takes bribe in a public place. There are instances when clerks in office accept illegal gratification, but they take care that such acts are not done in public place in full view of persons. Mostly bribes are passed either at the residence of the official concerned or in some secluded place. Laxmi Prasad Sharma (PW 2) further admits that when he had gone to call the accused on 14-5-1976 in the office of Basic Shiksha Adhikari, the accused met him alone. Mostly bribes are passed either at the residence of the official concerned or in some secluded place. Laxmi Prasad Sharma (PW 2) further admits that when he had gone to call the accused on 14-5-1976 in the office of Basic Shiksha Adhikari, the accused met him alone. He had a talk with the accused for 7-8 mintures. The accused had not taken the money at that secluded place. If the accused had to take any money from Laxmi Prasad Sharma (PW 2), he could have taken the money at the very secluded place when both of them were alone and would not have suggested to go to the tea-stall. It is really surprising that the accused himself had suggested the place as the tea-stall where the bribe was to be taken and by a strange co-incidence the trap party alongwith witnesses were already waiting there. 19. This is not all. Suraj Prasad (PW 1) is a fairly experienced Vigilance Inspector. He must know the importance and consequence of treating the note/notes, which are the subject matter of bribe, with phenolphthalein powder. Non-treatment of the currency notes used in the trap with phenolphthalein powder casts doubt about the trap itself. In this connection, I may refer to the following observation made by the Supreme Court in the case of Khilli Ram v. State of Rajasthan, AIR 1985 SC 79 : "...........Ordinarily a case of this type is difficult to prove and the law is settled that even the uncorroborated testimony of trap witnesses can be acted upon as indicated by this court in the case of Prakash Chand v. State (Delhi Administration), (1979) 2 SCR 330 : AIR 1979 SC 400 and Kishan Chand Mangal v. State of Rajasthan (1982) 3 SCC 466 ; AIR 1982 SC 1511 , but in the present case the evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspect. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced, the prosecution story becomes liable to be rejected............" 20. There is discrepancy in many material aspect. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced, the prosecution story becomes liable to be rejected............" 20. Learned counsel for the State has contended that hundred rupee note in question was not treated with phenolphthalein powder was not available to the authorities in Jhansi. If that was the case, then this explanation should have come in the recovery memo itself and not in the evidence of the witnesses at the trial. Under the circumstances, I come to the conclusion that no reliance can be placed upon the evidence of trap witnesses. Admittedly, the son of the complainant PW 2 was having a grudge against the appellant and it was quite possible that the appellant was implicated falsely in the case. 31. The appeal allowed. The judgment and order of the trial court are hereby set aside. The appellant is held not guilty of the offence and is given a clean acquittal. The appellant is on bail. He need not surrender. His bail bonds are cancelled and the sureties are discharged. Appeal allowed.