JUDGMENT 1. - Bhopal Chand Jain has a grievance against his impending conviction and sentence imposed under a judgment dated 23rd April/2nd May, 1985 by Special judge (ACD cases) Rajasthan, Jaipur, and, therefore, assails the same by this appeal. 2. By the impugned judgment, the appellant has been convicted & sentenced as under: U/s 161, IPC to undergo one years R.I. U/s 5(1) (d), read with to undergo one years R. I. with a fine of Rs. 500/- S. 5(2) of the Prevention of Corruption Act, 1947. (in default, further 3 months R.I ). 3. Both the sentences were ordered to run concurrently. 4. The appellant was an Executive Engineer Irrigation Department. Flood control Division, Bharatpur. He accorded a contract in favour of one, Bhanu Prakash Shaima, (the decoy), Contractor, for the supply of stones to Helana out-post of Irrigation Department, Bharatpur. w.e.f. 1-8-78. 5. A written report was presented by Bhanu Piakash Sharma, Contractor, to the Deputy Superintendent of Police, (Anti corruption Department), Bharatpur, on 23-9-78, alleging therein that the work contract given to h.m by the appellant was stoppedy w.e.f. 5-9-78 and before it, the bills for the work done under contract were already presented for their payment and after closure of the work, another bill for payment was also presented but for its payment, the appellant demanded 3% commission as bribe to the tune of Rs. )85/-. According to the allegations made therein, the bills presented earlier were lately approved for their payment and that apart, during the contract work, impediments were put. According to the report, approximately a bill wort Rs. 6,000/- was pending due. 6. Upon the said report, the Dy. Superintendent of Police took up the investigation and decided to lay a trap for catching the appellant red-handed. Two motbir witnesses were called and they were Suresh Chand & Babulal. F.I.R. was prepared on the basis of the complaint made by the decoy and it was read over to the complainant-(decoy) and in the presence of the police party, the complainant, and the accompanying witnesses named above, the investigating officer drew up the preparation report stating about all the preliminary steps taken for trapping the appellant. The complainant produced currency notes of Rs.185/- which he proposed to give as a bribe to the appellant, and upon which, the I.O. put his initials. The complainant produced currency notes of Rs.185/- which he proposed to give as a bribe to the appellant, and upon which, the I.O. put his initials. The currency notes were treated with phenolphthalein powder and after its demonstration, then given to the complainant with instructions to pay the same to the appellant on bis demand and thereafter, give the signal. At 6 0 clock in the evening, the Investigating Officer along with trap party and the accompanying witnesses proceeded in a Government jeep RJD7114 having been driven by its driver, Sayar Singh, to the house of the appellant, whereas the complainant (Bhanu Prakash) was instructed to proceed ahead on his motor cycle to the house of the appellant. The trap party took up their position i ear the house of the appellant and waited there outside for the pre-arranged signal from the complainant. At 6 20 P.M. the complainant gave the pre-arranged signal from the house of the appellant and came out of his house and at that time, on seeing Bhanu Prakash coming out of the trap place, all of the trap party members along with motbir witnesses rushed into the house of the appellant and there, then the I.O. disclosing his identity, charged the appellant that he accepted the bribe amount. 7. According to the prosecution, the appellant was asked to produce the tainted currency notes, but he felt himself frightened and did not reply. Then upon persuasions, the appellant allegedly stated to give out inside the room and, therefore, the trap party members went inside the room where again he did not straight forward reply but when he was told to have been in police custody, he pointed out by his finger saying to have kept the notes into the ventilator above the door of the drawing room. Thereupon the trap party members looked at the ventilator and found the notes lying there in folding situation. The investigating officer also observed presence of the notes there but they were not then touched and were allowed to lay there. Then the hand wash of the appellant with sodium, carbonate solution were taken and the solution turned pink. The tainted currency notes were seized by the I.O. and found that the numbers on the G.C. notes recovered, tallied with the numbers earlier noted by him on a chit at the preparatory stage of the trap. Then the hand wash of the appellant with sodium, carbonate solution were taken and the solution turned pink. The tainted currency notes were seized by the I.O. and found that the numbers on the G.C. notes recovered, tallied with the numbers earlier noted by him on a chit at the preparatory stage of the trap. After usual investigation, and obtaining the necessary sanction for prosecution of the appellant, the charge-sheet was submitted. 8. The appellant denied that he ever demanded or accepted any bribe from the complainant at any time. It was stated by h m that the complainant was rot performing the work given to him as per the terms of the contract work but he was adhered to full payment which was not permissible, inasmuch as when he ordered to stop the work of contract, it culminated into anguish on the part of the complainant against him and that being so, the complainant jot the trap laid against him. According to the appellant, when the complainant came to his house, he was inside his bed room on account of his sickness and at that time, his colleague engineers, Sarva Shri Narendra Mertia & Sbanti Sagar were also there. The complainant rung the calling bell, therefore, the appellant is alleged to have come out in the verandah and shook hands With the decoy and he requesting the decoy to sit in the drawing room, returned to his bed room, and when he came back after 5 minutes from the bed room, he saw the decoy going out of the room. According to the defence of the appellant, the tainted notes were kept by the decoy without his knowledge at the ventilator and it was the decoy who had made known whereabouts of the notes in the room to the police. 9. The prosecution has examined in all 16 witnesses to substantiate its case. The appellant was examined under Section 313, Cr.P.C. and produced two defence witnesses The trial culminated into the aforesaid conviction & sentences of the appellant. Hence this appeal. 10. Shri S.R Bajwa, Sr. Advocate, appearing on behalf of the appellant, contended that on the question of demand of bribe, the evidence consists of F.I.R. (Ex.P. 11) and statement of decoy, Bhanu Prakash Sharma (PW2 but, the story unfolded by the prosecution evidence appears to be improbable, inasmuch as the demand of a petty amount of Rs. 10. Shri S.R Bajwa, Sr. Advocate, appearing on behalf of the appellant, contended that on the question of demand of bribe, the evidence consists of F.I.R. (Ex.P. 11) and statement of decoy, Bhanu Prakash Sharma (PW2 but, the story unfolded by the prosecution evidence appears to be improbable, inasmuch as the demand of a petty amount of Rs. 185/- by an Executive Engineer as bribe seems to be unnatural. Shri Bajwa drew my attention to the evidence of the decoy (PW 2). According to it. 1 find that no demand of bribe was made by the appellant for first bill (Ex P 4). The reason is that the decoy himself, admitted in his statement that the appellant, himself, had approved and passed his first running bill on 2-9 78 and it had already reached the accounts branch on 1-9-78 and a cheque of the said amount was also issued on 4-9-78 which he got on 6-6-78. He deposed that a clerk was demanding commission but did not specify the amount and nor did he give any commission. He further admitted that since his bill had already been moved ahead so, he had no talks of any commission with any body and that except that clerk, none had demanded any commission in respect of the running bill. In view of the admissions wrung out from the testimony of the decoy, himself, the first part of the story unfolded by the decoy in his complaint falls to the ground and tends to disclose his conduct. 11. As regards crucial second bill to the tune of Rs. 5547/-(Ex.P.7) which was proximate cause for laying the impugned trap, from the evidence on record, 1 find that it had reached the office of the appellant on 22-9-78 whereas the trap was laid on 23-9-78. The decoy has not stated that between 2nd September & 23rd September, 1978, he had met the appellant. Taking the aid of this version, Shri Bajwa urged that the question of demanding bribe between this period is ruled out and that apart, it is discrepant to the F.I.R. The F I R. (Ex P.11) gives out that 20 days prior to the filing of it, the decoy had been requesting the appellant for making the payment. Moreover, the second bill (Ex P.7) seems to have been despatched by K.P. Singh, Asstt. Moreover, the second bill (Ex P.7) seems to have been despatched by K.P. Singh, Asstt. Engineer (PW8)from his office at Halena, situated at 35 kilometers away from Bharatpur on 21-9-78 and as noticed above it had reached the appellants office on 22-9-78. This makes it improbable for the appellant to have demanded bribe before 22-9 78, inasmuch as even as admitted by the I.O. (PW16), that bill (Ex.P.7) could never be placed before the appellant till the trap was laid. The I.O. admitted by saying that he was confident that till the bill was recover d during investigation, it was never placed before the appellant. Even, the decoy was also not confident as to whether the second bill was placed before the appellant or not before filing his complaint, nor do Ex P.2 & Ex.P.7 make it obvious that they did reach the appellants table because, both of them contain seemingly no initials of the appellant. 12. Thus viewed, obviously, the prosecution has solitary statement of decoy who admittedly bore grudge against the appellant because of the circumstances, wrung out from the proved material evidence on record of S S Gupta, (PW6), S K. Agrawal (PW7), K.P.Singh (PWS). Shanti Sagar (PW14), viz, that the appellant had directed the decoy of dump stones inside the compound of Halena out-post but he had dumped the stones outside it abutting the National highway, inasmuch as. some of the stones dumped even at a distance of one Km. away at the crossing of Halena canal & national highway aDd that being so. some deductions were to be m the from his subsequent bills and it was the proximate cause of the decoy being infuriated against him and in this manner, he foisted this false case, as has been urged by Shri Bajwa. 13. I find some substance in the contention of Shri Bajwa that demand of specific amount of Rs. 185/-could only come up after preparation and finalisation of bill (Ex P.7) because, figure of Rs 185/- could not have been ascertained until the amount of bill was assessed and it could have only been possible for the appellant unless the bill in fact was placed before him for passing of it, but surprisingly enough, as discussed above, the bill was evidently not placed before the appellant till the trap was laid. Therefore, the possibility of demanding Rs. Therefore, the possibility of demanding Rs. 185/- as bribe about 20 days prior to the date of trape (i.e 23.9.78; not acceptable. And, the allegation of demanding bribe is a naked lie having no foundation. As a matter of co-incidence, the bill in question (Ex.P.7) was worth Rs. 5547/- and 3% thereof runs to Rs. 166/-only and that being so, the contemporaneous story of demanding Rs. 185/- by way of 3% commission is also per se furlorn. 14. I am totally convinced by the full addressed arguments of Shri S.R. Bajwa who has been successful by way of his expertise in legal gimmicks especially in criminal jurisprudence, in contending that once the story of demand falls through, the authenticity of the trap becomes, highly doubtful because, acceptance of bribe germinates through demand and without any demand, the bribe is not likely to be accepted in view of the fact that the evidence of demand of bribe constitute backbone of an offence under Section 5 of the Prevention of Corruption Act and that being so, failure to prove demand renders the prosecution case highly suspicious. 15. Now, I advert to the evidence of trap. In this regard, six witnesses, viz. Bhanu Prakash Sharma (PW2), Babulal (PW3), Suresh Chand (PW4) (both motbirs) R.N. Singh (PWI I), Head Constable, S.R. Verma (PW15), Inspector & Uma Shanker Sharma, (IO) (PW16) have been produced besides another witness Babu Khan Constable (PW5). But, since the recovery memo (Ex.P. 1.-) does not show initial of Babu Khtn, his presence during recovery in question becomes doubtful, as has rightly been pointed out by Shri Bajwa. The shadow/accompanying witnesses, Babulal (PW3), & Suresh Chand (PW4) both, turned hostile. There is evidence on record that when the payment took place, the above named six witnesses were not standing near the decoy and the appellant, and they were standing outside the residence at some distances, thereby the conversation between the decoy and the appellant could not be heard from such a distance. That apart, it is established on record that the accompanying witnesses along with trap party rushed to the place where the alleged bribe was paid only after the decoy came out of the drawing room and gave the pre-arranged signal. That apart, it is established on record that the accompanying witnesses along with trap party rushed to the place where the alleged bribe was paid only after the decoy came out of the drawing room and gave the pre-arranged signal. So, admittedly the other members and accompanying/shadow witnesses of the trap party are not witnesses to the actual giving of the bribe amount and the acceptance of the same by the accused. Out of the afore named six witnesses, three are police officers who tend in their whole hog to toe the facts given out in the recovery memo. And, as stated above, they cannot also he held to be the witnesses to the actual giving of the bribe amount and its acceptance by the accused. Moreover, Narendra Meratia (PW12), & Shanti Sagar (PW14) have fully corroborated the defence version given out by the appellant. 16. I find concomitant circumstances to explain the recovery of currency notes from the drawing room of the appellant. Concededly the tainted notes were recovered from a ventilator above the exit door of the drawing room opening to the outer verandah. Thus, the notes were not recovered from actual physical possession of the appellant. 17. The decoy recites that after hading over the currency notes to the appellant in the drawing room he came out in the verandah, accompanying with the appellant. It is in the evidence of I. O. (PW 16) (Dy. S. P.), that two persons were seen coming out of the bed room at the crucial time. These two persons were none else than Narendra Meratia (PW 12 & Shanti Sagar (PW 14),-both are Assistant Engineers. Thus, it is highly improbable, that in the presence of his subordinate officers (PW 12) & (PW 14' who, as noticed above, admittedly were seen coming out of the bed room, the accused would come out of the room with the decoy for accepting the bribe. So on material aspect as the place where the bribe amount was demanded & accepted, the prosecution version is materially contradictory. Both the afore-named Engineers witnesses do not corroborate the version given out by the decoy about the talk took place in between the accused & him just before handing over the tainted notes to the accused. So on material aspect as the place where the bribe amount was demanded & accepted, the prosecution version is materially contradictory. Both the afore-named Engineers witnesses do not corroborate the version given out by the decoy about the talk took place in between the accused & him just before handing over the tainted notes to the accused. There is no explanation from the prosecution side as to how the tainted notes reached the ventilator even if had they been given to the accused. There is no evidence on record to suggest that any of the prosecution witnesses either accompanying the trap party or even the Engineers (PW )2 & PW 14) who were admittedly seen coming out of the bed room just near the drawing room of the accused, had over-heard the conversation between the decoy and the accused at the relevant time before giving of the bribe amount and the acceptance of the same by the accused. None of the prosecution witnesses established beyond reasonable doubt the overhearing of the conversation between the decoy and the accused That apart, two of the prosecution witnesses (PW 11 & PW 14) whose presence at the relevant time cannot be doubtful or suspicious, in view of the admissions wrung out from the prosecution witnesses, themseleves, particularly that of the I. O. (PW 16), probables the defence version set up by the appellant. 18. As rightly pointed out by Shri Bajwa, the defence version set up by the accused stands corroborated and probablised by the prosecution evidence itself. According to the accused, he was not well being sick on the relevant day and two of his subordinate officers (PW12 & PW14) who were present in his bed room had come to know about his health. The fact of sickness stands proved by the evidence of Dr Bhopal Singh (DW1) and prescription note (Ex D.21). According to the accused, he was not well being sick on the relevant day and two of his subordinate officers (PW12 & PW14) who were present in his bed room had come to know about his health. The fact of sickness stands proved by the evidence of Dr Bhopal Singh (DW1) and prescription note (Ex D.21). The accused recites that the bedroom in which he was sitting with his subordinate officers, named above, open in the outer verandah and at that time, the decoy came there in the outer verandah and pressed the call-bell in response to which, he came out of his bedroom to the verandah and the decoy shook hands with him and he requested the decoy to sit in the drawing room and wait for him as he had to drink a cup of tea with his subordinate officers sitting in his bedroom, and turned to his bedroom. According to the accused, after some time, when he returned to the drawing room, he noticed the decoy standing in the verandah where also be came and enquired from the decoy as to why he had suddenly been going back and in response to which, the decoy told him about passing of his bill. The appellant told him that he should come to the office for official work. Thereafter, the trap party reached there and he was taken to his drawing room from where (he tainted notes were recovered. The appellant denied of the fact of him having pointed out to the ventilator where from the notes were allegedly recovered. 19. It is in the evidence of prosecution witnesses (PW12, & 14, PW3, PW4) that the decoy came to the house of the appellant and pressed the call-bell and in response to which, the appellant came out in the verandah and shook hands with the decoy. Similar is the defence version set up by the accused. That being so. the presence of phenolphthalein powder on the hands of the accused stands fully explained as the same was likely to fall while shaking hands by the decoy with the appellant. 20. Similar is the defence version set up by the accused. That being so. the presence of phenolphthalein powder on the hands of the accused stands fully explained as the same was likely to fall while shaking hands by the decoy with the appellant. 20. Tritely.it is always necessary, in a trap case, to associate really independent witnesses with the decoy so as to witness the actual offer and acceptance of the bribe and to over-bear the conversation that takes place between the decoy and the accused at the relevant time and in order to inspire confidence in the mind of the Court. In the case at hand, independent witnesses accompanying the decoy though were produced but did not support the prosecution version rather they probablize the defence version, by their evidence even duly corroborated by the prosecution witnesses. Once the appellant (accused) denied having accepted the bribe, no inference under Section 4 of the Prevention of Corruption Act can be drawn, and in that case, the prosecution has to prove its version beyond reasonable doubt and contrary to it, the accused is only required to probablize his defence version. 21. On the fateful point of handing over the tain ed currency notes which in the case at hand, were recovered admittedly from the ventilator and not from the physical possession of the appellant, the solitary testimony is of the decoy and whose evidence is always and tritely held to be interested one and that being so, it is trite proposition of jaw laid down not only by this Court but also other High Courts besides the Apex Court, that in a trap case, an independent witness must be accompanying the decoy so as to corroborate the version of the decoy about the actual offer and acceptance of the bribe and over hearing of the conversation that takes place between the accused & the decoy. But, here such a concomitant circumstance remained not only obscured but also absent. Keeping in view the circumstances wrung out from the evidence on record, as detailed above, once there is no evidence what talk of reliable, to prove the handing over the tainted notes, actual offer, and over hearing of the conversation that took place between the accused and the decoy, it is a circumstance which very much weighs against the prosecution. Keeping in view the circumstances wrung out from the evidence on record, as detailed above, once there is no evidence what talk of reliable, to prove the handing over the tainted notes, actual offer, and over hearing of the conversation that took place between the accused and the decoy, it is a circumstance which very much weighs against the prosecution. The innocence of the appellant is fully reflected from the statements of witnesses produced by the prosecution itself, namely, PW3. PWI, PW12, & PW 14. Even the prosecution witness No. 12 has not been declared hostile by the prosecution and, therefore, the prosecution is bound by his testimony. And if two versions emerge from the prosecution evidence then the one favouring the accused would prevail. In this view of the matter, the recovery of bribe money stands shrouded in mystery and no conviction in law could be sustained. I find support from the decision of the Apex Court in AIR 1987 SC 2402 (see para 26). 22. It is in the evidence of Uma Shanker Sharma (PW 16) in the shape of his admission that he had taken lot of interest and made correspondence for getting the contractors bills paid and that, the decoy Bhanu Prakash used to come to his office even prior to the date of the impugned trap and the F.I R /complaint was got written by the decoy sitting in his office Moreover, it stands established on record from a bare perusal of the documents Exs. D. 22, D. 23, D. 24. D.25. D. 13 & D.18, apart from statements of PW 8, PW 12, PW 14 & DW 2 that Uma Shanker Sharma (PW 16) laid much pressure on the officers of the Irrigation Department for making payments to the present decoy. In this state of evidence on record, in my view it was not proper on the part of Uma Shanker Sharma (PW 16) to have investigated the matter or lay the impugned trap or to have recorded the statements of the prosecution witnesses during investigation and this is a circumstance which reveals his zel in the case. And, a reasonable presumption can be raised that both of the (the decoy & the I. O. have entered into a conspiracy to embroil the appellant by foisting a false trap. And, a reasonable presumption can be raised that both of the (the decoy & the I. O. have entered into a conspiracy to embroil the appellant by foisting a false trap. The conduct of the present decoy is also fortified from the fact pointed out by Shri Bajwa during the course of arguments, that the decoy used to arrange false trap and earlier also he had arranged a trap of an Overseer in Irrigation Department namely, Amar Singh in District Kota but Amar Singh was held to be innocent and acquitted by this Court, itself, vide judgment dated 15-11 88 in S. B. Cr. Appeal No. 85/80 (reported in 1989 Raj. Cr. Cases p. 172) wherein the version of self-same decoy was held to be false. 23. In view of the foregoing reasons which arc based on a careful consideration of the prosecution evidence and the probabilities of the case and thereby the substantive evidence in the case has been held to be unreliable. I find that the prosecution has utterly failed to prove that the accused had ever demanded of the complainant/decoy to pay him the illegal gratification for the purpose of passing his due bills, and further failed to prove that the accused had accepted the bribe. In this view of the matter, the trial Courts approach to the evidence in the case is roost superficial and it over-looked the salient things So, the order of the trial Court convicting & sentencing the accused cannot be held to be sustainable. The appellant is entitled to an acquittal. 24. In the result, I allow this appeal, and hereby set aside the trial courts order of sentences & conviction passed against the appellant under Section 161, IPC as well as S. 5(1) (d) read with S. 5(2) of the Prevention of Corruption Act. The appellant is honourably acquitted of the charges. He is on bail and need not surrender. His bail bonds stand discharged. The record be sent back. *******