JUDGMENT Mr. Kundan Singh, J. - This appeal has been preferred by Swami Nath Rai appellant against the Judgment and Order dated 30.9.85, passed by Sri Badri Niwas, the then Ilnd Addl. Sessions Judge/ Special Judge, Balia, in Criminal Case No. 2 of 1984, whereby the appellant has been convicted under Section 161 I.P.C. and sentenced to undergo rigorous imprisonment for a period of one year, and under Section 5(2) read with Section 5(l)(d) of the prevention of Corruption Act 1947 to a period of one year R.I. and a fine of 500/- and in default of the payment of fine to further undergo the rigorous imprisonment of 3 months, with a direction to run all the sentences concurrently. 2. The prosecution case, in brief, is that complainant Harindra Prasad (P.W.1) had passed the examination of B.Com. in the year 1983 from Sri Murli Manohar Town Degree College, Balia, and had taken his admission in M.Com. Part-I Harish Chandra College, Varanasi. He belonged to sonar community, which comes in backward class, and was getting scholarship, available to the students belonging to backward class 54/- per month through the office of Harijan and Social Welfare, Balia. He had received scholarship for the period upto February, 1982. The scholarship for the months of March and April, 1982 had also been received in the college. The scholarship for the period commencing from May 1982 to March 1983 had not been received in the college though he had already submitted an application for renewal of the scholarship in his college. The application of the complainant had already been forwarded to the office of Harijan and Social Welfare, Balia. The complain ant contacted the appellant who was the dealing clerk of those matters. On 28.7.83, the appellant pretended the complainant but on the next day, i.e. 29.7.83, asked the complainant to pay 50/- for his work to be done. On 30.7.83 the complainant requested the appellant for the lesser amount and the appellant asked the complainant to come on 1.8.83 to pay 40/-. The complainant moved an application Ext. Ka.1 on 30.7.83 before District Magistrate, Balia, alleging that his scholarship sent to his college and the appellant had agreed to accept the same on 1.8.83, while he did not want to give the same and wanted him to get arrested red-handed so that the corruption may be rooted out. The complainant moved an application Ext. Ka.1 on 30.7.83 before District Magistrate, Balia, alleging that his scholarship sent to his college and the appellant had agreed to accept the same on 1.8.83, while he did not want to give the same and wanted him to get arrested red-handed so that the corruption may be rooted out. The District Magistrate, Balia deputed Sri Kishan Singh, Trap Inspector, to take necessary action as per rules and procedure. The Trap Inspector brought the complainant to his office where he recorded his statement and asked the complainant to attend his office on 1.8.83. The complainant with 40/- reached the office of the Trap Inspector, Sri Kishan Singh (P.W.2) at 11.00 A.M. on 1.8.83. Thereafter the Trap Inspector came to the police station Kotwali, Balia where he received 40/-. One note was of the denomination of 20/- and 2 notes were of the denomination of 10/-, each. The Trap Inspector initialled those notes. He called two public witnesses and took one Sub-Inspector and 2 Constables in plain clothes. The phenolphthalein powder was sprinkled on the currency notes and then the same were handed over to the complainant to be offered to the accused. The hands of Sub-Inspector, who sprinkled the powder on the currency notes, and that of the complainant were got washed out with the solution of sodium carbonate which turned into pink colour. Hand wash of both the persons was kept in two separate bottles, which were got sealed. The recovery memo Ext. Ka. 3 was also prepared and got signed by the witnesses. Thereafter all of them reached the office of the Harijan and Social Welfare, Balia, where the complainant was sent to the appellant in the office, but the appellant was not found on his scat and they waited till 2.50 P.M. outside the office on a tea stall. When the appellant was seen ascending the stairs, the complainant pointed out the Trap Inspector towards him that it was he who was Swami Nath Rai. Immediately the complainant met him and told the appellant that he had brought 40/- and requested to accept the same for doing his work. When the appellant was seen ascending the stairs, the complainant pointed out the Trap Inspector towards him that it was he who was Swami Nath Rai. Immediately the complainant met him and told the appellant that he had brought 40/- and requested to accept the same for doing his work. As soon as the appellant received the 3 notes, amounting to 40/- in his right hand, the Trap Inspector, who was standing behind the complainant, caught hold the hand of the appellant with the money disclosing his identity, and arrested him and brought the appellant to a place outside, near the gate of Harijan and Social Welfare Office, where the hands of the appellant were got washed out with the solution of sodium carbonate. Hand wash which turned into a pink colour was contained in a bottle which was sealed and also the recovered notes were put in a sealed cover. The Trap Inspector also prepared a recovery memo and got in signed by the witnesses. He brought the appellant to the R.S. Kotwali where he lodged an F.I.R. of the incident at 4.30 P.M. on 1.8.83. 3. The investigation of the case was entrusted to Sri Atma Ram Dubey, another Trap Inspector, P.W.5, who recorded the statements of the witnesses, prepared site plan, collected other evidence and obtained sanction for the prosecution of the appellant from the authority concerned. After completion of the investigation, he submitted charge sheet against the appellant in Court. The appellant prior to charge levelled against him, denied the prosecution version and stated that Devcndra Kumar Mishra, Clerk was looking after the work of scholarship who was suspended due to irregularities committed in his work. The appellant was entrusted with inquiry regarding irregularities committed by Devendra Kumar Mishra who was annoyed with the appellant and was in collusion with Harindra Prasad complainant, who got him falsely implicated in the present case. 4. The appellant pleaded not guilty to the charge and claimed to be tried. In his statement recorded under Section 313 Criminal Procedure Code he stated that Harindra Prasad along with other students met him on 26.7.83 and asked about his scholarship. He showed his ignorance. Inspection was to be held, hence he could not help them. The aforesaid students including the complainant threatened him. In his statement recorded under Section 313 Criminal Procedure Code he stated that Harindra Prasad along with other students met him on 26.7.83 and asked about his scholarship. He showed his ignorance. Inspection was to be held, hence he could not help them. The aforesaid students including the complainant threatened him. The appellant made a complaint to the Principal of the College of not to allow the students to visit his office. Being annoyed, Harinder Prasad got him falsely implicated in this case. On 1.8.83, when he was going up on stairs somebody told him from behind that his money has dropped which the appellant disowned. Then another person picked up the money and caught hold his hand. A little-while the Money was taken by the Trap Inspector and then the appellant was brought to the police station Kotwali. 5. The appellant also examined Satendra Kumar Singh in self defence as D.W.1, who stated that he was returning on the date and at the time of the incident from the office of the Harijan and Social Welfare, Balia. When he was on stairs, he found 3 persons ascending. One of them was the appellant. Another person told that his money had fallen down but the appellant refused to accept it as his own. At that time, the appellant was holding grams in his hands. Third person caught hold the appellant and dragged him outside the office. When the witness inquired the reason of apprehending the appellant from the third person, he replied that he was Trap Inspector and it was an official matter and he should go away. Thereafter, he left the place. The defence witness pointed out toward the Trap Inspector, when he was in Court, that it is he who was the third man. 6. The prosecution examined Harindra Prasad complainant P.W.1 and Shri Kishan Singh Trap Inspector P.W.2 as eye witnesses of the incident. P.W.3 Mohd. Saiyed Ali was examined to prove the fact that on 28.8.83 he had carried the phials in a sealed condition from police station Kotwali, Balia, to Lucknow Laboratory for chemical examination and handed over the same there as it is, on 29.8.83. Shri Vishwanath Tiwari P.W. 4 was examined to prove the fact that he was posted as Harijan and Social Welfare Officer at the relevant time. Shri Vishwanath Tiwari P.W. 4 was examined to prove the fact that he was posted as Harijan and Social Welfare Officer at the relevant time. He handed over the progress report about the scholarship for the year 1982-83 to Devendra Kumar Mishra, Junior Clerk, with the instruction to submit his comments on the said report. At Sl. No. 39, there was the name of Harinder Prasad. Devendra Kumar Mishra did this nature of work till 23.5.83. Thereafter he was suspended and that work was entrusted to the appellant and he did that work upto the date of his arrest on 1.8.83. On 5.8.583, the Inspector came in connection with the investigation. The appellant took out the progress report from his almirah which was opened by him in his presence and also in the presence of the Inspector, who prepared the recovery memo which has been signed by him as well. Sri Atma Ram Dubey (P.W.5), Trap Inspector was examined to prove the investigation, while Ravindra Kumar (P.W.6) was examined to prove the chick report of the F.I.R. etc. 7. The prosecution has examined only 2 witnesses, namely P.W.1 Harinder Prasad and Shri Kishan Singh P.W.2, as the witnesses of the factum of incident, P.W.1 Harindra Prasad stated that when he did not receive his scholarship for the period from May 1982 to March 1983, he contacted the appellant, who was the dealing clerk at the relevant time. The appellant first pretended but thereafter he demanded 50/- for doing his work. On his request for the lesser amount, the appellant agreed to accept 40/- for doing his work and asked the appellant to meet him on 1.8.83 along with 40/-. As he was not in favour of payment of the bribe money and wanted abolition of corruption, he moved an application before the District Magistrate, who directed the Trap Inspector to take necessary action. The Trap Inspector next day, i.e. on 1.8.83, took 40/- from him and another Inspector who was one of the members of his party was sprinkled the powder on the currency notes. Thereafter the notes were given to the complainant with the instruction to offer the same to the accused on demand. Public witnesses were also called. The Trap Inspector next day, i.e. on 1.8.83, took 40/- from him and another Inspector who was one of the members of his party was sprinkled the powder on the currency notes. Thereafter the notes were given to the complainant with the instruction to offer the same to the accused on demand. Public witnesses were also called. They all reached the office of the Harijan & Social Welfare, Balia, where the trap was laid and the accused was arrested red handed with the bribe money while accepting the money from the complainant on offering the same by the latter. The hands of the appellant were got washed out with the solution of sodium carbonate. The hand wash which turned into pink colour was sealed in a bottle. The recovered currency notes were also sealed in an envelope. The recovery memo was also prepared and the appellant was brought to the police station where an F.I.R. was lodged by Sri Kishan Singh (P.W.2). Similar statement has been made by P.W.2 Sri Kishan Singh, the Trap Inspector, supporting the statement of P.W. 1, Harindra Prasad. 8. The trial Judge believed the ocular testimony of P.W.1 and P.W.2 and, disbelieving defence version, hold the appellant guilty and convicted and sentenced him as aforesaid. 9. The learned Counsel for the appellant criticised the ocular testimony of P.W.1 and 2 and emphasised that no money was recovered from the appellant and just to make the trap successful, the Trap Inspector falsely stated that the money was recovered from the possession of the appellant. It was also contended by him that the trap was laid at the instance of and in collusion with Devendra Kumar Mishra, a suspended Clerk against whom the appellant was making an inquiry. It was also contended on behalf of the appellant that the Investigating Officer was apprehensive that the witnesses may not support the false version of the prosecution, hence he got the statements of the PWs recorded under Section 164 Criminal Procedure Code, through the PWs were companions of the complainant, and no independent so called public witnesses of fact was examined by the prosecution to prove the factum of the incident. Thus the ocular evidence of the prosecution witnesses smacks taint and mala fides and also suffers from in-consistencies and infirmities, hence the conviction and sentence of the appellant could not be sustained on such evidence. 10. Thus the ocular evidence of the prosecution witnesses smacks taint and mala fides and also suffers from in-consistencies and infirmities, hence the conviction and sentence of the appellant could not be sustained on such evidence. 10. I meticulously examined the evidence of the prosecution witnesses and find that Harindra Prasad P.W. has admitted that when the appellant was caught by the Trap Inspector, he threw away the money on the stairs and he was arrested empty handed by the Trap Inspector. The Trap Inspector picked up the money from the stairs and arrested the accused. The Trap Inspector has, however, denied in his statement to have picked up any money from the stairs and stated that the appellant was arrested by him with the currency notes in his fist. The Trap Inspector was put a suggestion that he was making a false statement that he arrested the appellant with the money in his hand and has replied it was wrong to say that the appellant was arrested empty handed and the money was picked up from the stairs. The complainant was neither declared hostile by the prosecution nor was he confronted with his earlier statement, recorded under Section 161 I.P.C. by Investigating Officer or the statement recorded under Section 164 Criminal Procedure Code by the Magistrate. Hence the defence suggestion that the money was picked up by the Trap Inspector from the stairs and the appellant was arrested by the Trap Inspector empty handed is more convicting and plausible. 11. Now the question that remains to be considered is whether the appellant had thrown away the money on seeing the Trap Inspector or the money was already lying there or it was placed by any other member of the raiding party. In this connection, the learned Counsel for the appellant drew my attention to the statement of the complainant (P.W.1), who admitted that at a shop the Trap Inspector prepared the solution, he caught hold the hand of the appellant and plunged the same in that solution. In this connection, the learned Counsel for the appellant drew my attention to the statement of the complainant (P.W.1), who admitted that at a shop the Trap Inspector prepared the solution, he caught hold the hand of the appellant and plunged the same in that solution. The learned Counsel for the appellant urged that the Trap Inspector fully know that the solution will not turn into pink colour in case the appellant's hand was got washed out with that solution because the appellant had not touched the notes and to do so the Trap Inspector had caught hold the hand of the appellant with his own hand which had already come into contact with phenolphthalein sprinkled powder notes and immersed his own hand with that of the appellant in the solution contained in the glass. In this connection, I may mention here that the defence case is also that the money was already lying on the stairs and the appellant was asked by one of the members of the raiding party to pick up the same alleging that it had slipped from the possession of the appellant but the appellant refused to claim it as his own. Thereupon the money was picked up by the Trap Inspector and the appellant was dragged outside the office by another member of the trap party. This defence version finds corroboration not only from the defence suggestion put to the witnesses and the Statement of the accused recorded under Section 313 Criminal Procedure Code, but also from the Statement of defence witness, Satendra Kumar Singh and the inconsistent statement made by the Complainant Harindra Prasad himself. I thoroughly examined the evidence on record and find it fully established that the money was not recovered from the hand of the appellant but from the floor of the stairs, which casts great reflection on the prosecution case. Had the money been recovered from the hands of the appellant, there was no occasion for the Trap Inspector to have caught hold the hand of the appellant and have it forcibly plunged in the solution of sodium carbonate. The defence version that the money was picked up by the Trap Inspector from the floor of the stairs appears to be correct and more convincing. The defence version that the money was picked up by the Trap Inspector from the floor of the stairs appears to be correct and more convincing. On this point, P.W.2 Sri Kishan Singh, the Trap Inspector himself has not supported the prosecution case, and the recovery of the money from the floor of the stairs only finds corroboration from the defence version and the evidence led on its behalf. P.W.1 Harindra Prasad, who stated that the money was picked up from the stairs by the Trap Inspector, has not been declared hostile by the prosecution nor was he confronted with his earlier statement recorded under Section 161 I.P.C. and the statement of the Trap Inspector Sri Kishan Singh (P.W.2) too is also contradictory. It was nothing but an attempt to make the trap a success. Under the circumstances mentioned above, I am constrained to hold that the money was picked up by the Trap Inspector from the floor of the stairs and it was not recovered in the manner as alleged by the prosecution. 12. I also find that the prosecution has examined only two witnesses who were highly interested persons and the prosecution case stated by them did not find corroboration from the evidence of any independent public witness. The Trap Inspector did not care to procure independent and respectable witnesses. The Trap Inspector called two public witnesses namely; Ashish and Susheel Kumar. They admittedly were companions of the complainant but their evidence was also withheld by the prosecution. 13. The case of Sabhapati Tiwari v. State of U.P, reported in 1978 Cr.L.J. NOC 32 (Allahabad), which relied upon a Supreme Court decision in Raghubir Singh v. State, reported in 1976 Cr.L.J. page 172, was cited to show that the officer of Anti corruption Department should make serious endeavour to procure real, independent and respectable witnesses so that the Court may place implicit reliance upon their evidence. They should insist on observing safeguard for protecting the public servant against whom a trap may have been laid. In the present case the prosecution has examined only two ocular witnesses, namely the complainant and the Trap Inspector. No independent public witness has come forward to support the prosecution case which raises an inference adverse to the prosecution that if they had been produced they would have deposed against it. 14. In the present case the prosecution has examined only two ocular witnesses, namely the complainant and the Trap Inspector. No independent public witness has come forward to support the prosecution case which raises an inference adverse to the prosecution that if they had been produced they would have deposed against it. 14. I am conscious of the fact that the conviction of an accused can be based on the evidence of interested witnesses too provided their evidence is found to be reliable concurrently, inspiring credence, and it may not suffer from infirmity and illegality or any inconsistency but in the present case, both the witnesses P.Ws. 1 & 2 have given inconsistent statements about the factum of recovery of the money. The evidence of Trap Inspector suffers from inconsistencies and infirmities and also smacks taint and mala fides as the Trap Inspector made all out efforts to make the trap a success by putting the prosecution case falsely that the money was recovered from the first of the appellant and not from the floor of the stairs, which does not find corroboration even from the evidence of the complainant himself. He also made an attempt to prove a false fact as to be true by forcibly plunging hand of the appellant in the solution of Sodium Carbonate with his own hand which had come into contact with the phenolphthalein powder smeared notes in order to prove that money exchanged the hands from the complainant to the appellant. The Trap Inspector did not care to procure and examine independent witnesses to corroborate the prosecution version. From the evidence of Vishwanath Tiwari, the then Harijan and Social Welfare Officer, it appears that on 28th, 29th and 30th July, 1983 the appellant was busy with inspection of his office by the Assistant Director of Varanasi Division. At that time the complainant might have gone to enquire about his scholarship and the appellant might have been rough in his behaviour in replying the queries of the Complainant, which might have annoyed him. It was suggested by the defence Counsel that some students including the complainant had come to the appellant to enquire about the scholarship of the complainant, who refused to answer them and thereupon the students, including the complainant, had threatened the accused appellant. It was suggested by the defence Counsel that some students including the complainant had come to the appellant to enquire about the scholarship of the complainant, who refused to answer them and thereupon the students, including the complainant, had threatened the accused appellant. It was made clear by Sri Vishwanath Tiwari, Harijan & Social Welfare Officer, in his statement that his office had not concern with the students directly in respect of renewal of scholarship. In that connection the correspondence confines only between his office and the college concerned and that an instruction was issued by his office to all the colleges that the students may not be permitted to visit his office in connection with scholarship as they often create nuisance in his office. Thus the possibility that the complainant visited the appellant in his office along with his boy friends which the appellant might have objected to and that offended the complainant, who being annoyed might have planted the trap, can not be ruled out. Thus the evidence of both the witnesses Harindra Prasad complainant (P.W.1) and Sri Kishan Singh, Trap Inspector (P.W.2) who were highly interested witnesses and whose evidence does not find corroboration from any independent evidence, suffer from infirmities and inconsistencies and smacks taint and malafides. It is difficult to place implicit reliance on their evidence to sustain the conviction of the appellant. Consequently, I am constrained to hold that the prosecution has miserably failed to bring home guilt to the appellant beyond any shadow of doubt. 15. In the result the appeal succeeds and is hereby allowed. The conviction and sentence passed by the Special Judge, Balia on 30.9.85 against the appellant are hereby set aside and he is acquitted of the charges levelled against him. The appellant is on bail and he need not surrender. His bail bond is cancelled and sureties discharged.