JUDGMENT 1. - This appeal arises out of the judgment whereby the appellant has been convicted and sentenced as follows : U/Sec. 5(1)(d) read with Section (2) of the Prevention of Corruption Act to undergo one year's R.I. with a fine of Rs. 200/- (in default further two months' S.I.) U/Sec. 161 IPC -do- 1. Both the substantive sentences were directed to run concurrently. On July 24, 1978, one Sitaram S/o Sukharam lodged a complaint before the Deputy Superintendent of Police, ACD, Sikar. It had been alleged therein that his brother (Banwarilal) was arrested on July 23, 1978 by Sugan Singh (appellant) ASI of Police Station Sadar (Sikar); on that date, Sugan Singh had sought three days' police remand; when he (Sitaram) along with Shiv Dayal (his brother-in law) had met Sugan Singh at the police station & requested him to release his brother Banwarilal (accused in a criminal case in which investigation was being conducted by the present appellant), the appellant demanded Rs. 150/- as bribe for the release of Banwarilal on hail from the Court but Sitaram told that he was a poor man, so, was unable to bring the amount and thereupon Sugan Singh told that he was not taking any bribe but was doing his work, and then Sitaram & Shiv dayal both cane hack. But again, in the morning of 24th July, 1978, Sitaram all alone met Sugan Singh in Court campus then Sugan Singh gave out that since no amount of Rs. 150/- was given so, the police remand so as to investigate further from his brother Banwarilal was sought; and that, if they would pay the amount, Banwarilal would he got released on bail from the Court on the next date, otherwise further police remand would he sought. Against it, Sitaram told him that to pay Rs. 150/-was beyond his financial capacity and at the worst, he would be able to arrange only Rs. 50/- and then it would be given to him. But again, Sugan Singh persisting his demand, inclined to negotiate at Rs. 100/-and saying so, asked Sitaram to being Rs. 100/- if arranged, so as to pay himat Kalyan Circle or in here by market or police out-post thereat. in case he (Sitaram) was really anxious to get his brother released on hail, in the evening. From the complaint (Ex. But again, Sugan Singh persisting his demand, inclined to negotiate at Rs. 100/-and saying so, asked Sitaram to being Rs. 100/- if arranged, so as to pay himat Kalyan Circle or in here by market or police out-post thereat. in case he (Sitaram) was really anxious to get his brother released on hail, in the evening. From the complaint (Ex. P.2) it appears that the complainant did not relish the idea of being dealt with in this manner and he was interested in getting the appellant entrapped. 2. Accordingly, the complaint (Ex. P.2)asserting the aforesaid facts, was made by Sitaram to the anti corruption department, as stated above, suggesting laying of trap against the appellant. The statement of the complainant was recorded by the Dy. S.P. The complainant produced Rs. 10/- consisting of ten currency notes of Rs. 10/- each-number of which were noted & the anthracene power was applied to them and the Dy. S.P. also put his initials on the currency notes. The trap party was then formed consisting of Murarilal (P.W.2)& Anil Kumar (P.W. 6), Roop Singh(P.W.8),Gyarislal (P.W.10), Virendra Godika (Dy. S.P.), & Sitaram (P.W. 11). The decoy (complainant) was instructed to pay the a mount to the appellant and the accompanying witnesses (Panchas) P.W. 2 & P.W. 6, were instructed to remain with the complainant and hear the conversation in between Sitaram & appellant before the money is passed on and thereafter, to give a singal by placing their hands on the head, to the trap party. The trap party and other police functionaries went to the spot and at 6.45 p.m. the members of the trap party after arriving at Kalyan Circle, took their respective positions as instructed while preparing the memorandum and all of them were waiting the appellant. At 8.15 p.m. the appellant was seen coming from Kutcheri Road & then turning to Station Road, but upon seeing the decoy standing near Sikar Hotel, the appellant alighted from his bicycle and started talking with the decoy, but the appellant carried on moving on foot along with the decoy towards Court road (at that time, the trap party's members are said to have followed them) and stopped themselves in front of Milan Restaurant, Court Road, situated opposite Collectorate, Sikar, and by the side of foot-path they continued to their talks. As per the memorandum, then, and by that time. As per the memorandum, then, and by that time. the decoy gave signal by placing his hands on the head, and upon receiving the signal the nienibers of the trapparly reached near the appellant. The Dy. S.P. then disclosed his identity to the appellant and the appellant was asked to put out the bribe money which frightened him and then the accused-appellant in denied to have received any bribe money. The decoy was asked about bribe money and he said that it was kept in the pocket of the accused of the left side after having accepted the amount. Upon laying such a trap, many people and passersby gathered there. The appellant is alleged to have admitted the fact of accepting bribe but after vehement protests. The requisite proceedings regarding phenolphthalein test and recovery etc. were made on the spot. Further from the proceedings, it appears that the passersby gathered crowded at the spot after their notice that the appellant was dead drunk and completely sozzled, protested before the Dy. S.P. to arrange medical examination of the accused which was conducted at 12.30 O'clock in the night, and he was found in a state of drunkenness as he had taken wine. The matter was then investigated by the police and after completion thereof, the case was put up for trial before the Trial Judge. 3. At the trial, the prosecution produced as many as 14 witnesses. On the other hand, the appellant in his explanation under Section 313, Cr.P.C. denied den and so also acceptance of bribe, and he took the plea that he was not in complete senses on account of excessive intake of alcohol. The appellant deposed in his-explanation by producing a separate written statement that on July 24, 1978, though he had sought for seven days police custody remand but the Magistrate granted it for 3 days only and it enraged the decoy; that, on July 24,1978, at 7.20 p.m. he took liquor with one Raghunath by consuming one bottle and that apart, second bottle of liquor was kept in a bag hanging on the handle of bicycle. He further stated that he was ambling along with his cycle on foot and when he reached in front of Collectorate, Sitaram appeared by his side and suddenly he put his hand in the trouser pocket of the appellant. Simultaneously few people caught hold of the appellant. He further stated that he was ambling along with his cycle on foot and when he reached in front of Collectorate, Sitaram appeared by his side and suddenly he put his hand in the trouser pocket of the appellant. Simultaneously few people caught hold of the appellant. He, however, was not in his senses at that time, he further added. 4. The appellant examined three witnesses in his defence. Disbelieving the defence and accepting the prosecution case in entirety the learned trial Judge recorded conviction of the appellant under the two counts aforementioned and awarded sentence. 5. The narration of the prosecution case as is given by the prosecution witnesses, to say the least, was foolproof inasmuch as none of the witnesses except the decoy, himself, who turned hostile, faulted anywhere in their respective statement, and on that basis, I could have dismissed the appeal, yet do not because, the foolproof narration given by the prosecution witnesses has left me with the impression that the story put forward is lifeless and mechanical and does not stand scrutiny when tested on the preponderance of probabilities, and on that analysis, some doubts have entered my mind which I express hereafter. 6. Shri S.R. Bajwa-an expertise in his legal gimmicks and dialogue-contended that it is a case of total lack of evidence not only on the point of demand but also handing over of bribe money or in other words voluntarily acceptance of bribe money by the appellant. 7. Having perused the record, impugned judgment and given conscientious consideration to the rival contentions made orally as well as by written arguments, it is a case where not only the decoy turned hostile but also his shadow witness did not oblige the prosecution to prove its case beyond doubt, and their evidence casts cloud of doubts on the foundation of the case, itself. Moreover, the conclusions recorded by the Trial Judge are based on lingering suspicion alone as would be evidenced from the following observations made by the Trial Judge, in his judgment, itself, and that being so. I agree with the contention of Shri Bajwa that suspicion, however, strong, can never be taken place of proof : "YEH BAT SARI HAI KI RUPYON KE LEN DEN KE BARE MAIN S EEDHE PRAMAN KE ROOP MAIN KEWAL PARIVADI KE HI KATHAN HAIN. IS SAMAY RATKA SAMAY THA. I agree with the contention of Shri Bajwa that suspicion, however, strong, can never be taken place of proof : "YEH BAT SARI HAI KI RUPYON KE LEN DEN KE BARE MAIN S EEDHE PRAMAN KE ROOP MAIN KEWAL PARIVADI KE HI KATHAN HAIN. IS SAMAY RATKA SAMAY THA. MURARILAL WA ANILKUMAR PART VADI WAABHIYUKT SEKUCH DOORI PAR CHAL RAHE THE AISI STHITI MEIN YAHSAMBHAVNAHITHAKI WEVASTAV ME PARIVADI SE ABHIYUKT KO RUPAYE LETE HUE DEKH SAKE ATAH IN DONO SAKSHIYO NE RUPAYE LETE DEKHNE KI BAT NAHIN KAHI HAI." As regards demand of the bribe money, the learned Trial Judge, himself, found as under : "IS PRAKRAN ME P.W.3 WA P.W. II SITARAM KE KATHNO ME JO VISANGAT BATE PRAKAT HUEEN HAI USSEYAHETO SAHI HAI KI ABHI YUKT DWARA PART VADI SE RISHWAT KI MANG KARNA SANDEH RAHIT ROOP SE PRAMANIT NAHI HAI PARANTU MERE VICHAR SE JAB ABHIYUKT NE PART VADI SE YAHA RASHI US PRAKAR SE SWIKAR KAR LI HAI TAB RISHWAT KI MANG KARNE KI BAT BAHUT ADHIK MAHATW NAHI RAKHTI HAI." 8. In view of the findings of the Trial Judge recorded in para 23 at page 17 of his judgment as to the demand, that the prosecution has failed to prove beyond reasonable doubt that the appellant had demanded the bribe money from the decoy (complainant), it is precisely clear that the learned trial Judge has based the conviction merely by accepting the circumstance of recovery of tainted money from the pocket of appellant as a conclusive proof of accepting bribe, and only on the basis of recovery, the learned trial Judge presumed the guilt of the appellant. 9. It is an admitted fact that to prove the actual handing over and taking over of bribe money to the appellant by the decoy, the complainant & two shadow witnesses are vital witnesses, and on the context, the decoy who is the person playing the role of a bribe giver, is always an accomplice witness, and that being so, the Panch witnesses are accompanied him as shadow witness so as to over-hear the conversation between the complainant and the appellant (accused) relating to the demand followed by payment of bribe. And, there is abundance of authorities that the evidence of the delay is that of an accomplice and so, conviction on his such evidence is ordinarily not possible unless there are strong reasons to solely base the conviction on such statement. 10. In the case at hand, as has been concluded by the learned trial Judge, himself, and there conclusions have been recorded in para 22 of his judgment which have been quoted herein before, it is not in dispute that the shadow witnesses, Murarilal & Anil Kumar were chasing the decoy & the appellant having a distance at which they were not only not capable to over-hear the conversation held in between the decoy & the appellant as to the demand & alleged payment of bribe, but were also not capable to have seen the actual passing off currency tainted notes, because there was night of darkness and nothing could be seen from such a far distance. Hence, as rightly found by the trial Judge, himself, neither it was feasible nor visible for the shadow witnesses on account of such a far distances in between the decoy & them while following theta so as to over-hear the conversation in between the decoy & the appellant as was to be observed under the instructions of the Dy. S.P. to have seen the actual passing off the tainted notes or payment to the appellant by the decoy as bribe money, inasmuch as no these two shadow witnesses, as found by the Trial Judge, himself, as quoted above, have not said in their evidence as to the conversation held in between the decoy & the appellant for the alleged demand and/or the transaction of handing and taking over the payment of the alleged bribe money. In this state of the evidence on record and the findings recorded by the learned trial Judge, himself, the prosecution had to rest contend on the solitary statement of complainant Sitaram, the decoy, and there is no corroborative evidence either direct or otherwise so far as the evidence of Sitaram, the decoy, is concerned. 11. Now it is to he seen as to whether the evidence of the decoy is of an acceptable quality so as to sustain the conviction of the appellant. Here. 11. Now it is to he seen as to whether the evidence of the decoy is of an acceptable quality so as to sustain the conviction of the appellant. Here. at the very outset, I may point out that not only the shadow witness, namely, Murarilal (P.W. 2) but also the decoy, himself, (P.W. 11), Sitara in have turned hostile and their testimonies bear hostility to the defence case, and upon their hostility, they have been declared hostile and the Public Prosecutor cross-examined them in a very comprehensive manner but nothing could have been elicited so as to destroy the version given out in the examination-in-chief. Though the seizure of the tainted currency notes as bribe money has been denied by the appellant but with a specific explanation that the tainted currency notes might have been thrusted into his trouser pocket in his state of drunken. The only circumstance appearing against the appellant is that the solution after washing of his hand and trouser pocket turned slightly pink. 12. The decoy (P.W. 11), himself, in his examination-in-chief admitted that he had forcibly slipped the currency notes into the trouser's pocket of the appellant; that, when he ought to have given the currency notes in question to the appellant, he refused to it, but he thrust the currency notes in his trouser's pocket by forcibly slipping. He has even gone to the extent by saying that when he forcibly slipped the currency notes into the trouser's pocket of the appellant, there was no talk with the appellant relating to the case of his brother. He also deposed that when the Dy. S.P. asked the appellant as to how the currency notes reached his pocket, then the appellant replied that these notes might have been slipped into his trouser's pocket by him (Sitaram). Moreover, in cross-examination the decoy again reiterated that he had slipped the notes in the pocket of the appellant's trouser, when the Public Prosecutor put a suggestion that the accused had put the currency notes after computing them upon payment by him & this suggestion was denied by the decoy. Again, when the Public Prosecutor while cross examining him, read over portion 21 to 22 from police statement of the decoy, vi;:. Again, when the Public Prosecutor while cross examining him, read over portion 21 to 22 from police statement of the decoy, vi;:. that the accused gave out that the notes were in his pocket, the decoy deposed that it is wrong that the accused had said so: but the accused in fact had said that he (Sitaram) might have slipped the notes in his pocket (accused's). In cross-examination the decoy also admitted by saying that the reality was that the accused had not demanded the money but his sepoys had demanded. 13. As regards lodging of the report, I wring out from the deposition made by him during cross-examination by the defence, a circumstance which is very significant casting doubt. The decoy deposed that before writing the complaint by hint, which was got dictated/written by Dy. S.P. one Hari Singh had talk with Dy. S.P. then Han Singh had instructed him that whatever the contents a re dictated & asked by the Dy. S.P. would/should be written in the complaint, and then only the work would be done otherwise, not. The decoy has also admitted of the enough darkness in the night at the time of laying the trap against the appellant, and further admitted of the appellant being in a drunken state of mind during the crucial time. Hereafter the clarificatory admissions stated above are being re-produced "MULZIM SE MERI KOI BAT NAHI HUI THI........................................ "MAINE COURT KE SAMNE MULZIM KO Rs. 100/- RUPAYEKECURRENCY NOTES DENE CHAHEJO ESNE NAHI LIYETAB MAINE ISKE PET KI JEB ME YE 100/- RUPAYE KE CURRENCY NOTE DAL DIYE............................ "MULZIM SE UP-ADHIKSHAK POLICE NE POOCHA THA KI KYA TUMNE 1(X)/- RUPAYE LIYE TO MULZIM NE YE KAHA KI MUZHE IS BABAT MALUM NAHI." ................................... "KI ISNE (MAINE) YE NOTE ISKI PENT KI JEB MAI DAL DIYE HONGE...................... "MERE SE WAHAN MULZIM NE NA TO RUPYO KI BABAT POOCHA AUR NA MAINE YEH KAHA KI MAI RUPAYE LE AAYA HUN AUR NA MULZIM NE MUZHE WAHAN BHIR HONE KI BAT YA COLLECTORY KI AUR CHALNE KI BAT KAHI........................ "WASTVIKTA YE HAI KI MULZIM NE MERE SE RUPAYE NAHIN MANGE THE ISKE SIPAHIYO NERUPAYE MANGE THE.................. "US WAKT KAFI ANDHERA HO GAYA THA." 14. "WASTVIKTA YE HAI KI MULZIM NE MERE SE RUPAYE NAHIN MANGE THE ISKE SIPAHIYO NERUPAYE MANGE THE.................. "US WAKT KAFI ANDHERA HO GAYA THA." 14. Thus, from the above excerpts so also the deposition of the decoy in the form of clarificatory admissions wrung out from his evidence before the Court, it is not only abundantly clear that the appellant never dentanded any bribe and he never accepted the same voluntarily, but also it makes the picture clear that the evidence of the decoy is not of an acceptable quality so as to sustain the conviction of the appellant. Rathor his evidence established that the decoy had forcibly inserted the currency notes in the pocket of the appellant and that the appellant at the relevant time was not in his full senses on account of his state of drunken and he was sozzled up. In this manner, the defence plea stands corroborated by the prosecution witnesses as to the drunken state of mind of the appellant so also the insertion of the currency notes in his pocket of the trouser. The medical evidence does not impinge upon the possibility of appellant being heavily drunk at the relevant time. Second bottle was recovered from the person of the appellant during the trap. Defence witnesses state that the appellant was at that time inebriated as was evident from his body movements and gait. Under such mental black out if some signatures were obtained on certain memos the same has got no sense. 15. The other witnesses are witnesses to the events that happened after the money was handed over to the appellant, and having regard to the fact that the receipt of the mount was admitted with due explanation obviously, the paraphenelia which went prior to the laying of the trap fails into insignificance, and the so-called different pieces of circumstantial evidence which renders lingering suspicion, are completely neutral in nature. And, when the complainant himself became hostile and refused to oblige the prosecution there remained hardly any evidence to connect the appellant with the impugned charge. Therefore, the testimony of these witnesses who at least speak about recovery, is of no consequence because, there is no foundation to hold that the appellant had ever demanded bribe of that he voluntarily accepted the bribe. 16. Therefore, the testimony of these witnesses who at least speak about recovery, is of no consequence because, there is no foundation to hold that the appellant had ever demanded bribe of that he voluntarily accepted the bribe. 16. The learned trial Judge failed to note that on the rejection of the evidence of the vital witnesses, there remained little to sustain the prosecution case. Many a jerks and jolts had been given to the prosecution case by the vital witnesses and that being so, it was inter permissible to sustain the conviction on the basis of the presumption under Section 4. 17. In view of the evidence of the vital witnesses, discussed above, I fail to see why the defence plea as taken by the appellant in his examination under Section 313, Cr.P.C. as well as through the defence witnesses should be rejected. Their Lordships of the Apex Court in Suraj Mal v. State (AIR 1979SC 1408) it has been held : " ....... mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable ......... The totality of the aforesaid circumstances thus constrains me to cone to the conclusion that it would not be safe to sustain the conviction of the appellant on the charges framed. The dust of doubt thus raised must ineviriably fall on the prosecution leading to the acquittal of the appellant & this is done by acceptance of the appeal. 18. In the result, this appeal is allowed, I set aside the judgment of the Trial Court under appeal. The appellant is hereby acquitted of the charges framed. He is on bail and need not surrender. His hail bonds stand discharged. The record be sent hack.Appeal allowed. *******