JUDGMENT 1. :- The appellants (Bhanwar Singh Morya and Govind Ram) by way of this appeal have challenged judgment of the learned Special Judge (CBI Cases) :Jaipur whereby each of them has been convicted and sentenced as under (1) Under section 120-B, Indian Penal Code read with section 161 Indian Penal Code & section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, 1947- - One year's RI with a fine of Rs. 2000/- in default thereof, further 4 months' RI. (2) Under section 161 Indian Penal Code & section 5(2) read with S. 5(1)(d) of the Prevention of Corruption Act, 1947 - One year's RI with a fine of Rs. 2000/- in default thereof, further 4 months' RI. 2. Both the substantive sentences were ordered to run concurrently. 3. The relevant facts as unfolded by the prosecution are that on 22/5/1980 at about 1.30 P.M. one Parmanand Gandhi (PW7) lodged a written report to the Additional Superintendent of Police (ACD) Kota to the effect that complainant is Prop. of Gandhi Watch Company situated at Gumanpura Kota and has been dealing in business of sale and repair of watches. On 5.11.1979, theft took place in his aforesaid shop, for which he had lodged a report at police station Gumanpura Kota. About 5-6 days prior, a boy came to his shop to sell two old watches, and whereupon he suspected, so he took the boy to Gumanpura police station. A day before 22.5.80, personnel of central excise department caught hold of one Igbal and recovered 27 watches and upon interrogation Igbal gave out that some of watches were with Raghuvir and during interrogation with Iqbal, one central excise inspector Shri Morya (present accused appellant No.1) called him and told in the presence of another inspector Govind Ram (appellant No.2) that he was dealing in foreign watches and thereupon he was threatened with dire consequences of involving him in criminal case. At that time, Sarva Shri Morya and Govindram both demanded a sum of Rs. 5000/- so as to get him discharged. Accoding to Parmanand, he then pleaded innocence by asking that he being poor could present only Rs. 200/- and not more than it, to which they laughed but they did not agree and when he proposed to agree to pay only one thousand rupees, they asked to give Rs. 5000/- so as to get him discharged. Accoding to Parmanand, he then pleaded innocence by asking that he being poor could present only Rs. 200/- and not more than it, to which they laughed but they did not agree and when he proposed to agree to pay only one thousand rupees, they asked to give Rs. 3,000/- as final settlement, to which he prayed for time to arrange that money. The complainant arranged money of Rs. 3000/- and requested the Additional SP to get the appellants caught red handed in a trap for bribe. 4. On receipt of the aforesaid report of Parmanand, the Additional SP (Dinesh Chand Sharma) made an endorsement thereon and summoned two motbirs namely Ismail Mohd. and Mahendra Kumar. After completing formalities for laying the trap, the Additional S.P. alongwith complainant (decoy) and the raiding party proceeded for laying the trap and reached the spot. The decoy was sent inside the central excise & customs office and the trap party started awaiting signal of the decoy outside the office. Upon receipt of the signal of the decoy, the raiding party entered the aforesaid office, thereafter disclosed the identity and took in custody both the accused appellants whose both the hands were got washed, and from whom got recovered currency notes. After usual and requisite formalities, the Additional S.P. registered the crime. Since the matter pertained to the Inspector of Central Excise and the bribe was being demanded on the very day, it was not possible to inform the CBI except to lay the trap, and accordingly after completion of the trap proceedings and registration of the crime, the Additional S.P. forwarded the case alongwith the recovered notes to the CBI Jaipur for regular investigation. 5. The CBI police started investigation and necessary sanction for prosectuion of the accused appellants was obtained in accordance with the provisions of the Prevention of Corruption Act, 1947 (for short, "the Act"). After usual investigation, the challan was filed against the accused appellants before the trial Court. The learned trial Court framed charges under Section 120-B read with section 161 Indian Penal Code and section 5(1)(d) and section 5(2) of the Act, against the accused appellants, who pleaded not guilty and claimed trial. As many as 10 prosecution witnesses were examined. After usual investigation, the challan was filed against the accused appellants before the trial Court. The learned trial Court framed charges under Section 120-B read with section 161 Indian Penal Code and section 5(1)(d) and section 5(2) of the Act, against the accused appellants, who pleaded not guilty and claimed trial. As many as 10 prosecution witnesses were examined. The accused appellants were examined under section 313, Cr.P.C. and in their defence, they examined six witnesses.After hearing both the parties, the learned trial Court convicted and sentenced each of the accused appellants as indicated above. Hence this appeal. 6. I have heard the learned counsel for the parties and perused the impugned judgment and the record of the case. 7. Shri S.R. Surana learned counsel for the appellants contended that the findings arrived at by the learned trial Court under the impugned judgment are contrary to law and facts on record because the prosecution witnesses are highly interested and their evidence is not only discrepant but also not worthy of credence, inasmuch as the impugned findings are based on surmises and conjectures. Shri Surana then contended that it is well established case of false implication of both the appellants because police officials of Gumanpura police station of Kota and the decoy conspired against them with a view to save their own skin. 8. Shri Surana also contended that implicit reliance has been placed by the learned trial Court on the version of the decoy which is full of contradictions, inasmuch as there is only statement of the decoy as to the demand of bribe and there in no other evidence to corroborate the solitary version of the decoy as regards demand of bribe. That apart, according to Shri Surana, there is no evidence as to the recovery from the persons of the accused appellants, whereas the prosecution failed to prove as to how the bribe money reached to the table drawer in another room where the appellants were not sitting at the time of the impugned trap. Moreover, according to Shri Surana, the prosecution failed to produce important witness namely Devi Sahai who took the search of the appellants, room and then recovered the bribe money. 9. Moreover, according to Shri Surana, the prosecution failed to produce important witness namely Devi Sahai who took the search of the appellants, room and then recovered the bribe money. 9. Shri Surana further contended that it is a case where the investigation has been done in an unfair manner by playing foul such as, that the water glasses and bottles were not got washed at the spot, no search of the person and their hands wash were made before taking search of the appellants, and these circumstances were not taken into consideration by the learned trial court while appreciating the evidence of the parties and these circumstances casts aspersion on the prosecution story which is shrouded with mystery entitling the appellants to the benefit of doubt. 10. Shri N.C. Choudhary, learned Special Public Prosecutor for the CBI reiterated the submissions made before the learned trial Court and supported the findings arrived at by the learned trial Court. 11. Before arriving at the final conclusion, I would like to state the circumstances leading to the trap. Parmanand Gandhi (complainant) was searched on 14.2.1974 by customs intelligence department and during search, 3 smuggled foreign watches were found in his possession and for which he was found guilty, fine was (imposed) upon him, and the seized watches were confiscated vide Ex.D.5 and Ex.D.7. Consequently, he was kept under vigilance of Preventive & Intelligence Wing, Central Excise Division, Kota. On 20.5.1980 as is evident from Ex.D.12, Bhagwan Singh accompanied by the present appellants seized 27 watches out of which 10 foreign made wrist watches were seized from one Syed Iqbal Ali at his residence. Statement of Syed Iqbal Ali was recorded by Bhanwar Singh (present appellant) wherein he disclosed that 31 wrist waches were given to Raghuveer for sale and during investigation, Raghuveer was found to have connection with one Narpat Singh, who had connection with the present complainant (Paramanand Gandhi) dealing in smuggled goods. The aforenamed Raghuveer Singh in his statement dated 20.5.80 recorded under Section 107 of the Customs Act stated that on 17.5.1980 31 foreign made wrist watches recovered from him were taken by Chander Singh CI of Gumanpura police station, 23 Wrist watches were taken by Khemraj ASI and thereupon the afore-named police officials illegally handed over wrist watchs to M/s. Gandhi Watch Company (firm of the present complainant). Similarly Narpat Singh in his statement recorded on 20.5.80 stated that he got foreign made wrist watches from Raghuveer Singh, so he went to a barber shop on 16.5.80 where the barber asked as to foreign made writ watches for sale, if any, to which two wrist watches were shown to the barber who took to M/s Gandhi Watch Company for testing whereupon the present complainant claimed those watches of him and asked him to accompany to the police station where he met Circle Inspector of police and then got handed over wrist watches. Since Raghuveer had gone to Bundi Hospital to look after his wife, police officials Khemraj (ASI) and the present complainant took Narpat Singh to Bundi from where Raghuveer was brought to Kota and he gave Rs. 500/- and 23 wrist watches foreign make to M/s. Gandhi Watch Co. by the police. When the matter was being hushed up by the police officials of Gumanpura police station, the accused appellants contacting the police officials conducted the investigation and at that time Shri Bhagwan Singh Chauhan and Shri M. P. Meena Superintendent Customs Department (Preventive & Intelligence Wing) who were-also pursuing the case making investigation seriously with police officials Chander Singh (CI) and Khemraj (ASI), both these police officials were furious against the present appellants. After two days of the investigation by the custom officials, one false F.I.R. was lodged at Gumanpura police station by the present complainant with the connivance of the local police officials by cooking up a story against the customs. Since the present complainant himself was an accused and the involvement of local police officials came to the notice of the custom department, therefore, with a view to falsify the allegation, this false F.I.R. has been lodged against the custom officials (present appellants). 12. From the prosecution evidence, itself, it stands established that Constable Devi Sahai and Gopallal of Anti Corruption Department accompanied the Additional S.P. Dinesh Chandra Sharma; that at 3.20 P.M. Parmanenal Gandhi alone entered in the office of the customs department where he met the present appellants and shook hands with them and thereafter gave signal whereupon the Addl. SP entered into the office, the search was taken but nothing was found on the persons of these two accused persons. At that time, the appellants denied to have taken any bribe. SP entered into the office, the search was taken but nothing was found on the persons of these two accused persons. At that time, the appellants denied to have taken any bribe. However, one Devi Sahai took search of another room and found the stated amount in the table drawer. Thus, no recovery was affected from the persons of the accused appellants. Since the complainant entered into the room of the present appellants and then shook hands with them, as proved in the prosecution evidence, itself, naturally the pink colour certainly came into contact with the hands of the accused appellants. Explanation of Govind Ram (appellant) was that the colour came into contact on account of shake hands with the complainant as per Ex.P.8 and therefore, when Govindram put off his pant and when dipped in the pot, the pink colour came out because he was wearing pink coloured pant. The case file of 27 wrist watches in respect of Syed Igbal Ali dated 20.5.80 investigation thereof was being conducted by the customs department wherein the local police officials and the present complainant were involved in dealing with sumggled writ watches, was also seized by the trap party. 13. Thus in the light of the aforesaid back ground of the case, it can be held that statements recorded under Section 108 of the Customs Act (Ex.D.13, & D.16), that of Narpat Singh & Raghuveer Singh are substantive piece of evidence against M/s. Gandhi Watch Company and all these exhibits depict genesis of the story of the prosecution case engineered for false implication of the present appellants in the trap at the instance and connivance of the local police officials and the present complainant and in these circumstances Parmanand Gandhi (PW7) alongwith police officials produced by the prosecution were certainly interested in getting involved the present appellants. Therefore, no reliance can be placed on their versions for convicting the accused appellants. The learned trial Court completely failed to consider and appreciate this significant aspect of the matter. 14. For demand of bribe, Parmanand Gandhi is a solitary witness. He admitted that the custom party had made seizure of wrist watches from one Iqbal on 20.5.80 and he was reached by the party for showing seized watches, which were sealed at the residence of Iqbal vide Ex.D.12. According to his statement, Mohd. 14. For demand of bribe, Parmanand Gandhi is a solitary witness. He admitted that the custom party had made seizure of wrist watches from one Iqbal on 20.5.80 and he was reached by the party for showing seized watches, which were sealed at the residence of Iqbal vide Ex.D.12. According to his statement, Mohd. Ismail and Mahendra Kumar had to accompany him as motbirs but from his version coupled with that of PW6 and PW9, these two motbirs never accompanied him at the point of demand, inasmuch as according to him demand was made when he reached between 19.30 and 20.00 hrs. when he was shown seized watches. This version is totally false because according to log book of Govt. Jeep (Ex.D.18) both the appellants were out of office in connection with seizure case of 27 wrist watches from Igbal right from 14.00 hrs. to 22.45 hrs. on 20.5.80, where vide Ex.D.17 seizure was made. Thus there is no corroborative evidence of demand and the story of the decoy for calling him in the office showing seized watches and demand of money is totally false and not worthy of credence. 15. As held in Pannalal Vs. State of Maharashtra ( AIR 1979 SC 1191 ) corroboration of complainant with regard to demand for money is first and foremost because complainant is in no better position than accomplice after introduction of section 165-A, IPC. In Darshanlal Vs. Delhi Admn. ( 1974 CrLJ 307 ) the Apex Court held that there should be independent and trustworthy corroboration of evidence of trap witnesses and similarly, in Jairam Lakhe Vs. State of Punjab (1978 Cr.A. Reports 181) the Apex Court held that the members of the raiding party should be disinterested or independent witnesses, otherwise sufficient to raise serious doubts about guilt of the -appellant and the conviction could not be sustained. 16. State of Punjab (1978 Cr.A. Reports 181) the Apex Court held that the members of the raiding party should be disinterested or independent witnesses, otherwise sufficient to raise serious doubts about guilt of the -appellant and the conviction could not be sustained. 16. The aforesaid circumstances brought out of the evidence on record clearly depict that the present complainant Parmanand Gandhi alongwith Chander Singh (CI) & Khemraj (ASI) conspired and planned against the present appellants because they were also involved in a seizure made by the customs department in respect of smuggled wrist watches and that being so, the local police arranged the raiding party, inasmuch as the members of the raiding party all were proved to be interested and not independent persons who had clear motive to grill and falsely implicate the present appellants so as to pressurise and keep them away from the investigation of the seizure case which involved the complainant and other local police officials. 17. The decoy has come with a case that demand was made by the appellants for showjjig the favour to him. This raises a question whether the appellants were in a position to show favour to the decoy. In a raid laid by the Custom Party headed by B.S. Chauhan accompanied by the present appellants & Jeep driver, the smuggled 27 foreign writ watches were seized at the spot and then deposited in Malkhana by B.S. Chauhan on 20.5.80, and on that day statements of Syed Iqbal, Raghuveer & Narpat were recorded during investigation conducted by three persons. The proceedings drawn on 16.5.80 & 17.5.80 in file (Art.6) reveal that the smuggled goods were in the notice of police officials named above, and one barber Satyanarain. Thus, there remained no work of decoy pending with the appellants as statements were already recorded at the residence of Syed Igbal on 20.5.80, itself, and the seized articles were already deposited in the malkhana. Therefore, the present appellants were not in a position to show any favour to the decoy, the theory of demand in respect of money falls flat. Therefore, the present appellants were not in a position to show any favour to the decoy, the theory of demand in respect of money falls flat. The prosecution has failed to prove beyond reasonable doubt that the appellants were in a position or within their official competence to show favour for the alleged demand of bribe, the possibility of demand of any bribe becomes very doubtful because a person being not in a position to show favour would never demand any bribe. I find support from the decision in Amarchand vs. State of Rajasthan (1993(3) WLC 146) and it is settled law that once the story of demand falls through, the authenticity of the trap itself, becomes highly suspicious because acceptance of bribe generates 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 constitutes backbone of an offence under Section 5 of the Act and that being so, failure to prove demand renders the prosecution case in its entirety as highly suspicious and not acceptable. 18. As regards recovery of acceptance of tained currency notes, from the material on record it stands proved that Devi Sahai Constable had not recovered tained notes from the persons of the accused appellants but upon search of the premises where other employees of the Customs Department are working and the decoy had chance to plant the notes. Moreover, Devi Sahai has not been examined by the prosecution. So, inference under Section 14(G) of the Evidence Act can be drawn against the prosecution. I find support from the decision in Jairam Lakhe vs. State of Punjab (supra) wherein the Apex Court held that currency notes if were recovered from one of the prosecution witnesses not from the person or in presence of the accused, the entire case falls to the ground entitling the accused to the acquittal. In the case at hand, this significant aspect has not been taken into consideration by the trial Court. 19. It is well known, the giver of bribe namely the decoy is normally to be treated as accomplice and approver. The evidence of an approver is not trustworthy unless independent corroboration is available. In the case at hand, this significant aspect has not been taken into consideration by the trial Court. 19. It is well known, the giver of bribe namely the decoy is normally to be treated as accomplice and approver. The evidence of an approver is not trustworthy unless independent corroboration is available. Thus, before recording the conviction of the delinquent, independent corroboration of the accomplice's evidence, i.e. the decoy and the shadow witness is normally sought for if not as a matter of law then atleast as a matter of prudence. In the case at hand, as narrated above there is no cooboration of any independent witness on the crucial issue of demand of money, acceptance, and other evidence. Solitary witness (decoy) Parmanand Gandhi (PW7) has changed his statement on all material particulars. His statement is highly improbable. Statement under Section 108 of the Customs Act could be used against him. 20. In my considered view, the documentary and circumstantial evidence-full of concoction having jolts to the prosecution case creates room for doubt but makes the defence case probably true and the decoy's evidence cannot be accepted in toto being full of concoction, without independent corroboration. The story propounded by the decoy negates the presumption nipping it as if were in the bud. Thus, the trial Court's approach to the evidence in the case is most superficial and it over looked the salient things. So the impugned judgment cannot be held to be sustainable. The appellant is entitled to an acquittal. 21. As a result of above discussion this appeal is allowed. The judgment dated 16.2.1993 passed by the Special Judge (CBI Cases) Jaipur in Spl.Cr.Case No.1/81 is set aside and consequently the impugned conviction and sentence awarded against the appellants (Bhanwar Singh & Govindram) are quashed & set aside. The appellants are acquitted of the offences under Sections 120-B, 161 IPC, and 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947. Both the appellants are on bail, therefore, their bail bonds stand discharged.Appeal Allowed. *******