Judgment Chandra Mohan Prasad, J. 1. This appeal is against the judgment dated 16th June 1992 of the Special Judge, C.B.I., North Bihar, Patna in Special Case No. 13 of 1984 (R.C. No.7 of 1984) whereby the appellant has been convicted u/s. 161 of the Indian Penal Code and Sec. 5(1) (d) read with Sec. 5(2) of the Prevention of Corruption Act, 1947 (hereinafter, in short, referred to as the Act) and sentenced to R.I. for one year under each of the counts. The appellant has also been sentenced to pay a fine of Rs. 500.00 u/s. 5(2) of the Act and in default of payment of fine to undergo R.I. for three months. The sentences have been ordered to run concurrently. 2. The informant Rajeshwar Sharma (P.W.1) submitted a written report on 5.03.1984 at 1:00 P.M. before the Superintendent of Police, C.B.I., Patna alleging therein that he was working as a greaser Khalasi in Locoshed, Eastern Railways, Saharsa. Since 14.01.1984 he was unable to attend his duties due to pain in hand and body. For his medical treatment, he went to the Railway Health Centre at Saharsa and showed him to the A.D.M.O., Dr. R.K. Yadav, (appellant). He produced his paper obtained from the Loco Office. The doctor (appellant) gave him medicine and advised rest for seven days. Thereafter, he took medicine thrice from the Health Centre, The doctor appellant demanded fees from him at the rate of Rs. 31.00 per day. The appellant told him (informant) that he (appellant) will not issue fitness certificate to enable him to resume his duties unless he paid him his fee @ Rs. 3.00 per day. He went to the doctor (appellant) on 20.01.1984 and that day he (appellant) again advised him for further rest for 15 days. The informant alleged that since 5.02.1984 he went to the doctor (appellant) several times but he (doctor) did not give him (informant) fitness certificate in order to enable him to join his duties saying that unless he paid him Rs. 31.00 per day, he (appellant) will not issue him fitness certificate and he (informant) will have to run from pillar to post. He (informant) was a poor man and he did not want to satisfy his (appellants) illegal demand. 31.00 per day, he (appellant) will not issue him fitness certificate and he (informant) will have to run from pillar to post. He (informant) was a poor man and he did not want to satisfy his (appellants) illegal demand. Lastly, he (informant) met him (appellant) on 27.02.1984 ana requested him for issuance of fitness certificate but the appellant kept on insisting for fulfilment of the illegal demand. Therefore, he (informant) approached the C.B.I. authorities and filed his written report with a prayer for necessary action in the matter. Thereafter, on the orders of the Superintendent of Police, C.B.I., Patna S.I. Ashokbabu (P.W.4) conducted a secret verification of the ailegation made in the written report of the informant. In course of secret verification, S.I. Ashokbabu visited Saharsa on 6.03.1984 and watched from distance incognito that on request of appellant for issuance of fitness certificate dated 9.03.1984, Dr. Yadav (appellant) calculated the period of absence and insisted for payment of Rs. 168.00 at the rate of Rs. 31.00 per day for the period from 14.01.1984 to 3.03.1984 (56 days). The informant requested doctor Yadav (appellant) to reduce the demand but he remained adament for the amount demanded by him. S.I. Ashokbabu overheard the demand made by doctor Yadav and he submitted his verification report. On receipt of verification report, FIR under Case No. SPE/Patna R.C. No. 7 of 1984 u/s. 161 of the Indian Penal Code was instituted against the appellant on the basis of the written report filed by the informant Rajeshwar Sharma. Inspector G.N. Gupta (P.W. 10) was directed to take up the investigation. He organised a team of Officers and men of SPE/CBI/Patna. He also arranged for laying a trap. On 9.03.1984 at 7:00 A.M. the members of the team collected at Madhepura retiring room. Two independent witnesses Umesh Prasad, Junior Engineer, Telegraph, Madhepura (P.W. 9) and Bindeshwari Prasad Rajak, Assistant, Sub-Post Office, Madhepura (P.W. 6) were also present as their services had been requisitioned for witnessing the transaction. The informant was also present there and he produced Rs. 168.00 in G.C. notes in presence of witnesses and members of the team. The purpose of meeting was explained. The use of Phenolphthalein powder and its reaction with sodium carbonate was practically demonstrated to the witnesses, informant and the members of the team. The informant was also present there and he produced Rs. 168.00 in G.C. notes in presence of witnesses and members of the team. The purpose of meeting was explained. The use of Phenolphthalein powder and its reaction with sodium carbonate was practically demonstrated to the witnesses, informant and the members of the team. The G.C. notes of the informant were treated with phenolphthalein powder and were handed over to the informant with a specific direction to pay the same to doctor Yadav (appellant) only on his demand as illegal gratification. The detailed process of the meeting was incorporated in the memorandum i.e. Pre-trap Memorandum which was read over and explained to the informant, witnesses and the members of the team who signed it. The members of the team washed their hands with soap and water in order to ensure that no particle of the powder remained on their hands. 3. Then at about 9:45 A.M. that day (9.3.1984) the members of the team reached Health Centre, N.E. Railways, Saharsa. Inspector G.N. Gupta (P.W. 10) and witness Umesh Prasad (P.W. 4) took their position near the door of chamber of Dr. Yadav (appellant). The other members of the team also took their position at different places in the Centre at 9:50 A.M. The informant Rajeshwar Sharma entered into the chamber of doctor Yadav and wished him. Dr. Yadav asked the informant whether he had come to take the fitness certificate and if so, whether he had brought the money? The informant replied in affirmative. Doctor Yadav wanted to know the actual amount brought by the informant whereupon he replied that he had brought Rs. 168.00 as demanded by him (appellant). On demand of doctor Yadav (appellant) the informant took out the tainted G.C. notes and handed over to doctor Yadav who accepted the same, same in the left hand side of upper pocket of his bush-shirt which he was wearing. Thereafter, Dr. Yadav started filling in and writing the prescribed form of fitness certificate in a Book. The members of the trap party and witnesses who were closely watching the transaction entered into the chamber of doctor Yadav on getting fixed signal. Doctor Yadav was challenged by Inspector G.N. Gupta (P.W. 10) of having demanded and accepted Rs. 168.00 as illegal gratification from the informant Rajeshwar Sharma. Doctor Yadav turned pale and gave no explanation. 4. The members of the trap party and witnesses who were closely watching the transaction entered into the chamber of doctor Yadav on getting fixed signal. Doctor Yadav was challenged by Inspector G.N. Gupta (P.W. 10) of having demanded and accepted Rs. 168.00 as illegal gratification from the informant Rajeshwar Sharma. Doctor Yadav turned pale and gave no explanation. 4. Inspector G.N. Gupta (P.W.10) took personal search of doctor Yadav in presence of witnesses and recovered the tainted G.C. notes of Rs. 168.00 from the pocket of his bush-shirt in which he had kept them. On being checked the G.C. notes were found to be the same which were noted in the pre-trap memorandum. A crowd started gathering at the Health Centre making it difficult for the team to complete other formalities there. Dr. Yadav was taken to Saharsa Police Station to avoid any mischief at the hands of his friends and the associates who were also members of the crowd. At the Police Station, solution of sodium carbonate was prepared in two glasses and the fingers of both the hands of doctor Yadav were dipped in separately. The whitish solution turned pink. The upper packet of the bush-shirt of doctor Yadav from which tainted G.C. notes were recovered was also dipped in another glass of solution and it also turned pink. The pink solutions were prepared in separate vials which were properly sealed and signed by witnesses. A seizure Memorandum i.e. post-trap memorandum of the aforesaid search and seizure and test was prepared and it was read over and explained to witnesses, informant and the members of the team who signed on it. A copy of it was also given to doctor Yadav who acknowledged its receipt by putting his endorsement and signature on it. Thereafter doctor Yadav was released on his executing a P.R. Bond. Sanction for prosecution was obtained from the Central Government, then charge-sheet was filed against doctor Yadav (appellant) who was put on trial as a result of which he was convicted and sentenced, as above. 5. As many as thirteen witness were examined by the prosecution. The defence also examined five defence witnesses, P.W. 1 Rajeshwar Sharma is the complainant himself, P.W. 2 Raghubansh Singh is a witness who had written the complaint signed by the complainant. P.W. 3. Magal Pandit is a compounder in the Health Centre. 5. As many as thirteen witness were examined by the prosecution. The defence also examined five defence witnesses, P.W. 1 Rajeshwar Sharma is the complainant himself, P.W. 2 Raghubansh Singh is a witness who had written the complaint signed by the complainant. P.W. 3. Magal Pandit is a compounder in the Health Centre. P.W. 4 Ashokbabu is the Sub-Inspector who gave verification report (Ext-6), P.W. 5 Ramanand Rai, Foot constable had participated in the pre-trap and post-trap activities. P.W. 6 Bindeshwar Prasad Rajak, an Assistant in the Postal Department, Madhubani had participated as independent witness in the pre-trap and post-trap activities. P.W. 7 P.N. Anant, Under Secretary, Government of India proved the sanction order (Ext-8), P.W. 8 R.K. Singh, Inspector, C.B.I. is a witness of the pre-trap and post-trap activities, P.W. 9 Umesh Prasad, Junior Engineer in Telecom Department had participated as independent witness in the pre-trap and post-trap but he has turned hostile to the prosecution. P.W. 10 G.N. Gupta, Inspector C.B.I. was the leader of the trap party and he also conducted the investigation of the case and also recorded the statement of material witnesses. P.W. 11 N.N. Singh, Inspector, C.B.I. is the subsequent I.O. who took up the investigation at later stage and submitted charge-sheet in this case. P.W. 12 Ashok Bhushan Gupta, Inspector, C.B.I. was a member of the trap party but he deposed a brief evidence stating about the search of the office of the appellant and seizure of some papers from there after the trap. P.W. 13 Dayaram Singh Yadav was also a member of the trap party and he has adduced very brief evidence. 6. The defence case as set out in the evidence of the defence witnesses and the suggestions to the witnesses appears to be of false implication on the ground that the complainant was a habitual unauthorised absentee in his duty for which he had been punished several times and once removed from service but reinstated and that he (complainant) wanted the appellant to regularise his unauthorised absence and when he (appellant) did not accede to it, he (complainant) implicated him (appellant) falsely by making manipulation and concoction and also by way of putting the tainted G.C. notes in the pocket of the appellant while he was engaged in operation after putting off and hanging his bush-shirt in his chamber. In support of the defence case, the appellant examined five defence witnesses. D.W.1 Bameshwar is the dresser in the Health Centre, Saharsa where the accused doctor (appellant) was posted. D.W. 2 S.K. Yadav is a train ticket examiner in the Railways. D.W.3 Budhan Yadav is a Traffic Inspector, D.W. 4 Deo Chandra Thakur is a clerk in the office of Divisional Officer, D.W. 5 Dionesh Kumar Laheri is a cabin gangman. 7. The complainant Rajeshwar Sharma (P.W.1) supported his written report by stating in his evidence that at the relevant time, he was greaser Khalasi in Locoshed of the Railways at Saharsa where there is a Health Centre of the Railways where the railway employees go for treatment. He further deposed that on 14.01.1984, he felt pain in body hence he obtained sick memo from his Office and went to the Health Centre and got himself examined by Doctor Yadav (appellant) in the Health Centre. He identified the appellant in the dock during the evidence. He further deposed that the doctor gave him medicine and advised rest for 6-7 days and thereafter, he went to the doctor for fitness certificate but the doctor did not give him certificate saying that unless he paid money at the rate of Rs. 3/-per day, the certificate would not be issued to him (complainant). The doctor (appellant) was demanding illegal gratification. Fitness certificate was necessary for joining his duties, hence this witness requested the doctor for issuing fitness certificate but the doctor did not issue the same. He further deposed that he went to the doctor on 29.01.1984 but he was advised further 15 days rest. He continued to depose that on 5.02.1984 he had fully recovered and he went to the doctor and requested him for fitness certificate but he did not issue it saying that unless he (complainant) paid him (appellant) @ Rs. 3.00 per day, fitness certificate will not be issued. He (informant) had no money with him. He again went to the doctor (appellant) on 27.02.1984 and requested him for issuing fitness certificate but the doctor repeated the same demand and refused to issue the fitness certificate without fulfilment of the demand. 8. 3.00 per day, fitness certificate will not be issued. He (informant) had no money with him. He again went to the doctor (appellant) on 27.02.1984 and requested him for issuing fitness certificate but the doctor repeated the same demand and refused to issue the fitness certificate without fulfilment of the demand. 8. At Para-4 of his evidence the informant further deposed that he met the office bearers of the Union (meaning thereby "Workers Union") who advised him to inform the C.B.I. On such advice, he came to the Superintendent of Police, C.B.I. at Patna and gave his written report. He identified his signature on the written report (Ext-1). Then he deposed at Para-5 that on 6.03.1984, a C.B.I. Officer named Ashokbabu (P. W. 12) went with him to Saharsa and he asked him (complainant) to go to the doctor. He (informant) went to the doctor (appellant) at his Chamber at 10:00 A.M. that day. Ashokbabu (P.W. 12) was standing outside the door of the Chamber. The informant further deposed that the doctor enquired of him (informant) whether he wanted to take the fitness certificate whereupon he (complainant) said that the fitness certificate be issued on 9.03.1984 whereupon the doctor (appellant) stated that he (informant) will have to pay Rs. 168.00 @ Rs. 3.00 per day for the period upto 9.03.1984 and then he (informant) replied that he will come with money. He further deposed at Para-6 that Ashokbabu (P.W. 12) asked him to meet him (P.W. 12) at Saharsa Railway Station on 8.03.1984. Accordingly he met him there. Then taking 5-7 other persons Ashokbabu (P.W. 12) took him to Madhepura where they stayed in waiting room. Two other persons joined them there. 9. At Para-7 of is evidence, the complainant deposed that he took out Rs. 168/- and gave it to the C.B.I. people there. The C.B.I. people treated the notes with white powder and the Numbers of notes were noted on a paper there. The persons who had come to Madhepura from Saharsa were shown the notes treated with powder and they were informed that if anybody touches the G.C. notes and washes his hand in the solution, it will turn red. A practical demonstration of it was also made and when the hands touching notes were washed in the solution, the solution turned red. A practical demonstration of it was also made and when the hands touching notes were washed in the solution, the solution turned red. The red solution was packed in a vial which was wrapped in a clothe and sealed and signed. The vial was marked Ext-I. The informant had also signed it. His signature was marked Ext-1/1. 10. At Para-8 of his evidence, the informant gave details of denomination of notes by describing that out of the notes, one was hundred Rupee note. Three notes were of twenty Rupees. One note was of 5 Rupees. One note was of two rupees and one note was of one rupee. He further deposed that the C.B.I. people gave him the powder treated notes. He also deposed that a pre-trap memorandum was prepared and he had put his signature Ext-1/2 on it. 11. At Para-9 of his evidence, the informant deposed that he, along with the trap party moved on a jeep for Saharsa from Madhepura and he was instructed by the C.B.I. people that he (complainant) will hand over the notes to the doctor on demand and that after acceptance of the notes, he will give signal to the C.B.I. people, by rubbing his left side parietal area (Baya Kanpatti) with his hand. They all came to Saharsa Railway Station and from there they went to the Health Centre at 10:00 A.M. on 9.03.1984. The informant further deposed that the C.B.I. people remained outside the chamber and he alone entered into the Chamber of the doctor (appellant) and paid respect to him (appellant) and he counted the money and then kept it in the upper pocket of shirt. Thereafter he began preparing finger certificate. In the mean time, he gave signal by rubbing his left parietal area (Baya Kanpatti) with his hand. Then the C.B.I. people came in the chamber and caught hold of the doctor. Rs. 168.00 the tainted money and other notes of Rs. 47.00 were recovered from the upper pocket of the doctor. He further deposed that the money which was recovered from the doctor was same money which he had given to him and its numbers tallied with the notes noted earlier. He also deposed that the notes were signed and a seizure memorandum was prepared and he put his signature on it which was marked Exts-1/3 and 1/4. He further deposed that the money which was recovered from the doctor was same money which he had given to him and its numbers tallied with the notes noted earlier. He also deposed that the notes were signed and a seizure memorandum was prepared and he put his signature on it which was marked Exts-1/3 and 1/4. Then he deposed at Para-11 that the C.B.I. people went to Saharsa Police Station and both the hands of the doctor (appellant) were washed there in a solution which turned red after wash. The solution had been put in two vials separately for the two hands. The vials were sealed. The informant identified his signatures Ext-1/5 and 1/6 on the vials which were marked Material Ext-II and III. He further deposed that the pocket of the shirt of the doctor was also washed in the solution which turned red and that solution was also packed in a vial. The vial was marked Material Ext-IV and the signature of this witness was marked as Ext-1/7 on it. He also deposed at Para-12 that the shirt of the doctor was also sealed in a packet and he put his signature on it. The packet was marked as Material Ext-V and the signature of this witness was marked Ext-1/8. 12. At Para-33 of his cross-examination the informant admitted that on 21.08.1979 the Assistant Mechanical Engineer had charge-sheeted him for unauthorised absence and that due to charge-sheet his three increments had been withheld. At Para-33 of his cross-examination, he admitted that on 7.04.1981 also the Assistant Engineer, Samastipur had charge-sheeted him for unauthorised absence but he denied that his six months increment was withheld on that charge-sheet. At Para-35 of cross-examination he admitted his break in service and deposed that for the break of service, he had sent a representation to the D.R.M., Samastipur through the Union, but vide order dated 19.01.1984 prayer for regularisation of break in service was rejected. 13. At Para-61 of his cross-examination the informant admitted that on 8.03.1984 after demonstration, the hand of any of the persons had not been washed there. (Meaning thereby washing by soap and water). In the evidence of the informant, there is nothing to show that he had washed his hands with soap and water. 14. 13. At Para-61 of his cross-examination the informant admitted that on 8.03.1984 after demonstration, the hand of any of the persons had not been washed there. (Meaning thereby washing by soap and water). In the evidence of the informant, there is nothing to show that he had washed his hands with soap and water. 14. At Para-31 of his evidence, he has admitted that due to his unauthorised absence, he had been dismissed from his service on 18.07.1975. 15. P.W. 2 Raghubansh Sinha, an employee of the Railways has proved his writing on the complaint petition filed by the informant under his signature. 16. P.W. 3 Mogal Pandit is the compounder in the Health Centre. He deposed that at the relevant time, Dr. R.K. Yadav (appellant) was the A.D.M.O. in the dispensary. He further deposed about the process of treatment and issuing of fitness certificate by the In-charge Doctor of the Clinic. He does not say anything about demand of bribe money by the appellant and acceptance of the same. 17. At Para-11 of his evidence, this witness has stated that at the door of the chamber of the doctor a navy blue colour thick curtain was hanging at the relevant time. He further deposed at Para-12 that the chamber of the doctor was partitioned with 6 feet high partition wall in two parts, eastern and western part. The doctor sat on his chair in the eastern side where telephone was also installed. He further deposed that on the other side of the 6 feet high partition wall i.e. on the western side there was patient examination table and in the western side of the table there was western window. He further deposed that from the western window, the place where the doctor sat was not visible. 18. P.W. 4 Ashokbabu is Inspector in the CBI. He deposed that on the complaint of the informant he had been entrusted with secret verification of the matter. He further deposed that for the verification of the complaint, he had gone to the clinic on 6th September 1984 with the complainant Rajeshwar Sharma (P.W.1) and that he stood outside the chamber and Rajeshwar Sharma went inside the chamber and that the doctor (appellant) asked the complainant whether he had recovered or not. He further deposed that for the verification of the complaint, he had gone to the clinic on 6th September 1984 with the complainant Rajeshwar Sharma (P.W.1) and that he stood outside the chamber and Rajeshwar Sharma went inside the chamber and that the doctor (appellant) asked the complainant whether he had recovered or not. The informant told that he was fit and he wanted fitness certificate on the 9th whereupon the doctor (appellant) stated that upto 9th of the month, 56 days would could and at the rate of Rs. 3.00 per day, he had to come with Rs. 168.00 for the fitness certificate. The informant (P.W.1) asked for some concession in the money but the doctor declined. P.W.4 further deposed that he reported these facts under his verification report (Ext-6) but at Para-8 of his cross-examination, he deposed that when he had gone for verification, a curtain was hanging at the door of the chamber of the doctor but he did not remember the colour of the curtain. At Para-7 he deposed that he had not prepared his verification report at the place of occurrence but he had prepared it on 7.03.1984 i.e. next day after coming to his Office at Patna. At Para-10 of his cross-examination, he further deposed that the CBI people were interested in the success of the trap operation which was going to be led by them. 19. P.W.5 Ram Nandan Rai, a foot constable in the CBI has deposed as an eye witness who took part in the pre-trap and the post-trap activities also. He deposed that on 7.03.1984, he had gone with the members of the trap party. He has also deposed that on 6.03.1984 he, along with P.Ws. 8, 10, 12 and others had gone to the Railway retiring room at Madhepura and that the complainant Rajeshwar Sharma had brought Rs. 168.00 there which was to be given as demanded bribe. The notes were treated with chemical. He further deposed that when he had gone with the trap party, he and his other witnesses had taken their position as per instructions of the CBI people. 168.00 there which was to be given as demanded bribe. The notes were treated with chemical. He further deposed that when he had gone with the trap party, he and his other witnesses had taken their position as per instructions of the CBI people. He further deposed that the complainant Rajeshwar Sharma gave the bribe money to the doctor (appellant) and thereafter on obtaining signal from Umesh Prasad (P.W. 9) the trap party entered into the chamber of the doctor and caught him with the bribe money and that thereafter the doctor was brought to Saharsa Police Station where his hands and shirt were washed in the solution which turned red. He further deposed that the shirt was seized and marked Ext-6. He also deposed that in the Railway retiring room a demonstration about the action of the solution had been displayed earlier. Thus, this witness claims to have seen the transaction of his money but at the time of his cross-examination he says that he had not heard any of the conversations between the informant (P.W.1) and the doctor (appellant). He also does not say in specific term that he had seen the transaction of money with his eyes or he mentions any of the circumstances under which he could have seen the transaction with his eyes. 20. P.W.6 Bindeshwari Prasad Rajak was Assistant in the Postal Department and he was called to join the CBI team as an independent witness. He says that on 9.03.1984 he, along with CBI people had gone to Madhepura Raiway Station where the CBI people had explained to him that he had to witness the trap party operation. He further deposed that another independent witness Umesh Prasad (P.W.9) was also present there. He further deposed that at Madhepura Railway Station the CBI Officer had explained that Dr. R.K. Yadav (appellant) was demanding bribe from Rajeshwar Sharma (P.W.1) and that an operation had to be conducted for catching the doctor while accepting bribe. He further deposed that a demonstration was made there by treating hand with powder and then washing it with the solution and the solution turning pink and that pink solution had been sealed in vials and he had put his signature on the vials. He further deposed that Rajeshwar Sharma (P.W.1) had brought Rs. He further deposed that a demonstration was made there by treating hand with powder and then washing it with the solution and the solution turning pink and that pink solution had been sealed in vials and he had put his signature on the vials. He further deposed that Rajeshwar Sharma (P.W.1) had brought Rs. 168.00 with him which was treated with chemical and it was given to Rajeshwar Sharma with instruction to him that he should give that money to the doctor,, appellant on his demand as bribe. He also deposed that a pre-trap Memorandum had been prepared there and that the members of the trap party had washed their hands with water there and thereafter they had proceeded for Saharsa. He further deposed that the trap party reached the Health Centre and the members of the trap party spread and took position at different places and that the complainant Rajeshwar Sharma (P.W.1) was aksed to give signal by rubbing his ear after acceptance of bribe money by the doctor. He further deposed that Umeshbabu (P.W.9) stood outside chamber of the doctor and he (P.W.6) sat on a Bench on the Verandah of the clinic and the complainant Rajeshwar Sharma went into the chamber. He further deposed that thereafter Umeshbabu (P.W.9) gave signal whereupon the members of the trap party entered into the chamber of the doctor (appellant). 21. This witness (P.W.6) further deposed that CBI Inspector G.N. Gupta (P.W. 10) caught hold of hand of the doctor and he took out notes from the pocket of the doctor and the notes were seized and thereafter the doctor was taken to the Police Station (Saharsa Police Station). Thus, this witness says that the Inspector (P.W.10) had caught hold of the appellant and he had himself taken out the money from the pocket of the doctor and thereafter the notes were seized and the doctor was taken to Saharsa Police Station. He further deposed that at the Police Station, the hands and the pocket of the shirt of the doctor was washed in solution which turned pink after wash and that the solution was kept in sealed vials. There is nothing in the evidence of this witness that P.W. 10 after taking out the tainted bribe money from the pocket of the doctor (appellant) had washed his hands at the spot or at some other place subsequently. 22. There is nothing in the evidence of this witness that P.W. 10 after taking out the tainted bribe money from the pocket of the doctor (appellant) had washed his hands at the spot or at some other place subsequently. 22. P.W. 7 P.N. Anant Raman is an Under Secretary to the Government of India He has proved the sanction (Ext-8) for prosecution of the Appellant. 23. P.W. 8 Raj Kishore Singh, Inspector, CBI was a member of the trap party and he has deposed about the occurrence, giving the details of the pre-trap activities in which demonstration of the powder and its reaction with the solution and about the treating of the Rs. 168 notes with powder and preparation of pre-trap Memo and post-trap Memo after completion of the trap. He deposed that at Madhepura Railway retiring room the complainant was given powder treated Rs. 168 notes with instructions to hand over the same on demand of the doctor (appellant) as bribe and that the trap party proceeded for the clinic at Saharsa. He also deposed at Para-3 that in the way Police force had been taken from Saharsa Police Station and that Police force was kept stationed at the railway crossing near the clinic and the members of the trap party took their position at different places in the clinic. He further deposed that he (P.W.8) took his position near the western window of the chamber of the doctor and that the doctor sitting on chair was visible from that window. He further deposed that Inspector G.N. Gupta (P.W.10) and Umesh Prasad (P.W.9) stood standing in front of the gate of the chamber of Doctor Yadav (appellant). He continued to depose that after 2-3 minutes, the informant Rajeshwar Sharma entered into the chamber of the doctor and wished him. Doctor Yadav (appellant) asked him whether he had come to obtain fitness certificate and and if so whether he had brought money or not. Thereupon, Mr. Sharma (informant) replied in affirmative. The doctor asked how much money he (informant) had brought whereupon he (informant) replied that he had brought Rs. 168.00 as demanded. Then the doctor demanded money whereupon Mr. Sharma (informant) took out money from his pocket and gave the same to the doctor (appellant) who counted it and thereafter he kept it in his pocket. The doctor asked how much money he (informant) had brought whereupon he (informant) replied that he had brought Rs. 168.00 as demanded. Then the doctor demanded money whereupon Mr. Sharma (informant) took out money from his pocket and gave the same to the doctor (appellant) who counted it and thereafter he kept it in his pocket. The witness further deposed that thereafter witness Umesh Prasad (P.W.9) gave signal and then he (P.W.8) and the other members of the trap party entered into the chamber of the doctor. Then Inspector G.N. Gupta (P.W.10) challenged the doctor saying that he (appellant) had accepted bribe money. After that Inspector Gupta (P.W.10) made a search of the doctor (appellant) and took cut Rs. 168.00 along with Rs. 47.00 from the upper left pocket of the doctor and the number of the notes (Rs. 168.00) was compared with the pre-trap Memo and on comparing, it tallied with the numbers of notes as in the Memo. This witness continued to depose that a crowd had assembled there, hence, the trap party took the doctor (appellant) to Saharsa Police Station where the fingers and the pocket of bush-shirt of the appellant was dipped into solution which turned pink after dipping. He also deposed that the recovered Rs. 168.00 notes and the bush-shirt of the doctor was seized and kept in envelope which was sealed and a post trap memorandum of these activities was also prepared. This witness (P.W.8) does not say that after taking out the powder treated Rs. 168.00 from the pocket of the appellant Inspector G.C. Gupta (P.W.10) had washed his hands at the place of recovery or at any other place subsequently. 24. During hearing, the learned counsel for the appellant argued that as also deposed by P.W. 3 (Para-12) the chamber of the doctor was devided by a partition wall 6 feet high and that the doctorss seat was situated in the eastern side of the partition wall and in the western side of the partition wall there was patient examination room and the window in the western wall of the chamber and that the doctors seat was not visible from the western window and hence, the claim of this witness that he saw the doctors conversation with the complainant and the transaction of demanding and accepting of the bribe money is not at all believable. This poit will be considered later on after discussion of the evidence of other witnesses. 25. P.W.9 Umesh Prasad, a Junior Engineer in Telecom Department, Patna had participated in the CBI trap operation, as an independent witness called from other department. He deposed that on 8.03.1984, the CBI authorities contacted him on 9.03.1984 at 7:00 P.M. He along with Mr. Rajak (P.W. 6) of the Postal Department had been taken to Railway Retiring Room where it was explained to him that he had to participate in the CBI trap operation as a witness. He also deposed that at that time he had been told that the doctor was demanding bribe from Rajeshwar Prasad Sharma (P.W.1). He also deposed that at the Retiring Room the reaction of powder with liquid was made and the liquid had become red. He also deposed that Rajendra Prasad, a Greaser Khalasi (P.W.1) had brought notes of Rs. 168.00 which was treated with the phenolphthalein powder and the same was handed over to him with instruction that it would be handed over to the doctor on demand of bribe. He also deposed that a Memorandum of trap had also been prepared there. He further deposed that thereafter he along with trap party went to the chamber of the doctor in the Railway Hospital at Saharsa and that thereafter Rajendra Prasad Sharma (P.W.1) went into the chamber of the doctor and came back saying that the doctor was not there and he was in the peration theatre. He further deposed that after some time he again went into the chamber of the doctor and came back and said that the doctor was in his chamber and that thereafter he and other members of the trap party took their position. He also deposed in Para-5 of his evidence that he was standing at a distance of 7-8 feet from the door of the chamber of the doctor (appellant). Rajeshwar Prasad Sharma was talking to the doctor inside the chamber and gave signal and he (P.W. 9) passed on his signal to the other members of the trap party. He also deposed that he had not clearly heard the talk between the doctor (appellant) and Rajeshwar Prasad Sharma (P.W.1). Rajeshwar Prasad Sharma was talking to the doctor inside the chamber and gave signal and he (P.W. 9) passed on his signal to the other members of the trap party. He also deposed that he had not clearly heard the talk between the doctor (appellant) and Rajeshwar Prasad Sharma (P.W.1). He also deposed that on getting signal the members of the trap party entered into the chamber of the doctor and caught hold of his hands and brought him out of the chamber and that within the compound of the Hospital, Rs. 168/- was recovered from the pocket of the doctor. He further deposed that after recovering the notes the doctors hands and the pockets of his shirt were washed in liquid at the Police Station and after that the liquid had turned pink. At this stage, this witness was declared hostile by the prosecution and his attention was drawn towards his previous statement recorded by the Investigating Officer. But his statement is not of that nature to fully contradict the statement of this witness and to discredit the statement of this witness as a competent witness. At Para-9 of his deposition, this witness stated that he had not seen the money transaction between the complainant (P.W.1) and the doctor (appellant). In view of evidence of the witness that he stood at a disturvance of 7-8 feet from the door of the chamber and also the evidence of P.W.3 (Para-11) that a nevy blue colour thick curtain was hanging at the door it appears natural that the witness was not in a position to see any transaction of money taking place in the chamber, as alleged by the prosecution. 26 P.W.10 G.N. Gupta is the C.B.I. inspector who had worked as leader of the trap party and had also conducted the investigation of the case and during investigation he recorded the statement of witnesses after the occurrence. He deposed that on 7.03.1984 he lodged FIR against the appellant and under the orders of Superintendent of Police, he took up the investigation of the case. He proved the FIR which was marked Ext-11. He further deposed that on reading the complaint of the informant (P.W.1) he learnt that the doctor R.K. Yadav (appellant) was demanding bribe from Rajeshwar Prasad Sharma, a Greaser Khalasi (P.W.1) hence, he started taking steps for catching the doctor red handed while taking bribe. He proved the FIR which was marked Ext-11. He further deposed that on reading the complaint of the informant (P.W.1) he learnt that the doctor R.K. Yadav (appellant) was demanding bribe from Rajeshwar Prasad Sharma, a Greaser Khalasi (P.W.1) hence, he started taking steps for catching the doctor red handed while taking bribe. He said that he constituted a trap party and also prepared kit bag and then proceeded for Saharsa and reached there at 9:30 A.M. at Saharsa Railway Station. He further said that he met the informant (P.W.1) there. Thereafter all the members of the trap party went to Madhepura Railway Retiring Room and that additional Police force was also procured from the local Police Station. He further deposed that the purpose of the trap party was explained to the members of the trap party. At Para-3 he deposed that the complainant (P.W.1) had come with notes of Rs. 168.00. He also deposed that a demonstration of reaction of phenalphthalein powder with sodium carbonate was made before the members of the trap party and on reaction, the solution turned red. The solution was preserved in vials. He also deposed that the notes of Rs. 168.00 were treated with the phenolphthalein powder and then it was given to the informant for being given to the doctor on his demand. A Pre-trap memorandum was also prepared there. He further deposed at Para-4 of his deposition that the complainant was instructed to give signal after acceptance of bribe money by the doctor and witness Umesh Prasad (P.W.9) had been deputed for watching the transaction and contacts between the complainant (P.W.1) and the doctor (appellant) and passing on the signal as given by the complainant to the members of the trap party. He deposed that after demonstration, the hands of the members of the trap party were washed. He further deposed that he (P.W. 10) and Umesh Prasad (P.W. 9) concealing themselves stood near the door of the chamber of the doctor and Inspector R.K. Singh was standing nearthe window of the chamber and the other members of the trap party scattered and stood hither and thither. 27. He further deposed that he (P.W. 10) and Umesh Prasad (P.W. 9) concealing themselves stood near the door of the chamber of the doctor and Inspector R.K. Singh was standing nearthe window of the chamber and the other members of the trap party scattered and stood hither and thither. 27. This witness (P.W.10) deposed that the complainant (P.W. 1) entered into the chamber and wished the doctor whereupon the doctor asked the complainant, if he had come to obtain the fitness certificate and if so whether he had brought the money or not whereupon the complainant replied in affirmative and then he (P.W.1) took out Rs. 168.00 from his pocket and gave it to the doctor, who took the money, counted them with fingers of his both hands and then kept the same in the upper left pocket of his bushshirt. Thus, this witness claims to have seen the talk and the transaction of money between the informant and the doctor and also counting of the money by the doctor as an eye witness. This witness has admitted that he had stood with P.W. 9 outside the door of the chamber of the doctor. P.W. 9 had deposed that he was standing at a distance of 7-8 feet from the door of the chamber. This witness (P.W. 10, Para-12) has also deposed that the place where the doctor was sitting was situated at a distance of about 11 feet from the door. 28. P.W.3 at Para-11 has stated that on the door of the chamber a navy blue colour thick curtain was hanging P.W. 10 does not say that he had peeped into the chamber through the ends of the curtain but he admits that he was standing outside the chamber with P.W. 9 who admits that he was standing at a distance of 7-8 feet from the door. Thus in these circumstances when this witness was at a distance of 7-8 feet from the door where thick navy blue colour curtain was hanging, it does not appear possible that the witness was in a position to have seen the talks and the transaction of money with such minute details as has been claimed in his evidence. Therefore, I feel that this witness is not believable on this point and that he has deposed as such only for the purpose of supporting the case of the prosecution. 29. Therefore, I feel that this witness is not believable on this point and that he has deposed as such only for the purpose of supporting the case of the prosecution. 29. This witness (P.W. 10) continued to depose that on getting the fixed signal, he along with members of the trap party entered into the chamber of the doctor (appellant) and challenged him that he had accepted the bribe money whereupon the doctor did not give any reply. He further deposed that he took a search of the pocket of the doctor and took out Rs. 168.00 and other 47-Rupee notes from the left side pocket of his bushshirt and that the numbers of the 168 notes tallied with the number of notes, as mentioned in the Pre-trap memorandum. He further deposed that he also took search of the pocket of the informant (P.W.1) but nothing was recovered from his (P.W. 1s) pocket. This witness further deposed that in the mean time a rush of people started gathering there, hence apprehending breach of peach, he brought the appellant to Saharsa Police Station and deputed one constable for guarding the chamber of the doctor. Then he deposed that at the Police Station, the fingers of the doctor as well as the pockets of his shirt were washed in solution of sodium carbonate as a result of which the solution turned pink and the pink solutions were kept in three vials and sealed. He said that the bushshirt of the doctor was seized. He further deposed at Para-10 that he came to Madhepura Railway Station from the Police Station and there he recorded the statement of the informant and other witnesses. Thus, this witness has worked as leader of the trap party and he was involved in every activity of the trap process about the alleged commission of the offence and he also stated to have searched the appellant and recovered the money and thereafter he has also worked as Investigating Officer of the case engaged in recording the statement of witnesses after the occurrence. Here the learned counsel for the appellant argued that since this witness was so involved in the pre-trap and post-trap operation, he was deeply interested in making the operation successful by any means and hence, he could not have acted as an impartial Investigating Officer and that he had recorded the statement of witnesses in a manner purposely to suit the case of the prosecution. In the facts and circumstances of the case, this submission of the learned counsel for the appellant cannot be rejected on the ground of being devoid of any substance. 30. At Para-15 of his evidence, this witness (P.W. 10) deposed that the trap party consisted of some constables also. This witness says to have searched the pocket of the appellant and to have recovered the powder treated Rs. 168.00 notes from his pocket and he also says to have searched the pocket of the complainant (P.W.1) in which the complainant had kept the power treated notes which according to the prosecution was given to the doctor (appellant). Thus the hands of this witness became in contact with the powder teated notes and also the pocket of the doctor and the informant who had come in contact with the powder treated notes. The hands of the informant (P.W. 1) also remained in contact with the powder treated notes. But there is nothing in the evidence of this witness or P.W.1 that after the recovery of the notes and before arrival of the trap party members and the doctor to the Police Station the hands of this witness (P.W. 10) or the informant (P.W. 1) were ever washed with soap and water. 31. At Para-16 (Page-3) this witness (P.W.10) deposed that Saharsa Police Station situated at a distance of 2 Kms. from the Railway Hospital. Admittedly the doctor was taken from the Hospital to the Police Station and his fingers were washed in the solution at the Police Station. At Para-25 of his evidence this witness (P.W. 10) further deposed that in the jeep in which he had taken the doctor (appellant) to the Police Station he (P.W. 10) had also got seated the informant (P.W.1). At Para-25 of his evidence this witness (P.W. 10) further deposed that in the jeep in which he had taken the doctor (appellant) to the Police Station he (P.W. 10) had also got seated the informant (P.W.1). Thus the fingers of both hands of this witness (P.W. 10) and the informant (P.W.1) of both the hands became tainted due to touching the powder treated notes as well as pocket of the appellant who had gone in the same Jeep. The learned counsel for the appellant argued that the hands of the doctor-appellant were not washed in solution at the spot but he was taken to the Police Station in the Jeep and that P.W.10 and P.W. 1 whose hands were also tainted had gone to the Police Station sitting in the Jeep with the doctor, hence, it was argued that there was every possibility that P.Ws. 10 and 1 had touched the hands of the doctor (appellant) so that it may become tainted and the solution may become pink when the fingers are washed. Learned counsel also argued that P.W. 10 who was the leader of the trap party wilfully did not wash the hands of the doctor in the solution at the spot and took him to the Police Station under the pretext that there was apprehension of breach of the peace. In this context, learned counsel also pointed out that the witnesses have said that the trap party comprised of the CBI constables and the additional Police force had also been arranged from the Police Station and, thus, adequate Police force was available for controlling any situation. The learned counsel further submitted that the appellant was taken to the Police Station simply on apprehension of breach of peace, as stated by P.W. 10 but nothing has been shown in the evidence that anything untoward had happened at the P.O. to establish that there was actual apprehension of breach of peace. The learned counsel further submitted that the appellant was taken to the Police Station simply on apprehension of breach of peace, as stated by P.W. 10 but nothing has been shown in the evidence that anything untoward had happened at the P.O. to establish that there was actual apprehension of breach of peace. Learned counsel continued to submit that there was no actual breach of peace but this ground has been taken by the prosecution only as a pretext for carrying the appellant to the Police Station from the Hospital in the same Jeep in which the P.W. 10 and P.W. 1 with tainted hands had also gone with the appellant so that they may get a chance of touching the hands of the appellant and make it tainted for reaction with the solution, when washed at the Police Station. In the above facts and circumstances of the case, I find that the possibility of the P.Ws. 1 and 10 touching the hands of the appellant in the Jeep while on way to the Police Station cannot be absolutely ruled out and a doubt is entertained over the case of the prosecution on this count. 32. P.W. 11 Nagendra Nath Singh is a Deputy Superintendent of Police, CBI who took up the investigation of the case on 13.03.1984. He deposed that on 20.03.1984 he had gone to the Health Centre and had seized the OPD register. He further deposed in Para-4 of his evidence that he had taken the statement of witnesses, including P.W. 10 who had himself acted as the I.O. after the occurrence recording statements of material witnesses. But from the evidence of this witness at Para-4 it appears that he had not recorded in detail the statement of Bindeshwari Prasad Rajak (P.W. 6) and Umesh Prasad (P.W. 9), the independent witness in detail and this witness (P.W. 11) had simply deposed that he had asked this witness who had repeated the statement as given before the earlier I.O. Thus, P.W. 11 who has been I.O. of the case did not do any material investigation and that the material part of the investigation was done by the P.W. 10 who had also acted as leader of the trap party being involved in all the activities of the trap party and thus being a highly interested witnesses. 33. 33. P.W. 12 Ashok Bhanu Gupta, Inspector CBI has simply deposed that on 9.03.1984 the members of the trap party had searched the chamber of the doctor (appellant) and had seized some papers from there. 34. P.W. 13 Ram Singh Yadav, Inspector of CBI was a member of the trap party but he simply deposed that a pre-trap memorandum was prepared in the retiring room at Madhepura Railway Station and he had signed over the memorandum. His signature has been proved as Ext-12. This witness does not say further about the trap operation concluded on that day. 35. The defence of the appellant is the denial of the prosecution story about receiving of any bribe money by the appellant and by adducing defence evidence, the appellant has taken the further defence of plantation of tainted money in the pocket of the bushshirt of the appellant which was hanging in the chamber of the appellant while he was in the Operation Theatre. 36. Out of defence witnesses, D.W.1 Bameshwar is the dresser in the Railway Health Centre, Saharsa. He deposed at Paras 4 & 5 of his deposition that on 6.03.1984 when he had gone into the chamber of the doctor (appellant) Rajeshwar Prasad Sharma, informant was there. The doctor (appellant) asked him (complainant) whether he remained and from whom he was getting treatment whereupon he (informant) said that he was getting treatment from a private Doctor. The doctor (appellant) asked him to bring the certificate of the private doctor and M.S. approval. Then Rejeshwar (complainant) blamed the doctor that he wanted his salary cut due to his absence and then the doctor (appellant) persuaded him (informant) that his salary would not be deducted, if he produced the certificate of private doctor and at this Rajeshwar threatened the doctor (appellant) that he will see him and then he went away. 37. Then Rejeshwar (complainant) blamed the doctor that he wanted his salary cut due to his absence and then the doctor (appellant) persuaded him (informant) that his salary would not be deducted, if he produced the certificate of private doctor and at this Rajeshwar threatened the doctor (appellant) that he will see him and then he went away. 37. At Para-8 of his evidence, D.W. 1 further deposed that on 9.03.1984 at 9.45 A.M. the doctor (appellant) was in the Operation Theatre and he was wearing his operation gown and at that time while he (P.W. 1) had gone to the dispensary room, he heard some sound coming from the chamber of the doctor (appellant) and then he went into the chamber and saw that S.K. Yadav, T.T.E. (D.W. 2) was chiding Rajeshwar Sharma (complainant) saying as to why in absence of the doctor he was touching the bush-shirt of the doctor whereupon Rajeshwar Sharma (informant) had replied that he did it to feel the clothe which looked nice. At this he (D.W. 1) asked them to go out of the chamber and then the persons present in the chamber left the chamber and thereafter taking medicine he (D.W. 1) went into the Operation Theatre. After 10-15 minutes he (D.W. 1) along with the doctor (appellant) came out of the O.T. and went into the doctors chamber where the doctor put off his peration gown and then taking his bushshirt from the hanger put it on and thereafter he (appellant) took pen and paper and began writing something. This witness continued to depose at Para-8 that in the mean time 5-6 patients came into the chamber and Rajeshwar Sharma also came there. The doctor asked him (complainant) if he had brought certificate of doctor and M.S. approval then Rajeshwar Sharma (complainant) replied in affirmative, saying that the same is lying in Jhola hanging outside and then he went out to bring the same. 38. Further at Para-6 (repeated Para-7 at Page-10) of his evidence, D.W. 1 deposed that at the same time, 4-5 persons entered into the chamber and charged the doctor (appellant) saying that he had taken illegal money and asked him to come out of the chamber. The doctor denied to have taken any money. 38. Further at Para-6 (repeated Para-7 at Page-10) of his evidence, D.W. 1 deposed that at the same time, 4-5 persons entered into the chamber and charged the doctor (appellant) saying that he had taken illegal money and asked him to come out of the chamber. The doctor denied to have taken any money. Then those persons disclosed that they were CBI people and they caught hold of the hands of the doctor (appellant) and forcibly took him out of the chamber. The persons present in the chamber were taken aback on it. Subsequently, he (D.W. 1) heard that the doctor (appellant) had been taken to the Police Station. 39. At Para-9 (page-12) of his evidence, D.W. 1 stated that he had taken fitness certificate twice from the doctor but the doctor had never demanded any money from him. At Para-10 he further deposed that Rajeshwar Sharma (P.W. 1) was a member of the Workers Union and Jageshwar Prasad, Guard was the President of the Union. Jageshwar Prasad wanted to get some illegal work done but the doctor had refused, hence he had threatened to implicate him (appellant) in a case. At Para-18 of his cross-examination D.W. 1 deposed that after going into the chamber of the doctor, he had not himself seen Rajeshwar Sharma touching the bushshirt of the doctor. Learned Standing counsel forthe C.B.I. argued that this witness does not say that he had seen the appellant Rajeshwar Sharma touching the bushshirt of the doctor (appellant). But there is no defect in the evidence of D.W. 1 on this count, D.W. 1 does not claim to have himself seen the informant Rajeshwar Sharma touching the bushshirt of the the doctor. He (D.W.1) has deposed that while he had gone into the chamber of the doctor after hearing some sound from the chamber, he saw that S.K. Yadav, TTE (D.W. 2) was chiding Rajeshwar Sharma, informant saying as to why he was touching the bushshirt of the doctor. Thus Rajeshwar Sharma (informant) had already touched the bushshirt before the entry of D.W.1 into the chamber. Therefore, there does not arise any question of D.W. 1 seeing the informant Rajeshwar Sharma touching the bushshirt of the doctor. Thus Rajeshwar Sharma (informant) had already touched the bushshirt before the entry of D.W.1 into the chamber. Therefore, there does not arise any question of D.W. 1 seeing the informant Rajeshwar Sharma touching the bushshirt of the doctor. D.W. 1 had entered into the chamber of the doctor only at the time when S.K. Yadav, TTE (D.W. 2) was chiding the informant Rajeshwar Sharma for his having touched the bushshirt of the doctor (appellant). Thus, the evidence of D.W. 1 is quite natural and there does not appear anything to discredit his testimony. 40. S.K. Yadav, TTE (D.W. 2) deposed that on 9.03.1984 he along with his children and wife had gone to the Health Centre. He further deposed that when he entered into the chamber of the doctor, Rajeshwar Sharma, Loco Khalasi (informant) was present there but the doctor was not present and Rajeshwar Sharma was touchging the halfshirt of the doctor hanging in the chamber whereupon he (D.W. 2) had asked Rajeshwar Sharma as to why he was touching the shirt of the doctor in the absence of the doctor at which Rajeshwar Sharma had replied that the shirt looked very fine hence, he was touching to have a feel of it. D.W.2 also deposed that at that time 4-5 other patients were also sitting in the chamber of the doctor (appellant). He continued to depose at Para-3 that in the mean time Bameshwar, Dresser (D.W. 1) had also come into the chamber and he had also asked as to why he (Rajeshwar) had touched the shirt of the doctor and he (D.W. 1) asked all the persons present in the chamber to go out of the chamber and then all the persons present in the chamber had gone out of the chamber. D.W. 2 further deposed at Para-4 that after a shorwhile, the doctor (appellant) came to his chamber from the O.T. and after arrival of the doctor in his chamber he and other patients entered into the chamber. He deposed that Rajeshwar Sharma also came into the chamber at that time. D.W. 2 further deposed at Para-4 that after a shorwhile, the doctor (appellant) came to his chamber from the O.T. and after arrival of the doctor in his chamber he and other patients entered into the chamber. He deposed that Rajeshwar Sharma also came into the chamber at that time. The doctor put off his operation gown and taking his shirt hanging there put it on and then taking pen in his hand, began writing something on the paper, D.W. 2 continued to depose that at that time, the doctor asked Rajeshwar Sharma whether he had brought the certificate of treatment by the private doctor and the M.S. approval whereupon Rajeshwar Sharma (informant) replied that he had brought the same and it was kept in a Jhola lying outside the chamber and saying so Rajeshwar Sharma went out of the chamber. This witness D.W. 2 further deposed that after that 4-5 persons disclosing their identity as CBI people, entered into the chamber of challenged the doctor saying that he had taken illegal money. This witness also deposed that those persons caught the doctor by both his hands and took him out of the chamber. 41. D.W. 2 deposed at Para-6 of his evidence that Rajeshwar Sharma was a member of the Labour Union but he was very irresponsible man and he had been suspended several times. He also deposed at Para-7 that at that time Jugeshwar Prasad, Guard was the President of the Union and he wanted to get some illegal work done from the doctor (appellant) but the doctor had refused. Hence, in his (D.W. 2s) presence, Judgeshwar Prasad had threatened the doctor that he will get him caught by CBI. This witness also deposed that he had taken sick certificate 4-5 times from the doctor but the doctor had never demanded any money for it. Thus, this witness says to have seen the informant Rajeshwar Sharma touching the bushshirt of the doctor in his chamber in the absence of the doctor at the time when the doctor was in the O.T. 42. Thus, this witness says to have seen the informant Rajeshwar Sharma touching the bushshirt of the doctor in his chamber in the absence of the doctor at the time when the doctor was in the O.T. 42. D.W.3 Budhan Yadav, a Traffic Inspector in NE Railways, Saharsa has similarly deposed that on 9.03.1984 he along with his family members had gone to the Health Centre and that when he had gone into the chamber of the doctor, he had seen that Rajeshwar Sharma, Loco-Khalasi was touching the bushshirt of the doctor and that one patient had asked Rajeshwar Sharma not to touch the bushshirt. This witness (D.W. 3) further deposed that he and S.K. Yadav, TTE (D.W. 2) had also protested asking Rajeshwar Sharma not to touch the bushshirt. Like D.W. 2 this witness deposed that after some time the doctor came into the chamber from the O.T. and he put off his operation gown and put his bushshirt on and that Rajeshwar Sharma (informant) again came to the chamber at that time and when the doctor asked whether he (Rajeshwar Sharma) had brought the certificate of treatment by a private te doctor and the M.S. approval, Rajeshwar had replied in affirmative and he went out of the chamber for bringing the same and that thereafter CBI people entered into the chamber of the doctor and caught hold of him challenging him that he had accepted illegal money. He has also deposed that 4-5 days after the occurrence, Jogendra Prasad, Guard had stated before him (D.W. 2) that he (Jogandra Prasad) had got him implicated through Rajeshwar Sharma. Thus D.W. 3 says about having seen the informant Rajeshwar Sharma touching he shirt of the doctor in his chamber in absence of the doctor. There is nothing in the evidence of this witness to discredit his testimony. 43. Thus D.W. 3 says about having seen the informant Rajeshwar Sharma touching he shirt of the doctor in his chamber in absence of the doctor. There is nothing in the evidence of this witness to discredit his testimony. 43. D.W. 5 Dinesh Kumar Laheri, a Gangman in the Railways at Saharsa deposed on similar lines like D.Ws 2 and 3 that on 9.03.1984 while he along with his family members had gone to the Health Centre at 9:45 A.M. the doctor was not present in his chamber but Rajeshwar Sharma was present and he (Rajeshwar Sharma) was touching the bushshirt of the doctor and that one S.K. Yadav, TTE (D.W. 2) had asked Rajeshwar Sharma not to touch the bushshirt and that Bameshwar (D.W. 1) had also come at that time and he (Baleshwar) had asked all the persons present in the chamber to go out of the chamber saying that the doctor was engaged in the O.T. This witness further deposed that after some time, the doctor came to his chamber from the O.T. and put on his shirt after putting his operation gown off and that at that time Rajeshwar Sharma also came to the doctor and he again went out of the chamber for bringing the medical certificate but, in the mean time, the CBI people entered into the chamber and challenging the doctor that he had accepted illegal money and caught hold of him. Thus, the evidence of this witness shows that the informant Rajeshwar Sharma had entered into the chamber of the doctor (appellant) and he had touched the doctors bushshirt hanging in his chamber in absence of the doctor. 44. D.W. 4 Deochandra Thakur is a Head-Clerk in DPO Office, NE RIy., Samastipur. He has deposed that on 27.10.1979 Rajeshwar Sharma had been charge- sheeted for his unauthorised absence as a result of which his three increments of salary had been withheld. He deposed that again on 7.08.1981 Rajeshwar Sharma had been charge-sheeted and his increments were withheld. He further deposed that on 1.05.1981 and 20.12.1981 also charge-sheets were issued against Rajeshwar Sharma (informant) for his unauthorised absence and he had been censored for it. D.W. 4 further deposed that Rajeshwar Sharma, due to unauthorised absence had earlier been removed from service on 17.07.1975 under the orders of A.M.E., Samastipur but on 10.07.1979 he had been re-employed. He further deposed that on 1.05.1981 and 20.12.1981 also charge-sheets were issued against Rajeshwar Sharma (informant) for his unauthorised absence and he had been censored for it. D.W. 4 further deposed that Rajeshwar Sharma, due to unauthorised absence had earlier been removed from service on 17.07.1975 under the orders of A.M.E., Samastipur but on 10.07.1979 he had been re-employed. This witness has further deposed that after re-employment, Rajeshwar Sharma had filed a representation through the Workers Union for regularisation of break in his service but vide order dated 19.01.1984 his prayer was refused. This witness proved the service file as well as the personal file of the informant Rajeshwar Sharma as maintained in the P.P. Office which was respectively marked as Ext-E and Ext-N. Thus, the evidence of this witness who is a Head-clerk shows that the informant Rajeshwar Sharma has a checkered history of his unauthorised absence from duty and that for his such absence, he had also been removed from service but re-emplied after some time but thereafter again he continued his acts of unauthorised absence for which he was charge-sheeted several times and he was censored for his unauthorised absence and his increments were also withheld. 45. Learned counsel for the appellant submits that the informant Rajeshwar Sharma being a person habitually involved in unauthorised absence wanted to get his unauthorised absence regularised by the doctor (appellant) on medical grounds by way of issuance of medical certificate illegally by the doctor (appellant) and that when the doctor did not agree to it, Rajeshwar Sharma (informant) got him implicated falsely in this case. Learned counsel for the appellant also submitted that Jugeshwsar Prasad who had grudge against the appellant due to his having failed in getting illegal works done through him (doctor) became instrumental in the false implication of the appellant through the informant Rajeshwar Sharma. 46. During hearing, the learned counsel for the appellant pointed out several defects and informities in the evidence and the case of the prosecution. 47. Out of the witnesses examined by the prosecution, P.W. 8 Raj Kishore Singh, P.W. 9 Umesh Prasad and P.W. 10 G.N. Gupta are the three witnesses who have claimed to have seen the act of demanding of bribe money by the appellant and accepting the same from the informant and then keeping the same in his pocket after counting it with fingers of both the hands. 48. 48. P.W. 8 deposed that he had taken his position outside the western window of the chamber of the doctor and he claimed that the place where the doctor was seated was visible through the window. In this context the evidence of the P.W. 3 at Para-12 is important where he stated that the chamber of the doctor was devided in two parts, eastern and western by a 6-feet high partition wall and that the place where the doctors chair situated lay in the eastern side and a telephone was also installed there and that in the western side of the partition wall, patient examination table was kept and towards the west of the table there was western window in the wall. This witness (P.W. 3) categorically deposed that the place where the doctors sitting place was situated was not visible from the outside the western window. Ext-A is the sketch map of the chamber of the doctor as prepared by the Senior Divisional Engineer, SPJ and the learned counsel for the appellant pointed out from the map that the doctors chamber was devided by a partition wall between the two parts, eastern and the western and in the western part there was patient examination place and in the western wall there was a window. Thus on consideration of the evidence of P.W. 3 and the map (Ext-A) it is clear that there was a partition wall 6-feet high between the western window and the place where the doctor was seated. P.W. 3 has given categorical statement that the place where the doctor was seated was not visible from outside the western window. In view of this evidence, the claim of P.Ws. 8, CBI Inspector that he saw the dealing of the bribe money by the appellant and accepting the same from the informant and then keeping it in his pocket after counting the same with the fingers of his hands is not at all believable. It is clear that there was no possibility for the P.W. 8 to see any transaction of money as claimed by him. It appears that as this witness has not actually seen any such occurrence as deposed by him and he has come to depose only for the purpose of supporting the case of the prosecution. 49. It is clear that there was no possibility for the P.W. 8 to see any transaction of money as claimed by him. It appears that as this witness has not actually seen any such occurrence as deposed by him and he has come to depose only for the purpose of supporting the case of the prosecution. 49. Learned counsel for the appellant submitted that the defence witnesses have stated that Jugeshwar Prasad, Guard who was President of the Union was inimical to the doctor (appellant) because the doctor had refused to do the illegal work of Jugeshwar Prasad as required by him and that the informant Rajeshwar Prasad was also inimical to the doctor because he (appellant) had refused to oblige him (informant) by regularising his unauthorised absence and that Jugeshwar Prasad, Guard and informant Rajeshwar Prasad had threatened to implicate the doctor in false case hence, with the grudge and enmity Jugeshwar Prasad, Guard and the informant Rajeshwar Prasad got the doctor implicated falsely in the instant case through CBI. No doubt, there is evidence of defence witnesses that Jugeshwar Prasad and the informant Rajeshwar Prasad had threatened the doctor to implicate him in a case and they had grudge against the doctor (appellant) but the prosecution evidence or the case cannot be brushed aside only due to this fact. Whatever is required in such situation is that the evidence of the witnesses has to be examined with great care and caution. 50. Out of the eye witnesses over transaction of tainted money, P.Ws. 9 and 10 were examined on this point but P.W. 9 who had joined the CBI team as an independent witness does not say to have seen the transaction of money with his eyes rather he says that whatever was being talked in the chamber of the doctor was not heard clearly. P.W. 10 claimed that he had heard the talk between the doctor and the informant and he had also seen the passing of the tainted money from the informant to the doctor and the counting of the money by the doctor (appellant) with the fingers of his hands and then keeping the same in his pocket. In this contest the evidence of P.W. 9 at Para-5 is important where he has deposed that he was standing at a distance of 7-8 feet from the door of the chamber. In this contest the evidence of P.W. 9 at Para-5 is important where he has deposed that he was standing at a distance of 7-8 feet from the door of the chamber. P.W. 10 at Para-5 has deposed that he was also standing non-congnito with P.W. 9. Thus P.Ws. 9 and 10 both were standing outside the door of the chamber at a distance of 7-8 feet from the door, P.W.10 at Para-21 further deposed that the place where the doctor sat in the chamber situated at a distance of 11 feet from the door. Thus, P.Ws. 9 and 10 were at a distance of 11+ 7-8 = 18/19 from the doctor, P.W. 3 at Para-11 deposed that a navy blue colour thick curtain was handing on the doorof the chamber. P.Ws. 9 and 10 have not claimed to have seen the transaction of tainted money by peeping through the corner of the curtain rather they say that they were standing at a distance of 7-8 feet outside the door of the chamber. Thus when there was a total distance of 18/19 from the doctor, P.Ws. 9 and 10 and a navy blue colour thick curtain was hanging between at the door of the chamber, it appears that there was no possibility for the P.Ws. 9 and 10 to have seen the transaction of tainted money between the informant and the doctor (informant). P.W. 9 himself does not claim to have seen the transaction of tainted money but P.W. 10 deposes that he had seen it. But considering the distance between the witnesses and the appellant and also the existence of the navy blue colour thick curtain in between, I find that these witnesses had not actually seen the transaction of money and that they had adduced their evidence in this regard only for supporting the case of the prosecution. 51. The P.W. 8, Inspector, CBI deposed that P.W. 10, Inspector CBI had entered into the chamber of the doctor and he had taken out and recovered the tainted money from the left upper pocket of the doctor and whennumbers of those notes were compared it tallied with the numbers of notes as given in the pre-trap memorandum. 51. The P.W. 8, Inspector, CBI deposed that P.W. 10, Inspector CBI had entered into the chamber of the doctor and he had taken out and recovered the tainted money from the left upper pocket of the doctor and whennumbers of those notes were compared it tallied with the numbers of notes as given in the pre-trap memorandum. P.W. 6 who had also entered into the chamber of the doctor along with other witnesses deposed at Para-3 of his evidence that P.W. 10 who was the leader of the trap party caught hold of the hand of the doctor and he (P.W.10) took the tainted 168 rupees notes from the pocket of the doctor. He further deposed that the doctor was taken to the Police Station where his hands were washed in solution. Thus it is clear that P.W.10 who was the leader of the trap party had touched with his hands, the tainted notes which were treated with phenolphthalein powder and he (P.W.10) had also caught hold of the hands of the doctor (appellant) at that time. In these circumstances, the possibility of passing over the phanolphthalein powder molecues from the hands of the P.W.10 to the hands of the doctor (appellant) cannot "be absolutely ruled out. Besides this, there were other circumstances also which probablise the passing of the phenolphthalein powder from the hands of P.W.10 to the hands of the appellant. P.W.10 had touched the tainted notes at the time of taking out the same from the pocket of the doctor. There is no evidence that after taking out the notes from the pocket of the doctor (appellant) P.W.10 had washed his hands with soap and water at the spot or at any other place subsequently. P.W. 10 at Para-25 has deposed that he took the doctor (appellant) on a jeep from the P.O. to the Police Station and he also deposed that he had also got the informant Rajeshwar Prasad seated in the Jeep. Thus P.W.10 and informant Rajeshwar Prasad had travelled with the doctor (appellant) in the same jeep from the P.O. to the Police Station. Thus P.W.10 and informant Rajeshwar Prasad had travelled with the doctor (appellant) in the same jeep from the P.O. to the Police Station. It has to be remembered here that the I.O. and P.W. 10 and also the hands of informant Rajeshwar Prasad carried molecules of phenolphthalein powder because they had touched the tainted notes and both of them (P.W.10 and the informant) had travelled in the same jeep with the doctor (appellant) from the P.O. to the Police Station. Hence, during this period, the possibility of the touching hands of the informant and P.W.10 to the hands of the appellant cannot be rules out. 52. It is important to note here that the CBI team did not wash the hands of the doctor (appellant) at the spot after recovery of the tainted money from his pocket but the doctor was taken on a jeep to the Police Station where his hands were washed in the solution of sodium carbonate. For not washing the fingers of hands of the doctor in the solution at the spot, P.W.10 has taken the plea that a crowd had gathered and he apprehended breach of peace, hence he did not wash in solution the fingers of the doctor at the spot and he took him to the Police Station situated at a distance of 2 Kms (P.W.10, para-16). But PrW. 8 has deposed at Para-3 that the additional Police force had been taken from the Police Station and that the Police force had been kept stationed near the P.O. Besides this, it is clear that the CBI team also comprised of constables and Inspectors of that department. P.W. 10 who was the leader of the team does not mention any situation or occasion to show that anybody had put any kind of hindrance or obstruction in their work. The team itself had constables and Inspectors and it was also assisted by the additional Police force requisitioned from the Police Office. Hence, under these circumstances, there does not appear to be a situation or reasonable apprehension of breach of peace for not washing the fingers of the appellant at the spot and taking him to the Police Station. The team itself had constables and Inspectors and it was also assisted by the additional Police force requisitioned from the Police Office. Hence, under these circumstances, there does not appear to be a situation or reasonable apprehension of breach of peace for not washing the fingers of the appellant at the spot and taking him to the Police Station. Learned counsel for the appellant argued that the doctor was taken by the CBI team from the P.O. to the Police Station in the Jeep alongwith P.W.10 and the informant with a view to availing an opportunity to touch the tainted hands of P.W.10 and the informant to the hands of the doctor so that the fingers of the doctor may get tainted with phenolphthalein and may react in the solution of sodium Carbonate. In the above discussion of facts and circumstances of the case, the submission of the learned defence counsel appears to carry substantial reason. 53. The defence case is that when the doctor (appellant) was engaged in the O.T. and his bushshirt was hanging in his chamber and some patients were waiting in the chamber for the doctor, the informant Rajeshwar Prasad Sharma had entered into the chamber in absence of the doctor and he had placed the tainted G.C. notes of Rs. 168/-in the pocket of bushshirt of the doctor (appellant) and that subsequently when the doctor returned to his chamber and he took his bushshirt on after putting off his operation gown, the informant got the doctor caught by the CBI people under the false allegation of having accepted the bribe money and having kept the same in his pocket. In support of defence version, the defence examined D.Ws. 1, 2, 3 and 5 who are the employee under the Railway and who were waiting for medical advice for which the treatment of them or their family member and these defence witnesses have deposed that in absence of the doctor, the informant Rajeshwar Prasad Sharma had entered into the chamber and he had touched the bushshirt of the doctor hanging in his chamber and that when these witnesses had protested to the informant touching the bushshirt, he (informant) had replied that the bushshirt looked nice hence he touched it to have a feel of it. The evidence of the defence witnesses appears to be natural and believable on this point. The evidence of the defence witnesses appears to be natural and believable on this point. In this regard the evidence of P.W. 9 at Para-5 is important where P.W. 9 has deposed that for the first time, when the informant had gone into the chamber of the doctor he (informant) had returned back and said that the doctor was not present in the chamber. P.W. 9 further deposed that subsequently the informant Rajeshwar Prasad Sharma again entered into the chamber of the doctor and he reported to the CBI people that the doctor had come into the chamber and thereafter the members of the trap party had taken their position. 54. According to the case of prosecution, the informant Rajeshwar Sharma had entered into the doctors chamber for once when he had gone into the chamber with tainted money and had paid the doctor (appellant) on his demand as bribe and that thereafter on receiving singal from the informant, the CBI people had entered into the chamber and they had recovered the money from the doctors pocket. But the defence case is that firstly the informant had entered into the chamber of the doctor in absence of the doctor and he had planted the tainted G.C. notes in doctors pocket on the pretext of touching the bushshirt in order to have a feel of its nice look. This stand of the defence has been supported by the evidence of D.Ws. 1, 2, 3 and 5 who have deposed that the informant Rajeshwar Sharma had entered into the doctors chamber twice, firstly in absence of the doctor and he had touched the doctors bushshirt hanging there and secondly after arrival of the doctor in his chamber. This evidence of the defence witnesses stands supported with the evidence of P.W. 9 at Para-5 that the informant Rajeshwar Sharma had entered into the chamber of the doctor twice, firstly in absence of the doctor and secondly when the doctor had come into the chamber. The defence plea is that the informant Rajeshwar Sharma planted the tainted money by keeping the same in the pocket of the doctors bushshirt hanging in the chamber of the Doctor while he was in the Operation Theatre. 55. The defence plea is that the informant Rajeshwar Sharma planted the tainted money by keeping the same in the pocket of the doctors bushshirt hanging in the chamber of the Doctor while he was in the Operation Theatre. 55. The learned Standing Counsel for the CBI submitted that there is no evidence to show that informant Rajeshwar Sharma had, in fact, took the tainted money and planted the same in the pocket of doctors bushshirt. No doubt, there is no direct evidence on this count but the defence is not responsible to prove its case beyond shadows of reasonable doubt. The defence will succeed only when it became able to probablise its defence. Whetever the defence has brought on record by way of evidence of defence witnesses and also the admission of P.W.9 at Para-5 of his evidence that the informant Rajeshwar Sharma had entered into the doctors chamber twice, firstly when the doctor was engaged in the O.T. and at that time the doctor was also absent from the chamber and secondly when the doctor had come in the chamber after performing the operation in the O.T. 56. Besides this the learned counsel for the appellant argued that since the doctor had not touched the tainted money due to the same being planted in the pocket of the doctor by the informant himself the CBI people did not wash the fingers of the doctor in the solution at the spot and they took the doctor to the Police Station on a Jeep in which the informant and P.W.10 had also travelled to avail the opportunity to touch the hands of the doctor for getting them tainted with phenolphthalein powder molecules which is serious lacuna in the present case. Thus in these facts and circumstances I have no hesitation in coming to find and hold that the defence has been able to probabalise the defence and the story of the planting of money in the pocket of the bushshirt of the doctor hanging in the chamber of the doctor in his absence cannot be ruled out as untrue or not believable. 57. 57. During argument, learned counsel for the appellant argued that in this case, P.W.10 who was the leader of the trap party and who is said to have recovered the tainted money from the pocket of the doctor has also worked as the Investigating Officer of the case and he made substantial part of investigation and recorded the evidence of witnesses, shortly after the occurrence. It was further argued that P.W.11 also acted as the I.O. but he took charge of investigation at later stage and he did not do substantial part of investigation and that he also did not record the statement of independent witness P.W. 9. Learned counsel continued to submit that P.W. 9 being the leader of the trap party was highly interested in success of the trap by any means. He could not have worked as an independent Investigating Officer and hence the investigation done by this witness (P.W.10) suffers with the element of prejudice against the appellant. In the facts and circumstances of the case, I find that the element of prejudice in the investigation as conducted by P.W, 9 who being leader of the trap party and interested in success of the trap cannot be totally ruled out. 58. Thus in the facts and circumstances of the case and the evidence as discussed above, I find that the prosecution has not been able to prove the charges beyond the shadows of reasonable doubt. The appellant is entitled to benefit of doubt. Hence by way of giving benefit of doubt, the appellant is acquitted of the charges as levelled against him. Therefore, the order of conviction and sentence as passed by the learned Trial Court is hereby set aside. Accordingly, the appellant is acquitted. He is discharged from the liabilities of bail bonds executed by him. 59. In this result, this appeal is allowed.