ORDER : 1. Scar of conviction for offences, involving moral turpitude, has led first appellant, public servant, and indictment for offence of criminal conspiracy has prompted the second appellant, an individual, to invoke in unison appellate jurisdiction of this Court, enshrined under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’). The Sessions Judge, ACD Cases, Jodhpur, by impugned judgment dated 01.11.2007, indicted the first appellant for offence under Section 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (for short, ‘PC Act’) and for offence under Section 120-B IPC whereas indicted second appellant for offence under Section 120-B IPC and handed down following concurrent sentences with fine of different denominations. First Appellant Bhagirath Ram: Offence Sentence Fine In default 7 PC Act 1 Year R.I. Rs.5,000/- 1 month S.I. 13(1)(d),(2) PC Act 2 Years R.I. Rs.5,000/- 2 months S.I. Second Appellant Rameshwarlal: Offence Sentence Fine In default 120-B IPC 1 Year R.I. Rs.2,000/- 1 month S.I. 2. Succinctly stated, the prosecution story, as unfurled from FIR, is that complainant Bhawani Singh (PW11) submitted a written report Ex.P-32 before ACB Outpost, Nagaur on 18.06.2002. In the report, complainant inter-alia alleged that he is opening Primary School at his village, and therefore, for seeking its registration, he submitted a file in the office of Registrar, Cooperative Societies, Nagaur. As per report, complainant met first appellant, an employee of that office, on 18.06.2002 at 11 AM, then he demanded Rs.4,300 for the accomplishment of work upto higher level. It further transpired from the report that first appellant warned complainant not to place the file before higher authority without payment of requisite amount. The complainant, while showing his reluctance to pay illegal gratification, solicited appropriate action of trapping first appellant red-handed. 3. On the basis of report Ex.P/32, Inspector-Devanand (PW13) arranged trap and recovered Rs.4,300/- from the possession of second appellant-Rameshwar. The trap proceedings followed by arrest of both the appellants, preparation of recovery memo and other relevant documents. Later on, both the appellants were released on bail. 4. During the course of investigation, ACB recorded statements of witnesses, obtained relevant documents and sent articles for FSL examination to procure report Ex.P-44. Thereafter, prosecution sanction Ex.P-28 was obtained against first appellant. The trap proceedings followed by arrest of both the appellants, preparation of recovery memo and other relevant documents. Later on, both the appellants were released on bail. 4. During the course of investigation, ACB recorded statements of witnesses, obtained relevant documents and sent articles for FSL examination to procure report Ex.P-44. Thereafter, prosecution sanction Ex.P-28 was obtained against first appellant. In due course of time, investigation completed and the accused first appellant was charge-sheeted for offence under Section 7, 13(1)(d) r/w 13(2) of the PC Act while accused second respondent was charge-sheeted for offence under Section 120-B IPC. The learned trial Court framed charges against appellants and on their denial, they were put on trial. 5. Prosecution examined 14 witnesses during trial including the complainant and exhibited documents Ex.P-1 to Ex.P-45 respectively. Closure of prosecution evidence followed by recording statements of accused-appellants under Section 313 Cr.P.C. In his statement accused-appellant Bhagirath specifically denied demanding bribe from complainant Bhawani Singh and also repudiated insinuation of giving amount of gratification to second appellant Rameshwar. Likewise, Rameshwar–second appellant also stated with precision about not meeting first appellant Bhagirath on that day. He further clarified that Bhagirath never asked him to accept amount from the complainant. Besides that, some other facts were also disclosed by second appellant to repudiate the prosecution story with a positive assertion of his false implication in the matter. 6. The accused-appellants, thereafter, entered into their defence and examined one witness DW1 Kumbharam. Learned trial Court then proceeded to hear final arguments and convicted both the appellants for their proven criminal delinquency with above mentioned punishments. 7. Mr. S.D. Purohit, learned counsel for the appellants, strenuously urged that learned trial Court has miserably failed to appreciate and scrutinize the evidence available on record. Mr. Purohit contends that in absence of proof about demand of bribe and recovery of currency notes from first appellant, his conviction for offence under Section 7, 13(2) of the PC Act is not sustainable. Learned counsel further argued that admittedly the trap arranged by ACB in the matter failed, therefore, learned trial Court has committed grave and serious error in convicting the appellants on the strength of testimony of hostile prosecution witnesses. Elaborating his submissions in this behalf, learned counsel contends that during trial prosecution witnesses PW4 Ratan Singh, PW9 Rajendra Prasad have resiled from their statements made during investigation is sufficient to discredit their testimony. Elaborating his submissions in this behalf, learned counsel contends that during trial prosecution witnesses PW4 Ratan Singh, PW9 Rajendra Prasad have resiled from their statements made during investigation is sufficient to discredit their testimony. While relying on the statements of complainant Bhawani Singh (PW11), learned counsel would urge that he too has not supported the prosecution case by turning hostile. 8. Learned counsel has vehemently argued that the statements of witness Shravan Kumar (PW3) are clear and unequivocal so as to demonstrate that as on 18.06.2002 no work of complainant was pending with first appellant. Learned counsel further urged that from the statements of Investigating Officer Devanand (PW13) it is apparent that recorded cassette Ex.P/12 did not contain clear audio/voice of the first appellant so as to prove it a transcript of conversation for demand. Learned counsel for the appellants has, therefore, argued that when there is no evidence of sterling worth against first appellant for his alleged criminal misconducts and evidence showing his causal connection with second appellant, conviction of the second appellant for offence of criminal conspiracy cannot be sustained. 9. E. converse, learned Public Prosecutor submits that while convicting appellants for the charged offences, learned trial Court has considered the evidence meticulously, therefore, no interference with the impugned judgment is called for. It is further argued by learned Public Prosecutor that learned trial Court, in the backdrop of fractured testimony of some of the prosecution witnesses, has rightly relied upon circumstantial evidence for indictment of the appellants. Learned Public Prosecutor would contend that the learned trial Court by relying on Ex.P/32 has recorded a definite finding that on the crucial day when complainant Bhawani Singh (PW11) submitted report before ACD, his work was pending with the first appellant. 10. Learned Public Prosecutor has urged that the learned trial Court, in the backdrop of facts and circumstances of the case and available incriminating material against the appellants, has rightly drawn presumption under Section 20 of the PC Act. Lastly, learned Public Prosecutor submits that amount was recovered from second appellant, therefore, no interference with the impugned judgment is warranted. 11. I have given anxious considerations to the arguments advanced by learned counsel for the appellants, learned Public Prosecutor, and meticulously examined the impugned judgment in conjunction with materials available on record. 12. Lastly, learned Public Prosecutor submits that amount was recovered from second appellant, therefore, no interference with the impugned judgment is warranted. 11. I have given anxious considerations to the arguments advanced by learned counsel for the appellants, learned Public Prosecutor, and meticulously examined the impugned judgment in conjunction with materials available on record. 12. The pivotal issue which requires judicial scrutiny in the instant appeal is indictment of first appellant for offence under Section 7 of the PC Act and his conviction for criminal misconduct within the meaning of Section 13(1)(d) read with 13(2) of the PC Act. That apart, Court is also required to examine conviction of second appellant, a private individual, for offence under Section 120-B IPC. In order to ascertain legality and propriety of the findings and conclusions of the learned trial Court, it has become imperative for the Court to re-appreciate the evidence on the touchstone of requirements for constituting these offences. 13. Undeniably, first appellant was a public servant when FIR was lodged and learned trial Court has convicted him for offence under Section 7 of the PC Act. For constituting an offence under Section 7 of the PC Act, necessary ingredient is that a public servant demands/accepts gratification for himself or another as a motive or reward for doing or forbearing to do any official work in exercise of his official duty. Thus, demand of illegal gratification is a sine qua non to constitute an offence. The prosecution case is that first appellant demanded and accepted Rs.4,300/- as bribe through second appellant Rameshwarlal. The best possible evidence to prove demand could have been of complainant PW11 Bhawani Singh. Suffice it to observe, in this behalf, that complainant, PW11 Bhawani Singh, while deposing before the Court, has resoled from his earlier statements recorded during investigation. As a matter of fact, the complainant in his court statements has not castigated first appellant for demand of gratification. He has further clarified in his statements that first appellant never asked him to pay requisite amount of bribe to second appellant. Taking into account a very vital fact that complainant completely repudiated the prosecution case, at the behest of Public Prosecutor, he was declared hostile and subjected to cross-examination. Besides complainant PW11 Bhawani Singh, other material witnesses, PW4 Ratan Singh and PW9 Rajendra Prasad Sharma, have also turned hostile. 14. Taking into account a very vital fact that complainant completely repudiated the prosecution case, at the behest of Public Prosecutor, he was declared hostile and subjected to cross-examination. Besides complainant PW11 Bhawani Singh, other material witnesses, PW4 Ratan Singh and PW9 Rajendra Prasad Sharma, have also turned hostile. 14. While it is true that evidence of a hostile witness is not worth outright rejection but then it is duty of the Court to take utmost care while examining its testimony being a witness having no regard for truth. As the credibility of the witness is under cloud, it would not be safe to rely on testimony of such a witness. It is also noteworthy that the recorded conversation between the complainant and the first appellant about demand of gratification is also not clear inasmuch as I.O. Devanand (PW13) has admitted that he has not heard conversation between complainant and the first appellant. PW13 has further admitted that on 19th of June 2002, i.e., when trap was organized, no clear conversation was recorded and further there was no whisper in the cassette about demand of bribe by first appellant from complainant. At this juncture, evidence of PW3 Shravan Kumar, Assistant Registrar, Cooperative Societies, Nagaur is also relevant. A close scrutiny of the testimony of PW3 makes it abundantly clear that first appellant has made requisite notings in the file of complainant on 17th June 2002, i.e., a day anterior to the alleged demand of bribe. In that background, pendency of any work of the complainant with the first appellant is clearly jettisoned. The learned trial Court has not at all cared to examine all these significant loopholes in the prosecution evidence while indicting the first appellant for offence under Section 7 of the PC Act, rendering the said finding per se vulnerable. 15. Supreme Court in case of P. Satyanarayana Murthy Vs. District Inspector of Police & Anr. [2015 Cr.L.R.(SC) 1047], while examining Section 7 and 13(1)(d)(i),(ii) of the PC Act, laid emphasis on proof of demand of illegal gratification for constituting these offences and further observed that mere acceptance of any amount of bribe without proof of demand is insufficient to bring home charge under these two Sections of the PC Act. [2015 Cr.L.R.(SC) 1047], while examining Section 7 and 13(1)(d)(i),(ii) of the PC Act, laid emphasis on proof of demand of illegal gratification for constituting these offences and further observed that mere acceptance of any amount of bribe without proof of demand is insufficient to bring home charge under these two Sections of the PC Act. The Court held: “The proof of demand of illegal gratification, thus, is the gravamen of the offence Under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence Under Sections 7 or 13 of the Act would not entail his conviction thereunder.” 16. The second offence, for which first appellant is convicted, relates to criminal misconduct by a public servant, i.e., offence under Section 13(1)(d) read with 13(2) of the PC Act. The necessary ingredient for constituting aforesaid offence is that public servant has used corrupt or illegal means or otherwise abused his position as public servant and obtained a valuable thing or pecuniary advantage for himself or any other person. As observed hereinabove, there is no evidence of sterling worth to show demand of gratification by the first appellant. From the evidence, it has also clearly emerged out that there was no recovery of currency notes from the first appellant. It would also be appropriate to highlight here that the question of demanding bribe by the first appellant is under serious cloud in the wake of cogent evidence in the form of PW3 Shravan Kumar, which clearly demonstrates a fact showing no pending work of the complainant with him on the relevant day. Besides all these circumstances, the fractured testimony of complainant PW11 has completely demolished the prosecution case. If the evidence of complainant is meticulously examined, which is not corroborated by any other witness, then, I am afraid, same cannot be relied upon being not in conformity with the case of the prosecution. Besides all these circumstances, the fractured testimony of complainant PW11 has completely demolished the prosecution case. If the evidence of complainant is meticulously examined, which is not corroborated by any other witness, then, I am afraid, same cannot be relied upon being not in conformity with the case of the prosecution. The testimony of complainant PW11 has also become vulnerable on account of a very significant fact that, PW4 Ratan Singh and PW9 Rajendra Prasad Sharma, material prosecution witnesses of the trap, have turned hostile. 17. The learned trial Court, while indicting the first appellant for offence under Section 13(1)(d) read with 13(2) of the PC Act, has though discussed the loopholes and serious pitfalls in the prosecution evidence, so as to discredit the same, but surprisingly it has taken shelter of circumstantial evidence for recording conviction. I am at loss to say that when a case is based on direct evidence or ocular evidence, which is per se vulnerable, it would be unsafe to switch on to circumstantial evidence for castigating an accused for the alleged offence. Moreover, the so called circumstantial evidence, on which learned trial Court has placed reliance, has not furnished any direct and positive proof of the criminal delinquencies of the first appellant. In case of circumstantial evidence or indirect evidence where circumstances are susceptible of two equally possible inferences, the Court should accept that inference which favours the accused rather than inference which goes in favour of the prosecution. Mere disregard of the relevant provisions as well as ordinary norms of procedural behavour of govt. official without conclusively establishing beyond a reasonable doubt the guilt of the concerned official may give rise to strong suspicion but that cannot be held to establish guilt of the accused. Presumption drawn by the learned trial Court under Section 20 of the PC Act in absence of proof of demand is also contrary to legislative intent, and therefore, based on mere conjectures and surmises. 18. Upon a close scrutiny of the evidence and available material, I am constrained to observe that the learned trial Court has seriously erred in appreciation of evidence. The learned trial Court, while indicting the first appellant for offence under Section 13(1)(d) read with Section 13(2) of the PC Act, has not applied the standard of proof in a criminal trial, i.e., proof beyond all reasonable doubts, and therefore, findings are clearly perverse. The learned trial Court, while indicting the first appellant for offence under Section 13(1)(d) read with Section 13(2) of the PC Act, has not applied the standard of proof in a criminal trial, i.e., proof beyond all reasonable doubts, and therefore, findings are clearly perverse. After examining the findings and conclusions of the learned trial Court, it is ex-facie clear that the Court has based its conclusions on mere assumptions and hypothesis rather than on preponderance of probabilities. Therefore, the finding of guilt of the first appellant for offence under Section 13(1)(d) and his consequent conviction and sentencing by the learned trial Court under Section 13(2) of the PC Act, is per se falling short of moral certainty. 19. In Krishan Chander Vs. State of Delhi [2016 Cr.L.R.(SC) 10], Supreme Court, while considering the fact that there was no occasion for the appellant public servant to demand bribe money at that time and the fact that the complainant has turned hostile, relied on some of its earlier decisions and set aside the conviction of appellant public servant for offence under Section 7, 13(1)(d) read with 13(2) of the PC Act. The Court observed: “Mr. Sidharth Luthra, the learned Senior Counsel on behalf of the appellant contended that the High Court has failed to appreciate the fact that Krishan Kumar (PW-9) at the time of occurrence was already released on bail in connection with the case registered in FIR No.662 of 2004 by the appellant as per the directions of Ranbir Singh, ASI (PW-11). Thus, the demand of bribe money of Rs.1000/- by the appellant from the complainant-Jai Bhagwan is highly improbable. It was further contended by him that the High Court has failed to appreciate the fact that the complainant-Jai Bhagwan turned hostile during his examination before the Trial Court and did not support the prosecution case that the demand of Rs.1000/- as illegal gratification was made by the appellant from him for release of Krishna Kumar (PW-2) on bail.” In yet another latter decision, Supreme Court in case of Mukhtiar Singh (since deceased) through his LR Vs. State of Punjab [2017 Cr.L.R (SC) 641] reiterated the same principle and set aside conviction under Section 7, 13(2) of the PC Act upon considering contradictory evidence of prosecution witnesses and location of the transaction relating to acceptance of bribe. State of Punjab [2017 Cr.L.R (SC) 641] reiterated the same principle and set aside conviction under Section 7, 13(2) of the PC Act upon considering contradictory evidence of prosecution witnesses and location of the transaction relating to acceptance of bribe. The Court held: “It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification either of Rs.3,000/- which had been paid or of Rs.2,000/- as made on the day of trap operation is wholly inadequate to comply with the pre-requisites to constitute the ingredients of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs.3,000/- at the first instance is alleged to have been paid i.e. Santosh Singh Lamberdar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the complainant with regard to the demand and payment of Rs.3,000/- as well as the demand of Rs.2,000/- has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offence under section 7 or 13 of the Act. In addition thereto, not only the prosecution version of demand and acceptance of illegal gratification in the Police Station seems to be unusual, contradictions of the witnesses, PW-1, PW-2 and PW-5 with regard to the location of the transaction relating to Rs.2,000/- also renders it doubtful. In addition thereto, not only the prosecution version of demand and acceptance of illegal gratification in the Police Station seems to be unusual, contradictions of the witnesses, PW-1, PW-2 and PW-5 with regard to the location of the transaction relating to Rs.2,000/- also renders it doubtful. It is also noticeably unusual that the currency notes when allegedly handed over by the complainant to the original accused, the same instead of being keenly kept with him, were placed casually in the card board box placed on his table. Though the original accused, apart from imputing his false implication at the instance of Superintendent of Police Cheena, said to be the relative of the complainant could not adduce any evidence to consolidate the same, the fact remains that this officer at the relevant point of time was indeed Superintendent of Police at Mohali and was the superior of PW-5 who led the trap operation. On an overall appreciation of evidence on record, in the context of the elucidation of law pertaining to proof of the ingredients of Sections 7 and 13 of the Act as adverted to herein-above, we are of the unhesitant opinion that the prosecution has failed to prove the charge levelled against the original accused beyond all reasonable doubt. The charge against him therefore fails. The Trial Court as well as the High Court had failed to analyse the factual and legal aspects as involved in their true perspectives and resultantly the determinations made are not sustainable. The impugned judgment and order of the High Court affirming the conviction and sentence recorded by the Trial Court is set aside. The appeal is allowed.” 20. As regards presumption under Section 20 of the PC Act, Supreme Court in case of V. Venkatta Subbarao Vs. State represented by Inspector of Police [2007 Cr.L.J. 754], while dislodging the presumption in absence of any proof about demand by the accused, held: “Submission of the learned counsel for the State that presumption has rightly been raised against the appellant, cannot be accepted as, inter alia, the demand itself had not been proved. In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved. It reads as under: “20. In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved. It reads as under: “20. Presumption where public servant accepts gratification other than legal remuneration.-(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) or sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.” 21. Now adverting to the criminal delinquency of second appellant and his indictment for offence under Section 120-B IPC, suffice it to observe that there is no cogent evidence of the prosecution to show his communication with the first appellant much less their meeting of minds so as to establish his nexus with the alleged dubious transaction. The evidence in this behalf lack requisite sting to draw an inference about the meeting of minds. In order to constitute a criminal conspiracy, there must be an agreement between the parties who are alleged to have conspire for doing an illegal work or for doing by illegal means an act which may not itself be illegal. When the evidence against the first appellant for offences under the PC Act is not of sterling worth and that of demand for bribe, obviously, second appellant cannot be castigated for offence of criminal conspiracy. In this behalf, evidence of complainant PW11 is clear and unequivocal inasmuch as he has completely absolved first appellant for demand of bribe. The evidence of PW3 Shravan Kumar also sufficiently demonstrates that on 18th June 2002 no work of complainant was pending with the first appellant and he had already forwarded the file of complainant to PW3 Shravan Kumar with requisite notings on 17th of June 2002. The evidence of PW3 Shravan Kumar also sufficiently demonstrates that on 18th June 2002 no work of complainant was pending with the first appellant and he had already forwarded the file of complainant to PW3 Shravan Kumar with requisite notings on 17th of June 2002. Therefore, in totality, I am afraid, indictment and conviction of the second appellant for offence under Section 120-B IPC cannot withstand the test of proof beyond all reasonable doubts. The upshot of the above discussion is that the instant appeal is allowed, impugned judgment of the learned trial Court is set aside and appellant No.1 is acquitted for offence under Section 7, 13(1)(d) read with Section 13(2) of the PC Act and appellant No.2 for offence under Section 120-B IPC. Both the appellants are on bail, therefore, they need not surrender.