JUDGMENT : Sanjay Dhar, J.-The Appeal is directed against the judgment dated 05.10.2015 passed by learned Special Judge Anti-corruption, Kashmir, Srinagar (hereinafter referred to as the trial court) whereby appellant has been convicted for the commission of offences punishable under Section 5(1)(d) read 5(2) of J&K Prevention of Corruption Act [ for short “the PC Act”] and Section 161 of RPC. Vide the impugned judgment, the appellant has been sentenced to undergo simple imprisonment for one year for offence under Section 5(1)(d) read with 5(2) of the PC Act and to pay a fine of Rs.10000. He has further been sentenced to undergo six months imprisonment for offence punishable under Section 161 RPC. Both the sentences have been directed to run concurrently. 2. The facts giving rise to the filing of this appeal are that complainant-PW Abdul Majeed Misgar approached Vigilance Organization, Kashmir, with a written complaint alleging therein that the accused had demanded illegal gratification of Rs.2000/- for processing his GP fund case. On the basis of this complaint, FIR No.16/2004 for offences under Section 5(1)(d) read 5(2) of the PC Act and Section 161 of RPC came to be registered, whereafter, on 26th July, 2000, a trap was laid by the sleuths of Vigilance Organization accompanied by independent witnesses and the complainant. As per prosecution case, the appellant/accused was caught red handed while demanding and accepting illegal gratification of Rs.2000/- from the complainant. The tainted money is stated to have been recovered from the possession of the appellant. After investigation of the case, the aforesaid offences were found established against the appellant and charge sheet was laid before the trial court. 3. Charges for the aforesaid offences were framed against the appellant/accused and his plea was recorded. The appellant/accused pleaded not guilty to the charges and claimed to be tried. Accordingly, the prosecution was directed to examine witnesses in support of the charges. The prosecution examined as many as 12 out of 14 witnesses cited in the charge sheet. After completion of the prosecution evidence, the incriminating circumstances were put to the appellant/accused and his statement under Section 342 of J&K Cr. P. C. was recoded. The appellant/accused did not enter defence and did not lead any evidence in defence. The prosecution examined as many as 12 out of 14 witnesses cited in the charge sheet. After completion of the prosecution evidence, the incriminating circumstances were put to the appellant/accused and his statement under Section 342 of J&K Cr. P. C. was recoded. The appellant/accused did not enter defence and did not lead any evidence in defence. The learned trial court, after hearing the prosecution and the defence, came to the conclusion that charges against the appellant/accused are established and, accordingly, the impugned judgment of conviction and sentence came to be passed. 4. The appellant has challenged the impugned judgment of conviction and sentence on several grounds but during the course of arguments, the learned senior counsel appearing for the appellant laid emphasis on two grounds; one that despite the prosecution having failed to establish demand of illegal gratification by the appellant/accused from the complainant during trap proceedings, the learned trial court has on the basis of surmises and conjectures, proceeded to observe that the same stands proved. The other ground that has been emphasized by the learned senior counsel is that the evidence on record as regards the recovery of tainted money from the possession of appellant/accused is contradictory and full of suspicion, which fact has been ignored by the learned trial court while passing the impugned judgment. 5. I have heard learned counsel for the parties and perused the impugned judgment, the grounds of appeal and the record of the trial court. 6. Before coming to the grounds of challenge urged by the learned senior counsel appearing for the appellant, it would be apt to notice the legal position as regards the ingredients which are necessary to be established for proving an offence 5(1)(d) read 5(2) of the PC Act Section 161 of RPC. In order to bring home the guilt of the accused in such cases, the prosecution has to establish, with cogent and convincing evidence, the following ingredients: (i) Initial demand of illegal gratification by accused from the complainant; (ii) Demand and voluntary acceptance of tainted money/bribe by the accused from the complainant at the time of trap proceedings. (iii) Recovery of tainted money from the accused; 7. (iii) Recovery of tainted money from the accused; 7. When the aforesaid three ingredients are established against an accused, a legal presumption in terms of Section 4 of the J&K PC Act arises that the accused has obtained tainted money as a motive or reward for doing or forbearing to do an official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavor, and the burden shifts upon the accused to rebut this presumption. 8. The Supreme Court in the case of Banarsi Dass v. State of Haryana, (2010) 4 SCC 450 , has held that to constitute an offence under Section 161 IPC, it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. It has been further held that in terms of Section 5(1)(d) of the PC Act, the demand and acceptance of money for doing a favour in discharge of his official duties is sine qua non to the conviction of the accused. The demand and acceptance of the illegal gratification by the accused has to be proved and established by substantive evidence. These principles have been reiterated by this Court in the case of Mohammad Ashraf Wani v. State of J&K (Criminal Appeal No.09/2017 decided on 22.03.2018). 9. In the light of foregoing legal position, let us now test the merits of the grounds urged by the appellant on the touchstone of the evidence led by the prosecution in the instant case. 10. So far as the initial demand of illegal gratification by appellant/accused from the complaint is concerned, there is sufficient evidence on record to establish the same and, in fact, even during the course of arguments, learned senior counsel appearing for the appellant has made only a feeble attempt to challenge this aspect of the matter. The crucial aspect on which hinges the fate of this appeal is the proof of the fact as regards demand and voluntary acceptance of tainted money by the appellant/accused from the complainant during the trap proceedings. In this regard, it would be profitable to refer to the relevant portions of the statements of the prosecution witnesses. 11. The crucial aspect on which hinges the fate of this appeal is the proof of the fact as regards demand and voluntary acceptance of tainted money by the appellant/accused from the complainant during the trap proceedings. In this regard, it would be profitable to refer to the relevant portions of the statements of the prosecution witnesses. 11. In his examination-in-chief, the complainant has stated that he proceeded upstairs to the office of the accused at about 1.00 PM and accused called the tea vendor and ordered tea for himself. In the meantime, he caught hold of hand of the appellant/accused and took him downstairs for offering him tea as there was a small shop located downstairs. The complainant further goes on to state that a little ahead of the said tea shop, he put the amount of Rs.2000/- in the pocket of the accused who put his hand in his pocket and in the meantime, the sleuths of Vigilance Organization caught hold of the hand of the accused while it was inside his pocket, whereafter he was taken towards a park. In his cross-examination the complainant stated that the place where he put the money in the pocket of the accused is a thoroughfare and vehicular traffic was plying at that time. 12. Shadow witness, Farooq Ahmad Kanth, has stated in his examination-in-chief that when complainant went to the accused, they stood outside the hall. After sometime, complainant came out along with accused he along with independent witness went downstairs towards a photocopying shop. Thereafter both accused and the complainant came back and went towards a tea shop. The witness further stated that complainant perhaps paid money to the accused and gave a prefixed signal to them. The Dy. SP caught hold of the accused from his hand and took him to a nearby park. 13. Independent witness, PW Jahangir Saleem Khan, has stated that when they went to the GP Fund office, the complainant proceeded ahead of them whereas he along with shadow witness followed him. The complainant went near the accused whereafter both of them came downstairs and they followed them. The witness further stated that the complainant handed over money to accused who kept it in his left pocket, whereafter shadow witness, Farooq Ahmad, gave a prefixed signal to the Dy. SP who came there and caught hold of the accused from his hands. 14. The witness further stated that the complainant handed over money to accused who kept it in his left pocket, whereafter shadow witness, Farooq Ahmad, gave a prefixed signal to the Dy. SP who came there and caught hold of the accused from his hands. 14. PW Farooq Ahmad Khanday, Constable, has stated that complainant and independent witnesses went inside the Education Section of the Fund office and he remained outside the gallery of the office. He further stated that he was instructed by the Dy. SP to give him signal after he receives signal from the complainant. The witness went on to state that after sometime complainant and the accused came out of the room and shadow and independent witness followed them. He also followed them. Accused and the complainant conversed with each other near the road whereafter the complainant took out five currency notes of Rs.500/- each and handed over the same to the accused who, after counting the same, put the currency notes in the left pocket of his pent. In his cross-examination the witness stated that the accused did not demand the bribe money in his presence but he saw the accused taking money from the complainant. 15. From the statement of the complainant, it is clear that the accused did not demand money from him. The complainant is clear in his statement that he of his own put the money in the pocket of the accused whereafter Dy. SP caught hold of hand of the accused. This part of the statement of the complainant has remained un-challenged. Learned trial court while analysing statement of the complainant has observed that it is the duty of the Court to separate the grain from the chaff and, therefore, while discarding the statement of complainant that he of his own put the bribe money into the pocket of the accused, the other portions of his statement have been accepted by the trial court. 16. There is no quarrel with the proposition that a Court, while appreciating the evidence of a witness, has to separate the grain from the chaff but then rules regarding appreciation of evidence have not to be thrown to wind. 16. There is no quarrel with the proposition that a Court, while appreciating the evidence of a witness, has to separate the grain from the chaff but then rules regarding appreciation of evidence have not to be thrown to wind. In the instant case, if the prosecution wanted to avoid consideration of this part of the statement of the complainant, it was necessary for the prosecution to cross-examine the witness on this aspect of the matter after seeking permission from the Court which the prosecution did not choose to do, meaning thereby they accepted the statement of the witness as a whole and did not challenge it. Therefore, the statement of the complainant that he voluntarily put the money in the pocket of the accused is binding upon the prosecution and the defence is not debarred from relying upon the same. 17. The principles relating to appreciation of the statement of a prosecution witness, who despite deviating from the prosecution story, is not declared hostile by prosecution, are well settled. The defence, in such cases, is not precluded from relying upon the testimony of such a witness. 18. The Supreme Court in the case of Raja Ram vs. State of Rajasthan, (2005) 5 SCC 272, while dealing with a similar issue, observed as under: “9. But the testimony of PW 8 Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw PW 5 making the deceased believe that unless she puts the blame on the appellant and his parents she would have to face the consequences like prosecution proceedings. It did not occur to the Public Prosecutor in the trial court to seek permission of the court to heard (sic declare) PW 8 as a hostile witness for reasons only known to him. Now, as it is, the evidence of PW 8 is binding on the prosecution. Absolutely no reason, much less any good reason, has been stated by the Division Bench of the High Court as to how PW 8’s testimony can be sidelined. 19. The Supreme Court in the case of Mukhtar Ahmad Ansari vs. State (NCT of Delhi), (2005) 5 SCC 258, the Supreme Court, while noticing the ratio laid down by it in Raja Ram’s case (supra) observed as under: 29. 19. The Supreme Court in the case of Mukhtar Ahmad Ansari vs. State (NCT of Delhi), (2005) 5 SCC 258, the Supreme Court, while noticing the ratio laid down by it in Raja Ram’s case (supra) observed as under: 29. The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case as PW 1. He, however, did not support the prosecution. The prosecution never declared PW 1 “hostile”. His evidence did not support the prosecution. Instead, it supported the defence. The accused hence can rely on that evidence. 30. A similar question came up for consideration before this Court in Raja Ram v. State of Rajasthan [(2005) 5 SCC 272 : JT (2000) 7 SC 549]. In that case, the evidence of the doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The doctor was not declared “hostile”. The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the doctor and it was binding on the prosecution. 31. In the present case, evidence of PW 1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to the police in which the police had gone to Bahai Temple and apprehended the accused. When Goel did not support that case, the accused can rely on that evidence. 20. In Kunju Muhammad alias Khumani & another. Vs. State of Kerala, (2004) 9 SCC 193, the Supreme Court, while considering the effect of evidence of a prosecution witness, who was not treated hostile but helped the case of defence, held that benefit of such evidence should go to the accused and not to the prosecution. 21. In the instant case, as already noted, the complainant did not support the case of prosecution to the extent of voluntary acceptance of bribe by the accused and recovery thereof from his possession but the prosecution did not seek permission to cross examine him after getting him declared as hostile witness. 21. In the instant case, as already noted, the complainant did not support the case of prosecution to the extent of voluntary acceptance of bribe by the accused and recovery thereof from his possession but the prosecution did not seek permission to cross examine him after getting him declared as hostile witness. In view of the settled legal principles as discussed hereinbefore, the statement of the complainant is binding upon the prosecution and the defence has a right to rely upon the same. This aspect of the matter has been clearly overlooked by the trial court while appreciating the evidence on record. 22. The learned trial court has observed that the fact that accused joined the complainant readily for a cup of tea and allowed him to put the bribe money in his pocket without any repulsive response shows that he has voluntarily accepted the money. This observation of the learned trial court is not substantiated by any evidence on record. The complainant has clearly stated that the accused had ordered tea in his office but the complainant caught hold of his hand and brought him downstairs. He has gone on to state that as soon as he put the money in the pocket of the accused, the Dy. SP came there and caught hold of his hand while it was still in his pocket. Thus, there was hardly any time for the complainant to react after the money had been put in his pocket. The observation of the learned trial court that there was no repulsive response from the accused is not borne out from the evidence on record. 23. The learned trial court has also observed that the complainant was influenced during trial to manipulate facts and to come up with such a plea in order to favour the accused. The said observation of the learned trial court is not supported by any material on record. Had it been so, then it was open to the prosecution to get the complainant declared as hostile and put him under cross-examination, which is not the case. The observation of the learned trial court in this regard is without any basis. In fact, the complainant has supported the prosecution except to the extent of demand and voluntary acceptance of bribe money by the accused. Thus, it cannot be stated that he was won over by the accused. 24. The observation of the learned trial court in this regard is without any basis. In fact, the complainant has supported the prosecution except to the extent of demand and voluntary acceptance of bribe money by the accused. Thus, it cannot be stated that he was won over by the accused. 24. The learned trial court, while holding that accused had voluntarily accepted the bribe money, has placed much reliance upon the statement of PW Farooq Ahmad Khanday. Although the said witness has, in his examination-in-chief, stated that the accused after accepting the currency notes from the complainant, counted the same and put it in his pocket but in his cross-examination, he has clearly stated that he did not see accused demanding money from the complainant and that he only saw the complainant handing over the money to the accused. His version that accused counted money before putting the same in his pocket has not been corroborated by any other witness including the shadow witness who was following the accused and complainant very closely. The shadow witness, PW Farooq Ahmad Kanth, has stated that perhaps complainant gave money to the accused whereas PW Jahangir Saleem Khan has stated that the complainant handed over money to the accused. Learned trial court has conveniently skipped the cross-examination of PW Farooq Ahmad Khanday on this aspect of the matter while placing reliance upon his statement. This witness, as per evidence on record, was not in the immediate vicinity of the complainant and accused. The witness who was closely following the complainant is PW Farooq Ahmad Kanth, the shadow witness. The said witness is not even sure whether money was handed over by the complainant to the accused Thus, the trial court has, while appreciating the evidence, ignored the fact that besides the complainant, even the shadow witness who was closely following him has not stated anything that would even remotely suggest that the accused had voluntarily accepted the tainted money. 25. From the foregoing analysis of the evidence on record, it is clear that demand and acceptance of bribe money by the accused/appellant during the trap proceedings has not been established beyond reasonable doubt. The learned trial court, while recording finding on this aspect of the matter, has not appreciated the evidence on record in its correct perspective. Thus, the prosecution has failed to establish this ingredient of the offence against the appellant/accused. 26. The learned trial court, while recording finding on this aspect of the matter, has not appreciated the evidence on record in its correct perspective. Thus, the prosecution has failed to establish this ingredient of the offence against the appellant/accused. 26. Coming to the evidence regarding recovery of tainted money from the possession of the appellant/accused, there are contradictory versions on this aspect of the matter. While the complainant has not stated anything about this aspect of the matter though he is a witness to the recovery memo, EXPW-AMM/4, the shadow witness, PW Farooq Ahmad Kanth, has stated that money was recovered from the pocket of the accused but he does not know as to who recovered it. According to PW Jahangir Saleem Khan, the independent witness, the money was recovered from the pocket of the accused by the Dy. SP. The other prosecution witnesses have stated that money was recovered from the pocket of the accused by PW Farooq Ahmad Kanth. The recovery memo, EXPW-AMM/4, does not indicate anything about the person who had searched the pocket of the accused for recovering the tainted money. Thus, the evidence on record as regards the recovery of tainted money from the pocket of the accused is contradictory and vague. The learned trial court, while appreciating and analysing the prosecution evidence, has conveniently failed to notice and analyse the evidence led by prosecution on this aspect of the matter and has gone on to hold that recovery of tainted money from the possession of the accused stands established. 27. From the foregoing analysis of the evidence on record, it is clear that the prosecution has failed to establish even the recovery of tainted money from the possession of accused beyond reasonable doubt. Even otherwise, mere recovery of money from the accused by itself is not enough in the absence of substantive evidence regarding demand and acceptance of bribe money, to prove the charges against the accused. 28. In Suraj Mal vs. State (Delhi Administration), (1979) 4 SCC 725 , the Supreme Court took a view that mere recovery of tainted money from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. 28. In Suraj Mal vs. State (Delhi Administration), (1979) 4 SCC 725 , the Supreme Court took a view that mere recovery of tainted money from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The Court further held that mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. 29. In B. Jayaraj vs. State of A.P., (2014) 4 Scale 81 , the Supreme Court held that mere possession and recovery of currency notes from an accused without proof of demand will not bring home the offence under Section 7 as well as Section 13(1)(d)(i)(ii) of the PC Act, 1988. The relevant observations of the Supreme Court are reproduced as under: “…….Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive in so far as the offence under Section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.” 30. The aforesaid observations were reiterated and reaffirmed by the Supreme Court in the case of M. R. Purushotham vs. State of Karnataka (Criminal Appeal No.1578 of 2011 decided on 16th September, 2014). 31. From the enunciation of aforesaid law on the subject, it is clear that the proof of demand of illegal gratification and its voluntary acceptance by the accused is gravamen of the offence under Section 5(1)(d) of the PC Act. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof de hors the proof of demand would, thus, not be sufficient to bring home the charge under the aforesaid provision. Failure of the prosecution to prove the demand and voluntary acceptance of illegal gratification would, therefore, be fatal to the prosecution case against the accused who has been charged for offence under Section 5(1)(d) of the PC Act. 32. Failure of the prosecution to prove the demand and voluntary acceptance of illegal gratification would, therefore, be fatal to the prosecution case against the accused who has been charged for offence under Section 5(1)(d) of the PC Act. 32. As already noted, in the instant case the complainant has clearly stated that he voluntarily, without any demand, put the money in the pocket of the accused. The independent witness has only seen the complainant handing over the money to the accused whereas the shadow witness is not even sure about it. None of these witnesses has actually heard the accused demanding money from the complainant. In this view of the matter, it cannot be said that prosecution has proved beyond reasonable doubt the ingredient of demand and voluntary acceptance of the illegal gratification from the accused. On top of it, even the recovery of the tainted money from the possession of the accused is shrouded in suspicious circumstances. Thus, the trial court was not justified in raising presumption under Section 4 of the J&K P.C. Act against the appellant/accused. 33. Apart from the above, there are several other discrepancies in the present case, which have escaped the notice of the trial court while appreciating the evidence on record. According to the complainant, he was having only Rs.1500/- with him at the time when he reached the office of Vigilance Organization in connection with pre-trap demonstration and these 1500 rupees comprised of 15 currency notes of Rs.100/- each. The complainant has gone on to state that the officers of the Vigilance Organization exchanged it with four currency notes of five hundred rupees each. He reiterated the same in his cross-examination by defence. Even this discrepancy has not been cleared by the prosecution by putting the witness to cross-examination after seeking permission from the Court. Not only this, there is evidence on record to shows that when the money was handed over by the complainant to the accused, the Dy. SP caught hold of him by his hands and even when the complainant went inside the office of the accused, the complainant caught hold of his hand and made him to come downstairs. Not only this, there is evidence on record to shows that when the money was handed over by the complainant to the accused, the Dy. SP caught hold of him by his hands and even when the complainant went inside the office of the accused, the complainant caught hold of his hand and made him to come downstairs. Thus, the possibility of accused coming into contact with phenolphthalein smeared hands of the complainant and members of the trap team cannot be ruled out, which may have been the reason that when his hands were washed, the solution turned pink. 34. From the foregoing sequence of events which have come forth from the evidence on record, it becomes clear that even the trap laying team has not taken necessary precautions and followed the standard operating procedure in the matters governing trap. This makes the whole process of trap laying in the instant case suspicious and tainted. 35. For all the foregoing reasons, the impugned judgment does not deserve to be sustained. Accordingly, the appeal is allowed. The impugned judgment is set aside, as a consequence whereof, the accused stands acquitted of the charges. 36. The trial court record along with a copy of this judgment be sent back.