Criminal Appeal (SJ) No.74 of 1999 **** Against the judgment, dated 19.12.1998, passed by Sri Shri Prakash Rai, Special Judge, Vigilance, South Bihar, Patna, in Special Case No. 64 of 1987, arising out of Vigilance P.S. Case No. 64 of 1978 **** Jethan Prasad, aged about 68 years, son of late Ram Kishun Mahto, resident of village Churigawan, P.S. Wazirganj, district Gaya .. Appellant Versus The State of Bihar .. Respondent **** For the Appellant .. Mr. K.B. Verma, Adv. For the Respondent .. Mr. Rama Kant Sharma, Adv. (Law Officer for Vigilance) **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and the respondent (Vigilance). 2. The appeal was originally filed by the appellant, Jethan Prasad, regarding his conviction for offence under Section 5(1)(d) of the Prevention of Corruption Act, 1947, and sentenced to undergo rigorous imprisonment for one year with a fine of Rs.500/- and in default of payment of fine, further, to undergo rigorous imprisonment for two months. 3. However, during the pendency of the appeal, the appellant, Jethan Prasad, died and an interlocutory application, being I.A. No. 1410 of 2005, was filed, under Section 394(2) of the Criminal Procedure Code, by the widow and son of the deceased for 2 leave to continue the appeal in view of the fact that there is fine of Rs.5,00/- and the leave was granted by the Hon’ble Court by order, dated 13.12.2005, to conduct the appeal on behalf of the deceased and, hence, in that view of the matter the appeal does not abate and has been placed for hearing. 4. The case of the prosecution is that Upendra Narain Singh lodged a written report (Exhibit 5) in the office of the Vigilance Department at Gaya on 29.10.1978 alleging therein that he was posted as Panchayat Sevak in Deo Block and was under suspension. He has filed an application before the Collector, Aurangabad, that he is suspended since August, 1978, and has requested for withdrawing the suspension order on which the Collector disclosed to send a recommendation from the Block Development Office and Block Development Officer disclosed that he will right within 2 to 4 days and he met him several times, in this regard, but, he adjourned the same on one pretext or the other and lastly he disclosed that he has given the file to the Circle Inspector and on the recommendation of the Circle Inspector he will give his opinion. It is, further, alleged that on 06.10.1978 he met the Circle Inspector, Jethan Prasad, and Jethan Prasad demanded Rs.5,00/- for recommendation and disclosed that unless Rs.5,00/- will not be paid he will not recommend and, hence, prayed that in this regard proper action be taken. On the said a direction was given by Ramjee Prasad, Inspector of Police, to Indradeo Prasad, Assistant Sub Inspector of Police. Indradeo Prasad gave his report that on 28.10.1978 he went Deo and met with the complainant and went to the residence of Jethan Prasad and there 3 Jethan Prasad demanded Rs.500/- and agreed to do the job. The said report of Jethan Prasad, marked as Exhibit 3. On the report, a decision was taken for a trap, which was organized and raiding party was constituted under the leadership of Shiv Shanker Singh, the then Additional Superintendent of Police, and he proceeded on 09.10.1978 and asked the members of the party to reach at Inspection Bungalow of the Public Works Department on 10.11.1978. The members of the raiding party, constituting G.N. Pathak (not examined), G.R. Pathak (P.W. 10), Ramesh Chandra Giri, Inspector (P.W. 1), Shambhu Sharam, Special Magistrate (P.W. 9), Indradeo Prasad (P.W. 5), Daya Prasad (not examined), Ajit Kumar Singh (not examined), Surendra Prasad (tender) (P.W. 2), Ramjee Kuer (P.W. 11) and others. All the members of the party came at the Inspection Bungalow at about 07.00 a.m. on 10.11.1978. Upendra Narain Singh was also present. P.W. 6 introduced the informant with the members of the raiding party and the informant produced four G.C. notes of rupees one hundred denomination and a memo (Exhibit 4) of the said notes was prepared and the notes were returned to Upendra Narain Singh with a direction to give the notes to the accused, if there is demand of bribe. The raiding party, along with his members, reached Deo Bazar and the informant informed that the accused is at his house and then P.W. 6 directed the informant and the verifier, Indradeo Prasad, to go to the accused and he instructed the verifier that when the bribe is accepted, he will give the signal by taking his handkerchief on his mouth and they remained around the house of the accused. At about 10.00 a.m. the signal was given by the verifier and, thereafter, they reached to the 4 accused along with the Magistrate and others. It is, further, stated that two independent witnesses were called, out of whom one was Ram Chandra Prasad Verma, who is P.W. 4 and another was Deo Narai Mukhiya, who is said to have been dead and could not be examined and it is asserted that before the independent witnesses Rs.400/- was recovered from the right hand of the accused and the said notes were verified from the number of the notes mentioned in the memo and the seizure list prepared, which has been marked as Exhibits 1 and 2/1. The witnesses, P.Ws. 1, 4, 5, 6 and 7 supported the prosecution case. 5. The trial Court, taking into consideration the evidence of the witnesses that the witnesses have supported the prosecution case regarding the demand and acceptance of the bribe and Rs.400/- were recovered from the hand of the accused/appellant, convicted the appellant. 6. No witness has been adduced by the defence. However, the defence of the accused person, as appear from the trend of cross examination and the statement under Section 313 of the Criminal Procedure Code that he was not posted as Circle Inspector, Deo, on 10th November, 1978. He had already been transferred two months prior to the occurrence and denied the demand of Rs.500/- as bribe and has denied that it is not a fact that the complainant has filed any petition before the Collector or the Collector has ever asked any report from the Block Development Officer nor the Block Development Officer has called for any report from the Circle Inspector and, further, that during the raid. Neither the phenolphthalein powder was applied on the G.C. notes nor the 5 carbonate solution was used and no money was recovered from the hand of the accused/appellant before the witnesses and the witnesses have deposed falsely, specially P.W. 4 and the independent witness, that the accused has falsely been implicated for the reason that the accused was not given the charge to P.W. 4, who had been transferred to the station in place of the accused and no money regarding the recommendation has ever been demanded. 7. The learned counsel for the appellant, however, challenged the order on the ground that the genesis of the occurrence that the demand of the said bribe was made for the reason that appellant was not sending report and he has denied that there was nothing before him to send a report and, further, denied the prosecution case that the Collector has never asked any report from the Block Development Officer nor the Block Development Officer has called for any report and, since, the appellant has challenged this fact that the prosecution has not been able to prove the charge or brought on record any evidence or documentary evidence nor any investigation conducted, in this regard, was brought on record and, hence, contended that genesis of the occurrence has, itself, not been established. It has, further, been contended that the requirement of the law that while conducting the raid, two independent witnesses are required to be present at the time of raid or seizure. However, two persons chosen as an independent witnesses, out of whom one has been examined as P.W. 4 is the person who had grievance against the appellant as he had been transferred to the station in place of the appellant, but, the appellant was not given charge and, hence, was 6 well interested in the conviction of the appellant and the second independent witness, the Mukhiya, Deo Narain, has not been examined on the ground that he is dead. It has, further, been contended that the procedure prescribed that currency note, which are used for the purpose of trap are treated with phenolphthalein powder so that handling of such currency note can be detected by the chemical process and the Court has not to depend on oral evidence to foster the science oriented detection of crime and, hence, contends that the safeguards proved to the appellant for conducting of the trap has not been observed has caused prejudice to the appellant and, hence, the conviction is not sustainable. 8. The learned counsel for the Vigilance that when the trap has been organized and the demand and acceptance of the money has been established by an officer of the trap party, hence, it shall presume that the prosecution has proved the case. Hence, on the respective submissions of the parties the question for consideration whether the conviction against the appellant can be recorded under the facts and circumstances. 9. However, taking into consideration the evidence in the light of submission P.W. 6 is the person, who conducted the raid. He directed the raiding party to reach at the Inspection Bungalow along with the raiding party. The complainant was introduced and the complainant produced four notes of Rs.100/- denomination for which the memo prepared. The complainant was instructed to give the money, if there is demand by appellant, a direction given to the watcher to give the signal after the money demanded is accepted by 7 the accused. Direction had been given to the informant to hand over the said notes, if the demand of bribe is made by the appellant. The watcher and the complainant proceeded to the appellant that after the demand the signal was given by the watcher. Then the raiding party entered and found notes of Rs.400/- in the hand of the appellant. Thereafter, the two witnesses were called, the Magistrate rushed to the accused. Admittedly, the two independent witnesses were not witness to the demand P.W. 7 is the informant, himself, and he can not be said to be on independent witness. Two witnesses who are the witness of the demand and acceptance are either the complainant himself who has a grievance and a police witness, P.W. 5, the verifier or the watcher. These two witnesses are the witnesses of passing of the bribe because the other witnesses reached to the place after the signal and amount was passed on. More over, the two independent witnesses, one has been stated to be dead and not been examined, but, other alleged independent witness is P.W. 4. However, P.W. 4, in his evidence, has stated that he was transferred to Deo Block on the post of Circle Inspector and joined on 17.10.1978 in place of appellant, Jethan Prasad. He has, further, stated though he had joined at Deo, but, Jethan Prasad was not giving him charge on some pretext or the other. He has deposed that the Magistrate and the Additional Superintendent of Police called him and disclosed that they have caught his predecessor taking the bribe and then he went and saw that the person having caught hold is the accused/appellant, Jethan Prasad. He has, further, stated that on the date the accused was caught red handed till that date he had not been given the charge of Circle 8 Inspector and the accused never gave him the charge. He has orally stated to the Circle Officer that the accused is not giving the charge. He has, further, stated that the memo of G.C. note was not prepared before him. He has, further, stated that he has not seen Jethan Prasad taking money and has denied the suggestion that he has deposed falsely as the accused has not given him charge and no money was recovered. Hence, from the evidence of this witness, it is apparent that he was not a witness to the taking or acceptance of money or passing of the bribe money. 10. However, it is difficult to hold that P.W. 4 is an independent witness. It is relevant to mention that the safeguard provided in trap cases regarding demand, acceptance and seizure of bribe amount in presence of two independent and respectable witnesses. However, under the facts and circumstances the said safeguard provided has completely been ignored. The independent witness examined as P.W. 4 can not be held to be an independent witness. It is important to mention that the public servant against whom the trap is conducted must be provided with the safeguard by conduct of trap amonst two independent and respectable persons so that evidence in regard to the demand, acceptance and seizure inspire confidence in the mind of the Court and the Court is not left with any doubt as to whether or not any money was paid to the public servant by way of bribe and this view is supported by the decision reported in A.I.R. 1976 S.C., 91 (Raghbir Singh Vrs. State of Punjab). However, taking into consideration the fact that two independent witnesses before whom the seizure is said to have been made were 9 contacted before the conduct of the raid nor were the witnesses to the giving and taking of the bribe, but, were only called upon after the passing of the alleged bribe money, alleged seizure of money from the accused and, more over, P.W. 4 is himself a person interested in conviction as he had a grievance against the appellant as the appellant was not giving him the charge on his transfer to the station and had to take charge from the appellant. 11. However, it is alleged that the demand of money was made as the appellant had to give a report. However, investigating officer, who conducted the investigation, has not been examined and it is said that he is dead. P.W. 7 asserted that a demand was made for giving the report, but, P.W. 9, the Magistrate, has stated in his evidence that he has not seen any paper regarding the suspension of the complainant. He has, further, stated that he had been to the office of the Block Development Officer, Deo, but, he did not asked the Block Development Officer that whether any paper has been called for with regard to the suspension. There is no evidence on record whether the complainant was suspended or any report was called for from the Collector to the Block Development Officer nor there is any evidence that the Block Development Officer has called for any report from the Circle Inspector and, hence, the genesis of the occurrence, itself, having not been established by the prosecution though it has been challenged specifically by the appellant. 12. However, so far the recovery of the money alleged to have been given him as bribe is concerned, P.W. 6 has stated that on the notes there was no signature and the money was kept by the 10 appellant in his hand, itself, has not been thrown, nor kept in pocket also appears to be unreliable. The note recovered was not besmeared with phenolphthalein powder and carbonate solution not adhere to. P.W. 9 has stated that he was aware that a trap is arranged. He has, further, stated that no signature of the complainant has been taken on the G.C. notes and the notes were not dipped in the chemical solution and they had not washed the hand of the accused by the sodium carbonate solution and, hence, from the evidence of the witness, it appears that neither the said notes for which the memo was prepared were signed by the witnesses or the complainant or the raiding party nor the said notes were besmeared with the phenolphthalein powder or any chemical nor the sodium carbonate solution test was performed after it’s recovery. 13 Hence, taking into consideration, the entire facts and circumstances, since, the genesis of the case whether the appellant has to give a report regarding the suspension of the complainant on direction of the Block Development Officer has not been established by cogent, reliable and unimpeachable evidence and no documentary evidence produced nor this aspect was verified by investigating agency and is nothing except the evidence of the complainant when the same has been challenged by the appellant. Hence, the basis of the case that the appellant was required to give a report for which he had demanded a bribe has not been established. Further, the fact that the safeguard provided that two independent witnesses are required to be called for conduct of the trap and seizure of the notes, however, out of the two independent witnesses one was P.W. 4, who was examined 11 had grievance against the appellant as he was transferred to the place and has to take charge from the appellant, but, the appellant was not giving him the charge and, hence, the said witness, P.W. 4, can not be said to be an independent witness and, hence, the safeguard provided has not been adhere to. Further, the notes for which the memo was prepared for the handing over as bribe was neither signed nor besmeared with the phenolphthalein powder and chemical process which give a protection to public servant that the Court does not have to depend upon the oral evidence, which is of the dubious character for deciding the fate of public servant. 14. Hence, having regard to the facts and circumstances, since the procedural safeguard provided by choosing the independent witnesses and use of phenolphthalein powder have not been adopted has caused prejudice to the appellant, hence, the appellant is entitled to the benefit of doubt. I give the appellant the benefit of doubt and hold that the prosecution has not been able to prove the case beyond reasonable doubts. 15. The order of conviction and sentence, recorded by the lower Court, is hereby set aside and the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 19th day of December 2011, A.F.R., S.A.