1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR. JUDGMENT State of Rajasthan Vs. Prabhati S.B.CRIMINAL APPEAL NO.566/1997 Date of Judgment ::: 24th July, 2008 PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. B.K. Sharma, Public Prosecutor, for the State. Mr. Asu Singh for the accused respondent. BY THE COURT: Challenge in this appeal is to the judgment dated 6th May, 1996 whereby the Special Judge (Prevention of Corruption Cases), Jaipur has acquitted the accused-respondent Prabhati in the offences under Section 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as the 'Act of 1988'). 2. The facts necessary for the disposal of this appeal succinctly stated are that on 19th February 1992, the complainant PW/2 Shyama Ram filed a written complaint Ex.P/3 before Dy.S.P. RSBI, Sikar PW/10 Ridhkaran stating that he was a student of Government High School, Purana Bas, Neem Ka Thana and passed VIII class in the year 1974. He needed the duplicate copy of transfer certificate in connection with an employment in Noida Industrial Area as the original and one duplicate transfer certificate, which he had obtained earlier, had set on fire. The complainant 2 met the Head Master of School Shri Prabhati who solicited for a bribe of Rs.50/- in lieu of giving a second duplicate copy of transfer certificate which he did not intent to pay. PW/10 Shri Ridhkaran formulated a scheme for entrapping the accused Prabhati and co-opted two independent witnesses PW/5-Nand Kishore and PW/9 Surja Ram. The complainant made available two currency notes each of Rs.20/-and one currency note of Rs.10/- to the Dy.S.P. who applied phenolphthalein powder thereon and returned to the complainant for handing over to the accused. Having undergone the necessary process of trap preparation, they went to School situated in Purana Bas Neem Ka Thana and on getting the Signal of the complainant, nabbed the accused Prabhati red handed with the same initialed currency notes. The Police registered the case on the report of PW/10 Ridhkaran Dy.S.P. and having collected the necessary documents on record and the statements of the witnesses etc. sent the accused for trial to the Court. 3. The accused appellant Prabhati was charged for the offences under Section 7 and 13(1) (d) read with Section 13(2) of the 'Act of 1988' who pleaded not guilty and claimed trial. The prosecution has examined as many as twelve witnesses to prove its case. The accused in his explanation under Section 313 of Cr.P.C., claimed innocence. On completion of trial, the accused was acquitted of the charges as indicated hereinabove. 3 4. Heard the submissions advanced by the learned Public Prosecution appearing for the State, learned counsel for the accused respondent and with their assistance scanned the relevant material available on record. 5. The learned Public Prosecutor has contended that the recovery of 50 rupees is very well proved from the evidence of prosecution witnesses and the learned trial court has erroneously disbelieved the statements of the trapping party. He has further contended that treating the decoy Shayma Ram by the learned trial Court to be a man of criminal back ground and thereafter disbelieving his testimony on this ground was not proper. It is against the established principles of criminal jurisprudence. The appreciation of evidence made by the learned trial Court is not apt and in accordance with law, hence, the impugned judgment deserves to be set aside and the accused respondent may be convicted. 6. Per contra, the learned counsel for the accused respondent has simply urged that the impugned judgment of the lower Court is cogent and well merited. Both the independent witnesses have not supported the prosecution story. The defence which the accused respondent succeeds in proving on the basis of preponderance of probability, has rightly been appreciated by the lower Court and the impugned judgment does not suffer from any 4 infirmity, as such, the State appeal deserves to be dismissed. 7. In the case of Man Singh Vs. Delhi Administration AIR 1979 SC 1455 the Hon'ble Supreme Court has observed: “it is well settled that in such cases the accused is not required to prove his defence by the strict standard of proof of reasonable doubt but it is sufficient if he offers an explanation or defence which is probable and once this is done, the presumption under Section 4 stands rebutted”. 8. In the case of Banshi Lal Yadav Vs. State of Bihar Cr. L.R. SC 1981, 215 the Hon'ble Supreme Court has held: “therefore, the statement of the accused by itself in the facts and circumstances of this case and especially the language used cannot provide the necessary factual basis or fact situation which must exist before presumption can be raised”. 9. In this case, the accused denied having accepted bribe and stated that he was the victim of malevolent act of Jaushad in thrusting marked currency notes in his pocket. The Hon'ble Apex Court observed that this statement of the accused will not show acceptance of illegal gratification and the High Court was in error in such a situation, raising the presumption under Sec.4. 10. Having reflected over the submissions advanced by both the parties and getting on the 5 entire prosecution evidence, it is found that both the co-opted and independent witnesses PW/5 Nand Kishore and PW/9 Surja Ram have not supported the prosecution case. These witnesses, in their deposition have stated that the accused clearly denied having accepted the bribe amount of 50 rupees. As per both these witnesses, the accused furnished the explanation before PW/10 Ridhkaran that he told the complainant that he would not take money and to take it back but he forcibly thrusted the currency notes in his pocket. PW/5 Nand Kishore has stated that at the time of recovery, the accused was crying and saying that he had never demanded money. It is the decoy who forcibly thrusted money into his pocket. Thus, although both the independent witnesses have been declared hostile by the prosecution yet their evidence cannot be jettisoned so far as it relates to the explanation immediately furnished by the accused. There is one more witness PW/7 Jagdish Prasad who was posted as a Teacher in the School on the day of occurrence. He has also not supported the prosecution case and turned hostile. As per the statements of this witness also, the accused declined to take the money from complainant Shyama Ram. 11. So far as the witnesses PW/3 Kishori Lal, PW/6 Chhtrasal Singh, PW/12 Sagar Mal PW/8 Baldau, PW/9 Surja Ram and PW/10 Ridhkaran are concerned, they have stated the initialed currency 6 notes to have been recovered from the pocket of the trouser of the accused but the report Ex. P/3 which was prepared on the spot does not bear the signatures of PW/3 Kishori Lal, PW/6 Chhatrasal Singh, PW/8 Baldau and PW/12 Sagal Mal, which casts doubt about their presence at the time of recovery of the tainted currency notes from the possession of the accused respondent. 12. It is now very well settled that in trap case, the accused is not required to prove his defence by the strict standard of proof of reasonable doubt but it is sufficient, if he offers an explanation or defence which is probable before presumption can be raised. The burden is on the prosecution to prove that the accused has accepted or obtained or has agreed to accept or attempted to obtain for himself any gratification other than legal remuneration etc. If the accused when examined under Section 313 of Cr.P.C with reference to the circumstances appearing against him in evidence, only that currency notes were thrust in his pocket, that statement by itself is sufficient without anything more is not sufficient to satisfy the necessary ingredients of Section 4 (1) of the Act that accused accepted or obtained or has agreed to accept or attempted to obtain any gratification other than legal remuneration so as to be able to raise the presumption. Acceptance or obtaining or agreeing to accept or attempting to obtain is a voluntary act. The accused in his 7 explanation has unequivocally submitted that neither he demanded any bribe nor accepted any bribe from the complainant Shayma Ram. On the contrary, he forcibly thrust the currency notes into the pocket of his trouser. He told him categorically that he would never take money but inspite of that he per force thrusted the money in his pocket. Thus, in the explanation of the accused, this element of voluntary acceptance is totally missing. Not only this, the accused has furnished his written statement and examined DW/1 Shish Ram, DW/2 Hanuman Prasad DW/4 Hari Singh in defence who were present in the school at the time of trap proceedings. 13. I do not find any reason to disbelieve the defence of the accused which he has succeeded in establishing by preponderance of probability. The learned trial Court has examined the evidence of the prosecution witnesses in detail and appreciated their testimony in the light of the legal provisions and the judgments of the Hon'ble Supreme Court and this Court and further has arrived at the conclusion that the offence of soliciting for bribe of 50 rupees and its acceptance for any motive or reward was not proved beyond reasonable doubt. The judgment of the learned trial Court is cogent and well merited. It suffers from no infirmity, I am in unison with the finding of acquittal of the learned trial Court and, in my firm view, the impugned judgment calls for no intervention. 8 14. For these reasons, the criminal appeal filed by the State being devoid of merits stands dismissed. (MAHESH BHAGWATI), J. PCG