1 CR. APP (SJ) No.181 of 1994 ******** Against the judgment, dated 09.06.1994, passed by Sri P.N. Yadav, Special Judge (Vigilance), South Bihar, Patna in Special Case No. 43 of 1986 ******** Surendra Prasad @ Surendra Singh son of late Brahamdeo Narain Singh of village- Palhey kalan, P.S. Paton, District-Palamu, at present posted at Maker, P.S. Maker, District Saran, as Assistant Sub-Inspector of Police . …………Appellant. Versus 1. State Of Bihar 2. Director General of Police (Vigilance), Bihar, Patna. …………Respondents ******** For the appellant: Mr. Vinay Kirti Singh, Advocate For Vigilance: Standing counsel for the respondents. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. The appellant has been convicted under Section 161 of the Penal Code as well as under Section 5(2) (d) of the Prevention of Corruption Act, 1947(herein referred to as the Act) and have been sentenced to undergo rigorous imprisonment for one and a half years and to pay a fine of Rs. 500/- and in default of payment of fine to undergo rigorous imprisonment for two months. The prosecution case is that one Vijay Kumar P.W.12 filed a petition on 08.12.1977 that he has got agricultural land in village Maluka P.S. Laxmipur district 2 Munger. Some co-villagers have harvested his paddy crop by force. He has lodged a case under Section 379. During investigation police initiated a proceeding under Section 107 & 144. Even then the co-villagers are going on cutting the crops and destroying. He reported the fact to the A.S.I. Surendra Singh. But Surendra Singh, demanded rupees two hundred for filing the charge sheet in a case under Section 379 and submitting a report about the breach of peace. But he is not willing to pay the amount. Complaint was filed to the D.I.G, Vigilance. On the complaint a watcher was appointed for verification of the alleged allegation. The watcher went along with the complainant to the Malaypur Khari on 10.12.1977 and met Surendra Singh. The informant introduced the watcher with accused Surendera Singh. The accused demanded Rs. 200/- for submitting charge sheet and assured that charge sheet shall be submitted on the date, the money will be paid. The watcher submitted his report on 12.12.1977 which has been marked as Exbt. 4 & 4/1. S.P.-cum- Deputy Secretary Cabinet, Vigilance Department ordered to conduct a raid under Dy. S.P., Begusarai, and a raid team was organized. 3 The raiding party reached Jamui and met at the Jamui railway station. The Dy. S.P. introduced the complainant with the raiding party. Vijay Kumar the Complainant disclosed about the demand of illegal gratification of Rs. 200/- by Surendra Singh, A.S.I. Two notes of hundred rupees denomination was produced by complainant. The memorandum of the notes were prepared and the Dy. S.P. strictly instructed and directed to pay the notes only when the same is demanded by the Surendera Singh as bribe. Thereafter, the notes were handed over to the complainant Vijay Kumar and the complainant and other witnesses signed on the memorandum as well as the two independent witnesses also signed. It was instructed that the watcher P.W. 10 Rampravesh Tiwari will follow the complainant and after the demand of the bribe and payment of the same P.W. 10 will give the signal by putting the Chadar on his shoulders. The A.S.I. Bharat Sharma will relay a signal. The other members of the raiding party were directed to remain on the platform to watch and rush on signal. The distance of the station and the Malaypur Khari was stated to be about 150 yards. 4 However, when the complainant and P.W. 10 the watcher proceeded for Malaypur Khari, they met Surendra Singh on the platform itself and this was intimated to the raiding party. The Surendra Singh along with the complainant and the watcher P.W. 10 came on the station and they entered into the 1st class waiting room at about 10:00 A.M. and sat there. The appellant demanded and the complainant paid two hundred rupees of the said notes of hundred denomination. The watcher signalled by putting the chadar on the shoulder at about 10:50 A.M. coming out from the 1st Class waiting room. The raiding party entered into the waiting room at about 10:50 A.M. The Assistant Station Master of the Jamui and one more person were the independent witness. The raiding party and the Dy. S.P. identified him and gave their search and then searched the accused Surendera Singh and seized two notes of hundred rupees denomination from the right upper pocket of the dress of the accused. The number of two notes of hundred rupees denominations was compared with the number mentioned in the memorandum and was found to be tally. The seizure list was prepared and one of the seizure list was given to the accused and the raiding 5 party and subsequently the charge sheet was submitted. The seizure list has been marked as Exhibit- 2. The signature of the accused was recorded on the seizure list marked as Exbt. 2. The defence of the accused is completely denial of the occurrence and assertion that the money was not recovered from the pocket of the appellant and the phenolphthalein was not used and the two notes which were recovered were not besmeared with phenolphthalein powder and fingers of the accused was not dip in any carbonate solution and further assertion that neither he demanded nor accepted the bribe and prosecution has not been able to prove the charges. It has further been contended that the charge sheet has been submitted in the case under Section 379 much prior to the filing of the complaint and nothing was pending on the date of the complaint. Nothing was pending before the appellant for giving any report under Section 107 or 144 or filing any chargesheet and so there is no question of demand of bribe. The trial Court took into consideration the fact that complainant filed the cases of crop cutting which is in the 6 nature of agrarian trouble and the accused was in a position to intend help to the complainant not only during pendency of the case but even subsequently as the complainant was an absentee owner of land and hence accused had motive to accept the bribe. The trial Court further take into consideration the evidence of P.W. 10 & 12 about the demand and acceptance of Rs. 200/-, the evidence of P.W.-3, 4, 6, 7 & 8 having supported the prosecution case about recovery of illegal gratification from the possession of the appellant. The trial Court further took into consideration Section 4(1) of the P.C. Act, that if recovery of bribe is proved then it shall be presumed actual demanded and acceptance of bribe. Hence, convicted the appellant even though taking notice of fact that independent witnesses have not supported the prosecution case and a phenolphthalein test not abide by. However, the trial Court accepted the argument of the prosecution that at the period phenolphthalein not used in Bihar. The learned counsel for the appellant however challenged the impugned order on the ground that the finding of fact is not based on proper consideration of the 7 material on record and proper appraisal of the evidence and the fact and circumstances of the case has not been properly considered for coming to a proper conclusion on fact whether the appellant was in fact liable to be prosecuted and convicted. It has further been contended that there is no dispute that the phenolphthalein powder has not been used by the Vigilance Department while conducting the trap and Vigilance Department was duty bound to use phenolphthalein powder to secure the acceptance and recovery of bribe. It is further been contended that there was no motive to take bribe as the charge sheet in case for offence under Section 379 has already been submitted report of proceeding under Section 144 & 107 has already been given when no occasion to accept the bribe for giving charge sheet and hence the entire ground on which prosecution case is based is false. It has also been contended that the independent witness has not come to support the prosecution and hence the safe guard provided for conducting the trap has not been fulfilled. The learned counsel for the appellant relied upon a decision reported in A.I.R. 2005 S.C. 3123 and A.I.R. 8 1976 S C 91. The learned counsel for the State however contends that the demand and acceptance of the money have been proved and the money recovered from the possession of the appellant and then there is a presumption under Section 4 of the Act that the bride was demanded and received and reliance can be placed upon the witness who has been examined to prove the fact and non-examination of the independent witness may not be ground to disbelieve the prosecution witnesses examined and supported the prosecution case. However, taking into consideration of respective submission the question for consideration is neither the prosecution proved the demand and acceptance of illegal gratification to bring home the charges. The prosecution case that complaint filed for demand of illegal gratification for submission of charge sheet with regard to case of crop cutting for offence under Section 379 filed by complainant and giving report in a proceeding under Section 144 and 107. P.W. 10 is watcher and P.W. 12 is the complainant who are witnesses of demand and acceptance of illegal gratification. P.W. 3, 9 4, 6, 7 & 8 are witness of recovery of the bribe however the independent witnesses have not come to support the prosecution case. However, P.W.-6 in his evidence has stated that in case for the offence under Section 379 as well as in proceeding under Section 144 and 107 the final form and report had already submitted about two month prior to the filing of the complaint. However, if the final form was already filed in a case filed by complainant for offence under Section 379 and report submitted in proceeding under Section 144 & 107 then there was no occasion to demand illegal gratification by the accused for submitting the chargesheet and give the report under Section 107 and 144. Hence, the prosecution case that bribe demanded for filing chargesheet falls to ground and weaken the foundation of whole edifice of the prosecution case. The submission of the final form two month prior to lodging of this case itself indicate that the complainant had a grudge against the accused. The trial Court did not take into consideration this fact but make out a third case that it was a case of agrarian trouble which may have continued and the bribe was given and taken to help in future as an 10 anticipation that further case may be lodged. However, this view is not at all acceptable. P.W. 10 is the watcher who is non else than member of raiding party and is an Assistant Sub-Inspector. It cannot be lost sight of the fact that his intention may be in succeeding the trap. Hence, cannot be said to be a reliable witness and his evidence cannot be said to be free from blemish. Two independence witnesses were engaged in raid but non of them has been examined to unfold the truth about the trap and recovery. However with regard to one of the independent witness it was stated that he dead but the other was even not produced and no reason has assigned for his non production as a witness. It is relevant to quote a passage out of Para-9 from decision reported in A.I.R. 1976 SC Page 96:- “………It is indeed a sad commentary on the functioning of the Anti Corruption Department in this case that the only safe guard against false implication in the offence of bribery which is provided by the presence of independent and respectable witnesses, was completely ignored and two witnesses were taken, one of whom was a relative of the Jadish Rai 11 and other a sweeper in the whole time employment of the Police. We must take this opportunity of impressing on the officers functioning in the Anti- Corruption Department to insist on observing this safeguard as zealously and scrupulously as possible for the protection of public servants against whom a trap may have to be laid. They must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe….” Admittedly, the phenolphthalein powder was not used while conducting the trap. The appellant has challenged the demand, acceptance and even recovery of the money from his pocket. In absence of phenolphthalein test evidence regarding the recovery of money from pocket is not confirmed by phenolphthalein test. In this regard it is relevant to quote a passage from Para-11 of the decision reported in A.I.R. 1976 S.C. Page 98:- “…..We may take this opportunity of pointing out that it would be desirable if in cases of this kind where a trap is laid for a public servant, the marked 12 currency notes, which are used for the purpose of trap, are treated with phenolphthalein powder so that the handling of such marked currency notes by the public servant can be detected by chemical process and the Court does not have to depend on oral evidence which is sometimes of a dubious character for the purpose of deciding the fate of the public servant. It is but meet that science oriented detection of crime is made a massive programme of police, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing cruder can retard forensic efficiency than swearing by traditional oral evidence only, thereby discouraging liberal use of scientific research to prove guilt….” However, the learned District Judge did not take into consideration the violation of the two safeguard the independent witnesses not been examined and use of the phenolphthalein not adhered to and accepted the reasoning that phenolphthalein was not used in Bihar is devoid of any merit. The trial Court also did not properly appreciated the fact that the final from had already submitted prior to the filing of the complaint and the complainant had a grudge against the accused. It is not the 13 case of the appellant that illegal gratification was given to help them in future of any other agrarian trouble and hence the reasoning that bribe was given and taken to help in any other future litigation is making out a third case which is not acceptable. Trial Court assertion that the money was recovered and presumption of Section 4 of the Act is required to be there to hold guilt and reliance have been placed on A.I.R. 1980 Supreme Court that even the evidence of the Police in a trap case can be reliable for holding the demand and acceptance of bribe. In the said decision reported in A.I.R. 1980 Supreme Court it has been held that an evidence of police officer may in a trap case may be found to be entirely trustworthy and in such a case it need not required to seek any corroboration. However, it has also been observed that it is a matter of appreciation of evidence and on such matter there cannot be any hard and fast rule nor can there be any precedential guidelines. It has further been held that mere recovery of money from the pocket of the accused is not sufficient to prove the acceptance of bribe and the recovery of money coupled with other circumstances to be considered for holding that the 14 accused were receiving illegal gratification from the complainant and then only the Court would entitled to draw the presumption under Section 4(1) of the Prevention of Corruption Act. However, under the facts and circumstances of the case at hand the fact that bribe demanded for filing chargesheet in case lodged by complainant for offence under Section 379 and it is alleged that the accused demanded bribe for submitting chargesheet. So the complainant reported the Vigilance Authority but it has come in evidence that the final form had already submitted in the case two months prior to filing of complaint and hence not only that there was no motive to demand bribe but the complainant had grudge against the appellant. P.W.-10 was the member of raiding party and further the fact that no independent witness come to support the trap or recovery and the phenolphthalein admittedly not used as trap are the circumstance in favour of the appellant and hence the recovery of money under fact and circumstance cast a serious doubt as safe guard provided not been have not observed for laying the trap. Hence, it is not safe to draw a presumption under Section 4(1) of the P.C. Act. 15 Hence, I find and hold that the prosecution has not been able to prove the demand and acceptance of bribe and the appellant is entitled for the benefit of doubt. Hence, I give the appellant the benefit of doubt and the order, conviction and sentence recorded by the learned lower Court is hereby set aside and the appeal is allowed. The Patna High Court The 27th Day of September, 2011 N.A.F.R./Saif/- (Gopal Prasad, J.)