SBCr.A.No.670/96 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR. JUDGMENT Date : 05.09.2008 (State of Rajasthan Vs. Bishan Singh) S.B.CRIMINAL APPEAL NO.670/1996 PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. B.K. Sharma, Public Prosecutor for the State Mr. R.M. Khandelwal, for the accused-respondent. Reportable BY THE COURT: Accused-respondent Bishan Singh was put to trial before Special Judge (Prevention of Corruption Cases), Jaipur, who vide judgment dated February 13, 1996 acquitted the respondent in the offences under Sections 7 and 13 (i)(d) read with Section 13 (2) of Prevention of Corruption Act, 1988 (hereinafter referred to 'Act 1988'). 2. The nub of the appellant's story is:- That Shri Bali Ram resident of Jaisinghpura gave a gift deed of his land in favour of his adopted son PW-1 Prem Singh who had got the mutation done in his name. It is alleged that the complainant Prem Singh, thereafter, met Patwari of his area, Bishan Singh for the mutation with regard to the land situated in Halka Bharu. In the beginning, the concerned Patwari Bishan Singh evaded his request but after many meetings, he solicited for a bribe of Rs. 100/-. The complainant Prem Singh had obtained a decree from the court and he wanted the mutation of the land in his name on the basis of compromise decree. On September SBCr.A.No.670/96 2 3, 1989, when the complainant Prem Singh again met the accused Bishan Singh, he repeatedly solicited for a bribe of Rs. 100/- explaining that out of it Rs. 50/- would be paid to Land Record Inspector (Girdawar). Since the complainant did not intend to give the bribe money to the accused and wanted an action to be taken against him, he submitted a written complaint Ex.P/1 before Dy.S.P., RSBI, Sikar. PW-11 Shri Phool Chand, the then Inspector RSBI, Sikar formulated a scheme for entrapping the accused Bishan Singh. He co-opted two independent witnesses PW- 3 Shri Bhivaram and PW-4 Bhagirath Mal. The complainant Prem Singh gave three currency notes each of the denomination of Rs. 20/- and two currency notes each of the denomination of Rs. 10/- whereupon, Shri Phool Chand got the phenoptheline powder applied and returned the same to the complainant with the direction that he would give these currency notes, on demand, to the accused Bishan Singh. The trap party accordingly reached the office of Tehsildar, Jhunjhunu where in a room, the accused Bishan Singh was sitting along with other patwaris who had assembled to attend the meeting. The complainant gave the settled amount to the accused who kept them in his pocket. On getting a signal from the complainant, the trap party caught the accused Bishan Singh red handed with the currency notes albeit he had thrown them which were collected from the floor by PW-4 Shri Bhagirath Mal at the instance of Phool Chand. Having completed the usual proceedings of trap, PW-11 Phool SBCr.A.No.670/96 3 Chand recovered the bribe money vide memo Ex.P/3, lodged the FIR Ex.P/10, recorded the statements of the witnesses under Section 161, collected the relevant documents, drew necessary memos and obtained a sanction Ex.P/6 from District Magistrate, Jhunjhunu to prosecute the accused and after usual investigation sent the accused to the competent court for trial. 3. The accused Bishan Singh was indicted for the offences under Sections 7 and 13 (1)(d) read with Section 13 (2) of Act 1988, who pleaded not guilty and claimed trial. In order to further its version, the prosecution examined as many as 13 witnesses. In his explanation under Section 313 of Cr.P.C. the accused claimed innocence and submitted that neither he solicited for a bribe of Rs. 100/- nor obtained bribe from the complainant Prem Singh. Since Virender Kumar had filed a case against the complainant Prem Singh which he reported to Tehsildar who had ordered against him, the decoy got annoyed with him and for this reason, he implicated him in this case. The accused has produced four witnesses in defence. On completion of trial, the accused was acquitted by the court as indicated hereinabove. 4. Heard the learned Public Prosecutor appearing for the State, learned counsel for the accused-respondent and with their assistance scanned the material available on record. 5. Learned Public Prosecutor has contended that the recovery of Rs. 100/- is very well proved from the evidence of prosecution witnesses and the learned trial court has erroneously disbelieved the statements of PW-1 Prem Singh, PW-3 Bhivaram and PW-11 Phool Chand. He has further contended SBCr.A.No.670/96 4 that the decoy Prem Singh unfolded all the layers with regard to the demand of bribe money before the court in his deposition and there is no reason to disbelieve his testimony. The appreciation of the 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 should 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. The written explanation of the accused has rightly been appreciated by the lower court and there being no infirmity in the impugned judgment, the state appeal is liable 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 SBCr.A.No.670/96 5 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 entire prosecution evidence, it is noticed that PW-4 Bhagirath Mal who is an independent witness, has not supported the prosecution case and turned hostile. In his deposition, he has stated that the accused had thrown the money on the floor which he collected at the instance of PW-1 Phool Chand Inspector. Likewise, PW-3 Bhivaram, albeit he has not turned hostile but has admitted this fact that the accused had thrown the money on the floor and he saw the currency notes lying on the floor. Though, the complainant PW-1 Prem Singh also admitted in his searching cross-examination that the accused threw the money on the floor but he has also stated that the accused threw money only when he was caught by the Dy.S.P. of Anti Corruption Department. Contrary to their statements, PW-11 Phool Chand has stated that on getting the signal from the complainant, he reached at the meeting hall where the accused Bishan Singh was sitting along with 10-12 other patwaris. He gave his introduction to the accused and asked him about obtaining a bribe money of Rs. 100/-, whereupon, the accused got flustered and took out Rs. 100/- currency notes from the pocket of his shirt and threw on the floor. Shri Bhagirath Mal collected these currency notes from the floor at his instance. Learned trial court has critically analyzed this point in great details. Though, the learned trial court has not given a definite finding in this regard but the detailed SBCr.A.No.670/96 6 analysis reveals the bribe money having been thrown by the accused when the same was put by the complainant in his pocket. 11. The complainant PW-1 Prem Singh has also stated that he quietly went to the accused where he was sitting in a meeting hall along with other patwaris and slipped the amount in his pocket. He has also stated to have conversed with the accused with regard to mutation of land but this fact has not been corroborated by any other witness present in the hall. 12. Now, turning to the fact of accepting or obtaining illegal gratification of Rs. 100/- as a motive or reward for entering the mutation proceedings with regard to the land in question, it is noticed that no application of the complainant was found and recovered from the possession of the accused, which is alleged to have been given 'Dast' by the complainant to him. It is revealed from the evidence of the complainant that he filed an application before Tehsildar who marked this application to the accused Bishan Singh. The complainant took this application 'Dasti' and handed over to the patwari, but no such application was found in the possession of the accused nor the same is found to have been recovered from him. On the contrary, it is noticed that in the Revenue record pertaining to the Pali Ram that Girdawar Nathu made an adverse entry in mutation register Ex.D/2 against the complainant stating that the entries of land record was not tallying with the compromise decree. On the basis of report of Girdawar Nathu Singh the mutation of complainant was cancelled by Naib Tehsildar. This act of Girdawar Nathu Singh and Naib Tehsildar caused annoyance to the complainant who ultimately formulated a scheme to SBCr.A.No.670/96 7 get the accused entrapped. In the absence of any matter pending with the accused, it cannot be held that the accused might have accepted illegal gratification of Rs. 100/- as a motive or as a reward for doing any due or undue favour to the complainant. 13. With regard to demand or soliciting for a bribe of Rs. 100/-, PW-1 Prem Singh, in his deposition has made great improvements in all material particulars. In his examination in chief he deposed that initially the accused solicited for a bribe of Rs. 400/-, thereafter, he gave to him only Rs. 20/-. Again he demanded Rs. 100/-. Though, the witness has not disclosed as to how long this demand of the accused for illegal gratification continued but he has not made any mention of these facts in his written complaint Ex.P/1. The statements of the complainant are laden with contradictions in material particulars which shatter the prosecution case and adversely influence the credibility of decoy. The defence evidence of DW-1 Shivkaran Singh, DW-2 Inderraj Singh, DW-3 Baluram and DW-4 Sardar Singh adduced by the accused has been discussed by the learned trial court in detail. 14. It is now very well settled that in a 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 SBCr.A.No.670/96 8 him in evidence, that currency notes were thrust in his pocket, that statement by itself is sufficient without anything more. Acceptance or obtaining or agreeing to accept or attempting to obtain is a voluntary act. The accused in his explanation of question no. 8 has unequivocally submitted that neither he demanded any bribe nor he accepted any bribe from the complainant Prem Singh. On the contrary, Prem Singh himself thrust the currency notes into his pocket which he took out and threw on the floor. 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 Shivkaran Singh, DW-2 Inderraj Singh, DW-3 Baluram and DW-4 Sardar Singh in defence who were present in the meeting hall at the time of trap proceedings. Their presence in the meeting hall has been admitted by the prosecution witnesses also. None of them has been made a witness by the I.O. in this case. I do not see any ground to disbelieve their testimony. Their evidence cannot be jettisoned merely because of the fact that they belong to that department to which the respondent belongs. 15. 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 prosecution witnesses in right perspective and appreciated the testimony in the light of legal provisions and the judgments of the Hon'ble Apex Court and this Court. Having scanned the entire prosecution and defence evidence as also the relevant material available on record, it is found that the prosecution has miserably failed to establish the charge of soliciting for a bribe of Rs. 100/- from the complainant and accepting this SBCr.A.No.670/96 9 amount from him. 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 arrived at by the learned trial court and, in my firm view, the impugned judgment calls for no intervention. 16. For these reasons the State appeal being devoid of force and merits stands dismissed. Accused-appellant is on bail. He need not surrender to Court. His bail bonds stands discharged. (MAHESH BHAGWATI), J. Mak/-