(1) THIS is an appeal against. the judgment of conviction and order of sentence both dated 26/07/1986 of Special Judge, Sirsa, whereby the appellant has been convicted for offences under Section 5 (1) (d] read with Section 5 (2) of the Prevention of Corruption Act and under Section 161 of the Indian Penal Code and as a result thereof, sentenced in the following terms :

i) Under Sec. 5 (2) of the Prevention of Corruption Act. : to undergo rigorous imprisonment for two years and a fine of Rs. 500. 00. In default of payment undergo rigorous Imprisonment for six months. ii) Under sec. 161, IPC : to undergo rigorous imprisonment for one year.

(2) BOTH the substantive sentences were ordered to run concurrently.

(3) THC prosecution case in nut shell is summed up thus

(4) THE appellant at the relevant time was posted as Patwari in village Chautala. In the month of December, 1984, complainant Ripudaman PW 8 purchased two killas of land in the name of his brother Ravi Dutt and in the month of February, 1985, he purchased another four killas I kanal of land, from Gordhan, a resident of village Chautala, under registered sale deeds exhibited as PI and P2 respectively. Ripudaman handed over these sale deeds to the appellant for making necessary entries in the mutation register. However, despite repeated requests made by Ripudaman, the appellant did not enter the necessary mutations for a period of six months and ultimately, he demanded Rs. 400/ - as illegal gratification from him for doing the job. The bargain was settled at Rs. 300. 00 Ripudaman, however, did not want to pay any bribe to the appellant. As such, on 9/07/1985, Ripudaman along with Nazir Singh PW 9 went to Sirsa. There he met Vigilance Inspector Amrik Singh PW 11 and informed him about the demand of illegal gratification made by the appellant. The Vigilance Inspector thereupon got three currency notes of the demonination of Rs. 100. 00 each (Ex. P3 to Ex. P5) from Ripudaman PW 8 noted down their serial numbers and seized them under memo Ex. PF attested by Ripudaman PW 8 and Nazir Singh PW 9. The Inspector gave a demonstration before him by mixing phenolphthalein powder in a sulution of sodium carbonate as a result of which the solution turned pink. He also treated the currency notes, Ex. P3 to Ex. P5 with phenolphthalein powder and handed them over to Ripudaman PW 8 under memo Ex. PH. He recorded the statement Ex. PA of Ripudaman and sent it under his endorsement Ex. PA/2 to Police Station, State Vigilance Bureau, Hisar Division, Hisar where the case was registered under First Information Report Ex. PA,1.

(5) THE Inspector then chalked out a plan to trap the appellant while accepting bribe. As per the plan Ripudaman was assigned the role of a decoy and was directed to go to the appellant in the Patwar-khana in village Chautala and to pass on the tainted money to him on his demand; Nazir Singh PW 9 was assigned the role of a shadow winess with the direction to take his position near the door of the patwar-khana and to give a signal by placing his hand on his head to the Inspector and other members of the raiding party standing outside at a short distance, near a tea shop, after the tainted money had been passed on to the appellant,

(6) AFTER the plan of laying the trap was finalised, the raiding. party headed by Inspector Amrik Singh PW 11 went to Chautala where he joined Dr. Om Parkash. Government Veterinary Surgeon PW 10 also in the raiding party and informed him about the plan to lay the trap. Thereafter, the raiding party proceeded to the patwar-khana. As per the plan, Ripudaman PW 8 went inside the patwar-khana. The shadow witness Nazir Singh PW 9 took his position at the door of the patwar-khana while the Inspector along with other members of the raiding party stood near a tea stall situated at a short distance from the patwar-khana. After 2/3 minutes, Nazir Singh PW 9 gave the apponited signal to the other members of the raiding party waiting near the tea stall, by placing his hand on his head On receipt of the signal, the Inspector along with other members of the raiding party including Dr. Om Prakash PW10 went inside the patwar-khana where the appellant and Ripudaman PW 8 were found present. The Inspector disclosed his identity to the appellant and also offered his personal search to him. The appellant how ever, did not search the person of the Inspector, who then in turn effected the personal search of the appellant, leading to the recovery of tainted currency notes Ex. P3 to Ex. P5, along with other currency notes from inside the chest pocket of the shirt Ex. P7, which the appellant was then, wearing. The Inspector washed the hands of the appellant in a tumbler containing solution of sodium carbonate as a result of which the solution turned pink. The inspector sealed and seized this wash under memo Ex. PK. He also got the shirt of the appellant removed and washed its chest pocket portion with the solution of soodium carbonate as a result of which this solution also turned pink and the same as then sealed under memo Ex. PL. During the search of papers lying on the table of the appellant, the Inspector also recovered sale deeds Ex. P1 and Ex. P2 which were seized under memo Ex. PM. All these memos were attested by Ripudaman PW 8, Nazir Singh PW 9 and Dr. Om Prakash PW10. The Inspector also prepared visual site plan Ex. PR of the spot, recorded the statements of the witnesses, arrested the appellant and after getting his judilcial remand from the Magistrate at Dabwali brought him to Sirsa where he lodged him in the Judicial lock up. After obtaining necessary sanction of the District Magistrate concerned for the prosecution of the appellant and after completion of the necessary formalities, the appellant was challaned and put to trial leading to his impugned conviction and sentence.

(7) THE appellant, when examined under Section 313 of the Code of Criminal Procedure, denied the allegations of the prosecution and pleaded his innocence in the following terms :-

prior to my arrest, PW Ripudaman had asked me to change the Khasra girdwari of his land pertaining to the khasra girdwari of 1984 in his name, so that he could avoid the exercise of the right of pre-emption against the said sales in their favour but I refused to oblige him and on that account he was bearing a grudge against me. Likewise, prior to this incident, Nazir Singh had approached me to prepare produce of lower value so that he had to incur less amount on expenses in registration etc. but I refused to oblige him and for that reason, he too was bearing a grudge against me and because of the same, they, in connivance with the police, have implicated me falsely in this case.

(8) IN his defence, the appellant also examined some witnesses.

(9) FEELING aggrieved against his impugned conviction and sentence, the appellant has come up in appeal.

(10) I have heard Mr. R. S. Rai, learned counsel for the appellant and Mr. D. S. Bishnoi, learned Deputy Advocate General, Haryana for the respondent and have scanned the evidence and other material on record.

(11) IT is a well settled law that once the prosecution is successful in proving the recovery of tainted money from the possession of the accused, then, by virtue of Section 4 of the Prevention of Corruption Act, a legal presumption arises that the accused had accepted or obtained the bribe money as a motive or reward, as is contemplated by Section 161 IPC, though this presumption is rebuttable. It is, however, not necessary that the required presumption is to be rebutted by the accused with the same standard of proof, as is expected of the prosecution for recording a finding of conviction against him. The accused can validly rebut the above presumption from the circumstances appearing in the prosecution evidence itself.

(12) THE question which arises for consideration in this appeal is whether on the evidence on record, the conviction and sentence recorded against the appellant by the trial Judge are justified or they deserve to be upset.

(13) WITH a view to prove the charges against the appellant, the prosecution has mainly relied upon the evidence of four witnesses; namely Ripudaman PW 8, Nazir Singh PW 9. Dr. Om Prakash PW 10 and Vigilance Inspector Amrik Singh PW 11, Ripudaman PW 8 is the complainant and also a bribe giver whereas Nazir Singh PW 9 is shadow witness, assigned with the job to over hear the talk if any that takes place between Ripudaman PW 8 and the appellant preceding the passing of the tainted money to the appellant. Ripudaman PW 8 in the facts and circumstances of the case cannot be said to be an independent witness. He must naturally be interested in getting the appellant trapped. So far as Nazir Singh PW 9 is concerned, he too cannot be said to be an independent witness in the situation because as admitted by him, he and Ripudaman PW 8 are friends. They both are also co-villagers.

(14) TO prove the allegations of demand and acceptance of bribe by an accused person, the evidence of the complainant or trap witness cannot be safely acted upon in the absence of some independent corroborative evidence. In such a situation, bribe giver is normally treated as no better than an accomplice and so his evidence needs corroboration from an independent source. The same value is to be attached to the evidencc of the shadow witness especially when he is not proved to be an independent witness. Independent corroboration to the evidence of such witnesses is generally required by the Court, if not as a rule of law, then at least as a rule of caution and prudence.

(15) THE evidence of Ripudaman PW 8 and Nazir Singh PW 9 when tested on the touch stone of cross-examination cannot be said to be of independent character. There is also no satisfactory evidence to indicate as to what conversation, if at all, took place between Ripudaman PW 8 and the appellant preceding the passing of the tainted currency notes to the appellant. With respect to the conversation that took place between the appellant and Ripudaman PW 8, the evidence of Nazir Singh PW 9 is to the following effect:-

"there after Ripudaman alone went inside the patwar-khana. I kept on standing nearing the door of the patwar-khana. The Vigilance Inspector and Dr. Mehta kept on standing at a distance of 5/6 karams on a Khokha used as tea stall. When Ripudaman went to Patwari, he asked him whether he had completed his job. On this, the Patwari, accused Gurcharan Singh present in the Court asked Ripudaman that firstly he was to complete his job and only then he (Patwari) will do his job. Thereafter, Ripudaman handed over that amount of Rs. 300. 00 to the Patwari (accused present in the Court). On this, the accused put this amount in the chest pocket of his shirt. Thereafter, Ripudaman placed his hand on his head and immediately, I too placed my hand on my head. Thereafter, Vigilance Inspector Amrik Singh along with Dr. Mehta and myself, entered the patwar-khana. Then Amrik Singh Inspector revealed his identity to the accused. Then he conducted his personal search of the accused and on this, the same amount of Rs. 300. 00 was recovered from the pocket of his shirt. "

(16) HOWEVER, the above testimony of Nazir Singh PW 9 remains uncorroborated because so far as Ripudaman PW 8 is concerned, he does not say a word much less by way of whisper if he had any talk with the appellant preceding the passing of the tainted currency notes by him to the later. His evidence on the point of demand and acceptance of bribe by the appellant is as under :-

"then myself along with Nazir Singh went to patwar-khana at Chautala. The accused present in the Court was found present there. The Vigilance officials were following us at some distance. Thereafter, I handed over those currency notes worth Rs. 300. 00 to the accused. Prior to that, the Vigilance officials had a talk with the veterinary surgeon of Chautala. Once the accused accepted that amount from me, thereafter, Nazir Singh raised his hand. "

(17) THE evidence of Ripudaman PW 8 and Nazir Singh PW 9, as referred to above, cannot be said to be sufficient to prove the factum of demand and acceptance of bribe by the appellant and it would not be safe for the Court to place credence on their testimony to prove the necessary charges against the appellant. Besides the above infirmities in the evidence of Ripudaman PW 8 and Nazir Singh PW 9, there are discrepancies in the prosecution evidence which are material in character and the same are high-lighted as under :-

(i) Ripudaman PW 8 stated that when the Vigilance Inspector along with other members of the raiding party went inside the patwar-khana on receipt of the appointed signal, there were about twenty persons present there; according to Nazir Singh PW 9, there were four/five persons present while according to Vigilance Inspector Amrik Singh PW 11, none else was present in the patwar-khana at the relevant time in question; (ii) According to Vigilance Inspector Amrik Singh PW11, the hand wash and shirt wash of the appellant were sealed and seized in the patwar-khana where the writing work with regard to preparation of various memos was also completed; Ripudaman PW 8 has deposed that the shirt of the appellant was taken into possession by the police in the police Post, Chautala where his personal search was also conducted by the police so much so that it was in the Police Post itself that even one or two memos were prepared by the police; Dr. Om Parkash PW 10 goes to the extent to state that after the raid, he along with other witnesses went to Police Post, Chautala and it was there that the police prepared all the memos; (iii) Inspector Amrik Singh PW 11 stated that after completing the necessary formalities at the place of recovery of tainted money, the non-official witnesses to the trap left them for their houses from the patwar-khana itself while he took the appellant to Dabwali where he obtained his judicial custody remand and he then took him to Sirsa where he lodged him in the judicial lock-up, Dr. Om Parkash PW10 knocks the testimony of Vigilance Inspector Amrik Singh PW 11 from its bottom by stating that after the raid, he along with other witnesses went from the patwar-khana to police post, Chautala and it was there that the police did the writing work and prepared all the memos. Even from the deposition of Ripudaman PW 8, it is proved that these witnesses had in fact gone from the patwar-khana to Police Post; (iv)Vigilance Inspector Amrik Singh PW ll has deposed that the bottles containing hand-wash and shirt-wash of the appellant were sealed and seized by him in thc patwar-khana itself but he is again belied by Nazir Singh PW 9 and Dr. Om Parkash PW 10 who stated that the bottles containing hand-wash and shirt-wash were sealed by the police in the Police Post itself so much so that as part the deposition of Nazir Singh PW 9, the tainted money so recovered from the possession of the appellant was not sealed in any parcel and the same was taken away by the police in a bag and this part of his testimony goes unchallenged on record by the prosecution; (v) Although Nazir Singh PW 9 and Vigilance Inspector Amrik Singh PW 11 have deposed that phenolphthalein powder was applied to the tainted currency notes before they were given to Ripudaman PW 8 to be passed on to the appellant on his demand but this part of their testimony does not find corroboration from Ripudaman PW 8 who, in his deposition does not say a word if the tainted currency notes were ever treated by the Inspector with any chemical, much less with phenolphthalein powder before the same were handed over to him.

(18) THE discrepancies in the evidence of the prosecution witnesses as high-lighted above are definitely of material character and do create doubt about the truthfulness of the prosecution case.

(19) WHERE the material witnesses to the trap make inconsistent statements in their evidence on material particulars, the evidence of such witnesses becomes unreliable and unworthy of credence, thus making the prosecution case highly doubtful.

(20) TAKING the unsatisfactory character of the prosecution evidence with regard to the conversation, if any, having taken place between Ripudaman PW 8 and the appellant preceding the passing of the tainted currency notes, coupled with the inconsistencies appearing in the evidence of Ripudaman PW 8, Nazir Singh PW 9, Dr. Om Parkash PW 10 and Vigilance Inspector Amrik Singh PW I I on material particulars as high-lighted above, I have no option but to hold that the prosecution has failed to establish its case beyond reasonable doubt and the appellant is entitled to this benefit, entitling him to earn acquittal on the basis of benefit of doubt.

(21) ACCORDINGLY, the appeal is allowed and the conviction and sentence imposed upon the appellant are set aside and he is acquitted of the charges. Appeal allowed.