1. The present criminal appeal has been filed under section 374 (2) of Criminal Procedure Code read with section 27 of Prevention of Corruption Act, 1988 against the judgment dated 23.01.2020 and order of conviction dated 24.01.2020 passed in criminal case no. 58/2003 (The State of UP Vs. Sameer Singh) passed by Special Judge, Anti Corruption, Court no. 5, Lucknow convicting the appellant for three years rigorous imprisonment and a fine of Rs. 2,000/- imposed under section 7 of Prevention of Corruption Act, 1988 and four years rigorous imprisonment and a fine of Rs. 3,000/- under section 13 (1) (d) r/w section 13 (2) PC Act, 1988, with default provision in each of the offences.

2. Heard Shri Gaurav Mehrotra, learned counsel for the appellant as well as Shri Jayant Singh Tomar, learned A.G.A. for the State.

3. Prosecution case is that a complaint was made by the complainant Kishan against appellant Sameer Singh that for the purpose of constructing house under Indira Awas Yojna, out of the Government approved grant of Rs. 10,000/- each to the complainant, wife of Mahadev of the village, Rs. 20,000/- each to the wife of Teji and wife of Avatar, an amount of Rs. 3000/- cheque is due which is to be given to all the four beneficiaries from block Mohanlal Ganj through Secretary Sameer Singh and for this purpose, on 13.03.2002, the complainant, Avataar and Mahadev went to the photostat shop of Village Pradhan Bachha Babu at Mohanlal Ganj where Sameer Singh, Secretary Gram Pradhan came around 11’O clock and told them that if they want the remaining cheque of Rs. 3000/- each, then by noon of 15.03.2002, they will have to bring Rs. 200/- each and collectively pay him as a bribe, thereafter, he will provide them the cheques. He further said that he has been transferred and if they have to take the remaining amount, then come with Rs. 800/- in the office; otherwise he does not know and they will not be given cheques. Thus, the secretary deliberately with a view to obtain bribe is delaying the cheques of the complainant and other beneficiaries.

It is further alleged that he and his companions (other beneficiaries) do not want to give bribe to Sameer Singh, but want to get him caught red handed. The complainant asked each one of them to bring Rs. 200/-and collect Rs. 800/- along with them. A complaint to that effect was given by the complainant to the Superintendent of Police, UP Vigilance Department, Lucknow, Sector Lucknow, consequent to which, Superintendent of Police, Vigilance, Lucknow recommended for trap action and thereafter a trap team was constituted. Thereafter, the complainant was sent to block Mohanlal Ganj where after seeing the complainant, the Secretary Sameer Singh slowed his Hero Puch vehicle and stopped it after entering into the gate. He asked the complainant whether he has brought the agreed amount as told by him, whereupon he said that as told by him, he has brought Rs. 800/- from all the beneficiaries. While sitting on Hero Puch, he demanded the amount, upon this, the complainant Shri Kishan took money from the left pocket of his shirt which was taken by him by his left hand and started counting by both hands. After seeing, listening and hearing the conversation, giving and taking bribe, the trap team arrested accused Sameer Singh with Rs. 800/-.

The recovery memo was prepared on the basis of recovered notes from the arrested accused and an FIR was registered by the constable moharrir at fourteen hours. Entry in the general diary was also made at rapat no. 13 at the same time i.e. 1400 hours. Gulam Akbar was appointed as investigating officer who took the statements of the prosecution witnesses and the complainant, and prepared the site plan and after finding prima facie offence against the accused/appellant Sameer Singh, he filed charge sheet against the appellant under Section 7 read with Section 3(1)(d) and 13(2) of Prevention of Corruption Act, 1988.

4. The prosecution in support of its case has produced the following witnesses:-

(i) PW- Ramker Singh (complainant).

(ii) PW-2 Krishn (Informant)

(iii) PW-3 Piyush Mohan Srivastava (BDO)

(iv) PW-4 Akhilesh Kumar Singh

(v) PW-5 Mahadev

(vi) PW-6 SI Ajendra Kumar

(vii) PW-7 Smt. Sundara (wife of Mahadev)

(viii) PW-8 Gulam Akbar, Deputy Superintendent of Police(retired), I.O.

(ix) PW-9 Om Prakash Srivastava (independent witness).

The FSL report dated 19.04.2002 was also produced by the prosecution.

PW-1 is Ramker Singh, Deputy Superintendent of Police, UP Vigilance Department who constituted the trap team on the application of PW-2 Kishan. He proved supurdagi nama as exhibit Ka-1 and Fard Baramadgi Rishwati Note and arrest of the accused as exhibit Ka-2. The dhowan of the hand of the accused Sameer Singh which was taken on the spot found proved by him as exhibit 1 to 6. He also proved exhibit 7 to 15 which is an envelope in which the case details, date was mentioned and eight notes of Rs. 100/-.

PW-2 complainant Kishan has proved his thumb impression which is on exhibit Ka-1 and Ka-2 which is fard baramadagi and verified it.

PW-3 Piyush Mohan Srivastava was the Block Development Officer from August 2001 to June 2002. He stated the procedure of approving the beneficiaries for Indira Awas Yojna and disbursement of the amount into their account. He proved register A15/60 and also photocopy of the register dated 19.03.2002 as exhibit Ka-4. He has also proved exhibit Ka-5 Ka-6. He further proved the application for second installment as Ex. Ka-7 and Ka8 and also proved Ex. Ka-9 to Ka-17 which is the application given by PW-2 Kishan and the details of the payment which was signed by him along with others.

PW-4 Akhilesh Kumar Singh was posted as District Development Officer, Lucknow on 09.10.2003. He has given sanction for prosecution and proved it as Ex. Ka-18.

PW-5 is the husband of beneficiary Smt. Sundara and has supported the prosecution case.

PW-6 SI Ajendra Kumar has proved chik report No. 35/02 crime No. 81/2002 under Section 7/13(1)(d) read with Section 13(2) of Prevention of Corruption Act and confirmed that it is in his writing and signature, and proved it as Ex.-K-19. He also proved Ex.Ka-20 which is recording in general diary as rapat No. 30 at 1400 hours prepared by him and has said that it is in his writing and signature.

PW-7 Smt. Sundara is the beneficiary and has supported the prosecution case.

PW-8 Gulam Akbar is the investigating officer who has proved exhibit Ka-5. He prepared the site plan after inspection and proved it as Ex.Ka-21. He also proved the report of forensic science laboratory as report Nos. 1 to 6 in which Sodium and phenolphthalein was found present in the notes. Report has been proved as Ex. Ka-22 by him. He has proved the charge sheet dated 13.10.2003 against the appellant as Ex. Ka-23. He was posted in Vigilance Department of Uttar Pradesh. He has verified his signature on Ex.-Ka-2 and Ex. Ka-3.

PW-9 Om Prakash Shrivatava is the independent witness. He confirmed his signature on Ex. Ka-2. He further confirmed the action based on Ex.Ka-3, his presence at the spot and his signatures upon Ex.Ka-3.

5. Statement of the accused under Section 313 Cr.P.C. was recorded, in which he has denied the prosecution case. He has taken the defence that the complainant, beneficiaries' husband and Pradhan Anil Tripathi were annoyed with him because he has refused to do their illegal acts. He pleaded innocence. He stated that he has never demanded any amount from any person of the village, neither demanded bribe on 15.03.2002. Nothing was recovered from him and his hands were not washed on the spot and the entire incident is false.

6. Learned counsel for the appellant submits that the appellant was appointed on the post of Village Development Officer on 22.06.1999. He submits that there are inconsistencies and variations in the statements of the eye witnesses i.e. PW-1 and PW-2. The statement of PW-5 and PW-7 are also inconsistent who are husband and wife. PW-7 is the beneficiary. He also submits that there are also inconsistencies in the statements of PW-1, PW8 (IO) and PW-9. The demand and acceptance of bribe is not proved beyond reasonable doubt. The place of occurrence has been made doubtful in view of the testimony of PW-1 and PW-2.

He further submits that conviction of the appellant is based on the basis of the averments made in the bail application of the appellant-convict. Demand of bribe and payment of the said bribe as alleged has not been proved as two out of four beneficiaries were not deposed in the trial. He submits that bribe was demanded by the appellant according to the prosecution case from all the four beneficiaries. It is, thus, submitted that foundational facts in respect of demand and payment of bribe could not be proved by the prosecution. The independent witness, namely Babu Ram Pal who was taken with the trap team has not been examined, rather has been withheld. Hence, it is submitted that adverse inference against the prosecution under Section 114 of Indian Evidence Act illustration (g), should be drawn.

It is submitted on behalf of the appellant that findings recorded in the judgment are based on conjectures and surmises. The proper procedure of trap has not been followed by the vigilance team. Lastly, it is submitted that as per the deposition of PW-9 who is an independent witness of the recovery memo, he has not signed upon it. In support of his contention, Learned counsel has relied on the following judgments:-

(i) Tomaso Bruno and Another Vs. State of Uttar Pradesh, (2015) 7 SCC 178 [LQ/SC/2015/93] (emphasis is on para 39)

(ii) Krishnegowda and others Vs. State of Karnataka by Arkalgud Police, (2017) 13 SCC 98 [LQ/SC/2017/486] .

(iii) Raveen Kumar Vs. State of Himachal Pradesh, (2021) 12 SCC 557 [LQ/SC/2020/738 ;] .

(iv) Ramesh Bhavan Rathod Vs. Vishanbhai Hirabhai Makwana (Koli) and another, (2021) 6 SCC 230 [LQ/SC/2021/2722 ;] . (emphasis is on para 13).

(v) Neeraj Dutta Vs. State (Government of NCT of Delhi), (2023) 4 SCC 731 [LQ/SC/2022/1545 ;] .

(vi) N. Sunkanna Vs. State of Andhra Pradesh, (2016) 1 SCC 713 [LQ/SC/2015/1414] .

(vii) Devi Lal Vs. State of Rajasthan, (2019) 19 SCC 447 [LQ/SC/2019/46] .

7. Learned A.G.A., on the other hand, has opposed the appeal submitting that the demand and acceptance of the bribe is duly proved by the prosecution. The appellant has been caught red handed by the trap team. There is eye witness account. He also submits that minor variations and infirmities in the investigation will not vitiate the trial. Learned A.G.A. placed reliance on the following judgments:-

(i) Neeraj Dutta Vs. State (Government of NCT of Delhi), reported in (2023) 4 SCC 731 [LQ/SC/2022/1545 ;] .

(ii) State of Gujarat v. Navinbhai Chandrakant Joshi, (2018) 9 SCC 242 [LQ/SC/2018/872]

8. Having heard learned counsel for the parties, perusal of the record and also in order to re-appreciate the prosecution evidence it would be appropriate to address the following issues for adjudication of the case:-

(Place of Occurrence)

9. The statements of PW-1 Deputy Superintendent of Police and PW2 complainant Kishan are contrary so far as the site of recovery/place of occurrence is concerned.

PW-1, being the eye witness has deposed that the accused Sameer Singh came on motorcycle and after seeing the complainant Kishan, he slowed down his motorcycle and asked him whether he brought the money, whereupon, the Kishan (informant) from the right pocket of his shirt, gave Rs. 800/- and said that please give his check today. The accused was sitting on the motorcycle and was talking to the complainant when the notes in the hand of the accused were recovered. After the incident, he did not go inside the block office.

PW-2, who is the complainant and also the eye witness stated that the accused Sameer Singh went inside the block and after demand of the bribe, he gave the bribe. He further stated that after meeting the accused outside room, he went with Sameer Singh inside the block office. When he and the accused Sameer Singh went inside the room, then no other person came. The Trap team caught Sameer Singh inside the room. Thus, the exact place of occurrence/site of recovery of the alleged offence as stated by PW-1 has been totally contradicted by PW-2. This is a major contradiction regarding the place of the occurrence/recovery. The prosecution has not been able to prove the place of occurrence/recovery. This part of the testimony of the alleged eye witnesses i.e. PW-1 and PW-2 does not inspire confidence.

Inconsistencies between statements of prosecution witnesses.

10. PW-5 Mahadev, who is the husband of one of the beneficiaries namely Smt Sundara (PW-7), in statement has deposed that the appellant/convict had demanded bribe of Rs. 200/- for payment of the last installment of grant whereas Sundara PW-7 in her statement had deposed that appellant/convict demanded bribe of Rs. 200/- from PW-2 Kishan Gupta (the other beneficiary). PW-7 despite being the wife of PW-5 has not referred to any demand made from her husband by the appellant as deposed by PW-5. The inconsistencies in the statements of PW-5 and PW-7 have been ignored by the learned trial court while passing the judgment impugned.

There are also inconsistencies in the statements of PW-1, PW-8 and PW-9. As per the statement of PW-1, the whole trap team was divided into three groups, where both PW-8 and PW-9 stated that PW-9 Om Prakash who is the independent witness, was part of the first group of trap team along with PW-1 and other persons.

PW-9 who is the independent witness does not corroborate the version which has been presented by PW-1. PW-9 has stated that he did not see any exchange of notes between PW-2 and the appellant, nor had he heard any conversation between them. PW-9 further stated that he cannot testify that the hands of PW-2, PW-1 and appellant were washed at the place of arrest.

Likewise, the inconsistency is also in the statement of PW-8 and PW-9. PW-8 stated that independent witnesses were nearby at the time of trap and were seeing and listening to the proceedings, PW-9, however, has refused that he has heard or saw any exchange between the appellant and PW-2.

PW-1 in his statement has deposed that recovery memo was made at the place of arrest and signatures of all the witnesses were taken on the spot. The recovery memo also notes that the signatures of the witnesses are being taken on the fard, however, PW-9 in his cross examination has deposed that he signed the fard baramadgi at the station and not at the place of arrest. The contradiction between the statement of the other prosecution witness vis-a-vis between PW-9 who is the independent witness regarding recovery, makes the recovery doubtful. The argument of learned counsel for the appellant that findings recorded in the impugned judgment and order dated 23.01.2020 are on the basis of the averments made in the bail application of the convict seems to have force.

(Demand of bribe and payment of such bribe).

11. PW-2 in his examination-in-chief has deposed that appellant has demanded bribe of Rs. 200/- from four beneficiaries, Kishan (informant), wife of Mahadev, wife of Teji and wife of Avatar who were to receive the grant of Rs. 10,000/-, Rs. 10,000/-, Rs. 20,000/- and Rs. 20,000/- respectively. The same has been deposed by PW 5 Mahadev as well, however, only one beneficiary i.e. Sundara wife of Mahadev has deposed that the amount of Rs 200/- was given to the appellant at the behest of Kishan (informant).

In so far as the demand of bribe of Rs. 200/- from the wife of Teji and the wife of Avatar is concerned, both persons have not been produced as witnesses by the prosecution in the trial. No reason has been assigned by the prosecution in the entire trial for withholding such important witnesses.

Supreme Court in the case of Neeraj Dutta (supra) while deciding the reference has held that foundational facts in respect of demand and payment of bribe are required to be proved by the prosecution. Three exceptions have been carved out for deposition of witnesses to prove the fact, that (a) in the event of death of the witnesses (b) in the event of witnesses turning hostile and (c) on account of unavailability of the witness. None of these grounds have been taken by the prosecution for withholding the two important witnesses, neither any reason has been assigned nor any finding has been recorded by the learned trial court as to for what reasons these two important prosecution witnesses have been withheld.

The finding of the trial court that multiple witnesses are not required to prove same fact is faulted as there were 4 different foundational facts related to four transactions of payment of grant of Rs 10000/-, 10,000/-, 20,000/- and 20,000/- to four different beneficiaries. As per the prosecution case, a demand was made from four different beneficiaries by the appellant of Rs. 200/- each which was allegedly paid as a bribe to the appellant. Thus, the four transactions of payment of the grant of beneficiaries and alleged demand of Rs. 200/- each and also alleged payment of bribe constitute four different acts and not one which was required to be independently proved from four beneficiaries from whom the alleged payment of bribe was made.

The Supreme Court in the case of Neeraj Dutta's case (supra), has held as under:-

88. What emerges from the aforesaid discussion is summarised as under:

88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d) (i) and (ii) of the Act.

88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.

88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.

88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:

(i) if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.

(ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act

(iii) In both cases of (i) and (ii) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.

88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.

88.6. (f) In the event the complainant turns “hostile”, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant

88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act.

88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature.

The finding recorded in the impugned judgment and order dated 23.01.2020 is on conjectures and surmises. In para 30 at internal page 11 of the impugned judgment, the learned special judge has given a finding that in Indian administrative arrangements, it is very unnatural, some work which is pending for so many days is done in one day at every officer level. Another finding given by the learned Special Judge is that the report prepared by the appellant appears to be different from the ink used to sanction report in para 30 of internal page no. 12 of the judgment. Again, this finding has been given without seeking any expert opinion regarding the ink.

Upon arguments advanced by the defence that amount of Rs. 200/- even in the year 2002 was a meagre amount for being demanded as a bribe and is thus, unbelievable was rejected by the learned trial court while recording a finding that such amount would constitute about six percent of the amount of Rs. 3000/- i.e. last the installment. The figure of six percent appears to have been arrived on erroneous presumption taking into account the last installment and ignoring the total amount of Rs. 10,000/-, Rs. 20,000/-. Thus, an impression is sought to be given that huge amount was demanded as a bribe on erroneous presumption. This again is only on the basis of suspicion and this finding can only be said to be on the basis of conjectures and surmises as there was no material before the learned trial court to record such findings.

The Supreme Court in Devi Lal's case (supra), held as under:-

"18. On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of “may be true” to the plane of “must be true” as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof."

Failure to follow the procedure by the trap team

12. PW-1 in his cross-examination has stated that while setting up the trap team, powder was applied to the notes brought by the complainant PW-2, then the hands of PW-1 was washed and dhowan was collected in a bottle labeled as bottle 1. After notes were handed to the complainant PW-2, his hands were also washed and dhowan was stored in a bottle labeled as bottle No. 2. The shirt of the complainant PW-2 was also washed as the money was kept in the left shirt pocket and dhowan of the shirt is labeled as bottle No. 3. Dhowan of the complainant was allegedly stored in a bottle labelled as bottle No. 4. The hands of the appellant/convict were allegedly washed at the place of the arrest and a liquid turned pink, a bottle with dhowan of the hands of the appellant/convict was labeled as bottle No. 5. The hands of PW-1 were allegedly again washed at the place of arrest and the dhowan was stored in a bottle labeled as bottle No. 6. However, when these bottles were produced at the time of cross examination, bottle nos. 4, 5 and 6 which contained the dhowan collected at the time of arrest were empty. The remaining bottle containing the dhowan are intact and only the bottles which contained the dhowan allegedly collected at the place of arrest are empty. The empty bottles of the dhowan which are related to the arrest of the appellant raises suspicion on the truthfulness of the prosecution case. There are no signatures of the appellant on the bottles. The currency notes which were collected and brought by PW-2 on which powder was applied and were handed over to the appellant/convict were allegedly stored in the envelope by PW-1 at the time of arrest. However, as per the deposition of PW-1 himself, the envelope was not sealed nor has the signature of the appellant been taken on the same. This again makes the prosecution case, so far as the currency notes recovered from the appellant doubtful.

The phenolphthalein powder which was allegedly applied to the notes has also not been stored in a sealed envelop with the signature of the appellant according to the procedure, coupled with the statement of PW-1 where he stated that fard recovery was not signed at the place of arrest, rather PW-9 stated that he signed it at police station which again makes the recovery doubtful.

It is significant to note that three trap teams were constituted by PW-1 and independent witness Babu Ram Pal who was part of the second trap team has also been withheld and no reason has been assigned by the prosecution for withholding the said important witness.

The prosecution in this case has withheld two beneficiaries and Babu Ram Pal, the independent witness of the second trap team. It has not produced Gram Pradhan on whose Photostat shop, the bribe was demanded. It is not the case of the prosecution that any of these witnesses have turned hostile, or died or are unavailable. No reason has been assigned by the prosecution for withholding such important witnesses. Non-production of the independent witness has to be evaluated in the Court under Section 114 of Evidence Act which provides as under:-

"114 Court may presume existence of certain facts. —The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume

(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;

(b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars;

(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;

(d) That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence;

(e) That judicial and official acts have been regularly performed;

(f) That the common course of business has been followed in particular cases;

(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;

(h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;

(i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged".

13. Hence, non-production of the independent witnesses only gives rise to the presumption that if they had been produced, their evidence would have been favourable to the appellant. Therefore, non-production of independent witnesses by the prosecution attracts adverse inference against the prosecution.

14. Thus, from the discussion made hereinabove, it is evident that there are serious inconsistencies between the statements of PW-1 and PW-2 regarding the site of recovery or the site of occurrence. The evidence of PW-5 and PW-7 who are the husband and wife is also contradictory for proving the foundational facts i.e. the demand and acceptance of illegal gratification by a public servant. The demand of illegal gratification, from the four beneficiaries could not be said to have been proved by the prosecution, in view of the inconsistent statements of PW-1 and PW-2 and also in the inconsistent statements of PW-1, PW-8 and PW-9. The Fard baramadgi also becomes doubtful in view the contradictory statement between PW-1 and PW-8 and PW-9. Two out of four beneficiaries have not deposed in the trial, thus, foundational fact of demand of bribe and payment of such bribe has not been proved, neither exception which is carved out for deposition of such witnesses to prove the fact in the judgment of Neeraj Dutta (supra) applies in this case and no reason has been assigned by the prosecution for withholding such important witnesses.

Babu Ram Pal is the second independent witness. He was part of the second trap team, however, he has not been examined by the prosecution in the Court as independent witnesses. He was a very important witness to depose as to the chain of events that occurred at the time of the arrest. Failure to examine Babu Ram Pal before the learned trial court drawing adverse inference to be taken in view of the illustration (g) to Section 114 of the Indian Evidence Act, coupled with the fact that proper procedure has not been followed by the trap team.

The site of the recovery i.e. place of occurrence is disputed in view of the testimony of the witnesses i.e. PW-1 and PW-2. Demand or acceptance of bribe has not been proved by the prosecution and the contradictory statements of the prosecution witnesses particularly PW-1, PW-8 and PW-9 make the recovery doubtful. Thus, I am not inclined to uphold the judgment under challenge.

15. The appeal is allowed. The impugned judgment and order dated 23.01.2020 and order of conviction dated 24.01.2020 passed in criminal case no. 58/2003 (The State of UP Vs. Sameer Singh) passed by Special Judge, Anti Corruption, Court no. 5, Lucknow is set aside. The appellant Sameer Singh is acquitted of the offences punishable under Section 7, 13(d) read with Section 13(2) of the Prevention of Corruption Act. Appellant is on bail. His bail bonds are cancelled and sureties discharged.

16. Let a copy of this judgment be sent to the District Court concerned along with the lower court record.