P.D. Sharma, J.:-

(22nd September, 1965)-The learned Special Judge, Delhi, by his order date 2nd September, 1964, convicted Kharaiti Lal, Assistant Sub-Inspector of Police under Section 5(1) (d) read with Section 5(2) of the Prevention of Corruption Act and Section 161 of the Indian Penal Code and sentenced him to one and a half years' rigorous imprisonment on each count and in addition to the payment of a fine of Rs. 1000 or in default to suffer rigorous imprisonment for another period of four months under the first Court. Both the substantive terms of imprisonment were made to run concurrently. The convict appeals.

2. The prosecution story may briefly be stated. Bed Ram (P.W. 1.) is running handloom factory and also living in plots Nos. 16 and 17 in the area of Partap Bagh, Delhi. In the year 1953 a theft took place in the store room of these premises. The matter was reported to the Roshan Ara Police. Kharaiti Lal accused appellant, who was posted at the said police station, during the investigation noted the particulars of the complainant's workmen and relations. The latter in order to avoid harassment to his employees and relations paid Rs. 100 as illegal gratification to the accused-appellant, who again visited his premises during the month of January 1964 and stated that one Babu Lal had complained against him in writing (Exhibit P. D. dated 15th January, 1964) and offered that if Rs. 150 were paid to him he would hush up the matter. Bed Ram complaint expressed his inability to pay the amount on that day and promised to make the payment on the day following. Instead he went to one Babu Lal Bechain, his friend and narrated to him all that had passed between him and the accused-appellant. Babu Lal Bechain advised that he should put off the accused-appellant for the time begin and fix precise date and time for payment of the bribe to him. The complainant returned to his house and to his great surprise the accused-appellant did not turn up till 2nd February, 1964 when he again demanded the bribe. The complainant modestly replied that he had just paid wages to his workmen and was left with no money and, consequently, requested him to come again on the following day when he would be able to make the payment The time fixed was between 5.00 and 6.00 P.M. The complainant again went to the house of Babu Lal Bechain on the next day and told him that he had asked the accused-appellant to come to his house the same day in the evening. Babu Lal Bechain accompanied him to the office of the Anti-Corruption Department at Tis Hazari Courts in the afternoon. D.S.P. Mukat Dhari Singh (P.W. 7) recorded Bed Ram's statement Exhibit P. A. which bears his signatures. He also sent for two clerks, namely, Brij Nandan (P.W. 2) and Krishan Kumar (P. W. 4) from the Labour Office of the Delhi Administration to function as Panch witnesses. Bed Ram in their presence produced one currency note of Rs. 100 and five currency notes of Rs. 10 each, Exhibits P.1 to P.6, the numbers of which were noted by the Deputy Superintendent of Police in memorandum Exhibit P.B. The Deputy Superintendent of Police directed the complainant to pass on the currency notes within the sight of the Panch witnesses and to talk loudly with the accused so that it could also be heard by them. He was to give signal to the Deputy Superintendent of Police by spitting on the ground when the bribe had been passed on to the accused-appellant. The raid party left for the spot in a Govern­ment vehicle at about 4.45 or 5.00 P.M. The vehicle was left on the Ring Road. S. I. Ved Parkash and the two Panch witnesses, Brij Nandan and Krishan Kumar, accompanied Bed Ram complainant inside his house. The Deputy Superintendent of Police waited outside at point F, reference plan Exhibit P.L. The Sub-Inspector and the two Panch witnesses were made to sit behind a heap of chaddars at places shown as c, d, E in plan Exhibit P.L. The complainant took his seat on the other side of the heap of chaddars at point A. When he had finished his evening prayers the accused-appellant entered his hut. He left his bicycle at point H and I should say unattended. He sat at point B close to the complainant. The accused-appellant addressed the complain­ant that if he was a devotee of the goddess, he should visit Vaishno Devi in his company which he promised to do. The complainant then informed the accused-appellant that he had already paid Rs. 100 to him in connection with the theft case and that he could pay him Rs. 100 more in connection with the present complaint as this was all which he had with him at the time. The accused stated that this amount was not enough for him to cover the expenses of the woollen uniform which he badly needed and that he should pay the entire sum of Rs. 150. The complainant handed over the money to the accused-appellant who after counting the same placed it in the inner pocket of his overcoat. The complainant offered tea to him which he declined. In the meantime S. I. Ved Parkash, Brij Nandan and Krishan Kumar (P. Ws.) came out and secured the accused-appellant. The complainant walked out of the hut and spitted on the ground which attracted the Deputy Superintendent of Police to the spot who after disclosing his identity and getting his person searched as he thought it was necessary under the law, in turn searched the accused appellant's person and recovered six currency notes Exhibit P.1 to P.6 of the value of Rs. 150 from the inner pocket of his overcoat. The numbers of these currency notes tallied with the numbers of the currency notes noted in memorandum Exhibit P.B. Further search of the accused person led to the recovery of a purse containing about Rs. 30 which were also taken into possession. The Deputy Superintendent of Police took into possession the paper including Exhibits P.D. and P.E. which the accused-appellant was carrying at the time. The bicycle left by the accused-appellant was taken into possession. The accused appellant was arrested. The case was investigated after obtaining sanction of the appropriate authority and the challan was put in the Court with the result as indicated above.

3. The accused-appellant in answer to question No. 15 put to him under Section 342 of the Code of Criminal Procedure explained the inci­dent in the following terms :-

“Ved Parkash S. I. and the two other witnesses jumped on me and caught me and Ved Parkash told me to produce the money to Mukat Dhari Singh. I had gone there to investigate the case under Section 107 of the Code of Criminal Procedure in which connection Bed Ram had been to the police station twice or thrice and hence promised to produce his evidence at his place while I had told Bed Ram that I would be there at 6.30 which I did. I asked for his evidence, but Bed Ram told me that he would produce it some other time. I was about to return when I was suddenly caught hold by Ved Parkash and the two other witnesses and Ved Parkash produced to the Deputy Superintendent of Police the amount recovered. I had no talk with Ved Ram about goddess or coat. Nor did I sit there.”

He continued to say that D. S. P, Mukat Dhari Singh, Bed Ram and Babu Lal Bechain were his enemies and the other two witnesses were under the police influence.

4. Bed Ram (P.W. 1), Brij Nandan (P.W. 2), Krishan Kumar (P.W. 4), D.S.P. Mukat Dhari Singh (P.W. 7) and S. I. Ved Parkash (P.W. 8) were cited at the trial to prove the prosecution version. The trial Judge believing their testimony came to the conclusion that the charges stood proved beyond doubt against the accused-appellant. The other witnesses cited at the trial were of a formal nature. The learned Counsel for the accused-appellant strenuously urged that the Court below had not properly appraised the prosecution evidence and this led him to wrong conclusions which indeed could not be sustained in law. He took me through the statements of these witnesses in extenso. I am of the opinion that the learned trial Judge had superficially gone through their statements and thus failed to take note of the facts which patently pointed out the false nature of the case. The prosecution for reasons which are not clear on the record failed to examine Babu Lal who is said to have lodged complaints Exhibits P. D. and P. E. against Bed Ram and also Babu Lal Bechain who is alleged to have taken Bed Ram to the Anti-Corruption Department, where D.S.P. Mukat Dhari Singh recorded Bed Ram's statement Exhibit P. A, in my opinion they were important witnesses and the commission to examine them and particularly Babu Lal Benchain at the trial weakened the prosecution case. The learned Counsel for the accused-appellant suggested that the statement of Babu Lal Bechain recorded by the police under Section 261 of the Code of Criminal Procedure, a copy of which was delivered to the accused-appellant, did not support Bed Ram's statement in its entirety and for this reason he was not cited at the trial. The learned Counsel for the State had nothing to urge against this argument. Furthermore, a careful perusal of plan Exhibit P. L. and the statements of the eye-witnesses will show that the three witnesses, namely, S. I. Ved Parkash, Brij Nandan and Krishan Kumar were made to sit for an appreciably 1ong time in a place the area of which has given therein comes to 73/4 feet into 4 feet. The accused appellant and the complainant are said to have taken their seats close to them. It is difficult to believe that these three witnesses sat like statutes for whole of the period the accused-appellant remained with the complainant inside the room. A little stir by them should have alarmed the accused-appellant and made him cautious. This aspect of the case was not given due consideration by the Court below. The gist of the conversation which is said to have taken place between the accused-appellant at the time of the passing of the bribe as given out by the complainant and the other three witnesses before the trial Court is discrepant Brij Nandan (P.W. 2) described this talk in these terms :

“Bed Ram told the accused that he was a poor man and could not afford to pay so much and he gave the currency note of Rs. 100 to the accused. The accused told him that it was a meagre amount and it would not suffice. Bed Ram than gave five currency notes of Rs. 10 each to him. The accused than said that he would have to contribute something to the said amount and only then it would be possible to get his uniform stitched.”

Krishan Kumar (P. W. 4) had his own story to tell which can best be given in his own words as follows:-

“Bed Ram then requested the accused to help him, because so many complaints were being made against him, Kharaiti Lal told him that so long as he was in Thana Kingsway Camp and he should not worry. Bed Ram then offered a currency note of Rs. 100 to the accused saying that he was making the payment as desired by the accused and that he the complainant, should have no trouble in future. “Kharaiti Lal then replied that Rs. 10 would not suffice for his securing a woollen uniform and that he should be paid the amount he had demanded.”

S. I. Ved Parkash (P. W. 8)was examined at a later stage. His testimony in regard to the incident is indeed a clumsy effort to reconcile the statements of Brij Nandan and Krishan Kumar which patently smacked of concoction. The evidence of these three witnesses failed to impress me because of the discrepancies therein and the surrounding circumstances such as small space, where they are said to have remained seated for a long time coupled with the fact that the accused-appellant, who is an astute police official, failed to notice their presence because they could not have stayed there all the time without making even a slight stir. The whole story appears so improbable.

5. There is another inherent defect in the prosecution case which has not been explained either by the trial Judge or by the learned Counsel for the State. Brij Nandan and Krishan Kumar (P.Ws.) frankly conceded that when the accused-appellant got up after receiving the bride he was firmly secured by them and S. I. Ved Parkash. The learned Counsel for the accused appellant submitted and with ample justification that the tainted money was planted on the accused-appellant in the course of his apprehension by the three witnesses. This argument has its own value. Curiously enough, the Deputy Superintendent before searching the accused appellant got his person searched which in the circumstances of the case was almost farcical. The accused-appellant had already been handled by the three prosecution witnesses whose persons had not been searched. I would like to mention here that Brij Nandan and Krishan Kumar. are petty clerks in an attached office of the Delhi Administration. It is common ground that the Anti-Corruption Department is also answerable to the Delhi Administration. In my opinion these two witnesses are not of the type of independent witnesses which law requires should witness such incidents so that their testimony may carry conviction with the Court. My belief is fortified from an incident which the defence has proved in this case. Trilok Nath Chopra of the office of the Vigilance Branch, Deputy Commissioner's Officer, (D. W. 3) stated from the file he brought with him that disciplinary proceedings had been started against Chandar Bhan, a clerk, in the office of the Deputy Commissioner, Delhi, on the receipt of a report from the Anti-Corruption Department to the effect that his statement before Mr. D. R. Dhameja, Special Judge, in a corruption case was not in conformity with the statement he is alleged to have made under Section 161 of the Code of Criminal Procedure before D.S.P. Mukat Dhari Singh. These statements Chandar Bhan is said to have made in a corruption case against Harish Chandar, Chandar Bhan (D.W. 4) in the witness box explicitly stated that his statement before the learned Special Judge was correct and on that score Harish Chandar was acquitted. He further gave out that he had not made any statement before the Deputy Superintendent of police but all the same he had been placed under suspension on the ground that the two statements were contradictory. The learned Counsel for the accused appellant in these circumstances legitimately argued that the two clerks could in no way be called as independent witnesses because of the fear that if they cared to depose in the Court which did not suit the police they would suffer like Chandar Bhan. The Anti-Corruption Department of the Delhi Administration in order to avoid such criticism should always make an earnest effort to associate outsiders having some status in life and in case it is not possible for them to do so they should join senior officials working in various departments of the Delhi Administration while conducting raids of the present kind. Thus it is clear that evidence of the members of the raid party in this case has not been corroborated by any independent, reliable and cogent evidence which could carry conviction with the Courts of law. It is well-night settled. That in cases of the present category the Courts should look for some corroborative evidence of independent character before relying on the statements of the members of the raid party, who undoubtedly are inter­ested in the success of the trap.

6. To sum up, the prosecution has omitted to examine two impor­tant witnesses Babu Lal and Babu Lal Bechain for reasons which are not patent on the record and the statements of the three witnesses who are said to have actually seen the passing of this bribe are noticeably dis­crepant and further no witness who would indeed in law and fact be called as independent has been cited to corroborate the statements of the members of the raid party and that being so the evidence as it stands on the record is barely sufficient to substantiate the charges against the accused-appellant who on that score was entitled to acquittal.

For the above reasons, the appeal is allowed and the conviction and sentence of the accused appellant are set aside- He is acquitted of the charges. He is on bail. His bail bonds are discharged. The amount of fine if paid, should be refunded.

Appeal allowed.