S.S Saron, J. — This is an appeal under Section 27 of the Prevention of Corruption Act, 1988 (‘Act’ for short) against the judgment and order dated 25.8.1995 passed by the learned Special Judge, Ferozepur whereby the appellant has been convicted for the offence under Section 13(2) of the Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- and in default of payment of fine, to undergo further rigorous imprisonment for three months.
2. Case F.I.R No. 167 dated 4.10.1993 (Ex. PB/2) for the offences under Sections 7 and 13(2) of the Act was registered at Police Station Zira on the statement (Ex. PB), of the complainant Baldev Singh son of Rattan Singh (PW-1). The complainant in his statement, stated that he is resident of Village Lahora and does agriculture work. On 20.5.1993, the complainant through sale deed purchased land measuring 11 kanals 15 marlas from Gureharan Singh son of Surat Singh, Jat resident of village Lahora. For getting mutation of this land, he in the month of June gave a copy of the sale deed to the Revenue Patwari of his area. The Patwari retained the original sale-deed and stated hat after entering the mutation he would get it sanctioned. The complainant further states that he met the Patwari of his area two-three times regarding the sanction of mutation but he kept putting him off. Then the complainant asked the Patwari as to why his mutation was not being sanctioned and the Patwari stated that, in fact, the sale-deed had been lost. The complainant then on 1.10.1993 made an application in the office of Sub-Registrar, Zira for getting a copy of the sale-deed. The Sub Registrar marked the application to the Registration Clerk, Zira. Then the complainant went with the application to Amrik Singh (appellant), who was the Registration Clerk, Zira and met him. The latter started saying that the work of the complainant was quite substantial and that for preparation of the copy and getting it signed from the Sub Registrar, he would take Rs. 200/- as bribe. On this, the complainant stated that he had earlier even made the payment with great difficulty and that his work was legal. Besides, he could not give so much bribe. It is stated that, however, on request the appellant agreed to do the work of the complainant on taking bribe of Rs. 100/-. The complainant stated that at that time he did not have the money. Amrik Singh (appellant) then stated that during the holidays he has to go out and he would prepare the copy of the sale-deed and after getting it signed from the Sub-Registrar keep it with him and on Monday in the afternoon, the complaint should come along with the bribe money and by paying the same take the copy. The complainant further stated that under compelling circumstances he agreed to pay bribe of Rs. 100/-. The complainant then reached the Bus Stand, Zira and he met Ajaib Singh (PW-2) son of Amar Singh, caste Jat, resident of Jhaner and he started asking the complainant as to what was the matter. The complainant then said that he had made an application for getting a copy of his registered sale-deed for which Amrik Singh, Registration Clerk (appellant) is asking for Rs. 100/- as bribe for giving the copy. The complainant further stated that he had made a false promise for paying the amount on 4.10.1993 in the afternoon and that he did not want to pay the bribe. Further that on 4.10.1993 i.e on Monday in case he (Ajaib Singh) comes along with the complainant to the Vigilance Office, Ferozepur, then this corrupt person can be got arrested. Ajaib Singh (PW-2) agreed to come to the Vigilance Office and on the day of the occurrence, i.e, 4.10.1993 Ajaib Singh (PW-2) aforesaid appeared before the Vigilance Officials and two Rs. 50/- notes amounting to Rs. 100/- were also presented before the Vigilance Officials and it was requested that action be taken. The statement was read over to the complainant Baldev Singh and was attested by Babu Singh, Inspector, Vigilance Bureau, Ferozepur. The Police took action on the said statement of the complainant Baldev Singh who had come along with Ajaib Singh (PW-2) son of Amar Singh, Jat, resident of Jhaner, Police Station Dharamkot in the office of Vigilance Bureau, Ferozepur. The statement of the complainant was recorded who signed below it in English after the same was read over to him. The same was attested by the Inspector Babu Singh. Two currency notes of Rs. 50/- each were given by the complainant which were to be given to the appellant as bribe on his asking. The notes were taken in possession of the Police and phenolphthalein powder was properly applied. These notes on which powder was applied were handed over to the complainant Baldev Singh after conducting his personal search and satisfying that he has no other currency notes etc. The complainant was instructed that he has to give the notes to Amrik Singh, Registration Clerk (appellant) only on his asking for bribe. Memo of taking possession of the currency notes and handing them over was separately prepared which was attested by the witnesses. The Inspector, Vigilance Bureau washed his hand with soap. Ajaib Singh (PW-2), above said was nominated to act as shadow witness and he was instructed that he has to go along with the complainant to the office of the appellant and that he would watch and hear the entire proceedings of his asking for the registered sale-deed and of procuring it. Besides, when the appellant asks for and accepts the bribe then on some pretext he should come out and make a signal to the raiding party standing at the back by taking his hand on the turban. On the statement of the complainant Baldev Singh, case regarding asking and taking bribe was made out for the offence under Sections 7 and 13(2) of the Act. The Inspector himself along with other police officials in government jeep No. PFB-9685 left for carrying out the raid in the office of Tehsil, Zira. The complainant and Ajaib Singh, shadow witness, were taken along. The investigation bag was also with the Inspector. The Government witness was to be joined with the raiding party on the way. On the above allegations and proceedings, the FIR was registered. On the way Narinder Kumar Kalra from the offence of PUNSUP, Ferozepur was joined as an independent witness. He was introduced by the Inspector Vigilance Bureau to the complainant and the shadow witness.
On reaching the crossing of Police Station Zira, Constable Baj Singh was sent to the Police Station with ruqa Ex. PB for getting the case registered and after registration, he was asked to reach the spot. The jeep was parked in front of the Civil Hospital, Zira and instructions were repeated to Baldev Singh, complainant (PW-1) and Ajaib Singh (PW-2) and they were sent to the accused and the raiding party stood behind them. After some time Ajaib Singh (PW-2) gave the signal as was planned and the raiding party as also Ajaib Singh entered the office of the appellant. The Inspector Vigilance Babu Singh (PW-5) introduced himself to the appellant, who was talking with the complainant. A glass of water was sent for and solution of sodium carbonate was prepared. In the first instance, Narinder Kumar Kalra, an independent witness was made to wash his hands in that solution, but the colour did not change. Thereafter, the appellant was made to wash his hands and when he did so the colour of the solution turned pinkish which was poured into a nip Ex. P-10. The same was sealed with the seal BSG and signatory chit of Narinder Kumar was made and taken in possession vide memo Ex. PF. Then the appellant was asked about the tainted notes and he produced before the Inspector two currency notes of Rs. 50/- denomination each (Ex. P-1 and Ex. P-2) from under the registers lying in the almirah which was behind the appellant. The numbers of the currency notes were compared and the same tallied and were taken in possession vide Ex. PE. On personal search of the appellant from the back pocket of his pant, a purse containing Rs. 21/-, one wrist watch from his left wrist and one ball pen were recovered and taken in possession vide memo Ex. PG. On personal search of the complainant, certified photostat copy of the sale deed Ex. PD and stamp paper worth Rs. 5/- were recovered and were taken in possession. A receipt book lying on the table of the appellant was recovered and take in possession vide memo Ex. PJ. All the memos were attested by complainant Baldev Singh, Ajaib Singh and the independent witness Narinder Kumar Kalra. The site plan Ex. PO with corrective marginal notes was prepared. The statements of the PWs were recorded and on return to the Police Station, the Investigating Officer deposited the case property with the MHC with seals intact. The nip that was taken in possession was sent to Forensic Science Laboratory and on receipt of the report, the challan was prepared and filed in the Court of learned Special Judge, Ferozepur on 9.5.1994 Sanction to prosecute the appellant Ex. PK was obtained.
3. The learned Special Judge, in terms of his order dated 18.5.1994 on finding a prima facie case, framed charge against the appellant for the offence under Section 13(2) of the Act to which the appellant pleaded not guilty and claimed trial.
4. The prosecution to prove its case examined complainant Baldev Singh (PW-1), shadow witness Ajaib Singh (PW-2), Mahavir Parshad, Junior Assistant (PW-3). who proved the posting of the petitioner, Prem Chand, Senior Clerk, Office of Deputy Commissioner, Ferozepur (PW-4), who proved the sanction Ex. PK given by the Deputy Commissioner for prosecution of the appellant. The learned Additional Public Prosecutor on 31.8.1994 gave up the independent witness Narinder Kumar Kalra as unnecessary and tendered in evidence affidavits of Constable Baj Singh and Constable Rai Bahadur Singh, Exs. PL and PM respectively. The learned counsel for the appellant stated that he did not want to cross-examine the witnesses of the affidavits. Babu Singh, Deputy Superintendent of Police. Vigilance, Kapurthala (PW-5), who was investigating officer of the case was examined and the report of Forensic Science Laboratory. Ex. PQ, affidavit, Ex. PR, of Head Constable Harbans Singh was tendered in evidence and the prosecution evidence was closed.
5. The statement of the appellant in terms of Section 313 Cr.P.C was recorded by the learned Special Judge on 21.9.1994 in which he stated that he was innocent and the complainant was forcibly thrusting the tainted money into his hands and he resisted and during the scuffle the tainted money fell down on the ground and in the meanwhile the raiding party came there and he was falsely involved and the money was lifted from the ground by the Vigilance party.
6. In defence, the appellant examined Virsa Singh, Office Kanungo, Zira (DW-1), who stated that mutation, which the appellant wanted to get done had been entered on 19.6.1993 by Jagdish, Halqa Patwari and it was sanctioned on 26.6.1993 on the basis of the sale-deed dated 20.5.1993 Ex. DA was the photostat of the order of the register which he had brought to the Court.
7. Jagdish Chander (DW-2) was examined, he was remained posted at Jhaner which is the village of Ajaib Singh (PW-2). He stated that Ajaib Singh had three sisters, namely, Jito, Prito and Bhajan Kaur. Prito was married to Rattan Singh, father of Baldev Singh. This fact was in his personal knowledge as he was Patwari at the time of registration of mutation of Baldev Singh, complainant. In this manner, Ajaib Singh (PW-2) was the maternal uncle of Baldev Singh and this was also in his personal knowledge. Baldev Singh and Ajaib Singh used to come to him occasionally.
8. After considering the evidence and material on record, the learned Special Judge, Ferozepur convicted and sentenced the appellant, which as already notice, is assailed in this appeal.
9. Shri S.S Narula, learned counsel appearing for the appellant has contended that the prosecution has miserably failed to prove the case against the appellant and the evidence is discrepant in material aspects. Therefore, the order dated 25.8.1995 passed by the learned Special Judge, Ferozepur is vitiated and is liable to be set aside. It is contended that there was no occasion for the appellant to demand or take bribe was paid on 4.10.1993 whereas the mutation on the basis of the sale-deed was entered on 19.6.1993 and sanctioned on 26.6.1993 Besides, there is no corroboration of demand of money and Ajaib Singh (PW-2), who is a shadow witness in the case is an interested witness in view of close relationship. Moreover, the only independent witness Narinder Kumar Kalra was given up so adverse inference is liable to be drawn. It is also contended that Baldev Singh, complainant (PW-1) suppressed the fact that he is a Document Writer at Zira and this goes to show that he could manipulate the false implication of the appellant. It is also contended that the entire formalities before conducting the raid were not carried out by the Inspector, Vigilance, inasmuch as, the currency notes are not shown to have been initialled neither is there any evidence of administration or applying of phenolphthalein powder and the Investigating Officer also did not offer his personal search.
10. In response, Shri Jagjit Singh, learned Assistant Advocate-General, Punjab appearing for the State submits that the prosecution has proved its case in all material aspects and the case against the appellant stands fully established. Therefore, there is no reason to set aside or interfere with the order of conviction.
11. It is appropriate to note that in a criminal trial the prosecution has to prove its case beyond shadow of any reasonable doubt. This Court in the case of Kuldip Rai v. State of Punjab, 2002 (2) RCR (Criminal) 781, held that these types of cases are to be treated on different footing so far as the appreciation of evidence is concerned and if conviction takes place in these cases, not only the accused goes to jail but he also loses his livelihood and earns ignominy. Therefore, while appreciating the evidence in these cases, the Court has to be careful and circumspect keeping always in view that if two views are possible, that view should be adopted which is favourable to the accused. Therefore, it is beyond doubt that the evidence in a criminal case has to be appreciated and the guilt of an accused is to be proved beyond shadow of reasonable doubt after appreciation of evidence on record.
12. As has already been noticed the allegations in the FIR are that the complainant does work of agriculture and on 20.5.1993 he has purchased land measuring 11 kanals 15 marlas from one Gurcharan Singh son of Surat Singh of village Lohara. The original sale-deed had been given to Jagdish Chander, Revenue Patwari of the area for the purposes of entering and sanctioning mutation. The complainant had been pursuing the matter regarding entry and sanctioning of the mutation in respect of the land measuring 11 kanals 15 marlas which he had purchased but the Revenue Patwari was putting off the matter on one pretext or the other. Thereafter, he asked him as to what was the reason for not sanctioning the mutation. To this, the Patwari stated that he had misplaced or lost the original sale-deed. It is on this account that Baldev Singh (PW-1) applied before the Sub-Registrar for a certified copy of the sale-deed on 1.10.1993 and the Sub-Registrar marked his application Ex. PA to the appellant, who was working as Registration Clerk. When the complainant Baldev Singh (PW-1) approached the appellant with that the application, he demanded Rs. 200/- as illegal gratification for granting him certified copy and ultimately the matter was settled for Rs. 100/-. Baldev Singh (PW-1) in his deposition in Court reiterated the version as given by him before the Vigilance Bureau on the basis of which FIR (Ex. PB/2) was registered in the case in hand. It is stated by Baldev Singh (PW-1) that he purchased land measuring 11 kanals 15 marlas from Gurcharan Singh son of Surat Singh of Village Lohara. He also reiterated his version regarding the misplacement of the original sale-deed by the Halqa Patwari and then he making an application for a certified copy of the same from the Tehsil office at Zira. He also reiterated about the demand for bribe by the appellant and the raid being conducted by the Vigilance Officials which led to the recovery of the tainted currency notes Ex. P-1 and P-2 of Rs. 50/-. In his cross-examination, it is stated that he is M.A (Economics) and he passed M.A examinations from Government College, Muktsar in the year 1979.
13. It is, however, appropriate to note that one factor which has been suppressed by the complainant during the investigation and has come in the cross-examination is that Baldev Singh complainant (PW-1) was working as a Document Writer in the Tehsil Complex at Zira. In his cross-examination, it is stated that he had never disclosed his identity as a Document Writer while making statement to the Investigating Officer or throughout the investigation. He further states that he started doing the profession of Document Writer at Zira in the year 1984 and he continued to do the same till the date of his deposition before the Court of learned Special Judge. Ajaib Singh (PW-2) states that on 1.10.1993 Baldev Singh (PW-1) met him at the bus stand, Zira and informed him that he has to get certified copy of the sale-deed but the Registration Clerk demanded Rs. 200/- from him for delivering the copy and that now the matter has been settled at Rs. 100/-. Baldev Singh asked Ajaib Singh if the former would support him then they would go to the Vigilance Department. Since next two days were holidays so they decided to go to the Vigilance Department on 4.10.1993, on which day they assembled at Moga and from there they came to Ferozepur and went to the office of Vigilance Department. The statement of Baldev Singh was recorded by the Inspector and Baldev Singh handed over two currency notes of Rs. 50/- each to Babu Singh, Inspector (PW-5). Babu Singh then put powder on these notes and returned them to Baldev Singh. Instructions were given to hand over the said two notes to the appellant when the copy of the sale-deed was supplied to Babu Singh (PW-1). Ajaib Singh (PW-2) was asked by Inspector to accompany the complainant and when the amount was accepted by the accused to give a signal by putting his hand on the turban. One government employee Narinder Kumar Kalra from PUNSUP Department was also joined by the raiding party by the Inspector and thereafter the raid was carried out. Baldev Singh (PW-1) and Ajaib Singh (PW-2) went to the office of the appellant and Baldev Singh handed over two notes to the appellant who handed over copy of the sale-deed. The notes were given to the appellant for taking the certified copy of the sale-deed by Baldev Singh (PW-1). The appellant kept those notes in his almirah and Ajaib Singh came out to give signal to the police party to reach the office. Babu Singh, Inspector then prepared solution in the water and got the hands of Narinder Kumar Kalra washed but its colour did not change. Then the hands of the appellant were washed in that solution which solution became pink. The solution was put in a nip, sealed and taken into possession. Thereafter, the appellant produced two notes Ex. P-1 and P-2 which were lying underneath the register in the alimirah which were also taken in possession. Thereafter, personal search of the appellant was carried out. In his cross-examination, Ajaib Singh (PW-2) states that boundaries of his village and that of the village of the complainant adjoin each her and he being the President of the Society knew Baldev Singh (PW-1) earlier and had relations with him only to the extent that he had been purchasing fertilizer from the Society. It is further stated by Ajaib Singhu (PW-2) that he neither knew the officials of the Vigilance Bureau earlier nor he had visited them prior to that. They had not taken any person with them who may be known to the Vigilance Department. The Police party was standing at some distance separately from each other when they had entered the office of the appellant. It is also stated that he did not know the appellant earlier and that it was wrong that he deposed falsely. Ajaib Singh (PW-2) also denied the suggestion that the complainant was thrusting two notes in the hands of the appellant against his will and when he resisted the two notes fell down on the ground and that no notes were produced by the appellant from the almirah.
14. It is appropriate to note that the complainant Baldev Singh in his statement (Ex. PB) on the basis of which FIR (Ex. PB/2) was recorded, stated that he was doing the work of agriculture and was residing at Lohara. He did not earlier disclose the fact that he was working as Document Writer. A Document Writer in the Tehsil complex also knows the working of the Tehsil Officials. It is quite strange that in case Baldev Singh (PW-1) was working as a Document Writer all along from 1984 onwards and till the date of his deposition in Court he would state that he does the work of agriculture in his statement (Ex. PB) before the Inspector, Vigilance Bureau. In the case of Suraj Mal v. State (Delhi Administration)), AIR 1979 S.C 408, it was observed by the Hon'ble Supreme Court that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witnesses. The said case was a case of bribery and it was held that mere recovery is not sufficient to convict the accused when the substantive evidence in the case is not reliable.
15. In the case in hand, another circumstance which is required to be noticed is that the complainant Baldev Singh (PW-1) had applied for copy of the sale-deed from the Registration Clerk on 1.10.1993 In his statement (Ex. P-8), on the basis of which FIR (Ex. PB/2) has been registered it is mentioned that he needed the certified copy of the sale-deed so as to get the mutation sanctioned and that the Patwari had informed him that the original sale-deed had been misplaced. In this respect, it is appropriate to note that in fact the mutation which the complainant Baldev Singh (PW-1) is alleged to be wanting to get sanctioned had in fact already been sanctioned on 26.6.1993 Virsa Singh, Office Kanungo, Zira (DW-1) appeared in the witness box and stated that the Assistant Collector IInd Grade on 26.6.1993 had sanctioned mutation on the basis of registered sale-deed dated 20.5.1993 and Ex. DA was the photostat copy of the order on the register which he had brought on that date. Therefore, the very basis for seeking the certified copy of the registered sale-deed stands belied by the evidence of Virsa Singh (DW-1). In G.V Nanjundiah v. State (Delhi Administration)), 1988 Crl.L.J 152 (S.C), the Hon'ble Supreme Court considered a case where the appellant therein was an Engineer and was charged for accepting bribe from a contractor working under him. The contractor alleged that the appellant therein who was an Executive Engineer was not making payment of Rs. 1 lac to him which was deducted by way of security from his running bills. It was alleged that there was delay in payment to him for additional items of work executed by him. The complainant is stated to have asked the Executive Engineer on three-four occasions to release the security amount and to sanction the amount due on account of extra items of work done by him. The matter is stated to have been settled for Rs. 2,500/- which the complainant alleged was given at the house of the accused Executive Engineer on 30.10.1973 in which the accused was trapped. In fact, the case of the accused was that he had been fair to the contractor and that the release of the security amount had never been delayed. According to the accused the Accountant in the office was in league with the contractor. Besides, the accused Executive Engineer had made payments to the contractor within the limits of his power which was to the extent of Rs. 25,000/- and he in all had made payment of a sum of Rs. 1,84,000/- on account of the extra works. In the circumstances, it was observed by the Hon'ble Supreme Court that the foundation of the prosecution case of the demand made by the appellant for bribe had been shaken to a great extent and in any case it casts a grave doubt an the subsequent event that was alleged to have taken place in the matter of giving bribe. In the circumstances, it was observed that the question as to handing over of any bribe and recovery of the same from the accused is to be considered along with other material circumstances, one of which was the question whether any demand was at all made by the appellant for bribe and when it was found that no such demand was made by the accused and the prosecution has given a false story in that regard, the Court would view the allegations of demand of bribe and the recovery of the same from the accused with great suspicion. The said case was a case of an Engineer, who was alleged to have accepted bribe from a contractor.
16. In the case in hand the appellant was a Registration Clerk, who was working in the office of Sub-Registrar, at Zira. The complainant was a Document Writer in the said office where they must be having dealings with each other. In the circumstances, the fact that the complainant suppressed his vocation as a Document Writer and stated that he was doing agriculture work is a circumstance which castes reasonable doubt in the mind of the Court that he was not a trustworthy witness. This is seen in the context that the purpose for which the copy of registered sale-deed had been applied i.e for the getting mutation sanctioned is also not tenable as the mutation had already been sanctioned on 26.6.1993, whereas the copy of the registered sale-deed was applied on 1.10.1993
17. Therefore, in the circumstances, it cannot be said that the appellant accepted the bribe as a motive or reward for doing or forbearing to do any official act. This is so for the reason that the very purpose of approaching the appellant for obtaining the certified copy of the registered sale-deed for the purpose of entering and thereafter sanctioning of the mutation had already been achieved with the sanction of mutation on 26.6.1993 The sequence of events as narrated by Baldev Singh (PW-1) shows that the very purpose for obtaining the copy of the registered sale-deed had already been achieved with the sanction of mutation. Therefore, the sequence of events as narrated are not very natural and the same do cast a reasonable doubt of his deposition in Court. In State Of U.P v. Ram Asrey ., 1990 C.A.R 133 (SC), a student of B.A Ist year presented an application before the accused therein at the directions of the Tehsildar, Fatehpur for obtaining a certificate to the effect that he belongs to Backward Class so that he could apply for his scholarship provided for the Backward class students. The accused demanded a sum of Rs. 20/- as bribe for expediting the matter but the student agreed to pay Rs. 10/-. The matter was reported to the Superintendent of Police, Vigilance Department, U.P and a trap was laid. The student paid a sum of Rs. 10/- smeared with phenolphthalein and on a signal given by the student, the Vigilance Police with two other independent trap witnesses went to the office of the Tehsildar and recovered a sum of Rs. 10/- from the accused after following all formalities. The accused was acquitted by the appellate Court by giving various reasons and one of the reason was that no evidence whatsoever was produced to show that the student required a Backward Class certificate for getting the scholarship in the month of November. In the case in hand also there is no convincing evidence to show that the complainant Baldev Singh (PW-1) required the copy of the sale-deed on 1.10.1993 when he made application for getting the mutation sanctioned which, in fact, had already been sanctioned on 26.6.1993 Besides, also the fact that the complainant (PW-1) has, for reasons best known, suppressed the fact that he was working as a Document Writer in the Tehsil office at Zira where the appellant was working as a Registration Clerk.
18. Another contention that has been raised by the appellant and which merits consideration in the circumstances is that the Patwari of the area, who is alleged to have stated that he had lost the copy of the original sale-deed which the complainant had given for the purpose of entering and sanctioning the mutation has not been examined as a witness. Therefore, the non-examination of the Patwari of the area of the complainant would show that the sequence of events as narrated by the complainant are not free from doubt.
19. The contention of the counsel for the appellant that there is no corroboration of the demand made may also be considered. Ajaib Singh (PW-2) is stated to be knowing about demand of bribe by the appellant. As already noticed, Ajaib Singh (PW-2), shadow witness states that he met Baldev Singh (PW-1) at the Bus Stand and he informed him that he had to get certified copy of the sale-deed but the Registration Clerk demanded Rs. 200/- from him for supplying the copy. Jagdish Chander (DW-2), Revenue Patwari of the Area had brought the original mutation register and according to that register the inheritance of one Amar Singh went to Pal Singh and Ajaib Singh (PW-2) sons of Amar Singh. In the pedigree table there are also three daughters, namely, Jito, Prito and Bhajan Kaur. Prito is married to Rattan Singh, father of Baldev Singh (PW-1). This fact is stated from his personal knowledge as he was posted Patwari at the time of registration of mutation of Baldev Singh, complainant. In this manner, Ajaib Singh (PW-2) is the maternal uncle of Baldev Singh (PW-1) and this was also in his personal knowledge. Jagdish Chander (DW-2) was cross-examined by the State. However, no suggestion was put to him as regards the relationship between Ajaib Singh (PW-2) and Baldev Singh (PW-1). The suggestion which was denied by Jagdish Chander (PW-2) was that it was wrong to say that he had deposed the relationship of Prito with Rattan Singh and of Ajaib Singh with Baldev Singh to help the accused. However, no suggestion was put that there is no relation between Ajaib Singh (PW-2) and Baldev Singh (PW-1). Jagdish Chander (DW-2) has been Revenue Patwari of the area and the Patwaris of the area normally know about the relationship. It was not put to Jagdish Chander (DW-2) that Prito sister of Ajaib Singh (PW-2) was not married to Rattan Singh, father of Baldev Singh (PW-1). Therefore, the Patwari can be said to be one of the persons who has special means of knowledge of relationship. It is well known rule of evidence that party must put its case in cross-examination and failure to cross-examination on a particular point recorded in the examination-in-chief is deemed to be admitted. As has already been noticed, Ajaib Singh (PW-2) in his cross-examination only states that he knew the complainant as he was President of the Society and had relations with him only to the extent that he has been purchasing fertilizer from the Society. Besides, the boundary of his village adjoins with that of the complainant. Jagdish Chander (DW-2) being Revenue Patwari in the area and having dealt with the mutation of Amar Singh can be said to be a person, who has special means of knowledge of the relationship between Prito, sister of Ajaib Singh (PW-2) being married with Rattan Singh, father of Baldev Singh (PW-1) and, therefore, Ajaib Singh (PW-2) had common interest with Baldev Singh, complainant (PW-1). However, this relationship between the complainant Baldev Singh (PW-1) and the shadow witness Ajaib Singh (PW-2) has, for reasons best known, been suppressed by the prosecution which casts a serious doubt as to the veracity of the prosecution case. Both were, therefore, interested witnesses. Jagdish Chander (DW-2), Revenue Patwari has no reason to depose falsely in the case and he has deposed on the basis of his knowledge as a Revenue Patwari of the area and he had dealt with the mutation of Amar Singh. It is also appropriate to note that Ajaib Singh (PW-2) in his deposition in the Court does not corroborate the fact that the appellant had demanded bribe from Baldev Singh, complainant (PW-1).
20. In Ayyasami v. State Of Tamil Nadu., 1992 (1) RCR (Crl.) 413 (SC) : AIR 1992 SC 644, the appellant therein was Deputy Naib Tehsildar and convicted for the offence under Section 161 IPC and Section 5(1)(d) of the Prevention of Corruption Act, 1947. He was tried for demanding and accepting the bribe of Rs. 100/- for issuing a solvency certificate to a contractor. The appellant was convicted by the High Court and while allowing the appeal of the appellant therein one of the factors amongst others that was taken into account was that there was no independent evidence to show that the appellant therein demanded Rs. 100/- as bribe from the complainant and it was observed that the conviction was based more on probabilities than on the evidence proving the guilt against him beyond reasonable doubt. Besides, Ajaib Singh (PW-2) is a witness of the trap and in case of trap the witnesses of the trap where he is found to be interested it would be prudent that his evidence is corroborated by independent evidence. In State Of Bihar v. Basawan Singh, AIR 1958 SC 500, it was held as follows.
“The correct rule is this : if any of the witnesses are accomplices who are praticeps criminis in respect of the actual crime charges, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the Court may even look for independnet corroboration before convicting the accused person. If a Magistrate puts himself in the position of a partisan or interested witness, he cannot claim any higher status and must be treated as any other interested witness.”
22. In the case in hand, it has already been noticed that Ajaib Singh (PW-2) the shadow witness and complainant Baldev Singh (PW-1) are related to each other and this relationship has been suppressed. Therefore, Ajaib Singh (PW-2) cannot be said to be an independnet witness but in the circumstances, is a partisan and an interested witness. Besides, he was concerned and interested in the success of the case. Therefore, the evidence on record is to be tested in the same way as other interested evidence is tested by application of the diverse consideration which vary from case to case. In the circumstances, the non-examination of Narinder Kumar Kalra, who was an independent witness affects the case of the prosecution in material particulars as regards the handing over of the two currency notes smeared with phenolphthalein powder to the appellant.
22. In Sat Paul v. Delhi Administration ., 1976 SCC (Cri.) 160, it was held that trap witnesses are interested witnesses concerned with the success of the trap and qualitatively their testimony is inferior to that on an ordinary interested witness. Besides, it was observed that corroboration of such interested witness from independnet source is essential where witnesses have poor moral fibre with bad antecedents and have motive to remove the accused from their way. Corroboration of another trap witness, who was a police official was held not to be sufficient.
23. The other circumstance which requires consideration though may not be of much consequence but assumes significance in the circumstances is that from the evidence produced by the prosecution the guilt of the appellant cannot be said to be established beyond shadow of reasonable doubt. The circumstances are that the currency notes smeared with phenolphthalein powder were not initialled and there is no evidence regarding smearing the currency notes with phenolphthalein powder. In the backdrop the plea of the appellant that the currency notes were thrust on him assumes significance as complainant Baldev Singh (PW-1) had applied for copy of the registered sale-deed for the purpose of mutation which had, in fact, already been done. Besides, Ajaib Singh (PW-2) was related to complainant Baldev Singh. Therefore, it is to be seen whether the acceptance of the tainted money raises a presumption within the meaning of Section 20(1) of the Act. Section 20(1) of the Act is pari materia to Section 4(1) of the Prevention of Corruption Act, 1947. In Banshi Lal Yadav v. State Of Bihar., AIR 1981 SC 1235, in the context of Section 4(1) of the Prevention of Corruption Act, 1947, it was held as follows :—
“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 the Code of Criminal Procedure with reference to the circumstances appearing against him in evidence, only stated that currency notes were thrust in his pocket, that statement by itself without anything more is not sufficient to satisfy the necessary ingredients of Section 4(1) that accused accepted or obtained or has agreed to accept or attempted to obtain, any gratification other than legal remuneration so as to be able to raise the presumption. Acceptance or obtaining, or agreeing, to accept or attempting to obtain is a voluntary act. In the statement of the accused, this element of voluntary acceptance is missing. 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. In fact accused denied having accepted bribe and stated that he was the victim of malevolent act of Naushad in thrusting marked currency notes in his pocket. This statement will not show acceptance of illegal gratification and the High Court was in error in raising the presumption under Section 4.”
24. It has not come in the evidence of Babu Singh, Inspector, Vigilance Bureau (PW-5) that he offered himself for personal search. In this context, a Division Bench of this Court in State of Haryana v. Sudesh Kamal, 1991 (2) RCR 641, found the prosecution version about the payment of Rs. 100/- by the complainant therein to the accused or the acceptance of such illegal gratification by the accused to be not free from doubt as apart from other circumstances it had come in the evidence that the person who allegedly conducted the personal search of the accused was not searched at all before he conducted the search of the accused.
25. For the foregoing reasons, as have been recorded above, it is evident that the prosecution has failed to bring home the guilt of the accused beyond reasonable shadow of doubt, which as has already been observed in respect of cases under the Act are to be treated on different footing so far as the appreciation of evidence is concerned. Therefore, in my view the learned Special Judge, Ferozepur erred in recording the finding of guilt against the appellant.
26. Accordingly, the appeal is allowed and the judgment and order passed by the learned Special Judge, Ferozepur is set aside and the appellant is acquitted of the offences attributed to him.