N.K. Das, J.
1. This appeal is directed against conviction of the appellant under Section 161, I.P.C. and Section 5 (2) read with Section 5(1)(d) of the Prevention of Corruption Act sentencing him to undergo R.I. for one year on each count and to pay a fine of Rs. 500/-, in default to undergo R.I. for three months more under Section 5(2) of the Prevention of Corruption Act. The substantive sentences have been directed to run concurrently.
2. Prosecution case is that the appellant was the Sub-Assistant Engineer (Overseer) under Banki Block No. 1 for two years, including 1971. P. W. 1, a Ward Member of Bandala Gram Panchayat took contract for construction of a grain gola building at Baunsaput in 1959 at Rs. 5,200/-. Though he completed the work within two to three years, yet no final measurement was made nor final bill was passed and the Block also did not take delivery of possession of that building. Ultimately, under orders of the B D.O., the appellant went and measured the work on 10-10-69. P. W. 1 met the appellant four days thereafter and requested to finalise the bill. But the appellant demanded Rs. 500/- for that purpose and after bargain it was settled that P. W. 1 would pay Rs. 200/-. As P. W. 1 expressed his inability to pay the amount of Rs. 200/-, the appellant did not finalise the matter. The question was discussed in a meeting of the Panchayat on 28-10-71 where the appellant stated that the construction work done by P. W. 1 was full of defects and his bill was to be rejected. The Chairman of the Panchayat Samiti (P. W. 3) directed the appellant to finalise the bill as it was an old pending case. After the meeting, P. W. 1 went to the appellant twice and requested him to finalise the matter. On 22-11-71, P. W. 1 expressed before the appellant that he was unable to pay the amount of Rs. 200/- at a time and so the appellant suggested that P. W. 1 should pay Rs. 100/- within a day or two and the balance amount of Rs. 100/- would be paid after final payment. P. W. 1 then came to the S. P., Vigilance, Cuttack with Rs. 100/- on 23-11-71 and lodged F. I. R., Ext. 1. On 24-11-71, he along with the vigilance party came to Banki, but the vigilance party returned as the appellant was absent from headquarters that day, Thereafter, another vigilance party went to Banki on 25-11-71 in the forenoon. The party learnt at the Inspection Bungalow from P. W. 1 that the appellant had returned to headquarters. P. W. 8, the I. O., went out and called P. Ws. 2 and 3. At the Inspection Bungalow, the facts of the case were explained to them. P. W. 1 produced the sum of Rs. 100/-, all in shape of ten-rupee G. C. notes, meant to be paid to the appellant and a preparation report was made by P. W. 8 wherein numbers of the G. C. notes were noted. P. W. 8 returned the notes to P. W. 1 and directed him to pay the money to the appellant, only on demand. P. W. 2 was asked to accompany P. W. 1 as overhearing witness. Thereafter P. Ws. 1 and 2 left for the Block Office and the rest of the members of the party followed them and waited near the Block Office building. P. Ws. 1 and 2 met the appellant in the main office room of the Block. The appellant told P. W. 2 to receive payment of his dues in respect of the work of a road of which he had taken contract and bill for which had been finalised. The appellant also told P. Ws. 1 and 2 to meet him at about 1 p.m. when he would be going out for lunch. At about 12-30 p.m., P. Ws. 1 and 2 went to the Block Cashier P. W. 5 and P. W. 2 received a sum of Rs. 800/- from P.W. 5. When P. W. 2 received this payment, the appellant went out of the office room giving indication to P. Ws. 1 and 2 to follow him. Outside the Block Office, the appellant demanded Rs. 40/- from P. W. 2 and P. W. 2 gave the said amount to the appellant in shape of ten-rupee G. C. notes which the appellant put inside his right side pant pocket. Then, on demand by the appellant P. W. 1 also paid him Rs. 100/- and the appellant put that amount inside the same pocket also. P. W. 1 thereafter gave the pre-arranged signal and the vigilance party rushed to the spot from the place where they were waiting. At the spot, P. W. 8 gave identities of himself and other members of the vigilance party to the appellant and demanded production of the bribe money of Rs. 100/- received by him from P. W. 1. The appellant became perplexed and mum and then fumbled. On repeated demands, the appellant produced Rs. 100/- from his pant pocket and made over to P. W. R. This money was handed over by P. W. 8 to P. W. 3, who compared the numbers of the G. C. notes and found those tallying with the numbers noted in Ext. 3/1. P. W. 8 then took personal search of P. W. 1, but found nothing While he was about to make personal search of P. W. 2, the latter made production of Rs. 760/- and informed about his payment of Rs. 40/-, out of the total amount of Rs. 800/- received by him, to the appellant. Then, on demand by P. W. 8, the appellant also produced the said amount of Rs. 40/- along with an-other small amount and some sundry articles from his pocket. All these were seized.
3. The defence plea is one of denial. It is further pleaded by the appellant that he did not comply with the undue and irregular requests of P. Ws. 1, 2 and 3 regarding certain contract works undertaken by them for which they bore grudge against him. He also made a confidential report Ext. B against P. W. 3 to the B. D. O. and had sent a copy thereof to the S.D.O., Banki. Besides, he had also filed a complaint against P. Ws. 1 to 3, 7 and 8 and for these reasons they all colluded and foisted this case. His case is that on the date of occurrence while he was about to get up on his cycle for lunch, P. Ws. 1 and 2 obstructed him and tried to thrust something into his right side pant pocket. When the appellant verified what they had put inside his pocket, he found some torn papers and that some G. C. notes were lying on the ground near him. Just at that time the vigilance party arrived at the spot and picked up those papers and G. C. notes from the ground and compelled him to sign on the seizure list.
4. The learned trial Court has accepted the testimony of P. Ws. 1, 2 and 3 along with that of P. Ws. 7 and 8 for holding the appellant guilty. Though arguments were advanced before him relating to ill-feeling between the appellant and P. Ws. 1, 2 and 3, yet the learned trial Court came to the conclusion that P. W. 3 the Chairman had no knowledge about the report by the appellant against him. He has further held that nothing has been brought out on record to discredit the testimony of these witnesses and the discrepancies found in the evidence are minor.
5. There is no dispute about the fact that in the year 1959 P. W. 1 had taken contract for construction of the grain-gola under the Block and no final payment had been made till the date of occurrence. It is also not disputed that towards the last part of 1969, the appellant made measurement of the construction made by P. W. 1 and till the date of occurrence the Block had not taken delivery of the graingola from P. W. 1. It would also appear from the measurement book Ext. A that measurement had been made towards the end of 1969. The measurement book coupled with the estimate Ext. E and. the report of the appellant Ext. 18 would show that the appellant had already made a report that the construction work done by P. W. 1 was not as per the estimate Ext. E in many respects. In this connection, my attention was drawn to items 4, 5 and 13 of Ext. E. From Ext. A and Ext. 18, it would also appear that the construction was not according to the estimate and some work had been done which was not at all included in the estimate. It is also admitted that in a Panchayat meeting the appellant had expressed that the bill submitted by P. W. 1 could not be approved and had to be rejected because the construction work done by him was full of defects and was not according to estimate. This fact is evident from the F. I. R. and is admitted by the prosecution witnesses. Prosecution case further is that in a meeting the B. D. O. said that P. W. 3 directed the appellant to finalise the bill of P. W. 1. But from the prosecution case, it would appear that even in spite of that the appellant did not finalise the bill. The fact that P. W. 3 directed the appellant to finalise the bill is stated by all the prosecution witnesses as well as by the B.D.O. (D. W. 1). But what was discussed in the Panchayat meeting is not forthcoming in evidence. No resolution or copy of the proceedings has also been produced in Court. Prosecution has come up with a story that prior to the meeting of the Panchayat, P. W. 1 approached the appellant several times, but the appellant did not comply with his requests. In this respect, there is no other evidence on record excepting the oral testimony of P. W. 1. Even if it is assumed that P. W. 1 made requests prior to the meeting, the fact remains that in spite of such requests the appellant did not finalise the bill. The narration of events as stated by prosecution would show that from the time of measurement by the appellant in the month of October 1969 till the date of the alleged occurrence the appellant did not finalise the bill of P. W. 1. The explanation given by the appellant is that the construction was not according to estimate and the bill did not tally with the estimate and contained several items which were not included in the estimate and, as such, there was reason for not finalising the bill. It is further stated that the appellant declared that the bill was to be rejected. The fact that the appellant said that the bill would be rejected is also admitted by the prosecution witnesses who are said to be present in the meeting of the Panchayat.
From 28th October, 1971, the date of the Panchayat meeting, till 22nd November 1971, there is no evidence to show as to what happened in the meanwhile. But P. W. 1 comes with a story that he approached the appellant twice during this period and the appellant demanded Rs. 500/- from him. Though ultimately the amount was settled at Rs. 200/-, yet P. W. 1 did not agree to pay the same. Besides the oral testimony of P. W. 1, there is no other evidence supporting the aforesaid fact. Prosecution case starts from 22-11-71. On this date it is alleged, P. W. 1 approached the appellant and the appellant agreed that he (P. W. 1) would pay Rs. 100/- within a day or two and the balance after final payment. Also on this point, besides the oral testimony of P. W. 1, there is no other evidence. It may be remembered here that in the last sentence of his deposition P. W. 1 has stated that he had brought Rs. l00/- on 22-11-71 from his home. But he says that in the night of 22-11-71 he decided that he should approach the vigilance people about this payment. In this connection, it is contended on behalf of the appellant that when P. W. 1 was so very anxious for finalisation of his bill and he was ready with Rs. 100/- which he had brought from his home and the appellant had also agreed for payment of Rs. 100/- to him, there was no reason why P. W. 1 did not pay the money then and there to get his bill finalised quickly, but waited till night and, in the night, he decided to approach the vigilance people. It is, therefore, contended that the story narrated by the prosecution about the occurrence of 22-11-71 is not free from suspicion.
6. On the next day, i. e. 23rd, P. W. 1 came to Cuttack, approached the vigilance people and lodged F. I. R. Then on 24th the vigilance party came to Banki along with P. W. 1, but P. W. 1 informed the vigilance party that the appellant was absent from headquarters. This would show that on 24th the appellant was not present at Banki. In this connection, reliance has been placed on behalf of the appellant on the tour programme Ext. 8 submitted by the appellant. As appellant was absent from headquarters, the vigilance party, as alleged by the prosecution, returned back to Cuttack. Again the party came to Banki on the following day i. e. 25th. After the party reached the Inspection Bungalow, P. W. 1 informed them that the appellant had come back to Banki. Then P. W. 8 went out in search of some respectable witnesses and within ten to fifteen minutes he came back with P. Ws. 2 and 3. Out of these two witnesses, P. W. 3, who was the Chairman of the Panchayat Samiti, was selected to accompany the vigilance party and P. W. 2, who was a Ward Member of the Block, was selected as overhearing witness. The preparation was also made in presence of P. Ws. 2 and 3.
It is contended on behalf of the appellant that selection of these P. Ws. 2 and 3 was a stage-managed affair and was the outcome of a collusive attempt on the part of P. Ws. 1, 2 and 3, inasmuch as they had previous enmity with the appellant. The appellant has relied on Ext. B, the report made, by him on 1-11-71, wherein he had narrated to the B. D. O. how P. Ws. 1, 2 and 3 had been making concerted attempt to make illegal gain by means of execution of the contract works undertaken by them and were pressurising the appellant to be a party to such illegal gain, but the appellant did not accede to their attempt to take undue and unfair advantage. It appears from Ext. B that the appellant requested for his transfer from that place at an early date and also requested the B. D. O. that the higher authorities might be apprised of the situation. The appellant also sent a copy of Ext. B to the concerned S. D. O. My attention was drawn to another factor which depicts the strained relationship of P. W. 1 and the appellant. From Ext. C it appears that P. W. 1 had also undertaken another contract work. He had submitted a bill for Rs. 600/-, but final payment was made only for Rs. 300/- and odd. When P. W. 1 was asked about this, he completely denied such a fact. But from Ext. C., it is abundantly clear that P. W. 1 was not speaking the truth and suppressed the fact. This is a clear indication of strained feeling between P. W. 1 and the appellant. Ext. B would show that it was long prior to the alleged occurrence. On the other hand, it indicates that some sort of undue pressure was being put by P. W. 3 on the appellant. It is also evident from the prosecution evidence that in Oct. 1971, P. W. 3 directed the appellant to finalise the bill of P. W. 1. Though prosecution comes with a story that the question of finalisation of the bill of P. W. 1 was raised by P. W. 1 in the meeting, the appellant in his statement under Section 313 Cr. P.C. has stated that it was P. W. 3 who raised that question in the meeting. It would, therefore, be seen that after the meeting was held in Oct. 1971, the appellant was apprehending troubles from the side of P. Ws. 1 and 3. P. W. 2 was a Ward Member and against him the appellant had also reported to his authorities which would be evident from Ext. B. This P. W. 2 played a role in the scene of giving and taking of bribe. I would presently indicate why no reliance can be placed on the testimony of this witness.
7. It would be seen that only P. Ws. 2 and 3 were made available to P. W. 8 for preparation of the trap and detection of bribery and no other gentlemen of the locality could be selected by the vigilance people for this purpose. It may be remembered that the party had gone to the locality along with P. W. 1 on the day previous to the alleged occurrence. The party returned, but P. W. 1 remained at Banki. This would indicate that P. W. 1 was at the spot and it was quite natural that P. Ws. 2 and 3 would be made available as respectable gentlemen. The learned trial court has observed that P. W. 8 did not know these P. Ws. 2 and 3 before hand and, as such, no motive can be attributed to him. But this is not the consideration in these circumstances. Op the other hand, it would appear that P. Ws. 1, 2 and 3 were the persons who managed the situation in such a way that only P. Ws. 2 and 3 could be available as respectable gentlemen to P. W. 8 for the purpose. This is more probable and appears to be reasonable when P. W. 8 returned back to the Inspection Bungalow within ten to fifteen minutes with these persons from a distance of one or one and half furlongs.
From the aforesaid circumstances it will be seen that P. Ws. 1, 2 and 3 were at the scene of occurrence in a group and they were the persons who took part in all the phases of bribery and detection. P. Ws. 2 and 3 cannot be said to be disinterested witnesses. On the other hand, they are the witnesses who were on inimical terms with the appellant because the appellant did not support their attempt for illegal gain out of the funds of the Block.
8. Relating to the story of giving and taking of bribe, prosecution case is that first of all, P. Ws. 1 and 2 went to a room in the Block Office where P. Ws. 5 and 6 were present. P. W. 5 is the Cashier and P. W. 6 is the Head-clerk of the Block Office. As soon as P. Ws. 1 and 2 went to the appellant, the latter said that the bill submitted by P. W. 2 had been passed and he might receive payment on that day in the afternoon at about 1 O'clock. A sum of Rs. 800/- was also paid to P. W. 2. P. Ws. 5 and 6 did not support the prosecution story that they were present with the appellant while P. Ws. 1 and 2 went there. Moreover, records have been produced to show that on 25th no payment was made to P. W. 2. The bill of P. W. 2 had been cleared up on the previous date i. e. 24th and payment had been made to him on that date also. This is clear from the testimony of the Head-clerk P, W. 6, the B. D. O., D. W. 1 as well as from Exts. 9 and 9/1, wherein P. W. 2 has given his signature on 24th acknowledging receipt of payment, and the cash book Ext. 10. The aforesaid oral and documentary evidence clearly belies the prosecution story that on 25th first of all P. Ws. 1 and 2 met the appellant while P. Ws, 5 and 6 were present and the fact that P. W. 2 was paid a sum of Rs. 800/- is also found to be false from the subsequent events as appears from the materials on record. Prosecution story in this connection is that as soon as P. W. 2 was paid Rs. 800/-, the appellant left the room and gave indication to P. Ws. 1 and 2 to come outside and while they were on the road, the appellant demanded money from them. First of all P. W. 2 paid Rs. 40/- to the appellant and thereafter P. W. 1 paid Rs. 100/-. If P. W. 2 paid Rs. 40/- immediately after coming out of the room, then naturally he would have got a sum of Rs. 760/- with him. But from records and evidence of witnesses for the prosecution it appears that nothing was found from the person of P. W. 2 when his person was searched. P. W. 8 has tried to say that P. W. 2 subsequently produced Rs. 760/- which was seized. This completely belies the presence of P. W. 2 at the scene of occurrence and the evidence of P. Ws. 1 and 2 in this connection is full of lies. There is another interesting feature in the prosecution evidence in this connection. P. W. 8, the I. O., says that he has seen passing of money from P.W. 1 to the appellant. But he does not say anything about payment of Rs. 40/- by P. W. 2. If he was waiting near the spot only for that purpose, in natural course he could have seen payment of Rs. 40/- by P. W. 2. As regards payment of Rs, 100/-, this witness also admits that he has not mentioned this fact in the case diary. He was deposing in court about four years after the alleged occurrence. Admittedly, nothing has been mentioned about this in the case diary. It is very strange that if actually he found passing of money how he omitted to mention this fact in the case diary and this throws a great suspicion on the evidence of P. W. 8, There is no evidence that it was a holiday. From the prosecution evidence, it appears that the office of the Sub-Registrar and other offices are close to the Block Office. In such a circumstance, it is unthinkable that appellant would come outside his office room and on the road he would demand, money. Had he any intention to take such bribe, then he could have taken these two persons to his office room, or to his house when he was going for lunch and could have taken the money. These circumstances throw suspicion on the prosecution story.
9. The appellant has examined three witnesses on his behalf, but the learned trial court has not placed any reliance on their testimony. It is also contended by the appellant that P. W. 1 had undertaken a contract work for Rs, 5,200/- and out of that he had already taken advance of Rs. 3,100/- as would be evident from Ext. D series. He had also taken some materials as would appear from the documentary evidence as well as from the evidence of D. W. 2. The Block had already advanced him more than Rs. 3,000/- along with some materials, but delivery of possession of the building had not been taken by the Block for the last ten to twelve years which is clearly indicative of the fact that the construction work done by P. W. 1 was defective and was not according to the estimate. This fact also supports the plea of the appellant that he was not at all inclined to pass the final bill of P. W. 1 and was of opinion that it was to be rejected.
10. D. W. 1 the B. D. O. is a witness who has stated about advance of materials to P. W. 1. He has also stated about the report Ext. 8 to him made by the appellant regarding the undue and illegal attempt made by P. Ws. 1, 2 and 3 and requesting for his transfer from that place. After going through the evidence of this witness, I do not find anything to discard his testimony. He has stated that he had directed the appellant to inspect and measure the work done by P. W. 1. The only suggestion made to him is that he has prepared papers to support the appellant and that he was not pulling on well with P. W. 3. But this fact has been denied by him. The suggestion that he was not pulling on well with P. W. 3 is clearly indicative of the fact that the plea of the appellant that P. W. 3 was the ring leader of the group consisting of himself and P. Ws. 1 and 2 and they all were trying to derive illegal gain out of the funds of the Block (sic) (was well founded?). D. W. 3 states that while the appellant was trying to get up on his cycle, he was obstructed by P. Ws. 1 and 2 and P. Ws. 1 and 2 turned towards the right side of the appellant and tried to push something inside his pant pocket but those things fell down on the ground and immediately thereafter the vigilance people came. The learned trial court has disbelieved this evidence because the appellant had not complained before any-body about such action by P. Ws. 1 and 2. In my opinion, this is not the consideration. After going through the evidence, I find that his evidence cannot be thrown out as completely useless. But I find that this witness is worthy of trust. He is a Government officer and has nothing to do against P. Ws. 1, 2 and 3. Moreover, he has no animosity against them, nor anything has been brought out on record to show that he was anxious to support the appellant in any way,
11. In Sita Ram v. State of Rajasthain : 1975CriLJ1224 , it has been held that the prosecution has to establish first that the accused was a public servant and that he obtained from any person any gratification. After these two ingredients are established, onus has to shift to the accused. In the instant case, there is no dispute that the appellant was a public servant. But there is no evidence worthy of credit to show that the appellant any time demanded any money from P. W. 1 or that such a payment was made. Prosecution evidence in this respect is not only full of falsehood, but the witnesses for the prosecution are also not worthy of trust.
12. It has also been held in Ram Prakash Arora v. State of Punjab : 1972CriLJ1293 , that prosecution cannot be said to have proved the purpose beyond all reasonable doubts when there is no independent search witness and other evidence from which any corroboration could be found of the evidence given by the members of the raiding party. Evidence of interested and partisan witnesses who are concerned in the success of the trap must be tested in the same way as that of any other interested witness. In a proper case the Court may look for independent corroboration before convicting the accused.
13. In Muluwa v. State of Madhya Pradesh : 1976CriLJ717 , the Supreme Court has held that the evidence of an infirm witness does not become reliable merely because it has been corroborated by a number of witnesses of the said brand; for, evidence is to be weighed not counted. In the instant case, evidence of P. W. 1 who is in the position of an accomplice is to be considered along with other independent materials on record lending assurance to his testimony. Not only his evidence is inherently infirm, but the corroborative evidence is also full of infirmities and falsehood.
14. While the vigilance party had gone to the spot on 24th and had come back and P. W. 1 had informed them about this demand for money by the appellant on 23rd, no attempt was made by the vigilance party to use any chemical for detection of the currency notes. P. Ws. 7 and 8, the officers of the Vigilance Department, have stated that they have heard about using of chemicals in such cases, but have no experience by using the same. On this account the learned trial court has not attached any importance on this aspect of the case. But use of chemicals is one of the surest tests as has been observed by the Supreme Court in Som Parkash v. State of Delhi : 1974CriLJ784 . This aspect of the case is also to be considered while attempt has been made to detect an offence by a Government officer. In this connection, it is worthwhile to reproduce the observation of the Supreme Court in bribery cases of public servants. It is observed in Raghbir Singh v. State of Punjab : 1976CriLJ172 :
The officers functioning in the anti-corruption department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the Court and the Court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe. They should insist on observing this safeguard for the protection of public servants against whom a trap may have been laid, In the present case the search witnesses were interested witnesses and, therefore, their evidence with regard to the giving of the bribe and the recovery of the amount from the person of the accused was not relied upon.
It was further observed (at p. 179 of Cri LJ):
Where a trap is laid for a public servant, it is desirable that the marked currency notes which are used for the purpose of trap, are treated with phenol-phthalein powder so that the handling of such marked currency notes by the public servant can be detected by chemical process and the Court does not have to depend on oral evidence which is sometimes of a dubious character for the purpose of deciding the fate of the public servant.
15. Judging the facts and circumstances of the present case in the light of the aforesaid dictum of the Supreme Court, as I have already discussed, I hold that prosecution has failed to establish the charges against the appellant and the entire prosecution story does not appear to be real or trustworthy. On the aforesaid analysis, I hold that the appeal should be allowed.
16. In the result, the appeal is allowed. The conviction and sentence of the appellant are set aside and he is acquitted of the charges levelled against him.