K. Narayan, J. - (1.) THE appellant Mahipal Singh was tried on the charges under Section 161,I.P.C. and Section 5 of the Prevention of Corruption Act, by the Vllth Additional Sessions Judge, Meerut in Criminal Case No. 11 of 1978. By an order dated 29.1.1980, he was held guilty on both counts and sentenced to simple imprisonment for six months and to pay a fine Rs. 1,000/- and in default to undergo further simple imprisonment for the same period. THEre is, however, no separate sentence for the two counts. Aggrieved by the conviction and sentence the appellants have approached this court.
(2.) THE facts and circumstances attempted to be shown by the prosecution were in the form that Mahipal Singh was working as village level worker in November, 1966 when four persons Devi Shanker, Ratan Lal, Mawassi and Sukkhe, residents of Village Lisari within his field working, requested him to arrange a loan for purchase of she buffalo. According to prosecution the accused appellants insisted for payment of Rs. 210/- each as illegal gratification and also represented that the Block Development Officer, Meerut, Manager, Punjab National Bank and veterinary Officer Meerut will also have a share in amount. Devi Shanker and others went away and approached the Vigilance Inspector, Sri Mansa Ram Rathi and gave him a written report. Consequently, a trap was laid after necessary formalities. As a matter of trap, the four persons were directed by Sri Shukla, Deputy S. P. Vigilance to meet him on 11. 11.1976 near the Collector grove in village Lisari and they assembled there. Sri Shukla and Sri Mansa Ram Rathi sub-inspector met the above said four persons and Sri Haswar Singh and Bhanwar Singh also arrived there. In the presence of these persons, currency notes were handed over by Sri Devi Shanker, Ratan Lal Mawasi and Sukkhe to which phenolphthalein powder was applied and the notes were returned to the applicants to be given to Sri Mahipal Singh on his demand. The said persons, of course excluding the police personnel, reached the house of Mahipal Singh. The police officers only followed them. Devi Shanker and these other requested the village level worker to arrange for the loan who again demanded the amount of Rs. 210/- each and four persons, offered the notes already soiled to him. The notes were counted by the accused and [put in the pocket. Sri Shukla and Sri Rathi who were peeping from the door outside, then entered the room, introduced themselves to the accused and searched his person, recovering the above said notes from the pocket of his shirt. The hands of the accused were also got washed in a solution of Sodium Carbonate which changed in its colour and the wash was kept in bottle as usual. Necessary formalities of preparation of memorandum and putting seals was also conducted and on return an F.I. R was lodged. During the trial the prosecution examined P.W. 1 L. N. Shukla P W 2 Devi Saran. P.W. 3 Bhanwar Singh and P.W. 4 Jai Pal Singh. The defence it appears, has been that he was unable to get vasectomy cases and was consequently got falsely prosecuted. To substantiate this aspect, he has examined D.W. 1 Sri R. N. Sharma, D.W. 2 Bhonda and D.W. 3 Sri Yagdutt Sharma. However, those statements are not material as it is a borison as a matter of defence. Even the evidence of D.W. 2 Bhonda that he had not given any illegal gratification and loan was sanctioned in his favour is of no avail.
(3.) THE evidence of these persons can at best be taken to help an impression that there was some demand from the department for vasectomy cases which was also attempted by the accused, in order to keep his service and as usual the idea was not listed by the witnesses or the applicants for loan but in any event that by itself would not support an impression that they would go in for false prosecution. Needless to say that unless vasectomy is carried out, they remain unaffected and by getting the appellant prosecuted, they would not get the loan and thus remain in square one. I have gone through the evidence of the prosecution witnesses mentioned above alongwith the counsel for the appellant. The first argument advanced on behalf of the appellant has been that no definite time was fixed by Sri L. N. Shukla while arranging the trap for the meeting between the witnesses and the accused for the offer of bribe. It may be true as a fact but the question is, did the circumstances of the case require it to an extent that the absence threof would render the prosecution case unworthy of credit. The time would be given not by the authorities concerned but but the accused himself. One has to keep in mind that the offer of bribe as well as the demand thereof comes when there is some occasion for the witness to make that offer in order to get a due or undue benefit from a public servant and the public servant is inclined to grant the same against payment. The dominating position is of the public servant the accused and not that of the police officer or the witness who still have to keep themselves behind the back of the latter without showing their involvement. All the more, in the instant case the offer was to be made at the home of the accused and naturally a person is expected to be at his home at usual hours. The other factor on the statement of P.W. 1 L. N. Shukla was challenged was In the form that no memo was prepared for getting the bottle used for collecting wash of the hands of the accused washed. A Memorandum is prepared for certain acts done by the public servant or other witnesses for which they may have to bear evidence in order to refresh memo. If a factor flows from certain other facts, a memo need not be prepared. The very fact that the wash was kept in a bottle and there has been no position that they were soiled by these witnesses or by somebody else is itself enough to show that they were fresh bottles. Much address was advanced on the question of choice of the witnesses. Again for this aspect, keeping witnesses and despite telling them the purpose of evidence, keeping the trap a secret is a war between two opposite aims and one has to take decision in the mid way. Apart from this situation nobody is expected to cross-examine the witnesses about their various involvements, before making them witnesses of recovery etc. A public servant in his usual public life; may be friendly or inimical to various persons and that alone may not be good reason for discarding the evidence of such persons.;