HASSAN, J. - (1.) THIS appeal is directed against the judgment of Special Judge (ACD) Cases Jaipur, by which, the learned Judge found the appellant guilty for the offence u/s. 161 IPC and Sec. 5 (l) (d) (2) of PC Act and passed two different sentences on the aforesaid two counts. Both the sentences were ordered to run concurrently.
(2.) THE brief facts giving rise to this appeal are that at the relevant time accused Shiv Dayal was working as Patwari in Circle No. 27 Chainpura Tehsil Haroti in the year 1977. On 22-8-77 Radhey Shyam S/o Bhonriya Lal lodged a written report before Dy. S. P. out-post Sawai Madhopur alleging therein that the Government had allotted 3/12 Bighas land through S. D. O. of agriculture land in favour of informant's father Bhonriya and patta was also granted to his father. But the mutation was not done by Patwari even after repeated request for about 1-1/2 years. THE accused has been avoiding to enter the mutation. On this his brother Ram Khilari submitted an application before Tehsildar 8-10 days back from the date of lodging the aforesaid report and in that application it was prayed that the Patwari be directed to enter the mutation and get the same attested. On this the Tehsildar had written the orders as prayed and the same was directed to be sent to the accused-petitioner along with the original application. THE Tehsildar also called the report within three days. This application was given dasti to Ram Khilari brother of the informant. THEreupon Ram Khilari took that application to Shiv Dayal Patwari and at that time instead of entering the mutation the accused demanded Rs. 150/- as bribe and Ram Khilari promised to pay the same after some days because he had to arrange for the money. After some days Ram Khilari again met the Patwari on the previous day and promised to pay him Rs. 150/-but he did not want to give the bribe to the accused, therefore, the said information was given to the Dy. S. P. Anti Corruption out-post Sawai Madhopur. After receiving the report the Dy. S. P. (PW 9) Surendra Pal Singh entered the report in the diary and directed the informant to meet him at Sawai Madhopur Railway Station. THEreafter, the Dy. S. P. along with his party reached at Sawai Madhopur Railway Station and from that they went to Gangapur by train. THErefrom they reached Karauli and from Karauli they proceeded to Chainpura. After reaching at Chainpura the Dy. S. P. summoned two motbirs namely Reetira and Kok Singh to whom the F. I. R. was read over. After taking currency note from the complainant he put his initials on them and thereafter semmased the currency notes with phenolephetheline powder. THEreafter demonstration of the powder was given. THE solution which turned into pink colour was thrown, a memo of all these proceedings was drawn. After completing all the formalities the Dy. S. P. along with the decoy and motbirs and persons of the raiding party proceeded for the trap. THE decoy reached Patwarghar at about 6. 30 p. m. but the accused was not available in the Patwarghar at that time. At about 8. 15 p. m. the Dy. S. P. was informed that the Patwari had come and the decoy was sitting with some more persons and they are talking to each other. So it was not the proper time to hand over the moneyn to the Patwari. THEn about 9. 15 the decoy gave a signal. On receiving the signal the Dy. S. P. along with the motbirs and other persons of the raid party reached in the room of the Patwari. THEre the Patwari was found reading some papers and the decoy was found sitting. THE decoy on arrival of the Dy. S. P. told that the Patwari after accepting money has put it into his pajama pocket. THE accused was caught by Mohan Singh S. I. and Ganpat Singh H. C. THE Dy. S. P. disclosed his identity and on his asking the accused disclosed his name as Shiv Dayal. Shri Radhey Shyam asked the accused to produce the bribe amount as illegal gratification received by him. On this the accused produced the currency notes of Rs. 150/- after taking out from Payjama pocket. THE number of those currency notes were tallied from the memo Ex. P. 3. THEreafter fresh water was brought in a bowl. Sodium Carbonate was mixed in it but the water remained white. Both the hands of Shiv Dayal were dipped in that solution, which turned into pink. That solution was taken into a bottle and the bottle was sealed and a memo was prepared for the same. THE pocket of the payjama of the accused was also washed and that also turned into pink. THE solution was poured into another bottle and that was also sealed. THE currency notes were also seized. THEreafter the accused Shiv Dayal was asked as to what for the amount of Rs. 150/- was received from Radhey Shyam. Accused Shiv Dayal immediately replied that he had received the amount of Rs. 150/- as per the payment of penalty which was due against the decoy's father. THE Dy. S. P. again asked the accused as to how much amount was due and on this the accused replied that it was Rs. 197. 50. THEn it was asked by the Dy. S. P. that when amount of Rs. 197. 50 was due, why he accepted Rs. 150/ -. On this the accused replied that the decoy promised to pay the remaining amount in the next morning. THE accused again was asked as to whether the receipt of the amount was given or not. On this the accused relied that he would have given the receipt after receiving the full amount. THEreafter the record of the accused was seized and he was arrested and released on bail. After completing the proceedings the Dy. S. P. came back to the out-post and registered a case. THE Dy. S. P. sent the unnumbered F. I. R. to the Head Office at Jaipur for giving case number. THEreafter completing the investigation obtained sanction for prosecution and submitted charge-sheet in the Court against the accused. THE accused appeared before the Special Judge for A. C. D. Cases, Jaipur and charges were framed which was denied by the accused and he claimed to be tried. In all 9 witnesses have been examined by the prosecution. THE statement of the accused was also recorded u/s. 313 Cr. P. C. wherein the accused mentioned that the amount of Rs. 150/- has not been received by him as illegal gratification but the same was obtained by him as part payment of the amount of penalty which has fallen due against the father of Radhey Shyam. THE learned trial Court after hearing the parties found the appellant guilty for the aforesaid offences and passed sentence against him. Heard learned counsel for the parties and perused the entire record. Counsel for the appellant submits that in this case the demand of any bribe has not proved by the prosecution. So far as demand of bribe is concerned, the prosecution has examined the decoy Radhey Shyam and his brother Ram Khilari. A look at the testimony of these two persons shows that they are not corroborating each other. Both of them met the accused separately on different times. They are accomplies. There is no independent corroboration to their testimony. Radhey Shyam stated before the trial Court that: *** Ram Khilari does not corroborate his statement. Moreover Ram Khilari does not say that Radhey Shyam told him that when he met the accused on 21-8-77 he demanded bribe from him. He simply says: mlus 21-8-77 dks eq> s dgk fd ivokjh us 22 ds fy, dgk gs o ivokjh us ivokj ?kj ij feyus ds fy, dgk Fkka Radhey Shyam even does not say that Ram Khilari sent him to the accused and after coming narrated to him the talk which took place between the accused and him. In this way the testimony of both the witnesses is contradictory on this aspect. The learned P. P. failed to refer any statement of any independent witness on this point. It is thus clear that the evidence on the point of demand has not been corroborated by any independent evidence. In this case the acceptance and recovery of money from the accused has not been disputed and looking to the entire facts and circumstances and important question which arises in this case is that whether the amount given by the decoy to the accused was accepted as an illegal gratification or not. Moreover, the prosecution will have to prove that the accused demanded and accepted the money as illegal gratification. In this regard it will be noted that so far as the payment of amount to the accused is concerned, it may be stated that there is solitary statement of PW 1 Radhey Shyam decoy, there is no independent corroboration of his testimony. The statement of the decoy is discrepant to the statement of other witnesses and moreover his statement is self contradictory from his previous statements at several places. Because of this reason the statement of Shri Radhey Shyam PW 1 should be held to be unreliable. Hon'ble Supreme Court in Surajmal Vs. State (1) reported in 1981 CAR 20 held as under: " It is well settled that where witnesses make two inconvertent statements in their evidence at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of Special circumstances no conviction can be based on the evidence of such witnesses. It has been further observed that "in our opinion, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Moreover, the appellant in his statement u/s. 342 has denied the recovery of the money and has stated that he had been falsely implicated. " Thus mere recovery by itself cannot prove the charge of the prosecution against the appellant, in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money. In such case, the presumption u/s. 4 of the P. C. Act, can be drawn only if it is proved that the accused person has accepted or obtained, or has agreed to accept or attempted to obtain for himself or for any other person, any gratification other than legal remuneration or any valuable thing, from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward. As said earlier that in this case there is no independent corroboration with regard to the demand of bribe and also to the payment of bribe. The prosecution is supposed to stand on its own leg. The prosecution cannot take the benefit of the weakness of the defence. Hon'ble Supreme Court in Dr. S. L. Goswami Vs. State (2) reported in 1972 CAR 202 has held as follows: " The onus of proving all the ingredients of an offence is always upon the prosecution, and at no stage does it shift to the accused. It is not part of the prosecution duty to show how hook the crook. Even in cases where the defence of the accused does not appear to be credible or is pulpably false that burden does not become any more less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case which would negative it. It is not however for the accused even at the initial stage to prove some thing which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution. Where the onus shifts to the accused and the evidence on his behalf probablise the plea he will be entitled to the benefit of reasonable doubt. " In the present case the accused at the time of the trap on questioning by the Dy. S. P. immediately told that Rs. 197. 50 was due against the decoy regarding penalty for unauthorised cultivation and out of that the decoy paid Rs. 150/- at the time of raid and he promised to pay the remaining amount on the next morning. He further told that the receipt would have been given on receipt of full payment. This explanation of the accused has been mentioned in the recovery memo Ex. P. 4. Now the question arises as to whether the amount of penalty was due against the decoy. All the prosecution witnesses stated before the trial Court that the aforesaid explanation for accepting the amount was given by the accused at the time of trap. The accused has consistently taken the said defence from the very beginning. Now I have to see whether the accused has been able to probablize this plea or not. In this regard it may be stated that the Dy. S. P. immediately at the spot seized the record found in the possession of the accused. In this regard Dhal Baanch Ex. A-13 was also seized and in this Dhal Baanch there is an entry which has been marked by the prosecution as Ex. P. 14 which shows that the amount of penalty to the tune of Rs. 197. 50 is due against the decoy. The other documents which were seized from the possession of the accused were lists of the persons 1975 and that has been marked as Ex. D. 4 and Ex. P. 15. In these lists also the same amount has been shown as due against the decoy. The contention of the prosecution is that in the list there was only 48. 75p. but it was added after words in order to make it 148. 75p. In this connection it can be said that the prosecution has not asked about it from PWl, PW2 or PW4. The prosecution could not dare to ask about this discrepancy to PW6 Devi Sahai, the Tehsildar, PW7 Durga Prasad, The T. R. A. and PW8 Ram Kumar, the Naib Tehsildar. None of the above witnesses have stated that this addition was made subsequently. The prosecution asked about it from the I. O. PW9 Surendrapal
(3.) SINGH and he stated in examination in chief: *** From the above it is very clear that in the record there was 148. 75p. due against the decoy. The decoy has wrongly stated that he had deposited the amount. The I. O. PW4 admits in the cross-examination as under: *** The statement quoted above supports to the defence version that the revenue records showing the dues against the decoy are correct and there is nothing on record to found these entries as incorrect and no manipulation has been done by the accused. In the demand lists Ex. D. 4 and Ex. P. 15 the amount of Rs. 148. 75 has been shown due against the decoy and both these lists were seized by the I. O. at the spot, as has been admitted by him in his examination in chief, as below : eqyfte us nks isuyvh fylvsa Hkh is'k dh Fkh tks iznfkz Mh&4 rfkk ih&15 gsa iznfkz Mh&4 iznfkz 15 nksuksa gh esusa dcts esa yh Fkha The same amount has been shown in Dhal Baanch Ex. P. 13. PW1 in his cross-examination stated before the trial Court that" Eq> s irk ugha fd esjs Hkkbz jkef[kykm+h ij dksbz isuyvh ckdh Fkh ;k ughaa** He could not dare to deny that there was no dues against Ram Khilari about the penalty. He furher admits: *** PW5 Ram Khilari has admitted in the examination in cheif: *** He further admits: *** ;