N.L.TIBREWAL, J. - (1.) THIS appeal is directed against the judgment dated August 31, 1977 of Special Judge for A. C. D. Cases, Rajasthan, Jaipur in Special Criminal Case No- 27/76 convicting and sentencing the appellant under Section 161 IPC and Section 5 (l) (a) (2) of the Prevention of Corruption Act (in short, 'i. P. C. Act') to one year simple imprisonment and a fine of Rs. 100/-under each court (in default of payment of fine to farther undergo one month S. I. ). The sentences of imprisonment were directed to run concurrently.
(2.) IN brief, the prosecution case can be narrated at the relevant time the appellant was a Patwari and was posted in the area Jagatsingh Walla, Tehsil Raisinghnagar, District Sriganganagar. The complainant, Jagir Singh (P. W. 4), was allotted agricultural land in Chak No. 33 M. L. bearing Morabba No. 56, measuring. . . . . . . . Killa for temporary cultivation. His application for permanent allotment of the said land was dismissed by the Additional Collector, Sri Ganga-nagar on August 23, 1975. The Addl. Collector had dismissed the application on the basis of a report made by the accused appellant to the effect that the complainant was not a landless person. IN the evening of 1. 10. 75, the complainant submitted an application (Exhibit P. 11" to P. W. 7 Babulai Sharma, Additional S. P. , Anti Corruption Department, Sriganganagar. IN the said application it was stated by the complainant that he was having temporary allotment of agricultural land in Chak No. 33-M. L. and on his application for permanent allotment of the said land, an appeal was pending before the Commissioner, Bikaner. IN the said appeal he needed a verification from the concerned Patwari of his being landless person. It was also stated in the said application that he approched to the Tehsildar Raisinghnagar and moved an application seeking verification that he was holding no other land except the land allotted to him for temporary cultivation. The said application was forwarded to the Patwari of the area vide order of the Tehsildar dated 27. 9. 75. The application is Exhibit P. 10. on the record. It was further stated that he (complainant) went to the appellant, who was the Patwari of the area, with the said application, but he demanded Rs. 100/- for its verification, which he do not want to give. After receipt of the said application, the Additional, S. P. directed the complainant to come on the next day in the morning. On the next day, the complainant came in the Office of the Additional S. P. accompanied by Dudnath and Laxrni Prasad. A trap was arranged by Additional S. P. and the aforesaid two persons were made Motbir witnesses. The complainant gave a currency note of Rs. 100/- which was powdered with Phynolphthalene in the presence of the witnesses and necessary memos were prepared in which the number of the currency note was also noted. The currency note, then, was handed over to the complainant (decoy) for giving it to the appellant as bribe. On the same day, the Additional S. P. along with the aforesaid Motbir witnesses, complainant and other police personnels went to the village of the appellant in a jeep. The complainant was sent to the house of the accused appellant to find out if he was present there. The complainant went to the house of the accused and after his return, he intimated to the Additional S. P. that the accused had gone to Chak No. 1 MP in connection with production of 'girdawari'. The complainant also intimated to the Additional S. P. that the accused will accept the bribe amount at Chak No. 1 M. P. The trap party then went to Chak No. 1 MP. The Jeep was stopped at a distance of one furlong and the complainant was sent to Chak No. l MP along with the Motbir witness Dudnath after giving necessary instructions. After sometime the Motbir Dudnath came back and he gave a signal, as previously agreed Thereupon the other members of the trap party went to the accused appellant who was sitting under a tree in Chak No. 1 MP. The accused and the complainant were sitting on a cot alongwith Preetam Singh and Ram Chetan. The Additional S. P. then introduced himself to the appellant and asked him as to whether he had taken Rs. 100/- as bribe. As per complainant himself, the accused appellant denied at that time that he had taken Rs. 100 as bribe and he gave explanation at that time that the currency note of Rs. 100/- was given to him as re-payment of the amount which was borrowed by the complainant. On the instructions of the Additional S. P. a search was made and Rs. 172. 20 were recovered from the pocket of the Kurta of the appellant which he was wearing at that time. This amount was including the currency note of Rs. 100/- having the signature of the Additional S. P. After recovery of the said amount, the Additional S. P. completed all the formalities of preparing the seizure memos etc. The hands of the accused were also got washed from water in two-' -different glasses. It is alleged that the colour of the water turned light rozy. The water was sealed in two bottles, Articles 1 and 2. The pocket of the Kurta from which Rs. 172. 20 were recovered was also got washed from Sodium Carbonate and the mixture was put in a bottle Article 5 and the same was sealed. The Additional S. P. himself made the investigation. On the information of the accused (Exhibit-P. 11), the application (Exhibit P. 10) was recovered vide memo (Exhi-bit.-P. 8) and Site Plan (Exhibit-P. 9) was also prepared. Then a report was made at Police Chowki. After registration of the case, the Additional S. P. (A. C. D.) himself completed the entire investigation. After obtaining necessary sanction to prosecute the appellant, a charge-sheet was filed against the appellant in the Court of Special Judge for Anti Corruption Department Rajasthan, Jaipur. Charges under Section 16 IPC and Section 5 (1 (d) (2) of the PC. Act were framed against the appellant on 10. 10. 76. In the course of trial, prosecution examined seven witnesses. P. W. I Narendra Kumar Verma was examined to prove the sanction to prosecute the appellant which is exhibit- P. l. P. W. 2 Laxmi Prasad and P. W. 3 Dudnath are the Metbir witnesses. P. W. 4 is complainant (decoy) Jagir Singh. P. W. 5 is Chetan Ram who is said to be present at the time of giving the bribe to the appellant. P. W. 6 is Subhash Chandra, who was Tehsildar at the relevant time before whom the application exhibit-P. 10 was submitted by the complainant and the same was forwarded to the appellant. P. W. 7 is Babulal Sharma, who was Additional S. P. (Anti Corruption Department), Sri Ganganagar. He had arranged the trap and had also investigated the case. In defence four witnesses were examined, they are, namely, D. W. 1 Bhomraj, D. W. 2 Bahadur, D. W. 3 Minta Singh and D. W. 4 Vichitra Singh. Before dealing with the various submissions made by the learned counsel for the appellant, I would like to discuss the evidence, in brief, which has come on record. P. W. 2 Laxmi Prasad and P. W. 3 Dudnath are the most important and material witnesses in the case as they were deputed as Motbir witnesses in the trap party. P. W. Laxmi Prasad has stated that on 2. 10. 75 he was working as a Peon in the Municipal Council, Sriganganagar and he was called by the Additional S. P. through the witness Dudnath. Then he has given out the formalities completed by the Additional S. P. before laying the trap. According to this witness, after completing the formalities, currency. Note of Rs. 100/- was given to the complainant with the direction to hand it over to the accused appellant on demand of the same. He was further directed to give signal to the trap party by putting his hand on his beard. According to this witness, no direction was given to him. He further stated that Jagir Singh, complainant, and Dudnath went to the accused while he was sitting in the Jeep along with the other members of the trap party. The accused was not found in his village then he was taken to another village. There too, the complainant Jagir Singh and the witness Dudnath went to the accused. After sometime, Jagir Singh (complainant) gave signal to Dudnath and Dudnath came to the police party and intimated about it. The police party then went to the accused who was sitting on a cot under a tree in an open place. The Additional S. P. and the members of the trap party then went to the accused. The hands of the accused were washed with water which turned in light Rozy colour. The water of the right hand turned in light Rozy colour, while the colour of the water of left hand did not change in light Rozy colour. The water was then put in different bottles which were seized. The accused was then asked about the currency note of Rs, 100/ -. He further stated that the accused was wearing a Kurta and Rs. 172. 20 were recovered from the pocket of the Kurta which included the currency note of Rs. 100/- he also testified all other formalities which were performed by the Additional S. P. at that time-
(3.) IN cross-examination this witness admitted that some other persons were also sitting on the cot of the accused when they reached there. He further stated that the accused had given an explanation to the Additional S. P. , when he was asked by him, that Jagir Singh had returned the amount of loan which was borrowed by him. This witness also stated that at the time, when the explanation was given, Jagir Singh complainant did not refute this fact and remained silent. P. W. 3 Dudnath had given more or less similar statement. According to this witness, at the time when the trap was conducted, he followed Jagir Singh. The accused was sitting on a cot under a tree and he was called by Jagir Singh. Thereafter Jagir Singh and Bikram Singh accused went in a side and returned at the cot after 4-5 minutes. He also stated that when the Additional S. P. asked about the money then the accused gave the reply that the same were in his pocket. In cross-examination, this witness also admitted that the accused had given an explanation on the spot when asked by the Additional S. P. , that the amount was returned by the complainant which was borrowed by him. He further stated that the complainant remained silent when he was asked by the Additional S. P. , but subsequently, he stated that he had given the amount as bribe. Jagir Singh, complainant, has tried to testify the entire story. In cross-examination this witness admitted that his application for permanent allotment of the land was dismissed by the S. D. M. about six months prior. About the demand, the witness stated that the said demand was made after three days of making the application (Exhibit P. 10) by him to Tehsildar and there was no body else when the demand was made by the accused. He also admitted that his house was situated at a distance of 3-4 Murabbas from the Patwar Ghar. Then he stated that the accused had demanded the amount of fees two to three times. He then stated that the demand was made second time when exhibit P. 10 was handed over to the accused. Then he stated that the demand was made five days prior to the submission of the application before Additional S. P. He also admitted that he did not make any complaint to any villager about the demand of bribe made by the accused. He further stated that at the time when the was given by him, the Sarpanch Preetam and witness Chetan Ram were present amount and none else was present. He also admitted that the time and place of giving the amount of bribe to the accused were not fixed. He then stated that exhibit-P. 10 was with him when the accused demanded the bribe first of all, but he did not give the application on that day. Then he stated that he did not meet with the accused a day prior to making the report to the Additional S. P. , Anti Corruption. Then this witness was confronted the portion A to B of Exhibit-P. 11 (application which was made to Additional S. P. for trap) in which it was mentioned that the demand of bribery was made a day prior of making the said application. The witness replied that the demand was made only one day prior and not five days prior as earlier stated by him. Then this witness was also confronted from portion A to B of Exhibit D. 1 which is a statement recorded by the Magistrate. The witness denied to have given this statement. He also admitted that on the spot, on being asked by the Additional S. P. the accused had given explanation that the complainant had returned the amount which was borrowed by him. ;