SUNIL KUMAR GARG, J. - (1.) This appeal has been filed by the State of Rajasthan against the judgment and order of acquittal dated 13.11.1998 passed by the learned Special Judge, Session Court (Prevention of Corruption Act), Udaipur in Special Case No. 5/97 by which the learned Special Judge acquitted the accused-respondent of the charges for the offence under Section 161 I.P.C. and Section 5(1)(D)(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the Act of 1947').
(2.) It arises in the following circumstances :- On 7.4.1988, PW-1 Madhav Singh lodged a written report Ex.P/2 in the office of the Additional Superintendent of Police, Anti-corruption Department, Udaipur stating inter alia that his brother Khuman Singh had 4 bighas of land in village Kareli and for getting electric connection for that land, an application was filed by his father in the year 1981 in the office of the Assistant Engineer, RSEB, Sarada and thereafter, requests were being made regularly for releasing the connection, but the connection was not given so far. However, on 30.3.1988, a demand notice of Rs. 800/- was received by him at his house at Jhadol through AD from Electricity Department and that amount was to be deposited before 31.3.1988 and that notice was in the name of his brother Khuman Singh. It was further stated in the report Ex.P/2 by PW-1 Madhav Singh that though on 31.3.1988, there was holiday on account of Mahaveer Jayanti, but even then he went to the office of the Assistant Engineer, Electricity Department, Sarada for depositing the said amount, where he met with Peon, who took him to the house of the Assistant Engineer P.C. Pali (accused-respondent) and the accused-respondent demanded Rs. 2,000/- for releasing the connection, upon which PW-1 Madhav Singh told the accused-respondent that he had no money and ultimately, it was settled that Rs. 1,000/- would be given by PW-1 Madhav Singh to the accused-respondent. Thereafter, Rs. 800/-, which was demanded through notice, and Rs. 50/- for "L" Form, were taken by the accused-respondent from PW-1 Madhav Singh and got deposited in the date of 29.3.1988 and the accused-respondent also gave receipt to PW-1 Madhav Singh for the said amount. Thereafter, the accused-respondent used to demand again and again bribe of Rs. 1,000/- for releasing the connection and it was settled that on 7.4.1988, PW-1 Madhav Singh would give Rs. 1,000/- to the accused- respondent in his office. On this report Ex.P/2, PW-12 Gopal Lal Tiwari, Addl. SP made further proceedings and the report Ex.P/2 was read over to PW-1 Madhav Singh, who admitted it to be correct. For making trap proceedings, PW-12 Gopal Lal Tiwari vide letter dated 7.4.1988 through PW-5 Jitendra Kumar made a request to Director, S.I.E.R.T., Udaipur to make available two Gazetted Officers as witnesses and upon this, PW-2 Homi Kawasji and PW-3 Jagdish came and they were introduced to the complainant PW-1 Madhav Singh and the report was also read over to them and both of them were agreeable to become witnesses to the trap proceedings. Thereafter, PW-1 Madhav Singh handed over 10 notes of 100/- each denomination and on each note, PW-12 Gopal Lal Tiwari put his initial below "Ashok emblem". Thereafter, PW-12 Gopal Lal Tiwari demonstrated the use of phenolphthalein powder to the complainant PW-1 Madhav Singh and the witnesses PW-2 Homi Kawasji and PW-3 Jagdish and then, sprinkled the phenolphthalein powder on the ten currency notes and thereafter, handed over the ten currency notes to the complainant PW-1 Madhav Singh, who kept the same in the watch pocket of the pent. The complainant PW-1 Madhav Singh was instructed to give the currency notes when the bribe was to be demanded by the accused-respondent and then gave signal to the members of the trap party by scratching the head and he was also instructed not to shake hand with the accused-respondent. The complainant PW-1 Madhav Singh was also given tape recorder and he was also explained its use and he was also instructed to start the tape recorder when he was to enter the room of the accused-respondent. The complainant PW-1 Madhav Singh kept the tape recorder in his bag. A trap panchanama was also not prepared. Thereafter, on 7.4.1988 at about 2.10 p.m., PW-12 Gopal Lal Tiwari, Addl.SP alongwith motbiran Dinesh Chandra Choudhary (PW-4) independent witnesses PW-2 Homi Kawasji and PW-3 Jagdish Dutt Sharma, complainant PW-1 Madhav Singh and others proceeded in a jeep towards Sarada. At about 3.45 p.m. they reached Sarda, where they got down PW-1 Madhav Singh from the Jeep near Panchayat Samiti and asked him to go to the office of the accused-respondent and the members of the trap party followed him and the members of the trap party took positions outside the office of the accused-respondent waiting for the agreed signal from the complainant PW-1 Madhav Singh. At about 4.15 p.m. the complainant PW-1 Madhav Singh gave agreed signal by scratching the head and upon this,members of the trap party and motbiran entered the room of the accused- respondent and PW-5 Jitendra Kumar and PW-6 Bhanwar Singh caught hold the accused-respondent's hand above wrist and PW-4 Dinesh Chandra Choudhary gave his introduction by showing his identity card and on being asked, the complainant PW-1 Madhav Singh informed that he had given notes in bribe to the accused-respondent, but the accused-respondent denied to have taken notes. Thereafter, trap box was got arranged through PW-8 Bharat Singh. Thereafter, one glass of water was got arranged through Peon Kodar and one spoon sodium carbonet powder was put in the water and thereafter, the right hand of the accused-respondent was got washed in that glass of water, as a result of which the water became dirty and that water was kept in two separate bottles and sealed separately on the spot and marked as R.H. 1 and R.H. 2. Thereafter, one glass of water was also got arranged through the said Peon Kodar and in that glass of water also, one spoon sodium carbonet powder was put and then, the left hand of the accused-respondent was got washed in that glass of water, as a result of which, the colour of the water became light pink and that water was kept in two separate lottles and sealed separately on the spot and marked as R.H. 1 and R.H. 2 On being asked as to where the notes were kept, the accused- respondent told that he did not take any bribe and he further told that if anybody came to his office for electric connection and kept anything for that he was not responsible. Thereafter, on being asked, the complainant PW-1 Madhav Singh told that the accused-respondent kept the bribe notes under the iron tray of files lying on the table and upon this, PW-3 Jagdish Dutt Sharma was asked to make search near and under the tray and upon this, he found Rs. 1,000/- there and on these notes, under the "Ashok emblem", initials of PW-12 Gopal Lal Tiwari, Addl. SP were found and the same were seized and sealed on the spot. The electric connection file pertaining to Khuman Singh, brother of the complainant PW-1 Madhav Singh, was also seized by the police. The cassette of the tape recorder was also sealed separately on the spot. The accused-respondent was arrested and he was released on bail. Thereafter, a report was sent to the Head Officer for registering FIR against the accused-respondent for the offence under Sections 161 I.P.C. and 5(1)(D)(2) of the Act of 1947 and on this, FIR Ex.P/22 was chalked out. After usual investigation, police submitted challan against the accused-respondent for the offence under Section 161 I.P.C. and 5(1)(D)(2) of the Act of 1947 in the Court of Special Judge, ACD Cases, Udaipur. On 15.12.1989, learned Special Judge, ACD Cases, Udaipur framed charges for the offence under Section 161 I.P.C. and 5(1)(D)(2) of the Act of 1947 against the accused-respondent. The charges were read over and explained to the accused-respondent. who pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 12 witnesses and got exhibited some documents. Thereafter, statement of the accused-respondent under Section 313 Cr.P.C. was recorded. In defence, one witness was produced by the accused-respondent. After conclusion of trial, the learned Special Judge, Session Court (Prevention of Corruption Act), Udaipur through judgment and order of acquittal dated 13.11.1998 acquitted the accused-respondent of the charges for the offence under Sections 161 I.P.C. and 5(1)(D)(2) of the Act of 1947 holding inter alia :- (i) that there is no dispute on the point that formalities for releasing the electric connection to Khuman Singh, brother of the complainant PW-1 Madhav Singh, had already taken place on 31.3.1988 and Rs. 800/- had already been deposited on 29.3.1988. (ii) That there is also no dispute on the point that work order was issued on 30.3.1988 and order for releasing the connection was issued on 31.3.1988. (iii) That there is also no dispute on the point that on 31.3.1988, PW-1 Madhav Singh went to the office of the accused-respondent and this facts was admitted by the accused-respondent himself. (iv) That from the statements of PW-10 Devilal and PW-1 Radhamohan Sharma, it is established that on 31.3.1988, PW-1 Madhav Singh was making noise in the office of the accused-respondent and he was stating "You all are thief' and he made quarrel. It was also established that when PW-1 Madhav Singh made much hue and cry, the accused-respondent asked the Peon to shunt PW-1 Madhav Singh out from the office and upon this, he gave warning while leaving the office. (v) That most of the prosecution witnesses have stated that at the time of alleged trap, many people assembled there and they all were saying that actually the main culprit was JEN Mahesh Chandra Sidhana and the police had arrested wrong person (accused-respondent) and this fact was even stated by the complainant PW-1 Madhav Singh and PW-12 Gopal Lal Tiwari. (vi) That PW-1 Madhav Singh has further admitted in his statement recorded in Court that it is not clear who had come in the house of his father on 29.3.1988. (vii) That the fact that accused-respondent demanded bribe on 4.4.1988 while he was passing through Bapu Bazar is not found in the report Ex.P/2. Therefore, from this point of view also, the statement of the complainant PW-1 Madhav Singh was not believed by the learned Special Judge. Thus, the learned Special Judge gave benefit of doubt to the accused-respondent and acquitted him of the charges framed against him. Aggrieved from the said judgment and order of acquittal dated 13.11.1998 passed by the learned Special Judge, Session Court (Prevention of Corruption Act), Udaipur, this appeal has been filed by the State of Rajasthan.
(3.) In this appeal, it has been submitted by the learned Public Prosecutor that since Rs. 1,000/- were recovered below the iron tray of the files lying on the table belonging to the accused-respondent, therefore, that was sufficient evidence to connect the accused-respondent with the commission of crime and thus, the learned Special Judge has committed illegality in acquitting the accused-respondent. Hence, it was prayed that this appeal be allowed and the impugned judgment and order of acquittal be set aside and the accused-respondent be convicted and sentenced for the offence under Sections 161 I.P.C. and 5(1)(D)(2) of the Act of 1947.;