CHOPRA, J. - (1.) THIS is an appeal against the judgment of the learned Special Judge, Anti Corruption Cases, Rajasthan, Jaipur dated 30-6-1976 where by the learned Judge has held the accused-appellant guilty of the offence under section 5 (l) (d) (2) of the Prevention of Corruption Act and section 161 IPC and has sentenced him to two and half years rigorous imprisonment on the first count together with a fine of Rs. 500/- and in default to undergo 5 months rigorous imprisonment and to a sentence of one year's rigorous imprisonment on the second count. Both the substantive sentences were ordered to run concurrently.
(2.) THIS appeal was earlier decided by this Court vide its judgment dated 15-1-1986 but on a petition for special leave filed before their Lordships of the Supreme Court, the judgment of this court was set aside and the case was remanded for re-hearing. Hence this appeal, comes up for decision after re-hearing. The facts necessary to be noticed for the disposal of this appeal briefly stated are that a case No. 67/74 under section 143, 147, 451 and 504 IPC was registered against one Ramkishan at P. S. Vijaynagar. At the relevant time, the Station House Officer of P. S. Vijaynagar was accused Abdul Quddoos. The allegation against the accused is that he demanded a sum of Rs. 75/- as illegal gratification for deleting certain offences against the accused i. e. the offence under sections 147 and 451 IPC which are cognizable. It is alleged that before 2-3 days of 6-12-1974, the complainant went to Udaipur and met the Addl S. P. Anti-corruption in this regard and complained to him about the demand of illegal gratification made to him by the accused. He was advised to contact the Addl. S. P. at Chittorgarh in the Dak Bungalow on 6-12-1974. Consequently, the complainant met the Addl. S. P. on 6-12-1974 and submitted before him a written report against the accused mentioning therein that the accused has demanded illegal gratification from him to delete certain offences from the charge-sheet that was due to be filed against him. On the basis of that report, certain Motbirs i. e. PW 4 Mangi Lal and PW 5 Kalyan Singh were called and in their presence, Rs. 75/- were handed over to Shri Ram Singh the then Addl. S. P. Anti-Corruption who put his initials on those notes and later, a tumbler full of water was brought and sodium carbonate powder was put into it and after phenotholine powder was put on the notes, the hands were washed in that water mixed with sodium carbonate powder, by which, the colour of the water became pink and, thereafter, those notes were handed over to the complainant in the presence of the Motbirs and he was asked to hand over those currency notes to the accused. It is alleged that thereafter, the complainant went to the Court and met the accused SHO. It is further alleged that initially he took the accused SHO to a tea-stall where while serving him with tea, he offered money to the accused-appellant but the accused-appellant told him that there is no hurry about it and he will take the money when the accused is bailed out. On that day, the challan could not be filed and, therefore, the accused SHO told the complainant to bring all the accused in that case on the next day so that challan may be presented and their bail bonds may be accepted by the Court. It, however, transpires from the record that copies of the challan papers were handed over by Shri Abdul Quddoos accused-appellant to the counsel for the complainant. Later, it is alleged that from the tea-stall they came back to the Court. It is further alleged that the bus which was going for Banswara was stopped by the accused near the gate of the Court premises where the Court of Munsif is situated. At that time, complainant Ramkishan was carry ing the bag of accused-appellant. When the bus was stopped, the accused-appellant asked the complainant to hand over his bag to him along with the amount of illegal gratification, whereupon the complainant handed over the bag and money to the accused-appellant. On delivery of the currency notes to the accused the complainant put his hand on his head, which was the agreed signal between the Addl, S. P. and the complainant to show that the complainant has delivered the currency notes to the accused. It is further alleged that PW 5, Kalyan Singh also put his hand on his head to inform the Addl. S. P. that the currency notes have been handed over to the accused appellant. On seeing this, the Addl. S. P. and his Clerk Jawaharlal came running from the Office of the District Excise Officer, Jawaharlal was ahead of Shri Ramsingh, Addl. S. P. When they reached near the bus, the accused-appellant Abdul Quddoos was in motion and was trying to board the bus. It is alleged that Jawaharlal caught hold of the accused. At that very moment, one Birdhichand who is an employee of the Narcotics Department was getting down from the Bus after obtaining signatures of his Officer in the bus on certain papers. It is alleged that at that time, the accused-appellant threw the notes from his hands on the ground. It is alleged that Birdhi Chand saw this and collected these currency notes In the mean time, the Addl. S. P. arrived there and he also asked the accused to raise his hands over his shoulders. Birdhichand handed over those currency notes to the Addl. S. P. A lot of persons assembled there and, therefor?, they went to the office of the Excise Godown and, there, it is alleged that all these papers were prepared and interrogation was made from the accused. It is alleged that at that time, the accused gave the explanation that complainant tried to push the notes in his hands but he gave him a push and so, the notes fell down on the ground and therefore the colour of the water in which his hands were washed has became pink. After usual investigation and after obtaining sanction for prosecution from the DIG. Udaipur, the challan was filed against the accused appellant in the court of the learned Special Judge, Anti Corruption Cases, Rajasthan, Jaipur who after holding the trial held the accused-appellant guilty as aforesaid and hence this appeal. It may be stated here at the cost of repetition that initially, this appeal was decided by this Court vide its judgment dated 15-1-1986 but on a petition for special leave filed before their Lordships of the Supreme Court, the judgment of this Court was set aside and the case was remanded for re-hearing. I have heard Mr. M. M. Singhvi, the learned counsel appearing for the accused-appellant & Mr. R. K. Soni, the learned Public Prosecutor appearing for the State. I have carefully gone through the record of the case. In this case, it is not disputed before us that FIR case No. 67/74 was registered against complainant Ram Kishan at P. S. Vijaynagar, of which, the accused-appellant Abdul Quddoos was the SHO at the relevant time. It is alleged that initially, the SHO after conducting necessary investigation released him on bail, after deleting the offence under section 451 IPC. The APP after scrutinising papers came to the conclusion that that only an offence under section 148, IPC is made out against the accused-persons and, he, therefore, recommended that challan under section 148 IPC be filed. This opinion of the concerned APP dated 8-12-1974 has been approved by the Dy. S. P. on 9-12-1974. Consequently, the challan was prepared and the copies of those challan papers were handed over to the learned counsel for the accused on 16-12-1974 i. e. the date on which it is alleged that Rs. 75/- were given to the accused as illegal gratification. So that as it may, the accused also admits in his statement under section 313 Cr. PC that Ram Kishan met him on that day but he never demanded any money from him. He has further admitted that he was present in the Court premises on that day before the Munsif Court and, therefore, he was to go to Banswara and, therefore, he came out of the Court premises and gave a sign to the bus to stop. His bag was with Ram Kishan. He took the bag from Ram Kishan and tried to board the bus from its main gate, which was towards the hospital side. At that point of time, the complainant Ram Kishan tried to thrust the notes in his hand but he gave push to him and, therefore, the notes fell down on the ground and he has brought this fact to the notice of the Additional S. P. It is, therefore, clear that complainant Ram Kishan was present in Chittorgarh Court premises along with accused Abdul Quddoos and an attempt was made to give certain currency notes to him. The notes fell down near the bus gate. They were collected by Birdhi Chand and were handed over to the Additional S. P. Shri Ram Singh.
(3.) PW 2 Ram Kishan, PW 4 Mangi Lal, PW 5 Kalyan Singh, PW 6 Jawahar Lal and PW 7 Ram Singh examined by the prosecution have categorically stated that at that time, the Additional S. P. was camping in the Dak Bungalow and the complainant Ram Kishan delivered to him a written report against Shri Abdul Quddoos, SHO Vijay Nagar and in pursuance of that report, certain formalities were observed by the Additional S. P. Anti Corruption. Rs. 75/- were handed over by Ram Kishan to the Additional S. P. in the presence of the witnesses. The Additional S. P. after putting his initials and after completing other necessary formalities adopting a particular procedure handed over those currency notes back to the complainant. All these formalities and procedural requirements have been proved by the witnesses and that aspect of the evidence led by the prosecution has not been disputed on behalf of the accused in cross-examination. PW 3 Ram Kishan has stated that initially, he took the SHO to a Tea-Stall and there, he offered the money to the accused-appellant by saying that he has brought his Amanat On this the accused told him as under: ( - - --) Mr. M. M. Singhvi, the learned counsel appearing for the accused-appellant has submitted that if the accused-appellant has actually demanded the money from the complainant as illegal gratification and when the complainant brought the money with him, there was no reason for him to refuse to accept the money. According to him, even if it is considered that he did not refuse to accept the money and told the complainant that the money will be taken when his bail is taken by the Court then too, it is an admitted case of the prosecution that at that time, the challan was not filed and the accused-persons in the FIR Case No. 67/ 74 were not released on bail and, therefore, there was no occasion for the accused to have demanded the money after he once refused to accept it before bail on that very day when it was offered. According to Mr. Singhvi, it is against human conduct that a man will not accept the money when it is offered in a place where the receiver and giver both are alone and will take it at the time when the receiver is boarding the bus and a lot of persons are there. Thus, the story of demand of illegal gratification made by the SHO from the complainant appears to be a planted story. He has submitted that PW 3 Ram Kishan and PW 5 Kalyan Singh have categorically stated that the illegal gratification was demanded by the accused from Shri Ram Kishan and it was handed over to him when he was boarding the bus. PW 3 Ram Kishan has rather stated that it was handed over to him before he tried to board the bus. PW 3 Ram Kishan has stated that as soon as the notes where handed over to the accused, he gave an agreed sign to the Additional S. P. on which, PW 6 Jawahar Lal and PW 7 Birdhi Chand came running from the Excise Office towards the Bus. Jawaharlal reached earlier than the Additional S. P. PW 3 Ram Kishan has, however, stated that both of them reached the place of the occurrence together and as soon as the Additional S. P. came there, he caught hold of the hands of the accused-appellant near his shoulder and he asked the accused appellant to get down. According to him, by that time, the notes were thrown by the accused-appellant on the ground. It is, therefore, clear from the testimony of PW 3 Ram Kishan that notes were in the hands of the accused till the witnesses arrived there and they were thrown by the accused when his hands were caught either by Jawahar Lal or by the Additional S P. PW 4 Mangi Lal is silent about the handing over of the notes to the accused SHO by the complainant as also about the throwing notes on the ground. He has stated that he could not see this part of the incident. PW 5 Kalyan Singh has, however, stated that as soon as they came out of the gate of the Collectorate, which is a big building in which the Office and the Court of Munsif is situated. PW 3 Ram Kishan was accompanying the accused SHO and he was behind them. The bag of the SHO was in the hands of the complainant. After about 5-7 minutes, bus came there. As soon as the bus came, PW 3 Ramkishan handed over the bag and the money to the SHO. Earlier to this, they were talking but what talk took place between them, he cannot say. Thus, he is not a witness to this effect that the SHO demanded any money from Ram Kishan. He has however, stated that Ram Kishan handed over the money to the SHO and as soon as the money and the bag were handed over to the accused SHO he gave a signal to the Addl. S. P. and on observing that sign, the Addl. S, P. and PW 6 Jawahar Lal came running there but before they could reach there the accused-appellant Abdul Quddoos also reached near the gate of the bus and as soon as he was trying to board the bus, the Addl. S. P. arrived there. He told something to the accused, which he could not hear He saw that the accused has thrown the currency notes on the ground which were collected by one constable of the Excise Department and he gave those notes to the Addl. S. P. Later, the SHO and the Addl. S. P. along with their party went to the Excise Godown, where proceedings were drawn. PW 6 Jawaharlal does not say that the notes were thrown in his presence. PW 8 Ramsingh also does not say that the notes were thrown in his presence, whereas PW 3 Ramkishan and PW 5 Kalyan Singh have stated that the notes were thrown by the accused as soon as his hands were caught by Jawahar Lal or for that matter by Ramsingh. Pw 7 Birdhichand has stated that he was getting down the bus and the SHO was ascending the bus. As soon as he got down, some body threw the currency notes on the ground and he collected those notes. He has further stated that he asked the passengers as to whose notes have fallen down. He does not support the testimony of the prosecution that these notes have been thrown on the ground by the accused while he was boarding the bus. Although, the testimony of Ramkishan and Kalyansingh is consistent about it that these currency notes which were given to the accused by Shri Ram Kishan were thrown by the accused on the ground but if we critically examine the testimony of these two eye witnesses, it appears that they have tried to falsely implicate the SHO, (accused-appellant ). ;