G. K. SHARMA, J. - (1.) THIS appeal is directed against the judgment dt. 19. 9. 79 passed by the Special Judge, Anti Corruption Cases, Jaipur, convicting the accused-appellant for the offences u/ss. 161 IPC and Sec. 5 (0 (d) read with sec. 5 (2) of the Prevention of Corruption Act and sentencing him to one year's RI and a fine of Rs. 200/-, in default of fine, to further undergo two month's SI.
(2.) RAM Karan on 1. 7. 76 at 8,15 a. m. submitted a report Ex. P. 2. to the Dy S. P. Anti Corruption Department (ACD ). Ajmer alleging that Bhanwar Lal Gujar of Indoli village had purchased 6 Bighas 10 Biswas of land from one Phool Kanwar (widow of Mool Singh Bhati) resident of Almas for Rs. 500/- by a written document, but Phool Kanwar did not get the document registered in favour of Bhanwar Lal and on the contrary got the registry of the land in favour of her son-in-law Jagpal Singh. Jagpal Singh, on the basis of the registered-deed insisted upon Bhanwar Lal to vacate the possession of the land, but Bhanwarlal refused to do so. It was alleged that Bhanwarlal's land was being cultivated by RAM Karan. Jagpal Singh filed a criminal case for committing theft against Bhanwarlal, his wife and mother alleging that they had removed the harvested crop. Jagpal Singh, thereafter, transferred this 6 bighas 10 biswas of land by a registered-deed in favour of Bhanwarlal son of Deo Karan Gujar of Hindoli and when this registry was shown in the theft case by RAM Karan to the Magistrate, the latter asked him to produce the copy of Gust-Girdawari. Since the certified copy of Gust-Girdawari was required RAM Karan approached the Patwari of the area Shri Ghasi RAM about 6-7 days earlier but he did not give the copy inspite of demanding it several times. He further alleged that he met the Patwari yesterday also and he demanded Rs. 50/- for the copy. The complai-nant did not want to give the bribe but wanted to trap the Patwari, and handed over 5 notes of Rs. 10/- each to Dy. S. P. On receipt of this report the Dy. S. P. called two motbirs RAM Pal and Bankat Lal along with staff started for village Almas. A demonstration about the utility of the phenolphthalein powder was given to them and after preparing document he handed over the currency notes putting his initials on them. Then trapped party went to village Almas. Dy. S P. and the party waited at a distance and the decoy RAM Karan was sent to Pat-wafi and the witnesses were asked to follow him. Then the decoy RAM Karan handed over the money to Patwari Ghasi RAM and when the signal was received from him, the Dy. S. P. reached near the Patwari Ghasi RAM and after introdu-cing himself asked the accused to hand over the money. This fact is also mention-ed in the report Ex. P. 2 as well as the memo Ex. P. 5 that immediately when the amount was recovered from the possession of Ghasi RAM, he told to the Dy. S. P. that RAM Karan had given this amount to him saying that this amount is the balance of revenue rent payable by Jawahara S/o Hardeo. After completing the investigation and obtaining sanction to prosecute from the Collector, Ajmer the challan was submitted before the Special Judge ACD Jaipur, The Special Judge, A. C. D. , framed charges against the petitioner u/s 161 IPC and u/s. 5 (1) (d) (2 ). of PC Act. The accused pleaded not guilty and claimed trial. The contention of the accused is that Ram Karan has been annoyed with him and he had lodged number of complaints against Ram Karan who was a regular defaulter of revenue rent and on this penalty has been imposed on him so many times. On account of these complaints Ram Karan was annoyed and wanted to take revenge from him He also contended that revenue rent Rs. 37. 91 was due towards Jawahara and Rs. 11. 1. 27 was due towards Ram Karan himself. He asked Jawahara to deposit the revenue rent due towards him and at that time Ram Karan came and took away Jawahara saying that he will deposit the amount of revenue rent due towards Jawahara and on the relevant date Ram Karan came and paid Rs. 50/- to deposit the revenue rent due against him as well as against Jawahara. He has also denied that Ram Karan had ever submitted any application for issuing him copy of Gust-Girdawari. According to him the application Ex. P. 1 was not recovered from his possession but it was brought from village Indoli by Ram Karan and one Bhanwarlal and they had put this application in the file. Actually, no such application was submitted by Ram Karan to him. The learned Special Judge after concluding trial found that the prosecution has established its' case against the appellant and he found him guilty of the charges and sentenced him as mentioned above. The learned counsel for the appellant argued that Ram Karan has admitted that the report Ex. P. 2 was got written by Shambhu Singh Constable of A. C. D and he submitted that report to the Dy. S. P. He has also stated that six days prior to this incident he had been to Patwari and demanded the copy and submitted the application Ex. P. 1 and the Patwari demanded to pay Rs. 50/-for the copy. He narrated that fact to Shambhu Singh who took him to Dy. S P. at Ajmer. Ram Karan narrated the story orally to Dy. S. P. who asked him to give in writing and then Shambhu Singh scribed the report Ex. P. 2 which was submitted by Ram Karan. So the important fact is that prior to giving the illegal gratification, it was demanded by Patwari accused and he reported this matter to Shambhu Singh Constable and he was taken to Dy. S. P. Shambhu Singh is the scribe of this report so Shambhu Singh is a very important witness who would corroborate the statement of Ram Karan, as well as the report Ex P. 2 which was written by him at the dictation of Ram Karan. Ram Karan has not stated that he dictated the report which was scribed by Shambhu Singh Constable. So actually who prepared this report Ex P. 2 is to be explained by the prosecution. If Ram Karan has not dictated this report Ex. P. 2, then the entire case is made out and the story is concocted by Shambhu Singh Constable. So in all respect Shambhu Singh is a very important witness who would prove the statement of Ram Karan and the factum of demanding illegal gratification by the accused. It was for the prosecution to prove that the accused has demanded the money prior to this date. The accused demanded the illegal gratification and on his demand the decoy paid the amount so the payment of illegal gratification is to be proved by the prosecution. Mere handing over money is not sufficient. There is nothing on the record to show that in presence of the witnesses the accused again demanded the money and he paid the amount on his demand. Why Shambhu Singh was not examined? There is no explanation to it. Then Shobh Singh, Lal Singh and Bajrangsingh who are also the Constables of the AC. Department and they were also participating in this trap, but none of these witnesses was examined by the prosecution. No doubt, there is no sense in increasing the number of witnesses to prove the facts but these Constables who participated in the trap certainly are very important witnesses Ram Pal (PW 6) and Bankat Lal (PW 2) are the two trap witnesses and they are independent witnesses but their statements could have been corroborated by these Police Constables had they been examined by the prosecution.
(3.) WHEN the Dy. S. P. recovered Rs. 50/- from the possession of the accused Ghasi Ram, he immediately replied that Ram Karan gave this amount Rs. . 50/- towards revenue rent of Jawahara. This fact which was stated by the accused has been noted in the report Ex. P. 2 and memo Ex. P. 5 by the Dy S. P. So this explanation is not an afterthought explanation by the accused, but it was promptly given to the Dy. S. P. by the accused. The probability of he explanation is to be seen. No doubt, when the amount is recovered from the possession of a person the presumption would be that he demanded illegal gratification and that amount was of illegal gratification, but, if he submits an explanation and that explanation is a probable explanation then the presumption is rebutted. In this case the accused has given the explanation of receiving Rs. 50/- from Ramkaran. He has admitted that Ram Karan had paid him this money but it was paid towards the revenue rent due to Jawahara. Whether this explanation is probable is to be judged from the evidence on record, and for this purpose I have gone through the evidence of this case. Ram Karan (PW 1) who is the decoy and who has paid this amount of Rs. 50/-to accused has totally denied about this fact that the amount was paid for revenue rent due towards Jawahara. If we read the statement of Ram Karan we find that he had contradicted the statements of PW 2 Bankat Lal, PW 4 Jawahara, PW6 Rampal and PW7 Ramswaroop. So what I see that Ram Karan is a liar and because so many complaints were lodged by the accused against him for which penalty was imposed upon him, he wanted to take revenge and for that this false story has been concocted. So Ram Karan has not come before the Court with clean hands and by the statement of the prosecution witnesses it is clear that this witness is most unreliable and untrustworthy. Jawahara (PW 4) is a very important witness and he has admitted that he was called by the accused two days before this incident and accused demanded to pay revenue rent. At that time Bhanwar Lal Jat, Sarpanch Gopal Singh and Rai Singh were also present. Gopal Singh Sarpanch has been examined as defence witness who corroborates the statement of Jawahara and the contention of the accused. Then Jawahara admitted that he called Ram Karan and Ram Karan told the Patwari Ghasi Ram leave Jawahara and on behalf of him he will deposit the revenue rent due towards Jawahara. Jawahara has admitted that he used to take money on interest from Ram Karan. So the contention of the accused is fully corroborated by the prosecution witness Jawahara (PW 4) and this witness has not been declared hostile. So there is no reason to disbelieve the testimony of this witness. ;