Dilip Kumar Sinha, J.
1. The present appeal is directed against the judgment and order dated 26.9.2006 passed by the Addl. Sessions Judge, 8th -cum-Special Judge, C.B.I., Dhanbad in R.C. Case No. 4(A)/86(D) whereby and whereunder the appellant was convicted under Section 161 I.P.C. and Sections 5(2) r/w 5(1)(d) of the Prevention of Corruption Act, 1947, accordingly, sentenced to undergo rigorous imprisonment for one year on each count. Besides his substantive sentence for imprisonment under the P.C. Act, fine of Rs. 500/- was awarded to him with default stipulation to serve out rigorous imprisonment for one month and both the sentences recorded against him were directed to run concurrently.
2. The prosecution story in brief was that the complainant Rohan Manjhi presented a written report to the S.P., C.B.I., Dhanbad narrating therein that he was working as loader in Lohapatti Colliery. On 4.1.86 he sustained injuries in his leg while he was on duty and he informed the Shift Incharge about his injury. He went to Lohapatti Colliery Hospital and got his injuries examined as per instruction of the Shift Incharge by the appellant Dr. Shambhu Sharan Lall, who though provided medicine to him but did not issue sick report to the complainant. As such the complainant informed the Shift Incharge and only on his interference the appellant Dr. Lall issued sick report to the complainant. The complainant further narrated that on his recovery from sickness he went to the appellant after 12 days requesting to issue his fitness certificate but in lieu of that, it was alleged, that the appellant Dr. Shambhu Sharan Lall demanded Rs. 200/- as gratification. The complainant further narrated that he persuaded the appellant that he was a poor man but the appellant was adamant not to issue certificates without receiving gratification. The complainant further narrated that though he arranged Rs. 200/- but was not inclined to deliver it to the Doctor, hence the written complaint. After preliminary verification, R.C. Case No. 4(A)/86D was instituted on 11.2.1986 for the offence under Section 161 I.P.C. against the appellant Dr. Shambhu Sharan Lall. A raiding party was organized on 12.2.1986 consisting of the officers of C.B.I. viz. P.W.7 Ram Chandra Choudhary, L.N. Manjhi and A.K. Asthana, both Inspectors of C.B.I. but not examined, A. Dey S.I., C.B.I. (not examined), Ramjit Rai, S.I., C.B.I. (not examined), P.W. 4 Head Constable C.B.I. N.K. Singh and Afsar Khan (not examined), V.K. Rai (not examined) besides the independent witnesses P.W. 2 Braj Bansi Prasad Singh and P.W. 3 Saroj Kumar Jha as also the complainant Rohan Manjhi (not examined). A preliminary memorandum was prepared at the office of C.B.I., Dhanbad on the production of 2 G.C. notes by the complainant of the denomination of Rs. 100/- each which were treated with phenolphthalein powder and returned to the complainant with the instruction to pay the said treated notes only when demanded by the appellant. The hands of the members of the raiding party were washed with soap and subsequently the appellant was trapped with the tainted notes, which were delivered by the complainant Rohan Manjhi.
3. The C.B.I. after investigation submitted charge-sheet against the appellant under Section 161 I.P.C. and Sections 5(2) r/w 5(1)(d) of Prevention of Corruption Act, 1947 against the appellant and accordingly cognizance of the offence was taken. The appellant was put on trial after framing of charge against him.
4. Learned Senior Counsel Mr. Rana Pratap Singh appearing on behalf of the appellant submitted that according to the prosecution case the informant was Rohan Manjhi but it would be evident from the charge that it was Roshan Manjhi from whom the appellant allegedly demanded Rs. 200/- for the issuance of fitness certificate to enable him lo join duty and that he was caught red handed while demanding and accepting Rs. 200/-. Further charge against the appellant was that he demanded and accepted gratification and obtained pecuniary advantages to the extent of Rs. 200/- with the abuse of his official position as a public servant and in that manner he committed offence punishable under Section 5(2) r/w Section 5(1)(d) of Prevention of Corruption Act, 1947 and in that view of the matter, according to the learned Counsel, the appellant was highly prejudiced.
5. Mr. Singh, learned Senior Counsel advancing his argument submitted that Ext. 10 was the written report presented by the complainant Rohan Manjhi which was the basis of the institution of F.I.R. Ext. 8. The F.I.R. indicated that a preliminary enquiry was made by an Officer of the C.B.I. and having been satisfied and found prima facie case against the appellant, the C.B.I. case was instituted. Yet, neither verification report was brought on the record nor the person verifying the same has been examined on behalf of the prosecution. Mr. Singh submitted that the Apex Court in P. Sirajuddin v. State of Madras, reported in : 1971CriLJ523 held;
Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general.
6. According to the learned Counsel, the complaint as produced by the complainant was scribed by someone with a thumb impression thereon but without endorsement that the thumb impression on the complaint belonged to Rohan Manjhi. Similarly the complaint was addressed to the Superintendent of Police, C.B.I., Dhanbad but without any endorsement of the S.P., C.B.I, or any other competent officer of C.B.I. thereon for appropriate action. The written complaint though was proved Ext. 10 but with objection since it was not brought on the record in accordance with law by any competent person and in absence of the complaint being brought legally on the record, the conviction of the appellant was illegal and uncalled for, liable to be set aside.
7. The learned Counsel though clarified that P.W. 7 Ram Chandra Choudhary deposed that on the statement and dictation of the complainant the complaint was scribed by Shri A.K. Asthana a C.B.I. Officer but Shri Asthana was not produced in the witness box. Similarly neither any endorsement of S.P., C.B.I. was made on the written complaint nor his note-sheet, pertaining to such direction, if at all, was proved before the Trial Court and therefore, according to the learned Counsel the entire prosecution of the appellant was unfounded.
8. Learned Counsel further contended that according to the written report the complainant had received injury on 4.1.86 and he was referred by Shift Incharge to the Doctor at dispensary. At that time P.W. 8 Sidheshwar Chakraborty was the over-man Incharge and he admitted in his testimony having issued the injury slip (Ext. 16) with the endorsement, 'Doctor Babu' please examine Rohan Manjhi, loader as he was injured U/G at 2 p.m. by piece of coal slipped from the basket.'
9. Mr. Singh pointed out that upon such requisition, the injury of the complainant was examined and endorsement was made thereon (Ext. 16), 'light duty 3 days' S/d dated 4.1.85.' The Counsel emphatically submitted that the prosecution failed to prove beyond doubt that such endorsement was made by none other than the appellant and on this score alone the conviction of the appellant was liable to be set aside as the genesis could not be proved. The prosecution had examined P.W. 9 Dr. H.N. Mahto, a retired Doctor who admitted by testifying that the signature on Ext. 16 appeared that it belonged to Dr. Shambhu Sharan Lall but in paragraph No. 3 he testified in more clear words that he was not sure that the signature on Ext. 16 actually belonged to Dr. Lall and in this manner the witness was hesitant to prove that Ext. 16 had bearing of the signature of the appellant Dr. Lall. On the other hand, PW. 11 Ram Naresh Singh testified that one of the signatures on Ext. 16 was of Sidheshwar Chakraborty (P.W.8) whereas the another was of the compounder and that there was no signature of any Doctor on the said slip (Ext. 16). For the reasons stated above, according to the learned Counsel, Ext. 16 did not bear the signature of the appellant Dr. Lall and therefore, the prosecution failed to prove that the complainant Rohan Manjhi was examined by the appellant at first point in time on 3.1.86 or on 4.1.86. Yet, according to Ext. 16 the complainant was advised for the light duty as he was neither declared sick nor unfit for his work for the injuries sustained by him. In view of that matter it can well be inferred that the complainant brought about false story that he went to the appellant and by producing Ext. 10, demanded sick report from him. Unless a workman is declared unfit or sick the learned Counsel submitted that the question of demanding fitness certificate did not arise at all and the entire prosecution story is fit to be disbelieved and the relevant factor was that complainant was not examined for such clarification on behalf of prosecution to substantiate his complaint. Yet, the prosecution produced P.W. 5 Shailendra Kumar Singh, a constable in C.B.I who admitted by testifying that he was given summons of the Court (Ext. 4) to serve upon the complainant Rohan Manjhi for his testimony when the witness visited on the given address, Rohan Manjhi was reported dead and his widow delivered a copy of death certificate which was marked 'X' for identification. At the first instance summons was issued to the C.B.I. constable Shekhar Rai on 3.12.2003 for service upon complainant by service report dated 5.12.2003 he made endorsement that he went to the addressee where he was told that the complainant Rohan Manjhi superannuated on 1.4.2002 and he obtained his permanent address, 'Rohan Manjhi, village Kurvrai, P.O. Anakucha, P.S. Chas, District-Bokaro'. The constable Shekhar Rai who carried the summons and put his endorsement by giving the permanent address was not examined. The Another report dated 18.12.2003 was submitted by P.W. 5 with regard to death of Rohan Manjhi. Learned Counsel pointed out that neither the endorsement of Shekhar Rai on the summons dated 5.12.2003 nor the report of P.W. 5 dated 18.12.2003 got bearing of attestation of any witness that these two constables had actually visited the place of addressee and enquired the whereabouts of the complainant and that P.W.5 was told that the complainant was dead and for such reason, the service reports cannot be relied upon for want of corroboration. The endorsement of P.W. 5 on the service report dated 18.12.2003 did not contain as to from whom he derived information that Rohan Manjhi (complainant) was dead. Yet, P.W. 5 on his, testimony admitted that the photocopy of death certificate was given to him by the widow of Rohan Manjhi and that the said photocopy was marked 'X' for identification. The widow of Rohan Manjhi was not examined in the Court either for the production of the original death certificate or in support of the fact that Rohan Manjhi was dead and in this manner the prosecution failed to prove that Rohan Manjhi was dead and it could safely be inferred that entire prosecution case was doubtful as neither complainant was examined nor prosecution could be able to prove the case. The Learned Counsel pointed out the serious contradiction by submitting that the process server Shekhar Singh in his service report of summons (Ext.4) dated 5.11.2003 endorsed that Rohan Manjhi superannuated on 1.4.2002 as he gathered at the place of addressee at Lohapatti Colliery where he obtained his permanent address but the photo copy of the death certificate 'X' for identification produced by P. W. 5 indicated that the complainant Rohan Manjhi died on 29.1.2002 and the prosecution failed to explain the inconsistency in such dates, therefore, it can safely be inferred that the endorsement made on Ext.4 (summons) was false and the trial Court could have taken serious note of it.
10. Advancing his argument Mr. Singh submitted that according to the pre-trap memorandum (Ext.9), the members of raiding party consisted of 8 officers but out of them only four could be produced and examined viz. P.W. 7 Rum Chandra Choudhary, P W. 4 Nand Kishore Singh, P.W. 2 Brij Banshi Prasad Singh and P.W. 3 S.K. Jha without explanation as to why other four witnesses abstained from witness box.
11. On facts, learned Senior Counsel Mr. Singh submitted that the prosecution miserably failed to prove the demand and acceptance of bribe money by the appellant. The prosecution case was that the appellant accepted the money from the complainant Rohan Manjhi and put it in the right hand drawer of his table in his Chamber and that the tainted notes were recovered from his drawer. Both his hands were washed separately in the solution of sodium carbonate which was prepared in two different jars. When right hand was put in one glass the solution turned pink (QB) but when the left hand was put in the solution of sodium carbonate prepared in another Jar, the colour of the solution remained as it was (Q.C.).
12. P.W.7 Ram Chandra Choudhary, testified that P.W. 3 S.K. Jha and one Ramji Rai, A.S.I. of C.B.I. were directed to associate the complainant to stand witnesses of demand and acceptance of bribe money. The witnesses wore consistent that the appellant came at 11.30 a.m. and before that patients were standing in queue. The complainant Rohan Manjhi also stood in queue followed by P.W.3 S.K. Jha and Ramji Rai one after another. The complainant entered into the Chamber of the appellant after his arrival according to his turn, followed by P.W. 3 S.K. Jha and Ramji Rai (not examined). On the signal being given by P.W 3 S.K. Jha after the transaction was over then he (P.W.7) and P.W. 2 Brij Bansi Prasad Singh entered into the Chamber. P.W. 2 was clear in his testimony that he did not enter into the Chamber of the Doctor and therefore, he did not see the transaction. He claimed having heard interaction between the appellant and the complainant from outside the door. The fact stands falsified from the statement of P.W. 2 before the Trial Court that there was a peon at the door at the Chamber of the appellant with the curtain at the door and the peon was allowing only one patient before the Doctor at a time and hence there was no scope for P.W. 3 and the A.S.I., Ramji Rai to enter into the Chamber of the appellant concealing their identity simultaneously when only complainant was allowed in the Chamber. In the facts and circumstances, if at all there was any witness of the transaction it was none other than the complainant himself who was not examined. The claim of P.W. 3 having witnessed the transaction in the facts and circumstances is doubtful. P.W. 3 though admitted that he entered into the Chamber but he clarified that he was standing behind the door and therefore, it can well be presumed that he did not see the transaction. The another C.B.I. Officer Ramji Rai who was asked to accompany the complainant Rohan Manjhi to the Chamber of the appellant abstained from the witness box and therefore, the prosecution failed to produce any witness on the important issue of transaction. Taking the next point with reference to Ext. 7 i.e. the report of the Forensic Science Laboratory, Kolkata, it was observed therein, 'both sodium carbonate and phenolphthalein were detected in the content of each of the bottle marked Q-A, Q-B and Q-C'. The learned Counsel pointed out that the colour of the left hand wash in the solution of sodium carbonate did not turn pink, indicative of the fact, that it did not come in contact with the tainted notes but the report was otherwise and all the three bottles according to the F.S.L. report contained sodium carbonate and phenolphthalein. In this manner the entire process to test the veracity of allegation by confirmatory test and the transaction of tainted money was highly doubtful.
13. Finally, learned Senior Counsel submitted that the memorandum of recovery allegedly prepared at the place of occurrence having no bearing of the signature of the appellant and for want of endorsement that a copy of such memorandum was given to the appellant was against the procedural safeguards as contained in Sections 100 & 102 Cr.P.C. The charge was framed for the demand and acceptance of bribe money from one Roshan Lal Manjhi whereas the prosecution case was that one Rohan Manjhi (2) had been to obtain fitness certificate and in this manner the prosecution was not definite about its own case. In view of the above fact, according to the learned Senior Counsel, judgment of conviction and order of sentence recorded against the appellant is unwarranted, uncalled for and is liable to be set-aside by acquitting the appellant and allowing his appeal.
14. On the other hand, Mr. Rajesh Kumar, learned Standing Counsel, C.B.I, strongly controverted by submitting that Prevention of Corruption Act, 1947 did not make the preliminary verification of the complaint, a statutory requirement prior to institution of First Information Report by the C.B.I. and the similar situation continued to prevail in the amended Prevention of Corruption Act, 1988.
15. Learned Standing Counsel admitted that the Apex Court in the decision reported in A.I.R. 1971 Supreme Court page 520 felt it necessary for a preliminary enquiry before registering an F.I.R. by C.B.I. but the Parliament in its own wisdom did not prefer for enactment or introduction of such provision under the new P.C. Act, 1988.
16. He further asserted that the appellant cannot be prejudiced for the preliminary enquiry report being not brought on record. According to the learned standing counsel for C.B.I., P.W. 8, 9 & 11 were consistent that the complainant had received injury in his foot and once the injury is sustained, the fitness certificate is required as it was required by the complainant. On the issue of demand and acceptance of bribe money by the appellant, two independent witnesses viz. P.W. 2 & P.W. 3 were consistent that the entire transaction was made in their presence and tainted money was recovered from the drawer of the appellant's table. They were further consistent that when the right hand of the appellant was washed and the residue was mixed with the solution of sodium carbonate, its colour turned pink which was conclusive of the charge that the appellant had touched the tainted notes by his right hand and put it in drawer. The report of the Forensic Science Laboratory, Kolkata further substantiated that the solution Q.B. contained phenolphthalein and sodium carbonate. Learned Counsel pointed out that the law was settled that the moment tainted notes were recovered from the possession of the appellant, the onus was heavy upon the appellant as to how he came in possession of such notes and a legal presumption can be drawn against him as decided by the Apex Court, reported in 2001 Cr. Law Journal 175 in Madhukar Bhaskarrao Joshi v. State of Maharashtra:
The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted 'as motive or reward' for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the Court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it.
17. In B. Noha v. State of Kerala and Anr. reported in 2007 (1) JLJR 116 (SC), the Supreme Court held:
The evidence shows that when PW 1 told the accused that he had brought the money as directed by the accused, the accused asked P.W. 1 to take out and give the same to him. When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove any direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case. It was held by this Court in Madhukar Bhaskarrao Joshi v. State of Maharashtra : 2001CriLJ175 , as follows:The premises to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premises is established the inference to be drawn is that the said gratification was accepted 'as motive or reward' for doing or forbearing to do any official act. So the word gratification need not be stretched to mean reward because reward is the out come of the presumption which the Court has to drawn on the factual premises that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing' if acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it.
18. Concluding his argument, learned Standing Counsel for C.B.I. submitted that there was no case of the accused that the amount received by him was the amount to which he was legally entitled to receive or collect from the decoy and in the State of A.P. v. Kommaraju Gopala Krishna Murthy, reported in 2000 (9) S.C.C. 752 it was held that when any amount is found to have been passed to the public servant, the burden is on public servant to establish that it was not by way of illegal gratification. In the present case, according to the learned Counsel, the burden could not be discharged by the appellant, on the other hand the prosecution proved its case against the appellant. The judgment is well discussed whereby and whereunder the conviction of the appellant was recorded and sentence was awarded against him for the charge he stood for and the same do not call for interference in appeal.
19. Having regard to the facts and circumstances of the case, argument advanced on behalf of the parties, I find that the specific case of the prosecution was:
(i) The complainant Rohan Manjhi, a loader in Lohapatti Colliery sustained injuries in his leg while he was on duty on 4.1.86.
(ii) On the advise of the Shift Incharge (P.W.8) he got his injuries examined by the appellant but did not find him sick.
(iii) On the interference of the Shift Incharge the appellant Dr. Shambhu Sharan Lal issued sick report to the complainant.
(iv) The complainant went to Lahapatti Colliery Hospital after 12 days and demanded fitness certificate from the appellant.
(v) The appellant demanded Rs. 200/- as gratification for issuance of both the documents. The complainant expressed his inability on account of poverty but of no avail.
(vi) The complainant any how arranged Rs. 200/- but he was not inclined to bribe the appellant hence written complaint before the Superintendent of Police, C.B.I., Dhanbad (Ext. 10 with objection).
20. In support of such contention, the prosecution failed to produce the complainant Rohan Manjhi and only document which was produced on the record was written complaint which was marked Ext. 10 with objection. The objection was raised from the defence side during trial and I find substance therein that the written complaint was in 'Hindi' with alleged thumb impression of the complainant without endorsement by the scribe that the contents of the complaint was read over and explained to him and after finding the same to be correct, the complainant Rohan Manjhi put his thumb impression. I further find that no endorsement was made on the said written complaint as to what action was taken by the S.P., C.B.I., Dhanbad. Even no note-sheet of the S.P., C.B.I, or any competent police officer was produced before the trial court in respect of any proposed action or order on the receipt of the written complaint. The scribe of the complaint stated to be the C.B.I. Officer abstained from the witness box during trial. The maker of such written complaint Rohan Manjhi was not examined with the explanation that he died during the pendency of the present case but without legal evidence on the record and in this manner the prosecution relied upon the complaint which could not be substantiated by its maker complainant and hence the complaint Ext. 10 could not legally be proved.
21. As regards the summons issued against the complainant for his statement before the Trial Court, I find substance in the argument of the defence that there was no legal evidence on the record in support of the fact that Rohan Manjhi was dead. The prosecution produced P.W. 5 Shailendra Kumar Singh a constable in C.B.I. that he after receipt of the summons (Ext.4) from the Court when visited on the given address, Rohan Manjhi was reported dead and his widow delivered a copy of death certificate to him which was marked 'X' by the trial court for identification. But neither original death certificate was brought on the record nor the widow of Rohan Manjhi if at all, was produced in the witness box to prove the relevant fact that he was dead. Prior to that, Shekhar Rai a constable in C.B.I. when visited to serve the summons on 5.12.2003 he gathered that the complainant Rohan Manjhi superannuated on 1.4.2002 and after his superannuation he shifted at village Kurvarai, P.O. Anakucha, P.S. Chas, District-Bokaro and he made similar endorsement on the back of the summons. To find out consistency in the statement of the process servers of summons against the complainant Rohan Manjhi as aforesaid, I find from the alleged death certificates of Rohan Manjhi (x) that he died on 29.1.2002 which is contrary to the service report of the constable Shekhar Rai that Rohan Manjhi superannuated on 1.4.2002 which is quite improbable and I find and hold that the service reports were prepared bala bala without attestation of local witnesses on the endorsements made by the process servers and I observe therefore, that the prosecution failed to prove that the complaint (Ext. 10) could not be substantiated by its maker by adducing ocular evidence.
22. The next point for consideration is as to whether the complainant Rohan Manjhi was reported sick so that he could require fitness certificate to resume his duties. In this connection the statement of P.W. 8 Sidheshwar Chakraborty, who was over-man incharge at Lohapatti Colliery at the relevant time in the year 1986 is relevant. He testified that Rohan Manjhi was working as a loader in shift and at that time Dr. Shambhu Sharan Lall (appellant) was posted in the dispensary. He proved the injury slip in his pen which was prepared in relation to the injury received by Rohan Manjhi during work on 3.1.86. He proved the injury slip Ext. 16. The injury slip (Ext. 16) indicates the endorsement made by the witness, 'Doctor Babu', please examine No. 2 Rohan Manjhi loader as he injured U/G at 2 p.m. by a piece of coal slipped from his basket.' On such injury slip I find mention, 'light duty 3 days' S/d dated 4.1.85. It is relevant to mention that the injury slip was issued on 3.1.86 but the endorsement made on the injury slip by the attending Doctor bears the date 4.1.85 without any explanation from the prosecution side about such inconsistency. The prosecution had examined P.W. 9 Dr H.N. Mahto, a retired Doctor who testified that the signature on Ext. 16 appeared that it belonged to Dr. Shambhu Sharan, Lall but in paragraph No. 3 he admitted in more clear words that he was not sure that the signature on Ext. 16 extending medical advise actually belonged to Dr. Lall (appellant) and in this manner I find substance that the witness was hesitant to prove that Ext. 16 bearing of the signature of the appellant with date. I further find from the testimony of P.W. 11 Ram Naresh Singh who deposed that one of the signatures on Ext. 16 belonged to Sidheshwar Chakraborty (P.W. 8) whereas the another signature was of a compounder and there was no signature of any Doctor on the said slip (Ext. 16) and in this manner I find substance in the argument that the prosecution failed to prove that the complainant Rohan Manjhi was examined by the appellant at first point in time on 3.1.86 or on 4.1.86. Yet, according to the Ext. 16 the complainant was advised for the light duty as he was neither declared sick nor unfit for his work for the injuries sustained by him. There is a point in the argument that when the complainant was not declared sick or unfit for his work then there was no need of obtaining certificate for fitness. I find on careful perusal of Ext. 16 that the complainant was advised light duty for 3 days only and according to his admission in the complaint he went to the appellant after 12 days and demanded fitness certificate illegally as he overstayed beyond the period of 3 days which he could not get. The prosecution failed to explain this relevant fact before the trial court.
23. As regards demand of Rs. 200/- by the appellant as bribe for issuance of two documents to the complainant and recovery of the said amount from the conscious possession of the appellant from the right hand drawer of his table in the Chamber of the Hospital, much has been argued on behalf of the parties. According to the pre-trap memorandum (Ext. 9), the raiding party was consisted of 8 officers and one complainant but out of them only 4 could be produced and examined and remaining abstained from the witness box for the reasons best known to the prosecution. It was a consistent case of the prosecution that on the signal of the complainant as well as P.W. 3 S.K. Jha, members of the raiding party entered into the Chamber of the appellant and both of his hands were held by two staff of the C.B.I. Both his hands were washed separately in the solution of sodium carbonate and when the residue of right hand wash was mixed with the solution of sodium carbonate, the colour turned pink (Q.B.) but when the residue of left hand wash was put in the solution of sodium carbonate prepared in another jar, the colour of the solution remained intact without change (Q.C.). The solution Q.A. was the demonstration of the reaction of phenolphthalein when mixed with the solution of sodium carbonate and the colour of the such specimen was pink. All the three material exts. were sent to the Forensic Science Laboratory which reported having found the solution of Phenolphthalein with sodium carbonate in each of the jars Q.A., Q.B. & Q.C. which was contrary to the fact as the colour of Q.B. did not turn pink and therefore, the post-trap memorandum with the seizure list prepared could not be substantiated by the report of the Forensic Science Laboratory.
24. The prosecution could examine only three witnesses on the issue of trap of the appellant by the raiding party on demand and acceptance of bribe money. The witnesses were P.W. 7 Ram Chandra Choudhary, P.W. 2 Brij Bansi Prasad Singh and P.W. 3 S.K. Jha. P.W. 2 and P.W. 3 were requisitioned from different Departments by the C.B.I., Dhanbad to stand as independent witnesses in the trap case. The witnesses were consistent that the appellant Dr. Shambhu Sharan Lall came to the Hospital at 11.30 a.m. and the patients were standing in queue since long before his arrival. The complainant Rohan Manjhi also stood in queue followed by P.W. 3 S.K. Jha and one Ramji Rai (not examined) one after another. The complainant when entered into the Chamber of the appellant, he was followed by P.W. 3 S.K. Jha and Ramji Rai and after the transaction was over P.W. 3 S.K. Jha signaled the other witnesses who were standing outside, and pursuant to that P.W. 7 Ram Chandra Choudhary and P.W. 2 Brij Bansi Prasad Singh entered into the Chamber of the appellant with two other C.B.I. constables who held the hands of the appellant separately. P.W. 2 Brij Bansi Prasad Singh produced on behalf of the prosecution as an independent witness testified that he did not enter into the Chamber of the Doctor and so he did not see the transaction.
25. Yet, he claimed having heard interaction between the appellant and the complainant from outside the door. P.W. 2 deposed that there was a peon at the door of the Chamber of the appellant with the curtain at the door who was allowing only one patient at a time before the Doctor and I find substance that in view of such fact as testified by P.W. 2 there was no scope for another independent witness P.W. 3 S.K. Jha and A.S.I. Ramji Rai to enter into the Chamber of the appellant by following the complainant. P.W. 3 admitted by testifying that though he entered into the Chamber but he was standing behind the door and therefore, it could be well presumed that he did not see the transaction. The another C.B.I. Officer Ramji Rai who was asked to accompany the complainant Rohan Manjhi to the Chamber of the appellant abstained from the witness box and therefore I find substance in the argument of the defence that the prosecution failed to produce any witness on the important issue of demand and acceptance of bribe money by the appellant and if at all there was any relevant witness on the issue of transaction according to the prosecution case, it was none other than the complainant himself who was not examined.
26. I therefore, find and hold that in the facts and circumstances from which the conclusion of guilt is sought to be drawn by the prosecution against the appellant Dr. Shambhu Sharan Lall for the charge under Section 161 I.P.C. and Sections 5(2) r/w 5(1)(d) of the Prevention of Corruption Act, 1947 have not been fully and satisfactorily established beyond all reasonable doubt. In short, the evidence on the record falls short of proving the guilt of the appellant for the charge he stood. I find merit in this appeal and accordingly it is allowed. The appellant Dr. Shambhu Sharan Lall is accordingly acquitted in R.C. Case No. 4(A)/86 (D) by setting aside the judgment of conviction and order of sentence recorded against him by the Addl. Sessions Judge, 8th-cum-Special Judge, C.B.I., Dhanbad. His bail bonds stand discharged.