K.S. Sindhu, J.
1. The appellant, Abdul Majid, along with co-accused Kaila Prasad, since acquitted, was tried by the learned Special Judge, on the following charges:
1. That you and Kaila Prasad S.I. on or about the 19th day of September 70 at Bandikui agreed to do an illegal act, i.e. to obtain a sum of Rs. 200/- as an illegal gratification from Sukhlal as a motive or reward for showing favour in investigation of case No. 118 dated 14 9.70 under Section 147, 148, 149 IPC of P.S. Bandikui and that the said act of accepting Rs. 200/- as illegal gratification was done in pursuance of an agreement and thereby committed an offence punishable under Section 120B of the Indian Penal Code.
2. That you being a public servant employed as Head Constable in the police department at Bandikui directly accepted from Sukhlal son of Mangla Ram Meena resident of village Pragpura, Rs. 200/- for yourself and Kaila Prashad S.I., P.S. Bandikui as a gratification other than legal remuneration or as a motive or reward for showing favour in the investigation of case No. 118 dated 14-9-70 under Sections 147, 148/149 IPC of P.S. Bandikui and there by committed an offence punishable under Section 161 of Indian Penal Code.
3. That you being a public servant employed as Head Constable in police department on or about the 19th day of September, 1970 at Bandikui by corrupt or illegal means or by otherwise abusing your position as such public servant obtained for your self and Kaila Prashad S.I., P.S. Bandikui a pecuniary advantage of Rs. 200/- from Sukhlal Meena and thereby committed an offence under Section 5(1)(d) of the Prevention of Corruption Act, 1947 punishable under Section 5(2) of the said Act.
By his judgment dated January 31, 1971, the learned Special Judge acquitted the co-accused Kaila Prashad of all the three charges. He also acquitted the appellant of the charge of criminal conspiracy punishable under Section 120B. IPC He however, convicted the appellant under Section 161 IPC and under Section 5(1)(d) read with Section 5 (2) of the Prevention of Corruption Act, 1947 and sentenced him to undergo rigorous imprisonment for one year and a fine of Rs. 100/- or in default of payment of fine, simple imprisonment for one month under each count. The substantive sentences have been or dered to run concurrently.
2. The facts, in so far as they are material for the present purpose, may be briefly recapitulated here. The appellant was posted as Head Constable and Kaila Prashad as SH Order in Police Station Bindikui on September 14, 1970 Sheodan, PW. 2, lodgod a report in the said police station that day accusing a number of persons of the commission of offences of rioting and causing hurt in the course of that transaction The appellant recorded the said report at 1 30 p.m. The complainant felt aggrieved that no prompt action vas being taken by the appellant towards the investigation of that case He, therefore, contacted SH Order Kaila Pramad and requested him to expedite the investigation It is alleged that Kaila Prashad demanded illegal gratification of Rs. 600/ from the complainant for doing the needful. Instead of agreeing to the illegal demand of Kiila Prashad, the complainant went to his relation Sukhlal PW. 4 and requested him for help to entrap Kaila Prashad Sukhlal met the Inspector Genera of Police, Jaipur and complained to him about the illegal demand made by Kaila Prashad. The I.C.P. passed the matter on Shri Khem Ghand Tejwani, a subordinate police officer, who recorded the complaint as Ex. P/8.
3. The investigation was entrusted to Shri. M.M. Kaushik, Additional Superintendent of Police of Anti-Corruption Department. Jaipur Sukhlal gave Kaushik one 100/- rupee note & ten 10-rupee notes which were to be eventually passed on to Kaila Prashad. Kaushik noted down the numbers of these notes in a memorandum prepared by him for the purpose. He also treated them with phenolphthalin powder before returning' them to Sukhlal with necessary instructions to pass them on to Kaila Prashad After giving the money to Kaila Prashad, Sukhlal was to give a signal to Kaushik so that the latter could come and catch him redhanded Accompanied by Sheolal and Sheodan, PWS, Sukhlal went to the Police Station to do the job as advieed. He went inside the residential quarters of Kaila Prashad, while Sheolal and Sheodan kept waiting out side. M.M. Kaushik and party stayed away at some distance from the said quarter, awaiting the signal from Sukhlal. It appears that Kaila Prashad sefused to accept the amount. Sukhlal came out and sought instructions from Kaushik if the amount could be passed on to the appellant instead of Kaila Prashad. Kaushik advised that, if the appellant was agreeable to accept the amount, it may be paid to him without any further loss of time. Sukhlal then contacted the appellant in the police station and paid the marked currency notes of Rs. 200/- to him. It is alleged that the appellant put the ten-rupee notes in his shirt pocket and the hundred-rupee note in his pant pocket Sukhlal then gave pre-arranged signal. Kaushik immediately came inside the police station and caught hold of the appellant in the presence of Motbir witnesses, namely, Prabhu Dayal PW 3, and Om Prakash PW 9 He asked the appellant to surrender the currency Botes to him which he had accepted as bribe from Sukhlal There is some conflict in the prosecution evidence as to the re-action of the appellant on bring asked to surrender the money. Kaushik's version about it is that the appellant immediately told him that he had not taken any money from Sukh Lal by way of bribe and that the money paid by Sukhlal was towards the price of a she buffalo. The currency notes recovered from the appellant were, of course, the same which he had accepted from Sukhlal.
4. During the trial the prosecution examined among others, Sheolal, Sheodan, Sukhlal, Prabhu Dayal, Om Prakash, and M.M. Kaushik as witnesses in support of its case.
5. In his statement under Section 342 Cr.P.C. the appellant admitted that he had received Rs. 200/- from Sukhlal bat protested his innocence asserting that he had accepted the amount towards the price of a she-buffalo. He added in this contaxt that he has been falsely implicated in this case by Sukhlal on account of his personal grudge against him and also at the instance of Shri. Samarathlal, the then Dy. Minister in the Rajasthan Government. He added in this context that Shri. Samarathlal had taken umbrage because he had reduced into writing in the daily diary the subject matter of telephone conversation between him and Shri. Samarathlal. According to the appellant, Shri. Samarathlal wanted the police to refrain from arresting certain persons in a theft case.
6. The appellant examined DWs Ramkumar, Bhimaram, and Shivnarain as witnesses in support of the defence version. He also placed reliance on the report Ex P 8 of the daily diary in the police station. As already stated, the appellant admitted the acceptance of Rs. 200/- from Sukhlal. His explanation was that the amount was accepted as part payment of the price of a she buffalo, which Sukhlal had agreed to purchase from him. DW 3 Shiv Narain has testified that Sukhlal had agreed to purchase a she-buffalo from the appellant for Rs. 700/- in his presence. The learned trial Judge has disbelieved the evidence of this witness describing him to be a chance witness whose conduct according to the learned Judge, is 'most unnatural'.
7. DWs Ranikumar & Bhimaram, who were working at the relevant time as constables at the Police Station, Bandikui and whose presence at the time of payment of Rs. 200/- by Sukhlal to the appellant, is admitted by Sukhlal himself, have testified that the amount was paid towards the price of a she buffalo. The learned Sessions Judge has disbelieved them too on the ground that they are colleagues of the Appellant & were therefore; bound to support him The learned trial Judge has preferred to rely on the solitary statement of Sukhlal to reach the finding that the defence version is not proved and therefore, it shall be presumed under Section 4(1) of the Prevention of Corruption Act, 1947, that the appellant had accepted the amount of Rs. 200/- from Sukhlal as illegal gratification.
8. After giving my careful consideration to the facts and, circumstances, appearing on the record, I am of the opinion that the defence version does not deserve to be rejected out of hand in the manner done by the learned trial Judge. On the other hand, the prosecution evidence which has found favour with the learned Judge bristles with doubts throughout. I do not see any improbability in the presence of DW Shivnarain at the time of the contract between the appellant and Sukhlal regarding purchase of a she-buffalo by the latter. DWs. Ramkumar and Bhimaram cannot be disbelieved merely on the ground that they happen to be colleagues of the appellant. Their presence at the time of disputed transacting is admitted by the none-else than Sukhlal himself. They have testified that the appellant had started writing a rukka addressed to his brother instructing him to deliver the she-buffalo to Sukhlal and that, before the appellant could conclude the writing of the rukka, Sukhlal suddenly disappeared from the police station and went away. The learned trial Judge has disbelieved these witnesses on the additional ground that the incomplete rukka which was in the process of being written by the appellant was not recovered from his custody at the time of his arrest by M.M. Kaushik. The non-recovery of the rukka is, in my opinion, not a valid ground for rejecting the testimony of these witnesses. One can think of many explanations for such a rukka not finding mention in the documents seized by the Investigating Officer at the time of arrest of the appellant. For ought we know, the Invesitgating Officer himself may not have attached much importance to the said rukka for his own reasons. In any case, it would not be permissible to reject the sworn testimony of DWs. Ramkumar and Bhimaram merely because the rukka to which they refer is not available on the record.
9. As already stated, the Investigating Officer has himself admitted in Ms testimony that the appellant had immediately told him that the money that he had received from Sukhlal was not by way of bribe but it represented the price of the she-buffalo which he had sold to him. If so, one should have thought that the Investigating Officer would look into the matter to ascertain the truth about it. On the other hand, the Investigating Officer ignored this plea and did not consider it worthwhile even to record the statement of the two Constables who, according to Sukblal's own showing, were present at the crucial time.
10. So far as the prosecution evidence is concerned, it consists mainly of the testimony of PW Sukhlal who would have us believe that he had paid this amount to the appellant by way of bribe. It is significant to note that even Sukhlal is not prepared to say that the appellant had ever demanded any bribe from him or from his relations, Sheolal and Sheodan. If he is to be believed, he went to the appellant to pay the bribe to him merely because KLaiia Prashad had advised such a course and the Investigating Officer had given clearance about it. There is nothing in the evidence of Sukhlal to suggest that be had paid the amount to the appellant, telling him that it was by way of bribe relating to the case under the appellant's investigation. The ready acceptance of the money by the appellant without any back ground by way of demand of illegal gratification and, the like, would, if any thing, support the theory that he had accepted it assuming that it was towards the payment of price of the she buffalo. Shuklal bad, of course, different idea in the matter. It will be seen that when the rukka was being written Sukhlal suddenly disappeared from the police station. It may be legitimately argued that Sukhlal went away because he was eager to give signal to the Investigation Officer without any further delay. Had Sukhlal acted in a straight forward manner, there would have been no difficulty in accepting the explanation offered by the prosecution. What has happened instead is that Sukhlal after giving the pre arranged signal disappeared from the scene altogether and went home. PW MM. Kaushik, the Investigating Officer, has testified that he had to send his jeep to fetch Sukhlal from the market. PW Om Prakash, one of the motbir witnesses, agreed with the Investigating Officer that Sukhlal had gone away and that the proceedings of recovery etc. from the appellant were conducted in Sukhlal's absence. Sukhlal, on the other hand, says that he did not leave the premises of the police station at all and that he stayed there throughout. In his statement recorded under Section 161 Cr.P.C., Sukhlal had admitted in so many words that after giving the signal to the Investigating Officer he had gone to his village and he was subsequently called from there by the Investigating Officer. This is, in my opinion, a material discrepancy in the prosecution evidence. It indicates that Sukhlal is not the type of witness on whom one may place implicit reliance. Reference may then be made to the entry, Ex. P.8, in the daily diary of the police station Bandikui. This entry was made by the appellant on August 5, 1970, i.e., nearly five week before the present occurrence. It will be seen from this entry that Shri Samarath Lal, Dy. Minister, had spoken to the appellant about some theft case directing him to act in a particular manner. He also wished to see the SHO in that connection. Sukhlal is his statement under Section 161 Cr.P.C. hid admitted that, before contacting the Police in the Anti-corruction department at Jaipur, he had contacted Samarath Lal and the then Home Minister of Rajasthan. It is significant to note that Sukhlal went back on that statement during the trial. This would show that he was trying to conceal something from the court. There was certainly some bad-blood between the appellant and Suknlal before this occurrence. Sukhlal had to admit in his cross-examination that the appellant's brother had launched a prosecution against him under Section 338, IPC. He tried to create confusion in the trial by putting up Sukhlal PW 11 as a witness to tell the court that Sukhlal about whom the appellant could possibly have had grievance was a different person. It appears that Sukhlal succeeded rather too well in creating confusion, for the learned trial Judge has remarked in para 19 of his judgment that the conduct of the appellant in substituting Sukhlal PW. 4 for Sukhlal PW. 11 is a relevant fact to be considered in adjudging his guilt.
11. For all these reasons, I am of the opinion that the appellant has succeeded in showing by a preponderance of probablity that the amount in question was accepted by him from Sukhlal towards the part payment of the part payment of the prise of a she-buffalo. That being so, the appellant deserves the benefit of doubt. I would accordingly hold that the appellant has not been proved to be guilty beyond reasonable doubt of the charges for which he has been convicted. The appeal, is, therefore, allowed. The judgment and order of conviction against the appellant are set aside. Instead he is acquitted. He is on bail. He need not surrender to his bail bonds.