Jammu & Kashmir High Court
Reserved On: 16.10.2025 vs Through: Mr. P. N. Raina on 30 December, 2025
2025:JKLHC-JMU:4617
S. No.
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRA No.25/2014
Reserved on: 16.10.2025
Pronounced on:30.12.2025
Uploaded on: 30 .12.2025
Whether the operative part or
Full judgment is pronounced? Full
Madan Lal,
Aged 56 years
Son of Bodh Raj
Resident of Gorkha Nagar, Jammu ...Appellant
Through: Mr. P. N. Raina, Sr. Advocate with
Mr. J. A. Hamal, Advocate.
v.
The State of J&K through the Incharge,
Vigilance Organization, Jammu. ....Respondent
Through: Mr. Raman Sharma, AAG with
Ms. Jagmeet Kour, Advocate
Ms. Saliqa Sheikh, Advocate
CORAM:
HON‟BLE MR JUSTICE RAJESH SEKHRI, JUDGE
JUDGEMENT
INTRODUCTION
1. This appeal has been directed against judgment dated 24.05.2014, passed by learned Special Judge, Anti-Corruption, Jammu, ["the trial court"], vide which, appellant came to be convicted and sentenced.
2. Before a closer look at the grounds urged in the memo of appeal, it shall be apt to have an overview of the background facts.
2025:JKLHC-JMU:4617 PROSECUTION CASE
3. As the prosecution story would unfurl, on 22.02.2006 one Gurjeet Singh ["the complainant"] lodged a written complaint with Police Station, Vigilance Organization, Jammu stating inter alia that he intended to purchase 11 marlas of land from one Balwant Kour. Sale consideration of the land was paid to the vendor and an affidavit, in this respect, was already obtained by him. He approached the appellant, who happened to be Patwari Halqa, Chatha Satwari, to obtain „Fard‟ for the execution of sale deed. He was asked by the appellant to file application on behalf of Balwant Kour and get it marked in his name. He did it accordingly. However, the appellant demanded Rs.11,000/- gratification for the preparation of Fard and deal was settled for Rs.9,000/- to be paid in the office of the appellant.
4. On the receipt of this report, FIR No.5/2006 came to be registered. The investigating agency constituted a trap team. Two officials from PHE Department were associated with the trap process. After the pre-trap proceedings, held in the office of Vigilance Organization, the team proceeded to trap the appellant. The team went to the office of the appellant- Patwari and it is alleged that during the trap proceedings, the appellant received bribe of Rs.9,000/- from the complainant outside his office, while he was sitting in his Maruti Car. The appellant was caught red handed and gratification amount came to be recovered from his possession along with application of the complainant for obtaining Fard. The investigating agency conducted Sodium Carbonate test on the spot, which was found positive.
5. The investigation culminated in the presentation of charge sheet against the appellant for offences under Sections 5(1) read with 5(2) of The Prevention of Corruption Act, 2006, of the then State of J&K, ["the P.C CRA No.25/2014 2 2025:JKLHC-JMU:4617 Act," for short], and Section 161 of Ranbir Penal Code, 1989 ["RPC"], after requisite sanction from the competent authority for his prosecution as a public servant.
CHARGE
6. The appellant came to be charged by the trial court for the aforesaid offences on 10.08.2006 whereby he abjured the guilt and claimed trial, which prompted the trial court to ask for the prosecution evidence.
7. The prosecution examined:
PW Gurjeet Singh - the complainant
PW Kewal Krishan Khajuria - Shadow Witness
PW Anoop Verma - another independent witness,
who at the relevant time was
posted as A.E., City, Sub,
Division Jammu
PW Balwant Kour - the witness on whose behalf the
complainant is stated to have
made application to obtain
Fard
PW Mohd. Din - Naib Tehsildar
PW-Manjeet Singh - an official of VOJ
PW-Vijay Singh Samyal - SSP Vigilance who entrusted
the investigation
PW-Ashok Kumar - In-charge trap team and
PW-Nazir Ahmad Ganie - the investigating officer.
8. Since learned trial court has recorded the narration of prosecution evidence in its length and breadth, in the impugned judgment, it is not required to be repeated again. However, a detailed reference to the testimonies of prosecution witnesses shall be made, as, when and where required.
9. On the culmination of prosecution evidence, the incriminating circumstances and material arrogated to the appellant were put to him in his CRA No.25/2014 3 2025:JKLHC-JMU:4617 statement, envisaged under Section 161 CrPC, whereby he pleaded innocence, denied the allegations and did not opt to enter the defence. THE TRIAL COURT VERDICT (in brief)
10. Learned trial court is conscious of the legal position that proof regarding demand of bribe is an indispensable ingredient, before a trap under P.C. Act can be termed successful and that mere recovery of tainted money, divorced from the circumstances, under which it is paid, is not sufficient to convict an accused. However, learned trial Court is of the view that though demand of bribe by the appellant from the complainant is a missing link, in the present case, because there is no witness on this aspect, except the complainant stating so, however, the circumstances attending the present case i.e. recovery of tainted money and recovery of Fard from the possession of appellant, during the trap, are sufficient to draw presumption under Section 4 P.C. Act, that he prepared the Fard against the demand of bribe, which is claimed to have been paid by the complainant. Therefore, learned trial court came to conclude that it was the appellant who demanded and voluntarily accepted gratification from the complainant and since this illegal act was done by him in the capacity of a public servant, he had obtained the pecuniary advantage to which he was not entitled. As a result, the appellant came to be convicted and sentenced to undergo simple imprisonment for one year each for offences under Sections 5(1) read with 5(2) P.C Act and Section 161 RPC and fine of Rs.30,000/-.
GROUNDS OF CHALLENGE
11. Appellant has assailed the impugned judgment primarily on the ground that it is against the facts on record and all canons of law and justice because prosecution failed in the trial court to prove the demand of illegal gratification by the appellant from the complainant. It is contention of the CRA No.25/2014 4 2025:JKLHC-JMU:4617 appellant that since testimony of the complainant regarding alleged demand of bribe is not corroborated by the shadow witness, mere recovery of tainted money is not sufficient to sustain the conviction. Appellant has also highlighted the contradictions in the testimony of the complainant recorded during the trial and his statement recorded during investigation. According to the appellant, the conclusion drawn by the trial court is based upon individual surmises and conjectures and trial court relied upon the testimonies of those witnesses only who had a positive animus against him.
12. Heard arguments and perused the file.
13. Mr. P. N. Raina, learned Senior Counsel appearing for the appellant has relied upon a host of judgments to reiterate the grounds urged in the memo of appeal and per contra, Mr. Raman Sharma, learned AAG has relied upon various judgments of Hon'ble Supreme Court and pronouncements of this court, rendered from time to time, to defend the impugned judgment, which shall be discussed in seriatim at appropriate stages of this judgment. DEMAND AND ACCEPTANCE OF BRIBE PRESUMPTION UNDER SECTION 4 P.C. ACT
14. Learned trial Court, having observed that there is no evidence on record except the statement of the complainant, regarding the demand of bribe by the appellant, proceeded to draw presumption under Section 4 of P.C. Act that appellant obtained gratification, other than legal remuneration, as a motive or reward, for the issuance of Fard in favour of the complainant.
15. Mr. P. N. Raina, learned Sr. Counsel for the appellant, at the foremost, has taken an exception to the presumption drawn by learned trial court, under Section 4 P.C. Act that appellant accepted the gratification as a reward for the issuance of Fard. Mr. Raina has vehemently argued that presumption under Section 4 P.C. Act CRA No.25/2014 5 2025:JKLHC-JMU:4617 can only be drawn, if an offence referred to in Clause (a) or Clause (b) of sub Section (1) of Section 5 of the Act, punishable under sub Section 2 thereof, is proved. Mr. Raina has argued that since facts of the present case falls within clause (d) of sub Section (1) of Section 5, Section 4 is not attracted in the case.
16. Sections 4 and 5 of P.C. Act, for the ease of reference, are extracted below:
4. Presumption where public servant accepts gratification other than legal remuneration. --
(1) Where in any trial of an offence punishable under section 161 or section 165 of the Ranbir Penal Code, 1989, or an offence referred to in clause (a) or clause (b) of sub Section (1) of section 5 of this Act punishable under section (2) thereof, it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) xxx xxx xxx (3) xxx xxx xxx (Emphasis Supplied)
5. Criminal misconduct.
(1) A public servant is said to commit the offence of criminal misconduct-
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the State Ranbir Penal Code, Samvat 1989; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the persons so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or CRA No.25/2014 6 2025:JKLHC-JMU:4617
(e) xxx xxx xxx"
(Emphasis Supplied)
17. It is evident from a plain reading of Section 5 P.C. Act that clauses (a) and
(b) of sub Section (1) of Section 5, are attracted to the cases of a person, who habitually accepts or obtains or agrees to accept or attempts to obtain gratification (other than legal remuneration) or a valuable thing with or without consideration, as a motive or reward, which is not the prosecution case on hand that appellant has habitually accepted or obtained any gratification other than legal remuneration.
The case of the prosecution is apparently covered under Clause (d) that appellant, by corrupt or illegal means or otherwise by abusing his position, as a public servant, obtained for himself, a pecuniary advantage. Therefore, presumption under Section 4 P.C. Act with respect to trial of an offence referred to in clause (d) of Sub-section (1) Section 5 P.C. Act is not available to the prosecution. Learned trial Court has fallen in error of law on this count.
18. However, section 4 P.C. Act is comprised of two components; (i) with respect to trial of an offence punishable under Section 161 or Section 165 of the Ranbir Penal Code, 1989 and (ii) for an offence referred to in clause (a) or clause
(b) of Sub section (1) of Section 5 P.C. Act punishable under Section (2) thereof. Therefore, though presumption with respect to trial of offence referred to in clause
(d) of Section 5(1) P.C. Act is not available to the prosecution, presumption under Section 4 P.C. Act with respect to trial for offence punishable under Section 161 RPC is available to the prosecution which, for the facility of reference, is extracted below:
"161. Public Servant taking gratification other than legal remuneration in respect of an official act.-
Whoever, being or expecting to be a public servant, accepts or obtains, or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the CRA No.25/2014 7 2025:JKLHC-JMU:4617 Government or the State Legislature or with any public servant, as such shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
19. Pertinently, Mr. Raman Sharma, learned AAG, has made a candid admission to the legal position. Mr. Sharma, however, is of the view that prosecution by way of a complete chain of circumstances has otherwise succeeded to prove the demand and voluntary acceptance of gratification by the appellant as a fact in issue. He has relied upon M. Narsinga Rao v. State of A.P.; AIR 2001 SC 318, C. M. Sharma v. State of A.P. Th. I.P; AIR 2011 SC 608, Mukut Bihari and Anr. v. State of Rajasthan; AIR 2012 SC 2270 and Dharam Paul v. State of J&K; 2006 (3) JKJ 542.
20. Learned counsels on rival sides, at the outset, are in agreement that in order to establish charge against an accused under P.C. Act, prosecution is obliged to prove demand of gratification by accused followed by acceptance and recovery of bribe money, as a fact in issue, by way of direct evidence, documentary evidence or circumstantial evidence. They both have relied upon Neeraj Dutta v. State (Government of NCT of Delhi); (2023) 4 SCC 731.
21. However, Mr. P. N. Raina, learned counsel for the appellant has vehemently argued that since shadow witness PW Kewal Krishan Khajuria has clearly stated that he could not hear conversation between the complainant and appellant, prosecution failed to prove the foundational fact of alleged demand of bribe by the appellant from the complainant and it is sufficient to knockout the prosecution case. According to Mr. Raina, testimony of the shadow witness that he witnessed the complainant taking out money from his pocket, handing it over to the appellant, followed by recovery of the said amount on his personal search, is not sufficient to prove the charge. Neeraj Dutta aside, learned Senior Counsel has relied upon CRA No.25/2014 8 2025:JKLHC-JMU:4617 various pronouncements of this Court including Mohammad Subhan Shah v. State of J&K [CRA No. 07/2015 dated 10.12.2014], Charan Dass v. State and ors.; 2004 KLJ 349 and Pardeep Kumar Sharma v. State [CRA 31/2007 dated 09.01.2018].
22. Constitutional Bench of Hon‟ble Supreme Court in Neeraj Dutta was called upon to answer a reference on the question as to whether circumstantial evidence can be relied upon to prove the demand of illegal gratification and it was held that prosecution can prove the demand of illegal gratification by letting in the evidence of any other witness or by way of documentary evidence or circumstantial evidence.
23. The conclusion summarized by Hon‟ble Supreme Court captured in paragraph 88 of the judgment, for the facility of reference, is extracted below:
"88. What emerges from the aforesaid discussion is summarized as under:
88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and (ii) of the Act.
88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
88.3.(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of CRA No.25/2014 9 2025:JKLHC-JMU:4617 acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d)(i) and (ii) of the Act.
88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not.
Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
88.6. (f) In the event the complainant turns „hostile‟, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a CRA No.25/2014 10 2025:JKLHC-JMU:4617 presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act.
88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature."
[Emphasis supplied]
24. Hon‟ble Supreme court in Neeraj Gupta has propounded in para 88.4.(d) that in order to prove the fact in issue with respect to demand and acceptance of illegal gratification by a public servant, the prosecution is obliged to keep two aspects in mind: (i) if there is offer to pay by the bribe giver without there being any demand from the public servant and the public servant accepts the offer and receives the bribe, it is a case of acceptance under the P.C. Act and in such a case, there need be a prior demand by the public servant; and (ii) if there is a demand by a public servant and the bribe giver accepts the demand and tenders the demanded gratification which is received by public servant, it is a case of obtainment and in such a case, the prior demand for illegal gratification emanates from public servant. It was made clear that in both the cases, prosecution has to prove the offer by the bribe giver as also the demand by the public servant respectively, as a fact in issue. Mere acceptance or receipt of illegal gratification or recovery of tainted money without anything else, would not be sufficient to constitute an offence under the P.C. Act. Pertinently, carrying the enunciation further it is also exposited in para 88.5.(e) that Court has the discretion to raise a presumption/inference of fact with respect to the demand and acceptance or obtainment of gratification after the foundational facts are proved by relevant oral and documentary evidence.
CRA No.25/2014 11
2025:JKLHC-JMU:4617
25. Identical observations came to be made by Hon‟ble Supreme Court in Mukhtiar Singh v. State of Punjab; (2017) 8 SCC 136, K. Shanthamma v. State of Telangana; (2022) 4 SCC 574 and Rajesh Gupta v. State through CBI; (2022) 20 SCC 793- case law cited at bar by Mr. Raina, learned counsel for the appellant.
26. It is manifestly clear from the principle of law enunciated by Hon‟ble Supreme Court that prosecution, in order to bring home the guilt of accused under P.C. Act, is first obliged to prove the demand of illegal gratification by the accused and second the acceptance of gratification by him, as a fact in issue. However, it may be underlined that this fact in issue, can be proved either by direct evidence in the nature of oral evidence or documentary evidence or by circumstantial evidence in the absence of such direct evidence.
27. It is in the afore-noted adumbrated legal enjoinment that evidence on record is required to be scrutinized.
28. On the lodgment of FIR, the investigating agency constituted a team, headed by PW Ashok Kumar, to trap the appellant red handed, taking bribe from the complainant. In the process pre trap proceedings were held to acquaint the trap team members with the process and procedure to be followed for laying the trap. PW Kewal Krishan Khajuria was nominated as a shadow witness and PW Anoop Verma was nominated as an independent witness. Pre trap demonstrations took place in the office of SSP Vigilance. Shadow witness was instructed to observe the activities of the complainant and the appellant, in particular, the demand of bribe by the appellant from the complainant, followed by handing over and taking over of the bribe amount. The currency notes produced by the complainant were treated with CRA No.25/2014 12 2025:JKLHC-JMU:4617 phenolphthalein powder, hand wash of the complainant was also done and dusted notes were handed over to the complainant to be used later in the trap of the appellant. The complainant PW-Gurjeet Singh, PWs Ashok Kumar, Anoop Verma, Kewal Krishan Khajuria, Manjit Singh and Investigating Officer-PW Inspector Nazir Ahmed Ganie are witnesses to pre-trap demonstrations. All these witnesses have proved the pre-trap demonstrations and admitted the pre-trap memo Exp.GS-1. The defence has failed to discredit testimonies of these witnesses regarding pre trap proceedings and derive any advantage in favour of the appellant.
29. After the pre trap demonstrations, the trap team left for the office of the Tehsildar. The complainant was followed by the Shadow witness and other members of the team took their respective positions.
30. The complainant has testified that appellant was not present in his office. He informed the investigating Officer, PW-Inspector-Nazir Ahmad Ganie about the absence of the appellant in his office. On the instructions of PW Nazir Ahmad Ganie, he telephonically called the appellant, who told him that he will be reaching the office within 10 to 15 minutes and to wait for him. The complainant goes on to state that the appellant within 10 to 15 minutes appeared in the office premises in a Maruti car. He along with the appellant went into his office. The appellant went to the room of Naib Tehsildar and when he came out, he asked about his Fard. The appellant asked for the money and said that Fard will be prepared. While conversing they reached the car of the appellant, the appellant occupied his seat in the car. The complainant goes on to allege that he took out money from his pocket, hand it over to the appellant, who received it in his right hand, counted the currency notes with both of his hands and put it in the upper CRA No.25/2014 13 2025:JKLHC-JMU:4617 pocket of his shirt. On this, he gave the pre decided signal by scratching his head, on which the shadow witness PW Kewal Krishan Khajuria gave signal to the team members, whereafter the trap team members came rushing to the spot, caught hold of the appellant from his wrists, brought him out of the vehicle. Thereafter the complainant has narrated about the hand wash and shirt wash of the appellant, in the solution of phenolphthalein, which turned pink. The complainant further stated that PW Kewal Krishan Khajuria, when searched the appellant, currency notes came to be recovered from the pocket of his shirt and numbers of the currency notes tallied with the numbers those were written by the independent witnesses on their respective slips.
31. It is the prosecution case that PW Kewal Krishan Khajuria was nominated as a shadow witness. He was instructed to hear the conversation between the complainant and appellant and give signal to members of the trap team by scratching his head after handing over taking over of the bribe money.
32. PW Kewal Krishan Khajuria, while giving a graphic narration of the pre trap and post trap proceedings in his chief examination, did not say that he heard any conversation between the complainant and appellant regarding the demand of bribe. He deposed in the chief examination that he was instructed to remain close to the complainant and give pre fixed signal to the trap team by scratching his head when complainant would pay the bribe amount to the appellant. He clearly stated in his deposition in the trial court that he could not hear the conversation between the complainant and appellant, because he was standing at some distance. He was declared hostile by the prosecution and when confronted in cross examination, he has stated that he witnessed from a distance of about 15 feet, that complainant took out CRA No.25/2014 14 2025:JKLHC-JMU:4617 money from his pocket, and gave it to the appellant, who counted the currency notes and put them in the pocket of his shirt. On this, he gave a signal to team members, who rushed to the spot, caught hold of the appellant from his wrists, pulled him out of his car and it was followed by the recovery of tainted money from the upper pocket of the shirt of the appellant. He also goes on to state that numbers of currency notes recovered from the appellant, tallied with the numbers, those were written by him and the independent witness on their respective slips. The witness has also clarified in his cross examination that he was instructed by the investigating agency to hear the conversation, if possible, between the complainant and appellant and give signal to the trap team on appellant receiving money from the complainant. On the same lines, by and large, is the testimonies of rest of the prosecution witnesses to the occurrence of obtainment of bribe money by the appellant, followed by the recovery of tainted amount and tallying of numbers of recovered currency notes with the currency note numbers on the slips retained by independent witnesses.
33. Learned Sr. counsel appearing for the appellant is of the view that shadow witness having stated in chief examination that he failed to hear conversation regarding demand of bribe between the complainant and appellant and stating in the cross examination that he had seen the complainant paying bribe to the appellant, reflects that he changed his version to suit the prosecution case. I do not find any substance in the argument of learned Sr. counsel because though it is the prosecution case that shadow witness PW Kewal Krishan Khajuria was tasked to hear the conversation, regarding the demand of bribe by the appellant and payment thereof by the complainant, however, it is pertinent to note that shadow CRA No.25/2014 15 2025:JKLHC-JMU:4617 witness even in his pre trial statement under Section 161 Cr. P. C. has not revealed that he had an occasion to hear the conversation between the complainant and appellant. Be that as it may, if appellant felt that there was material deviation in the testimony of the shadow witness, then defence was under an obligation to cross-examine the shadow witness on this aspect to clear the anomaly. The defence did not make any effort to clarify the anomaly stated to have been created by the shadow witness, confronting him in cross examination. Therefore, appellant cannot be allowed to cry foul in this Court, that shadow witness modulated his testimony to favour the prosecution. Rather, PW Kewal Krishan Khajuria in cross examination by the defence, denied the suggestion that he was forced to make a wrong statement or he was offered bribe. In my opinion, if shadow witness intended to favour the prosecution, he would have conveniently stated in chief examination that he had heard the appellant demanding bribe from the complainant. The witness, however, clearly admitted that he failed to hear any conversation between the complainant and the appellant, but witnessed the complainant taking out money from his pocket, handing it over to the appellant, who counted the currency notes and put it in the pocket of his shirt, reflects that testimony of PW-Kewal Krishan Khajuria is credible and trustworthy. The defence has failed to shake the credibility of shadow witness on this aspect of the case.
34. In Mohammad Subhan Shah (supra), there was neither mention of demand of bribe in the written complaint of the complainant filed before the Vigilance Organization nor the shadow witness could hear any conversation regarding the demand of bribe by the accused from the complainant. Shadow witness had only observed some movement and passing of money by the CRA No.25/2014 16 2025:JKLHC-JMU:4617 complainant to the accused. Pertinently, shadow witness did not even mention in his statement that he presumed due to the said movements that accused had demanded bribe from the complainant and complainant was made to hand over the currency notes to the accused. It was, in this background, that Co-ordinate Bench of this Court came to hold that no demand and acceptance of bribe can be presumed in the facts of the case.
35. In Charan Dass (supra), another case relied by learned Senior Counsel for the appellant, though the shadow witness, in chief examination, had stated that he had seen the complainant putting currency notes into the pocket of the accused on the letters instructions, but he buckled in cross examination of the defence and stated that neither he had seen the complainant putting money into the pocket of the accused nor could he hear what transpired between them, at that point of time. Therefore, there was nothing to corroborate the testimony of the complainant regarding the demand of bribe by the accused and it was version of the complainant that he himself put tainted money into the pocket of the accused.
36. In Pardeep Kumar Sharma (supra) the complainant turned a volte face to the prosecution case in stating that appellant never demanded any money from him, but the trial court, despite this aspect of the case had proceeded to convict the appellant.
37. It is evident from the above that textual facts of Mohd. Subhan Shah, Charan Dass and Pardeep Kumar Sharma and the quality of evidence in said cases are clearly distinguishable, from the facts and attending circumstances and the quality of evidence adduced by the prosecution in the present case that shadow witness witnessed the complainant handing over tainted money to the appellant who counted the same with both of his hands CRA No.25/2014 17 2025:JKLHC-JMU:4617 and put it in the pocket of his shirt, which later came to be recovered by the trap team from his conscious possession and numbers of currency notes tallying with the numbers written on the slips retained by independent witnesses.
38. Mr. Raina, learned Sr. Counsel appearing for the appellant is of the view that conviction under P.C. Act cannot sustain on the sole testimony of the complainant, an accomplice in the crime, a partisan witness, who is concerned with the success of trap.
39. One fails to understand as to how a person, who is forced to pay bribe, can be treated as an accomplice in a crime under P.C. Act. An accomplice is someone, who is a particeps criminis, that is, who voluntarily participates in a crime. A person who is compelled to pay bribe under duress is a victim of extortion and cannot be termed as an accomplice because he is not a willing participant, therefore, the law distinguishes between a voluntary bribe giver and a victim of extortion within the meaning of section 8 of amended P.C. Act, 1988, which provides a defence for individuals, who are coerced to pay bribe. However, to avail this defence and avoid prosecution, the person so compelled is obliged to report the matter to the law enforcement agency within a period of seven days from the date he is forced to give undue advantage. Therefore, if a person is coerced to pay bribe and immediately take the law enforcement agency or the investigating agency into confidence, cooperates in the investigation, he is treated as a crucial prosecution witness and if his testimony is corroborated on material aspects by other evidence, it can be sufficient to sustain conviction of a public servant. In essence, the law protects the victim of a forced bribe, provided he CRA No.25/2014 18 2025:JKLHC-JMU:4617 comes forward and assists in the investigation against a corrupt public servant.
40. I am fortified in my opinion by C. M. Sharma v. State of A.P.; AIR 2011 SC 608 whereby Hon‟ble Supreme Court refused to accept the contention that a person who is forced to pay bribe can be termed as an accomplice in the crime. It was held that a witness, who is forced to pay gratification on the promise of doing or forbearing to do an official act by a public servant is not a partner in the crime, thus, cannot be said to be an accomplice because it is the public servant who extorted money from him for doing an official act or forbearing to do an official act. Therefore, it was ruled that it is not correct to say that evidence of the complainant cannot be accepted without corroboration. Relevant excerpt of the judgment, for the facility of reference, reads as below:
"11. ............We do not find any substance in the submission of Mr. Rai. The word accomplice has not been defined under the Evidence Act and therefore presumed to have been used in the ordinary sense. A person concerned in the commission of crime, a partner in crime and associate in guilt is an accomplice. He takes part in the crime and is privy to the criminal intent. In our opinion a witness forced to pay on promise of doing or forbearing to do any official act by a public servant, is not a partner in crime and associate in guilt and therefore can not be said to be accomplice. It has long been rule of practice, which has become equivalent to rule of law, that the evidence of an accomplice is admissible but to be acted upon, ordinarily requires corroboration. Contractor who gave bribe, therefore, can not be said to an accomplice as the same was extorted from him........"
41. Carrying the enunciation further, the Apex Court categorized the witnesses into three categories viz.; „unreliable‟, „partly reliable‟ and „wholly reliable‟ and it was held that it is in case of a partly reliable witness that Court can seek corroboration in material particulars from other evidence and seeking corroboration in all circumstances of the evidence of a witness, who has been forced to pay gratification may lead to absurd results and law CRA No.25/2014 19 2025:JKLHC-JMU:4617 does not countenance such a situation. Relevant observation contained in paragraph 12 reads as below:
"12. Further corroboration of evidence of a witness is required when his evidence is not wholly reliable. On appreciation of evidence, witnesses can be broadly categorized in three categories viz., unreliable, partly reliable and wholly reliable. In case of a partly reliable witness, the court seeks corroboration in material particulars from other evidence. However in a case in which a witness is wholly reliable, no corroboration is necessary. Seeking corroboration in all circumstance of the evidence of a witness forced to give bribe may lead to absurd result. Bribe is not taken in public view and, therefore, there may not be any person who could see the giving and taking of bribe. As in the present case, a shadow witness did accompany the contractor but the appellant did not allow him to be present in the chamber. Acceptance of this submission in abstract will encourage the bribe taker to receive illegal gratification in privacy and then insist for corroboration in case of prosecution. Law can not countenance such situation.........."
(Emphasis Supplied)
42. In the aforesaid case, the shadow witness stated in his evidence that when he entered in the chamber, the appellant was asked by the Inspector as to whether he had received gratification from Contractor, he denied, removed currency notes from his pocket and threw the same. He further stated that Sodium Carbonate test was conducted and the solution turned pink, when fingers and right hand trouser pocket of the accused were rinsed. The Apex Court inferred from these circumstances that evidence of the complainant was corroborated in material particulars by the shadow witness, in the absence of shadow witness hearing the demand of bribe by the accused.
43. In identical fact situation and legal scenario, Hon‟ble Supreme Court taking note of its verdict in C. M. Sharma (supra) upheld the conviction of appellant/accused in M. Narsinga Rao v. State of A.P. AIR 2001 SC 318, the Apex Court distinguished the „legal presumption‟ and „factual presumption‟ and held that while later is compulsory, former is CRA No.25/2014 20 2025:JKLHC-JMU:4617 discretionary. In this case also, there was no direct evidence that accused demanded and accepted the bribe, but the circumstantial evidence was found sufficient to establish that accused had accepted the gratification. Hon‟ble Supreme Court underlined the expressions "may presume" and "shall presume" as defined in Section 4 of the Evidence Act and held that presumptions in the former category are compendiously known as "factual presumptions or "discretionary presumptions" and those falling in the later are "legal presumptions" or "Compulsory presumptions". It was held that presumption envisaged under P.C. Act falls in the category of „compulsory legal presumption‟ in the tone of a command that it is to be presumed that accused accepted the gratification as a motive or reward for doing or forbearing to do an official act etc. It was further held that the proof depends upon admissibility of the evidence and a fact is said to be proved when after considering the matter before it, the court either believes it to exist or to consider its existence so probable that a prudent man, ought under the circumstances of a particular case, to act upon the supposition that it exists. It was held that in reaching the conclusion, the court can use the process of inferences to be drawn from the facts produced or proved and said inferences are akin to presumptions in law. It was also held that law gives absolute discretion to the court to draw the inferences of the existence of a fact, as clearly envisaged in illustration (a) to section 114 of the Evidence Act which says that court may presume that "a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession". Of course, these factual inferences are not inviolable, as accused can rebut them CRA No.25/2014 21 2025:JKLHC-JMU:4617 either in cross examining the prosecution witnesses or by adducing credible defence evidence.
(Emphasis Supplied)
44. The said illustration was profitably used in the context of the said case in which the prosecution established the reliable materials that pocket of the accused contained currency notes smeared with phenolphthalein, those came to be recovered on his personal search coupled with the circumstances proved in the case preceding and succeeding the searching out of the tainted currency notes to draw a factual presumption that appellant had willfully received the gratification. It was also underlined that in the context of the case that when accused was caught red handed with the currency notes, he never demurred to the investigating Officer that those notes were not received by him. Supreme Court also took note of its earlier decision in Raghubir Singh v. State of Haryana; AIR 1974 SC 1516 in which it was held that "the very fact of an Assistant Station Master being in possession of the marked currency notes against an allegation that he demanded and received that amount is res ipsa loquitur". Relevant observation of Hon‟ble Supreme Court in para 19 for the facility of reference reads as below:
"19. Illustration (a) to Section 114 of the Evidence Act says that the court may presume that "a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession." That illustration can profitably be used in the present context as well when prosecution brought reliable materials that appellant‟s pocket contained phenolphthalein smeared currency notes for Rs.500/- when he was searched by PW-7 DSP of the Anti Corruption Bureau. That by itself may not or need not necessarily lead to a presumption that he accepted that amount from somebody else either stuffing those currency notes into his pocket or stealthily inserting the same therein. But the other circumstances which have been proved in this case and those preceding and succeeding the searching out of the tainted currency notes, are relevant and useful to help the court to draw a factual presumption that appellant had willingly received the currency notes."CRA No.25/2014 22
2025:JKLHC-JMU:4617
45. Similar observation came to be made by a Co-ordinate bench of this court in identical fact situation in Dharam Paul v. State of J&K; 2006 (3) JKJ 542.
46. Learned trial Court has rightly observed that PW Kewal Krishan Khajuria has been introduced by the prosecution as a shadow witness and an independent witness who apparently has no axe to grind, so far as trap of the appellant is concerned. He has corroborated testimony of the complainant regarding the demand and voluntary acceptance of bribe by the appellant and on all other material aspects of the case including the recovery of tainted money from his personal search as also recovery of the application for issuance of Fard, filed by the complainant.
RECOVERY OF TAINTED MONEY
47. In so far as recovery of tainted money is concerned, the Incharge trap team PW Ashok Kumar and investigating officer-PW Nazir Ahmad Ganie have testified that bribe money in the shape of currency notes with denomination of Rs.500/- each, came to be recovered by PW-Kewal Krishan Khajuria on personal search of the appellant, vide recovery memo Ex.PW- KK-4. Likewise, the memo of hand wash of the appellant stands proved and exhibited Expw-KK-6. Naib Tehsildar PW-Mohd. Din has corroborated the testimonies of these witnesses. Therefore, recovery of the tainted money from the very possession of the appellant also stands proved by the prosecution. It is pertinent to note that numbers of currency notes recovered on the personal search of the appellant tallied with the numbers, those were written by independent witnesses on their respective slips and a seizure memos in this respect EXPW.KK/8 and ExPw.K/11, and Ext.P/6 are also duly proved. PWs Nazir Ahmad Ganie, Ashok Kumar, Manjit Singh and CRA No.25/2014 23 2025:JKLHC-JMU:4617 Mohd. Din-Naib Tehsilar have corroborated the statements of said witnesses, regarding tallying of numbers of recovered currency notes with the numbers written on the slips retained by individual witnesses. Seizure of the shirt of the appellant and pocket wash of his shirt, from where, the currency notes came to be recovered, which turned pink, on being treated with the solution of the sodium carbonate, also stands proved by the prosecution witnesses and the memos, Extpw-KK/7 and Expw-KK/5, in this respect, are also proved and duly exhibited.
48. Mr. Raina, learned Sr. Counsel has argued that shadow witness PW Kewal Krishan Khajuria reflected his ignorance in chief examination as to who had searched the pocket of the appellant and recovered the bribe amount, but he took a U-turn in cross examination by the prosecution after being declared hostile, by stating that he searched the pocket of the shirt of the appellant, because he had seen the appellant putting bribe money in his pocket after receiving it from the complainant. According to learned Sr. counsel, the statement of shadow witness, being discrepant on this material aspect of the case, appellant is entitled to the benefit of doubt.
49. A careful examination of the testimony of PW Kewal Krishan Khajuria would reveal that he has not been confronted on this aspect of the case by the defence in the trial court, therefore, this plea is not available to the appellant for the first time in this Court. In other words, clarification of the shadow witness PW Kewal Krishan Khajuria that it was he, who searched the pocket of the shirt of the appellant and recovered the tainted money, remained un-rebutted. Rather testimony of the shadow witness that he conducted search of the appellant and recovered bribe money of Rs.9,000/-, has been corroborated by other prosecution witnesses, who were CRA No.25/2014 24 2025:JKLHC-JMU:4617 part of the trap team. Another independent witness PW Anoop Verma has also deposed in tune with the statements of the complainant and the shadow witness without blemish that shadow witness gave pre-fixed signal to the members of the trap team, they rushed to the spot, appellant was pulled out from his vehicle and bribe amount of Rs.9,000/- was recovered by shadow witness PW Kewal Krishan Khajuria from left pocket of his shirt. The prosecution witnesses, in tune, have deposed about the pre trap and post trap proceedings. They have also stated that when hand wash of the appellant was treated with solution of Sodium Carbonate, the solution turned pink and similarly pocket wash of the shirt of the appellant, from where bribe money came to be recovered, when treated with Sodium Carbonate solution also turned pink.
50. Another discrepancy highlighted by learned Sr. Counsel for the appellant is that it was decided during the pre trap proceedings, as per the prosecution case, that on hearing the demand of bribe by the appellant, shadow witness would scratch his head and give a signal to the trap team, but it has come in the prosecution evidence that complainant gave signal to the shadow witness, who in turn signaled the trap team after alleged transaction of bribe took place. I find myself in agreement with the observation of learned trial court that the plea, so raised, by defence is specious, because both the complainant, PW Gurjeet Singh and shadow witness PW Kewal Krishan Khajuria have deposed, in tune, that first signal was given by complainant to the shadow witness and then shadow witness flashed the signal to the members of the trap team. On the same lines is the testimonies of investigating officer that signal was given by them one after another.
CRA No.25/2014 25
2025:JKLHC-JMU:4617
51. It is otherwise well settled in law that minor discrepancies or insignificant embellishments cannot be given undue weightage unless they affect the very core of the prosecution case. The test to the admissibility of evidence is whether it inspires confidence in the mind of the court or not. If the evidence is found worthy of credence and trust and an omission or discrepancy does not go to the root of the case and usher in, incongruities, same can be made basis of the conviction. The core of the matter, in the present case, is that complainant approached the appellant for the issuance of Fard, the appellant demanded gratification, other than legal remuneration, for the issuance of Fard and consciously accepted the gratification, which came to be recovered from his conscious possession and the numbers of currency notes recovered on his personal search tallied with the numbers of currency notes written by independent witnesses on the slips. The contradiction underscored by learned counsel for the appellant does not in any way affect the crux of the prosecution case. Therefore, such minor variations in the testimonies of prosecution witnesses will not tilt the benefit of doubt in favour of the appellant.
52. If we examine the prosecution case and testimonial potency of prosecution witnesses on the touchstone of principle of law enunciated by Hon‟ble Supreme Court in Neeraj Dutta, prosecution has succeeded to prove the demand of gratification, other than legal remuneration by the appellant, followed by conscious acceptance and recovery thereof by way of a complete chain of circumstantial evidence.
RECOVERY OF APPLICATION
53. Another vital aspect of the case is the recovery of application, for issuance of Fard, from the possession of the appellant. CRA No.25/2014 26
2025:JKLHC-JMU:4617
54. At the cost of brevity, it may be recalled that it is the prosecution case, that appellant demanded illegal gratification from the complainant in lieu of issuance of Fard to the complainant. The contention of the prosecution is that recovery of the said application from the person of the appellant is one of the circumstances in the chain to establish the guilt of the appellant that he demanded bribe as a motive or reward as mentioned in Section 161 RPC.
55. The complainant-PW-Gurjeet Singh, shadow witness-PW-Kewal Krishan Khajuria, independent witness-PW Anoop Verma and other prosecution witnesses including Mohd. Din, Naib Tehsildar have stated that application was recovered from the possession of the appellant on the spot after he was trapped by the members of the trap team. Though complainant PW-Gurjeet Singh first stated that this application was recovered from the office of Naib Tehsildar, but he immediately corrected himself and clarified that application, in fact, was recovered from the person of the appellant. PW Anoop Verma also created some confusion by stating first in chief examination that application was recovered from the possession of the appellant on the spot and in cross examination stating that he does not remember if application was recovered from the vehicle or from the person of the appellant on the spot.
56. Mr. Raina learned Sr. Counsel for the appellant, seeks to harp on these contradictions in the testimonies of prosecution witnesses. However, I do not find any major contradiction in the statements of these witnesses because complainant PW Gurjeet Singh, after stating that this application was recovered from the office of Naib Tehsildar immediately corrected and clarified that application, in fact was recovered from the possession of the appellant only and though PW Anoop Verma, in cross examination stated CRA No.25/2014 27 2025:JKLHC-JMU:4617 that he was not sure whether application was recovered from the possession of the appellant or from his vehicle, but, admitted position of fact is that vehicle also belonged to the appellant and it does not make any difference that application was recovered from the vehicle of the appellant or from his personal search. The shadow witness, PW Kewal Krishan Khajuria, independent witness, PW Anoop Verma, the executive Magistrate, PW Mohd. Din and all other members of the trap team including the Incharge of the team and Investigating Officer have clearly stated that application came to be recovered from the possession of the appellant on the spot. The fact of the matter remains that application for the issuance of Fard, as per testimonies of prosecution witnesses, came to be recovered from the conscious possession of the appellant. Therefore, minor discrepancies would not overshadow overwhelming evidence of the prosecution that application Ext.P-5/1 came to be recovered from the personal search of the appellant. PHERIPHERAL ISSUES
57. Learned counsel for the appellant, Mr. Raina, has strenuously argued that the very genesis of the prosecution case; the purported application, alleged to have been signed by PW Balwant Kour for the issuance of Fard and stated to have been presented by the complainant-PW Gurjeet Singh, being suspect, is sufficient to demolish the entire prosecution case. Mr. Raina has argued that PW Balwant Kour has refused her signatures on the said application, which indicates that complainant PW-Gurjeet Singh who testified that PW Balwant Kour had signed the application and asked him to obtain Fard, is not a trustworthy witness.
58. The complainant PW Gurjeet Singh, no doubt, in his testimony in the trial court has stated that he filed the application to obtain fard, on behalf of CRA No.25/2014 28 2025:JKLHC-JMU:4617 PW Balwant Kour and PW Balwant Kour had signed the application after he left it with her for her signatures. PW Balwant Kour, in her deposition, in the trial court denied her signatures on the application. She was declared hostile. Pertinently, PW Balwant Kour, in cross examination by the prosecution, initially maintained her stand that she did not sign the application regarding the issuance of Fard and that she had asked PW-Gurjeet Singh to prepare application on her behalf, however, she clarified in later part of her statement that she did not remember whether she put her signatures on the application or not, as her memory had faded. This application has been duly exhibited as Ext.P-5/1 and marked as GS, on the testimony of the complainant.
59. Be it noted that, PW-Balwant Kour, in Chief examination has stated, in clear terms, that she asked the complainant-PW Gurjeet Singh to prepare application on her behalf and obtain Fard from the Patwari, for the purpose of execution of sale deed. Not only this, she has also admitted the contents of the affidavit and identified her signatures on the affidavit, executed regarding the sale of 11 marlas of land at Chatha, Satwari to the complainant PW-Gurjeet Singh for Rs.2,26,000/-. This affidavit stands exhibited as Ext.P-BK. She has also stated in her cross examination by the prosecution that she went to Patwari-the appellant in 2006 and told him not to issue Fard to the complainant, PW-Gurjeet Singh, because amount of Rs. 5,000/-, out of agreed consideration, was outstanding against him. Therefore, if statement of PW Balwant Kour is carefully analyzed, the sale transaction between her and complainant PW-Gurjeet Singh is quite evident and proved. In the circumstances, minor discrepancy or confusion in the statement of PW Balwant Kour that whether she had signed the application to obtain Fard and later stating that she did not remember whether she signed the application or CRA No.25/2014 29 2025:JKLHC-JMU:4617 not, as her memory had faded, is of no help to the defence, because prosecution is obliged to prove the core of its assertion that said application was filed by the complainant, for obtaining Fard before the Revenue authorities, which was endorsed by PW Mohd. Din-Naib Tehsildar to the appellant vide endorsement Ext.P-5/1 and appellant demanded and accepted illegal gratification from the complainant as a motive or reward in lieu of issuance of Fard.
60. Another issued raised by Mr. Raina, learned counsel for the appellant is that it is the vender, who is competent to file an application to obtain Fard from the Revenue Authorities for the purpose of execution of sale of immovable property. Since the complainant, who intended to purchase property was not, the person competent, to apply for the Fard, and the affidavit regarding sale was unattested it is sufficient to knockout the prosecution case. As already discussed all these issues whether the affidavit regarding purported transaction of sale between complainant-the vendee and PW Balwant Kour-the vendor, was signed by the vendor-Balwant Kour, the affidavit was attested or not or whether complainant was competent to apply for Fard for the purpose of execution of sale are peripheral and inconsequential issues in so far as core of the prosecution case is concerned i.e. demand of gratification by the appellant from the complainant for the issuance of Fard and voluntary acceptance of bribe money by him, coupled with recovery of tainted amount from his conscious possession. I am fortified in my view by V. Radhakrishna Reddy v. State of AP; AIR 2005 SC 807. Relevant observation captured in para 12 reads as below:
"12. We do not attach much importance to the fact that PW-1 may not be a genuine applicant for registration of a small scale industrial unit. That fact is wholly immaterial in judging the guilt of the appellant. PW-1 has stated that he had met the CRA No.25/2014 30 2025:JKLHC-JMU:4617 appellant on 29.7.1991 at 10.00 A.M. and the appellant had made the demand. On the next day, he had reported the matter to the police and thereafter, on 31st July, 1991 a trap was arranged and the amount was recovered from him."
PRE-VERIFICATION OF DOCUMENTS
61. Another plea urged by Mr. Raina, learned Sr. Counsel for the appellant is that it was incumbent upon SSP Vigilance and Investigating Officer to have an independent verification done, not only with respect to alleged demand of bribe by the appellant from the complainant but also regarding the application purported to have been filed by complainant on behalf of PW Balwant Kour and the affidavit regarding sale transaction between the complainant and PW Balwant Kour. Mr. Raina is of the view that investigating agency, in the present case, straightway embarked upon to register the FIR on mere ipse dixit of the complainant which is not permissible in law. He has relied upon Mir Mustafa Ali Hasmi v. State of Andhra Pradesh; (2024) 10 SCC 489 and Paritala Sudhakar v. State of Telangana; 2025 SCC Online SC 1072.
62. Hon‟ble Supreme Court in Mir Mustafa Ali Hasmi has held that in normal course it was incumbent upon the Dy.SP to get an independent verification done of the alleged demand before proceeding to the stage of trap, which fact assumed prominence because shadow witness, in the said case, was a close friend of the complainant, who himself bore a grudge against the appellant due to imposition of fine of Rs.50,000/- on his saw mill. The facts of the said case are clearly distinguishable from the facts and attending circumstances of the present case.
63. Be that as it may, PW Vijay Singh Sambyal, SSP Vigilance, in the present case, has clearly testified that FIR in the present case came to be registered after complainant was enquired and he was satisfied with respect CRA No.25/2014 31 2025:JKLHC-JMU:4617 to the genuineness of the complaint and credibility of the complainant. On the same lines is the testimony of the investigating officer, PW Nazir Ahmad Ganie.
64. It has already been discussed that though PW Balwant Kour in earlier part of her chief examination denied her signatures on the application but she clarified later that she did not remember whether she put her signatures on the application or not, because her memory had faded and the fact remains that PW Balwant Kour also testified that she had asked the complainant, PW Gurjeet Singh, to file application before the revenue authorities, on her behalf, to obtain Fard. Pertinently, PW Balwant Kour has admitted her signatures on the affidavit, which was executed regarding sale of the land between her and the complainant.
65. Mr. Raina learned Sr. counsel has also made an endeavour to highlight that affidavit regarding sale transaction was procured after the lodgment of the FIR to frame the appellant in a false and frivolous case. According to Mr. Raina, the said affidavit Ext-PK is of the year 2006, which apparently appears to have been manipulated by the complainant after the trap, in order to give legitimacy to the trap.
66. There is no dispute regarding the date of purchase written in the affidavit i.e. 19th of July. The only dispute is regarding the year of sale. According to the prosecution, it is 2005, whereas, according to counsel for the appellant, year written on the affidavit is 2006.
67. A perusal of the record reveals that charge sheet came to be filed in the trial court on 15.07.2006. The affidavit was part of the charge sheet. Therefore, though the year mentioned on the affidavit is not clearly legible, however, if challan came to be presented on 15.07.2006, it is sufficient to CRA No.25/2014 32 2025:JKLHC-JMU:4617 indicate that the date mentioned on the affidavit is 19.07.2005 and it cannot be 19.07.2006, after the presentation of the challan on 15.07.2006, and it is not the case of the appellant that affidavit has been manipulated after the presentation of the charge sheet. Since the contents of this affidavit and signatures have been admitted by PW Balwant Kour, the confusion sought to be created by the appellant on this count, is also of no use.
68. Learned counsel for the appellant has also contended that the application for obtaining Fard is stated to have been marked by Naib Tehsildar on 19.08.2005, but this application is stated to have been given by the complainant to the appellant in January, 2006. According to Mr. Raina, the complainant has not given any explanation as to why this application was retained by him for a considerable period of time and was not immediately presented to the appellant to obtain Fard.
69. The complainant PW Gurjeet Singh has stated that after application was marked by Naib Tehsildar in the name of the appellant, he could not find him on a couple of occasions and thereafter he could not spare time to present it before the appellant. I find myself in agreement with the observation of learned trail court on this aspect that this explanation on the part of the complainant, appears to be natural, in particular, when no ulterior motive is attributed to the complainant by the appellant in his defence during cross examination of prosecution witnesses or in his statement under Section 342 Cr.P.C.
DISCREPENCY REGARDING FIR
70. In so far as contradictions, sought to be projected by the appellant regarding registration of FIR is concerned, prosecution has examined PW Vijay Singh Sambyal, SSP Vigilance. He has stated that FIR in the present CRA No.25/2014 33 2025:JKLHC-JMU:4617 case came to be registered and he issued the entrustment order. Pertinently both the FIR and entrustment Order of SSP Vigilance have been proved by the prosecution respectively as Exp.GS/5 and Ext.P-7. PW Vijay Singh Sambyal has stated that FIR was lodged at 12:55 hours. He has categorically denied that complainant approached him earlier in the day when FIR was lodged and clarified that in fact complainant had approached SSP Udhampur-Doda Range of the Vigilance Wing. He also made it clear that FIR was registered after complainant was enquired and he was satisfied with respect to the genuineness of the complaint. He has, particularly, denied the suggestion that complainant was investigated after 01:35 p.m. after the lodgment of the FIR at 12:55 hours. This position is further clarified from the testimony of the complainant PW Gurjeet Singh who has stated that he visited the office of SSP at 01:30 p.m. for the second time on the instructions of the SSP. The complainant has emphatically denied suggestion of the defence that this application remained in his possession till 01:30 p.m. Investigating Officer PW-Nazir Ah. Ganie has also refused the suggestion of the defence that complaint remained with the complainant till 01:30 p.m. In the light of corroborated testimonies of these witnesses, the argument of learned counsel for the appellant, regarding discrepancies in the lodgment of the complaint, followed by FIR, deserves outright rejection, particularly, in view of specific denials of both, the investigating officer-PW Nazir Ah. Ganie and complainant PW Gurjeet Singh that complaint remained in the possession of the complainant till 01:30 p.m. When the complainant, who filed the complaint and lodged FIR and the investigating officer, who is responsible to lodge the FIR as also SSP Vigilance-PW Vijay Singh Sambyal, who entrusted the investigation, are consistent in their testimonies CRA No.25/2014 34 2025:JKLHC-JMU:4617 and have stated, without mincing words, that FIR was lodged at 12:55 hours, and that complaint did not remain in the possession of the complainant till 01:30 p.m., statement of PW Kewal Krishan Khajuria, who is least concerned with the lodgment of FIR, or filing of the complaint, pales into insignificance.
COMPETENCE OF THE APPELLANT AS A PUBLIC SERVANT
71. An important factor to be noticed in the case is that appellant in the capacity of being Patwari was the person competent to issue Fard. If the statements of prosecution witnesses regarding demand and acceptance of bribe by the appellant, are carefully analyzed, it leads to the only conclusion that appellant demanded and accepted the bribe and it came to be recovered from his conscious possession in lieu of issuance of Fard, which he was competent to prepare and issue. [see Kallappa Kumble v. State of Karnatka; AIR 2015 SC (Supp.) 1161].
ELEMENT OF ANIMUS
72. Learned Sr. counsel for the appellant has argued that the complainant, at the relevant point, was posted as a PSO of the then ADGP, Sh. Dilbagh Singh and as such, being a police Official, he has entrapped the appellant in a false case.
73. I have carefully gone through the prosecution evidence, in particular, the defence of the appellant, during cross examination of the prosecution witnesses and his explanation tendered thereafter in his statement under Section 342 Cr.P.C. The contention of learned Sr. counsel is that appellant, at the relevant point of time, was PSO of ADGP Sh. Dilbagh Singh, who later came to superannuate as DGP of J&K Police and, therefore, according CRA No.25/2014 35 2025:JKLHC-JMU:4617 to learned Sr. Counsel, the complainant, being an influential police official, got the appellant entrapped and framed in a false and frivolous case.
74. The most material witness, in the context of the plea raised by learned Senior Counsel, was the complainant. A perusal of the statement of the complainant, however, would reveal that not even a single question has been asked to him on this aspect of the matter. It is only the investigating officer PW Nazir Ahmad Ganie who has admitted in cross examination that complainant was PSO of ADGP, Dilbagh Singh. The complainant has not been confronted on this aspect of the case that he had animosity against the appellant. Merely the complainant serving as PSO of a senior police officer by itself, would not mean that he had grouse against the appellant. Pertinently, the appellant in his explanation under Section 342 Cr.P.C. has only stated that prosecution witnesses have made false depositions against him, because complainant was PSO of the then DIG, Dilbagh Singh. Neither he has stated anything about prior animosity of the complainant with him nor adduced any evidence in defence in this respect. Therefore, contention of learned counsel for the appellant is too puerile for acceptance. CONDUCT OF THE APPELLANT
75. At last but not the least, the conduct of the appellant, after he came to be trapped by the sleuths of Vigilance Organization is another staggering circumstance, which provides an additional link in the chain of circumstances against him.
76. In a case perched on circumstantial evidence, the conduct of accused preceding, attending and following the crime is a relevant fact of the case, to be kept in mind. It is also trite that when incriminating circumstances are put to the accused and he either offers no explanation or offers an CRA No.25/2014 36 2025:JKLHC-JMU:4617 explanation which he fails to prove or it is found untrue, then it becomes an additional link in the chain of circumstances. Profitable reference in this respect may be made to State of Tamil Nadu v. Rajendran; AIR 1999 SC 3535, State of U.P. v. Dr. Ravindra Prakash Mittal; AIR 1992 SC 2045, State of Maharastra v. Suresh; [(2000) 1 SCC 471] and Ganesh Lal v. State of Rajasthan; (2001) AIR SCW 5251.
77. If present case is considered with the aforesaid principle of law in mind, we find that the fallacy in the story projected by the appellant during the trial stands exposed from his conduct, after the commission of crime and in the explanation offered by him to the incriminating circumstances in his statement.
78. The Investigating Officer-PW Nazir Ah. Ganie and the trapping officer, PW Ashok Kumar have deposed that when appellant was caught red handed and gratification amount came to be recovered from his person, the appellant beseeched for a pardon, pleading that he had committed mistake for the first time in his life and he did not know that for what mistake he was being punished. The defence has not made any effort to impeach the testimonies of these witnesses in their cross examination. CONCLUSION.
79. On the conspectus of the present case, though 'legal presumption' under section 4 P.C. Act with respect to offence referred to in clause (d) of Section 5(1) P.C. Act cannot be drawn against the appellant, however, minute evaluation and assessment of the prosecution case canvasses a picture, which presents a complete chain of circumstances, commencing right from the complainant handing over gratification amount of Rs.9,000/- demanded by the appellant, the appellant voluntarily accepting the same amount of Rs.9,000/- from the CRA No.25/2014 37 2025:JKLHC-JMU:4617 complainant as a motive or reward for the preparation of Fard, which amount came to be recovered from the conscious possession of the appellant on his personal search along with the application for issuance of Fard, which he was competent to prepare and issue, coupled with the fact that hand wash of the appellant and shirt wash of the appellant, when treated with the solution of Sodium Carbonate on the spot was positive and reflex action of the appellant imploring for a pardon during the trap proceedings, leads to the „factual presumption‟ and the only hypothesis that the gratification amount received by the appellant was obtained and voluntarily accepted by him as a reward or motive for the issuance of Fard. The facts established by the prosecution are consistent only with the hypothesis of the guilt of the appellant. The chain of evidence adduced by the prosecution is so complete, as not to leave any reasonable ground for the conclusion consistent with the innocence of the appellant. The facts and circumstances established by the prosecution are not explainable on any other hypothesis, except that appellant is guilty of the charge.
80. For what has been observed and discussed above, I do not find any illegality much less perversity in the impugned judgment of conviction and order of sentence recorded by learned trial court. Impugned judgment is found well reasoned and I have not been persuaded to take a view different from the one taken by learned trial court. Hence, present appeal, being bereft of any merit, is dismissed and impugned judgment of conviction and order of sentence are upheld. Bail bonds of the appellant shall stand cancelled and he is directed to surrender before the Superintendent of concerned jail within a period of seven days from today to serve the remainder of sentence, failing which learned trial court shall proceed in accordance with law. CRA No.25/2014 38
2025:JKLHC-JMU:4617
81. Record of the trial court be returned.
82. Copy of this order be forwarded to learned trial court for information and compliance.
(RAJESH SEKHRI) JUDGE SRINAGAR:
30.12.2025 Paramjeet Whether the Judgment is Reportable? Yes Whether the Judgment is Speaking? Yes CRA No.25/2014 39