Allahabad High Court
Ram Dubar Yadeo vs State Of U.P. on 6 September, 1999
Equivalent citations: 2000CRILJ899
Author: B.K. Sharma
Bench: B.K. Sharma
ORDER B.K. Sharma, J.
1. This is an appeal against the judgment and order dated 31-1-1984 passed by Sri P. N. Lal, the then Special Judge, Muzaffarnagar in Special Case No. 1 of 1981 State v. Ram Dubar Yadav, whereby he convicted the accused-appellant of the offences under Section 5(1)(a & b) read with Sub-section (2) of the Prevention of Corruption Act and under Section 151, I.P.C. and sentenced him to undergo R.I. for a period of 1 year and to pay a fine of Rs. 500/- and in default of payment of fine to undergo further R.I. for the period of 3 months for the offence under Section 5(1)(a) & (b)) read with Sub-section (2) of the Prevention of Corruption Act 1947 and sentenced him to undergo R.I. for a period of 6 months for the offence under Section 161, I.P.C. Both the substantive sentences were directed to run concurrently.
2. The accused-appellant was a meter reader in the U.P. State Electricity Board Distribution Division II, Muzaffarnagar and entrusted with the duty of recording the' reading of consumption in the meter of the consumers in the area which included Rasoolpur Jatan where there was electric connection of light and domestic power in the name of Satyapal, real brother of Harpal Singh complainant of the present case.
3. The prosecution story as disclosed in the complaint of the complainant liar Pal Singh P. W. 3 and the F. I. R. lodged by the Vigilance Departments trap inspector Ratan Singh P.W. 1 was as follows : Ram Dubar Yadav, accused-appellant demanded Rs. 50/ - as illegal gratification from the complainant Har Pal Singh P. W. 3 for reversing the electric metre and thereby reducing the reading of consumption of electricity and on this the complainant approached the Collector. Muzaffarnagar on 21-5-1-979 making these allegations and praying that such a corrupt official be caught red handed, whereupon, the Additional Collector, Muzaffar Nagar recorded an order on the complaint for the vigilance inspector to lay a trap and do the needful and taking the same the complainant Har Pal Singh approached Sri Ratan Singh P.W. 1 Trap Inspector Muzaffarnagar in his office at 11.00 A.M. The trap inspector conversed with the complainant in the course of which, he repeated the allegations contained in his complaint. The complainant produced currency note of Rs. 50/- bearing No. 3C.G. 321592 before him in the presence of Satyapal Baliyan P.W. 2 which he had brought for being tendered to the accused-appellant by way of bride. The trap inspector put his initial on this currency note, smeared it with phenolphthalein powder and explaining its importance, returned it to the complainant with an instruction to tender it to the accused-appellant, in case bribe is demanded from him. He prepared a memo about these proceedings and obtained on it the attestation of witness Satyapal Baliyan P..W. 2. Then the trap Inspector procured Jagpal Singh the head constable and Mohd. Faiyaz of out post civil lines, police station Kotwali from the collectorate compound and making a scheme of trap sent the complainant to find out the presence of the accused-appellant. In a few minutes the complainant came back and told him that the accused-appellant has rushed into the tea shop of Arnrit Kumar Jain, whereupon, the trap inspector sent the complainant into the tea shop and followed him along with Jagpal Singh head constable and Mohd. Faiyaz constable, entered into the shop and sat inside the shop on chairs lying in the shop near the table where the complainant and the accused-appellant were sitting on chairs. The trap inspector called upon the shop keeper to bring tea for them. In the mean-time, the complainant said to the accused-appellant, "BABU JI MAIN APKEY MANGEY HUYE PACHAS RUPYE LEY AYA HUN. AAP APNEY WAYDA ANUSAR MERI METRE READING PICIIEY IIATA DEN, TAKI BILL KAM BANEY", whereupon, the accused-appellant told him "TUM HAMAREY TAY KIYE HUYE PACHAS RUPYE DO. MAIN TUMHARI METRE READING ITNI KAM KAR DUNGA KI KAM SE KAM BILL MEN TLEN SAU PACHAS RUPYE KAM HO JAYE AUR TUMHEY FAIDA HO JAYE". On this, the complainant tendered a currency note of the denomination of Rs. 50/- to the accused-appellant which the accused-appellant accepted in his right hand. Hearing this conversation and seeing this, the trap inspector caught the accused-appellant at the spot red handed. It was 12.00 noon. The trap inspector disclosed his identity and asked the name and address of the accused-appellant which he consequently gave. The trap inspector took a search of the person of the accused-appellant and recovered from him a currency note of denomination of Rs.50/~ from his right hand which on comparison was found to be bearing the same distinctive number as he had recorded in the aforementioned memo and also took into custody same, cash from his right Bellbottom pocket, a ball pen and also took into custody his cycle and a leather bag on the carrier thereof containing a diary, a note book of the hydel department, bearing his name, a register containing reading of electrical consumption and certain other documents. He then washed the hands of the accused-appellant and the complainant in sodium carbonate solution prepared in two different glasses. The colour of solution in each glass turned pink. He then sealed the said solutions in two separate phials. He sealed the recovered currency note in a separate envelop and took the attestation of the witnesses aforesaid. The prepared memo about the arrest and recovery and another memo about the cycle etc. He then took the accused-appellant and the seized properties to police station Kotwali and lodged a written FIR on the same day at 2.20 P.M. and on which basis a chik report was prepared by the clerk constable and a case was registered under Section 161 IPC and Section 5 (1) (a) & (b) of the Prevention of Corruption Act, 1947.
4. The investigation of this case was entrusted to Mahak Singh vigilance inspector. After conclusion of the investigation and obtaining the sanction from the appropriate authority, Executive Engineer, Electricity Distribution Division-I, Muzaffarnagar and thereafter a charge-sheet was submitted against the accused-appellant.
5. At the trial, Harpal Singh complainant was examined by the prosecution as P. W. 3, his companion Satya Pal Balivan was examined as P.W. 2 and Ratan Singh trap in-specto* was examined as P.W. 1 rest of the evidence led at the trial was formal in nature. The trap inspector narrated the part of the prosecution story as out lined above, including the demand and payment of bribe, the spot arrest and the recovery of the bribe money from the time of complainant approaching him with his complaint bearing the endorsement of the Additional Collector till the lodging of the accused-appellant at the police station along with the recovered property and the lodging of the FIR there. Satyapal Balivan P.W. 2 also testified to the prosecution story from the time of his accompanying the complainant till the end. He is the scribe of the complaint Exb. Ka-1 of the case. He claimed that he scribed this complaint at the instance of the complainant and had accompanied the complainant when he took this complaint to the A.D.M. (Additional Collector). He further testified to his accompanying the complainant to the trap inspector, the proceedings before him, the trap, the arrest and recovery of the said currency note etc.
6. When the complainant entered the witness box, he testified that the accused-appellant used to take reading of the meter of the light and domestic connection taken by his elder brother Satya Pal (not to be confused with Satyapal Baliyan P.W. 2, a witness of the trap), that before the occurrence, no bill relating to the said connection had come, that the accused-appellant had come in his village before the occurrence for taking his reading but he did not have any talk with him, that at the instance of his elder paternal uncle, he came to the accused-appellant in his office, that the accused-appellant told him, "MAIN TUMHARE METRE KI READING PICHEY HATA DUNGA.. TUMHARA BILL KAM BANEY GA". He further testified that he accepted this and Rs. 50/- was demanded from him for doing this. He further testified that this amount was to be paid at the tea shop which was situated near the police lines in front of the office in Kutchery, that the same day he brought money, that he was accompanied by Satyapal Baliyan P.W. 2, got his complaint scribed from him (Satya Pal Baliyan) and moved It before the A.D.M. who passed an order for the trap inspector thereon, that he gave a currency note of Rs. 50/- to the trap inspector that then the accused-appellant met him out side the Kutchary and suggested him to come to the shop and took him (the accused-appellant) inside the tea shop where the trap inspector also came, that he gave Rs. 50/- (fifty Rupees currency note) to the accused-appellant, that the trap inspector was sitting near him (near the complainant), that as soon as the trap inspector proceeded to get up, the accused-appellant threw away the currency note from his hand as he had developed suspicion, that the inspector caught hold the accused-appellant and picked up the currency note, thrown by him (by the accused-appellant), went to the police station and got their hands washed. He was declared hostile by the prosecution and cross-examined by the learned public prosecutor.
7. The accused-appellant denied the charge and in his statement under Section 313 Cr.P.C. in reply to the question No. 14 said that the witnesses are men of police who have given evidence for their popularity. He also claimed that Satya Pal Baliyan P.W. 2 was friend of the complainant and had given the evidence on account of them. He further claims that this witness was a professional witness. In reply to another question as to why he has been prosecuted, he replied that "Satyapal son of Kallu Ram Ke Khilaf Bijli Ki Bawat Report Ki Thi." This Satya Pal son of Kallu Ram is a real brother of the complainant (he is not to be confused with Satya Pal Baliyan P.W. 2 who as per the prosecution story accompanied the complainant to the trap inspector and was. a witness on the trap.). In reply to the question if he had anything further to say that he gave the following statement:
MAINE SATYA PAL KE KHILAF 15-5-1979 KO J.E. LUXMAN KO SATYAPAL KI READING KI BAWAT LIKHIT SHIKAYAT KI THI, KI READING CHECK KARAYA JO KI SAMBHAV HAIVAH BIJLI KI CHORIKARTA HAI IS PAR J.E. NEY S.D.O. KI ANUMATI MANG KER CHECK KIYA AUR MERI BAT SAHI PAYEE GAYEE ISI SEY WADI NARAJ HO GAYA HAI. MAIN NIRMANA BIJLI GHAR SEY CYCLE PAR KUTCHERY ROAD HOTA APNEY NAI MANDI DAFTER JA RAHA THA. KUTCHERY ROAD PAR KUTCHERY SEY BAHAR HAMKO PA-KAR KOTWALI MEIN LEY JAKER BAND KAR DIYA AUR JHUNTHA KASE MEREY KHILAF BANAYA.
8. The accused-appellant filed several documents in defence which will be referred to at their proper place. The learned Sessions Judge ignored the testimony of Satyapal Baliyan P.W. 2. However, he accepted the testimony of the trap inspector and also observed that though the complainant tried to support the defence, his testimony as given at the trial proved payment, recovery and arrest and he felt that the prosecution story about the demand and acceptance of the bribe money was amply corroborated and that the accused-appellant had not given any plausible explanation about the presence of the currency note. He consequently held that it was proved beyond doubt that the accused being public servant as a Meter Reader committed Criminal misconduct in the discharge of his duties by demanding and accepting illegal gratification of Rs. 50/- (other than legal remuneration) for reducing the meter reading of the electric connection to procure an electric bill of lesser amount and thus abused his position as public servant. He consequently convicted and sentenced him as aforesaid.
9. Heard the learned counsel for the parties and perused the record.
10. Now Har Pal Singh complainant (P.W. 3) was not the consumer of electricity. It was his brother Satya Pal Singh (not to be confused with Satya Pal (Baliyan) (P.W. 2)) who was the consumer. Satya Pal Singh consumer did not enter the witness-box to make any grievance about the reading of the meter installed at his place, against the accused-appellant. He did not come forward to say that his meter was giving excess reading with consequent excess billing by the hydel department and that he approached the meter reader Ram Dubar accused-appellant to set the meter right and the meter reader demanded illegal gratification, from him for doing so or to say that the meter reader had suggested to him to pay money and get the meter adjusted to reduce the consumption or that he called upon the meter reader to reverse the electic meter and thereby reduce the reading of consumption when he came for reading of the meter and that on this the accused-appellant demanded illegal gratification. In short, he did not come forward to testify that he had any grievance against the department in general much less against the accused-appellant in particular about the reading of consumption in his meter and the billing of the same. If there was no erratic working of the meter and there was no grievance against the department or the meter reader relating to the electric installation, there would be hardly any occasion for him as a bona fide consumer to ask his own brother Har Pal Singh complainant to go to the hydel office and approach the meter reader. So the fact that the consumer himself did not testify that he called upon his brother Har Pal Singh complainant to go to the hydel office to meet the meter reader much less that he had asked Har Pal Singh complainant to approach the meter reader, and to ask him to reverse the meter so that it recorded less consumption than the electricity actually consumed in his electrical installation. It is also to be noted that though Har Pal Singh complainant (P.W. 3) did testify that before the occurrence, the accused-appellant had come to his village for taking the reading of his brother's meter but said that he had no talk with the accused-appellant at that time. It may be mentioned that in his cross-examination by the defence he stated claiming that before 21-5-79 (the date of the trap), he had quarrel with the accused-appellant several times touching the meter reading. This statement ' runs counter to his all remaining testimony before the trial Court. If there were any such quarrels taking place, the complainant was least likely to be sent or to volunteer to go and urge the accused-appellant for reversing the meter and reducing the reading and the accused-appellant to demand money from him for doing so. It is difficult to believe this witness even an inch. Then in the next sentence he stated in his cross-examination that he had asked the accused-appellant the device for getting the reading reduced and the meter reversed. This was inconsistent with his eaflier claim of quarrels with the accused-appellant. Again he is caught at the wrong foot.
11. Further the complainant testified that it was at the instance of his Tau (elder paternal uncle) that he had gone to the office of the accused-appellant. He has not disclosed the name of his Tau who allegedly asked him to go to the office of the accused-appellant nor was that Tau examined at the trial by the prosecution to indicate as to for what purpose and for what reason he had called upon Har Pal Singh complainant to go to the office of the accused-appellant. The complainant has not disclosed what for his Tau had asked him to go to the office of the accused-appellant. It is also significant to note that he did not say any where in his testimony that when the accused-appellant came to take the meter reading he (the accused-appellant) made any demand of money from him or his brother (the consumer) or from anybody else present at that time. He also did not say that the accused-appellant had called upon the consumer or his Tau or him to meet him in his office. Thus on the own story of the complainant, it was he who went to the office of hydel department and allegedly approached the accused-appellant for illegal favour and his case is that when the illegal favour was sought the accused-appellant demanded a sum of Rs. 50/- for doing him this illegal favour. So the foundation of the case is the alleged demand of Rs. 50/- as bribe by the accused-appellant in his office from Har Pal Singh complainant (P.W. 3). About the alleged demand by the accused-appellant in his office, there is the sole testimony of complainant. There is no other witness. Har Pal Singh complainant (P.W. 3) testified that he brought the money on the same date on which the bribe was demanded by the accused-appellant (in his office). "Jis Din Yah Bat Hui Usi Din Mal Rupaya Laya".
It amounted to saying that after the demand of the bribe he brought or arranged the bribe money. It is rather an ambiguous statement. He did not say from where he brought or arranged the money, i.e. whether he went to his village or else where and brought the money or borrowed it from somebody at Muzaffarnagar itself. He did not say that he borrowed the money from his companion Satyapal Baliyan P.W. 2 nor does Satya Pal Baliyan P.W. 2 said that he lent the currency note to the complainant for the purposes of trap. If we take that the complainant brought the money before hand, it would tend to show that he had come prepared for getting a trap laid and it could be only if the bribe had been demanded from him on an earlier date. But he did not claim anywhere in his testimony that the accused-appellant had made any demand of bribe from him or his brother (the consumer) on any date prior to the date of occurrence. Nor is there any other evidence of any such demand on any date prior to the date of occurrence and there was hardly any time to arrange the currency note on the date of occurrence. In the ordinary course, the hydel office could not be expected to open before 10.00 A.M. and so it seems that. the complainant neither went to that del office nor met the accused-appellant. It is difficult to believe that on the aate of occurrence, the complainant would come to hydel office; and also meet the accused-appellant lucre without any prior appointment, then the accused-appellant would make the demand of bribe and then the complainant, would go and bring the currency note from his village or at best arrange it locally, then get the complaint scribed from Satya Pal Baliyan (P.W. 2) then would take it to the Addl. Collector in the collectorate Office and would find the Addl. Collector there and give the written complaint to him, then the Addl. Collector would record his order for the vigilance inspector for laying trap and then he (the complainant.) would carry it to the trap inspector so as to reach him at. 11.00 A.M. (the time at which he met the trap inspector according to the testimony of the trap inspector Ratan Singh (P.W. 1)).
12. As a matter of fact, enough circumstantial evidence has come on record from the prosecution side itself which rules out the possibility of this complainant's approaching the accused appellant on the date of occurrence and the demand of bribe being made by the accused-appellant from him and tend to show that in all probability the complainant and Satya Pal Baliyan P.W. 2 simply came to Muzaffarnagar, prepared to get a trap laid for the accused appellant and with that object met the Addl. Collector, moved the complaint before him and obtained the orders from him for the trap inspector and in compliance thereof the trap was planned for the accused-appellant. One circumstance is that in the complaint Ext. Ka-1 by the complainant there is no mention as to when i.e. on which date at what time and at what place the demand of bribe was made from him. It did not say that he met the accused-appellant at the hydel office earlier in the day itself and there he (the accused-appellant) demanded the bribe. Another circumstance is that Staya Pal Baliyan (P.W. 2) has testified that he accompanied the complainant from the village to the city (Muzaffarnagar) on the date of occurrence and on reaching the city (i.e. Muzaffar" Nagar), the complainant told him that the meter reader was demanding bribe from him, Satya Pal Baliyan P.W. 2 further testified that. on coming at Muzaffarnagar, the complainant got the complaint (Ext. Ka-1) secribed from him and taking it the complainantment to the A.D.M. (i.e. the Addl. Collector) and he (P.W. 2) accompanied him (i.e. the complainant) and the A.D.M. passed orders on. the complaint (for laying trap). This testimouy thus shows that this witness (P.W. 2) and the complainant (P.W. 3) started together from the village to the city and remained together all along. He did not say that they separated from each other even for a short duration. Consequently it rules out the going of the complainant to the hydel office, his meeting the accused-appellant at the hydel office and the demand of bribe by the accused-appellant. Since they were together all along on the date if the complainant and gone to the hydel office and met the accused-appellant, he (Satya Pal Baliyan P.W. 2) would have said so but he did not. About Satya Pal Baliyan (P.W. 2) there is not a whisper from the prosecution side that he had turned hostile or semi-hostile. There was no prayer by the prosecution at the trial for permission to cross-examine him. In his cross-examination by the defence, Har Pal Singh complainant P.W. 3 admitted that he did not tell the I.O. the fact that he had met the accused-appellant in his office and the same date was fixed (for payment of bribe of Rs. 50/-) on the same date (i.e. day) on which the currency note was thrown by the accused-appellant (i.e. the date on which the trap was laid). The point of importance in this context is that even to the investigating officer he did not disclose that he had met the accused-appellant in his office and the accused-appellant had demanded the money from him on the same date on which the trap was laid. In order words the date of meeting the accused-appellant in office and the demand of bribe by him was kept vague by the complainant even in his statement before the investigating officer. The prosecution did not challenge him on this admission by putting leading question to him basing on any part of his statement in the case diary, with the permission of the Court. It may be mentioned here that in the FIR it has not been stated as to on which date the bribe had been demanded by the accused-appellant from the complainant. Thus it will mean that the theory of his (the complainants") meeting with the ace used-appellant in hydel office and demand of bribe by him earlier in the day on the date of the trap itself was taken by the complainant for the first time when he entered the witness-box.
As noted earlier, Har Pal Singh complainant P.W. 3 testified :
Jist Din Yah Bat Huyee (demand of bribe by the accused-appellant) Usi Din Mal Rupya Laya. Mere Sath Satya Pal Baliyan (P.W. 2) Tha. Iski Babat Maln Ek Darkhwast Likhai.
He did not say that Satya Pal Baliyan (P.W. 2) accompanied him to the hydel office and that, a demand of bribe was made by the accused appellant at the hydel office. Nor did he say that Satya Pal Baliyan (P.W. 2) separated from him in the city and met him later in the day and then he told him about the demand and got the complaint scribed from him. He was declared hostile by the prosecution and cross-examined by the learned counsel for the State but even then not. a word was suggested to him in the cross examination that Satya Pal Baliyan (P.W. 2) had accompanied him (the complainant) to the hydel office and that bribe was demanded in his presence or that Satya Pal Baliyan (P.W. 2) had separated from him (the complainant) in the city and met him later in the day and then scribed the complaint. Against the back ground of the case and the circumstances noted above, it is very difficult to place any implicit reliance on the testimony of Har Pal Singh complainant (P.W. 3) about this demand of bribe from him by the accused-appellant in his office on the date of occurrence itself at any time prior to the meeting of the complaint by Har Pal Singh complainant before the collector Muzaffar Nagar.
13. It is correct that the complainant did make a complaint to the Collector, Muzaffar Nagar on the date on which the Additional Collector, set the machinery of the vigilance department in action. There is no doubt about it. But the question is whether he made the complaint of demand of bribe to the Collector because the accused-appellant did demand bribe from him as he claimed by him (the complainant) or whether it was a case where an unscrupulous agent of a consumer of electricity falsely lodges a false complaint against an intractable meter reader who refused to oblige. In this regard, it is to be noted that from the side of the prosecution, apart from the testimony of the complainant that before the occurrence, the accused appellant had come to take reading of the meter installed at the premises of the consumer, there was complete silence about his visit in the past to the installation of the complainant's brother from time to time to take reading of the meter and about what was said or done by the accused-appellant at the time of taking the reading of the meter on those dates and what happened when he last checked the reading and whether there was any talk between him and the consumer or any one else present on behalf of the consumer.
14. On the other hand, the defence has brought on record categorical material to practically rule out any demand of bribe by the accused-appellant for reversing the meter. The defence had made its card open at. the earliest opportunity in the cross-examination of Ratan Singh Vigilance Inspector (P.W. 1) who was the architect of this trap. During his cross-examination he (P.W. 1) was asked about his query which he had made from Har Pal Singh complainant before laying the trap. He claimed that he asked the complainant (Har Pal Singh) about coming of bills of consumption and claimed that the complainant has said that the bill did not come. He admitted that he did not ask the complainant, to tell as to when the meter reading was taken last. He was confronted with an extract copy of the reading register in which the last reading of 15-5-1979 was recorded. He did not dispute it but said that this document was not shown to him at the time of occurrence i.e. the trap. He was asked about the documents which he had seized at tile time of arrest of the accused-appellant. He admitted that from the bag of the accused-appellant, a reading register was recovered and there was another paper apart from it which noted meter reading and that the meter reading was recorded in the register also. He stated that the said register and the said document were, not before him at that time (when he was in witness box). Asked further, he stated that he did not remember if these documents contained reading about meter of Har Pal Singh (strictly speaking the reading about the meter that related to Satya Pal Singh (consumer) or not. When he was shown paper No. 8Ka/14, which was a true copy of the entries in the binder sheet of the meter readings relating to Satya Pal Singh s/o Kale Ram (the consumer) in which last reading was of 15-5-1979 (obtained by Mohak Singh Investigating Officer (P.W. 7) from the hydel office as stated by him in his testimony dated 31-10-1983 at the trial) and in which in the same line there was a remark "doubtful consumption" present. He did not dispute it. If he had cared to look into the entries in the register recovered from the possession of the accused-appellant from wherever he was arrested, perhaps he (P.W-1) would not be that too eager to file an FIR against him (the accused-appellant), as he has done.
15. The prosecution examined Ved Prakash Sharma, posted as S.D.O. Hydel of the concerned area at the relevant time, as P.W. 8 at the trial. In his cross-examination, the defence brought out certain very material facts. These were that the electric connection number of Satya Pal Singh consumer was 25601 of 250 Watt; that in the binder book, there is reading dated 15-5-1979; recorded by Ram Dubar accused-appellant about this connection along with the remark of "doubtful consumption" that the reading recorded by him on the said date was 1513. The extract copy from the binder register about the entry was paper No. 8Ka/ 14 aforesaid (duly proved and marked Ext. Kha-3). As noted earlier, this extract copy was taken by the Investigating Officer from the Hydel office during the investigation and not something manipulated at the trial by the accused-appellant in his favour. The Investigating Officer was specifically asked about this document when he entered into the witness-box but he did not challenge the genuineness of the entries therein even when pointedly referred to it. When Ved Prakash Sharma, S.D.O. (P.W. 8) referred to this document in his cross-examination then also the prosecution did not challenge the genuineness of these entries made. The extract copy from the binder-book paper No. 8Ka/14 shows the reading about the consumption found in the meter relating to Satya Pal Singh consumer from time to time. In this there was abnormally low reading recorded on 15-5-1979 (just 88 units) and about this there was the remark of "doubtful consumption" purporting to be made by the accused-appellant. The genuineness of these entries have not been challenged by the prosecution at the trial as noted above, the document ha.d been got exhibited at the trial as Ext.Kha-3. Then it has come out in the testimony of Ved Prakash Sharma, S.D.O. Hydel (P.W. 8) that on 15-5-1979, the accused appellant had made a report (Ext.Kha-5) to the Junior Engineer of the hydel department against the consumer Satya Pal Singh stating that the reading of his meter was 1513 and that the consumption of the period March 1979 to May 1979 was muchless than the consumption of the last several months and that he apprehended that the consumption is reduced by some wrong means or has made some leakage in meter and praying that that meter of the consumer may be checked. It has further been brought cut by the defence in his cross-examination that on receiving this report, the junior Engineer Laxman Singh made a report to him on 18-5-1979 on the basis of the same giving details of the units of consumption about different periods suggesting doubtful consumption for the months of March, 1979 to May, 1979. Thus reading covered the period of three months from March, 1979 to May 1979. It has also come out from the testimony of Ved Prakash Sharma, S.D.O. (P.W. 8) that on this report by the Junior Engineer Laxman Singh, he (the witness) passed an order on the same day (18-5-79) for the Junior Engineer" please explain the position of seal body and J/P". It has further come out in his cross-examination that on 19-5-1979, the Junior Engineer Laxman Singh gave his report of checking stating that the body seal of both meters (Light and fan and domestic power) was correct; that on the meter of light and fans, terminal plate cover is present but seal is not present; that on the meter, relating to the domestic power, T/P cover is also not present so that there is scope for theft of electricity and further that the consumer has been illegally supplying electricity to another house across 10' wide Gali. It is significant to note that the prosecution did not challenge the testimony of this public officer on many point testified to by him. As a matter of fact, Har Pal Singh complainant (P.W. 3) admitted in his cross-examination by the defence that before this occurrence the accused-appellant had given a report about the erratic working of the meter (i.e. his brother's meter) and that before this occurrence, the Junior Engineer had inquired into the complaint and found the seal of the meter broken and found the meter working erratically (though he denied having falsely implicated the accused appellant for that reason). The prosecution did not put any question to the complainant with the permission of the Court, by way of cross-examination to challenge this admission made by him. We have already noted that after it the prosecution evidence that come on record in the testimony of the S.D.O. Hydel as aforesaid was also not challenged by the prosecution. So the fact that gets established beyond every shadow of doubt from the above was that on 15-5-1979 the accused-appellant had taken the reading of the meter of the consumer Satya Pal Singh and had found a reading 1513 which was much less than the average consumption in the earlier several months and that he had recorded against the reading the remark 'doubtful consumption' and had made a written report against the consumer about it to his superior, the Junior Engineer and the Junior Engineer had reported the matter to his superior officer, namely the S.D.O. Hydel; that then the S.D.O. had directed the Junior Engineer" please explain the position of seal body and J/P" and that the Junior Engineer Engineer had consequently made checking on the spot and given the factual report against the consumer, as noted above. Then even at the cost of repetition, it is to be said that the prosecution did not suggest to the S.D.O. (P.W. 8) in his cross-examination that actually no reading was taken on 15-5-1979 by the accused appellant and that no report had been made by the accused-appellant and no report had been made by the J.E. On the report of the accused-appellant and that no enquiry was made by the Junior Engineer on the orders of the S.D.O. (P.W. 8) and no report was submitted to the S.D.O. It is not suggested by the prosecution to the S.D.O. (P.W. 8) for a moment that these documents had been fabricated subsequent of the occurrence to save the accused-appellant, who was a meter reader in the hydel department, when he was in the witness box. The prosecution was free to make such suggestion to the witness by seeking permission of the Court to cross-examine the witness with or without (declaring him hostile. Furthermore, at that stage, the prosecution was still in the midst, of its evidence and it could produce the consumer himself in the witness-box and examine him about the factual position whether the accused-appellant had gone for making the reading; whether he had recorded the reading as claimed by him the accused-appellant) and whether the Junior Engineer made a spot enquiry and if he had made the spot enquiry what was the stand of the consumer about it. However, this was not done by the prosecution. Otherwise, it is also doubtful that the S.D.O. and the Junior Engineer would go out of their way for the sake of accused-appellant who was a petty meter reader in their department. It is also to be noted that the complaint made by Har Pal Singh (P.W. 3) was dated 21-5-1979 i.e. just the 3rd day after the enquiry report was submitted by the Junior Engi-' neer against the consumer Satya Pal Singh. It is immaterial that further orders are not claimed to have been passed by the S.D.O. (P.W. 8) on the report of the Junior Engineer. In the normal course of official business, there was nothing abnormal about it. The S.D.O. (P.W. 8) might be having more important official business to deal with than this report about the suspected theft of energy by this consumer. It seems that this complaint dated 21-5-1979 by Har Pal Singh (P.W. 3) against the meter reader was moved to thwart consequential action by the Hydel department against the consumer on the basis of the said report of the Junior Engineer dated 19-5-1979. It is extremely difficult to believe against this background of facts, that the accused-appellant would demand any bribe from the representative of the consumer for doing any act to his advantage, muchless for reversing the meter installed by the department at the premises of the consumer. The machinery of the vigilance department has been set into motion in this case by the then Additional Collector, Muzaffar Nagar by his direction on the complaint dated 21-5-1979 moved by Harpal Singh complainant P.W. 5 before the Collector Muzaffarnagar on the date, for the vigilance inspector for laying the trap and doing the needful. The complaint of the complainant Har Pal Singh was in writing. It was in the following words :
Sewa Men, Shriman Ziladhikari (Muzaffar Nagar) Nivedan Yah Hai Ki Prarthi Ke Yaha Domestic Power Manjoor Hai. Jismen Light 1/4 Chara KatnLMachine Chal Rahi Hai.
Iska Meter Pichey Hataney Aur Bill Kam Karney Key Liye Ram Dubar Yadav, (Meter Reader) Hamsey 50/- Riswat Mang Raha Hai.
Atah apsey Sanurodh Prarthana Hai Yesey Bharasht Karmchari Ko Rangey Hathon Pakarney Ki Kripa Karey. Ati Kripa Hogi.
16. There is no order of the Collector endorsing the application to the Additional Collector for appropriate action. There is also nothing to show that the Additional Collector made any enquiry from Har Pal Singh complainant oral or in writing before passing the order for the vigilance, inspector, "Please lay trap and do the needful". The additional Collector who passed this order has not been examined by the prosecution at the trial. In his testimony, Har Pal Singh complainant (P.W. 3) has stated that he gave the application to the A.D.M. and the A.D.M. passed an order for the vigilance inspector (reproduced above) and that then he took the application to the vigilance inspector. It is quite obvious that the additional Collector passed the order for laying trap in a mechanical manner without applying his mind to the facts stated in the complaint and without making any enquiry from him as to why he wanted his meter to be reversed so that it may give a lesser reading of consumption of electricity by the consumer who happened to be his brother which act was obviously illegal and immoral. Every sensible officer of the executive department would have declined to direct a trap on such a complaint rather the complainant would have been hauled-up for approaching the public servant to do the wrongful and illegal act. The executive authority to whom a complaint is made against a public servant was bound to enquire from the complainant about the allegations made in the complaint and satisfy himself that there appears substance in the complaint before directing the laying of trap. The laying of trap is a serious matter and so it should never be ordered in a routine and mechanical manner. In the ordinary course, he was expected to make an enquiry from the complainant as to when the. last reading was taken by the accused-appellant, whether in his view, the meter was giving correct reading or excessive reading and if not giving excessive reading, then why he wanted reversing of the meter and in case it was giving excessive reading why he did not say in the complaint that he wanted the meter to be corrected so that it correctly recorded his consumption, whether the reading was correctly recorded or wrongly recorded in the records by the accused-appellant and in case it was wrongly recorded by the complainant why did he not say so in the complaint and further in case he claimed that the meter was correctly giving the reading and the accused-appellant was also correctly recording it in the records, then he was supposed to enquire from him (the complainant) as to why he wanted the meter to be reversed and to ask as why he had approached the accused-appellant for doing an illegitimate act that led to the demand of bribe and further to ask him as to whether the accused-appellant had approached him and made the demand for bribe or he had approached the accused-appellant and thereupon the accused-appellant made the demand for bribe. In fact, he was supposed to record in writing the statement given by the complainant in the matter on all these points and then consider whether a trap was to be ordered.
17. Here the Additional Collector not only passed the order for laying the trap on the application of the complainant in a routine and mechanical manner without applying his mind but even handed over the original complaint to the complainant for being carried to the trap inspector directly which itself was an irregular act. Once he had passed an order on the complaint of the complainant, it became a document of the government record and it was to be sent to the trap inspector via an official of the department. The giving of the application back to the complainant after mechanically recording an order of holding trap rather tends to show that he was under the sway of Har Pal Singh complainant (P.W. 3) or his companion Satya Pal Baliyan (P.W. 2) or both.
18. In this case the record does not disclose the name of the then Additional Collector, Muzaffarnagar who passed the order for laying the trap but the U.P. Government ought to trace out the officer who passed this order and take suitable step to ensure that the officer does not act in such a reckless and mechanical manner in future.
19. Further, in this case the trap inspector Ratan Singh (P.W. 1) is not less to blame. Even though an order had been passed for laying a trap which he was required to comply, before laying the trap, he was expected to enquire from the complainant about the facts. In his examination-in-chief, all that he said was that he talked with the complainant who repeated the facts stated in the complaint. If he had made this enquiry from the complainant, he would have brought the outcome of the queries to the notice of the Additional Collector and suggested him to rather take action against such an unscrupulous person for approaching the public servant for doing a wrongful and illegal act. The trap inspector on his own showing has not done any such thing but. has simply proceeded to lay the trap on the complainant repeating the allegations made by him in the complaint aforesaid addressed to the Collector.
20. The testimony of the trap inspector is of course not to be mechanically rejected simply because he was the architect of the raid and as such interested in the success of the trap and a conviction at the (sic) trail and in a suitable case, his testimony could be acted upon even without the help of any corroboration as held in the case of Prakash Chand v. State (Delhi Admn.) 1979 SCC (Crl) 659 : AIR 1979 SC 400 : 1979 Cri LJ 329 and Hazari Lal v. Delhi Administration 1980 SCC (Cri) 458 : AIR 1980 SC 873 : 1980 Cri LJ 564 and as held in the case of State of U.P. v. Zaka Ullah 1998 SCC (Crl) 456 : 1998 All LJ 290 : 1998 Cri LJ 863. But in the present case, against the back drop of the facts and circumstances discussed above, it is difficult to place implicit reliance on his testimony at the trial without corroboration from the other direct and circumstantial evidence on record. If despite the nature of the facts of the case, he proceeded to lay the trap the testimony of such an over-zealous officer cannot be relied upon without close scrutiny.
21. In the preliminary proceedings of treating the currency note of Rs. 50/- produced by the complainant before the trap inspector with phenolphthalein power including the preparing of a memo Ext. Ka-3 about it the trap inspector did not try to associate any independent public witness. These proceedings about the memo Ext. Ka-3 are said to have been taken in the presence of a witness Satya Pal Baliyan P.W. 2 who was accompanying the complainant when he approached the trap inspector. The trap inspector may or may not be knowing that Satya Pal Baliyan P.W. 2 had accompanied Harpal Singh complainant when he took his complaint before the Collector but he certainly did notice that this witness was accompanying the complainant Harpal Singh (P.W. 3) came to him in his office. The trap inspector admitted that he had elicited that Satya Pal Baliyan P.W. 2 was of the village of Harpal Singh complainant. He also admitted that the complainant and this witness both were Jat by community besides being of the same village. Yet he (the trap inspector) did not take the trouble of associating any public witness with this part of the proceedings taken by him. He was expected as a prudent trap inspector to take some independent public witnesses and associate them with the trap proceedings but he did not do so. The explanation advanced by him that there was no prospect of getting any witness apart from Satya Pal Baliyan P.W. 2 (who was already accompanying Har Pal Singh complainant) and that there was fear of leaking of the plan of trap and that the time was also short. After preparing the memo aforesaid about the treating of the currency note with phenolphthalein powder, he did associate two witnesses with him namely Jagpal Singh who was a head constable and Mohd. Faiyyaz, who was a constable. There were men of the police department pure and simple. Jagpal Singh was a head constable and Mohd. Faiyyaz was a constable. The trap inspector claimed that he had taken both these police officers who were posted at the out post civil lines from the guard room in the Kutcheri. Asked further, he claimed that these two witnesses met him in plaint clothes near the police guard room but he did not know how these police officers had gone there i.e. in the guard room (as stated by the trap inspector). Satyapal Baliyan P.W. 2 on the other hand claimed that 2 persons were already present in the office of the trap inspector with the trap inspector when he and Harpal Singh complainant approached the trap inspector (with the application bearing the order of the Additional Collector thereon). But whether these two police officers were called and picked up by the trap inspector or were already present with him in his office at that time, it is obvious that these two police officers were men of the confidence of the trap inspector and were called by him or taken by him and associated with the trap proceedings to serve as witnesses. It was elicited from him that Har Pal Singh complainant had met him at about 11 a.m. and as per the averments in the complaint the agreed time of the coming of the accused-appellant and the meeting of the complainant with him was 1 p.m. But he (the trap inspector) claimed that the time available (between 11 a.m. and 1 p.m.) was not sufficient for collecting independent public witnesses and that he thought it to be sufficient to take the two police officers, head constable Jagpal Singh and constable Mohd. Faiyyaz with him considering the shortage of time and the fact that he did not get any public witness near about his office and did not like to take witnesses from the Bisters (the Takhats on which lawyers sit with their clients) in the campus of the District Court. This explanation is not at all convincing. He could collect any number of the public witnesses for which a duration of full 2 hours was available to him as per his case itself. This failure to associate public witnesses assumes great significance when we keep in mind the back- ground of the circumstances noted above which more or less rule out the demand of bribe by accused-appellant for the purpose claimed as noted above. On the complaint, there is a note written obliquely on the extreme left side in the margin opposite the signatures of the complainant, and his address at the bottom of the body writing of the document in the following words :
Aaj Karib 1 Baje Kachehri Me Chay Ki Dukan per 50/- Dene Ka Wayda Hai.
It does not bear the signatures of the complainant (P.W. 3) or of the scribe. It is not in dispute that Satya Pal Baliyan (P.W. 2) is the scribe of this entire complaint including this note thereon. However, the location of this note makes it obvious that it has been added subsequent to the scribing of the body writing of the complaint at whatever stage it may be.
The first witness examined touching this document was Katan Singh trap inspector P.W. 1 himself. His attention was drawn to this 'note'. He stated that he could not tell whether this 'note' has been scribed with a separate ink and with a separate pen. He, however, claimed that when this complaint came to him, this note was already present on this complaint, and he did not try to enquire as to who scribed the note and when (i.e. when it was scribed) and why (i.e. why it was scribed). When Satya Pal Baliyan (P.W. 2) was asked as to when this note was added he stated : "Yah Note...Malne Usi Samay Usi Kalam Sey Likha Tha.". Satya Pal Baliyan (P.W. 2) did not give a note at the bottom of the complaint that he was the scribe of this document. This stealth assumed significance when we looked to the facts elicited from Satya Pal Baliyan (P.W. 2) indicating that he has been making complaints against different persons before this occurrence. It is difficult to assume that this 'note' scribed obliquetly on the left side margin of this document (complaint) later was in existence when the complaint with the endorsement of the Additional Collector thereon was handed over to the trap inspector as testified to by him (the" trap inspector).
22. This note states that the time and place of payment of the bribe was fixed i.e. agreed upon between the complainant on the one hand and the accused-appellant on the other hand from before.
23. The trap inspector states in his testimony that he sent Harpal Singh complainant (P.W. 3) to find out about Ram Dubar accused-appellant, "Ram Dubar Ka Pata Laganey Key Liye Bheja". He has further testified that in just a few moments, Har Pal Singh complainant came and told him that the accused-appellant has rushed into the tea shop of Amit Kumar Jain "Mujhey Aakar Batya Ki Ram Dubar Meter Reader Amit Kumar Jain Ki Chay Ki Dukan Men Ghus Gaya." These words carry the plain meaning that on seeing the complainant, the accused-appellant has entered into the tea shop to avoid the complainant. This expression "Ghus Gaya" in the information allegedly conveyed by the complainant to the trap Inspector runs counter to the aforesaid averment in the aforesaid note scribed at the left side margin of the complaint (Ext. Ka-1) aforesaid moved by the complainant before the Addl. Collector, Muzaffarnagar, according to which, as per the deal settled between the complainant and the accused-appellant, the payment was to be made at the tea shop itself. Was it that this note has been inserted at some subsequent stage in this complaint after the scribing of the written FIR of this case detailing the arrest and the recovery aforesaid which tended to show that the tea shop was certainly not the place agreed upon for payment of the bribe money? Here I may mention that Satya Pal Baliyan P.W. 2 testified (in consonance with the aforementioned note at the bottom of the complaint); "Chai Ki Dukan Per Rishwat Leney Wala Aadmi Meter Reader Ko Time Diya Gaya Tha". Here it is to be noted that this witness elucidated this point by explicitly stating in his further testimony that the currency note was returned by the trap inspector to the complainant after smearing it with powder with the direction that this currency note he should pay to the demander of bribe at. the tea shop. Here it is to be noted that in the memo Ext. Ka-3 about the smearing and return of the currency note, there is no mention of the place of payment of the bribe. All that has been said is that an instruction was given to the complainant that on the demand of bribe by the accused-appellant, he should utilise this currency note.
24. Satya Pal Baliyan (P.W. 2) stated that after the preparation of the memo Ext. Ka-3 about the smearing of the currency note aforesaid, he and Har Pal Singh complainant (P.W. 3) went to the tea shop and there later on the vigilance inspector and a constable and a head constable also reached and these persons sat at the tea shop, where the accused-appellant was sitting from before as he had already been given time from before. This statement of this witness is not in consonance with what the trap inspector Ratan Singh (P.W. 1) and the complainant (P.W. 3) have stated on the subject.
25. As noted earlier, Ratan Singh trap Inspector (P.W. 1) had testified about the message given by Har Pal Singh complainant about the reaching of the accused-appellant into the tea shop and that on this he sent Har Pal Singh complainant (P.W. 3) ahead in the shop as per the trap plan and further that he along with the trap party, consisting of Jagpal head constable, Mohd. Faiyyaz constable and Satya Pal Baliyan (P.W. 3) reached at the shop and sat at a chair towards the west in the shop. In his cross-examination again he stated that first he sent Har Pal Singh complainant (P.W. 3) alone and then he himself went there (to the tea shop along with the witnesses). He further stated that when he went inside the shop, there was no public men present at the shop besides the shop keeper and his servants.
26. Har Pal Singh complaint (P.W. 3) made a different statement. He stated that after giving of the currency note by him to the trap inspector, he found Ram Dubar accused-appellant out side the District Court, that he asked Ram Dubar accused-appellant to come at the shop and took Ram Dubar accused-appellant inside the shop and that the trap inspector came thereby himself and further that Satya Pal Baliyan (P.W. 2) came in the shop after the entry of himself and the accused-appellant in it. There is thus a marked difference between what the trap inspector says at the trial and in the FIR of this case about the matter and what Har Pal Singh complainant (P.W. 3) claims in his testimony. It is that while according to the trap inspector, the information given the complainant amounted to saying that on seeing the complainant, the accused-appellant in order to avoid him. rushed into the tea shop and that after this information by the complainant to the trap inspector, the trap inspector sent him to the shop as per program (i.e. to approach the accused-appellant in the tea shop) and offer him the bribe and then himself went to the shop along with the trap party including Satyapal Baliyan P.W. 2 Har Pal Singh, complainant P.W. 3 did not testify that seeing him, the accused-appellant rushed into the tea shop, that on this he informed about it to the trap inspector and that then the trap inspector sent him to the tea shop and that on this he entered into the shop followed by the inspector and the trap party. What he says is that the accused-appellant was found by him and then both of them went inside the shop on his suggestion and further that according to him the entire trap party did not come in block to the tea shop but first Satya Pal Baliyan P.W. 2 came into the shop and that it was then that the remaining trap party entered into the shop. Satya Pal Baliyan P.W. 2 had a different story to tell. As noted earlier, he claimed that he and Harpal Singh complainant P.W. 3 both came together at the tea shop and that later on the trap inspector, the head constable and the constable reached there and sat at the shop. It is true that discrepancies to creep in the ordinary course between the testimony of even the most truthful witnesses and that for this reason, discrepancies are often ignored. But in a case like the present, where the accused-appellant who had already made a report against the brother of Har Pal Singh, complainant P.W. 3 of "doubtful consumption" and set the machinery of the department in action against him, he was least likely to demand any bribe for reversing the meter and the complainant had every possible motive to frame a trap against him by way of revenge, even this discrepancy assumed significance and casts a further shadow of doubt over the prosecution case.
27. We have also come across a marked discrepancy in the prosecution evidence about the positioning of the complainant, the members of the trap party and the accused-appellant vis-a-vis each other and the general topography.
28. According to the trap inspector he himself sat in the shop towards west on a chair and there in the vicinity the accused-appellant and Har Pal Singh complainant set on chairs towards north.
29. In the FIR about this arrest and recovery made by the trap inspector, it is said that he and the witnesses accompanying him i.e. Satya Pal Baliyan P.W. 2 and two police officers aforesaid sat on chairs lying in the shop near a table towards west and that in the vicinity towards north, the complainant and the accused-appellant sat on chairs facing east, the complainant being towards north and the accused-appellant being towards him (the complainant's) south. The site plan also depicted the same positioning. It showed two tables, one towards north and another to its south. It showed the position of the complainant at point-A to the west against the northern part of the northern table (figure-1) and showed the position of the accused-appellant Ram Dubar at point-B to the south of the complainant and then on the southern table, points C D and E were shown to its west starting from north to south and these points showed the position of Satya Pal Baliyan P.W. 2; that of head constable Jagpal Singh and then of constable Mohd. Faiyyaz respectively and then showed the position of the trap inspector at the southern end of the table.
30. Of course, the position of the occupants on the chairs would be part of the statements under Section 161, Cr. P.C. given by the witnesses to him but then the location of the tables and the chairs shown by him would be part of his factual observation at the spot on his reaching there. Satyapal Baliyan (P.W. 2) has stated differently on this point. According to him, he and Har Pal Singh complainant (P.W. 3) together cause in the shop where the accused-appellant Ram Dubar was sitting from before. He had stated that he and Harpal Singh complainant were sitting at the tea shop on adjoining chairs and that the policemen were sitting at a distance of 1 meter from him towards North and that Ram Dubar accused-appellant was sitting towards west of his chair and that in the middle there was a table which was long from North to South and that the trap inspector was on another table towards North from him and further that one or two customers were also sitting there on that table. This discrepancy also cannot be lightly brushed aside. In this case, the defence is a total denial of his presence at the tea shop and also the spot arrest there. The background of Satya Pal Baliyan (P.W. 2) as revealed in his cross-examination was tell tale and leaves nothing for doubt. He admitted having made a complaint to the Collector, Muzaffarnagar against Brahmanand and Kuldeep, dealer of cement of Burhana and had accompanied with the concerned officer to the shop of the said dealer at Burhana for getting cement seized. In fact, it came out from his testimony that in that matter even the present complainant Har Pal Singh had also accompanied him which showed that, both these persons (Satya Pal Baliyan P.W. 2) and Har Pal Singh complainant (P.W. 3) were hand and glove with each other. When suggested that in the case of that complainant against the said cement dealers, a final report was submitted (as a result of investigation), he pleaded ignorance. He stated that he did not know whether in that case final report had been submitted or not. The accused appellant had filed a certified copy of the final report submitted on 12-12 1979 in case No. 307 under Section 3/7 E.C. Act started on the FIR of Fateh Singh Rawat against Brahmanand dated 31-8-79 and the order dated 4-8-90 of the C.J.M., Muzaffarnagar accepting the final report. It is Ext. Kha-7. Then it was elicited from him (P.W. 2) that on 7-12-1978 he had made a complaint against Sunil Kumar and others to Sri Kunal Sharma the then city Magistrate, Muzaffarnagar about not selling diesel at the prescribed rate and that he had gone along with the said city magistrate to the shop of Sunil Kumar and others and he get Sunil Kumar and Shiv Kumar arrested. It was also elicited from him that in a case under Section 3/7 of the Essential Commodities Act, he is a witness (i.e. prosecution witness) against Ramesh Kumar, Vinai Kumar and others. The accused-appellant has filed Ext. Kha-8, certified copy of the charge sheet in case No. 129/79 under Section 3/7 E.C. Act relating to a raid dated 4-5-79 by the said Deputy Collector. In this document Satya Pal singh Baliyan P.W. 2 has been cited as a prosecution witness at serial No. 8. It was also admitted by him (Satya Pal Baliyan P.W.2) that on 14-5-1979 he had given an application in the office of the Collector, Muzaffarnagar against the proprietor of Singhal Medical Store, Shapur and that he had gone to the said medical store, with Sri Janardan Pandey, the then Sub Divisional Magistrate, had got Ishwar Dayal arrested and that the said Ishwar Dayal was challaned. He (P.W. 2) claimed on oath that that case is still pending in court and on being suggested that a final report has been submitted by the police, he replied that so far as he remembers, final report has not been submitted in that case. Asktjd again, he said that he did not know whether final report was submitted in that case or not? He has suggested that he wants to extract money from the shop-keepers by getting them falsely implicated and that his profession is to give false evidence and that he is a Dalai (Agent) of the police. In short the defence suggestion is that he is a black mailer. He of course made a denial of the suggestion as could be expected from him but the obvious is obvious. In reply to Court question he stated that he and his two brothers possess 109 bighas of land and that six and half days, he devoted to agricultural work and half day for work other than relating to agriculture. He claimed that he has to come to the city (i.e. District Headquarters, Muzaffarnagar) once in a week for agricultural work and for other work. He further stated that the complaint about which he has been asked earlier in cross-examination; he had moved because he was himself disgusted with them. Asked about the medicines relating to she-buffalo as to which medicine was spurious, he could not say stating that he does not recollect. Then he stated that perhaps it may be a chemical. Then he said that Dr. Malik of Shahpur had told him that the medicines which he had taken was spurious. Cross-examined further by the defence, he stated that he is a social worker and Harpal Singh complainant was his neighbour and that liar Pal Singh complainant had made a complaint to him about the matter. He admitted that in this matter he (this witness) did not meet any officer of the hydel department. What he said when asked further in his cross-examination may best be stated in his own words:
gjiky jhfMax de djkuk pkgrk Fkk A ehVj ihNs gVokdj gjiky dk eryc Fkk ftruh jhfMax fy[k pqdk gS ehVj dks ihNs gVkdj de fy[k nsa A ;kuh ftruh ehVj ns jgk gS mldh lqbZ ihNs djds de dj nsa ehVj tks py jgk mldks ihNs djuk xyr dke gS A esjh jke nqcj ls dksbZ ckr ugh gqbZ gjiky us crk;k Fkk fd jkenqcj dg jgk gS iSls ns nks eS ehVj dh lqbZ ihNs dj nwaxk gjiky blds fy, jkth ugh Fkk jke nqcj us bl ckr dh tcjnLrh dh fd mls iSlk feys vksj og ehVj ihNs djsa gjiky pkgrk Fkk fd mldk ehVj ihNs gks tk,s A vxj gjiky ds dgus ij jke nqcj ehVj ihNs dj nsrk rks esjs rd ;g ckr u vkrh A ;g >xM+k fcy ds la'kks/ku ds lEca/k esa Fkk A gjiky dk lkFk eSus blfy, fn;k pwafd eq>s fo'okl Fkk fd gjiky tks dj jgk gS og lgh dj jgk gS A** No comments are needed to show what was what. It seems further that he uttered before the Court an allegation that the complainant used to give bill for consumption more than the actual reading in the meter. (This is not actually recorded in his statement available on record). The question that was put to him about such utterance and the reply given by him are being quoted below :
iz'u %& ^^vkt vkius vHkh c;ku esa ;g dgk gS fd jhfMax ls T;knk fcy c<+kdj nsrk Fkk vkSj nj[kkLr bDth- d&1 esa vkius fy[kk gs fd ehVj ihNs gVkus rFkk fcy djus ds fy, iSls ekaxrk Fkk bu nksuks es ls dkSu lh ckr lgh gS A mRrj %& ;s nksuks ckrs eq>s ,d lh yxrh gS A** It is obvious that the complainant was annoyed with the entry made by the accused-appellant in the records about the reading of consumption in the meter that it was a case of "doubtful consumption" and the complaint made by him (the accused appellant) against Satyapal (the consumer) who happened to be the elder brother of the complainant P.W. 3, to his (accused appellant's) higher authorities and that for that reason he approached Har Pal Singh Baliyan P.W. 2 and the result was the moving of the complaint to the collector and its aftermath.
31. Now the trap inspector P.W. 1 has testified that in his presence, Har Pal Singh complainant (P.W. 3) said to the accused-appellant that he (complainant) has brought a sum of Rs. 50/- demanded by him (accused-appellant) and requested him to get the bill reduced as per his promise and thereupon the accused- appellant asked him to give the sum of Rs. 50/- demanded by him and that he would reduce the meter reading to the extent of Rs. 350/- in the bill amount, that hearing this the complainant paid a currency note of Rs. 50/- to the accused-appellant which the accused-appellant accepted in his hand and that he thereupon disclosed his identity and arrested the accused-appellant at about 12 noon and on search, a currency note of Rs. 50/- aforesaid was recovered and then he prepared recovery memo (about it). He also testified to the taking into custody the belongings of the accused-appellant by him and the preparation of the arrest and recovery memo aforementioned and preparation of separate memo about the currency note. He further testified that the hands of the accused-appellants were washed and the wash turned pink and further testified to the sealing of the same in a phial and similarly washing of the hand of the complainant and the turning of the wash pink and its being kept in a separate phial and sealed. Regarding the conversation between the complainant and the accused-appellant, the first thing to be noted is that the accused-appellant is not said to have demanded any money from the complainant on seeing him. Another point to be noted is that the trap inspector (P.W. 1) did not testify to the preparation of any solution of sodium carbonate for washing of the hands of the accused-appellant and of the complainant in that solution though he has, of course, stated about it in the memo about the recovery. It is also to be noted that in the memo prepared by him about the smearing of the currency note with phenolphthalein powder, he did not make any mention of any demonstration as is usually made about the solution of sodium carbonate turning pink on adding phenolphthalein to it.
32. Satya Pal Baliyan (P.W. 2) did testify to the giving of the currency note of Rs. 50/ - by the complainant to the accused-appellant and also stated that this payment was made so that the reading of the meter gets reduced and that at that very time, the vigilance inspector caught-hold of the hand of the accused-appellant. He also testified to the personal search of the accused-appellant and the recovery of Rs. 50/- from him. But the points of importance are several. One is that he did not testify to the hearing by him of any conversation between the accused-appellant and complainant in his presence. In fact, he did not even say that any conversation was made between them at the time. He did not also say that there was some conversation between them but he could not hear the same. Another point of important is that while the vigilance inspector (P.W. 1) claimed in his testimony that he took the search of the accused-appellant at the spot itself and also testified to the preparation of memo etc. including the washing of the hands without stating anywhere that he. went from the spot to any place, Satya Pal Baliyan (P.W. 2), on the other hand, stated on oath in his testimony that after the arrest the accused-appellant was taken to the vigilance office and it was there that the hands of the accused-appellant and the complainant were washed and the wash of their hands was sealed in phials on which he had signed and the recovered currency note was sealed. He further stated that after it, the trap inspector and party went to the police station along with the arrested accused-appellant and that the trap inspector completed the entire proceedings including the preparation of recovery memo and wash of the hands and sealing of the wash bottles in phials at the police station. Har Pal Singh complainant (P.W. 3) in his testimony testified about the stage of his going to the accused-appellant, taking the accused-appellant with him, the coming of the trap inspector and coming of Satya Pal Baliyan in between and then testified about the giving of the currency note of Rs. 50/-. But he did not testify of any conversation between him (the complainant) and the accused-appellant before giving the currency note or at their time or after it. Another point of importance is that though he stated about the giving of currency note to the accused-appellant after it he testified that as soon as the trap inspector prepared to catch-hold of the accused-appellant, he (the accused-appellant) threw away the currency note from his hand adding that it was because he had developed suspicion and further testified that the trap inspector arrested the accused-appellant and picked up the currency note which the accused-appellant threw to the ground and sitting in a rickshaw went to the police station Kotwali. He further testified that; the currency note, which he had earlier given to the trap inspector, was not treated by the trap inspector with any substance. He, however, testified that at the police station, his hands and the hands of Ram Dubar accused-appellant were got washed in water and that the colour of the wash was of fresh water though it has became slightly muddy.
33. It will be seen that there is discrepancy at every spot in the testimony of these three prosecution witnesses, which assumes great significance when viewed in the back ground of the circumstances mentioned earlier in this judgment. Even the omission of the trap inspector to state about the preparation of sodium carbonate solution for washing the hands of the accused-appellant and the complainant with it assumes great significance when he look to the similar omission in the testimony of complainant (P.W. 3) and Satya Pal Baliyan (P.W. 2) on this point. It is significant that Satya Pal Baliyan (P.W. 2) and Har Pal Singh complainant (P.W. 3) were not asked by the prosecution about the preparation of sodium carbonate solution for washing the hands and Har Pal Singh complainant (P.W. 3) even when declared hostile was not suggested in his cross-examination that such a solution was made. It is plaint that if hand smeared with phenolphthalein powder were washed with plain water, the water would not turn pink. It is only mixing of phenolphthalein with sodium carbonate solution that gives pink colour. It may be noted that though the phials, in which the wash of the hands of the accused-appellant and of the complainant, are said to have been sealed, were produced before the trial Court. When the trap Inspector Ratan Singh (P.W. 1) was in the witness-box, he did not say that the solution has pink colour nor there was any observation of the Court in the record of the case brought to our notice that the solution is pink in colour. The accused-appellant had made a denial in his statement under Section 313, Cr. P.C. in the question about the washing of hands and the turning of water pink, it was not put to him that sodium carbonate solution was prepared by the trap inspector after the arrest and that the hands were washed with it. Though, such a question could have been asked on the basis of the, contents of the search and recovery memo (Ext. Ka-4). So in this case there are suspicious features and contradiction galore.
34. Seen in this background the discrepancy about the place where the demonstration of washing of hands was done, between the testimony of the above three prosecution witnesses also becomes material. It has to be kept in mind that Satya Pal Singh Baliyan (P.W. 2) was neither declared hostile by the prosecution nor was he cross-examined by the prosecution with the permission of the Court. Har Pal Singh complainant (P.W. 3) was declared hostile by the prosecution and was cross-examined, but in his cross-examination no suggestion was made to him about the treating of currency note with phenolphthalein powder. Then it was suggested to him by the prosecution that his hands were washed at the tea shop mixing colour with plain water. It is strange that such a suggestion was made but the denial by complainant would tend to show that no washing of hands was done and also that no demonstration (of the solution turning pink on wash) was done at the tea shop or anywhere else.
35. The complainant did deviate from the prosecution version as given in the FIR and he was suggested by the prosecution that he had joined hands with the accused-appellant and so is making a wrong statement in Court and he made a denial to it but the plain position that emerges from the conspectus of the totality of the circumstances of this case is that even if he had faithfully narrated the story as per the prosecution version, as given in the FIR the fate of the prosecution would not improve in this case at all.
36. We have noted earlier that the trap inspector did not take any independent wit-nesses though there was ample time and opportunity for it. Satya Pal Baliyan (P.W. 2) was the scribe of the complaint but he omitted to mention at the bottom of the same that he scribed it. His authorship came to light only at the trial. He admitted in cross-examination that the complainant was literate. In reply to the question as to why the complainant did not scribe the complaint himself, he stated that the complainant had told him that he is unable to write as there was pain in his thumb. The point was not put to the complainant but the fact remains that he did not give any explanation on oath as to why he did not scribe the complaint himself. In fact, it emerges from the totality of circumstances that not only he (Satya Pal Baliyan P.W. 2) was the scribe of the complaint but also that in fact he was more than that, he was the architect of the raid. He appeared to be the mastermind working behind the complainant. It was elicited from him that he and the complainant both were of Jat community and belonged to the same village and in fact both belonged to the same sub-sect "Baliyan". He accompanied the complainant from the village to the district head-quarter and remained with him throughout. There is nothing in his testimony to show that he had came for some other work.
37. It is obvious that in all probably the whole conduct of the complainant and his companion Satya Pal Baliyan P.W. 2 in this case was to harass the accused-appellant to teach him a lesson for having made a report against the complainant's brother for 'doubtful consumption' of electricity to his superiors and putting the machinery of the hydel department in motion against him.
38. Here it may be mentioned that Har Pal Singh complainant (P.W. 3) had earlier moved an application dated 8-10-1979 (Ext. Kha-1) supported by his affidavit (Ext. Kha-2) sworn before the notary public before the Special Judge, Muzaffar Nagar in the present case. The allegations made in the application as well as in the affidavit were that on 21-5-1997 he had come to Muzaffar Nagar Tahsil, that he came to know that an occurrence had taken place with Har Pal Singh s/o Kalu Ram of his own village whereupon he went to the Police Station Kotwali Muzaffar Nagar where the police obtained his signatures on several papers which (signatures) he had made at the instance of Har Pal Singh (the present complainant); and later on though Har Pal Singh complainant (P.W. 3) told him (about the trap) but did not tell him that he has been kept him as a witness in the occurrence; His further allegation in it were that in his presence no oc, currence took-place no raid was made and no currency note was recovered and that he did not want to give false evidence in the case. When asked in his cross-examination about this affidavit, he admitted having verified an application and an affidavit before a notary but he started claiming that this affidavit he had got verified through Sri Rajvit Advocate under coercion. He admitted that this application and this affidavit, he had got verified by the notary leaving these documents with the said lawyer. Asked further in his cross-examination, he claimed that his compulsion was that after a month of the occurrence, one Shiv Kumar had come to him and extended threats to him that he (Shiv Kumar) would not leave his son (witness's son) alive. Earlier he stated that Shiv Kumar had threatened him that if he did not give an applicant and affidavit in favour of the accused-appellant in this case that he did not take any bribe, his sole son Arvind Kumar would be abducted and made to disappear. Asked further, he stated that he did not know if the said Shiv Kumar was arrested by the police for the offence under Section 307, IPC and that he did not know if the said Shiv Kumar was prosecuted for murder. He volunteered that many cases were pending against the said Shiv "Kumar. He further stated that said Shiv Kumar was killed in an encounter by the police about an year ago (i.e. one year prior to his testimony in Court). He claimed that he had moved an application before the Superintendent of Police after the death of Shiv Kumar aforesaid, complaining that the said Shiv Kumar had given him such a threat and had got such application moved and such an affidavit given. He, however, did not disclose as to when he had moved this application nor copy of any such application has been placed on record by him or from the side of prosecution as such, and so it cannot be taken that he really ever moved such an application before the S.S.P. Muzaffarnagar. He further claimed that in the life time of Shiv Kumar, he did not give any application out of fear of the said Shiv Kumar. He stated that he had come to the Court of Sessions to give his evidence in the life time of Shiv Kumar also but due to some reason the recording of his (witness) evidence in this trial did not take place. Then he claimed that the said application (which he claimed to have moved before the Superintendent of Police), was moved about ten months before the date of his giving evidence in Court (his evidence was recorded in the Special Judge's Court on 19-4-1983 and 9-6-83). Asked further, he stated that he did not remember if he had moved any application in the life time of Shiv Kumar aforesaid before the Sessions Court (i.e. the Judge trying the case) praying that his evidence be recorded (early). He then explained that he did not move an application in the Court of Special Judge because he thought that it was enough to give application before the Superintendent of Police. On this, he was confronted with his application dated 14-9-1982 paper No. 25/- Kha on the file in which it was written that he had come several time to the Court but his evidence was not taken. He admitted in this application moved before the trial Court (pointed out to him) there is no mention of getting his affidavit given by coercion. This is significant. It goes to bely the claim now being made by him (the witness) that he gave the affidavit due to coercion practised by the said Shiv Kumar. He admitted that his aforesaid affidavit was verified before a notary; that the notary had read over the contents of the affidavit to him and that the contents of the affidavit and the application were the same as of the documents appear Nos. 29 Kha and 30 Kha in the record of the case (marked as Ext. Kha-1 and Ext. Kha-2). He could not tell if the said Shiv Kumar had been sent to jail in the year 1979. Asked further he stated that the said Shiv Kumar had threatened him in the month of September. He stated that he did not give any attention to the threat; but then again on 8th October, 1979, the said Shiv Kumar caught him in the city accompanied by three others and under the effect of this threat, he gave the affidavit . He further claimed that when Shiv Kumar met him again, he again cautioned him to live properly. He no doubt claimed that he gave the said application and affidavit wrongly due to the threat by Shiv Kumar but no implicit reliance could be placed on this claim. It is also to be kept in mind that in his examination-in-chief at the trial, he did not say a word on oath before the Special Judge that the said Shiv Kumar had coerced him into moving the said application and swearing the said affidavit in favour of accused-appellant denying his presence at the time of occurrence. It was only when his attention was drawn to the application and the affidavit, whose certified copies had already been filed by the defence at the trial that he started saying all this. So also it is difficult to place any implicit reliance on his statement of reasons of giving the said application and affidavit in favour of the accused-appellant. Further more, it cannot be believed that a person with the back ground and antecedents noted earlier wound succumb to any such coercion as claimed by him and would not even open his lips.
39. However, for contradicting the witness, it was necessary to confront him with specific contents of the said affidavit which were contrary to his testimony at the trial as required by Section 145 of the Indian Evidence Act. This has not been done. For this reason, I am leaving it out of account. However, from this, the prosecution does not stand to gain an inch. We have discussed earlier his statement on oath given at the trial and found that it is unworthy of credence on any of the material point namely, the tender of said currency note by the complainant to the accused-appellant, its acceptance by him and the recovery of the said currency note from his possession (i.e. the possession of the accused-appellant).
40. On principle, there can be no two opinions that in a trap case, if the testimony of the trap inspector could be believed, then even if other witnesses go hostile, partly or wholly, the Court might act upon the testimony of the trap inspector in a given case because the tender of gratification and its acceptance by the accused-appellant would give rise to the presumption under Section 4 of the Prevention of Corruption Act, 1947 (It has to be kept in mind always that this case is covered by the Prevention of Corruption Act, 1947 and that the subsequent Act on this' subject has no application) and then the burden would shift on the accused to rebut the presumption. However, the present is one such case in which even though no personal enmity of the trap inspector with the accused-appellant is set up still no implicit reliance can be placed on his testimony about the alleged tender of the currency note, its acceptance and the conversation that allegedly accompanied the alleged tender and the alleged acceptance and the arrest at the tea shop and the recovery of the said currency note from the accused-appellant.
41. As far as Har Pal Singh complainant (P.W. 3) is concerned as noted earlier, he had been declared hostile by the prosecution and cross-examined by the learned D.G.C. (Criminal). It is true that the evidence of a witness who is semi-hostile or hostile, cannot, as a matter of law, be treated as washed off the record altogether and considering the evidence of the witness as a whole with due care and caution, the Court might in the light of other evidence on record accepted that part of his testimony which it finds to be-creditworthy and act upon it (see Sat Paul v. Delhi Administration AIR 1976 SC 294 : 1976 Cri LJ 295) but then in a case like the present where the complainant stands squarely and totally discredited, as a matter of prudence, his evidence has to be discarded in toto. We have already seen that he (Har Pal Singh complainant of this case) on his own showing was an accomplice of the worst type who claimed to have approached the accused-appellant to do a wrongful act and his testimony has been found to be highly improbable and unacceptable and stood belied on all the material aspect, of the case. We have also already rejected the testimony of trap witness Satya Pal Baliyan fP.W.2).
42. To sum up the testimony of Har Pal Singh complainant about the initial demand of bribe from him at hydel office has been found improbable and unbelievable and his testimony, the testimony of Satya Pal (P.W. 2) and that of the trap inspector Ratan Singh (P.W. 1) about the tender and acceptance of the currency note, the conversation attending it, the arrest and the recovery of the currency note in question at the tea shop is unworthy of credence and that there is no scope for any inference except that in all probability, the arrest of the accused-appellant was made not from the tea shop but from the Kachehri road outside the Kachehri while he was going from the power house to his Lal Mandi office on cycle viz. Kachehri road as claimed by him (accused-appellant). That being so, the presumption under Section 4 of the Prevention of Corruption Act, 1947 does not arise in this case. It is settled law that the initial burden of proving that the accused accepted or obtained the amount other than legal remuneration, is upon the prosecution and that it is only when this initial burden is successfully discharged by the prosecution, that the burden of proving the defence shifts upon the accused and presumption would arise under Section 4(1) of the Act. The prosecution evidence is certainly required to be assessed beyond the realm of reasonable doubt for discharging the initial burden that lies upon the prosecution and if such evidence is not forth-' coming, the accused would be given the benefit of the same and that in that case the presumption under Section 4(1) of the Act did not arise at all. In view of the above discussion, the conviction of the accused-appellant for the offences under Section 5(l)((a)(d)) of the Prevention of Corruption Act 1947 and under Section 161, IPC cannot be sustained for a moment.
43. Before I conclude, I must place on record that the Investigating Officer has submitted the charge sheet against the accused-appellant in this case just in a mechanical manner without caring to apply his mind to the case. Except from obtaining an extract copy of the binder sheet from the hydel office, he did nothing material in this case. He did not even bother to look into the extract copy of binder sheet taken by him which was paper No. 8Ka/14 on which the defence had placed reliance. He also did not care to see the original records of the office of the hydel department. If he had looked the extract copy from the binder sheet taken by him from the office he had proceeded further and looked into the action taken on the basis of the report of doubtful consumption given by the accused-appellant as meter reader therein and learnt about it. If he had interrogated the Junior Engineer, he would have come to know about the complaint made by the accused-appellant against the consumer of this electric connection in regard to the doubtful consumption found by him at the spot and the action that followed it (which we have detailed above in this judgment earlier) and in that event, he would not be that too eager to submit the charge sheet against the accused-appellant as he had done in this case. As a matter of fact, there is nothing in his testimony to indicate that he interrogated at any stage even the consumer in whose name the electric connection in question stood.
44. For the reasons aforesaid, the appeal is allowed. The conviction of the accused-appellant Ram Dubar Yadav for the offences under Section 5(1)(a)(d) read with Sub-section (2) of the Prevention of Corruption Act, 1947 and under Section 161, IPC is set aside. He is acquitted of the said offences. He is on bail from this Court. He need not surrender. His bail bonds are cancelled and sureties are discharged. The fine amount, if paid, shall be refunded to him.
45. Let a copy of this judgment be sent to the special Judge concerned for information and compliance in the record.