# Sameer Singh v. State of U.P

- **Citation:** (2023) 9 ILRA 594
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-28
- **Case number:** Criminal Appeal No. 193 of 2020
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sameer-singh-v-state-of-u-p-50856
- **Pages:** 13

## Headnote

Law-Criminal
Procedure
Code,1973-Section 374(2) - Prevention of
Corruption Act, 1988 - Sections 27 & 13
(1) (d) r/w section 13 (2)-Challenge toConviction- the appellant was appointed
on the post of Village Development Officer
on 22.06.1999. He submits that there are
inconsistencies and variations in the
statements of the eye witnesses i.e. PW-1
and PW-2. The statement of PW-5 and
PW-7 are also inconsistent who are
husband
and
wife.
PW-7
is
the
beneficiary. He also submits that there are
also inconsistencies in the statements of
PW-1, PW-8 (IO) and PW-9. The demand
and acceptance of bribe is not proved
beyond reasonable doubt-The place of
occurrence has been made doubtful in
view of the testimony of PW-1 and PW-2there are serious inconsistencies between
9 All. Sameer Singh Vs. State of U.P.
595
the
statements
of
PW-1
and
PW-2
regarding the site of recovery
-The
evidence of PW-5 and PW-7 who are the
husband and wife is also contradictory for
proving the foundational facts i.e. the
demand
and
acceptance
of
illegal
gratification by a public servant- The
demand of illegal gratification, from the
four beneficiaries could not be said to
have been proved by the prosecution, in
view of the inconsistent statements of
PW-1
and
PW-2
and
also
in
the
inconsistent statements of PW-1, PW-8
and PW-9- The Fard baramadgi also
becomes
doubtful
in
view
the
contradictory statement between PW-1
and PW-8 and PW-9-Two out of four
beneficiaries have not deposed in the trial,
thus, foundational fact of demand of bribe
and payment of such bribe has not been
proved, neither exception which is carved
out for deposition of such witnesses to
prove the fact in the judgment of Neeraj
Dutta applies in this case and no reason
has been assigned by the prosecution for
withholding such important witnessesMore so, the second independent witness
who was part of the second trap team has
not been examined by the prosecution in
the Court as independent witnesses-He
was a very important witness to depose as
to the chain of events that occurred at the
time of the arrest- Failure to examine the
independent witness before the learned
trial court drawing adverse inference to be
taken in view of the illustration (g) to
Section 114 of the Indian Evidence Act,
coupled
with
the
fact
that
proper
procedure has not been followed by the
trap team- Hence, non-production of the
independent witnesses only gives rise to
the presumption that if they had been
produced, their evidence would have been
favourable to the appellant. Therefore,
non-production of independent witnesses
by
the
prosecution
attracts
adverse
inference against the prosecution.(Para 1
to 15)

B.
Section
114
Court
may
presume
existence of certain facts. -The Court may
presume the existence of any fact which it
thinks likely to have happened, regard
being had to the common course of
natural events, human conduct and public
and private business, in their relation to
the
facts
of
the
particular
case.
Illustrations The Court may presume

(a) 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;

(b)
That
an
accomplice
is
unworthy
of
credit,
unless
he
is
corroborated in material particulars;

(c) That a bill of exchange,
accepted or endorsed, was accepted or
endorsed for good consideration;

(d) That a thing or state of
things which has been shown to be in
existence within a period shorter than
that within which such things or state of
things usually cease to exist, is still in
existence;

(e) That judicial and official acts
have been regularly performed;

(f) That the common course of
business has been followed in particular
cases;

(g) That evidence which could be
and is not produced would, if produced, be
unfavourable to the person who withholds
it;

(h) That if a man refuses to
answer a question which he is not
compelled to answer by law, the answe

## Text

_Characters 0–39,903 of 41,312. This is a partial read: ask again with offset=39903 for what follows._

594 INDIAN LAW REPORTS ALLAHABAD SERIES
application/written
reports
admittedly
prepared by her real brother. Lack of any
whimper in Exhibit Ka-1 and tehrir dated
10.07.1995 creates reasonable doubts. For
the sake of arguments, if it is presumed that
whatever has been said in the FIR or in the
evidence given by PW1 is reasonably true,
even then this will not amount to an act of
instigation to commit suicide. There is not
much substance in the rhetoric of PW1 that
accused persons used to exhort deceased's
husband to marry again. The evidence on
such theory is quite inadequate to brand it
as truthful. Moreover there is no evidence
to show that just before the deceased took
this extreme step of taking of her life, there
was some immediate provocation from the
side of the accused person which propelled
her to commit suicide. In my firm opinion,
the prosecution has failed to prove any
proximity between the act of suicide with
the act or conduct or treatment meted out to
the deceased by the accused. In my opinion
the prosecution has failed to prove that in
fact she was maltreated or harassed to such
an extent which shall essentially fall within
the term of 'instigation' to commit suicide.

25. The judgment and sentence order
dated 08.02.2000 passed by the VIIth
Additional Sessions Judge, Hardoi in ST
No. 652 of 1995, is hereby set aside and the
accused persons are acquitted.

26. Accordingly, this criminal appeal
is allowed.

27. Let copy of the judgment be
immediately sent to the court concerned for
necessary action.

28. The appellant shall before the
court concerned, within a period of next
four weeks, execute bail bonds with two
sureties and personal bond of the same
amount, to the satisfaction of the court
concerned, to ensure his appearance before
the higher court as and when such court
issues notice in respect of this case. Such
bail bonds shall be in force for a period of
six months from the date of execution
thereof.
----------
(2023) 9 ILRA 594
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.08.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No. 193 of 2020

Sameer Singh ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Purnendu Chakravarty, Abhineet Jaiswal,
Anuj Tandon, Gaurav Mehrotra

Counsel for the Opposite Party:
G.A.

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section 374(2) - Prevention of
Corruption Act, 1988 - Sections 27 & 13
(1) (d) r/w section 13 (2)-Challenge toConviction- the appellant was appointed
on the post of Village Development Officer
on 22.06.1999. He submits that there are
inconsistencies and variations in the
statements of the eye witnesses i.e. PW-1
and PW-2. The statement of PW-5 and
PW-7 are also inconsistent who are
husband
and
wife.
PW-7
is
the
beneficiary. He also submits that there are
also inconsistencies in the statements of
PW-1, PW-8 (IO) and PW-9. The demand
and acceptance of bribe is not proved
beyond reasonable doubt-The place of
occurrence has been made doubtful in
view of the testimony of PW-1 and PW-2there are serious inconsistencies between
9 All. Sameer Singh Vs. State of U.P.
595
the
statements
of
PW-1
and
PW-2
regarding the site of recovery
-The
evidence of PW-5 and PW-7 who are the
husband and wife is also contradictory for
proving the foundational facts i.e. the
demand
and
acceptance
of
illegal
gratification by a public servant- The
demand of illegal gratification, from the
four beneficiaries could not be said to
have been proved by the prosecution, in
view of the inconsistent statements of
PW-1
and
PW-2
and
also
in
the
inconsistent statements of PW-1, PW-8
and PW-9- The Fard baramadgi also
becomes
doubtful
in
view
the
contradictory statement between PW-1
and PW-8 and PW-9-Two out of four
beneficiaries have not deposed in the trial,
thus, foundational fact of demand of bribe
and payment of such bribe has not been
proved, neither exception which is carved
out for deposition of such witnesses to
prove the fact in the judgment of Neeraj
Dutta applies in this case and no reason
has been assigned by the prosecution for
withholding such important witnessesMore so, the second independent witness
who was part of the second trap team has
not been examined by the prosecution in
the Court as independent witnesses-He
was a very important witness to depose as
to the chain of events that occurred at the
time of the arrest- Failure to examine the
independent witness before the learned
trial court drawing adverse inference to be
taken in view of the illustration (g) to
Section 114 of the Indian Evidence Act,
coupled
with
the
fact
that
proper
procedure has not been followed by the
trap team- Hence, non-production of the
independent witnesses only gives rise to
the presumption that if they had been
produced, their evidence would have been
favourable to the appellant. Therefore,
non-production of independent witnesses
by
the
prosecution
attracts
adverse
inference against the prosecution.(Para 1
to 15)

B.
Section
114
Court
may
presume
existence of certain facts. -The Court may
presume the existence of any fact which it
thinks likely to have happened, regard
being had to the common course of
natural events, human conduct and public
and private business, in their relation to
the
facts
of
the
particular
case.
Illustrations The Court may presume

(a) 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;

(b)
That
an
accomplice
is
unworthy
of
credit,
unless
he
is
corroborated in material particulars;

(c) That a bill of exchange,
accepted or endorsed, was accepted or
endorsed for good consideration;

(d) That a thing or state of
things which has been shown to be in
existence within a period shorter than
that within which such things or state of
things usually cease to exist, is still in
existence;

(e) That judicial and official acts
have been regularly performed;

(f) That the common course of
business has been followed in particular
cases;

(g) That evidence which could be
and is not produced would, if produced, be
unfavourable to the person who withholds
it;

(h) That if a man refuses to
answer a question which he is not
compelled to answer by law, the answer,
if given, would be unfavourable to him;

(i)
That
when
a
document
creating an obligation is in the hands of
the obligor, the obligation has been
discharged". (Para 12, 13)

The appeal is allowed. (E-6)

List of Cases cited:
596 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Tomaso Bruno & Anr Vs St. of U.P. (2015) 7
SCC 178

2. Krishnegowda & ors. Vs St. of Karn. by
Arkalgud Police (2017) 13 SCC 98

3. Raveen Kumar Vs St. of H.P. (2021) 12 SCC
557

4. Ramesh Bhavan Rathod Vs Vishanbhai
Hirabhai Makwana (Koli) & anr. (2021) 6 SCC
230

5. Neeraj Dutta Vs St. (Govt. of NCT of Delhi)
(2023) 4 SCC 731

6. N. Sunkanna Vs St. of A.P. (2016) 1 SCC 713.

7. Devi Lal Vs St. of Raj. (2019) 19 SCC 447.

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. The present criminal appeal has
been filed under section 374 (2) of
Criminal Procedure Code read with section
27 of Prevention of Corruption Act, 1988
against the judgment dated 23.01.2020 and
order of conviction dated 24.01.2020
passed in criminal case no. 58/2003 (The
State of UP Vs. Sameer Singh) passed by
Special Judge, Anti Corruption, Court no.
5, Lucknow convicting the appellant for
three years rigorous imprisonment and a
fine of Rs. 2,000/- imposed under section 7
of Prevention of Corruption Act, 1988 and
four years rigorous imprisonment and a
fine of Rs. 3,000/- under section 13 (1) (d)
r/w section 13 (2) PC Act, 1988, with
default provision in each of the offences.

2. Heard Shri Gaurav Mehrotra,
learned counsel for the appellant as well as
Shri Jayant Singh Tomar, learned A.G.A.
for the State.

3. Prosecution case is that a complaint
was made by the complainant Kishan
against appellant Sameer Singh that for the
purpose of constructing house under Indira
Awas Yojna, out of the Government
approved grant of Rs. 10,000/- each to the
complainant, wife of Mahadev of the
village, Rs. 20,000/- each to the wife of
Teji and wife of Avatar, an amount of Rs.
3000/- cheque is due which is to be given
to all the four beneficiaries from block
Mohanlal Ganj through Secretary Sameer
Singh and for this purpose, on 13.03.2002,
the complainant, Avataar and Mahadev
went to the photostat shop of Village
Pradhan Bachha Babu at Mohanlal Ganj
where Sameer Singh, Secretary Gram
Pradhan came around 11'O clock and told
them that if they want the remaining
cheque of Rs. 3000/- each, then by noon of
15.03.2002, they will have to bring Rs.
200/- each and collectively pay him as a
bribe, thereafter, he will provide them the
cheques. He further said that he has been
transferred and if they have to take the
remaining amount, then come with Rs.
800/- in the office; otherwise he does not
know and they will not be given cheques.
Thus, the secretary deliberately with a view
to obtain bribe is delaying the cheques of
the complainant and other beneficiaries.

It is further alleged that he and
his companions (other beneficiaries) do not
want to give bribe to Sameer Singh, but
want to get him caught red handed. The
complainant asked each one of them to
bring Rs. 200/-and collect Rs. 800/- along
with them. A complaint to that effect was
given
by
the
complainant
to
the
Superintendent of Police, UP Vigilance
Department, Lucknow, Sector Lucknow,
consequent to which, Superintendent of
Police, Vigilance, Lucknow recommended
for trap action and thereafter a trap team
was
constituted.
Thereafter,
the
complainant was sent to block Mohanlal
9 All. Sameer Singh Vs. State of U.P.
597
Ganj where after seeing the complainant,
the Secretary Sameer Singh slowed his
Hero Puch vehicle and stopped it after
entering into the gate. He asked the
complainant whether he has brought the
agreed amount as told by him, whereupon
he said that as told by him, he has brought
Rs. 800/- from all the beneficiaries. While
sitting on Hero Puch, he demanded the
amount, upon this, the complainant Shri
Kishan took money from the left pocket of
his shirt which was taken by him by his left
hand and started counting by both hands.
After seeing, listening and hearing the
conversation, giving and taking bribe, the
trap team arrested accused Sameer Singh
with Rs. 800/-.

The recovery memo was prepared
on the basis of recovered notes from the
arrested accused and an FIR was registered
by the constable moharrir at fourteen hours.
Entry in the general diary was also made at
rapat no. 13 at the same time i.e. 1400
hours. Gulam Akbar was appointed as
investigating
officer
who
took
the
statements of the prosecution witnesses and
the complainant, and prepared the site plan
and after finding prima facie offence
against
the
accused/appellant
Sameer
Singh, he filed charge sheet against the
appellant under Section 7 read with Section
3(1)(d) and 13(2) of Prevention of
Corruption Act, 1988.

4. The prosecution in support of its
case has produced the following witnesses:-

(i)
PW-
Ramker
Singh
(complainant).

(ii) PW-2 Krishn (Informant)

(iii)
PW-3
Piyush
Mohan
Srivastava (BDO)

(iv) PW-4 Akhilesh Kumar Singh

(v) PW-5 Mahadev

(vi) PW-6 SI Ajendra Kumar

(vii) PW-7 Smt. Sundara (wife of
Mahadev)

(viii)
PW-8
Gulam
Akbar,
Deputy Superintendent of Police(retired),
I.O.

(ix) PW-9 Om Prakash Srivastava
(independent witness).

The FSL report dated 19.04.2002
was also produced by the prosecution.

PW-1 is Ramker Singh, Deputy
Superintendent of Police, UP Vigilance
Department who constituted the trap team
on the application of PW-2 Kishan. He
proved supurdagi nama as exhibit Ka-1 and
Fard Baramadgi Rishwati Note and arrest
of the accused as exhibit Ka-2. The dhowan
of the hand of the accused Sameer Singh
which was taken on the spot found proved
by him as exhibit 1 to 6. He also proved
exhibit 7 to 15 which is an envelope in
which the case details, date was mentioned
and eight notes of Rs. 100/-.

PW-2 complainant Kishan has
proved his thumb impression which is on
exhibit Ka-1 and Ka-2 which is fard
baramadagi and verified it.

PW-3 Piyush Mohan Srivastava
was the Block Development Officer from
August 2001 to June 2002. He stated the
procedure of approving the beneficiaries
for Indira Awas Yojna and disbursement of
the amount into their account. He proved
register A15/60 and also photocopy of the
register dated 19.03.2002 as exhibit Ka-4.
He has also proved exhibit Ka-5 Ka-6. He
further proved the application for second
installment as Ex. Ka-7 and Ka-8 and also
proved Ex. Ka-9 to Ka-17 which is the
application given by PW-2 Kishan and the
598 INDIAN LAW REPORTS ALLAHABAD SERIES
details of the payment which was signed by
him along with others.

PW-4 Akhilesh Kumar Singh was
posted as District Development Officer,
Lucknow on 09.10.2003. He has given
sanction for prosecution and proved it as
Ex. Ka-18.

PW-5
is
the
husband
of
beneficiary
Smt.
Sundara
and
has
supported the prosecution case.

PW-6 SI Ajendra Kumar has
proved chik report No. 35/02 crime No.
81/2002 under Section 7/13(1)(d) read with
Section 13(2) of Prevention of Corruption
Act and confirmed that it is in his writing
and signature, and proved it as Ex.-K-19.
He also proved Ex.Ka-20 which is
recording in general diary as rapat No. 30
at 1400 hours prepared by him and has said
that it is in his writing and signature.

PW-7
Smt.
Sundara
is
the
beneficiary
and
has
supported
the
prosecution case.

PW-8
Gulam
Akbar
is
the
investigating officer who has proved
exhibit Ka-5. He prepared the site plan
after inspection and proved it as Ex.Ka-21.
He also proved the report of forensic
science laboratory as report Nos. 1 to 6 in
which Sodium and phenolphthalein was
found present in the notes. Report has been
proved as Ex. Ka-22 by him. He has proved
the charge sheet dated 13.10.2003 against
the appellant as Ex. Ka-23. He was posted
in Vigilance Department of Uttar Pradesh.
He has verified his signature on Ex.-Ka-2
and Ex. Ka-3.

PW-9 Om Prakash Shrivatava is
the independent witness. He confirmed his
signature
on
Ex.
Ka-2.
He
further
confirmed the action based on Ex.Ka-3, his
presence at the spot and his signatures upon
Ex.Ka-3.

5. Statement of the accused under
Section 313 Cr.P.C. was recorded, in which
he has denied the prosecution case. He has
taken the defence that the complainant,
beneficiaries' husband and Pradhan Anil
Tripathi were annoyed with him because he
has refused to do their illegal acts. He
pleaded innocence. He stated that he has
never demanded any amount from any
person of the village, neither demanded
bribe
on
15.03.2002.
Nothing
was
recovered from him and his hands were not
washed on the spot and the entire incident
is false.

6. Learned counsel for the appellant
submits that the appellant was appointed on
the post of Village Development Officer on
22.06.1999. He submits that there are
inconsistencies
and variations in the
statements of the eye witnesses i.e. PW-1
and PW-2. The statement of PW-5 and
PW-7 are also inconsistent who are
husband and wife. PW-7 is the beneficiary.
He also submits that there are also
inconsistencies in the statements of PW-1,
PW-8 (IO) and PW-9. The demand and
acceptance of bribe is not proved beyond
reasonable doubt. The place of occurrence
has been made doubtful in view of the
testimony of PW-1 and PW-2.

He
further
submits
that
conviction of the appellant is based on the
basis of the averments made in the bail
application
of
the
appellant-convict.
Demand of bribe and payment of the said
bribe as alleged has not been proved as two
out of four beneficiaries were not deposed
in the trial. He submits that bribe was
9 All. Sameer Singh Vs. State of U.P.
599
demanded by the appellant according to the
prosecution
case
from
all
the
four
beneficiaries. It is, thus, submitted that
foundational facts in respect of demand and
payment of bribe could not be proved by
the prosecution. The independent witness,
namely Babu Ram Pal who was taken with
the trap team has not been examined, rather
has been withheld. Hence, it is submitted
that
adverse
inference
against
the
prosecution under Section 114 of Indian
Evidence Act illustration (g), should be
drawn.

It is submitted on behalf of the
appellant that findings recorded in the
judgment are based on conjectures and
surmises. The proper procedure of trap has
not been followed by the vigilance team.
Lastly, it is submitted that as per the
deposition of PW-9 who is an independent
witness of the recovery memo, he has not
signed upon it. In support of his contention,
Learned counsel has relied on the following
judgments:-

(i) Tomaso Bruno and Another
Vs. State of Uttar Pradesh, (2015) 7 SCC
178 (emphasis is on para 39)

(ii) Krishnegowda and others Vs.
State of Karnataka by Arkalgud Police,
(2017) 13 SCC 98.

(iii) Raveen Kumar Vs. State of
Himachal Pradesh, (2021) 12 SCC 557.

(iv) Ramesh Bhavan Rathod Vs.
Vishanbhai Hirabhai Makwana (Koli) and
another, (2021) 6 SCC 230. (emphasis is on
para 13).

(v)
Neeraj
Dutta
Vs.
State
(Government of NCT of Delhi), (2023) 4
SCC 731.

(vi) N. Sunkanna Vs. State of
Andhra Pradesh, (2016) 1 SCC 713.

(vii) Devi Lal Vs. State of
Rajasthan, (2019) 19 SCC 447.

7. Learned A.G.A., on the other hand,
has opposed the appeal submitting that the
demand and acceptance of the bribe is duly
proved by the prosecution. The appellant
has been caught red handed by the trap
team. There is eye witness account. He also
submits
that
minor
variations
and
infirmities in the investigation will not
vitiate the trial. Learned A.G.A. placed
reliance on the following judgments:-

(i) Neeraj Dutta Vs. State (Government of
NCT of Delhi), reported in (2023) 4 SCC
731.

(ii)
State
of
Gujarat
v.
Navinbhai
Chandrakant Joshi, (2018) 9 SCC 242

8. Having heard learned counsel for
the parties, perusal of the record and also in
order to re-appreciate the prosecution
evidence it would be appropriate to address
the following issues for adjudication of the
case:-

(Place of Occurrence)

9. The statements of PW-1 Deputy
Superintendent
of
Police
and
PW-2
complainant Kishan are contrary so far as
the site of recovery/place of occurrence is
concerned.

PW-1, being the eye witness has
deposed that the accused Sameer Singh
came on motorcycle and after seeing the
complainant Kishan, he slowed down his
motorcycle and asked him whether he
brought the money, whereupon, the Kishan
600 INDIAN LAW REPORTS ALLAHABAD SERIES
(informant) from the right pocket of his
shirt, gave Rs. 800/- and said that please
give his check today. The accused was
sitting on the motorcycle and was talking to
the complainant when the notes in the hand
of the accused were recovered. After the
incident, he did not go inside the block
office.

PW-2, who is the complainant
and also the eye witness stated that the
accused Sameer Singh went inside the
block and after demand of the bribe, he
gave the bribe. He further stated that after
meeting the accused outside room, he went
with Sameer Singh inside the block office.
When he and the accused Sameer Singh
went inside the room, then no other person
came. The Trap team caught Sameer Singh
inside the room. Thus, the exact place of
occurrence/site of recovery of the alleged
offence as stated by PW-1 has been totally
contradicted by PW-2. This is a major
contradiction regarding the place of the
occurrence/recovery. The prosecution has
not been able to prove the place of
occurrence/recovery. This part of the
testimony of the alleged eye witnesses i.e.
PW-1
and
PW-2
does
not
inspire
confidence.

Inconsistencies
between
statements of prosecution witnesses.

10. PW-5 Mahadev, who is the
husband of one of the beneficiaries namely
Smt Sundara (PW-7), in statement has
deposed that the appellant/convict had
demanded bribe of Rs. 200/- for payment
of the last installment of grant whereas
Sundara PW-7 in her statement had
deposed that appellant/convict demanded
bribe of Rs. 200/- from PW-2 Kishan
Gupta (the other beneficiary). PW-7 despite
being the wife of PW-5 has not referred to
any demand made from her husband by the
appellant as deposed by PW-5. The
inconsistencies in the statements of PW-5
and PW-7 have been ignored by the learned
trial court while passing the judgment
impugned.

There are also inconsistencies in
the statements of PW-1, PW-8 and PW-9.
As per the statement of PW-1, the whole
trap team was divided into three groups,
where both PW-8 and PW-9 stated that
PW-9 Om Prakash who is the independent
witness, was part of the first group of trap
team along with PW-1 and other persons.

PW-9 who is the independent
witness does not corroborate the version
which has been presented by PW-1. PW-9
has stated that he did not see any exchange
of notes between PW-2 and the appellant,
nor had he heard any conversation between
them. PW-9 further stated that he cannot
testify that the hands of PW-2, PW-1 and
appellant were washed at the place of
arrest.

Likewise, the inconsistency is
also in the statement of PW-8 and PW-9.
PW-8 stated that independent witnesses
were nearby at the time of trap and were
seeing and listening to the proceedings,
PW-9, however, has refused that he has
heard or saw any exchange between the
appellant and PW-2.

PW-1
in
his
statement
has
deposed that recovery memo was made at
the place of arrest and signatures of all the
witnesses were taken on the spot. The
recovery memo also notes that the
signatures of the witnesses are being taken
on the fard, however, PW-9 in his cross
examination has deposed that he signed the
fard baramadgi at the station and not at the
9 All. Sameer Singh Vs. State of U.P.
601
place of arrest. The contradiction between
the statement of the other prosecution
witness vis-a-vis between PW-9 who is the
independent witness regarding recovery,
makes the recovery doubtful. The argument
of learned counsel for the appellant that
findings
recorded
in
the
impugned
judgment and order dated 23.01.2020 are
on the basis of the averments made in the
bail application of the convict seems to
have force.

(Demand of bribe and payment of
such bribe).

11. PW-2 in his examination-in-chief
has deposed that appellant has demanded
bribe of Rs. 200/- from four beneficiaries,
Kishan (informant), wife of Mahadev, wife
of Teji and wife of Avatar who were to
receive the grant of Rs. 10,000/-, Rs.
10,000/-, Rs. 20,000/- and Rs. 20,000/-
respectively. The same has been deposed
by PW 5 Mahadev as well, however, only
one beneficiary i.e. Sundara wife of
Mahadev has deposed that the amount of
Rs 200/- was given to the appellant at the
behest of Kishan (informant).

In so far as the demand of bribe
of Rs. 200/- from the wife of Teji and the
wife of Avatar is concerned, both persons
have not been produced as witnesses by the
prosecution in the trial. No reason has been
assigned by the prosecution in the entire
trial
for
withholding
such
important
witnesses.

Supreme Court in the case of
Neeraj Dutta (supra) while deciding the
reference has held that foundational facts in
respect of demand and payment of bribe are
required to be proved by the prosecution.
Three exceptions have been carved out for
deposition of witnesses to prove the fact,
that (a) in the event of death of the
witnesses (b) in the event of witnesses
turning hostile and (c) on account of
unavailability of the witness. None of these
grounds have been taken by the prosecution
for
withholding
the
two
important
witnesses, neither any reason has been
assigned nor any finding has been recorded
by the learned trial court as to for what
reasons these two important prosecution
witnesses have been withheld.

The finding of the trial court that
multiple witnesses are not required to prove
same fact is faulted as there were 4
different foundational facts related to four
transactions of payment of grant of Rs
10000/-, 10,000/-, 20,000/- and 20,000/- to
four different beneficiaries. As per the
prosecution case, a demand was made from
four different beneficiaries by the appellant
of Rs. 200/- each which was allegedly paid
as a bribe to the appellant. Thus, the four
transactions of payment of the grant of
beneficiaries and alleged demand of Rs.
200/- each and also alleged payment of
bribe constitute four different acts and not
one
which
was
required
to
be
independently
proved
from
four
beneficiaries from whom the alleged
payment of bribe was made.

The Supreme Court in the case of
Neeraj Dutta's case (supra), has held as
under:-

88. What
emerges
from
the
aforesaid discussion is summarised 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
602 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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 Sections 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
Sections 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 bribegiver and in turn there is a payment made
which is received by the public servant,
would be an offence of obtainment under
Sections 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
9 All. Sameer Singh Vs. State of U.P.
603
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 presumption in law. Of course, the
said presumption is also subject to rebuttal.
Section 20 does not apply to Sections
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.

The finding recorded in the
impugned judgment and order dated
23.01.2020 is on conjectures and surmises.
In para 30 at internal page 11 of the
impugned judgment, the learned special
judge has given a finding that in Indian
administrative arrangements, it is very
unnatural, some work which is pending for
so many days is done in one day at every
officer level. Another finding given by the
learned Special Judge is that the report
prepared by the appellant appears to be
different from the ink used to sanction
report in para 30 of internal page no. 12 of
the judgment. Again, this finding has been
given without seeking any expert opinion
regarding the ink.

Upon arguments advanced by the
defence that amount of Rs. 200/- even in
the year 2002 was a meagre amount for
being demanded as a bribe and is thus,
unbelievable was rejected by the learned
trial court while recording a finding that
such amount would constitute about six
percent of the amount of Rs. 3000/- i.e. last
the installment. The figure of six percent
appears to have been arrived on erroneous
presumption taking into account the last
installment and ignoring the total amount
of Rs. 10,000/-, Rs. 20,000/-. Thus, an
impression is sought to be given that huge
amount was demanded as a bribe on
erroneous presumption. This again is only
on the basis of suspicion and this finding
can only be said to be on the basis of
conjectures and surmises as there was no
material before the learned trial court to
record such findings.

The Supreme Court in Devi Lal's
case (supra), held as under:-

"18. On an analysis of the overall
fact situation in the instant case, and
considering the chain of circumstantial
evidence relied upon by the prosecution
and noticed by the High Court in the
impugned judgment, to prove the charge is
visibly incomplete and incoherent to
permit conviction of the appellants on the
basis thereof without any trace of doubt.
Though the materials on record hold
some suspicion towards them, but the
prosecution has failed to elevate its case
from the realm of "may be true" to the
plane
of
"must
be
true"
as
is
indispensably
required
in
law
for
conviction on a criminal charge. It is trite
to state that in a criminal trial, suspicion,
howsoever
grave,
cannot
substitute
proof."
604 INDIAN LAW REPORTS ALLAHABAD SERIES

Failure to follow the procedure by the
trap team

12. PW-1 in his cross-examination
has stated that while setting up the trap
team, powder was applied to the notes
brought by the complainant PW-2, then the
hands of PW-1 was washed and dhowan
was collected in a bottle labeled as bottle 1.
After notes were handed to the complainant
PW-2, his hands were also washed and
dhowan was stored in a bottle labeled as
bottle No. 2. The shirt of the complainant
PW-2 was also washed as the money was
kept in the left shirt pocket and dhowan of
the shirt is labeled as bottle No. 3. Dhowan
of the complainant was allegedly stored in
a bottle labelled as bottle No. 4. The hands
of the appellant/convict were allegedly
washed at the place of the arrest and a
liquid turned pink, a bottle with dhowan of
the hands of the appellant/convict was
labeled as bottle No. 5. The hands of PW-1
were allegedly again washed at the place of
arrest and the dhowan was stored in a bottle
labeled as bottle No. 6. However, when
these bottles were produced at the time of
cross examination, bottle nos. 4, 5 and 6
which contained the dhowan collected at
the time of arrest were empty. The
remaining bottle containing the dhowan are
intact and only the bottles which contained
the dhowan allegedly collected at the place
of arrest are empty. The empty bottles of
the dhowan which are related to the arrest
of the appellant raises suspicion on the
truthfulness of the prosecution case. There
are no signatures of the appellant on the
bottles. The currency notes which were
collected and brought by PW-2 on which
powder was applied and were handed over
to the appellant/convict were allegedly
stored in the envelope by PW-1 at the time
of arrest. However, as per the deposition of
PW-1 himself, the envelope was not sealed
nor has the signature of the appellant been
taken on the same. This again makes the
prosecution case, so far as the currency
notes
recovered
from
the
appellant
doubtful.

The
phenolphthalein
powder
which was allegedly applied to the notes
has also not been stored in a sealed envelop
with
the
signature
of
the
appellant
according to the procedure, coupled with
the statement of PW-1 where he stated that
fard recovery was not signed at the place of
arrest, rather PW-9 stated that he signed it
at police station which again makes the
recovery doubtful.

It is significant to note that three
trap teams were constituted by PW-1 and
independent witness Babu Ram Pal who
was part of the second trap team has also
been withheld and no reason has been
assigned by the prosecution for withholding
the said important witness.

The prosecution in this case has
withheld two beneficiaries and Babu Ram
Pal, the independent witness of the second
trap team. It has not produced Gram
Pradhan on whose Photostat shop, the bribe
was demanded. It is not the case of the
prosecution that any of these witnesses
have turned hostile, or died or are
unavailable. No reason has been assigned
by the prosecution for withholding such
important witnesses. Non-production of the
independent witness has to be evaluated in
the Court under Section 114 of Evidence
Act which provides as under:-

"114
Court
may
presume
existence of certain facts. -The Court may
presume the existence of any fact which it
thinks likely to have happened, regard
being had to the common course of natural
9 All. Sameer Singh Vs. State of U.P.
605
events, human conduct and public and
private business, in their relation to the
facts of the particular case. Illustrations
The Court may presume

(a) 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;

(b) That
an
accomplice
is
unworthy
of
credit,
unless
he
is
corroborated in material particulars;

(c) That a bill of exchange,
accepted or endorsed, was accepted or
endorsed for good consideration;

(d) That a thing or state of things
which has been shown to be in existence
within a period shorter than that within
which such things or state of things usually
cease to exist, is still in existence;

(e) That judicial and official acts
have been regularly performed;

(f) That the common course of
business has been followed in particular
cases;

(g) That evidence which could be
and is not produced would, if produced, be
unfavourable to the person who withholds
it;

(h) That if a man refuses to
answer a question which he is not
compelled to answer by law, the answer, if
given, would be unfavourable to him;

(i) That when a document creating an
obligation is in the hands of the obligor, the
obligation has been discharged".

13. Hence, non-production of the
independent witnesses only gives rise to the
presumption
that
if
they
had
been
produced, their evidence would have been
favourable to the appellant. Therefore, nonproduction of independent witnesses by the
prosecution
attracts
adverse
inference
against the prosecution.

14. Thus, from the discussion made
hereinabove, it is evident that there are
serious
inconsistencies
between
the
statements of PW-1 and PW-2 regarding
the site of recovery or the site of
occurrence. The evidence of PW-5 and
PW-7 who are the husband and wife is also
contradictory for proving the foundational
facts i.e. the demand and acceptance of
illegal gratification by a public servant. The
demand of illegal gratification, from the
four beneficiaries could not be said to have
been proved by the prosecution, in view of
the inconsistent statements of PW-1 and
PW-2
and
also
in
the
inconsistent
statements of PW-1, PW-8 and PW-9. The
Fard baramadgi also becomes doubtful in
view the contradictory statement between
PW-1 and PW-8 and PW-9. Two out of
four beneficiaries have not deposed in the
trial, thus, foundational fact of demand of
bribe and payment of such bribe has not
been proved, neither exception which is
carved out for deposition of such witnesses
to prove the fact in the judgment of Neeraj
Dutta (supra) applies in this case and no
reason
has
been
assigned
by
the
prosecution for withholding such important
witnesses.

Babu Ram Pal is the second
independent witness. He was part of the
second trap team, however, he has not been
examined by the prosecution in the Court
as independent witnesses. He was a very
important witness to depose as to the chain
606 INDIAN LAW REPORTS ALLAHABAD SERIES
of events that occurred at the time of the
arrest. Failure to examine Babu Ram Pal
before the learned trial court drawing
adverse inference to be taken in view of the
illustration (g) to Section 114 of the Indian
Evidence Act, coupled with the fact that
proper procedure has not been followed by
the trap team.

The site of the recovery i.e. place
of occurrence is disputed in view of the
testimony of the witnesses i.e. PW-1 and
PW-2. Demand or acceptance of bribe has
not been proved by the prosecution and the
contradictory statements of the prosecution
witnesses particularly PW-1, PW-8 and
PW-9 make the recovery doubtful. Thus, I
am not inclined to uphold the judgment
under challenge.

15. The appeal is allowed. The
impugned judgment and order dated
23.01.2020 and order of conviction dated
24.01.2020 passed in criminal case no.
58/2003 (The State of UP Vs. Sameer
Singh) passed by Special Judge, Anti
Corruption, Court no. 5, Lucknow is set
aside. The appellant Sameer Singh is
acquitted of the offences punishable under
Section 7, 13(d) read with Section 13(2) of
the
Prevention
of
Corruption
Act.
Appellant is on bail. His bail bonds are
cancelled and sureties discharged.

Let a copy of this judgment be
sent to the District Court concerned along
with the lower court record.
----------
(2023) 9 ILRA 606
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.08.2023

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 234 of 2023

Chhotai & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Sati Shanker Tripathi, Sri A.K. Mishra.
Sri Mohd. Haider

Counsel for the Opposite Party:
G.A.