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CASE NO.: Appeal (crl.)  1186 of 1999

PETITIONER: Ganga Kumar Srivastava                      

RESPONDENT: The State of Bihar                                

DATE OF JUDGMENT: 20/07/2005

BENCH: B.N.Agrawal & Tarun Chatterjee

JUDGMENT: JUDGMENT

TARUN CHATTERJEE, J.

        This appeal is directed against an order of  conviction and  sentence recorded against the appellant under section 161 of the  Indian Penal Code (in short "IPC") and section 5(2) of the Prevention  of Corruption Act ( in short "the Act" ).   The appellant was tried by  the Special Judge (Vigilance) North Bihar,  Patna.   For each of the  two offences as indicated above for which the appellant was  convicted, he was sentenced to undergo imprisonment for one year  which will run concurrently.   This conviction of the appellant was  maintained by the High Court in appeal.

       The only question that arises for our consideration in this appeal  is whether on the evidence and materials on record, the conviction and  sentence recorded against the appellant are justified or they require to  be set aside?

       Briefly stated, the facts of the case giving rise to this appeal  before this Court may be enumerated in the following manner:

       On 25th of June, 1985, Harendra Kumar Singh, the complainant  (PW6) filed an application (Exhibit 8) alleging that the appellant who  was, at the material point of time, posted as an Assistant Electrical  Engineer, Electric Supply Sub-division No.3, Patna in the State of  Bihar, demanded  bribe of Rs.500/- for giving electric supply line for  5 H.P. motor for his agricultural work, and he had, under pressure,  given Rs.100/- on 11.06.1985 to the appellant.  The Assistant Sub- Inspector of Police, Mundrika Choudhary (PW5) was directed on 25th   of June, 1985 to verify the information, and according to the verifier,  the informant again paid Rs.100/- as bribe to the appellant.  Thereafter  the accused demanded the balance amount on 28.06.1985 in the  morning and thus, the appellant by demanding bribe for giving  electric supply to the complainant, had committed an offence under  section 161 of the IPC and also under section 5(2) of the Act.  The  further prosecution case was that on 28th of June, 1985 in the morning  the informant (PW6) met the raiding party near the inspection  bunglow at Sitamarhi where the informant produced Rs.150/- meant  for giving as bribe (Rs.100/- note and another Rs.50/- note) and a  memorandam was thereafter prepared.  It was the case of the  prosecution further that PW6 alongwith the watcher PW5 and others  of the raiding party proceeded towards the residence of the appellant  and the raiding party stayed away and the watcher and the informant  went to the residence of the appellant with instruction to give signal  on payment of bribe on demand by the appellant.  The informant and  the watcher on reaching the residence of the appellant enquired about  the appellant from his father and were informed that the appellant was

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asleep, whereupon they sat in the outer room, and the father of the  appellant went inside the house and called the appellant.  And  thereafter, the appellant came and sat in the room.  The money  demanded (Rs.150/-) was paid to the appellant there, who kept the  same in the pocket of the flying shirt and then the watcher, in the  meantime, went out and signaled the raiding party whereupon the  raiding party caught hold of the appellant and recovered the bribed  money in presence of two independent witnesses, namely, Kaushal  Kishore Singh (PW2) and Ram Dayal Singh (PW12), and search and  seizure list (Exhibit 3) was prepared over which the signature of the  appellant (Exhibit 2) was taken.   

       The defence case of the appellant was inter alia that because of  the filing of a criminal case against the informant on 11.4.1985 the  false case was lodged.  It was the case of the appellant that the electric  connection was already given to the informant on 22nd  of June, 1985  and therefore there could not have been any occasion for demand and  acceptance of any bribe on 25.6.1985 and 28.6.1985 for supply of  electric connection to the informant.  The further defence of the  appellant was that the amount was planted in the flying shirt of the  appellant and the prosecution case regarding the demand and  acceptance of the bribe was wholly false.  Accordingly, the appellant  prayed for dismissal of the case.         After the Bihar State Electricity Board accorded sanction  for  prosecution of the appellant under section 6(1)(c) of the Act and after  both the parties adduced evidence in respect of their respective cases  the Special Judge (Vigilance), North Bihar, Patna by his judgment  convicted the appellant under section 161 of the IPC and under  section 5(2) of the Act and sentenced him to undergo rigorous  imprisonment for one year each under each Act while the sentences  were directed to run concurrently.   

       Feeling aggrieved by this judgment of the Special Judge  (Vigilance), North Bihar, Patna, the appellant preferred an appeal to  the High Court of Patna which was also dismissed against which the  present appeal has been preferred in this Court by the accused  appellant.

       It is now, therefore, an admitted fact that concurrent findings of  fact for conviction of the appellant under section 161 of the IPC read  with section 5(2) of the Act were arrived at by the High Court as well  as by the Special Judge (Vigilance), North Bihar, Patna.  Since this  appeal relates to interference by this Court under Article 136 of the  Constitution against the concurrent findings of fact, it would be  appropriate for us to consider the scope of Article 136 of the  Constitution in such a situation before going to the merits of the  appeal.  It is now well settled that power under Article 136 of the  Constitution of this Court is exerciseable even in cases of concurrent  findings of fact and such powers are very wide but in criminal appeals  this Court does not interfere with the concurrent findings of the fact  save in exceptional circumstances.   This view was expressed by this  Court way back in the year 1958 in the case of State of Madras Vs.  Vaidyanatha Iyer, AIR 1958 SC 61.  In this decision this Court held  that in Article 136 the use of the words "Supreme Court may in its  discretion grant special leave to appeal from any judgment, decree,  determination, sentence or order in any cause or matter passed or  made by any court or tribunal in the territory of India" shows that in  criminal matters distinction can be made between a judgment of  conviction or acquittal.  This Court further observed  that this Court  will not readily interfere with the findings of fact given by the High  Court and the court of first instance but if the High Court acts  perversely or otherwise improperly, interference may be made.  In  that decision, this Court had set aside a judgment of acquittal on facts  as salient features of the case were not properly appreciated or given  due weight to by the High Court and its approach to the question

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whether a sum of Rs.800/-  was an illegal gratification or a loan was  such that the High Court had acted perversely or otherwise  improperly.  From this decision it is, therefore, clear that this Court  in  the exercise of its power under Article 136 is entitled to interfere with   findings of fact if the High Court acts perversely or otherwise  improperly that is to say the judgment of the High Court was liable to  be set aside when certain salient features of the case were not properly  appreciated or given due weight by the High Court.  Again in    Himachal Pradesh Administration Vs. Shri Om Prakash, 1972 (1)  SCC, 249, this Court, while considering its power under Article 136  to interfere with the findings of the fact observed as follows:

"in appeals against acquittal by special leave under Article  136, this Court has undoubted power to interfere with the  findings of the fact, no distinction being made between  judgments of acquittal and conviction though in the case of  acquittals it will not be ordinarily interfere with the  appreciation of evidence or on findings of fact unless the  High Court "acts perversely or otherwise improperly"."   

         Again in Balak Ram Vs. State of UP, 1975 (3) SCC 219  this  Court also held that the powers of the Supreme Court under Article  136 of the Constitution are wide but in criminal appeals this Court  does not interfere with the concurrent findings of the fact save in  exceptional circumstances.  In  Arunachalam Vs. P.S.R.  Sadhanantham, 1979(2) SCC 297 this Court while agreeing with the  views expressed on the aforesaid mentioned decisions of this Court  has thus stated :

"The power is plenary in the sense that there are no words  in Article 136 itself qualifying that power.  But, the very  nature of the power has led the court to set limits to itself  within which to exercise such power.  It is now the well  established practice of this Court to permit the invocation  of the power under Article 136 only in very exceptional  circumstances, as when a question of law of general public  importance arises or a decision shocks the conscience of  the court.  But within the restrictions imposed by itself,  this Court has the undoubted power to interfere even with  findings of fact, making no distinction between judgments  of acquittal and conviction, if the High Court, in arriving  at those findings, has acted "perversely or otherwise  improperly"."

       In Nain Singh Vs. State of UP, 1991(2) SCC 432 in which all  the aforesaid decisions as referred to herein above were considered  and after considering the aforesaid decisions  on the question of  exercise of power under Article 136 of the Constitution and after  agreeing with the views expressed in the aforesaid decisions finally  laid down the principle that the evidence adduced by the prosecution  in that decision fell short of the test of reliability and acceptability and  therefore, was highly unsafe to act upon it.  In State of U.P. Vs. Babul  Nath (1994) 6 SCC 29 this Court, while considering the scope of  Article 136 as to when this Court is entitled to upset the findings of  fact, observed as follows:

"At the very outset we may mention that in an appeal  under Article 136 of the Constitution this Court does not  normally reappraise the evidence by itself and go into the  question of credibility of the witnesses and the assessment  of the evidence by the High Court is accepted by the  Supreme Court as final unless, of course, the appreciation  of evidence and finding is vitiated by any error of law of  procedure or found contrary to the principles of natural  justice, errors of record and misreading of the evidence, or

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where the conclusions of the High Court are manifestly  perverse and unsupportable from the evidence on record."

       From the aforesaid series of decisions of this Court on the  exercise of power of the Supreme Court under Article 136 of the  Constitution following principles emerge :

i)      The powers of this Court under Article 136 of the  Constitution are very wide but in criminal appeals this Court  does not interfere with the concurrent findings of the fact  save in exceptional circumstances. ii)     It is open to this Court to interfere with the findings of fact  given by the High Court if the High Court has acted  perversely or otherwise improperly. iii)     It is open to this Court to invoke the power under Article 136  only in very exceptional circumstances as and when a  question of law of general public importance arises or a  decision shocks the conscience of the Court. iv)             When the evidence adduced by the prosecution fell short of  the test of reliability and acceptability and as such it is highly  unsafe to act upon it. And v)              The appreciation of evidence and finding is vitiated by any  error of law of procedure or found contrary to the principles  of natural justice, errors of record and misreading of the  evidence, or where the conclusions of the High Court are  manifestly perverse and unsupportable from the evidence on  record.                                                         (underlining is ours)

       Keeping the above position of law as enunciated and settled by  the aforesaid series of decisions of this Court, we shall now examine  the evidence adduced by the parties and the materials on record and  see in view of the nature of offence alleged to have been committed  by the appellant whether the concurrent findings of fact call for  interference in the facts and circumstances of the case.

       Questioning the propriety of the judgment under appeal Mr.  Sanyal, the learned senior counsel appearing for the appellant had  raised two-fold submissions before us.  The first submission was that  the absence of a legal sanction under section 6 of the Act would  vitiate the entire proceeding notwithstanding the fact that the absence  of  sanction had not resulted or occasioned in failure of justice.   The  second submission was that the findings of fact arrived at by the  Special Judge which were confirmed by the High Court were liable to  be set aside on the ground that such findings of fact were not based on  due and proper consideration of the materials on record and proper  appraisal of evidence, and that there was failure on the part of the  High Court as well as of the Special Judge in coming to a proper  conclusion of fact on the question whether the appellant in fact was  liable to be prosecuted under section 161 of the IPC and section 5 of  the Act.         In view of our judgment that we propose to render on the merits  of the appeal, we do not think it necessary to consider the question of  sanction in this appeal.   Let us, therefore, examine whether this Court  in the exercise of its power under Article 136 of the Constitution is  entitled to interfere with the findings of fact arrived at by the High  Court and the Special Judge.         In our view the findings of  the courts below were vitiated as  due and proper consideration of the materials on record and also  proper appraisal of evidence was not made by them.   As noted  hereinearlier, the appellant was Assistant Electrical Engineer at the  material point of time, In-charge of electric supply.   The complainant  Harendra Kumar Singh had applied for electric connection on the  ground that he had purchased a motor of 5 H.P. after taking loan from  Central Bank of India which was filed on 21st February 1983.   This  application was placed before the appellant and when the said

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application was filed the appellant demanded Rs.500/- as bribe for  giving electric connection.   According to the complainant, although  several persons who also applied like the appellant for supply of  electricity later than the complainant were provided the electricity  connection but the supply of electricity so far as appellant was  concerned,  was not allowed only because the appellant had failed to  pay bribe of Rs.500/.  Under these circumstances the aforesaid  application was filed before the Chairman of Electricity Board stating  the entire facts and on the basis of which show-cause was issued to  the appellant on 1st April 1985.   On being enraged, the appellant  implicated the complainant for electrical theft and started a  proceeding against him.   However, on payment of Rs.100/- the matter  was compromised by the appellant with the complainant.   The said  amount of Rs.100/- bribe was paid to the appellant on 11th June 1985.    According to the prosecution case, the appellant also promised to  hush up the case filed against him and give electrical connection on  payment of Rs.400/-.   However, the complainant was confident of  having his work done on further payment of Rs.300/- only.   An  application was filed by the complainant on 25th June 1985 before the  Superintendent of Police (Vigilance Department), Patna, Bihar on the  basis of which a watcher of the department Shri Mundrika Choudhary  was deputed to verify the allegation.   A report was submitted by the  watcher ( Ext. 6) dated 26th June 1985 to the Superintendent of Police  (Vigilance ) who by his order dated 26th June 1985 directed the  Deputy S.P. (Vigilance ) to institute a case, take up investigation and  organize a raiding party.   The report of the watcher also disclosed,  inter-alia, that the amount of Rs.100/- was accepted by the accused as  bribe and he had also asked the appellant in presence of watcher to  manage Rs.400/- more.   According to the prosecution case the  complainant had undertaken to pass the aforesaid sum  of Rs.200/- on  28th June 1985 at about 8.00 a.m.   A raiding party was organized  consisting of 12 persons including Shri Baidahi Sharan Mishra, a  Magistrate and a Deputy Superintendent of Police and Shri Verma  was heading the raiding party.  On 27th June 1985 they proceeded  towards Sitamarhi and reached there at night.   At Sitamarhi the  aforesaid raiding party met the complainant  Harendra Kumar Singh  in the morning of 28th June 1985 who informed them that they should  be ready with Rs.150/- to be given to the accused as bribe.   A  memorandum of G.C. notes was then prepared and complainant  instructed to give the money to the appellant on demand.  The raiding  party then went near the house of the appellant at about 7.15 a.m. of  the same day i.e. on 28th June 1985. Mundrika Choudhary and the  complainant went to the residence of the appellant, and the other  members of the raiding party however asked to sit in the outer  verandah of the residence of the appellant.  The appellant came there  and demanded rupees 150/- and told him to bring an end to his case.    Accordingly, the complainant paid Rs.150/. The watcher then came  out and gave the signal on which the raiding party reached the spot.    According to the prosecution case, the appellant had kept the bribe  amount of Rs.150/- ( one note of Rs.100/- and the other note of  Rs.50/-) in the upper pocket of the flying shirt.   The raiding party  searched the accused in presence of  two independent witnesses and  recovered the said amount from the said pocket and prepared seizure  list which was made Ext.15.         After investigation, the charge sheet was submitted against the  appellant.   Cognizance of the offence was taken and trial proceeded.         In defence, the appellant pleaded not guilty to the charges  framed against him.   He sought to allege in defence that he was  falsely implicated in the case on account of  filing a case against the  complainant.  His further defence was that no delay in fact occurred in  giving electricity connection to the complainant on account of any  lapse on his part.         The prosecution had examined  as many as 13 witnesses in  support of its prosecution case.  Besides, oral evidence prosecution  also relied on some documents exhibited in this case.   Let us now

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examine whether the evidence adduced from the side of the  prosecution oral and documentary could lead the courts below to  come to a conclusion of fact that the appellant should be prosecuted  for taking bribe under section 161 of the IPC and also under section  5(2) of the Act.    So far as this payment is concerned, the courts  below however did not rely on the said evidence of complainant  saying a sum of Rs. 100/- as first instalment was paid by him to the  appellant on 11th June 1985.     That being the position, we do not  think it necessary to go into the question whether in fact Rs.100/- as  first instalment was paid to the appellant on 11th June 1985, as stated  by the complainant.              So far as the second instalment of Rs.100/- as bribe on 25th June  1985 is concerned, the courts below relied on the evidence of the  watcher Mundrika Choudhary and held that the said amount was  received by the appellant in favour of the watcher Mundrika  Choudhary.   The courts below also relied on the report of the watcher  which was Ext.C and also on the evidence of PWs5 and 6 and  therefore concluded that the appellant had accepted bribe to the extent  of Rs.100/- on 25th June 1985.   In our view, this alleged payment of  Rs.100/- as bribe on 25th June 1985 could not be satisfactorily proved  by the prosecution in view of the fact that it is an admitted position  that appellant had filed an application for grant of casual leave for  going to Darbanga to see his married ailing sister.   It also appears  from the statement made by the appellant under section 313 of the  Cr.P.C. that the appellant also stated categorically that he was not  present in the office on 25th June 1985.   In order to prove that he had  taken casual leave the appellant not only produced the application for  casual leave from the record it also examined Shri Satya Narayan Lal  who deposed on his behalf in this case.   In his evidence DW1 had  stated categorically that estimates were given to the companion of the  complainant on 25th June 1985 and was so given by him, also stated  categorically in his evidence that on 25th June 1985 the accused was  on casual leave and had gone to Darbanga for seeing his ailing sister.   However, it is not in dispute that the casual leave application was  marked as Ext.E in this case.   The fact of his absence from the office  on 25th June 1985 was not accepted by the courts below on the ground  that the  casual leave register was not proved nor the officer granting  leave was examined in this case.    Therefore, the courts below  discarded the evidence of DW1 Satya Narayan Lal and also the  application for casual leave Ext.E only on the ground that the  appellant had failed to discharge the onus which lay on the appellant  to prove such fact to show that he was not present in the office on 25th  June 1985.    We are unable to agree with the aforesaid findings of the  courts below.  In our view, even if casual leave register was not  produced, the application made for casual leave on that particular date   admittedly was produced by the appellant in the case.   In order to  prove that the leave application and also to prove that he was not in  the office on 25th June 1985 the appellant had examined one of the  officers of the department, who categorically stated in his deposition  that the appellant had taken casual leave on that date and in fact had  gone to Darbanga for seeing his ailing sister.   Therefore, the courts  had gone in error manifestly by drawing  an adverse inference against  the appellant for not producing the casual leave register in the case.    Was it not also a duty to call upon the authorities to produce or call  for the casual leave register only to show that the appellant was  physically present in the office on that date?  In our view, therefore,  there was no reason for the court to discard the application for grant  of casual leave which was supported by the evidence of DW1 Satya  Narayan Lal to show that the appellant was not present on 25th June  1985 when the instalment of Rs.100/- was paid to the appellant in  presence of the watcher.   Therefore, we are of the view that the courts  below acted improperly by discarding the application for grant of  casual leave and also by discarding the evidence of DW1, who is an  officer of the Board and thereby the conclusion of fact arrived at by  the courts below that he was present in the office on 25th June 1985

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and accepted bribe for a sum of Rs.100/- from the complainant cannot  be accepted.    Accordingly, the courts below had acted improperly to  come to a conclusion of fact on the aforesaid factual aspect of the  matter which shocks the conscience of this Court and which lead us to  hold that the evidence adduced by the prosecution in this respect fell  short of the test of reliability and acceptability and therefore it was  highly unsafe to act upon it.

       Let us now turn to another aspect of the matter.  Let us examine  whether the evidence  from the prosecution side conclusively proved  payment of Rs.150/- by the complainant to the appellant on 28th of  June, 1985 in presence of two witnesses and the watcher.  On this  also, we are of the view that the High Court and the Special Judge  were in error by holding that the prosecution had been able to prove  its case to the hilt.    It is true that in the statement made under section  313 of the Cr.P.C. the appellant admitted the presence of the watcher  and the complainant on 28th June, 1985 but his defence was that as  soon as he put on the flying shirt hanging on the peg he was caught  and was forced to sit in the standing car.    The defence case was that  taking advantage of the absence of the appellant the money was kept  in the pocket of the flying shirt of the appellant and he was caught as  soon as he came out and put on the flying shirt.   It is also true that it  was not disputed by the appellant that on 28th June 1985 Rs.150/- was  recovered from the flying shirt of the appellant.   It was also not  disputed that such recovery was made in presence of the complainant  and the watcher.   Therefore, the examination by the courts below was  that whether in fact the money was kept by the complainant in  absence of the appellant in the flying shirt.   In this connection  prosecution had sought to prove this case by producing PW5 the  watcher and the complainant PW6.   It is true that these two witnesses  fully supported the demand and acceptance of the amount by the  appellant but  it is an admitted position that (P.W.10) K.K. Verma,  Dy. S.P. who had investigated the case admitted in his evidence that  the watcher had told him that the appellant had come in ganji and  lungi and had put on the bushshirt hanging in the room where he was  sitting.   Evidence on the part of K.K.Verma (PW10) was sought to be  explained by the courts below by saying that the fault in recording  statement of the watcher by the I.O. was acceptable.   In view of the  aforesaid admission of the watcher that the appellant came with ganji  and lungi, as admitted by PW5 before PW10 it would be difficult for  us not to accept the version of the appellant that the notes were  planted by the complainant in presence of the watcher before the  appellant had entered the room where the complainant and the  watcher were sitting.   There is no dispute in this case that  phenolphthalein  powder was not used by the vigilance to prosecute  the case on the alleged recovered notes for the purpose of charging the  appellant for bribe.    In Som Prakash  Vs. State of Delhi (1974) 4  SCC 84 it was observed "It is but meet that science-oriented detection  of crime is made a massive programme of police, for in our  technological age nothing more primitive can be conceived of than  denying the discoveries of the sciences as aids to crime suppression  and nothing cruder can retard forensic efficiency than swearing by  traditional oral evidence only, thereby discouraging liberal use of  scientific research to prove guilt."   In Raghbir Singh  Vs.   State of  Punjab (1976) 1 SCC 145 while discarding the oral and documentary  evidence laid on behalf of the prosecution is not such as to inspire  confidence in the mind of the  court,  the Supreme Court observed at  paragraph 11 as follows:

"We may take this opportunity of pointing out that it  would be desirable if in cases of this kind where a  trap is  laid for a public servant, the marked current notes, which  are used for the purpose of trap, are treated with  phenolphthalein powder so that the handling of such  marked currency notes by the public servant can be

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detected by chemical process and the court does not have  to depend on oral evidence which is something of a  dubious character for the purpose of deciding the fate of  the public servant." (Emphasis is ours)   

       We must not forget that in a trap case the duty of the officer to  prove the allegations made against a Government officer for taking  bribe is serious, and therefore, the officers functioning in the  Vigilance Department must seriously endeavour to secure really  independent and respectable witnesses so that the evidence in regard  to raid  inspires confidence in the mind of the court and the Court is  not left in any doubt whether or not any money was paid to the public  servant by way of bribe.  It is also the duty of the officers in the  Vigilance Department to safeguard for the protection of public  servants against whom a trap case may have been laid.   

       In view of the discussions made and the decisions of the court  above, we are of the opinion that considering the fact that the present   case was also a case of trap of a public servant a duty was cast upon  the authorities to use  phenolphthalein powder for the purpose of  proving the charge of bribe of the appellant without relying only on  the oral and documentary evidence adduced from the side of the  prosecution.   Therefore, in our view, where admittedly the recovered  notes were not treated with phenolphthalein powder so that the  handing of such marked notes by the appellant could be detected by  chemical process and the court need not here to depend on the oral  evidence which is something of a dubious character to decide the fate  of a public servant.    Keeping the aforesaid in our mind, we are of the  view that the defence was much more probable.  Defence case was  that the bushshirt hanging in the peg where the complainant came, the  appellant was at that point of time asleep in the next room and father  of the appellant went to wake him up and at that point of time the  notes were thrust into the pocket of the hanging bushshirt, which the  appellant wore when he came to the outer room as he was in his ganji  and lungi.     In view of our discussions made hereinabove, we are of  the  view that the defence case must be held to be probable.    Accordingly, we must hold that in the light of the discussions made  hereinabove, the evidence led on behalf of the prosecution was not  such as to inspire confidence in the mind of this Court, and therefore,  we are not at all satisfied that the appellant either demanded Rs.150/-  from the complainant or the complainant paid bribe to the appellant  by handing over two marked currency notes to him.

       There is yet another aspect of the matter.   Admittedly, supply of  electricity was restored or  his house was connected with electric  supply.    According to the prosecution case, the supply of electricity  was restored in the month of July 1985 whereas the appellant took a  stand that before the complaint was made by him regarding the  allegation of bribe the electric supply was already given to the  complainant.  According to the appellant, such connection was given  to the complainant on 22nd June 1985.   If this restoration of electric  connection dated 22nd June 1985 to the complainant can be accepted  to be correct then there could have been no occasion for demand and  acceptance of bribe either on 25th June 1985 and 28th June 1985 for  the supply of electric connection.  As noted hereinearlier,  according  to the prosecution case and also from the materials on record the  electric connection to the complainant was alleged to have been given  on 8th July 1985.  As noted hereinearlier, the appellant however took a  stand that the electric connection was made on 22nd June 1985.   The  necessary entry regarding electric connection was proved by the  appellant by relying on Ext.F.  Ext.G  was also relied on by the  appellant which was an intimation by Shri Bachhu Tiwary bearing  endorsement of the appellant to the effect that connection was given  on 22nd June 1985.   However, the complainant refused to give any  certificate and thereby the appellant advised Shri  Tiwary  to get

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certificate from Local Mukhia which is Ext.C in the present case.    Ext.K is an application of  Ram Deo Rai to the Executive Engineer  stating that electric connection had been given to the complainant on  22nd June 1985.         In order to prove that the electric connection was given to the  complainant on 22nd June 1985,   a report of Shri Bachu Tiwary was  submitted in which it has been categorically stated that the Junior  Engineer had already given the certificate regarding giving electric  connection to the complainant.   Ext.G. was produced to show that the  complainant did not give any certificate and therefore the certificate  was taken  from the local Mukhia.  An adverse inference was drawn  by the courts below for non-production of Shri Tiwary in the witness  box.   It is an admitted position that Ext.F was the document which  clearly shows that electric connection was given to the complainant  on 22nd June 1985.   It is also not in dispute that the report was  submitted to that effect by Bachu Tiwary, the then Junior Engineer.    Since Bachu Tiwary was not examined the courts below could not  rely on the report of the Bachu Tiwary.  However, electric connection  was sought to be proved by producing a certificate from the local  Mukhia to show that electric connection was given on 22nd June 1985.    The materials on record and also from the Ext.I it is clear that the  work order was signed on 11th June 1985.   Ext.I is the letter said to  have been written to the complainant by the Electrical  Executive  Engineer, Electricity Division, Sitamarhi.   Ext.K is also the report of  the Headline Man to show that electric connection was given on 22nd  June 1985 and it was re-connected on 8th July 1985 when the meter  was brought by the complainant from his residence.   The accused- appellant also sought to explain by Ext.L series to show that he was  making all efforts for giving electric connection to the complainant  and so is Ext.M.  From all these documents, we are of the view that  electric connection was given to the complainant on 22nd June 1985  and the same was re-connected on 8th July 1985.   Therefore, we are  of the view that the courts below were manifestly in error in  discarding the materials produced by the appellant to show that the  electric connection was given on 22nd June 1985 and not on 8th July  1985 whereafter the vigilance enquiry was started against the  appellant.         Even otherwise, the defence of the accused was more probable  and therefore it should be accepted.   It was one of the  defence of the  appellant that because of starting a criminal case against the  complainant, the trap case was initiated by the vigilance department at  the instance of the complainant.   It is not in dispute that a complaint  at the instance of the appellant was made against the complainant and  another for alleged theft of electricity and the complainant was found  guilty which was however set aside in appeal.  In the background of  this fact and other circumstances as noted hereinearlier can it not be  said that the defence case was more probable than that of the  prosecution case and that in the facts and circumstances and evidence  on record the defence case must be accepted   The aforesaid dramatic  case was initiated by the vigilance department at the instance of the  complainant.  On consideration of the entire materials on record and  in view of our discussion made hereinabove, we are therefore of the  view that courts below including the High Court had acted in a  manner which was not warranted and the defence of the accused- appellant was probable and therefore no conviction could be made  against the accused-appellant.         We are also of the view that it is more probable that in order to  put the appellant into trouble in his service the trap case was initiated  by the vigilance department at the instance of the complaint filed by  the complainant because of the fact that a criminal case was initiated  by the appellant against the complainant for theft of electricity.   Therefore, we must hold that in view of the discussions made  hereinabove the judgments and orders of the court below are liable to  be set aside on the ground that such findings of fact and appreciation  of evidence are vitiated as the evidence adduced by the prosecution

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fell short of the test of reliability and acceptability,and, as such, it was  highly unsafe on the part of the courts below to act upon it.  For the  reasons aforesaid, we set aside the judgment of the High Court as well  as of the Special Judge and exonerate the appellant from the charges  found against him.           The appeal  is therefore allowed.