IMPORTANT POINT : : (1) Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof de hors proof of demand would not be sufficient to bring home charge of illegal gratification.
(2) Law of land requires that certain things should be done by police in presence of independent respectable persons so that presence of said persons may put particular transactions beyond pale of suspicion.

JUDGMENT :

1. By the medium of this Criminal Appeal, the judgment and order dated 27.02.2020 (hereinafter referred to as ‘impugned judgment’) passed in the case titled State through SHO Police Station VOK Vs. Gh. Mohammad Kumar by learned 1st Additional Sessions Judge Baramulla (Special Judge Anti-corruption Baramulla/Bandipora/Kupwara) (hereinafter referred to as ‘trial court’), has been challenged.

2. Vide impugned judgment, the appellant herein has been convicted for the commission of offences punishable under Sections 5(1)(d) read with 5(2) of J&K Prevention of Corruption Act and Section 161 RPC and was sentenced to undergo simple imprisonment for two years and fine of Rs.10,000/- under each offence and in default for payment of fine the appellant-accused was to undergo further simple imprisonment of two months under each offence. Both the punishments/sentences were directed to run concurrently.

3. It is being argued by the appellant herein that one Khursheed Ahmad Lone had made a complaint against him for demanding bribe of Rs.2500/- from him for making necessary entries in the revenue record, while being posted as Patwari Bomai Sopore, which complaint culminated into registration of FIR No.39/2006 P/S VOK. That after completion of the investigation by the respondent-VOK, charge sheet came to be presented before the competent court of law; and after facing trial for long 13 years, the appellant has been convicted by the trial court and has been sentenced to undergo simple imprisonment for two years and fine of Rs.10,000/- for the commission of each of the offences punishable under Sections 5(1)(d) read with 5(2) of J&K Prevention of Corruption Act and Section 161 RPC.

4. The impugned judgment and sentence has been challenged, inter alia on the following grounds: –

(a) That the Trial Court has passed the impugned judgment and sentence in a mechanical, slip shod manner without appreciating the evidence adduced by the prosecution which is full of cracks/dents and further doubtful in law.

(b) That the prosecution has failed to adhere to the procedure and norms required for a trap case of the like nature particularly when the prosecution has failed to adhere to pre-trap and post-trap procedure.

(c) That the prosecution has miserably failed to establish the ingredients of the offences charged thereby rendering the conviction of the appellant as unsustainable in law, as such, the impugned judgment and sentence is bad in law, coupled with the fact when the Trial Court has failed in appreciating the material on record in its right perspective.

(d) That the complainant PW-1 Khursheed Ahmad Lone who has set the criminal law in motion had personal animosity with the appellant which is substantiated and corroborated by one Altaf Hussain Lone PW-6 brother of the complainant and in whose name the agreement to sell is, which was sought to be mutated by the complainant through the appellant and PW-6 has turned hostile during trial.

(e) That the Trial Court while appreciating the evidence of the independent witness PW-2 (witness to the seizure) has cast doubt in the prosecution story when the witness has deposed his ignorance in identifying the seized shirt belonging to the appellant as also the bottle containing the solution has not been identified by the independent witness, has totally destroyed the prosecution case.

(f) That the Trial Court has ignored the golden principle to give benefit of doubt to the accused when doubt always favours the accused. Even if two views are possible, the view which favours the accused has to be given credence. In the instant case the prosecution story being full of doubt same deserves to be rejected at the threshold which renders the impugned judgment and sentence to be set aside and quashed.

(g) That the trial court has failed to appreciate the evidence of PW-3 Mohammad Shafi Dar who deposed that the independent witness Mushtaq Ahmad Hakim has never accompanied to the Patwar Khana, who further negated th