The Court further held that while there is no absolute rule against relying upon the uncorroborated testimony of a trap witness, such evidence can be acted upon only where, having regard to the facts and circumstances of the case, the Court is satisfied that the witness is a witness of truth.

The Court was hearing an appeal filed by the petitioner against his conviction under Section 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act. The trial court had convicted the accused primarily on the basis of the testimony of the complainant, who claimed to have paid the alleged bribe during the trap proceedings, and the recovery of the tainted money from the accused.

A Bench of Justice Sanjay Dhar, while allowing the appeal and acquitting the accused, observed,

“A trap witness may perhaps be considered as a person interested in the success of the trap and that may entitle a court to view his evidence as that of an interested witness.”

The Court further observed that a Court may refuse to act upon the uncorroborated testimony of a trap witness where circumstances justify such a course, while it may rely upon such testimony where it is satisfied from the facts and circumstances that the witness is a witness of truth.

Background:

The prosecution case was that the complainant, Bashir Ahmad Dar, lodged a complaint before the Vigilance Organization alleging that the accused, who was working as Incharge Establishment in the office of the Block Development Officer had demanded Rs.300 from each of six Helpers for preparation of their arrears bills.

According to the prosecution, the complainant collected Rs.300 each from five of his associates, making a total of Rs.1800, and approached the Vigilance Organization. A trap team was thereafter constituted and an independent witness, Nazir Ahmad Lone, was associated with the trap proceedings.

After the pre-trap proceedings, the complainant entered the office room of the accused while the shadow witness remained outside near a window. The prosecution alleged that after a brief conversation, the accused demanded and accepted Rs.1800 from the complainant and kept the money in the back pocket of his trouser.

The complainant thereafter gave the pre-fixed signal, following which the trap team apprehended the accused. The tainted money was recovered from his trouser pocket and his hands and pocket were washed in sodium carbonate solution, which allegedly turned pink.

The trial court subsequently convicted the accused under Section 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act and sentenced him to two years' simple imprisonment and a fine of Rs.21,000.

During the appeal, the accused contended that the prosecution had failed to establish the demand and acceptance of illegal gratification beyond reasonable doubt and that the shadow witness had not actually witnessed the transaction. It was argued that the conviction could not be sustained on the sole uncorroborated testimony of the complainant.

Court's Observation

Adjudicating the appeal, Justice Dhar noted that in a corruption case involving demand and acceptance of illegal gratification, the prosecution is required to establish the initial demand of illegal gratification, demand and voluntary acceptance of the tainted money during the trap, and recovery of the tainted money from the accused.

The Court first examined the prosecution evidence concerning the initial demand. It noted that the five employees on whose behalf the complainant claimed to have collected the alleged bribe had categorically stated that they had neither contributed towards the bribe money nor had the accused demanded any money from them.

The Court further noted that the complainant himself had contradicted his complaint by stating during cross-examination that he had not collected Rs.300 each from his associates, although his complaint specifically recorded that he had done so. The Court held that this constituted a major contradiction concerning the alleged initial demand.

The Court also found significance in the fact that there was evidence of prior discord between the complainant and the accused. The complainant had been pressing for the engagement of his brother as a daily wager, while one of the witnesses had stated that there was also a land dispute between the complainant and the accused.

The Court thereafter considered whether the uncorroborated testimony of the complainant regarding the demand and acceptance during the trap could be relied upon. It remarked,

“..The shadow witness has not stated anything about the exchange of bribe money or the demand allegedly made by the appellant from the complainant. The other members of the trap team have all in their cross-examination stated that they did not watch the exchange of bribe money between the complainant and the appellant/accused as they were sitting outside the room”.

The Court then referred to the Supreme Court judgment in Prakash Chand v. State (Delhi Administration), wherein it was held that a trap witness may be considered a person interested in the success of the trap and his evidence may therefore be viewed as that of an interested witness.

The Court also relied upon the principles reiterated by the Supreme Court in Neeraj Dutta v. State (Govt. of N.C.T. of Delhi), observing that there is no abstract rule that the uncorroborated testimony of a bribe giver can never be accepted. However, such a witness has to be scrutinised in the same manner as any other partisan witness, and the necessity and quantum of corroboration would depend upon the facts and circumstances of each case.

Applying these principles, the High Court found that the complainant could not be treated as a witness of truth in the circumstances of the present case. The Court noted the previous discord between the complainant and accused, the complainant's contradictions regarding collection of the bribe amount from his associates, and the categorical statements of those associates that they had neither contributed money nor received any demand for bribe from the accused.

The Court observed,

“In these circumstances, the uncorroborated testimony of the complainant with regard to demand and acceptance of bribe by the appellant/accused during the trap proceedings cannot be relied upon.”

Holding that the conviction was unsustainable, the High Court set aside the trial court's judgment, dismissed the charge sheet and acquitted the accused.

Case Title: Habibullah Kumar v. UT of J&K

Citation: 2026 LiveLaw (JKL) 326

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