Research › Search › Judgment

Andhra High Court · body

2008 DIGILAW 943 (AP)

K. Giri, s/o Murali v. State of Andhra Pradesh

2008-11-04

GOPALA KRISHNA TAMADA

body2008
JUDGMENT: Appellant and another were tried as A-1 and A-2 respectively in C.C.No.13 of 1999 on the file of the Court of the Additional Special Judge for SPE & ACB cases-cum-V Additional Chief Judge, City Civil Court, Hyderabad, for the offences punishable under Sections 7, 13 (1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short, 'the Act') and also for the offence under Section 12 of the Act read with Section 34 of the Indian Penal Code, 1860. During trial, on behalf of prosecution PWs.1 to 10 were examined and Exs.P1 to P15 and M.Os.1 to 7 were marked. On an analysis of the entire evidence, learned Additional Special Judge while acquitting A-2 of the charge under Section 12 of the Act read with 34 of IPC, found A-1 guilty of the offences under Sections 7 and 13(1)(d) read with Section 13(2) of the Act and accordingly convicted and sentenced A-1 to undergo rigorous imprisonment for a period of two years and also to pay a fine of Rs.2,000/- on each count, in default, to suffer simple imprisonment for five months. Assailing the said judgment dated 10-06-2002 A-1 preferred this appeal. 2. The case of the prosecution as culled out from the prosecution witnesses, in brief, is as follows: (a) PW-1 is a TFT licence holder and doing toddy business at Kathireddypally. It is alleged that A-1 while working as Sub Inspector of Police, Moinabad Police Station, Ranga Reddy District, booked a case in Crime No.20 of 1998 against PW-1 for the offence punishable under Section 41 of the Andhra Pradesh Excise Act, 1968, for selling toddy in violation of the prohibitory orders issued by the Collector, Ranga Reddy District in view of the parliamentary elections, and seized 14 toddy bottles and sent PW-1 for judicial custody. The sample of toddy seized was sent to Government Chemical Examiner, who opined that the toddy was adulterated with chloral hydrate. While things stood thus, in the first week of June, 1998 and also on 14-06-1998 A-1 demanded PW-1 to pay an amount of Rs.5,000/- as illegal gratification threatening that if he fails to pay the said amount, he has to face the consequences because in the case pending against him the chemical examiner opined that the toddy was adulterated. While things stood thus, in the first week of June, 1998 and also on 14-06-1998 A-1 demanded PW-1 to pay an amount of Rs.5,000/- as illegal gratification threatening that if he fails to pay the said amount, he has to face the consequences because in the case pending against him the chemical examiner opined that the toddy was adulterated. It is also alleged that on 18-06-1998 A-1 called PW-1 through A-2, a Police Constable, to the police station and reiterated his demand to pay an amount of Rs.5,000/- stating that he will send him behind the bars by booking a case against him, if he fails to pay the bribe amount within three or four days. As PW-1 was not willing to pay the bribe, he along with his brother, who was examined as PW-2 approached the Deputy Superintendent of Police, Anti Corruption Bureau, Hyderabad, who was examined as PW-9, on 19-06-1998 at 3-45 P.M. and lodged Ex.P6 complaint and based on which a case in Crime No.3/ACB-HR/98 was registered and issued Ex.P15 F.I.R. (b) During the course of investigation, PW-9 summoned the mediators, PW-4 and another M. Lingaiah Naidu, from the Chief Engineer office and introduced them to PW-1 in his office room at 10-30 A.M. on 22-06-1998 and showed a xerox copy of Ex.P6 complaint to the said mediators and PW-1 was asked to produce the bribe amount and accordingly PW-1 produced Rs.5,000/- in two denominations i.e., 2 five hundred rupee notes and 40 hundred rupee notes. The said mediators noted the numbers of the above currency notes and PW-9 gave them to PW-1 after applying phenolphthalein powder and a pre-trap proceedings was conducted in the office of PW-9 under the cover of Ex.P7 mediators report. Thereafter, the trap party along with PW-1 and the accompanying witness, PW-2, left the ACB office and reached Moinabad Police Station at about 12-30 P.M. PWs.1 and 2 were on the scooter of PW-1 while the trap party followed them by their jeep. The jeep carrying the trap party was stopped about 100 yards away from the police station and the trap party got down from the jeep and went towards Moinabad Police Station and took vantage positions near the police station. In the meanwhile PWs.1 and 2 parked their scooter in front of the police station and went inside. The jeep carrying the trap party was stopped about 100 yards away from the police station and the trap party got down from the jeep and went towards Moinabad Police Station and took vantage positions near the police station. In the meanwhile PWs.1 and 2 parked their scooter in front of the police station and went inside. At about 12-50 P.M. PW-2 came out of the police station and gave pre-arranged signal to the trap party. Immediately the trap party rushed into the police station and on the way PW-2 informed the trap party that the tainted amount has been received by one of the Constable in the police station, as per the directions of A-1. (c) It is alleged that A-1 demanded PW-1 to pay the bribe amount of Rs.5,000/- and as per the directions of A-1, PW-1 paid MO-1, bribe amount (tainted currency notes) to A-2, which were recovered at the instance of A-2 from his kit box and the sodium carbonate test conducted on the hand fingers of A-2 proved positive. Thereupon, PW-9 enquired A-1 and A-2 as well as PWs.1 and 2 and what all they stated was incorporated in Ex.P9 post trap proceedings and seized the material objects in the presence of PW-4 and another mediator. M.O-1 is the tainted currency notes. Mos.2 and 3 are the samples of phenolphthalein powder and sodium carbonate powder respectively, M.Os.4 and 5 are the resultant solution of the left hand fingers wash of A-2, MO-6 is the resultant solution of the bunch of papers in which the tainted amount was kept by A-2 and MO-7 is the remaining sample of sodium carbonate powder. During the course of investigation, as per the requisition given by the Inspector of Police, ACB, who was examined as PW-10, the learned I Additional District Judge, Ranga Reddy District issued proceedings and in pursuance of which learned Judicial Magistrate of First Class, Special Mobile Court, Ranga Reddy District, who was examined as PW-7, recorded Exs.P3 and P5 statements of PWs.1 and 2 respectively as provided for under Section 164 of Cr.P.C. After obtaining Exs.P13 and P14 sanction orders and after completion of investigation, PW-10 filed the charge sheet. 3. Heard Sri C. Praveen Kumar, learned counsel appearing for the appellant and Sri V. Ravi Kiran Rao, learned Special Public Prosecutor for Anti Corruption Bureau. 4. 3. Heard Sri C. Praveen Kumar, learned counsel appearing for the appellant and Sri V. Ravi Kiran Rao, learned Special Public Prosecutor for Anti Corruption Bureau. 4. Learned counsel for the appellant strenuously contended that since the main witnesses, PWs.1 and 2, at whose instance the trap was organized, did not support the case of the prosecution, the conviction and sentence imposed on the appellant - A-1 based on the evidence of mediator, PW- 4, is not sustainable. He further contended that in the absence of the evidence of PWs.1 and 2, there is absolutely nothing on record to establish that there was demand of bribe and in the instant case, as the demand of bribe is not proved, the trial Court ought not to have convicted the appellant of the offence punishable under Section 13(1)(d) read with Section 13(2) of the Act. He also contended that nothing was seized from the possession of the appellant, no phenolphthalein test was conducted on his hands, and in the absence of any positive evidence, it is not at all safe for the trial Court to come to the conclusion that the appellant is guilty of the alleged offences. According to him, the only evidence that is available on record even to accept that there was acceptance of the bribe amount is that of PW-4, who is an interested witness, and the trial Court ought not to have convicted the appellant on the basis of the interested testimony of PW-4. He further contended that even according to the case of the prosecution, the tainted amount was recovered only from A2, but not from the possession of the appellant-A-1, and as the prosecution failed to prove the acceptance of bribe by A-1, the question of raising presumption under Section 20 of the Act does not arise. According to learned counsel, the charge against the appellant-A1 is that he demanded and accepted bribe of Rs.5,000/- from PW-1 through A2 and when A-2 is found not guilty of the offence for which he was tried, the conviction of A-1 is erroneous. He further contended that as the prosecution failed to establish the demand and acceptance of bribe by A-1, appellant - A-1 is entitled for clean acquittal. 5. He further contended that as the prosecution failed to establish the demand and acceptance of bribe by A-1, appellant - A-1 is entitled for clean acquittal. 5. Per contra, learned Special Public Prosecutor for ACB while supporting the impugned judgment vehemently contended that though PWs.1 and 2, at whose instance the trap was organized, offered different version before the trial Court giving go-by to the earlier version offered in Ex.P6 complaint and Exs.P3 and P5 statements respectively, recorded under Section 164 Cr.P.C, the Court can depend upon the process of inference drawn from the factum of acceptance of MO-1 tainted cash of Rs.5,000/- by A-1 through A-2 from PW-1, which was categorically established by the prosecution through the evidence of PW-4. It is his further contention that even in the absence of any evidence offered by the decoy, if the evidence of the mediator is trustworthy, the same alone is sufficient to base conviction. In this case, the only evidence that is available is that of PW-4, who acted as a mediator, and the same inspires confidence, and hence, the trial Court found the appellant guilty of the charged offences. According to him, since the prosecution has established the demand and acceptance of bribe by A-1 from PW-1, the presumption envisaged in Section 20 of the Act would automatically come into play and A-1 has to rebut the said presumption and unless and until he rebuts the said presumption, he is liable for punishment in respect of the offences with which he was charged. He also contended that even in the absence of direct evidence, the rest of the evidence and circumstances were sufficient to establish that A-1 had accepted the amount of bribe and that gave rise to a presumption under Section 20 of the Act that he had accepted the same as illegal gratification. 6. It is a settled proposition of law that to establish an offence under the Act, particularly those relating to trap cases, the prosecution has to establish the existence of demand as well as acceptance of the bribe by the public servant. Both aspects are treated as concomitant parts of the offence. Therefore, it has to be seen whether the prosecution has been able to establish beyond reasonable doubt the two aspects of demand and acceptance of bribe by A-1 from PW-1. 7. Both aspects are treated as concomitant parts of the offence. Therefore, it has to be seen whether the prosecution has been able to establish beyond reasonable doubt the two aspects of demand and acceptance of bribe by A-1 from PW-1. 7. In order to bring home the guilt of an accused person for the offence punishable under Section 13(1)(d) of the Act, a heavy duty is cast upon the prosecution to prove the demand and acceptance of bribe. If either of two is not established it is not possible for the Courts to come to the conclusion that the person is guilty of the offence punishable under Section 13(1)(d) read with Section 13(2) of the Act. It is only when the prosecution clearly proves that there was demand then the Court can convict a person for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Act. 8. According to prosecution, the criminal law was set into motion and the trap in question was organized only after lodging Ex.P6 complaint dated 19-06-1998 by PW-1 to PW-9. According to Ex.P6 complaint as well as from Exs.P3 and P5, statements of PWs.1 and 2 recorded by PW-7, learned Magistrate, under Section 164 of Cr.P.C, it is the case of prosecution that A-1 demanded PW-1 to pay an amount of Rs.5,000/- towards bribe for not registering a case against him and accordingly A-1 accepted M.O-1 tainted cash of Rs.5,000/- on the date of trap from PW-1 through A-2. PW-1 is the decoy and is none other than the younger brother of PW-2 and the said relationship is not in dispute. PW-3 is a person known to PW-1 and is running a bookstall. According to him he drafted Ex.P6 complaint as per the narration of PW-1 and in his presence PW-1 affixed his thumb impression on Ex.P6 complaint. PW-4 is one of the mediators and in his presence Exs.P7 and P9, pre-trap and post-trap proceedings respectively were conducted. PW-5 is the Section Officer in Secretariat and according to him Exs.P13 and P14 are the copies of G.Os. to launch prosecution against A-1 and A- 2 respectively. PW-4 is one of the mediators and in his presence Exs.P7 and P9, pre-trap and post-trap proceedings respectively were conducted. PW-5 is the Section Officer in Secretariat and according to him Exs.P13 and P14 are the copies of G.Os. to launch prosecution against A-1 and A- 2 respectively. PW-6 is a Rear Duty Guard in Moinabad Police Station at the relevant point of time and according to him on the date of trap two unknown persons came out of the police station and went away and after some time some people claiming themselves to be ACB officials entered into the police station. PW-7 is the Judicial Magistrate of First Class, Special Mobile Court, Ranga Reddy District at the relevant point of time, recorded Exs.P3 and P5, statements of PWs.1 and 2 respectively, recorded under Section 164 Cr.P.C. PW-8 is the Inspector of Police Narsingi Police Station at the relevant point of time and he spoke that A-1 while working as Sub Inspector of Police Moinabad Police Station registered a case in Crime No.20 of 1998 against PW-1 and on receipt of chemical examiner report, prepared charge sheet. PW-9 is the Deputy Superintendent of Police, Anti Corruption Bureau, Hyderabad range at the relevant point of time. According to him he registered Ex.P6 complaint as a case in Crime No.3/ACB-HR/98 against A-1 and A-2, conducted Exs.P7 and P9 pre-trap and post trap proceedings respectively. PW-10 is the Inspector of Police, Anti Corruption Bureau, Hyderabad Range, Hyderabad and according to him he took up further investigation and on completion of investigation filed charge sheet against the accused. 9. Indisputably, PWs.1 and 2, at whose instance, the trap was organized, did not support the case of the prosecution and they completely turned hostile to the case of the prosecution and the prosecution was also permitted to cross- examine them. No doubt, the evidence of a hostile witness can be looked into provided it inspires confidence. Admittedly, no phenolphthalein test was conducted on the hands of A-1 and MO-1 tainted amount was also not at all recovered from the possession of A-1, but it was alleged to have been recovered from the kit box of A-2 and thus seized from the possession of A-2 only. Admittedly, no phenolphthalein test was conducted on the hands of A-1 and MO-1 tainted amount was also not at all recovered from the possession of A-1, but it was alleged to have been recovered from the kit box of A-2 and thus seized from the possession of A-2 only. No doubt, it is the case of the prosecution that at the time of trap PW-2 informed the trap party that PW-1 gave the bribe amount to A-2 as per the directions of A-1. From a perusal of the evidence of PWs.1 and 2, who turned hostile to the case of the prosecution and did not support the case of prosecution, this Court is of the view that there is absolutely no incriminating evidence with regard to the demand and acceptance of bribe of Rs.5,000/- by A-1 from PW-1. 10. Inasmuch as PWs.1 and 2 did not support the case of the prosecution, the entire case rests on the sole testimony of PW-4, who is one of the mediators for the alleged trap. Therefore, it has to be scanned in a proper perspective so as to extract the truth or otherwise of the case of the prosecution. 11. According to PW-4, after the signal given by PW-2, he along with the trap party were about to enter into the room of A-1. On their way, PW-2 informed them that PW-1 gave MO-1 bribe amount to A-2 as per the directions of A-1 and thereupon they entered into the room of A-1 and later seized the bribe amount from the possession of A-2. No doubt, PW-4 supported the case of the prosecution in certain material particulars i.e. the way in which the pre-trap as well as post-trap proceedings were conducted and the way in which M.O-1 tainted amount of Rs.5,000/- was recovered from the possession of A-2 and recording of the statements of A-1 and A-2 by PW-9 at the time of post-trap under the cover of Ex.P9 etc. facts. But, even by relying upon the evidence of PW-4, it cannot be assumed that A-1 has got any role in the alleged transaction of trap in the absence of any direct evidence in that regard. 12. facts. But, even by relying upon the evidence of PW-4, it cannot be assumed that A-1 has got any role in the alleged transaction of trap in the absence of any direct evidence in that regard. 12. In view of the evidence of PWs.1 and 2, who did not support the case of the prosecution and also the evidence of PW-4 whose evidence is in no way helpful to the case of the prosecution insofar as the role played by A-1 in the alleged trap is concerned, there is no other go except to hold that the prosecution has miserably failed in bringing home the guilt of the appellant-A1 for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Act. 13. Insofar as the offence under Section 7 of the Act is concerned, even if the demand is not proved, still the Court can convict a person under Section 7 of the Act, if the prosecution proves the acceptance of bribe amount. As already stated, PWs.1 and 2, at whose instance the trap was organized, did not support the case of the prosecution either with regard to the demand or acceptance of bribe of Rs.5,000/- by A-1 from PW-1, the prosecution mainly relied on the evidence of PW-4, mediator. 14. It is a settled proposition of law that even in the absence of any evidence by the material witnesses, if the prosecution is able to establish the guilt of the accused on the basis of the circumstantial evidence, it is always open for the Courts to come to a conclusion that the accused is guilty of the offence with which he was charged. Similarly simply because, the decoy and other prosecution witness did not support the prosecution case, it cannot be said that the prosecution has miserably failed in bringing home the guilt of the accused, and it is suffice, as stated supra, that the circumstances also play an important role in bringing home the guilt of the accused. Therefore, keeping the said principal in mind, now it has to be seen how far the evidence of PW-4 can be taken into consideration is again a question to be decided. 15. Therefore, keeping the said principal in mind, now it has to be seen how far the evidence of PW-4 can be taken into consideration is again a question to be decided. 15. As rightly contended by the learned counsel for the appellant PW-4, who worked as Senior Assistant in the office of the Chief Engineer, Panchayat Raj, Erramanzil Colony, Hyderabad at the relevant point of time, though no way concerned either with the appellant or with the prosecution party, once he acted as a mediator for the pre-trap and post-trap proceedings on behalf of the prosecution party, it is not safe to treat him as an independent witness. This Court is of the considered view that once a person acts as a mediator on behalf of the prosecution party, he looses his character as an independent witness and automatically becomes a part of prosecution party and it is not safe to base conviction on the solitary testimony of such witness. This view of mine is fortified by the apex Court in SOM PRAKASH v. STATE OF PUNJAB1, wherein it was held as follows-- "The High Court found that the witnesses who were associated in the conduct of the raid for recovery of tainted money from the appellant could not be termed as independent who could be associated with such raids. The High Court further expressed doubt about veracity of the witness who claimed that money was actually handed over in his presence. The High Court, however, drew an adverse inference against the appellant from the circumstance that the bill which was delayed for unreasonable period had suddenly been passed by the appellant. On an overall assessment, the High Court entertained some suspicion about the credibility of the prosecution witnesses but at the same time did not find the suspicion to be strong enough to raise doubt about the guilt of the appellant. We agree with the learned counsel for the appellant that in the face of the finding that the witnesses who formed part of the raiding party were not independent and the evidence regarding handing over money to the appellant being unbelievable, the conviction of the appellant cannot be sustained. The guilt of the appellant has not been proved beyond reasonable doubt and as such the benefit must go to him." 16. The guilt of the appellant has not been proved beyond reasonable doubt and as such the benefit must go to him." 16. Further, it is the case of the prosecution that in the first week of June, 1998 and on 14-06-1998 A-1 demanded PW-1 to pay an amount of Rs.5,000/- towards illegal gratification and finally on 18-06-1998 A-1 called PW-1 to the Police Station through A-2 and reiterated his demand to pay an amount of Rs.5,000/- stating that he will send him behind the bars by booking a case against him, if he fails to pay the bribe amount within three or four days. Since the prosecution mainly relied on the evidence of PW-4, on a careful perusal of the evidence of PW-4, it is clear that PW-4 has no occasion to witness the incidents on the aforesaid dates and his participation to the case commences only at the time of conducting pre-trap proceedings. It is elicited from the evidence of PW-4 that on the date of the trap in question, as soon as PW-2 gave signal to the trap party and when they are about to enter into the room of A-1, on the way PW-2 informed the trap party that PW-1 gave MO-1 bribe amount to A-2 as per the directions of A-1. So, even on the date of trap also there was no occasion for PW-4 to witness either the demand of bribe amount of Rs.5,000/- by A-1 from PW-1 or the acceptance of it by A-1 through A-2. Even assuming for a moment, if the acceptance of bribe by A-1 from the decoy - PW-1 is proved beyond reasonable doubt, then a presumption can be drawn as provided for under Section 20 of the Act to the effect that the said amount is towards illegal gratification. But, in the case on hand, it is the case of the prosecution that A-1 had accepted the bribe amount from PW-1 through A-2. Inasmuch as the evidence of PW-4 does not inspire confidence that A-1 had accepted MO-1 bribe amount from PW-1 through A-2, the question of raising a presumption under Section 20 of the Act would not arise. 17. Inasmuch as the evidence of PW-4 does not inspire confidence that A-1 had accepted MO-1 bribe amount from PW-1 through A-2, the question of raising a presumption under Section 20 of the Act would not arise. 17. No doubt, learned Special Public Prosecutor contended that even in the absence of direct evidence, the rest of the evidence and circumstances are sufficient to establish that A-1 had accepted the bribe amount and that gave rise to a presumption under Section 20 of the Act that he had accepted the same as illegal gratification. In support of his contention, he relied on a decision in M. NARSINGA RAO v. STATE OF A.P.2. In the said case though PWs.1 and 2, at whose instance the trap was organized like this case, denied the prosecution case, from the other circumstantial evidence it is revealed that the accused was caught red-handed and the trap party recovered the tainted currency notes from the pocket of the accused. Whereas in the case on hand, even from the evidence of the circumstantial evidence it is revealed that MO-1 tainted currency notes were alleged to have been recovered from the possession of A-2 but not from the possession of A-1 and similarly the sodium carbonate test was also conducted on the hand fingers of A-2 but not A-1. Therefore, the decision relied on by the learned Special Public Prosecutor has no application to the case on hand. 18. In the light of the above discussion this Court has no hesitation to come to the conclusion that the prosecution has also miserably failed in bringing home the guilt of the appellant for the offence punishable under Section 7 of the Act beyond all reasonable doubt. 19. In the result, the criminal appeal is allowed and the conviction and sentence imposed on the appellant - A-1 in C.C.No.13 of 1999, vide judgment dated 10-06-2002, by the Additional Special Judge for SPE & ACB cases-cum-V Additional Chief Judge, City Civil Court, Hyderabad, are set aside. The bail bond of the appellant shall stand cancelled and the fine amount, if any, paid by him shall be refunded to him.