THE HON'BLE SMT JUSTICE G.ANUPAMA CHAKRAVARTHY
CRIMINAL APPEAL Nos.3104, 3105 and 3112 of 2018
COMMON JUDGMENT:
Criminal Appeal No.3104 of 2018, Criminal Appeal No.3105
of 2018 and Criminal Appeal No.3112 of 2018 are filed by accused
officer Nos.1 to 3 respectively.
2. All these three Criminal Appeals are arising out of the
judgment dated 20.11.2018, passed by the Special Judge for Trial
of SPE & A.C.B Cases at Karimnagar, in Calendar Case No.75 of
2015, whereby the learned Judge found accused officer Nos.1 and
2 guilty of the offences punishable under Sections 7 and 13(1)(d)
read with Section 13 (2) of the Prevention of Corruption Act, 1988
(for short, 'the Act'), convicted them under Section 248(2) Cr.P.C.
and sentenced them to suffer rigorous imprisonment for one year
each and to pay a fine of Rs.5,000/- each for the offence
punishable under Section 7 of the Act, in default of payment of
fine, to undergo simple imprisonment for three months each; and
further sentenced them to suffer rigorous imprisonment for one
year each and to pay a fine of Rs.5,000/- each for the offence
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punishable under Section 13(1)(d) read with Section 13(2) of the
Act, in default of payment of fine, to undergo simple
imprisonment for a period of three months each. Accused officer
No.3 was found guilty of the offence punishable under Section 12
of the Act, convicted under Section 248(2) Cr.P.C., and was
sentenced to suffer simple imprisonment for a period of six
months and to pay a fine of Rs.2,500/-, in default of payment of
fine, to undergo simple imprisonment for one month. Both the
substantive sentences of imprisonment imposed against accused
officer Nos.1 and 2 were directed to run concurrently.
3. The case of the prosecution, in brief, is that during the trap,
accused officer No.1 was working as Sub- Inspector of Police,
accused officer No.2 was working as Police Constable (No.2349)
and accused officer No.3 was working as Police Constable
(No.2307) in Choppadandi Police Station, and they come under
the category of public servants within the meaning of Section 2(c)
of the Act. According to the prosecution, PW.1-Jakkula Saraiah,
PW2-Lanka Anjaiah and PW.6-Merugu Jannaiah and some other
villagers of Arnakonda formed a Society namely Rajanala Sangam
3
and they have been doing Sheep and Goat business by
transporting them in vehicles to nearby areas of Karimnagar,
Gangadhara, Jammikunta, Rajarampally and Husnabad etc. by
selling them in the sandy markets since 20 years. While they were
transporting sheeps and goats in the vehicles to the markets,
accused officer No.1, being the Sub-Inspector of Police,
Choppadandi Police Station, used to stop the vehicles, harass
them for mamools and when they refused, he used to threaten
them to book false cases. Though they appraised accused officer
No.1 that they are poor and getting petty income, accused officer
No.1 did not heed their words and continued to harass them for
mamools. As PW.1 and other members of Rajanala Sangam failed
to give mamools, on 26.03.2001, accused officer No.1 stopped their
vehicles bearing Nos.AP-15-Y-8147 and AP-15-Y-9557 and some
other vehicles at Choppadandi Sandy Market and imposed fine of
Rs.100/- on each of the vehicle and while imposing fine, accused
officer No.1 further threatened that if they did not oblige his
demands for mamools, he will continue to impose fine in similar
manner.
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4. It is further alleged that 15 days prior to the trap, PW.1
along with other members of the Sangam approached accused
officer No.1 in Choppadandi Police Station to discuss the matter,
on that, accused officer No.1 demanded them to pay Rs.40,000/-
per year towards mamools and on repeated requests made by
them, accused officer No.1 reduced the amount to Rs.30,000/- for
which they agreed and returned back. As there was some delay
in arranging mamools to accused officer No.1, accused officer
No.2, who was working as gunman to accused officer No.1, used
to make phone calls to them daily and harass them for mamools.
On 13.04.2011 at about 1:00 P.M., PW.1 along with PW.2 & PW.6
again met accused officer No.1 in the Police Station and on seeing
them, accused officer No.1 demanded for mamool. When they
expressed their inability, accused officer No.1 reduced the bribe
amount from Rs.30,000/- to Rs.15,000/-, for which the members of
the Sangam agreed and left the Police Station stating that they
would meet him on the next day. When they came out of the
Police Station, accused officer No.2 demanded them to pay
Rs.1,000/- as bribe, for allowing them to meet accused officer
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No.1, and the same was also agreed by them. Since the
harassment of the accused officers was increasing day by day,
PW.1 along with others approached the Anti Corruption Bureau
(ACB) and lodged a complaint against all the accused on
13.04.2011
at 3:00 P.M. On receiving the said complaint, the Deputy Superintendent of Police, ACB, conducted discreet enquiries with regard to the genuineness of the complaint and reputation of the accused officers and after obtaining permission from the competent authority, registered the complaint as a case in Crime No.5/ACB-KNR/2010 under Section 7 of the Act on 15.04.2011 and took up investigation.
5. It is alleged that during the course of investigation, the Deputy Superintendent of Police, ACB, Karimnagar Range, secured mediators i.e., PW.3 - G. Srinivas and LW.4 - U. Naresh Kumar and conducted pre-tap proceedings in the office of the Deputy Superintendent of Police, ACB, Karimnagar Range; that on the same day i.e., on 15.04.2011 at about 8:30 AM, PW.1 and others participated in the trap proceedings; the Deputy Superintendent of Police introduced PW.1 to the mediators and 6 vice-versa and gave a copy of the complaint to the mediators and that in the presence of the mediators, PW.1 administered Phenolphthalein powder over currency notes of Rs.15,000/- and Rs.1,000/- and made it into two wads i.e., Rs.15,000/- in one wad and Rs.1,000/- in another wad and kept them in the shirt pocket of PW.1. Later, the Deputy Superintendent of Police called PW.2 inside the room and introduced him to the mediators and taken him as accompanying witness to watch the proceedings and to give signal to the trap party. Thereafter, the Deputy Superintendent of Police demonstrated phenolphthalein test and explained the significance of the test to the trap party members and completed the pre-trap proceedings by 9:30 A.M on 15.04.2011.
6. After completion of the pre-trap proceedings, the Deputy Superintendent of Police along with PW.1, mediators and his staff proceeded to Choppadandi Police Station in a TATA Sumo and two Motor Cycles and further PWs.1 and 2 followed them on Honda Activa and they reached near Choppadandi Police Station at 10:40 AM. The Deputy Superintendent of Police stopped the 7 vehicles at a distance of 500 yards from Choppadandi Police Station and reiterated earlier instructions to PWs.1 and 2 and directed them to go to the Police Station. Later, PWs.1 and 2 entered into the Police Station at 11:00 AM, and all the trap party members took their position around the Police Station and at 11:15 AM, PW.2- accompanying witness came out and relayed signal by wiping his face with handkerchief indicating demand and acceptance of bribe by the accused persons. On observing the said signal, the Deputy Superintendent of Police along with the trap party members rushed into Choppadandi Police Station and found accused officer No.1 in his seat and also observed some persons standing in the hall of the building. On seeing them, accused officer Nos.2 and 3 thrown away some currency notes on the ground in the grass from their pockets and ran towards backside of the police station, but the ACB officials chased and caught hold of accused No.3 at locker room and accused No.2 behind the Police Station near the toilets. The Deputy Superintendent of Police kept an Inspector - Srinivas Rao under 8 surveillance of accused officer No.1 and ascertained the details of accused officer No.2.
7. Later, the Deputy Superintendent of Police prepared sodium carbonate solution in two separate glass tumblers, conducted phenolphthalein test to the fingers of both hands of the accused officer No.2, upon which, both the right hand and left hand washes turned into pink colour. Thereafter, the Deputy Superintendent of Police questioned accused officer No.2 about the demand and acceptance of bribe, recorded his version and seized the tainted amount of Rs.1,000/-, which was seized from the ground in the grass near toilets. Furthermore, on verification of the numbers of the said amount with the numbers already mentioned in the pre-trap proceedings, both of them were tallied. Thereafter, the Deputy Superintendent of Police along with an Inspector and mediators apprehended accused officer No.3, conducted phenolphthalein test to the fingers of both the hands of accused officer No.3 and they turned into pink colour. On questioning about the tainted amount, accused officer No.3 produced Rs.15,000/- from his left side pant pocket. The 9 mediators verified the currency note numbers with the numbers already mentioned in the pre-trap proceedings and both the numbers were tallied.
8. Later, the Deputy Superintendent of Police along with the trap party entered into the Chambers of accused officer No.1, conducted phenolphthalein test to the hand fingers of accused officer No.1, but they did not turn into pink colour. The Deputy Superintendent of Police questioned accused officer No.1 with regard to the demand and acceptance of bribe and recorded his version. Thereafter, the Deputy Superintendent of Police recorded the version of PW.1 and also the accompanying witness. Later, the Deputy Superintendent of Police seized the Relief Book and Traffic Police Challan Book in the Police Station in the presence of mediators under the cover of Ex-P.14. Though the Deputy Superintendent of Police conducted searches in the houses of the accused officers, no incriminating material was found in their houses. Thereafter, he arrested accused officer Nos.1 to 3 and completed the trap proceedings.
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9. The Deputy Superintendent of Police examined PWs.1, 2, 5 and 7 and handed over the investigation to PW.19, who examined PWs.6,8,10,11,12,13 and 14 and filed a requisition before the Judicial Magistrate of First Class, Special Mobile Court, Karimnagar, to record the statements of PWs.1 and 2 under Section 164 Cr.P.C. PW.19 secured the call data details in respect of Mobile phones of PWs.1 and 6. He also secured the call data details of accused officer No.2 for the period from 01.02.2011 to 16.04.2011 and on examination of the calls, it was revealed that there was demand and acceptance of bribe amount. On transfer of PW.19, another ACB Inspector - PW.20 took up investigation and he submitted Draft Final Report to the Director, ACB and soon after receipt of the sanction proceedings, he filed charge sheet against accused officer Nos.1 to 3.
10. The case was taken cognizance against accused officer Nos.1 and 2 for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Act and the offence punishable under Section 12 of the Act against accused officer No.3.
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11. On behalf of the prosecution, PW.1 to 20 were examined and Exs.P.1 to P.35 were marked, besides M.Os.1 to 18. On behalf of the defence, though DW.1 was examined, no documents were marked.
12. After the closure of prosecution evidence, accused officer Nos.1 to 3 were examined under Section 313 Cr.P.C., but no incriminating material was found against him.
13. The accused officers filed a detailed written statement denying all the allegations leveled against them and stating that they have been falsely implicated in the case and that they never demanded any mamool/bribe as alleged by the prosecution.
14. The trial Court has framed the following points for determination:
i) Whether AO1 demanded and accepted Rs.15,000/- from PW1 through AO3 as gratification (mamool) other than legal remuneration, as a motive from not booking any cases against vehicles of Rajanala Sangam run by PW.1, PW.2, PW.5 and other members of the Society?
ii) Whether AO3 demanded and accepted Rs.1,000/- from PW.1 as a gratification other than legal remuneration for allowing him to meet AO1 in his chambers of Choppadandi Police Station?12
iii) Whether official favour for not booking criminal cases against the vehicles of Rajanala Sangam Society Members is pending with accused as on the date of the trap?
iv) Whether AO3 collected bribe amount of Rs.15,000/- from PW.1 on the instructions of AO1, thereby he aided and abutted AO1 in commission of the offences U/s.7 & 13 (1)(d) r/w 13(2) of Prevention of Corruption of Act, 1988 ?
v) Whether AO1 while discharging his duties as Sub Inspector of Police and AO2 and AO3 as Police Constables in Choppadandi Police Station abused their positions as Public Servants, obtained pecuniary advantage by corrupt and illegal means, thereby committed misconduct ?
vi) Whether prosecution proved the guilt for the offences u/s. 7 and 13 (1)(d) r/w 13(2) of Prevention of Corruption Act, 1988, against AO1 and AO2 and u/s. 12 of Prevention of Corruption Act, 1988 against AO3, beyond reasonable doubt ?
15. The trial Court, after hearing both sides and considering the entire material on record, came to the conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt and accordingly convicted and sentenced them as stated supra.
16. The learned counsel for the appellants contended that though all the material witnesses have turned hostile, the trial Court has convicted accused officer Nos.1 and 2 for the offences punishable under Sections 7 and 13 (1)(d) read with Section 13(2) 13 of the Act and accused officer No.3 for the offence under Section 7 of the Act, which is highly illegal and arbitrary. It is further contended that even as per Section 7 of the Act, the trial Court has to consider as to whether the accused officers have demanded illegal gratification from PW.1 or not ? and whether PW.1 has offered the amount as bribe and the same was accepted by the accused officers or not ? In the absence of any evidence as to the demand and acceptance of illegal gratification, the trial Court ought not to have granted moral conviction. It is further contended that the allegation made against accused officer No.1 is that he has demanded Rs.15,000/ - as bribe, but, no amount was seized from him; that even when phenolphthalein test was conducted, the hand fingers of accused officer No.1 did not turn into pink colour; despite the same, the trial Court has convicted accused officer No.1. Learned counsel further contended that accused officer Nos.2 and 3 are innocent and they are falsely implicated in the case. Therefore, the learned counsel has prayed this Court to set aside the conviction and sentence imposed against the appellant - accused officer Nos.1 to 3 vide the 14 impugned judgment and acquit the appellants/accused officer Nos. 1 to 3.
17. On the other hand, Sri Sridhar Chikyala, the learned Special Public Prosecutor for ACB, contended that though the material witnesses i.e., accompanying witness and mediators did not support the case of the prosecution, the trial Court has convicted the accused officers based on the evidence of the Trap Laying Officer and Investigating Officer. It is further stated that accused officer No.1 had obtained illegal gratification of Rs.15,000/- through accused officer No.3 and accused officer No.2 had obtained Rs. 1,000/- towards bribe, and therefore, the trial Court has rightly convicted and sentenced the accused officer Nos.1 to 3, and there is no illegality or irregularity in the impugned judgment and prayed to dismiss the criminal appeals.
18. Admittedly, at the time of the alleged occurrence, accused officer No.1 was working as Sub Inspector of Police and accused officer Nos.2 and 3 were working as Police Constables in Choppadandi Police Station and they come under the category of public servants, as defined under Section 2(c) of the Act. PWs.1, 2 15 and 6 and some other villagers of Arnakonda Village formed a Society namely Rajanala Sangam, for carrying goats and sheeps (cattle) business by carrying the same in vehicles and selling the same in Karimnagar, Gangadhara, Jammikunta and other neighbouring towns, since long time.
19. The case of the prosecution is that while P.W.1 and other members of Rajanala Sangam were transporting sheeps and goats in the vehicles for selling the same at various places, accused officer No.1 demanded and accepted Rs.15,000/- from PW.1 through accused officer No.3 for not booking any cases against the vehicles being run by P.Ws.1, 2 and 6 and other members of Rajanala Sangam and that accused officer No.2 demanded and accepted Rs.1,000/-, as illegal gratification. It is the further case of the prosecution that accused officer No.1 being the Sub-Inspector of Police and accused officer Nos.2 and 3 being the Police Constables, abused their position as public servants, and demanded and accepted illegal gratification, and thereby committed misconduct. Therefore, the accused officers have 16 committed the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Act and Section 12 of the Act.
20. Now, the points for determination in the present appeals are:
"Whether the prosecution was able to prove the guilt of the accused beyond reasonable doubt for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Act and Section 12 of the Act ? and Whether the trial Court was proper in convicting the accused for the alleged offences?
21. In order to determine the above points, it is necessary to re- appreciate the evidence on record.
22. Jakkula Saraiah (P.W.1) is the de facto complainant; Lanka Anjaiah (P.W.2) is the accompanying witness; Gurram Srinivas (P.W.3), who is the Veterinary Assistant Surgeon, is one of the mediators for the pre and post trap proceedings and Uddanda Naresh Kumar (P.W.4), who is the Veterinary Assistant, is another mediator for the pre and post trap proceedings. 17
23. However, P.Ws.1 to 4 did not support the case of the prosecution and turned hostile. Therefore, it is clear that none of the witnesses have spoken about the demand and acceptance of bribe by the accused officers on the date of trap proceedings.
24. Muche Madhusudhan Reddy (P.W.5), the Assistant Sub Inspector of Police, was the Guard Incharge of Choppadandi Police Station on the date of trap. Though he spoke about occurrence of the trap in the Choppadandi Police Station, he did not support the case of the prosecution and turned hostile.
25. M.Jannaiah (P.W.6), one of the elders of Rajanala Sangam, was examined to speak about the harassment made by the accused for mamools. But, he also turned hostile.
26. Goli Srinivaas Reddy (P.W.7), who is the Police Constable in Choppadandi Police Station, was on guard duty on the date of trap. Though he was examined to speak about the occurrence, he did not support the case of the prosecution and turned hostile.
27. Puli Anjaiah (P.W.8), driver of the auto trolley, was examined to speak about the harassment made by accused officer 18 No.1 for mamools. However, he did not support the case of the prosecution and turned hostile.
28. Likewise, R. Srinivas (P.W.9), T.Komuraiah (P.W.10), S.Rajaiah (P.W.11), J. Prabhakar (P.W.12) and B. Mallesham (P.W.13), who are the drivers of the autos and trolleys, were examined to speak about the harassment made by accused officer No.1, but, they also did not support the case of the prosecution and turned hostile.
29. The other witnesses i.e., Bandari Krishna Goud (P.W.14), who is the Circle Inspector of Choppadandi Police Station, stated that accused officer Nos.1 to 3 were trapped by ACB on 15.04.2011 on demand and acceptance of mamools from P.W.1 for not imposing fines on autos and trolleys.
30. V. Chiranjeevi (P.W.15), who is an Engineer in BSNL, deposed about CDR details in respect of mobile phone numbers of P.Ws.1 and 6.
31. B. Shiva Shankar (P.W.16), who is Section Officer, deposed about issuance of sanction order - Ex.P.31 in respect of accused 19 officer No.1 and Ex.P.32 in respect of accused officer No.2 by then Principal Secretary to the Government - Sri T. Pandadas and he identified the signatures of Sri T. Pandadas in Exs.P.31 and P.32.
32. P. Jaipal (P.W.17), Deputy Superintendent of Police, ACB, Karimnagar, has deposed about the receipt of complaint, registration of FIR, laying of trap and apprehension of accused officer Nos. 1 to 3 on the date of trap at Choppadandi Police Station and seizure of tainted amounts of Rs.15,000/- from accused officer No.2 and Rs.1,000/- from accused officer No.3 during post trap proceedings.
33. Chinna Ramaiah (P.W.18), who is the Nodal Officer of Bharathi Airtel Limited, deposed about furnishing ownership particulars and call details in respect of mobile phone number pertaining to accused officer No.2.
34. P. Sambaiah (P.W.19), who is the Inspector of Police, ACB, Karimnagar Range, stated that he accompanied the Deputy Superintendent of Police in the trap proceedings and after the 20 trap, he conducted investigation in this case, examined witnesses and collected material.
35. V.V. Ramana Murthy (P.W.20), who is the Inspector of Police, ACB, is the final Investigating Officer. He submitted draft final report to the Director General, ACB, Hyderabad, after completion of entire investigation and stated about filing of charge sheet against the accused soon after receipt of sanction proceedings in respect of accused officer Nos.1 and 2.
36. On behalf of the accused, one G. Srinivas of Vedurugatta Village was examined as D.W.1. He deposed that on 15.04.2011 at 10:00 A.M., he went to Choppadandi Police Station to enquire about the complaint lodged against his cousin brother in respect of a civil dispute. At that time, accused officer No.1 was in the reception area and talking with some persons by sitting in a chair and in the meanwhile, the ACB officials entered into the police station and conducted some enquiry.
37. Accused Officer No.1 has filed a written statement denying the allegations of demand and acceptance of bribe and stating that 21 he never demanded any mamool from P.W.1 nor directed accused officer No.3 to collect the alleged tainted amount as bribe on the day of trap. The specific plea taken by the accused officer No.1 is that he was appointed as Sub-Inspector of Police in 1996 and was discharging his duties to the utmost satisfaction of all his superior officers and that he had put in unblemished service of 15 years. It is further stated that he was falsely implicated in the case, as after assuming charge at Chopadandi Police Station, he has evinced maximum efforts to control the traffic problem in Choppadandi, more particularly, near the vicinity of the police station where some other public offices are also located. It is further stated that the vehicles belonging to the said Rajanala Sangam were causing severe traffic problems, as the members of the said Sangam were parking their vehicles and doing sandy business in busy area, as such, he severely warned them not to stop their vehicles and not to do business in busy area. Even, he convened a meeting prior to 13.04.2011 and the same was attended by P.Ws.1, 2, 6 and other members of Rajanala Sangam, and the then Sarpanch and Ward Members of the Grampanchayat, Choppadandi. In the said 22 meeting, it was proposed to Rajanala Sangam to shift their sandy market to the Shambunigudi area of Choppadandi. As the said proposal was not acceptable to the Rajanala Sangam, they falsely implicated the accused officer No.1 in the crime. It is further stated that the accused officer No.1 never demanded any mamools from P.W.1 much less Rajanala Sangam and he never directed the accused officer No.3 to collect any amount from P.W.1.
38. Accused officer No.2 and accused officer No.3 also filed their written statements in similar lines as that of accused officer No.1. It is the specific contention of the accused officer No.2 that on date of trap i.e., on 15.04.2011, while he was coming into the police station from back side, P.W.1 thrusted the alleged tainted amount into his left side shirt pocket in spite of his resistance with both the hands, as such, he took amount and thrown it away and in the meanwhile, P.W.17 along with his trap party members accosted him near the toilets of the police station. When questioned by P.W.17, he spontaneously stated to him as to what 23 had happened prior to accosting him by P.W.17 and the trap party, and the same was corroborated by P.Ws.3 and 4.
39. Accused officer No.3 specifically stated in his written statement that on 15.04.2011, while he was coming into the hall of the Police Station, P.W.1 tried to give the alleged tainted amount of Rs.15,000/-, but he refused to take the same. Then, P.W.1 thrusted the amount into his left side pant pocket in spite of his resistance with both the hands and when he was about to return back, both P.Ws.1 and 2 went out and within no time, the ACB officials rushed into the Police Station and accosted him. When questioned by P.W.17, he has spontaneously represented to him as to what happened prior to the accosting him by the ACB officials. To circumvent the above spontaneous representation, P.W.17 got drafted the Second Mediators Report under Ex.P.14 with all false recitals against the actual events that have occurred, which is corroborated by the evidence of P.Ws.3 and 4 - the mediators.
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40. A perusal of the entire record discloses that none of the witnesses have spoken about the demand and acceptance of illegal gratification/bribe amount by accused officer Nos.1 to 3.
41. In this context, it is apt to refer to the relevant provisions of the Act.
Section 7 of the Act reads as under:
7. Offence relating to public servant being bribed.--Any public servant who,--
(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or
(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation 1.--For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.
Explanation 2.--For the purpose of this section,-- 25
(i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;
(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party."
42. As per the above Section, any public servant who obtains or accepts or attempts to obtain, an undue advantage from any person while performing public duty shall be punishable with imprisonment for a term which shall not be less than three years but which may extend upto seven years and shall also be liable to fine.
43. Explanation I of the said provision clearly discloses that obtaining, accepting, or attempting to obtain undue advantage shall itself constitute an offence even if the performance of a public duty by public servant is not or has not been improper.
44. Explanation II of the said provision clearly discloses that the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or 26 "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means.
45. In the present case, there is no evidence on record from the material witnesses that the accused officer Nos.1 to 3 have demanded for bribe and accepted illegal gratification by misusing their official position.
46. Section 12 of the Act reads under:
"12. Punishment for abetment of offences.--Whoever abets any offence punishable under this Act, whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall not be less than three years, but which may extend to seven years and shall also be liable to fine."
47. Section 13(1)(d) of the Act reads as under:
"1. A public servant is said to commit the offence of criminal misconduct,-
(d) if he,--
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or 27
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest."
48. Section 13(1)(d) of the Act discloses that a public servant is said to have committed the offence of criminal misconduct if he by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
49. Section 13(2) of the Act reads as under:
"(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."
50. As per the above provision, any person who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.
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51. As stated supra, there is no evidence on record to show that accused officer Nos.1 to 3 have committed the offence of criminal misconduct by abusing their position as public servants.
52. In criminal cases, the burden is always on the prosecution to prove the guilt of the accused beyond reasonable doubt and till then, the accused shall be presumed to be innocent.
53. A perusal of the impugned judgment clearly discloses that the reasoning given by the trial Court in convicting the accused is not satisfactory or convincing. This is not a case of circumstantial evidence. The case is relating to direct evidence.
54. As per the case of the prosecution, P.Ws.1 and 2 are the material witnesses to prove the guilt of the accused for demand and acceptance illegal gratification as stated supra. But, they turned hostile. P.Ws.3 and 4 are the mediators, who are cited to speak about the pre-trap and post-trap proceedings, but, they also turned hostile. P.W.5, who is the witness to speak about the place of trap, also turned hostile. The other material witnesses i.e., P.Ws. 6 to 13 are supposed to speak about the demand made by 29 accused officer No.1 as far as mamools are concerned from Rajanala Sangam is concerned. Though all the witnesses relate to Rajanala Sangam, none of them have spoken about the demand made by accused officer No.1 for mamools for the purpose of transporting sheeps and goats in the vehicles.
55. Except the evidence of the Investigating Officers of the ACB, there is no other evidence on record. The trial Court has relied upon the 164 Cr.P.C statements of the witnesses and corroborated them with the evidence of the Investigating Officers and has given moral conviction to accused officer Nos.1 to 3.
56. In the absence of any evidence as to the demand or acceptance of bribe, the appellants cannot be convicted.
57. The statement recorded under Section 164 Cr.P.C is a weak piece of evidence and solely relying on the 164 Cr.P.C. statement, the Court cannot convict the accused and if at all the Court feels that the witnesses, who have given statements under Section 164 Cr.P.C., resiled from their statements, the utmost remedy 30 available to the trial Court is to punish the witnesses for the offences of perjury.
58. Admittedly, in the instant case, the trial Court has taken into consideration the fact that the witnesses have committed an offence under Section 340 Cr.P.C and thought of taking further action against them by 20.12.2018. But, once there is no evidence on record before the trial Court, the question of convicting the accused in a criminal trial is not sustainable in the eye of law. Furthermore, the call details of accused officer No.1 discloses that on the date of offence he was not at all in Choppadandi and he was at a different location.
59. In view of the above discussion, this Court is of the considerable opinion that the conviction and sentence imposed against the appellants-accused officer Nos.1 to 3 are liable to be set aside and the appellants are entitled for acquittal for the offences with which they are charged.
60. Accordingly, the Criminal Appeals are allowed and the judgment dated 20.11.2018 passed by the Special Judge for Trial of 31 SPE & A.C.B. Cases, Karimnagar, in Calendar Case No.75 of 2015, is hereby set aside. The accused officer Nos.1 and 2 are acquitted of the offences under Sections 7 and 13(1)(d) read with Section 13(2) of the Act and accused officer No.3 is acquitted of the offence under Section 12 of the Act. Their bail bonds shall stand cancelled. MO Nos.1 and 2 shall be confiscated to State and MO Nos.3 to 18 shall be destroyed after completion of appeal period.
Pending miscellaneous applications, if any, shall stand closed.
__________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 03..10..2023 va