Mandula Prabhu And Another, vs State Of A.P., Rep By Spl. Pp.,
2022 Latest Caselaw 1025 Tel

              THE HON'BLE Dr. JUSTICE G. RADHA RANI

                    CRIMINAL APPEAL No.1139 of 2007


JUDGMENT:

This appeal is filed by the appellants - Accused Officers No.1 and 2

aggrieved by the conviction and sentence passed by the Principal Special Judge

for SPE & ACB Cases, Hyderabad vide Judgment dated 24.08.2007 in CC

No.19 of 2002, wherein the appellants - AO1 and AO2 were found guilty for the

offences under Sections 7 and 13 (1) (d) punishable under Section 13 (2) of the

Prevention of Corruption Act, 1988 (for short 'the Act') read with Section 201

IPC and sentenced to undergo rigorous imprisonment for one year and fine of

Rs.1,000/- in default of payment of fine amount to undergo simple

imprisonment for one month each separately for both the offences under

Sections 7 and 13 (1) (d) punishable under Section 13 (2) of the Act and both the

sentences were directed to run concurrently.

2. The brief facts that are necessary for disposal of the appeal are that the

1st appellant - Accused Officer No.1 (hereinafter referred to as 'AO1') worked

as Sub-Inspector of Police of Banjara Hills Police Station and the 2nd appellant -

Accused Officer No.2 (hereinafter referred to as 'AO2') worked as Police

Constable of the same police station. AO1 demanded and accepted an amount

of Rs.10,000/- from the complainant as illegal gratification other than legal

remuneration on 16.05.1999 for not ill-treating and harassing one Khaja Dr.GRR,J

Azeemuddin in lock-up and for not taking him to police custody and also for

doing official favour in the case pending against him. AO2, who was well

aware of the fact that AO1 received bribe amount during the course of trap,

collected the tainted currency from Mohd. Abdul Khader, Proprietor of

Mountain Bakery at Road No.2, Banjara Hills, Hyderabad and handed over the

same to Sri Kaveti Srinivasu @ Srinu, Proprietor of Fair Price Shop, Old Kattal

Mandi, Hyderabad as per the instructions of AO1.

3.1. The case of the prosecution as per the charge sheet filed by the

Inspector of Police, ACB, was that one Nagendra Babu lodged a complaint in

the Banjara Hills Police Station against Khaja Azeemuddin and 20 others on

01.05.1999 and the same was registered as Crime No.193 of 1999 by the

Banjara Hills Police. On the same day, the police arrested A2 to A16 and sent

them to judicial custody on 02.05.1999. Thereafter, on 14.05.1999 Sri M.

Prabhu, Sub-Inspector of Police, Banjara Hills Police Station (AO1) arrested

Khaja Azeemuddin (A1 in the said crime) and produced him before the V

Metropolitan Magistrate, Hyderabad on 15.05.1999. He sought police custody

of Khaja Azeemuddin for two days and in pursuance of the orders of the said

Court, brought him to the police station. On 15.05.1999 at about 7.00 PM, AO1

demanded an amount of Rs.1,00,000/- as bribe from Khaja Azeemuddin for not

ill-treating and harassing him in the lock-up and for not taking him for further Dr.GRR,J

police custody and for doing official favour of closing the case pending against

him. When Khaja Azeemuddin expressed his inability to pay such huge amount

as bribe, AO1 reduced the amount to Rs.20,000/- and threatened to pay the

amount on the next day i.e. on 16.05.1999, otherwise, he would take him into

further police custody and the said pending case would be finalized against him.

Then, Khaja Azeemuddin called his friend Abdul Haqee Qamar (complainant in

the present case) on phone, who came to the Banjara Hills Police Station at 9.00

PM and met Khaja Azeemuddin, who was in lock-up. Khaja Azeemuddin

informed him about the demand made by AO1. Since AO1 was not available in

the police station at that time, the complainant approached one Mohd. Sharief,

the Assistant Sub-Inspector of Police, Banjara Hills Police Station and it was

informed by the ASI that the Sub-Inspector of Police (AO1) instructed him to

collect the bribe amount of Rs.20,000/- from the person whoever would come

for Khaja Azeemuddin in his absence and so saying asked for payment of

Rs.20,000/-. The complainant stated that he did not have that much amount with

him. Then, the ASI asked the complainant to meet AO1 on the next day

morning in the police station. The complainant went to the police station to

meet AO1 on 16.05.1999 at 11.00 AM. AO1 instructed to pay atleast

Rs.10,000/- on the said evening stating that Khaja Azeemuddin would not be ill-

treated and harassed. Further, he also directed the complainant to pay the Dr.GRR,J

remaining bribe amount on the next day i.e. 17.05.1999 before Khaja

Azeemuddin would be sent to the Court so that he would not be taken for further

police custody and he would be released on bail from the court. The complainant

who was not willing to pay any bribe amount to AO1, lodged a complaint with

the DSP, ACB, CIU, Hyderabad on 16.05.1999 at 3.00 PM and the same was

registered as Crime No.5/ACB-CIU-HYD/99 for the offences under Sections 7

& 11 of the Act.

3.2. During the course of investigation, the DSP secured the services of

one Sri K.V.V Satyanarayana, Assistant Commissioner (Admn.), MCH,

Hyderabad and Sri M. Gopal, Senior Assistant, Office of the Chief

Commissioner, Land Administration, Hyderabad as mediators and laid trap

against the appellants on 16.05.1999 in the Banjara Hills Police Station after

observing all formalities required for a trap. On the same day, the complainant

approached AO1 in the Banjara Hills Police Station. On seeing the complainant,

AO1 asked him about the bribe amount. When the complainant replied

affirmatively, AO1 came out of the police station and went near his scooter

bearing No.AEA 6920 and opened the dickey of the scooter and instructed the

complainant to keep the bribe amount in the dickey. Accordingly, the

complainant kept Rs.10,000/- in the dickey of the said scooter. Immediately, Dr.GRR,J

after accepting the said bribe amount, AO1 locked the dickey and started the

scooter and left the police station.

3.3. The further case of the prosecution was that AO1 after accepting the

tainted currency of Rs.10,000/- from the complainant, left the police station and

handed over the said amount to Sri Shaik Khaja Mia, the salesman in Mountain

Bakery, who inturn handed over the same to his master Mohd.Abdul Khader on

the same night i.e. on 16.05.1999. As per the instructions of AO1, Sri Gande

Venkateshwarlu - PC-8317 of the Banjara Hills Police Station (AO2) who was

well aware of the fact that AO1 received the bribe amount, collected the said

tainted currency from Mohd.Abdul Khader on the early morning of 17.05.1999

and handed over the same to one K. Srinivas at Banjara Hills Police Station as

instructed by AO1. The tainted currency of Rs.9,200/- was recovered from the

possession of K. Srinivas at the instance of AO1 and AO2 in the presence of

mediators and the remaining tainted amount of Rs.800/- could not be recovered

as said K. Srinivas stated that he spent the said amount for purchase of 50 kgs.,

of rice bag from the shop. The Inspector, ACB, on completing the investigation

and after obtaining sanction from the competent authority to prosecute the

accused officers filed charge sheet against them for the offences under Section 7

and 13 (2) read with 13 (1) (d) of the Act read with 34 and 201 IPC.

Dr.GRR,J

4. After taking cognizance of the case, the learned Principal Special

Judge for SPE & ACB Cases, Hyderabad, had framed the following charges

against AO1 and AO2:

FIRSTLY:

That, A.Os.1 and AO.2 of you being public servants employed as Sub-Inspector of Police and Police constable No.8317 respectively, of Banjara Hills Police Station, Hyderabad City, on 16.05.1999, as per earlier demands of AO.1 of you, AO.1 of you have demanded and accepted bribe amount of Rs.10,000/- from the complainant Mohd.Haque Qamar S/o.Abdul Haque, aged 39 years, Occ: Proprietor of Firdous Cafe, Premises No.16-11-23/16/11, Amberpet, Hyderabad and that AO.2 of you knowing full aware of the fact that AO.1 of you involved in a trap case, has collected the said bribe amount from LW.4 Mohd.Abdul Khader S/o. Mohd. Khaja and handed over the same to LW.5 Mr. Kaveti Srinivas @ Srinu S/o. Late K. Venkataiah, as a motive or reward for doing official favour i.e. for not ill-treating Khaja Azeemudidn in lock up and for not taking him into police custody, and thereby both of you have committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and within my cognizance.

SECONDLY:

That, both A.O.1 and A.O.2 of you, being public servants employed as mentioned in Charge No.1 on 16.05.1999, by corrupt or illegal means or otherwise abusing your position as public servants obtained for yourselves pecuniary advantage to an extent of Rs.10,000/- from complainant Mohd. Abdul Haque Qamar S/o. Abdul Haque, aged 39 years, Occ: Proprietor of Firdous Cafe, Premises No.16-11-23/16/11, Amberpet, Hyderabad, as illegal gratification other than legal remuneration for doing official favour i.e. for not ill-treating and harassing Khaja Azeemuddin in lock up and for not taking him into police custody, and thereby both of you have committed offence specified U/s.13(1)(d) of the Prevention of Corruption Act, 1988, punishable U/s.13(2) of the P.C. Act, r/w Sec.34 IPC and within my cognizance.

THIRDLY:

That A.O.2 of you being public servant as mentioned in Charge No.1, on 17.05.1999 in the early morning, knowing fully aware of the fact that AO.1 of you involved in the trap case on Dr.GRR,J

16.05.1999 as you were present at the spot, as per the instructions of AO.1 of you, AO.2 of you collected the said bribe amount of Rs.10,000/- from LW.4 Mohd. Abdul Khader S/o. Mohd. Khaja and handed over the said bribe amount to LW.5 Mr. Kaveti Srinivas @ Srinu S/o. Late K. Venkataiah causing any evidence of the commission of the said offence to disappear, with an intention to screen the offender from legal punishment under the Provisions of P.C. Act, 1988, and thereby, AO.2 of you committed an offence punishable under Secitn-201 IPC and within my cognizance.

5. To substantiate the charges, the prosecution got examined PWs.1 to

13 and got marked Exs.P.1 to P.20 and MOs.1 to 7. The Accused Officers got

examined DWs.1 and 2 and got marked Ex.X1 on their behalf.

6. On considering the oral and documentary evidence on record, the trial

court convicted AO1 for the offences under Sections 7 and 13(1)(d) r/w 13(2) of

Act and sentenced to undergo Rigorous Imprisonment for one year and fine of

Rs.1,000/- in default of payment of fine to undergo Simple Imprisonment one

month on each count and sentenced AO2 to undergo Rigorous Imprisonment for

one year for the charge under Section 7 of the Act read with 201 IPC and to pay

a fine of Rs.1,000/- in default of payment of fine amount to undergo Simple

Imprisonment for one month. AO1 is also sentenced to undergo Rigorous

Imprisonment for one year for the charge under Section 13(1)(d) read with 13(2)

of the Act and to pay a fine of Rs.1,000/- and in default of payment of fine

amount to undergo Simple Imprisonment for one month. All the substantive Dr.GRR,J

sentences of imprisonment are directed to run concurrently against both the

accused officers.

7. Aggrieved by the said conviction and sentence imposed by the trial

court, both the accused officers preferred this appeal contending that the learned

Principal Special Judge erred in convicting them under Sections 7 and 13(1)(d)

read with 13(2) of the Act. The learned Judge failed to see that the ingredients to

constitute the above offences were not made out by legal evidence. The learned

Judge erred in relying upon the testimony of PWs.1 and 2 which was highly

interested and discrepant in material particulars, the learned Judge ought to have

seen that the money was not recovered from the person of AO1, and AO2 had

nothing to do with AO1 and never worked under AO1. The learned Judge failed

to see that even according to prosecution, AO1 washed his hands and came out

when trap party came to his house. When such was the position, the question of

hands of AO1 turning positive to phenolphthalein test would not arise. The

learned Judge ought to have seen that PWs.1 and 5 resiled from their earlier

versions and did not support the case. The learned Judge should have noticed

that the evidence of DWs.1 and 2 would falsify the case of the prosecution. In so

far as demand by AO1 is concerned, it was not proved as PW.1 did not support

the case and no money was recovered from AO1 to prove acceptance. The

learned Judge failed to see that both the appellants - Accused Officers gave Dr.GRR,J

spontaneous explanation which was not considered by the court and prayed to

allow the appeal.

8. Heard Sri H. Prahlad Reddy, learned counsel for the 1st appellant -

AO1, Sri T.S.Anirudh Reddy, learned counsel for the 2nd appellant - AO2 and

Sri Ch. Vidyasagar, the learned Standing Counsel and Special Public Prosecutor

for ACB.

9. The learned counsel for the AO1 submitted that there was no official

favour that could be done by AO1 as PW.2 was in the police station in

pursuance of the orders of learned Magistrate granting police custody, PW.1 the

decoy witness turned hostile, as such there was no evidence for the demand and

acceptance of the bribe amount of Rs.10,000/-. Only Rs.9,200/- was recovered,

that too not from AO1. The statements of witnesses under Section 161 Cr.P.C.

were recorded approximately 4 months after the incident. One of the mediators,

who acted as a shadow witness was not examined by the prosecution for the

reasons best known to them. There were grave discrepancies in the statements of

the prosecution witnesses. PW.2 stated that AO1 demanded Rs.1,00,000/- on

15.05.1999 at 4:00 PM or 5:00 PM, whereas PW.9 categorically stated that the

escort brought PW.2 to the police station on 15.05.1999 at 7:00 PM. In the

Register also it was mentioned that PW.2 was brought to the Police Station on Dr.GRR,J

15.05.1999 at 7:00 PM, which would prove that PW.2 was not speaking truth as

he had grouse against AO1 as AO1 had arrested him in Crime No.193 of 1999.

This would falsify the allegations of demand. Initially, there were allegations in

the complaint against ASI-Syed Mahmood, however, his name was removed by

the Investigating Authorities. The important factor to note was that both the

complainant and PW.5 from whom the recovery was made, turned hostile and

prayed to allow the appeal by acquitting the 1st appellant - AO1.

10. The learned counsel for 2nd appellant - accused officer No.2

contended that AO2 was merely a police constable who could not and did not

offer any official favour to PW.2. AO2 had not demanded the amount from

PW.2 or PW.1 and he had not accepted the amount. Even as per the prosecution

story, upon the instructions, he merely collected the said amount from PW.4 not

knowing that the said amount was bribe amount. No knowledge could be

attributed to him that he was aware that it was tainted money. No recovery was

made from AO2, hence, he was not liable to convict for any of the offences

under Sections 7 and 13(1)(d) read with 13(2) of the Act and Section 201 IPC

and prayed to set aside the conviction and sentence recorded against the 2nd

appellant - AO2.

Dr.GRR,J

11. The learned Standing Counsel and Special Public Prosecutor for ACB

supported the judgment of the trial court stating that it was a well reasoned order

explaining all the contentions raised by the learned counsel for the appellants

and there was no reason to interfere with the same.

12. In the light of the above contentions of both parties, it is considered

necessary to evaluate the evidence of the witnesses examined by the prosecution

to see whether it is sufficient to establish the charges against the appellants -

Accused Officers No.1 and 2.

13. It is settled principle of law that the offences should be proved

against the accused officers beyond reasonable doubt either by direct evidence

or by circumstantial evidence. If the case is proved by circumstantial evidence,

each link of the chain should point towards the guilt of the accused. Leaving no

loose links, the prosecution have to lead cogent evidence in this regard.

14. To establish the charge against A1, the prosecution in relation to the

demand and receipt of illegal gratification had examined 7 witnesses. PWs.1 to

6 and PW.11 i.e., PW.1 - Mohd. Abdul Haqee Qamar - complainant, PW.2 K.

Azeemuddin - the victim in police custody, PW.3 - Sh. Khajamiya - the worker

in the Mountain Bakery, PW.4 - Md. Abdul Khader - owner of the Mountain

Bakery, PW.5 - K. Srinivasu, from whom the money Rs.9,200/- was alleged to Dr.GRR,J

be recovered, PW.6 - the Assistant Commissioner (Administration), MCH,

Hyderabad, who acted as a mediator for the pre-trap and post-trap proceedings

and PW.11 - DSP, ACB, who laid the trap and conducted investigation. The

evidence of other witnesses is formal in nature.

15.1. PW.1-complainant stated that during the year 1999, in the month of

April or May, he came to know through his friend Pashu Miya that Khaja

Azeemuddin was in Banjara Hills Police Station lock-up and that police were

harassing him and asking him to pay bribe. He did not go to the police station at

that time. He and the said Pashu Miya approached the ACB officials at

Hyderabad and met DSP, ACB Sri P.V. Subba Rao (PW.11). Pashu Miya

narrated the details to the DSP and since Pashu Miya was unable to scribe the

complaint, on the instructions of DSP, he scribed the complaint which was

marked as Ex.P.1. He admitted that Ex.P.1 was in his hand writing and the same

was submitted to DSP, ACB at 3.00 PM on 16.05.1999. He stated that whatever

was narrated by Pashu Miya was reduced into writing by him in Ex.P.1. The

DSP asked him to bring Rs.10,000/- in the evening itself to give the same to the

police officials. Accordingly, on 16.05.1999 at about 7.00 PM or 7.30 PM he

went to the office of the DSP, ACB with the said amount. He found two or

three Government Officials present in the office of the DSP and the DSP got

noted the serial numbers of the currency notes through his clerk and Dr.GRR,J

demonstrated the chemical test to be conducted. He further stated that some

white powder was applied to the currency notes by one of the subordinates of

the DSP and the tainted amount was kept in his pant pocket. The DSP instructed

him to comply with the demand of the AO1 and to give signal to the DSP by

making a phone call through his cell phone to the cell phone of the DSP.

15.2. He further stated that they left the office of the DSP towards

Banjara Hills Police Station and he was accompanied by Pashu Miya and the

DSP in his jeep and the trap party came in another vehicle. Between 8.30 PM

and 9.00 PM on 16.05.1999 they reached Banjara Hills Police Station. He

parked his Jeep in the compound of the police station and gave the tainted

amount of Rs.10,000/- to Pashu Miya and instructed him to enter inside the

police station and pay the said amount to the police officials who demanded the

amount. The said Pashu Miya placed the said amount in the scooter dickey

which was available in the police station. Then he instructed Pashu Miya to take

out the said money from the scooter dickey and to pay the same to the police

officials directly. Accordingly, Pashu Miya took the said money from the

scooter dickey and entered into the police station. Within three minutes of the

said Pashu Miya entering into the police station, AO1 came out of the police

station. Pashu Miya was behind AO1 at the police station and he gave a signal Dr.GRR,J

to him by pointing out his right hand index finger and after receiving the said

signal, he gave a pre-arranged signal to the DSP on his cell phone.

15.3. The witness deviated from the prosecution story and the statement

given by him to the ACB Officials earlier under Section 161 Cr.P.C. He had

introduced a total new story about the presence of one Pashu Miya, whose name

was not found either in the FIR or in the mediators report. He was declared as

hostile by the Special Public Prosecutor and in his cross-examination by the

Special Public Prosecutor he denied the suggestion given to him. He failed to

state about the demand made by AO1 prior to lodging the complaint or after

lodging the complaint when he went to the police station and gave the tainted

amount to AO1. He failed to state that he met AO1 or handed over the said

amount to AO1. He stated that he instructed his friend Pashu Miya by handing

over the tainted amount to him and asked him to give it to the Sub-Inspector

(AO1). Thus, his evidence was no way useful to prove the demand and

acceptance of the bribe or the tainted amount by AO1. He stated that he had

seen AO1 for the first time on 16.05.1999 when he went to the police station

along with ACB officials.

15.4. In the cross examination by the defence counsel, PW.1 stated that

he had no personal acquaintance with Azeemuddin. Azeemuddin was introduced Dr.GRR,J

to him by Pashu Miya only once. He had no occasion to interfere in the matter

of Azeemuddin and his case and he never visited Banjara Hills Police Station or

AO1 in the said connection. He stated that AO1 never demanded any amount

from him in the matter of Azeemuddin or in any manner. He stated that while

Pashu Miya was narrating, the DSP dictated the contents of Ex.P.1 to him and

accordingly, he scribed the same. At the time of scribing Ex.P.1, Pashu Miya

did not describe the names and designations of the police personnel. The DSP

narrated the names of AO1 and the ASI at the time of his scribing Ex.P.1, after

ascertaining the same on telephone. He stated that there was no lock to the

scooter dickey and it was having press button.

16. The victim Khaja Azeemuddin examined as PW.2, stated that he was

tenant of Plot No.2, Road No.2, Banjara Hills, where he was doing granite

business. The property belonged to one K.B. Ravikumar. He was paying

Rs.750/- per month as rent from 1995. In the meanwhile, the said Ravikumar

expired during the year 1997. The widow of said Ravikumar along with one

Nagendra Babu threatened him to vacate the said plot. Therefore, he filed a civil

suit and obtained injunction orders. Subsequently, the said Nagendra Babu

trespassed into the premises when the injunction orders were in force. He

approached the police officials at Banjara Hills Police Station. They failed to

register a case stating that it was a civil matter. Thereafter, he approached a Dr.GRR,J

lawyer and filed a private complaint against Nagendra Babu and Smt. Jalaja-

land lady, wife of the deceased Ravikumar. The court referred his complaint to

Banjara Hills Police Station for investigation and the Police did not take action

on the said referred complaint and on the other hand, on the complaint of

Nagendra Babu, Banjara Hills Police registered a criminal case vide Crime

No.193 of 1999 against him and his employees and arrested all his employees

and produced them in court. The said criminal case was still pending. He

applied for anticipatory bail but the same was not granted to him. On

14.05.1999 he was arrested by AO1 and on 15.05.1999 he was produced before

the concerned Magistrate and he was taken into police custody by the orders of

the Court. He was put inside the lock-up at Banjara Hills Police Station. AO1

got his presence into his room at about 4.00 PM or 5.00 PM on 15.05.1999 and

asked him to pay Rs.1,00,000/- as bribe for closing the case and not to ill-treat

him. He expressed his inability to pay that much amount and informed AO1

that he could arrange to pay an amount upto Rs.20,000/-. Thereafter, with the

permission of AO1 he spoke to his friend Pashu Miya, who expired by the date

of his giving evidence. Thereafter, the said Pashu Miya came to the police

station and discussed the matter with him. Subsequently, Pashu Miya went to

the complainant. Thereafter, the complainant came to the police station on the

same day i.e. on 15.05.1999. He was in the lock-up. The complainant discussed Dr.GRR,J

with AO1. He did not know the details of the negotiations. He further stated

that on 16.05.1999 i.e. on sunday morning, PW.1 came to the police station and

discussed the matter with AO1. While he was in the lock-up room of the said

Police Station late night on 16.05.1999, ACB officials enquired with him as to

what all happened and he narrated them the details.

17. Thus, this witness also stated about the involvement of one Pashu

Miya whose reference was not found anywhere in the case of the prosecution.

He also stated about PW.1 coming to the police station on 15.05.1999 and

discussing with AO1. The same was contradictory to the evidence of PW.1, who

stated that AO1 was not available in the police station on 15.05.1999. But,

PW.2 stated that he did not know the details of negotiations as he was in the

lock-up room at that time.

18. In his cross-examination by the defence counsel, PW.2 stated that

AO1 did not help him in the criminal case, on the other hand, he and his

employees were arrested by AO1 and were produced before the Court. AO1

helped Nagendra Babu and the landlady. He felt bad that AO1 was doing

injustice to him, as AO1 also made a requisition to the court seeking his police

custody and obtaining orders. He stated that he did not complain about AO1 to

the Circle Inspector about the demand of money. He denied that he was not Dr.GRR,J

called to the room of AO1 from lock-up and AO1 did not make any demand of

bribe of money on 15.05.1999 or on any other day and that he was deposing

false on account of severe grouse against AO1.

19. Naturally PW.2 was having a grievance against AO1 as he had not

acted upon the private complaint lodged by him, but arrested him on the

complaint of his opponent Nagendra Babu and for seeking his custody. Hence,

there is animosity for PW.2 to speak against AO1 about the demand of illegal

gratification by AO1. It was suggested to him in his cross-examination by the

defence counsel that he was brought from central prison, Cherlapally on

15.05.1999 at 7.00 PM and he gave false evidence about AO1 calling him to his

room on 15.05.1999 at 5.00 PM and demanded bribe from him, but the same

was denied by the witness. It was also suggested to the witness that AO1 was

not on duty in the police station on 15.05.1999 as he attended night duty on the

previous day and he was off from duty on 15.05.1999 from 11.00 AM onwards.

20. Thus, the evidence of PW.2 would disclose that he stated about

demand made by AO1 seeking illegal gratification of Rs.1,00,000/- and on his

request reduced it to Rs.20,000/-. But, he stated that he did not know what

transpired between PW.1 and AO1. He also had not stated anything about PW.1

intending to lodge a complaint with the ACB officials or he agreed for the same Dr.GRR,J

or instructed him to do so. Admittedly, PW.1 was the friend of PW.2. Either to

give illegal gratification or to lodge a complaint with the ACB officials, PW.1

ought not to have acted independently, except on the instructions of PW.2. But,

the prosecution story itself is silent in the said regard whether it is the decision

of PW.1 alone in lodging the complaint before the ACB officials against the

police officials of Banjara Hills Police Station. As per PW.1, he had no personal

acquaintance with PW.2 and had no occasion to interfere in the matter of PW.2

and in his case PW.2 had not stated about giving any instructions to PW.1 for

lodging the complaint or PW.1 discussing with him with regard to lodging the

complaint with ACB officials.

20.1. One of the mediators to the pre-trap and post trap proceedings was

examined as PW.6. He stated that he was the Assistant Commissioner

(Administration) MCH, Hyderabad at the relevant time and on 16.05.1999 he

received a call from the ACB office with a request to attend their office at 7.00

PM and at the said time he attended their office. The DSP, ACB, introduced the

other mediator M. Gopal (LW8) to him. Thereafter, the complainant was called

into the office room and was introduced to him and to the other mediator. The

DSP handed over Ex.P.1 complaint to him and asked them to cross-verify the

contents therein with PW.1. They ascertained from PW.1 that the said contents

were true and correct.

Dr.GRR,J

20.2. He stated all the details of the pre-trap proceedings and that the

tainted amount was kept in the pant pocket of PW.1. He stated that in the

vehicle of PW.1 and also in the vehicle pertaining to ACB, they all proceeded to

Banjara Hills Police Station and reached the vicinity of the police station by 9.00

PM on 16.05.1999 and the vehicles were stopped at a distance of about 200

yards from the police station. The DSP requested PW.1 and LW8 - M. Gopal to

go into the police station and reiterated the instructions to tender the amount

only on the demand by the accused officer. At about 10.00 PM the DSP

received the signal from the cellphone of PW.1. On receiving the signal, he

along with the DSP and other trap party members entered into the police station

premises and found PW.1 in the police station compound. PW.1 informed the

DSP that AO1 asked him to keep the tainted money in his scooter dickey and he

accordingly kept the said amount in the scooter dickey of AO1 and AO1

immediately left the police station on the said scooter. The DSP approached the

ASI who was present there and enquired with the ASI and incorporated his

version in the post-trap proceedings. The DSP enquired about the residential

address of AO1 and along with the mediators and the trap party members and

the ASI, proceeded to the house of AO1 situated at Panduranga Nagar,

Erragadda, Hyderabad.

Dr.GRR,J

20.3. This witness had not stated about the presence of Pashu Miya as

stated by PW.1 accompanying them to the Police station or accompanying the

PW.1 at the time of lodging the report. His evidence also would reveal that the

ACB officials had not kept track on the persons coming out of the police station

and allowed AO1 to leave the police station and also had not made any efforts to

follow him immediately.

20.4. PW.6 further stated that after reaching the house of AO1, the DSP

enquired from a lady who was standing on the terrace of the said house whether

AO1 was present in the house and after ascertaining that he arrived a while ago,

entered into the house of AO1 and they found AO1 was about to take his dinner.

Then DSP disclosed his identity to AO1 and also enquired about the identity of

AO1 and questioned whether he received any money from the complainant for

which he replied that he did not take any money from PW.1. Then DSP got

prepared sodium carbonate solution into two glass tumblers and asked AO1 to

rinse his both hand fingers separately in the said solution and when AO1 rinsed

his left hand fingers in one of the said solution, it remained as it is without any

change of colour and when AO1 rinsed his right hand fingers in another glass

containing the solution, the said solution turned to pink colour. Then DSP asked

AO1 to show his scooter, on which AO1 showed the scooter which was parked

in the courtyard of his house. The DSP got opened the dickey door of the Dr.GRR,J

scooter and the contact portion was rubbed with a cotton swab by one of the

constables on the instructions of DSP and the said cotton swab was subjected to

freshly prepared sodium carbonate solution test and the said test yielded positive

result. PW.6 further stated that the pant and shirt which were worn by AO1

while coming to his house from police station were collected and the said pant

and shirt were checked and nothing was found in the shirt and pant pockets. The

DSP questioned AO1 about the tainted currency notes and AO1 replied that he

did not receive any such money from PW.1. He stated that the DSP confronted

the version of PW.1 with that of AO1 and got incorporated in the post trap

proceedings. He stated that subsequently, the DSP searched the house of AO1

and also of his co-brothers house and all the said proceedings were reduced into

writing. The 2nd mediators report was commenced at 11.15 PM on 16.05.1999

and concluded at 2.00 AM on 17.05.1999. The same was marked as Ex.P6.

20.5. He stated that thereafter they again went to Banjara Hills Police

Station along with AO1 and the DSP checked the room and the seat of AO1 in

the police station and seized the documents, office diary, self cheque drawn and

signed by one A. Sekhar for Rs.15,000/- and one cell phone in their presence.

He stated that they found PW.2 Azeemuddin in the lock up room of the police

station and the DSP also recorded his version. They also recorded the statement

of the Inspector of Police of Banjara Hills Police Station. He stated that they left Dr.GRR,J

the police station after 2.30 AM on 17.05.1999 and again they were called on

17.05.1999 at 4.00 PM and the DSP informed him and the other mediator that

their enquiries disclosed that AO1 handed over the tainted currency notes at

Mountain Bakery situated at Banjara Hills and that he deputed his officers to

secure the presence of the bakery persons. He stated that ACB constables

brought AO2 to the office of the DSP, ACB at about 4.30 PM and the DSP

examined AO2 and recorded his version. Meanwhile, the salesman and the

Proprietor of the Mountain Bakery were also brought to the office of DSP. The

DSP enquired with them and their statements were also recorded and

incorporated in the proceedings. The said proceedings were marked as Ex.P8.

He stated that the said proceedings were commenced at 4.00 PM and concluded

at 7.30 PM on 17.05.1999.

20.6. He further stated that AO1 and AO2 led them and the DSP to the

house of PW.5 situated at Hussaini Alam, Hyderabad. PW.5 was not found in

the house when they reached the house and he came to his house around 9.30

PM. AO1 enquired with PW.5 about the cash on which PW.5 went inside and

brought Rs.9,200/- and tendered the same before the DSP. PW.5 informed the

DSP that he spent Rs.800/- for purchasing rice. Thereafter they verified the

serial numbers of the said currency notes tendered by PW.5 with that of the Dr.GRR,J

serial numbers of currency notes described in Ex.P5(a) and found them tallied

with 92 currency notes.

20.7. In the cross examination by the defence counsel, PW.6 admitted that:

"It is true that AO1 removed his wearing cloth, had bath and sat to have Dinner. When the DSP disclosed his identity to AO1. AO1 stopped taking food, got up and washed his hands and followed the DSP as per his directions. The tests were not conducted in the Dining room of AO1 and the tests were conducted in the Courtyard where the scooters were parked. In the house of AO1 and also his relative's house nothing incriminating was found at the time. The pant and shirt of AO1 which were worn by him while coming from police station to the house were also subjected to sodium carbonate solution test and they did not yield any positive colour."

20.8. Thus, his evidence would disclose that AO1 after reaching home

had bath and was taking food by the time the DSP, ACB, and the mediators

went there and on the instructions of DSP he stopped taking food and washed

his hands and followed the DSP. Thus, his right hand yielding positive result

when subjected to sodium carbonate solution test appears to be unbelievable as

he had taken bath and also washed his hands while taking dinner prior to

subjecting his hands to the test. The said circumstances of his right hand

yielding positive result to the sodium carbonate result test does not yield

confidence and appears to be doubtful. PW.6 further stated that no

incriminating material was found against AO1 in the police station. He stated

that DSP did not enquire PWs.1 or 2 whether MO4 cell phone belonged to either Dr.GRR,J

of them. He also admitted that there were corrections and over writings in

Ex.P.9(a) and they were not attested by any of them. He stated that he or other

mediator did not accompany DSP or any ACB official to the Rice shop where

PW.5 said to have purchased rice with Rs.800/- as PW.5 stated that the said

shop was closed by that time.

20.9. Thus, the tainted amount of Rs.10,000/- was not recovered in full

by the ACB officials. They recovered only an amount of Rs.9,200/- from PW.5.

Even if the said rice shop was closed at that time, they had all the authority to

get opened the shop or to seize the said cash atleast on the next day.

21. There were also several missing links in the evidence of PW.6 How

the investigating officer came to know about AO1 visiting the bakery and

handing over the said amount of Rs.10,000/- to PW.3 was not stated by the

prosecution. When AO1 handed over the said amount to PW.3 stating that he

would collect the same from him on the next day, why he handed over the same

to PW.4 or why PW.4 handed over the said amount to AO2 or why AO2

brought the said amount to the police station again and PW.5 collecting the said

amount from AO2 and spending some amount for his personal needs out of the

said amount was also not known. All these raise a suspicion on the prosecution

story.

Dr.GRR,J

22. The DSP, ACB, who conducted the investigation at the relevant time,

was examined as PW.11. His evidence is also silent about the presence of any

Pashu Miya coming to the office along with the complainant or accompanying

them to the Banjara Hills Police Station at the time of raid. He also stated that

they left the ACB office at 8.35 PM on 16.05.1999. He along with the

mediators and PW.1 traveled in the private jeep of PW.1 while the other ACB

officials came in the ACB car and a jeep. They reached Banjara Hills Police

Station at about 9.10 PM. They parked the vehicles in a bylane about 100 yards

away. He instructed PW.1 to go to Banjara Hills Police Station in his jeep along

with LW.8 - M. Gopal, Senior Assistant, office of the Chief Commissioner,

Land Administration, Hyderabad and to meet the Sub-Inspector/ASI and to pay

the bribe amount only in case of demand. In case of demand and acceptance by

AO1, he asked PW.1 to give signals as per arrangement using his cell phone.

Accordingly, PW.1 went to the police station in his jeep and they waited outside.

At 10.00 PM, he received the signal given by PW.1 and rushed to the police

station in their vehicles and found PW.1 in the compound of police station and

PW.1 informed them that AO1 asked him to keep the bribe amount in his

scooter dickey and when he kept the said bribe amount in the scooter dickey,

AO1 went away on his scooter. He stated that he enquired about the residential

address of AO1 from the ASI, who was present in the police station and Dr.GRR,J

incorporated whatever stated by PW.1 in the proceedings. After ascertaining the

address of AO1, he along with other members of trap party proceeded to

Panduranga Nagar along with PW.1 and ASI.

23. Thus, the evidence of PW.6 and PW.11 would disclose that ACB

officials had shown interest in recording the proceedings in the police station

rather than following AO1, even after knowing that AO1 left the police station

along with his vehicle with the tainted amount.

24. He stated that they located the residence of AO1, enquired about the

availability of AO1 inside the house and went inside the house and found AO1

sitting to take his food in the house. To their view, AO1 immediately washed

his hands and got up. He introduced himself and asked AO1 to come out to the

courtyard as it was conjested inside. He got prepared sodium carbonate solution

and asked AO1 to rinse his right hand fingers separately in the said solution and

the when he did so, the solution turned to pink colour but the solution in which

AO1 had rinsed his left hand fingers remained as it is without change of any

colour.

25. Thus, the evidence of PW.11 also would disclose that AO1 washed

his hands before conducting sodium carbonate solution test on his right hand

fingers. Even then, the solution tested positive appears to be improbable. He Dr.GRR,J

also stated that he subjected the pant and shirt pockets of AO1 worn by him to

the test and they did not yield any positive result. He stated that he searched the

residence of AO1 and two other scooters which were available in the backside

of the house of AO1 and did not find any incriminating material. He also

conducted search in the house of the co-brother of AO1 and the said proceedings

commenced from 11.15 PM on 16.05.1999 and concluded at 2.00 AM on

17.05.1999. He stated that thereafter, they went to Banjara Hills police station

along with AO1 and seized some documents and MO4 cell phone from the table

drawer and almirah of AO1 situated in the ground floor of the police station. He

stated that they found PW.2 in the lock-up room and questioned him and

incorporated all the said proceedings in Ex.P.7. Ex.P.7 was commenced at 2.30

AM on 17.05.1999 and concluded on 3.30 AM on the said date at Banjara Hills

Police Station.

26. He stated that on receipt of credible information, he deputed his

Inspectors, Srikrishnudu and Chandrasekhar for collecting further information

pertaining to the case and at 4.30 PM on the said date Inspector Srikrishnudu

produced AO2, PC-8317 of Banjara Hills Police station who was in mufty. He

questioned AO2 and incorporated what all stated by him in the proceedings.

Meanwhile, Chandrasekhar, Inspector, ACB produced PWs.3 and 4 owner and

worker of Mountain Bakery. He questioned them and incorporated what all Dr.GRR,J

stated by them also in the proceedings and confronted AO1 with the versions of

PWs.3 and 4 for which AO1 was found perturbed and promised them to retrieve

the said amount from his friend (PW.5) that night itself. He stated that all the

events that took place in the office were reduced into writing by one of the

mediators. Ex.P.8 was the said proceedings which commenced at 4.00 PM and

concluded at 7.30 PM on 17.05.1999. Thereafter, all of them went in vehicles to

Sipligunj Community Hall and AO1 led them to the house of PW.5 at Hussaini

Alam, Dhood Bowli, Hyderabad. He stated that PW.5 was not in the house at

that time and at 9.30 PM PW.5 came to his house and when A1 asked him to

give the amount given to him by AO2 in the morning, PW.5 brought out a wad

of currency notes all in the denomination of hundred rupees and gave the said

amount to AO1 saying that he spent Rs.800/- out of the amount given to him by

AO2 for purchasing 50 kgs., of rice in the afternoon. PW.11 stated that serial

numbers of the currency notes were verified by the mediators and found them to

be tallying with the serial numbers described in Ex.P.5(a). The said amount was

Rs.9,200/- (92 x 100). He seized the said amount and marked as MO5. He

stated that he enquired about the shop where PW.5 purchased rice, but by that

time it was closed and the residence of the said rice shop owner also could not

be traced at that time. All the said events were reduced into writing by one of

the mediator and Ex.P.9 was the said proceedings. Ex.P.9 proceedings were Dr.GRR,J

commenced at 9.00 PM and concluded at 10.40 PM at the house of PW.5. He

stated that he affected arrest of AO1 and AO2 at 11.15 PM on 17.05.1999 and

released them on self bonds.

27. In his cross examination by the defence counsel, he admitted that as

per ExP.1 complaint, ASI demanded bribe from the complainant and he was

figured as AO2 in Ex.P.20 FIR. He also admitted that after seizure of MO4, he

did not verify either from PW.1 or from PW2 Azeemuddin or any of the staff

members of the police station as to whom the said MO4 cell phone belonged to.

He stated that trap party consisted of 10 to 11 persons and none of the trap party

took vantage positions nearby the police station on account of security reasons.

He stated that after receiving the signal in his cell phone, none of the trap party

members noticed anybody coming out of the police station by walk or on any

two wheelers or four wheelers as they were in the by-lane. He admitted that the

police custody of PW.2 was obtained vide orders of the V Metropolitan

Magistrate, Hyderabad and PW.2 was bought to the Banjara Hills Police Station

at 7.00 PM on 16.05.1999 and PW.2 was kept in lock up room of the said police

station as per the concerned record.

28. Thus, this part of the evidence of PW.11 contradicts the evidence of

PW.2 that he was called by AO1 at 5.00 PM on 16.05.1999 and demanded bribe Dr.GRR,J

of Rs.1,00,000/-. PW.11 further admitted that it was not mentioned in Ex.P.5 to

P.9 that they carried sodium carbonate powder for the purpose of conducting

tests and none of the reports would disclose that they carried sufficient

stationary items such as white papers, carbon sheets etc. He was questioned

specifically as to at what time he received the information and at what time he

deputed his Inspector Srikrishnudu and Chandrasekhar and he answered that on

17.05.1999 at about 9.00 AM while he was sleeping in his house, he received

the telephone call and contacted the said two Inspectors and directed them to

verify the information. He stated that he did not mention in the CD file as to

from whom he received the telephone call as he could not record the said

particulars. He admitted that at the earliest point of time, AO1 stated that he did

not demand or accept any bribe from PW1, and denied to have demanded and

accepted bribe from PW.1. He denied that one Pashu Miya accompanied them

to the police station and he deliberately suppressed his presence.

29. PW.11 admitted that AO2 was placed to work under DCP, West Zone

and since the said DCP was on leave, AO2 was directed to work in Banjara Hills

Police Station and the Circle Inspector (PW.10) availed the services of AO2 in

his mobile van. He admitted that AO2 was not working under AO1 at the

relevant time. He denied that ASI was eliminated from the array of AO and

AO2 was falsely implicated as he refused to tow in line with their false story to Dr.GRR,J

involve AO1. PW.11 failed to seize the cell phone of AO1 to ascertain whether

he made any calls to PW.5 to receive and collect the amount from AO2 at the

police station. The Investigating Officer failed to prove the missing links in the

chain of circumstances to explain the recovery of the tainted amount and that it

is directly connected to AO1. He failed to state about the information received

by him as to how he came to know about AO1 handing over the amount to PW.3

stating that it was confidential. He also failed to collect evidence to connect that

AO1 called PW.5 and informed him to collect the amount from AO2. When the

ACB officials were in the police station and AO1 was in their custody, AO1

asking AO2 to collect the amount from PW.4 and asking him to bring it to the

police station and to hand over to PW.5 in the police station, appears to be

unbelievable. He would not have taken the risk of asking the tainted amount to

be brought to the police station at that time when the ACB officials were present

in the police station. All these raise a suspicion on the story of the ACB

officials. The evidence is not cogent enough to prove each and every

circumstance.

30. The worker working in the Mountain Bakery at Road No.2, Banjara

Hills was examined as PW.3. He stated that he knew AO1 who was working as

Sub-Inspector of Police in Banjara Hills Police Station. He was acquainted with

the police personnel working in the police station as they visit their bakery to Dr.GRR,J

have snacks. On 16.05.1999 Sunday, their bakery was opened. He and his

owner were conducting business. Since his owner had some small function at

his friend's place, he left the bakery at 8.30 PM, instructing him to transact the

business till 10.30 PM as usual and to close the shutters of the bakery and also to

hand over the cash and keys at his house. He stated that the house of his owner

was at a walkable distance from the said bakery. At about 10.15 PM on the said

date AO1 came to the said bakery and consumed a curry puff and a pastry cake

and asked him to give a bread to take the same to his house. At that time, AO1

was in civil dress and he came to the bakery on Chetak scooter. AO1 gave

Rs.10,000/- consisting of hundred rupee notes hundred in number to him and

asked him to keep the said amount with him and that he would come and collect

the same on the next day morning. He took the said amount from AO1, counted

the same and thereafter AO1 left the bakery on his scooter. He kept the said

amount separately in a cover and the counter collection separately and closed the

bakery at about 10.45 PM and went to the house of his owner and handed over

the counter collection amount and also the Rs.10,000/- given by AO1 to him

informing his owner that AO1 asked him to keep the said amount stating that he

would come and collect the same on the next day i.e. on 17.05.1999. He stated

that on the next day i.e. 17.05.1999 at about 2.30 PM he again went to the said

bakery for attending his duties, he found the ACB officials along with his owner Dr.GRR,J

in the bakery and the ACB officials enquired with him as to what all happened

in the night of 16.05.1999 and he narrated the said details to them.

31. In his cross examination, PW.3 stated that he did not count the

counter collection and cannot state as to how much amount was given by him to

his owner on the said night. He stated that there were about two or three

customers when AO1 came and handed over the said amount to him and he

could not say the names of the said customers.

32. PW.4 was the owner of the Mountain Bakery and he stated that on

16.05.1999 at about 8.00 PM, he left the bakery to attend a function at his

friend's house instructing PW.3 to close the shop as usual and hand over the

counter cash collections and keys of the bakery in his house. At about 10.45

PM, he returned home from the said function. Thereafter, PW.3 came to his

house and handed over the keys of the bakery and also the counter cash

collections. He stated that PW.3 also handed over Rs.10,000/- and informed

him that it was given to him by AO1. He stated that he knew AO1 who was

then working as Sub Inspector of Police, Banjara Hills Police Station and on

17.05.1999 at about 7.00 AM, AO2, who was working as police constable of the

said Banjara Hills Police Station came to his house and asked him to return back Dr.GRR,J

the said amount of Rs.10,000/- which was given by AO1 to PW3 on previous

night and accordingly, he handed over the said amount of Rs.10,000/- to AO2.

33. As per the evidence of PW.3, AO1 gave the amount and asked him to

keep the said amount with him and that he would come and collect the same on

the next day morning. Without the instructions of AO1, he handed over the said

amount to PW.4. How AO1 could know that the amount was with PW.4 was

also not explained and why PW.4 handed over the said amount to AO2 even

without enquiring with A1 is also not explained.

34. In his cross examination, PW.4 stated that he knew AO1 as a

customer and had no friendship with him. He had no money dealings with AO1.

Earlier at no point of time, AO1 gave any amount to him asking to keep it with

him. In the light of this evidence also, it raises serious doubt as to why PW.4

would have received such amount belonging to AO1 without having any money

dealings with A1 and without any earlier instance of AO1 giving any amount to

him. He admitted in his cross-examination that neither PW.3 nor AO1 asked

him to give the amount to AO2.

35. PW.5 was the Proprietor of a Fair Price Shop at Khattalmandi, Abids,

Hyderabad. He stated that he did not know AO1-the then Sub-Inspector of

Police, Banjara Hills, Hyderabad and nothing happened in connection with the Dr.GRR,J

case at his shop or at his house. He was declared as hostile by the Special Public

Prosecutor and he denied the suggestions given to him. Nothing worthwhile

was elicited in his cross examination by the Special Public Prosecutor after

declaring him as hostile. In his cross examination by the defence counsel, PW.5

stated that on 17.05.1999 in the evening hours, the Inspector Chandrasekhar

came to his shop and requested him to help him saying that he would give some

amount and later he would show that the said amount was recovered from him,

but he did not agree for it. He stated that at 8.00 PM on 17.05.1999, the said

Chandrasekhar, Inspector, brought the DSP, ACB also to his house and both of

them asked to help them in the said context. But, he refused for it again and

then they left. He stated that on 18.05.1999 said Chandrasekhar, Inspector came

and obtained his signatures on Ex.P.4 with ante date as 17.05.1999 stating that

his shop was located near by the ACB office. He attempted to put the date as

18, but corrected as 17.05.1999 below his signature at Ex.P.4.

36. Thus, the charge against the 1st appellant - AO1 in relation to the

demand and receipt of illegal gratification was not established by the

prosecution, as the complainant examined as PW.1 turned hostile and the

shadow witness LW.8 - Gopal was not examined by the prosecution and the

witness examined as PW.5 from whom the tainted amount was alleged to be Dr.GRR,J

recovered by the Investigating Officer also turned hostile and not supported the

case of the prosecution.

37. The learned counsel for the 1st appellant - AO1 relied upon the

judgment of the Hon'ble Apex Court in Banarasi Das v. State of Haryana1

wherein it was held that:

"To constitute an offence under Section 161 of the IPC it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. Similarly, in terms of Section 5 (1) (d) of the Act, the demand and acceptance of the money for doing a favour in discharge of its official duties is sine qua non to the conviction of the accused."

38. In the case of M.K. Harshan v. State of Kerala2 , this Court in

somewhat similar circumstances, where the tainted money was kept in the

drawer of the accused who denied the same and said that it was put in the drawer

without his knowledge, held as under :

".......It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. Unfortunately, on this aspect in the present case we have no other evidence except that of PW-1. Since PW-1's evidence suffers from infirmities, we sought to find some

2010 (1) ALD (Crl.) 924 (SC)

1996 (11) SCC 720 Dr.GRR,J

corroboration but in vain. There is no other witness or any other circumstance which supports the evidence of PW-1 that this tainted money as a bribe was put in the drawer, as directed by the accused. Unless we are satisfied on this aspect, it is difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning of Section 5(1)(d) of the Act, particularly when the version of the accused appears to be probable".

It was further held in para -13 that:

"where the Court had held that mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money. Reference can also be made to the judgment of this Court in Sita Ram v. State of Rajasthan [1975 (2) SCC 227], where similar view was taken."

39. He relied upon the judgment of the Hon'ble Apex Court in Smt.

Meena Balwant Hemke v. State of Maharastra3.

"The essential ingredients to be established to indict a person of an offence under Section 5(1)(d) of the Act are that he should have been a public servant; that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and that he should have obtained a valuable thing or pecuniary advantage for himself or any other person. Likewise, Section 161, IPC, requires that the person accepting the gratification should be a public servant; that he should accept the gratification for himself and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person. Like any other criminal offence, the prosecution has to prove the charge beyond reasonable doubt and accused should be considered innocent, till it is established otherwise by proper proof of acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration.

We have bestowed our careful thought to the submissions made on either side, in the light of the evidence on record. We are of the

AIR 2000 SC 3377 Dr.GRR,J

view that neither the quality of the materials produced nor their proper evaluation could, in this case, be held sufficient to convince or satisfy the judicial conscience of any adjudicating Authority to record a verdict of guilt, on such slender evidence. Indisputably, the currency note in question was not recovered from the person or from the table drawer, but when the trap party arrived was found only on the pad on the table and seized from that place only. The question is as to whether the appellant accepted it and placed it on the table or that the currency note fell on the pad on the table in the process of the appellant refusing to receive the same by pushing away the hands of PW-1 and the currency, when attempted to be thrust into her hands. PW-2, one of the panch witnesses, who accompanied PW-1, as a shadow witness, when he tried to give the bribe, did not support the prosecution case. He has been treated hostile and his evidence eschewed from consideration by the courts below. The lady Constable, Victoria, another shadow witness, who first arrived on the spot after the signal was given by PW-1, was not examined at the trial. Law has always favoured the presence and importance of a shadow witness in the trap party, not only to facilitate such witness to see but also overhear what happens and how it happens also. In this case, the role of Victoria was to enter first and hold the hands of the accused immediately after the acceptance of the bribe amount and she was stated to have done that, as planned. For reasons best known, such a vital and important witness has been withheld by the prosecution, from being examined. Jagdish Bokade, who scribed the application dated 13.8.1986 for getting copies and who admittedly was all along with PW-1 and gave even the idea of lodging a complaint with the Anti-

Corruption Bureau, has also been withheld from being examined. The other person, who was present at the place of occurrence though cited initially as witness, was not examined by the prosecution but later was got examined as DW-1 and evidence of this person completely belies the prosecution story. The corroboration essential in a case like this for what actually transpired at the time of the alleged occurrence and acceptance of bribe is very much wanting in this case. Even the other panch witness, PW-5, categorically admitted that even as the Inspector of Police, PW-6, arrived, the appellant gave the same version that PW-1 tried to force into her hands the currency note which she turned down by pushing it away, and his evidence also does not lend credibility to the case of the prosecution. The contradictory version of PW-1 of the very incident when earlier examined in departmental proceedings renders his testimony in this case untrustworthy. PW-3, the Head Copyist, seems to be the brain behind all these and that PW-1 as well as Jagdish Bokade appear to be working as a group in this affair and despite the blunt denial by PW-3, his closeness to PW-1 and Jagdish Bokade stand well Dr.GRR,J

substantiated. All these relevant aspects of the case seem to have been completely overlooked by the courts below."

40. The learned counsel for the 1st appellant - AO1 relied upon the

judgment of the Hon'ble Apex Court in Panalal Damodar Rathi v. State of

Maharastra4 wherein it was held that complainant was in no better position

than accomplice after introduction of Section 165A IPC. Corroboration in

material particulars is necessary.

"There could be no doubt that the evidence of the complainant should be corroborated in material particulars After introduction of Section 165-A of the Indian Penal Code making the person who offers bribe guilty of abetment of bribery, the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon."

41. The discussion in the above cases would disclose that corroboration is

necessary to the evidence of the complainant and the prosecution must establish

the aspects of demand and recovery beyond reasonable doubt. The Hon'ble

Apex Court also stated the importance of shadow witness in the trap cases, but

unfortunately in the present case, though PW1 - the complainant turned hostile,

the prosecution failed to examine the shadow witness LW8, M. Gopal who

accompanied PW1 at the time of laying trap. So the prosecution failed to prove

the demand aspect. No recovery of tainted amount was made from AO1 or AO2

AIR 1979 SC 1911 Dr.GRR,J

and the prosecution failed to prove recovery of the tainted currency from AO1

and AO2 to establish their guilt in the said regard.

42. The several missing links in the chain of circumstantial evidence to

prove the guilt of AO1 that he demanded and accepted illegal gratification was

not satisfactorily proved by the prosecution. The trial Court erred in appreciating

the evidence on record and in convicting AO1 based on the said evidence.

43. The prosecution miserably failed to prove that AO1 asked AO2 to

collect the amount from PW.4 and to hand over the same to PW.5 and AO2

knowing fully-well that it was a tainted amount received as illegal gratification

by AO1 from PW.1 screened the offence and assisted AO1 in committing the

offence under Sections 7 and 13 (2) read with 13 (1)(d) of the Prevention of

Corruption Act, 1988 and Section 201 IPC.

44. In the result, the Criminal Appeal is allowed setting aside the

conviction and sentence recorded by the Principal Special Judge for SPE &

ACB Cases, Hyderabad vide Judgment dated 24.08.2007 in C.C. No.19 of 2002

against the 1st appellant - Accused Officer No.1 for the offences under Sections

7 and 13 (1) (d) punishable under Section 13 (2) of the Prevention of Corruption

Act, 1988, and the 2nd appellant - Accused Officer No.2 for the offences under

Sections 7 and 13 (1) (d) read with Section 13 (2) of the Prevention of Dr.GRR,J

Corruption Act and read with Section 201 IPC . The appellants are found not

guilty of the said offences.

Miscellaneous petitions pending, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J March 04, 2022 KTL