THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO Criminal Appeal No.735 of 2006 27-12-2014 State, rep. by Inspector of Police,Anti-Corruption Bureau, Sanda Reddy, Medak District.... Appellant D. Anjaiah, Formerly Asst. Sub-Inspector of Police, Jogipet P.S., Incharge Pulkal P.S, Medak District.. Respondent
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO
Criminal Appeal No.735 of 2006
27-12-2014
State, rep. by Inspector of Police,Anti-Corruption Bureau, Sanda Reddy, Medak
District.... Appellant
D. Anjaiah, Formerly Asst. Sub-Inspector of Police, Jogipet P.S., Incharge
Pulkal P.S, Medak District.. Respondent
Counsel for Appellant: Sri M. B. Thimma Reddy
Special Public Prosecutor for ACB
Counsel for Respondent : Sri Badeti Venkata Rathnam
<Gist:
>Head Note:
? Cases referred:
1) AIR 1997 SC 551
2) 2014 (2) ALD (Crl.) 73 (SC)
3) 2007 Crl.L.J. 7
4) 2010 Crl.L.J.2419
HONBLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL No.735 of 2006
JUDGMENT:
This Criminal Appeal is preferred by the State represented by
Inspector of Police, ACB, Sangareddy aggrieved by the Judgment dated
30-01-2006 in C.C.No.35 of 2001 passed by learned Principal Special Judge
for SPE and ACB cases, City Civil Court, Hyderabad acquitting the
Accused Officer (AO) for the charges under Sections 7 and 13(1)(d) r/w
13(2) of Prevention of Corruption Act, 1988 (for short PC Act).
2) Facts which led to file the instant appeal can be stated thus:
a) AOD.Anjaiah worked as Assistant Sub-Inspector of Police (ASI),
Jogipet Police Station and he was also in-charge ASI of Pulkal Police
Station during the relevant time. The complainantSyed Sadique Ali
(PW1) was a Muthavalli of Darga Jindasha Madar of Minpur village, Pulkal
Mandal. When Hakim Sharif, Rasool Miya, Yadaiah of Siddipet and
Dawood Chand, M.D.Yousuf and others of Minpur village started raising
construction of pillar of Fazil Guru Darga in the lands of Jindasha Madar,
PW1 made a complaint to SHO, Pulkal police station on 27.04.2000
enclosing copy of the proceedings of MRO dated 08.09.1999 by marking a
copy to the Circle Inspector, Jogipet requesting to stop illegal constructions
in Darga. AO also visited the Darga and enquired into the matter but of no
avail. Then, PW1 approached AO on 24.05.2000 and requested to take
action against the encroachers. On that, it is alleged, AO demanded a sum of
Rs.2,000/- as bribe. When PW1 expressed his inability to pay such a huge
amount, AO reduced the bribe amount to Rs.1,000/- and instructed him to
pay that amount at his residence and also informed that after payment of
bribe only he would take action against the encroachers.
b) Unwilling to pay bribe, PW1 submitted Ex.P1complaint on
25.05.2000 and PW5 who was the in-charge DSP, ACB, Nizamabad
registered a case in Cr.No.5/ACB-NZM/2000 under Sections 7 and 11 of PC
Act and successfully laid a trap against AO on 27.05.2000 in the presence of
two independent mediators i.e. PW2 and LW2 and took up investigation. On
completion of investigation, charge sheet was laid against AO.
c) On appearance of AO, charges under Sections 7 and 13 (2) r/w 13
(1)(d) of P.C Act were framed against him and trial was conducted.
d) During trial, PWs.1 to 6 were examined and Exs.P1 to P18 were
marked and MOs.1 to 8 were exhibited on behalf of prosecution. Exs.D1
and D2 were marked on behalf of defence.
e) The plea of accused is one of total denial.
f) A perusal of the judgment would show that having regard to the oral
and documentary evidence, the trial Court held that prosecution failed to
prove the guilt of the accused beyond reasonable doubt and accordingly
acquitted the AO, as stated supra.
g) Demand is concerned, the trial Court having regard to the entries in
Ex.P7General Diary (GD) to the effect that complaint dated 27.04.2000
lodged by PW1 was referred by AO on the same day as civil dispute and
further on 24.05.2000 i.e. on the date of demand, AO was not in Pulkal
police station and he was away at Hyderabad in connection with some
investigation, has held that there was no official favour pending with AO to
demand any bribe and he was not physically present in Pulkal police station
to demand the bribe. Thus, the trial Court disbelieved the demand aspect.
Further demand and acceptance of bribe on 27.05.2000 are concerned, the
trial Court entertained a doubt on the evidence of PWs.1 and 2 and accepted
the theory of implant taken by the defence side and ultimately acquitted the
accused.
Hence, the appeal by State.
3) Heard arguments of Sri M.B.Thimma Reddy, learned Special Public
Prosecutor (Spl.P.P.) for ACB cases and Sri Badeti Venkata Rathnam,
learned counsel for respondent/AO.
4) Fulminating the judgment of the trial Court, learned Spl.P.P. firstly
argued that the trial Court totally misread the facts and evidence and
acquitted the accused though prosecution by cogent evidence could able to
prove the demand and acceptance of bribe by AO.
a) Expatiating his version on the aspect of demand, he argued that PW1
clearly deposed that when he met AO on 24.05.2000 he demanded
Rs.2,000/- to prevent Hakim Sharif and others from entering Jindasha
Madar Darga and when PW1 expressed his inability to pay that much
amount, he reduced the bribe to Rs.1,000/- and asked to pay that amount at
his house. He argued that this part of the evidence of PW1 clearly proves
demand made by AO and AO sought to disprove the above evidence of
PW1 through GD entries in Ex.P7 to the effect that AO and PC 397 were
away from Pulkal police station to Hyderabad from 23.05.2000 to
25.05.2000 in connection with some investigation. He vehemently argued
that except relying upon the entries, AO did not examine himself or the PC
397 to substantiate those GD entries and therefore, it must be held that the
demand aspect was established beyond reasonable doubt.
b) Then, regarding further demand and acceptance of bribe on
27.05.2000, he argued, evidence of PW1 establish that AO demanded and
accepted bribe at his residence and the evidence of PW1 in this regard was
corroborated by PW2 and PW5 and the acceptance of bribe was further
corroborated by chemical test which yielded positive result on both hands of
AO. Learned Spl.P.P. argued that since the acceptance of bribe is
established as above, the presumption under Section 20 of PC Act shall
squarely follow and even assuming prosecution failed to prove the demand,
still presumption under Section 20 of P.C Act, can be drawn if the
acceptance of gratification other than legal remuneration is established and
demand need not be proved. On this proposition, he relied upon the decision
reported in C.K.Damodaran Nair v. Govt. of India . He submitted that since
the prosecution could establish the acceptance of gratification other than
legal remuneration presumption will follow and AO failed to rebut the
presumption since his plea of implanting of money by PW1 has no teeth in
view of the fact that his hands proved positive to the chemical test. He
argued that if really the amount was implanted as argued, there was no
possibility of AO coming into contact with tainted bribe amount and in such
an event, chemical test should yield negative result. Since that is not the
case, the implant theory must be held false. He thus prayed to allow the
appeal by setting aside the judgment of the trial Court.
5 a) Per contra, supporting the judgment of the trial Court, learned counsel
for respondent/AO argued that in order to prove the trap case the
prosecution must establish the two vital ingredients i.e. demand and
acceptance. Demand is concerned, the prosecution miserably failed to
establish the same since the demand theory was blasted by Ex.P7GD
which would show that AO was away at Hyderabad from 23.05.2000 to
25.05.2000, so the question of his demanding bribe was a myth. He argued
that there was absolutely no possibility for AO to fabricate GD entries
because the TLO seized Ex.P7 along with other registers immediately after
trap and so the genuinety of GD entries can not be doubted and therefore,
AO need not examine the Constable to establish plea of alibi and on the
other hand, prosecution should examine him to disprove the GD entries. He
argued the trial Court rightly rejected the demand theory.
b) Sofaras further demand and acceptance of bribe are concerned,
learned defence counsel argued that in fact PW1 did not meet AO at his
house and during temporary absence of AO in the main hall, PW1 implanted
money in the hip pocket of the pant hanging on the wall and if really PW1
met AO in the hall, PW2 who was also present at the door step would not
have missed seeing them both but PW2 did not say anything in this regard
which would establish that PW1 did not meet AO at all. He thus argued that
prosecution failed to prove further demand and acceptance also. He
submitted that since the prosecution failed to prove both demand and
acceptance, the trial Court rightly refused to draw presumption under
Section 20 of PC Act. He argued that in order to deserve for drawing
presumption, the prosecution must prove the demand aspect also. On this
proposition, he relied upon the following decisions.
1. B.Jayaraj vs. State of Andhra Pradesh
2. V.Venkata Subbarao vs. State rep. by Inspector of Police, A.P.
3. Banarsi Dass vs. State of Haryana
c) Finally, learned counsel argued that the complainant had given a false
compliant with an ill motive and considering it and inherent defects in
prosecution case, the trial Court rightly acquitted the accused and there are
no merits in the appeal and hence appeal may be dismissed.
6) In the light of above rival arguments, the point for determination in
this appeal is:
Whether the judgment of the trial Court is factually and legally
sustainable?
7 a) POINT: It is a trap case and charges are under Sections 7 and 13(1)(d)
r/w 13(2) of PC Act. Before scrutinizing the merits of the appeal in the light
of rival arguments, first of all it is incumbent upon this Court to ruminate the
ingredients that have to be established by the prosecution to prove the above
two charges.
b) Reminding the duty of prosecution, the Apex Court in a recent
decision in the case of B.Jayaraj (2 supra) has observed thus:
In so far as the offence Under Section 7 is concerned, it is a settled
position in law that demand of illegal gratification is sine qua non to
constitute the said offence and mere recovery of currency notes
cannot constitute the offence Under Section 7 unless it is proved
beyond all reasonable doubt that the accused voluntarily accepted
the money knowing it to be a bribe. The above position has been
succinctly laid down in several judgments of this Court. By way of
illustration reference may be made to the decision in C.M. Sharma
v. State of A.P. (2010) 15 SCC 1= AIR 2011 SC 608 = 2011 AIR
SCW 297 and C.M. Girish Babu v. C.B.I. (2009) 3 SCC 779 =AIR
2009 SC 2022 = 2009 AIR SCW 1693.
The Supreme Court further observed thus:
Mere possession and recovery of the currency notes from the
accused without proof of demand will not bring home the offence
Under Section 7. The above also will be conclusive in so far as the
offence Under Section 13(1)(d)(i)(ii) is concerned as in the absence
of any proof of demand for illegal gratification (emphasis supplied),
the use of corrupt or illegal means or abuse of position as a public
servant to obtain any valuable thing or pecuniary advantage cannot
be held to be established.
Thus, in the above decision the Honourable Apex Court emphatically laid
down that for establishing the offences under Sections 7 and 13(1)(d)(i) (ii)
the prosecution shall by cogent evidence establish the two vital ingredients
i.e. (i) demand of illegal gratification other than legal remuneration and (ii)
voluntary acceptance.
b) Then presumption under Section 20 of P.C. Act is concerned, it reads
thus:
Section 20Presumption where public servant accepts
gratification other than legal remuneration:
(1) Where, in any trial of an offence punishable under section 7 or
section 11 or clause (a) or clause (b) or sub-section (1) of section 13
it is proved that an accused person has accepted or obtained or has
agreed to accept or attempted to obtain for himself, or for any other
person, any gratification (other than legal remuneration) or any
valuable thing from any person, it shall be presumed, unless the
contrary is proved, that he accepted or obtained or agreed to accept
or attempted to obtain that gratification or that valuable thing, as
the case may be, as a motive or reward such as is mentioned in
section 7 or, as the case may be, without consideration or for a
consideration which he knows to be inadequate.
(2) xxxx
(3) xxxx
On the aspect whether prosecution is required to prove demand to draw
presumption under Section 20 of P.C. Act, there is a legal dichotomy. In
C.K.Damodaran Nairs case(1 supra) cited by learned Spl.P.P, a Division
Bench (Two Honourable judges) of Apex Court opined that demand aspect
need not be proved for drawing presumption under Section 4(1) of PC Act,
1947 (old Act) (Section 20 of PC Act, 1988). It observed thus:
Para 11: From a combined reading of S. 161 I.P.C. and Section
4(1) of the Act it is evident that if, in the instant case, the
prosecution has succeeded in proving that the appellant was a
public servant at the material time and that he had 'accepted' or
'obtained' Rs.1,000/- from PW 9 as gratification not only the first
two ingredients of the former would stand proved but also the third,
in view of the presumption under the latter which the Court is bound
to draw unless, of course, the appellant, in his turn, has succeeded
in rebutting that presumption. According to Shorter Oxford
Dictionary 'accept' means to take or receive with a 'consenting
mind'. Obviously such a 'consent' can be established not only by
leading evidence of prior agreement but also from the circumstances
surrounding the transaction itself without proof of such prior
agreement, If an acquaintance of a public servant in expectation and
with the hope that in future, if need be, he would be able to get some
official favour from him, voluntarily offers any gratification and if
the public servant willingly takes or receives such gratification it
would certainly amount to 'acceptance' within the meaning of
Section 161 I.P.C. It cannot be said, therefore, as an abstract
proposition of law, that without a prior demand there cannot be
'acceptance'.
Thus, in the above decision it was held that acceptance of illegal
gratification other than legal remuneration by the accused with a consenting
mind is sufficient to draw mandatory presumption under Section 20 of PC
Act and for that purpose prior demand need not be established. However, it
appears in the subsequent decisions the above view was not followed.
c) In V.Venkata Subbaraos case (3 supra) another Division Bench
(Two Honourable Judges) of Supreme Court observed on the same aspect as
follows:
Submission of the learned Counsel for the State that presumption
has rightly been raised against the appellant, cannot be accepted as,
inter alia, the demand itself had not been proved. In the absence of a
proof of demand, the question of raising the presumption would not
arise. Section 20 of the Prevention of Corruption Act, 1988 provides
for raising of a presumption only if a demand is proved.
In the above case it was emphatically laid down that without proof of
demand the question of raising presumption 20 of PC Act, 1988 would not
arise.
d) In B.Jayarajs case (2 supra) Full Bench of Honourable Apex Court
has held thus:
In so far as the presumption permissible to be drawn Under
Section 20 of the Act is concerned, such presumption can only be in
respect of the offence Under Section 7 and not the offences Under
Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of
acceptance of illegal gratification that presumption can be drawn
Under Section 20 of the Act that such gratification was received for
doing or forbearing to do any official act. Proof of acceptance of
illegal gratification can follow only if there is proof of demand.
(emphasis supplied) As the same is lacking in the present case the
primary facts on the basis of which the legal presumption Under
Section 20 can be drawn are wholly absent.
So, in the latest judgment, the Full Bench of Honourable Apex Court
observed that proof of acceptance of illegal gratification can follow only if
there is proof of demand and only when these two ingredients are
established, presumption under Section 20 of P.C Act would follow.
8) Having regard to the above legal propositions, the appeal is to be
decided.
9) In this case demand was said to be made by AO on 24.05.2000. The
contention of AO is twofold. That no official favour was pending with him
by that date and he was not present in Pulkal Police Station on 24.05.2000 to
solicit bribe. With regard to first contention, his submission is that the
complaint filed by PW.1 on 27.04.2000 was closed by him on 27.04.2000
itself referring it as a civil dispute which is evident from Ex.P.7G.D.
Hence no official favour was pending with him by 24.05.2000. Then the
second contention of AO was in the nature of plea of alibi i.e, he claims that
on 24.05.2000 he was not available at Pulkal P.S and on the other hand
himself and PC 397 were at Hyderabad from 23.05.2000 to 25.05.2000 on
some investigation work which is evident also from the entries in Ex.P.7
G.D. Hence the demand theory projected by the prosecution has to be tested
with reference to the above defence plea.
10) In this context, admittedly AO was placed in-charge of Pulkal P.S as
ASI through Ex.P.9memo dated 17.03.2000 issued by PW.3Inspector
of Police, Jogipet P.S and AO received the complaint given by PW.1 on
27.04.2000. Then with regard to the closure of complaint, the evidence of
PW.1 is thus:
On 27.04.2000, when I gave complaint to the AO he made a G.D
entry and gave a receipt to me. I do not know whether AO entered
in G.D to the effect that the complaint given by me on 27.04.2000
pertains to civil matter and that he instructed us to go to civil court
and accordingly issued notice to me (the witness volunteers that no
notice was given to them). I gave the receipt given by AO in token of
receipt of my complaint to DSP, ACB along with my Ex.P.1
complaint. It is not mentioned in Ex.P.1 about the myself enclosing
the receipt given by the AO.
Then PW.3-the Inspector of Police, Jogipet Circle in his chief-
examination deposed as follows:
On 30.04.2000, the accused produced both the parties with regard
to the dispute of a Darga situated at Minpoor village before me. I
asked both the parties to settle the matter amicably in the village
itself. To that effect both the parties have given an undertaking to
me in writing. Ex.P.10 is the said undertaking.
In his cross-examination he further stated thus:
Ex.P.10compromise memo also bears the signature of Sadiq Ali
(PW.1) I advised compromise between the parties calling the village
elders with regard to the dispute of raising a wall. Ex.P.10
compromise memo was executed on 30.04.2000. After Ex.P.10 I did
not receive any complaint over that dispute.
Apart from the above oral evidence, the entry dated 27.04.2000 in
Ex.P.7General Diary reads in Telugu as follows:
10:30 ? ?????? Syed Sadiq Ali Mutawari Dargah Zinda
Shah Mazar, Minpoor came to P.S given a petition Rega. ????????
????? ?????? ????? ??. 308 ? 3.39 ????? ???? ??? Darga Zinda
Shah Mazar ?????? ?????? ?? ??????????? ??? ?????? ?????
???? ???? ????? ???? ??????? ????? ???? ????????????? ??? ????????
?????????.
? ??????? civil ???? ???????????? ????? ????????????
???????????? ?????, ???????? ???????? ?????? ????? ?????????.
Sd/-
ASI
a) So when the above evidence relating to the pendency of official
favour is scrutinized, it would reveal that AO closed the complaint on
27.04.2000 itself mentioning the same as civil dispute and referring the
parties to the Court. Further on 30.4.2000, AO produced the parties before
PW3the Inspector of Police, and he effected a sort of compromise under
Ex.P.10 between the parties. Thus the aforesaid unimpeachable oral and
documentary evidence demonstratively shows that no official favour was
pending with AO by 24.05.2000 to demand any bribe. In this regard the
argument of AO that if he was really a bribe monger he would have kept the
complaint pending without referring it as civil dispute for soliciting bribe is
logically quite appropriate.
11) Then the first demand dated 27.04.2000 is concerned, the evidence of
PW.1 is thus:
On 24.05.2000, I went to the AO. The AO asked me to pay
Rs.2000/- to prevent the Hakim Shareef and rasool miya and others
from entering into the Jindashah Madar Darga, when I expressed
my inability to pay that much amount, he reduced the bribe to
Rs.1,000/- and asked me to pay at his house. On 25.05.2000 by 12
noon I went to the office of the DSP, ACB and gave a written
complaint to the Head Constable.
In the cross-examination on the demand aspect he admitted as follows:
On 24.05.2000 I met the AO at Pulkal police station. I do not
remember the time when I met the AO. It is true, it is not mentioned
in Ex.P1, the time at which I met the AO on 24.05.2000. It is also
not mentioned in Ex.P.1 whether (sic where) I met the AO on
24.05.2000. It is not true to suggest that I did not meet the AO on
24.05.2000 in the police station and that the AO was at Hyderabad
in connection with the investigation along with PC 397.
a) The above is the version of PW.1 regarding demand. However, when
the entries in Ex.P.7G.D of Pulkal Police Station relating to 23.05.2000,
24.05.2000 and 25.05.2000 are perused, they reveal the facts contrary to the
claim of PW.1:
i) The entry at 12:30 noon of 23.05.2000 reads as follows in Telugu:
12:30 ? ?????? ???? ASI ?? C.L ????? ?? ?????
????????? ????? ? ????? ??????? HC 701 ????? ???????????.
Sd/-
ASI
???? ASI ?? HC 701?? G.D ?????? ??? ?????????????? HYD ?? PC 397
?? ???????? G.D ?????? ????? ??????????.
ii) Then the entry at 7:00am on 24.05.2000 relating to the roll call of the
staff of Police Station reads thus:
ASI along with PC 397 I/D dutyHyd.
iii) Similarly the G.D entry at 7:00am on 25.05.2000 relating to roll call
of the staff of P.S reads as follows:
ASI, PC 397 I/D dutyHyd.
iv) Then the entry in Sl.No.15 at 23:00 hours on 25.05.2000 reads in
Telugu as follows:
ASI, PC 397 ?? I/D duty ????? ?????? ???????.
The above G.D entries were confirmed by PW.3 in his cross-
examination as follows:
Ex.P.7 shown to me is the General diary of Pulkal Police Station.
As seen from the General Diary entry dt.27.04.2000 in Ex.P.7 at
Page No.104 it is written by the accused that with reference to the
complainant by said ali (PW1) the complaint was closed as civil
nature and to go to court, and accordingly a notice was issued to the
parties. It is true as seen at Page No.133 of Ex.P.7, it is written at
GD dt.17.05.2000 by the accused at 1.00PM that he is going on
casual leave. It is true as seen at page No.144 of Ex.P7 the accused
wrote the GD dt.23.05.2000 at 12:23 that he joined the duty after
availing the CL one day late. Under it the accused further wrote at
12.30 noon that along with P.C.397 on the instructions of the
Inspector he is proceeding to the Hyderabad in connection with the
investigation. It is true as seen at page No.146 of Ex.P7
dt.24.05.2000 it is written at 7 A.M. at the time of roll call the
accused along with P.C.397 was on investigation duty at
Hyderabad. It is true the accused reported for duty at Jogipet P.S.
on 25.05.2000. After that date the accused was not supposed to do
any duty at Pulkal P.S.
PW.5the TLO also avouched about the above G.D entries. The
genuineness of the above G.D entries is concerned, it must be noted that
immediately after trap, PW.5 has seized Ex.P.6, P.7 and other records and
therefore, manipulation of those entries is impossible. For this reason, the
genuinity and authenticity of the G.D entries can be accepted. Further, since
the above entries are maintained in a public document by a public office, the
presumption under Section 114 (e) of Indian Evidence Act to the effect that
the above entries were regularly maintained will follow. The prosecution
has not placed any evidence to rebut the presumption and to establish that
those were the manipulated entries. Learned Spl.P.P. argued that the AO
has not examined himself or PC 397 to confirm that they were at Hyderabad
from 23.05.2000 to 25.05.2000 and hence the G.D entries cannot be given
weight. I am afraid, this argument does not hold conviction in view of my
earlier observation that Exs.P.6, P.7 and other documents were seized by
T.L.O immediately after trap and there was absolutely no possibility for AO
to manipulate the entries to suit his case. That being so, non-examination of
PC 397 is not a consequence at all. The trial Court, it must be said, has
properly appreciated the facts and evidence concerning to the demand aspect
and held that AO could substantiate his plea of alibi and the prosecution
failed to prove by satisfactory evidence, the demand. In that process, the
trial Court also considered the argument of the prosecution to the effect that
though AO went to Hyderabad on official duty, still there was a possibility
for him to come down to Jogipet on 24.05.2000 and demand bribe from
PW.1 since the distance between Hyderabad and Jogipet was short. The
trial Court rightly noticed that such an argument was based purely on
conjuncture since prosecution could not bring out any circumstance to hold
in that line and even PW.1 himself could not give the time when he met AO
on 24.05.2000. Thus the trial Court rightly rejected this argument and
ultimately held that prosecution failed to prove the demand aspect. I endorse
the same view.
12) Then the further demand and acceptance of bribe are concerned, the
prosecution depends upon the evidence of PWs.1, 2 and 5 and ofcourse
Ex.P.3. The version of PW.1 is thus:
Myself and one of the mediators by name Chalapathi rao went to
the house of the AO. The mediator chalapathi rao was standing at
the door and I alone entered inside the house of the AO since it was
a small house. The AO on seeing me enquired whether I brought the
amount and I answered affirmatively and gave the amount, it was
received by him and he also counted the amount and then he kept the
amount in his khaki pant hip pocket which was hanging to the wall.
At that time AO was wearing banian and underwear. AO asked me
to go and wait for him at the police station. Then I went out and
gave prearranged signal. Trap party came there and entered inside
the house by asking me to wait outside. 2 or 3 hours later I was
called inside and I told the trap party as to what all happened.
So the version of PW.1 is that though himself and PW.2 went to the
house of AO, PW2 remained at the door since the house was small and he
himself went inside the front hall and on the further demand of AO tendered
the bribe amount to him. Then the spontaneous reactiveexplanation of
AO at two different stages during post trap proceedings as can be found in
Ex.P.3 is as follows:
i) This reaction at the first instance is noted thus:
The DSP questioned Sri Anjaiah whether he had just before
demanded and accepted any bribe amount from the Old Muslim
person. Sri Anjaiah denied that he did not take any amount from
any one and also denied any acquaintance with the Muslim person.
However, when the DSP drew his attention to the Pink Coloured
Solutions which resulted from his hands washed, Sri Anjaiah
reluctantly accepted to have received the amount and when asked by
the DSP about the received amount he pointed towards the Uniform
pant (kaki) hanging on the wall at and he took out from the Right
Side Hip pocket a wad of currency notes.
At another instance his explanation is noted as follows:
Sri D.Anjaiah, ASI stated that he worked as the SHO, of Pulkal P.S
during the last April upto 15th May, as there was no S.I at Pulkal and
on the instructions of the C.I Jogipet, for the last 1 week, he is
working as the Guard In-charge at Jogipet P.S. He further stated
that while he was SHO of Pulkal P.S. Syed Sadiq Ali Mutawali
Darga Zinda Shah Mazar Minpur gave a complaint to him on
27.04.2000(to his remembrance) and as it was of civil nature, he
advised the person to approach the Court. He also stated that due to
extremists problem, Pulkal P.S is also functioning just behind
Jogipet P.S. He stated that he does not know why the person Sadiq
Ali complained against him and that he did not meet him during the
last 1 month. However, he couldnt explain for receiving the
amount.
a) So in the first version it would appear as if AO admitted to have
received the bribe amount but in the second version he pleaded total
ignorance even about PW.1 coming to his house. During trial, AO
confined to his second version and took the plea that when he was in the
Kitchen PW.1 might have entered the hall and planted the tainted amount
in the hip pocket of his uniform pant hanging on the wall to the left side of
the door. Now the crucial aspect is whether the version of PW.1 was
correct or the explanation of AO was right. It may be noted that in view of
the law laid down by Apex Court in its latest judgment, without the proof
of demand, the presumption under Section 20 of P.C. Act cannot be drawn
basing on mere recovery of the money from the pant of AO because
prosecution failed to prove the demand aspect. Therefore, the prosecution
has to independently prove the acceptance of gratification other than legal
remuneration by convincing evidence. In this context when the evidence of
PW.1 on one hand and the explanation of AO on the other are scrutinized,
the defence explanation, rather than the evidence of PW.1, appears to be
reasonable and convincing for the following reasons:
i) Even according to prosecution, PW.1 was the only witness for further
demand and acceptance of bribe since PW.2 claims that he remained at
the door and did not witness what transpired between AO and PW.1.
Since the evidence of PW.1 touching the aspect of demand was held to
be unbelievable in the light of entries in Ex.P.7G.D, his evidence
concerning further demand and acceptance of bribe needs a microscopic
scrutiny. As per PW.1, when he met AO, he was in banian and
underwear. However, his version before the DSP in Ex.P.3second
mediator report was that when he saw AO he was wearing lungi and
banian. Even the trap party members found AO in lungi and banian and
they mentioned this fact in Ex.P.3. Generally, the little difference
regarding wearing apparel of AO as spoken by PW.1 will not have
much impact on the veracity of the evidence of PW.1 but this difference
assumes great importance in the light of spontaneous explanation of AO
that PW1 did not meet him at all on the date of trap. Therefore, the
evidence of PW.1 gives raise a doubt as to if he really met AO on the
date of trap, he would not have faltered regarding the dress worn by
AO. It must be noted that the trial Court has not given much
importance to this discrepancy in the evidence of PW.1 but in my view
this discrepancy weighs against the case of prosecution.
ii) PW.2 was specifically employed by the TLO to follow PW.1 to witness
the happenings between AO and PW.1 but he did not do so. The reason
given in his chief-examination is thus:
Then on the instructions of the DSP myself and PW1 went to
the house of the AO. The house of the AO is a small house and
I was standing at the door PW.1 entered the house. Within one
or two minutes PW.1 came out and then gave signal.
In the cross-examination he stated thus:
As the room of the AO is very small I did not enter inside the room.
There is a kitchen in the house of the AO towards right side. There
is wall in between the room and kitchen. The hanger to the wall is
quite opposite to the door. As seen from Ex.P.4rough sketch the
hanger to the wall is shown by the side of the door
When the above evidence of PW.2 is perused with reference to
Ex.P.4sketch, it would appear that the quarter of AO is a two roomed
house consisting of one main hall and right side abutting kitchen.
Admittedly this quarter is a small quarter. If that is so when PW.2 stood at
the door of the main hall and when PW.1 accosted AO at the main hall and
gave bribe amount on his further demand, it is most unlikely that PW.2
who was standing at the door could not or would not watch the happenings.
Surprisingly PW.2 did not state anything about the interaction between
PW.1 and AO. That means in a way he is not supporting the version of
PW.1. Thus from the evidence and conduct of PW.2 a doubt again lingers
as to whether really PW.1 met AO in the hall of his house on the date of
trap.
iii) Though in Ex.P.3 it is the version of prosecution that on seeing the trap
party AO got perturbed and started rubbing his right hand to the cot and
he also murmured that he does not have any connections with the
persons, surprisingly PW.2the independent mediator has not spoken
anything about this impulsive reaction of AO creating doubt on him.
The prosecution in Ex.P.3 projected the above conduct of AO to show
his guilty consciousness but that was not affirmed by the independent
mediator. So there is no corroboration to the alleged guilty conduct of
AO as mentioned in Ex.P.3 which is not a substantive piece of evidence.
Further, PW.5TLO did not subject the portion of the cot to which the
AO was allegedly rubbing his right hand to the Sodium Carbonate Test.
iv) The motive for PW.1 to implicate AO is concerned, the following
version of PW.1 in his cross-examination is important.
During 1994 My brother in law Mohd. Jahangir was head
constable and he worked in Kangti check post during that time. AO
was also worked as head constable in the said check post I do not
know whether my brother in law Mohd. Jahangir was charged for
drunken high handed behaviour against Dy. Director Yesudas and
also for tearing the attendance register. I do not know whether DSP
sangareddy enquired into the said charges against my brother in law
and the AO also gave statement in the said enquiry. I do not know
whether Mohd. Jahangir was removed from service 09.06.94 on the
report of the DSP. It is not true to suggest that I contacted the AO
and requested him not to give statement against my brother in law in
the said enquiry for which he refused and that I bore grudge against
him. It is not true to suggest that I threatened the AO that I will see
his end.
It is true that PW.1 is denying, his having grudge against AO but
when the totality of the circumstances i.e, his falsity on the aspect of
demand is considered, his bearing grudge against AO cannot be totally
ignored.
13) So when the above glaring defects in the prosecution case are
considered, it cannot be said that the prosecution could prove the charges
against AO merely because the bribe amount was recovered from his pant
pocket. It must not be forgotten that it is not the case of recovery of tainted
amount from the person of the accused so as to even remotely connect the
accused to the case.
14) In the light of the facts and circumstances, the evidence adduced by
the prosecution miserably fell short of proving the charges against AO and
so it must be held that the judgment of the trial Court is factually and
legally sustainable.
15) In the result, this Criminal Appeal is dismissed by confirming the
acquittal recorded by the trial Court in its judgment in C.C.No.35 of 2001.
As a sequel, miscellaneous applications pending if any shall stand
closed.
_________________________
U. DURGA PRASAD RAO, J
Date: 27.12.2014
Criminal Appeal No.735 of 2006
27-12-2014
State, rep. by Inspector of Police,Anti-Corruption Bureau, Sanda Reddy, Medak
District.... Appellant
D. Anjaiah, Formerly Asst. Sub-Inspector of Police, Jogipet P.S., Incharge
Pulkal P.S, Medak District.. Respondent
Counsel for Appellant: Sri M. B. Thimma Reddy
Special Public Prosecutor for ACB
Counsel for Respondent : Sri Badeti Venkata Rathnam
<Gist:
>Head Note:
? Cases referred:
1) AIR 1997 SC 551
2) 2014 (2) ALD (Crl.) 73 (SC)
3) 2007 Crl.L.J. 7
4) 2010 Crl.L.J.2419
HONBLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL No.735 of 2006
JUDGMENT:
This Criminal Appeal is preferred by the State represented by
Inspector of Police, ACB, Sangareddy aggrieved by the Judgment dated
30-01-2006 in C.C.No.35 of 2001 passed by learned Principal Special Judge
for SPE and ACB cases, City Civil Court, Hyderabad acquitting the
Accused Officer (AO) for the charges under Sections 7 and 13(1)(d) r/w
13(2) of Prevention of Corruption Act, 1988 (for short PC Act).
2) Facts which led to file the instant appeal can be stated thus:
a) AOD.Anjaiah worked as Assistant Sub-Inspector of Police (ASI),
Jogipet Police Station and he was also in-charge ASI of Pulkal Police
Station during the relevant time. The complainantSyed Sadique Ali
(PW1) was a Muthavalli of Darga Jindasha Madar of Minpur village, Pulkal
Mandal. When Hakim Sharif, Rasool Miya, Yadaiah of Siddipet and
Dawood Chand, M.D.Yousuf and others of Minpur village started raising
construction of pillar of Fazil Guru Darga in the lands of Jindasha Madar,
PW1 made a complaint to SHO, Pulkal police station on 27.04.2000
enclosing copy of the proceedings of MRO dated 08.09.1999 by marking a
copy to the Circle Inspector, Jogipet requesting to stop illegal constructions
in Darga. AO also visited the Darga and enquired into the matter but of no
avail. Then, PW1 approached AO on 24.05.2000 and requested to take
action against the encroachers. On that, it is alleged, AO demanded a sum of
Rs.2,000/- as bribe. When PW1 expressed his inability to pay such a huge
amount, AO reduced the bribe amount to Rs.1,000/- and instructed him to
pay that amount at his residence and also informed that after payment of
bribe only he would take action against the encroachers.
b) Unwilling to pay bribe, PW1 submitted Ex.P1complaint on
25.05.2000 and PW5 who was the in-charge DSP, ACB, Nizamabad
registered a case in Cr.No.5/ACB-NZM/2000 under Sections 7 and 11 of PC
Act and successfully laid a trap against AO on 27.05.2000 in the presence of
two independent mediators i.e. PW2 and LW2 and took up investigation. On
completion of investigation, charge sheet was laid against AO.
c) On appearance of AO, charges under Sections 7 and 13 (2) r/w 13
(1)(d) of P.C Act were framed against him and trial was conducted.
d) During trial, PWs.1 to 6 were examined and Exs.P1 to P18 were
marked and MOs.1 to 8 were exhibited on behalf of prosecution. Exs.D1
and D2 were marked on behalf of defence.
e) The plea of accused is one of total denial.
f) A perusal of the judgment would show that having regard to the oral
and documentary evidence, the trial Court held that prosecution failed to
prove the guilt of the accused beyond reasonable doubt and accordingly
acquitted the AO, as stated supra.
g) Demand is concerned, the trial Court having regard to the entries in
Ex.P7General Diary (GD) to the effect that complaint dated 27.04.2000
lodged by PW1 was referred by AO on the same day as civil dispute and
further on 24.05.2000 i.e. on the date of demand, AO was not in Pulkal
police station and he was away at Hyderabad in connection with some
investigation, has held that there was no official favour pending with AO to
demand any bribe and he was not physically present in Pulkal police station
to demand the bribe. Thus, the trial Court disbelieved the demand aspect.
Further demand and acceptance of bribe on 27.05.2000 are concerned, the
trial Court entertained a doubt on the evidence of PWs.1 and 2 and accepted
the theory of implant taken by the defence side and ultimately acquitted the
accused.
Hence, the appeal by State.
3) Heard arguments of Sri M.B.Thimma Reddy, learned Special Public
Prosecutor (Spl.P.P.) for ACB cases and Sri Badeti Venkata Rathnam,
learned counsel for respondent/AO.
4) Fulminating the judgment of the trial Court, learned Spl.P.P. firstly
argued that the trial Court totally misread the facts and evidence and
acquitted the accused though prosecution by cogent evidence could able to
prove the demand and acceptance of bribe by AO.
a) Expatiating his version on the aspect of demand, he argued that PW1
clearly deposed that when he met AO on 24.05.2000 he demanded
Rs.2,000/- to prevent Hakim Sharif and others from entering Jindasha
Madar Darga and when PW1 expressed his inability to pay that much
amount, he reduced the bribe to Rs.1,000/- and asked to pay that amount at
his house. He argued that this part of the evidence of PW1 clearly proves
demand made by AO and AO sought to disprove the above evidence of
PW1 through GD entries in Ex.P7 to the effect that AO and PC 397 were
away from Pulkal police station to Hyderabad from 23.05.2000 to
25.05.2000 in connection with some investigation. He vehemently argued
that except relying upon the entries, AO did not examine himself or the PC
397 to substantiate those GD entries and therefore, it must be held that the
demand aspect was established beyond reasonable doubt.
b) Then, regarding further demand and acceptance of bribe on
27.05.2000, he argued, evidence of PW1 establish that AO demanded and
accepted bribe at his residence and the evidence of PW1 in this regard was
corroborated by PW2 and PW5 and the acceptance of bribe was further
corroborated by chemical test which yielded positive result on both hands of
AO. Learned Spl.P.P. argued that since the acceptance of bribe is
established as above, the presumption under Section 20 of PC Act shall
squarely follow and even assuming prosecution failed to prove the demand,
still presumption under Section 20 of P.C Act, can be drawn if the
acceptance of gratification other than legal remuneration is established and
demand need not be proved. On this proposition, he relied upon the decision
reported in C.K.Damodaran Nair v. Govt. of India . He submitted that since
the prosecution could establish the acceptance of gratification other than
legal remuneration presumption will follow and AO failed to rebut the
presumption since his plea of implanting of money by PW1 has no teeth in
view of the fact that his hands proved positive to the chemical test. He
argued that if really the amount was implanted as argued, there was no
possibility of AO coming into contact with tainted bribe amount and in such
an event, chemical test should yield negative result. Since that is not the
case, the implant theory must be held false. He thus prayed to allow the
appeal by setting aside the judgment of the trial Court.
5 a) Per contra, supporting the judgment of the trial Court, learned counsel
for respondent/AO argued that in order to prove the trap case the
prosecution must establish the two vital ingredients i.e. demand and
acceptance. Demand is concerned, the prosecution miserably failed to
establish the same since the demand theory was blasted by Ex.P7GD
which would show that AO was away at Hyderabad from 23.05.2000 to
25.05.2000, so the question of his demanding bribe was a myth. He argued
that there was absolutely no possibility for AO to fabricate GD entries
because the TLO seized Ex.P7 along with other registers immediately after
trap and so the genuinety of GD entries can not be doubted and therefore,
AO need not examine the Constable to establish plea of alibi and on the
other hand, prosecution should examine him to disprove the GD entries. He
argued the trial Court rightly rejected the demand theory.
b) Sofaras further demand and acceptance of bribe are concerned,
learned defence counsel argued that in fact PW1 did not meet AO at his
house and during temporary absence of AO in the main hall, PW1 implanted
money in the hip pocket of the pant hanging on the wall and if really PW1
met AO in the hall, PW2 who was also present at the door step would not
have missed seeing them both but PW2 did not say anything in this regard
which would establish that PW1 did not meet AO at all. He thus argued that
prosecution failed to prove further demand and acceptance also. He
submitted that since the prosecution failed to prove both demand and
acceptance, the trial Court rightly refused to draw presumption under
Section 20 of PC Act. He argued that in order to deserve for drawing
presumption, the prosecution must prove the demand aspect also. On this
proposition, he relied upon the following decisions.
1. B.Jayaraj vs. State of Andhra Pradesh
2. V.Venkata Subbarao vs. State rep. by Inspector of Police, A.P.
3. Banarsi Dass vs. State of Haryana
c) Finally, learned counsel argued that the complainant had given a false
compliant with an ill motive and considering it and inherent defects in
prosecution case, the trial Court rightly acquitted the accused and there are
no merits in the appeal and hence appeal may be dismissed.
6) In the light of above rival arguments, the point for determination in
this appeal is:
Whether the judgment of the trial Court is factually and legally
sustainable?
7 a) POINT: It is a trap case and charges are under Sections 7 and 13(1)(d)
r/w 13(2) of PC Act. Before scrutinizing the merits of the appeal in the light
of rival arguments, first of all it is incumbent upon this Court to ruminate the
ingredients that have to be established by the prosecution to prove the above
two charges.
b) Reminding the duty of prosecution, the Apex Court in a recent
decision in the case of B.Jayaraj (2 supra) has observed thus:
In so far as the offence Under Section 7 is concerned, it is a settled
position in law that demand of illegal gratification is sine qua non to
constitute the said offence and mere recovery of currency notes
cannot constitute the offence Under Section 7 unless it is proved
beyond all reasonable doubt that the accused voluntarily accepted
the money knowing it to be a bribe. The above position has been
succinctly laid down in several judgments of this Court. By way of
illustration reference may be made to the decision in C.M. Sharma
v. State of A.P. (2010) 15 SCC 1= AIR 2011 SC 608 = 2011 AIR
SCW 297 and C.M. Girish Babu v. C.B.I. (2009) 3 SCC 779 =AIR
2009 SC 2022 = 2009 AIR SCW 1693.
The Supreme Court further observed thus:
Mere possession and recovery of the currency notes from the
accused without proof of demand will not bring home the offence
Under Section 7. The above also will be conclusive in so far as the
offence Under Section 13(1)(d)(i)(ii) is concerned as in the absence
of any proof of demand for illegal gratification (emphasis supplied),
the use of corrupt or illegal means or abuse of position as a public
servant to obtain any valuable thing or pecuniary advantage cannot
be held to be established.
Thus, in the above decision the Honourable Apex Court emphatically laid
down that for establishing the offences under Sections 7 and 13(1)(d)(i) (ii)
the prosecution shall by cogent evidence establish the two vital ingredients
i.e. (i) demand of illegal gratification other than legal remuneration and (ii)
voluntary acceptance.
b) Then presumption under Section 20 of P.C. Act is concerned, it reads
thus:
Section 20Presumption where public servant accepts
gratification other than legal remuneration:
(1) Where, in any trial of an offence punishable under section 7 or
section 11 or clause (a) or clause (b) or sub-section (1) of section 13
it is proved that an accused person has accepted or obtained or has
agreed to accept or attempted to obtain for himself, or for any other
person, any gratification (other than legal remuneration) or any
valuable thing from any person, it shall be presumed, unless the
contrary is proved, that he accepted or obtained or agreed to accept
or attempted to obtain that gratification or that valuable thing, as
the case may be, as a motive or reward such as is mentioned in
section 7 or, as the case may be, without consideration or for a
consideration which he knows to be inadequate.
(2) xxxx
(3) xxxx
On the aspect whether prosecution is required to prove demand to draw
presumption under Section 20 of P.C. Act, there is a legal dichotomy. In
C.K.Damodaran Nairs case(1 supra) cited by learned Spl.P.P, a Division
Bench (Two Honourable judges) of Apex Court opined that demand aspect
need not be proved for drawing presumption under Section 4(1) of PC Act,
1947 (old Act) (Section 20 of PC Act, 1988). It observed thus:
Para 11: From a combined reading of S. 161 I.P.C. and Section
4(1) of the Act it is evident that if, in the instant case, the
prosecution has succeeded in proving that the appellant was a
public servant at the material time and that he had 'accepted' or
'obtained' Rs.1,000/- from PW 9 as gratification not only the first
two ingredients of the former would stand proved but also the third,
in view of the presumption under the latter which the Court is bound
to draw unless, of course, the appellant, in his turn, has succeeded
in rebutting that presumption. According to Shorter Oxford
Dictionary 'accept' means to take or receive with a 'consenting
mind'. Obviously such a 'consent' can be established not only by
leading evidence of prior agreement but also from the circumstances
surrounding the transaction itself without proof of such prior
agreement, If an acquaintance of a public servant in expectation and
with the hope that in future, if need be, he would be able to get some
official favour from him, voluntarily offers any gratification and if
the public servant willingly takes or receives such gratification it
would certainly amount to 'acceptance' within the meaning of
Section 161 I.P.C. It cannot be said, therefore, as an abstract
proposition of law, that without a prior demand there cannot be
'acceptance'.
Thus, in the above decision it was held that acceptance of illegal
gratification other than legal remuneration by the accused with a consenting
mind is sufficient to draw mandatory presumption under Section 20 of PC
Act and for that purpose prior demand need not be established. However, it
appears in the subsequent decisions the above view was not followed.
c) In V.Venkata Subbaraos case (3 supra) another Division Bench
(Two Honourable Judges) of Supreme Court observed on the same aspect as
follows:
Submission of the learned Counsel for the State that presumption
has rightly been raised against the appellant, cannot be accepted as,
inter alia, the demand itself had not been proved. In the absence of a
proof of demand, the question of raising the presumption would not
arise. Section 20 of the Prevention of Corruption Act, 1988 provides
for raising of a presumption only if a demand is proved.
In the above case it was emphatically laid down that without proof of
demand the question of raising presumption 20 of PC Act, 1988 would not
arise.
d) In B.Jayarajs case (2 supra) Full Bench of Honourable Apex Court
has held thus:
In so far as the presumption permissible to be drawn Under
Section 20 of the Act is concerned, such presumption can only be in
respect of the offence Under Section 7 and not the offences Under
Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of
acceptance of illegal gratification that presumption can be drawn
Under Section 20 of the Act that such gratification was received for
doing or forbearing to do any official act. Proof of acceptance of
illegal gratification can follow only if there is proof of demand.
(emphasis supplied) As the same is lacking in the present case the
primary facts on the basis of which the legal presumption Under
Section 20 can be drawn are wholly absent.
So, in the latest judgment, the Full Bench of Honourable Apex Court
observed that proof of acceptance of illegal gratification can follow only if
there is proof of demand and only when these two ingredients are
established, presumption under Section 20 of P.C Act would follow.
8) Having regard to the above legal propositions, the appeal is to be
decided.
9) In this case demand was said to be made by AO on 24.05.2000. The
contention of AO is twofold. That no official favour was pending with him
by that date and he was not present in Pulkal Police Station on 24.05.2000 to
solicit bribe. With regard to first contention, his submission is that the
complaint filed by PW.1 on 27.04.2000 was closed by him on 27.04.2000
itself referring it as a civil dispute which is evident from Ex.P.7G.D.
Hence no official favour was pending with him by 24.05.2000. Then the
second contention of AO was in the nature of plea of alibi i.e, he claims that
on 24.05.2000 he was not available at Pulkal P.S and on the other hand
himself and PC 397 were at Hyderabad from 23.05.2000 to 25.05.2000 on
some investigation work which is evident also from the entries in Ex.P.7
G.D. Hence the demand theory projected by the prosecution has to be tested
with reference to the above defence plea.
10) In this context, admittedly AO was placed in-charge of Pulkal P.S as
ASI through Ex.P.9memo dated 17.03.2000 issued by PW.3Inspector
of Police, Jogipet P.S and AO received the complaint given by PW.1 on
27.04.2000. Then with regard to the closure of complaint, the evidence of
PW.1 is thus:
On 27.04.2000, when I gave complaint to the AO he made a G.D
entry and gave a receipt to me. I do not know whether AO entered
in G.D to the effect that the complaint given by me on 27.04.2000
pertains to civil matter and that he instructed us to go to civil court
and accordingly issued notice to me (the witness volunteers that no
notice was given to them). I gave the receipt given by AO in token of
receipt of my complaint to DSP, ACB along with my Ex.P.1
complaint. It is not mentioned in Ex.P.1 about the myself enclosing
the receipt given by the AO.
Then PW.3-the Inspector of Police, Jogipet Circle in his chief-
examination deposed as follows:
On 30.04.2000, the accused produced both the parties with regard
to the dispute of a Darga situated at Minpoor village before me. I
asked both the parties to settle the matter amicably in the village
itself. To that effect both the parties have given an undertaking to
me in writing. Ex.P.10 is the said undertaking.
In his cross-examination he further stated thus:
Ex.P.10compromise memo also bears the signature of Sadiq Ali
(PW.1) I advised compromise between the parties calling the village
elders with regard to the dispute of raising a wall. Ex.P.10
compromise memo was executed on 30.04.2000. After Ex.P.10 I did
not receive any complaint over that dispute.
Apart from the above oral evidence, the entry dated 27.04.2000 in
Ex.P.7General Diary reads in Telugu as follows:
10:30 ? ?????? Syed Sadiq Ali Mutawari Dargah Zinda
Shah Mazar, Minpoor came to P.S given a petition Rega. ????????
????? ?????? ????? ??. 308 ? 3.39 ????? ???? ??? Darga Zinda
Shah Mazar ?????? ?????? ?? ??????????? ??? ?????? ?????
???? ???? ????? ???? ??????? ????? ???? ????????????? ??? ????????
?????????.
? ??????? civil ???? ???????????? ????? ????????????
???????????? ?????, ???????? ???????? ?????? ????? ?????????.
Sd/-
ASI
a) So when the above evidence relating to the pendency of official
favour is scrutinized, it would reveal that AO closed the complaint on
27.04.2000 itself mentioning the same as civil dispute and referring the
parties to the Court. Further on 30.4.2000, AO produced the parties before
PW3the Inspector of Police, and he effected a sort of compromise under
Ex.P.10 between the parties. Thus the aforesaid unimpeachable oral and
documentary evidence demonstratively shows that no official favour was
pending with AO by 24.05.2000 to demand any bribe. In this regard the
argument of AO that if he was really a bribe monger he would have kept the
complaint pending without referring it as civil dispute for soliciting bribe is
logically quite appropriate.
11) Then the first demand dated 27.04.2000 is concerned, the evidence of
PW.1 is thus:
On 24.05.2000, I went to the AO. The AO asked me to pay
Rs.2000/- to prevent the Hakim Shareef and rasool miya and others
from entering into the Jindashah Madar Darga, when I expressed
my inability to pay that much amount, he reduced the bribe to
Rs.1,000/- and asked me to pay at his house. On 25.05.2000 by 12
noon I went to the office of the DSP, ACB and gave a written
complaint to the Head Constable.
In the cross-examination on the demand aspect he admitted as follows:
On 24.05.2000 I met the AO at Pulkal police station. I do not
remember the time when I met the AO. It is true, it is not mentioned
in Ex.P1, the time at which I met the AO on 24.05.2000. It is also
not mentioned in Ex.P.1 whether (sic where) I met the AO on
24.05.2000. It is not true to suggest that I did not meet the AO on
24.05.2000 in the police station and that the AO was at Hyderabad
in connection with the investigation along with PC 397.
a) The above is the version of PW.1 regarding demand. However, when
the entries in Ex.P.7G.D of Pulkal Police Station relating to 23.05.2000,
24.05.2000 and 25.05.2000 are perused, they reveal the facts contrary to the
claim of PW.1:
i) The entry at 12:30 noon of 23.05.2000 reads as follows in Telugu:
12:30 ? ?????? ???? ASI ?? C.L ????? ?? ?????
????????? ????? ? ????? ??????? HC 701 ????? ???????????.
Sd/-
ASI
???? ASI ?? HC 701?? G.D ?????? ??? ?????????????? HYD ?? PC 397
?? ???????? G.D ?????? ????? ??????????.
ii) Then the entry at 7:00am on 24.05.2000 relating to the roll call of the
staff of Police Station reads thus:
ASI along with PC 397 I/D dutyHyd.
iii) Similarly the G.D entry at 7:00am on 25.05.2000 relating to roll call
of the staff of P.S reads as follows:
ASI, PC 397 I/D dutyHyd.
iv) Then the entry in Sl.No.15 at 23:00 hours on 25.05.2000 reads in
Telugu as follows:
ASI, PC 397 ?? I/D duty ????? ?????? ???????.
The above G.D entries were confirmed by PW.3 in his cross-
examination as follows:
Ex.P.7 shown to me is the General diary of Pulkal Police Station.
As seen from the General Diary entry dt.27.04.2000 in Ex.P.7 at
Page No.104 it is written by the accused that with reference to the
complainant by said ali (PW1) the complaint was closed as civil
nature and to go to court, and accordingly a notice was issued to the
parties. It is true as seen at Page No.133 of Ex.P.7, it is written at
GD dt.17.05.2000 by the accused at 1.00PM that he is going on
casual leave. It is true as seen at page No.144 of Ex.P7 the accused
wrote the GD dt.23.05.2000 at 12:23 that he joined the duty after
availing the CL one day late. Under it the accused further wrote at
12.30 noon that along with P.C.397 on the instructions of the
Inspector he is proceeding to the Hyderabad in connection with the
investigation. It is true as seen at page No.146 of Ex.P7
dt.24.05.2000 it is written at 7 A.M. at the time of roll call the
accused along with P.C.397 was on investigation duty at
Hyderabad. It is true the accused reported for duty at Jogipet P.S.
on 25.05.2000. After that date the accused was not supposed to do
any duty at Pulkal P.S.
PW.5the TLO also avouched about the above G.D entries. The
genuineness of the above G.D entries is concerned, it must be noted that
immediately after trap, PW.5 has seized Ex.P.6, P.7 and other records and
therefore, manipulation of those entries is impossible. For this reason, the
genuinity and authenticity of the G.D entries can be accepted. Further, since
the above entries are maintained in a public document by a public office, the
presumption under Section 114 (e) of Indian Evidence Act to the effect that
the above entries were regularly maintained will follow. The prosecution
has not placed any evidence to rebut the presumption and to establish that
those were the manipulated entries. Learned Spl.P.P. argued that the AO
has not examined himself or PC 397 to confirm that they were at Hyderabad
from 23.05.2000 to 25.05.2000 and hence the G.D entries cannot be given
weight. I am afraid, this argument does not hold conviction in view of my
earlier observation that Exs.P.6, P.7 and other documents were seized by
T.L.O immediately after trap and there was absolutely no possibility for AO
to manipulate the entries to suit his case. That being so, non-examination of
PC 397 is not a consequence at all. The trial Court, it must be said, has
properly appreciated the facts and evidence concerning to the demand aspect
and held that AO could substantiate his plea of alibi and the prosecution
failed to prove by satisfactory evidence, the demand. In that process, the
trial Court also considered the argument of the prosecution to the effect that
though AO went to Hyderabad on official duty, still there was a possibility
for him to come down to Jogipet on 24.05.2000 and demand bribe from
PW.1 since the distance between Hyderabad and Jogipet was short. The
trial Court rightly noticed that such an argument was based purely on
conjuncture since prosecution could not bring out any circumstance to hold
in that line and even PW.1 himself could not give the time when he met AO
on 24.05.2000. Thus the trial Court rightly rejected this argument and
ultimately held that prosecution failed to prove the demand aspect. I endorse
the same view.
12) Then the further demand and acceptance of bribe are concerned, the
prosecution depends upon the evidence of PWs.1, 2 and 5 and ofcourse
Ex.P.3. The version of PW.1 is thus:
Myself and one of the mediators by name Chalapathi rao went to
the house of the AO. The mediator chalapathi rao was standing at
the door and I alone entered inside the house of the AO since it was
a small house. The AO on seeing me enquired whether I brought the
amount and I answered affirmatively and gave the amount, it was
received by him and he also counted the amount and then he kept the
amount in his khaki pant hip pocket which was hanging to the wall.
At that time AO was wearing banian and underwear. AO asked me
to go and wait for him at the police station. Then I went out and
gave prearranged signal. Trap party came there and entered inside
the house by asking me to wait outside. 2 or 3 hours later I was
called inside and I told the trap party as to what all happened.
So the version of PW.1 is that though himself and PW.2 went to the
house of AO, PW2 remained at the door since the house was small and he
himself went inside the front hall and on the further demand of AO tendered
the bribe amount to him. Then the spontaneous reactiveexplanation of
AO at two different stages during post trap proceedings as can be found in
Ex.P.3 is as follows:
i) This reaction at the first instance is noted thus:
The DSP questioned Sri Anjaiah whether he had just before
demanded and accepted any bribe amount from the Old Muslim
person. Sri Anjaiah denied that he did not take any amount from
any one and also denied any acquaintance with the Muslim person.
However, when the DSP drew his attention to the Pink Coloured
Solutions which resulted from his hands washed, Sri Anjaiah
reluctantly accepted to have received the amount and when asked by
the DSP about the received amount he pointed towards the Uniform
pant (kaki) hanging on the wall at and he took out from the Right
Side Hip pocket a wad of currency notes.
At another instance his explanation is noted as follows:
Sri D.Anjaiah, ASI stated that he worked as the SHO, of Pulkal P.S
during the last April upto 15th May, as there was no S.I at Pulkal and
on the instructions of the C.I Jogipet, for the last 1 week, he is
working as the Guard In-charge at Jogipet P.S. He further stated
that while he was SHO of Pulkal P.S. Syed Sadiq Ali Mutawali
Darga Zinda Shah Mazar Minpur gave a complaint to him on
27.04.2000(to his remembrance) and as it was of civil nature, he
advised the person to approach the Court. He also stated that due to
extremists problem, Pulkal P.S is also functioning just behind
Jogipet P.S. He stated that he does not know why the person Sadiq
Ali complained against him and that he did not meet him during the
last 1 month. However, he couldnt explain for receiving the
amount.
a) So in the first version it would appear as if AO admitted to have
received the bribe amount but in the second version he pleaded total
ignorance even about PW.1 coming to his house. During trial, AO
confined to his second version and took the plea that when he was in the
Kitchen PW.1 might have entered the hall and planted the tainted amount
in the hip pocket of his uniform pant hanging on the wall to the left side of
the door. Now the crucial aspect is whether the version of PW.1 was
correct or the explanation of AO was right. It may be noted that in view of
the law laid down by Apex Court in its latest judgment, without the proof
of demand, the presumption under Section 20 of P.C. Act cannot be drawn
basing on mere recovery of the money from the pant of AO because
prosecution failed to prove the demand aspect. Therefore, the prosecution
has to independently prove the acceptance of gratification other than legal
remuneration by convincing evidence. In this context when the evidence of
PW.1 on one hand and the explanation of AO on the other are scrutinized,
the defence explanation, rather than the evidence of PW.1, appears to be
reasonable and convincing for the following reasons:
i) Even according to prosecution, PW.1 was the only witness for further
demand and acceptance of bribe since PW.2 claims that he remained at
the door and did not witness what transpired between AO and PW.1.
Since the evidence of PW.1 touching the aspect of demand was held to
be unbelievable in the light of entries in Ex.P.7G.D, his evidence
concerning further demand and acceptance of bribe needs a microscopic
scrutiny. As per PW.1, when he met AO, he was in banian and
underwear. However, his version before the DSP in Ex.P.3second
mediator report was that when he saw AO he was wearing lungi and
banian. Even the trap party members found AO in lungi and banian and
they mentioned this fact in Ex.P.3. Generally, the little difference
regarding wearing apparel of AO as spoken by PW.1 will not have
much impact on the veracity of the evidence of PW.1 but this difference
assumes great importance in the light of spontaneous explanation of AO
that PW1 did not meet him at all on the date of trap. Therefore, the
evidence of PW.1 gives raise a doubt as to if he really met AO on the
date of trap, he would not have faltered regarding the dress worn by
AO. It must be noted that the trial Court has not given much
importance to this discrepancy in the evidence of PW.1 but in my view
this discrepancy weighs against the case of prosecution.
ii) PW.2 was specifically employed by the TLO to follow PW.1 to witness
the happenings between AO and PW.1 but he did not do so. The reason
given in his chief-examination is thus:
Then on the instructions of the DSP myself and PW1 went to
the house of the AO. The house of the AO is a small house and
I was standing at the door PW.1 entered the house. Within one
or two minutes PW.1 came out and then gave signal.
In the cross-examination he stated thus:
As the room of the AO is very small I did not enter inside the room.
There is a kitchen in the house of the AO towards right side. There
is wall in between the room and kitchen. The hanger to the wall is
quite opposite to the door. As seen from Ex.P.4rough sketch the
hanger to the wall is shown by the side of the door
When the above evidence of PW.2 is perused with reference to
Ex.P.4sketch, it would appear that the quarter of AO is a two roomed
house consisting of one main hall and right side abutting kitchen.
Admittedly this quarter is a small quarter. If that is so when PW.2 stood at
the door of the main hall and when PW.1 accosted AO at the main hall and
gave bribe amount on his further demand, it is most unlikely that PW.2
who was standing at the door could not or would not watch the happenings.
Surprisingly PW.2 did not state anything about the interaction between
PW.1 and AO. That means in a way he is not supporting the version of
PW.1. Thus from the evidence and conduct of PW.2 a doubt again lingers
as to whether really PW.1 met AO in the hall of his house on the date of
trap.
iii) Though in Ex.P.3 it is the version of prosecution that on seeing the trap
party AO got perturbed and started rubbing his right hand to the cot and
he also murmured that he does not have any connections with the
persons, surprisingly PW.2the independent mediator has not spoken
anything about this impulsive reaction of AO creating doubt on him.
The prosecution in Ex.P.3 projected the above conduct of AO to show
his guilty consciousness but that was not affirmed by the independent
mediator. So there is no corroboration to the alleged guilty conduct of
AO as mentioned in Ex.P.3 which is not a substantive piece of evidence.
Further, PW.5TLO did not subject the portion of the cot to which the
AO was allegedly rubbing his right hand to the Sodium Carbonate Test.
iv) The motive for PW.1 to implicate AO is concerned, the following
version of PW.1 in his cross-examination is important.
During 1994 My brother in law Mohd. Jahangir was head
constable and he worked in Kangti check post during that time. AO
was also worked as head constable in the said check post I do not
know whether my brother in law Mohd. Jahangir was charged for
drunken high handed behaviour against Dy. Director Yesudas and
also for tearing the attendance register. I do not know whether DSP
sangareddy enquired into the said charges against my brother in law
and the AO also gave statement in the said enquiry. I do not know
whether Mohd. Jahangir was removed from service 09.06.94 on the
report of the DSP. It is not true to suggest that I contacted the AO
and requested him not to give statement against my brother in law in
the said enquiry for which he refused and that I bore grudge against
him. It is not true to suggest that I threatened the AO that I will see
his end.
It is true that PW.1 is denying, his having grudge against AO but
when the totality of the circumstances i.e, his falsity on the aspect of
demand is considered, his bearing grudge against AO cannot be totally
ignored.
13) So when the above glaring defects in the prosecution case are
considered, it cannot be said that the prosecution could prove the charges
against AO merely because the bribe amount was recovered from his pant
pocket. It must not be forgotten that it is not the case of recovery of tainted
amount from the person of the accused so as to even remotely connect the
accused to the case.
14) In the light of the facts and circumstances, the evidence adduced by
the prosecution miserably fell short of proving the charges against AO and
so it must be held that the judgment of the trial Court is factually and
legally sustainable.
15) In the result, this Criminal Appeal is dismissed by confirming the
acquittal recorded by the trial Court in its judgment in C.C.No.35 of 2001.
As a sequel, miscellaneous applications pending if any shall stand
closed.
_________________________
U. DURGA PRASAD RAO, J
Date: 27.12.2014
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