Even for argument sake, it is assumed that PW.1 stuffed the amount in his pocket for payment of land revenue, the said amount should be Rs.552/- so as to be believed as land revenue amount but the amount recovered from his pocket was only Rs.500/-. Hence this defence plea is inconsistent with previous plea on one hand and also inconsistent with the other facts and so the same is not believable.
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO
Criminal Appeal No.1149 of 2010
02-12-2014
Tadikalapudi Sesha Rama Sankhar Kumar..... Appellant
The State of A.P, rep. by Inspector of Police, ACB,Eluru Range, Eluru,Rep. by
Spl. Public Prosecutor,High Court, Hyderabad.. Respondent
Counsel for Appellant: Sri U. Ramanjaneyulu
Counsel for Respondent : Sri M. B. Thimma Reddy
Special Public Prosecutor for ACB
<Gist:
>Head Note:
? Cases referred:
1) 2007 CriLJ 754 (SC)
2) 2010 (1) ALD (Crl.) 924 (SC)
3) 1997 (2) ALD (Crl.) 743 (AP)
4) (2011) 2 Supreme Court Cases 36
5) MANU/SC/0505/2014
HONBLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL No.1149 of 2010
Judgment:
This Criminal Appeal is preferred by the Accused Officer (AO)
aggrieved by the judgment dated 24.09.2010 in C.C.No.7 of 2005 passed by
learned Special Judge for SPE & ACB Cases, Vijayawada convicting him for
the offences under Sections 7 and 13(1)(d) r/w 13(2) of Prevention of
Corruption Act, 1988 (for short P.C Act) and sentencing him to undergo
R.I for a period of six months and to pay a fine of Rs.2,000/- and in default
to suffer SI for one month on first count and suffer R.I for one year and to a
pay fine of Rs.3,000/- and in default to suffer S.I for three months on the
second count with a direction that the substantive sentences of imprisonment
under both counts shall run concurrently.
2) The factual matrix of the case is thus:
a) AOTadikalapudi Sesha Rama Sankhar Kumar worked as Panchayat
Secretary in Thaduvai Gram Panchayat, Jangareddygudem, West Godavari
District during 2003. According to prosecution, Kodavati Venkateswara
Raocomplainant (PW1) who is having 17 acres of land at Thaduvai Village
proposed to purchase a tractor by taking a loan from Primary Agricultural
Co-operative Society (P.A.C.S), Thaduvai. PW.1 approached AO about 15
days prior to presenting Ex.P.1 report to PW.10 and handed over pattadar
pass books of his land and requested him to issue copies of 10(1) Adangal
extracts. One day when PW.1 was returning from his lands, the AO
demanded PW.1 to pay a bribe of Rs.500/- to issue Adangal extracts, then
PW.1 informed the AO to give the certificates first and then he would see
about the demanded bribe amount but AO did not heed to his request and
informed that unless and until demanded bribe amount was paid, he would
not issue copies of 10(1) Adangal extracts, without which PW.1 could not get
the loan. Again on 16.10.2003, when PW.1 approached AO, he reiterated his
earlier demand.
b) Unwilling to pay bribe, PW1 submitted Ex.P.1complaint to DSP,
ACB, Eluru Range, Eluru (PW10) on 17.10.2003 at 8:30am, who registered
the same as a case in Cr.No.9/RCT-EWG/2003 on 18.10.2003 at 12:30pm
after conducting discreet enquiries and successfully laid a trap against AO on
18.10.2003. 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 13 were examined and Exs.P1 to P19 and
Ex.X.1 were marked and MOs.1 to 8 were exhibited on behalf of prosecution.
No oral or documentary evidence was adduced on behalf of defence.
e) The trial Court on appreciation of evidence held that prosecution
proved the guilt of the accused beyond reasonable doubt and accordingly
convicted the AO, as stated supra.
Hence, the appeal by AO.
3) Heard arguments of Sri U.Ramanjaneyulu, learned counsel for
appellant/AO and Sri M.B.Thimma Reddy, learned Special Public Prosecutor
(Spl.P.P.) for ACB cases.
4 a) Challenging the judgment, learned counsel for appellant firstly argued
that the trial Court misread the facts and evidence and erroneously convicted
the A.O. Expatiating it, he argued that in a trap case the prosecution must by
cogent evidence establish the two vital ingredients i.e. demand and
acceptance of bribe by accused officer (A.O.) but in this case the prosecution
miserably failed to prove those ingredients in as much as P.W.1, the
complainant himself has not supported the prosecution case on these vital
ingredients. Even according to P.W.1, he was misled by the information of
Village Servant who stated as if the A.O. demanded the bribe and on his such
information and without cross-checking the same with A.O., he believed as if
the A.O. demanded bribe for issuing certified copies of 10 (1) adangal. From
the evidence of P.W.1, the learned counsel argued, the A.O. never demanded
bribe from P.W.1 for doing any official favour much less for issuing certified
copies of 10(1) adangal. He submitted, P.W.1 was declared hostile by
prosecution and cross-examined at length but no useful information could be
elicited through him to connect the accused to the case. As such, the
allegation of demand of bribe was not at all established by the prosecution.
b) Secondly, the learned counsel for the accused argued that even
otherwise no official favour was pending with A.O. to demand bribe from
P.W.1 which is evident from the fact that A.O. signed on the
T.L.Application/10 (1) account (Ex.P.3 and Ex.P.6); and sent to Secretary of
P.A.C.S. on 16.10.2003 i.e., even before the date of complaint. As no work
relating to P.W.1 was pending with him by the date of complaint or by the
date of trap, the question of his demanding any bribe from P.W.1 does not
arise.
c) Thirdly, acceptance of bribe amount is concerned, learned counsel
argued that P.W.1 and P.W.2 were due of land revenue and when the Village
Servant informed P.W.1 that they have to pay the land revenue for issuing
certified copy of 10(1) adangal and the said amount has to be paid to the
A.O., P.W.1 might mistook said amount as bribe and thrusted in the pocket
of A.O. on the evening of date of trap, even though A.O. refused to receive
the amount and within no time ACB officials reached and caught hold the
A.O. and dubbed that amount as bribe amount and implicated him in the case
despite his spontaneous written explanation (vide Ex.P.12) to the effect that
he never demanded and accepted the bribe and that P.W.1 forcibly thrusted
the amount in his pocket and that it was dark at that time due to power failure
and immediately thereafter the ACB Officials came and caught hold him.
d) Learned counsel argued that in view of above circumstances which
were cogently explained by AO in his spontaneous explanation, the trial
Court ought to have held that he had neither demanded nor accepted the bribe
and prosecution failed to prove its case. He vehemently argued that the trial
Court misread the facts and evidence and drew presumption under Section 20
of the P.C. Act and held as if A.O. failed to rebut the presumption and
thereby convicted him through its perverse findings. He thus prayed to allow
the appeal and set aside conviction and sentence. In support of his arguments
learned counsel relied upon the following decisions:
1. V. Venkata Subbarao vs. State, rep. by Inspector of Police, A.P.
2. Banarsi Dass vs. State of Haryana
3. Periyaswamy Sangi and another vs. State .
5 a) Per contra, while supporting the judgment, learned Spl.P.P firstly
argued that in spite of P.W.1 turning hostile, the prosecution with the help of
reliable portion of his evidence coupled with the corroborative evidence of
other reliable witnesses such as P.W.7 and P.W.10 and other attending
circumstances could establish the demand of bribe by the A.O. He
vehemently argued that in accepting the hostile evidence of P.W.1 with the
aid of other reliable and corroborative evidence and holding that the
prosecution could establish the demand aspect, the trial Court did not exhibit
any perversity but followed the established principles of appreciation of
evidence of hostile witnesses. In this regard he relied upon the decision
reported in Himanshu alias Chintu vs. State (NCT of Delhi)
b) Secondly, speaking on the acceptance of bribe, he submitted that even
though P.W.1 turned hostile on the demand aspect, he clearly deposed that he
paid the amount to A.O. just before trap and he did not give any other reason
connoting what he gave was not bribe. Further, the chemical test conducted
by the T.L.O., proved positive on the left hand and inner lining of shirt
pocket of A.O. and the trap party recovered bribe amount from the person of
A.O. All these would, he narrated, collectively show that the A.O.
voluntarily accepted the bribe amount. He submitted that since the
prosecution could prove the demand as well as acceptance of the bribe
amount, the trial Court has rightly drawn the mandatory presumption under
Section 20 of the P.C. Act.
c) Thirdly, regarding discharge of burden by A.O., he would argue that
the A.O. failed to rebut the presumption through his defence plea; firstly, for
the reason that he took mutually inconsistent defence pleas at different
stages; and secondly none of the defence pleas is tenable. He submitted that
in Ex.P.12, A.O. gave spontaneous explanation as if P.W.1 stuffed the bribe
amount in his pocket even though he did not demand bribe. Whereas during
trial, he suggested to some of the prosecution witnesses as if P.W.1 gave
amount towards arrears of land revenue. Thus the defence pleas are mutually
inconsistent. Stuffing is concerned, he argued that there is no necessity for
P.W.1 to stuff the amount to implicate him in a false case because admittedly,
there were no disputes between A.O. and P.W.1. Whereas, arrears of land
revenue is concerned no demand for land revenue was made against P.W.1
and P.W.2 and so there was no occasion for P.W.1 to pay the amount to A.O.
towards alleged land revenue that too going all the way from Thaduvai to
Jangareddy MROs office. Further, the land revenue amount as per P.W.1
was Rs.552/-, whereas the amount found with A.O. was Rs.500/- and both
amounts are not matching with each other. He thus prayed to dismiss the
appeal.
6) In the light of the above rival arguments, the points for determination
in this appeal are:
1) Whether any official favour was pending with A.O. during relevant
period to demand bribe from P.W.1?
2) If, point No.1 is held in affirmative, whether A.O. demanded bribe
from P.W.1 and prosecution could establish demand and acceptance
in the backdrop of P.W.1 turning hostile to the prosecution?
3) If, point No.2 is held in affirmative, whether A.O. could successfully
rebut the statutory presumption drawn against him?
4) Whether the judgment of the trial Court is factually and legally
sustainable?
7) POINT No.1: The admitted facts are that A.O. was working as Junior
Assistant, Panchayat Secretary, Parimudi Village, Koyyalagudem Mandal
and he was posted as FAC Panchayat Secretary, Thaduvai Gram Panchayat,
Jangareddy Mandal, West Godavari District during the relevant period. It is
also an admitted fact that P.W.1 who owned lands wanted to purchase a
tractor by taking loan from P.A.C.S., Thaduvai. Then the undisputed
evidence of P.W.9, the Deputy Tahsildar with regard to method of securing
loan from P.A.C.S. is that if a ryot intends to obtain loan from any bank or
P.A.C.S., he can obtain true copy of 10 (1) account directly from Village
Revenue Officer who will fill the 10 (1) account form which is attached to
the loan application of the concerned bank or P.A.C.S. The individual will
submit the application form and the enclosed 10 (1) account duly filled and
signed by Village Revenue Officer to the concerned bank. In the instant case,
P.W.1 submitted Ex.P.3 and Ex.P.6 application forms along with attached 10
(1) accounts to P.W.4, the Secretary, P.A.C.S. It is the further admitted fact
that A.O. being FAC Panchayat Secretary, Thaduvai Gram Panchayat, needs
to fill the 10 (1) Account forms attached to Ex.P.3 and Ex.P.6 forms by
referring the revenue records. To this extent there is no dispute. However, the
contention of A.O. was that he signed those forms on 16.10.2003 itself i.e.,
even prior to the date of Ex.P.1 complaint and sent to P.W.4 through P.W.3-
Village Servant.
8) In the light of above contentions, a perusal of the evidence of P.W.3
would show that A.O. signed on Ex.P.3 and Ex.P.6 on 16.10.2003 itself and
at the instance of A.O. he handed over L.T. Applications of P.W.1 and P.W.2
to P.W.4 but P.W.4 returned them to him asking to verify the applications
whether they were dully filled up or not and then bring back after filling up
the application in full. According to P.W.3, P.W.4 returned the applications
on the same day i.e., on 16.10.2003 and this witness informed the same fact
to A.O. by returning Exs.P.3 and Ex.P.6.
9) Then a perusal of Exs.P.3 and Ex.P.6 would show that A.O. has signed
on relevant papers on 16.10.2003 itself. Then the evidence of P.W.4, the
Secretary of P.A.C.S., Thaduvai when perused, he stated in the chief
examination that on 16.10.2003 A.O. sent L.T. loan application forms of
P.W.1 and P.W.2 through P.W.3 and he verified and noticed that the revenue
records pertaining to loan applications were not duly filled and so he asked
P.W.3 to handover to A.O. to file the applications after they were duly filled
up and returned them on 16.10.2003 itself. In the re-examination the Special
Public Prosecutor elicited that pages 3, 5 and 9 of Ex.P.3 and Ex.P.6 were not
filled up. However, in the further cross-examination, the defence side could
elicit that pages 3 and 5 were to be filled up by the applicant and page 9 is
repetition of page 8 and page 8 was already filled up by A.O.
10) So, when the evidence of P.W.3 and P.W.4 is carefully analysed what
one can understand is that no doubt AO filled up the relevant forms in Ex.P.3
and Ex.P.6 to the extent to be filled up by him and sent Ex.P.3 and Ex.P.6 to
P.W.4 through P.W.3 on 16.10.2003. On verifying them P.W.4 found that
some of the forms were still left blank and hence asked P.W.3 to handover to
A.O. to verify and see that all the forms are filled up and resubmit. It is true
that pages 3 and 5 in Ex.P.3 and Ex.P.6 have to be filled up by the applicants
as per the details mentioned therein. Page 9 is a duplicate to page 8 and page
8 was already filled up by A.O. Despite all these, the fact remains that the
two application forms were returned back to A.O. on 16.10.2003 itself and
P.W.1 did not know any of these facts. P.W.1 stated this fact in his cross-
examination saying that he did not know whether A.O. has signed Exs.P.3
and P.6 on 16.10.2003 and sent the same to Secretary, PACS (PW.4) through
the Village Servant (P.W.3) and P.W.4 returned them to P.W.3 saying that
some more copies in the applications were to be filled up.
a) In the backdrop of above facts, merely because A.O. signed on the
relevant forms to be filled up by him, on that ground alone we cannot
definitely conclude that there was no occasion for him to demand bribe. As
already stated, P.W.1 did not know that A.O. already signed on the forms to
be filled up by him and the remaining forms were to be filled up by him
(P.W.1) only and that P.W.4 returned papers to A.O.. etc., facts. This was the
factual situation as on 16.10.2003, i.e., the previous day of lodging Ex.P.1
report. Therefore, due to ignorance of P.W.1 about these facts, there was
every possibility for A.O. to demand bribe as the applications were lying with
him by 16.10.2003. This point is answered accordingly.
11) POINT No.2: This point is concerned on demand aspect, except P.W.1
admittedly there was no other witness who watched A.O. demanding bribe.
P.W.1 turned hostile and did not support prosecution to say that A.O.
demanded him bribe. On the other hand in the chief-examination his version
was that, P.W.3 the Village Servant informed him that A.O. was demanding
Rs.500/- for issuing copy of 10 (1) account and believing his word, he gave
Ex.P.1 report to ACB police. Since P.W.1 did not support prosecution, the
fiery argument of defence is that the prosecution utterly failed to prove the
demand aspect but the trial Court basing on the contents in FIR, statements
under Section 164 Cr.P.C., etc., wrongly concluded as if prosecution
established the demand aspect. It was argued that FIR and statements under
Sections 161 and 164 of Cr.P.C. were not substantive evidence to base
conviction. Defence on this aspect relied upon Periyaswamy Sangis case
(3rd supra).
12) In the light of above argument, the point is whether the trial court erred
in appreciating the hostile evidence of P.W.1 and whether its findings
suffered perversity. Under point No.4 of the judgment, the trial Court
elaborately discussed about the aspects of P.W.1 turning hostile and its effect.
The trial Court observed that to prove the aspects of demand and acceptance,
the prosecution apart from direct evidence can also rely upon the indirect
evidence and other attending circumstances and then proceeded to appreciate
them and discussed the indirect evidence and circumstances to arrive at the
conclusion that the prosecution could establish the aspect of demand and
acceptance of bribe by A.O. Ultimately the Court has drawn the presumption
under Section 20 of the P.C. Act. It must be said that in that process the trial
Court was not simply carried away by the FIR and the statements under
Sections 161 and 164 of Cr.P.C. of P.W.1. So, the above cited decision
(Periyaswamy Sangis case (3 supra)) has no application.
13) Coming to the appreciation of hostile evidence, the law is no more res
integra. Section 154 of Indian Evidence Act, reads thus:
Section 154 - Question by party to his own witness
(1) The Court may, in its discretion, permit the person who calls a
witness to put any question to him which might be put in cross-
examination by the adverse party.
(2) Nothing in this section shall disentitle the person so permitted
under sub-section (1) to rely on any part of the evidence of such
witness. (Emphasis supplied)
14) The Honble Apex Court in its latest judgment (Paulmeli and another
vs. State of Tamil Nadu, Traffic Inspector of Police
(MANU/SC/0505/2014), happened to discuss its previous judgments on the
aspects of appreciation and probative value of the evidence of a hostile
witness. It observed thus:
Para 16: This Court in Ramesh Harijan v. State of U.P. (AIR
2012 SC 1979) while dealing with the issue held:
It is a settled legal proposition that the evidence of a
prosecution witness cannot be rejected in toto merely because the
prosecution chose to treat him as hostile and cross examine him.
The evidence of such witnesses cannot be treated as effaced or
washed off the record altogether but the same can be accepted to
the extent that their version is found to be dependable on a careful
scrutiny thereof (Vide: Bhagwan Singh v. The State of Haryana :
AIR 1976 SC 202; Rabindra Kumar Dey v. State of Orissa: AIR
1977 SC 170; Syad Akbar v. State of Karnataka: AIR 1979 SC
1848; and Khujji @ Surendra Tiwari v. State of Madhya
Pradesh: AIR 1991 SC 1853).
Para 17: In State of U.P. v. Ramesh Prasad Misra and Anr. (AIR
1996 SC 2766), this Court held that evidence of a hostile witness
would not be totally rejected if spoken in favour of the prosecution
or the accused but required to be subjected to close scrutiny and
that portion of the evidence which is consistent with the case of the
prosecution or defence can be relied upon.
A similar view has been reiterated by this Court in Sarvesh
Narain Shukla v. Daroga Singh and others. (AIR 2008 SC 320);
Subbu Singh v. State by Public Prosecutor ((2009) 6 SCC 462);
C. Muniappan and others v. State of Tamil Nadu (AIR 2010 SC
3718); and Himanshu @ Chintu v. State (NCT of Delhi):(2011) 2
SCC 36).
Thus, the law can be summarized to the effect that the
evidence of a hostile witness cannot be discarded as a whole, and
relevant parts thereof which are admissible in law, can be used by
the prosecution or the defence.
In Himanshu @ Chintus case (4th supra) cited by learned Spl.P.P.
also, the Supreme Court reiterated the same principle.
15) In the light of above legal jurisprudence, it is now to be seen whether
the evidence of PW.1 offers any useful material helping the prosecution case
and whether that part of his evidence was amply corroborated by other
witnesses. As rightly observed by trial Court, the following key points would
emerge from the evidence of P.W.1.
i) P.W.1 approached A.O. with a request to issue 10 (1) account
extract which was appended to Ex.P.3 and Ex.P.6 loan
applications and by then he had no acquaintance with A.O.
ii) P.W.1 presented Ex.P.1 report to P.W.10 DSP ACB
complaining that A.O. demanded bribe of Rs.500/- for issuing 10
(1) account extract. In Ex.P.1, it was not his case that A.O.
demanded bribe through his Village Servant (P.W.3) or some
other person. His unequivocal allegation is that A.O. demanded
him bribe directly. P.W.1 did not tell the DSP that since Village
Servant demanded him bribe, he was under the impression that
A.O. demanded him bribe.
iii) On the instructions of P.W.10, P.W.1 attended before the DSP
and mediators along with the proposed bribe amount on
18.10.2003.
iv) P.W.1 admitted during cross-examination that both the
mediators read over the contents of Ex.P.1 report and
ascertained the truth of said report from him and he told them
that the facts contained in the report are true and correct.
(Emphasis supplied)
v) P.W.1, P.W.7 and P.W.10 at first went to Thaduvai Village and
as A.O. was not present then they went to M.R.O. office
Jangareddy.
vi) At M.R.O. office P.W.1 met A.O. and asked for his papers and
A.O. told that he handed over the papers to Village Servant
(P.W.3) and then P.W.1 took the money and gave it to A.O. At
that time there was no power as electricity went off. (Emphasis
supplied)
16) So, when the above points are carefully analysed, demand is
concerned, though P.W.1 in his chief categorically denied that A.O.
demanded him any bribe, still he admitted in his cross-examination that the
mediators ascertained the truth of Ex.P.1 report from him and he admitted
before them that the facts mentioned in the report were true and correct. In
this context, when Ex.P.1 report is perused, in it he clearly mentioned that
A.O. demanded him bribe for issuing certificate of 10 (1) account extract. In
Ex.P.1, it was not his case that P.W.3 told him that A.O. was demanding
bribe and thereby P.W.1 opined that A.1 demanded. It is true Ex.P.1 being
only an FIR, no direct reliance can be placed on it, but it serves the purpose
as corroboration to the version of P.W.1. Not only that, the evidence of
P.W.7 the mediator also lends corroboration on the aspect of demand. P.W.7
deposed that when himself and the other mediator K.Satyanarayana (L.W.11)
attended before DSP, he introduced P.W.1 to them and then gave a copy of
FIR and they read over the contents of FIR and P.W.1 admitted the contents
to be true and so both the mediators attested on the copy of FIR (Ex.P.10).
17) The above facts would show that though P.W.1 turned hostile and
denied about the demand made by A.O, still his admission in cross-
examination to the effect that the mediators ascertained the contents of
Ex.P.1 report to be true from him would establish that he indeed presented
Ex.P.1 report alleging that A.O. demanded bribe from him. It is true that
Ex.P.1 being FIR, same cannot be treated as substantive evidence to prove
the demand aspect. However as stated supra, the contents therein were
admitted by P.W.1 before P.W.7 and P.W.10 as true. P.W.7 and P.W.10 on
their part deposed that P.W.1 presented Ex.P.1 with the allegations as
contained in it. P.W.7 being independent mediator his evidence can be relied
upon. Similarly, P.W.10 is a Trap Laying Officer (T.L.O.) and nothing was
brought on record to hold that he speaks falsehood. It may be noted that it
was already held in point No.1 that the official favour was pending with A.O.
to demand bribe. Therefore, for all these reasons, I endorse the finding of the
trial Court holding that A.O. demanded bribe. This point is answered
accordingly.
18) POINT No.3: Then acceptance of bribe is concerned, from the above
points emerged in the evidence of P.W.1, it is clear that P.W.1 himself
admitted that he gave the tainted amount to A.O. It is not even his slightest
case that he stuffed the amount in the pocket of A.O. against his refusal.
Therefore, the acceptance of bribe can also be believed. As the prosecution
could establish the demand and acceptance of bribe, the trial Court was right
in drawing the presumption under Section 20 of the P.C. Act against the A.O.
19) Then it is to be seen whether AO could rebut the presumption. It is
true that unlike prosecution, the accused need not establish his case beyond
reasonable doubt but suffice he can establish preponderance of probabilities
in his favour. In this case, AO submitted a written explanation under Ex.P.12
within short time after trap wherein his version was that one person sent L.T
applications to him through village servant and he filled up the same and sent
through village servant (PW.3) to Secretary (PW.4) on 17.10.2003 but he
returned the same stating that there were some differences and so PW.3
returned applications to him on 18.10.2003. His further version was that as
on that day he (AO) had some work in MRO office, he went to MRO office
and while attending the work, the current went off and so he came out and in
the meanwhile one person approached him in the dark and asked him about
the sketches and then AO replied that he would issue on the next day and as
he was new to village he could not identify that person and in the meanwhile
that person offered some amount and unable to know why he was offering
the amount, AO questioned him what for that amount but that person stuffed
the amount in his shirt pocket and went away and in the meanwhile some
people came and surrounded him and enquired him whether he was the
Panchayat Secretary and as there was no current, he could not identify them
but replied that he was the Secretary and he explained that he did not demand
bribe from anybody but that person stuffed the amount forcibly in his shirt
pocket.
a) The above was the spontaneous explanation of the AO which is
precisely is that he never demanded bribe and some person stuffed the
amount in his pocket in the darkness. Since the amount recovered from his
pocket tallies with the amount produced by PW.1 before the trap party
members at the time of first mediator report, there can be no doubt that the
person approached AO was none other than PW.1. Now the point is whether
PW.1 stuffed the amount as narrated by AO. The defence version is quite
unbelievable. If really PW.1 stuffed the amount in his pocket so as to
implicate him in a false case, certainly he would not have turned hostile to
the prosecution and would not have deposed as if AO did not demand him
bribe. On the other hand, he turned hostile and deposed as if AO never
demanded him bribe but he admitted that he paid the amount to AO. So the
stuffing theory cannot be accepted. Further, if really PW.1 stuffed the
amount and immediately the raid party surrounded him, there was no
possibility of the hands of AO yielding positive result to the chemical test
because his hands had no occasion to come in contact with the tainted
amount. However, in the instant case, the left hand of AO yielded positive
result which probablises that AO must have accepted the amount and kept in
his left shift pocket. Hence the stuffing theory though propounded instantly,
is not acceptable.
b) The other defence theory which was propounded during the cross-
examination of PW.1 was to the effect that PW.3 informed PW.1 that he and
his sister-in-law had to pay the land revenue of Rs.552/- and before trap
PW.1 gave the amount and asked AO to pay the tax and inspite of AO telling
that revenue tax receipt cannot be given there and asked him to come on the
next day, he kept the amount in his shirt pocket and went out.
c) So by above defence plea, the AO tried to project that the amount that
was kept in his pocket by PW.1 was towards payment of land revenue and
not as bribe. Though such a suggestion was given to PW.1, he did not
positively respond but evasively stated as if he did not remember.
Therefore, there is no support from PW.1 with regard to this defence plea.
Even for argument sake, it is assumed that PW.1 stuffed the amount in his
pocket for payment of land revenue, the said amount should be Rs.552/- so as
to be believed as land revenue amount but the amount recovered from his
pocket was only Rs.500/-. Hence this defence plea is inconsistent with
previous plea on one hand and also inconsistent with the other facts and so
the same is not believable.
So on a conspectus of entire facts and evidence, it must be said that the
AO failed to probablise his defence version. The decisions cited by him will
not advance his cause. This point is answered accordingly.
20) POINT No.4: In the result, I find no merits in the Criminal Appeal and
the same is accordingly, dismissed by confirming the conviction and sentence
passed by the trial Court against AO in its judgment in C.C.No.7 of 2005.
The AO is directed to surrender before the trial Court on or before
22.12.2014 and on such surrender, the trial Court shall commit him to jail for
serving the sentence.
As a sequel, miscellaneous applications pending if any shall stand
closed.
________________________
U. DURGA PRASAD RAO, J
Date: 02.12.2014
Criminal Appeal No.1149 of 2010
02-12-2014
Tadikalapudi Sesha Rama Sankhar Kumar..... Appellant
The State of A.P, rep. by Inspector of Police, ACB,Eluru Range, Eluru,Rep. by
Spl. Public Prosecutor,High Court, Hyderabad.. Respondent
Counsel for Appellant: Sri U. Ramanjaneyulu
Counsel for Respondent : Sri M. B. Thimma Reddy
Special Public Prosecutor for ACB
<Gist:
>Head Note:
? Cases referred:
1) 2007 CriLJ 754 (SC)
2) 2010 (1) ALD (Crl.) 924 (SC)
3) 1997 (2) ALD (Crl.) 743 (AP)
4) (2011) 2 Supreme Court Cases 36
5) MANU/SC/0505/2014
HONBLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL No.1149 of 2010
Judgment:
This Criminal Appeal is preferred by the Accused Officer (AO)
aggrieved by the judgment dated 24.09.2010 in C.C.No.7 of 2005 passed by
learned Special Judge for SPE & ACB Cases, Vijayawada convicting him for
the offences under Sections 7 and 13(1)(d) r/w 13(2) of Prevention of
Corruption Act, 1988 (for short P.C Act) and sentencing him to undergo
R.I for a period of six months and to pay a fine of Rs.2,000/- and in default
to suffer SI for one month on first count and suffer R.I for one year and to a
pay fine of Rs.3,000/- and in default to suffer S.I for three months on the
second count with a direction that the substantive sentences of imprisonment
under both counts shall run concurrently.
2) The factual matrix of the case is thus:
a) AOTadikalapudi Sesha Rama Sankhar Kumar worked as Panchayat
Secretary in Thaduvai Gram Panchayat, Jangareddygudem, West Godavari
District during 2003. According to prosecution, Kodavati Venkateswara
Raocomplainant (PW1) who is having 17 acres of land at Thaduvai Village
proposed to purchase a tractor by taking a loan from Primary Agricultural
Co-operative Society (P.A.C.S), Thaduvai. PW.1 approached AO about 15
days prior to presenting Ex.P.1 report to PW.10 and handed over pattadar
pass books of his land and requested him to issue copies of 10(1) Adangal
extracts. One day when PW.1 was returning from his lands, the AO
demanded PW.1 to pay a bribe of Rs.500/- to issue Adangal extracts, then
PW.1 informed the AO to give the certificates first and then he would see
about the demanded bribe amount but AO did not heed to his request and
informed that unless and until demanded bribe amount was paid, he would
not issue copies of 10(1) Adangal extracts, without which PW.1 could not get
the loan. Again on 16.10.2003, when PW.1 approached AO, he reiterated his
earlier demand.
b) Unwilling to pay bribe, PW1 submitted Ex.P.1complaint to DSP,
ACB, Eluru Range, Eluru (PW10) on 17.10.2003 at 8:30am, who registered
the same as a case in Cr.No.9/RCT-EWG/2003 on 18.10.2003 at 12:30pm
after conducting discreet enquiries and successfully laid a trap against AO on
18.10.2003. 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 13 were examined and Exs.P1 to P19 and
Ex.X.1 were marked and MOs.1 to 8 were exhibited on behalf of prosecution.
No oral or documentary evidence was adduced on behalf of defence.
e) The trial Court on appreciation of evidence held that prosecution
proved the guilt of the accused beyond reasonable doubt and accordingly
convicted the AO, as stated supra.
Hence, the appeal by AO.
3) Heard arguments of Sri U.Ramanjaneyulu, learned counsel for
appellant/AO and Sri M.B.Thimma Reddy, learned Special Public Prosecutor
(Spl.P.P.) for ACB cases.
4 a) Challenging the judgment, learned counsel for appellant firstly argued
that the trial Court misread the facts and evidence and erroneously convicted
the A.O. Expatiating it, he argued that in a trap case the prosecution must by
cogent evidence establish the two vital ingredients i.e. demand and
acceptance of bribe by accused officer (A.O.) but in this case the prosecution
miserably failed to prove those ingredients in as much as P.W.1, the
complainant himself has not supported the prosecution case on these vital
ingredients. Even according to P.W.1, he was misled by the information of
Village Servant who stated as if the A.O. demanded the bribe and on his such
information and without cross-checking the same with A.O., he believed as if
the A.O. demanded bribe for issuing certified copies of 10 (1) adangal. From
the evidence of P.W.1, the learned counsel argued, the A.O. never demanded
bribe from P.W.1 for doing any official favour much less for issuing certified
copies of 10(1) adangal. He submitted, P.W.1 was declared hostile by
prosecution and cross-examined at length but no useful information could be
elicited through him to connect the accused to the case. As such, the
allegation of demand of bribe was not at all established by the prosecution.
b) Secondly, the learned counsel for the accused argued that even
otherwise no official favour was pending with A.O. to demand bribe from
P.W.1 which is evident from the fact that A.O. signed on the
T.L.Application/10 (1) account (Ex.P.3 and Ex.P.6); and sent to Secretary of
P.A.C.S. on 16.10.2003 i.e., even before the date of complaint. As no work
relating to P.W.1 was pending with him by the date of complaint or by the
date of trap, the question of his demanding any bribe from P.W.1 does not
arise.
c) Thirdly, acceptance of bribe amount is concerned, learned counsel
argued that P.W.1 and P.W.2 were due of land revenue and when the Village
Servant informed P.W.1 that they have to pay the land revenue for issuing
certified copy of 10(1) adangal and the said amount has to be paid to the
A.O., P.W.1 might mistook said amount as bribe and thrusted in the pocket
of A.O. on the evening of date of trap, even though A.O. refused to receive
the amount and within no time ACB officials reached and caught hold the
A.O. and dubbed that amount as bribe amount and implicated him in the case
despite his spontaneous written explanation (vide Ex.P.12) to the effect that
he never demanded and accepted the bribe and that P.W.1 forcibly thrusted
the amount in his pocket and that it was dark at that time due to power failure
and immediately thereafter the ACB Officials came and caught hold him.
d) Learned counsel argued that in view of above circumstances which
were cogently explained by AO in his spontaneous explanation, the trial
Court ought to have held that he had neither demanded nor accepted the bribe
and prosecution failed to prove its case. He vehemently argued that the trial
Court misread the facts and evidence and drew presumption under Section 20
of the P.C. Act and held as if A.O. failed to rebut the presumption and
thereby convicted him through its perverse findings. He thus prayed to allow
the appeal and set aside conviction and sentence. In support of his arguments
learned counsel relied upon the following decisions:
1. V. Venkata Subbarao vs. State, rep. by Inspector of Police, A.P.
2. Banarsi Dass vs. State of Haryana
3. Periyaswamy Sangi and another vs. State .
5 a) Per contra, while supporting the judgment, learned Spl.P.P firstly
argued that in spite of P.W.1 turning hostile, the prosecution with the help of
reliable portion of his evidence coupled with the corroborative evidence of
other reliable witnesses such as P.W.7 and P.W.10 and other attending
circumstances could establish the demand of bribe by the A.O. He
vehemently argued that in accepting the hostile evidence of P.W.1 with the
aid of other reliable and corroborative evidence and holding that the
prosecution could establish the demand aspect, the trial Court did not exhibit
any perversity but followed the established principles of appreciation of
evidence of hostile witnesses. In this regard he relied upon the decision
reported in Himanshu alias Chintu vs. State (NCT of Delhi)
b) Secondly, speaking on the acceptance of bribe, he submitted that even
though P.W.1 turned hostile on the demand aspect, he clearly deposed that he
paid the amount to A.O. just before trap and he did not give any other reason
connoting what he gave was not bribe. Further, the chemical test conducted
by the T.L.O., proved positive on the left hand and inner lining of shirt
pocket of A.O. and the trap party recovered bribe amount from the person of
A.O. All these would, he narrated, collectively show that the A.O.
voluntarily accepted the bribe amount. He submitted that since the
prosecution could prove the demand as well as acceptance of the bribe
amount, the trial Court has rightly drawn the mandatory presumption under
Section 20 of the P.C. Act.
c) Thirdly, regarding discharge of burden by A.O., he would argue that
the A.O. failed to rebut the presumption through his defence plea; firstly, for
the reason that he took mutually inconsistent defence pleas at different
stages; and secondly none of the defence pleas is tenable. He submitted that
in Ex.P.12, A.O. gave spontaneous explanation as if P.W.1 stuffed the bribe
amount in his pocket even though he did not demand bribe. Whereas during
trial, he suggested to some of the prosecution witnesses as if P.W.1 gave
amount towards arrears of land revenue. Thus the defence pleas are mutually
inconsistent. Stuffing is concerned, he argued that there is no necessity for
P.W.1 to stuff the amount to implicate him in a false case because admittedly,
there were no disputes between A.O. and P.W.1. Whereas, arrears of land
revenue is concerned no demand for land revenue was made against P.W.1
and P.W.2 and so there was no occasion for P.W.1 to pay the amount to A.O.
towards alleged land revenue that too going all the way from Thaduvai to
Jangareddy MROs office. Further, the land revenue amount as per P.W.1
was Rs.552/-, whereas the amount found with A.O. was Rs.500/- and both
amounts are not matching with each other. He thus prayed to dismiss the
appeal.
6) In the light of the above rival arguments, the points for determination
in this appeal are:
1) Whether any official favour was pending with A.O. during relevant
period to demand bribe from P.W.1?
2) If, point No.1 is held in affirmative, whether A.O. demanded bribe
from P.W.1 and prosecution could establish demand and acceptance
in the backdrop of P.W.1 turning hostile to the prosecution?
3) If, point No.2 is held in affirmative, whether A.O. could successfully
rebut the statutory presumption drawn against him?
4) Whether the judgment of the trial Court is factually and legally
sustainable?
7) POINT No.1: The admitted facts are that A.O. was working as Junior
Assistant, Panchayat Secretary, Parimudi Village, Koyyalagudem Mandal
and he was posted as FAC Panchayat Secretary, Thaduvai Gram Panchayat,
Jangareddy Mandal, West Godavari District during the relevant period. It is
also an admitted fact that P.W.1 who owned lands wanted to purchase a
tractor by taking loan from P.A.C.S., Thaduvai. Then the undisputed
evidence of P.W.9, the Deputy Tahsildar with regard to method of securing
loan from P.A.C.S. is that if a ryot intends to obtain loan from any bank or
P.A.C.S., he can obtain true copy of 10 (1) account directly from Village
Revenue Officer who will fill the 10 (1) account form which is attached to
the loan application of the concerned bank or P.A.C.S. The individual will
submit the application form and the enclosed 10 (1) account duly filled and
signed by Village Revenue Officer to the concerned bank. In the instant case,
P.W.1 submitted Ex.P.3 and Ex.P.6 application forms along with attached 10
(1) accounts to P.W.4, the Secretary, P.A.C.S. It is the further admitted fact
that A.O. being FAC Panchayat Secretary, Thaduvai Gram Panchayat, needs
to fill the 10 (1) Account forms attached to Ex.P.3 and Ex.P.6 forms by
referring the revenue records. To this extent there is no dispute. However, the
contention of A.O. was that he signed those forms on 16.10.2003 itself i.e.,
even prior to the date of Ex.P.1 complaint and sent to P.W.4 through P.W.3-
Village Servant.
8) In the light of above contentions, a perusal of the evidence of P.W.3
would show that A.O. signed on Ex.P.3 and Ex.P.6 on 16.10.2003 itself and
at the instance of A.O. he handed over L.T. Applications of P.W.1 and P.W.2
to P.W.4 but P.W.4 returned them to him asking to verify the applications
whether they were dully filled up or not and then bring back after filling up
the application in full. According to P.W.3, P.W.4 returned the applications
on the same day i.e., on 16.10.2003 and this witness informed the same fact
to A.O. by returning Exs.P.3 and Ex.P.6.
9) Then a perusal of Exs.P.3 and Ex.P.6 would show that A.O. has signed
on relevant papers on 16.10.2003 itself. Then the evidence of P.W.4, the
Secretary of P.A.C.S., Thaduvai when perused, he stated in the chief
examination that on 16.10.2003 A.O. sent L.T. loan application forms of
P.W.1 and P.W.2 through P.W.3 and he verified and noticed that the revenue
records pertaining to loan applications were not duly filled and so he asked
P.W.3 to handover to A.O. to file the applications after they were duly filled
up and returned them on 16.10.2003 itself. In the re-examination the Special
Public Prosecutor elicited that pages 3, 5 and 9 of Ex.P.3 and Ex.P.6 were not
filled up. However, in the further cross-examination, the defence side could
elicit that pages 3 and 5 were to be filled up by the applicant and page 9 is
repetition of page 8 and page 8 was already filled up by A.O.
10) So, when the evidence of P.W.3 and P.W.4 is carefully analysed what
one can understand is that no doubt AO filled up the relevant forms in Ex.P.3
and Ex.P.6 to the extent to be filled up by him and sent Ex.P.3 and Ex.P.6 to
P.W.4 through P.W.3 on 16.10.2003. On verifying them P.W.4 found that
some of the forms were still left blank and hence asked P.W.3 to handover to
A.O. to verify and see that all the forms are filled up and resubmit. It is true
that pages 3 and 5 in Ex.P.3 and Ex.P.6 have to be filled up by the applicants
as per the details mentioned therein. Page 9 is a duplicate to page 8 and page
8 was already filled up by A.O. Despite all these, the fact remains that the
two application forms were returned back to A.O. on 16.10.2003 itself and
P.W.1 did not know any of these facts. P.W.1 stated this fact in his cross-
examination saying that he did not know whether A.O. has signed Exs.P.3
and P.6 on 16.10.2003 and sent the same to Secretary, PACS (PW.4) through
the Village Servant (P.W.3) and P.W.4 returned them to P.W.3 saying that
some more copies in the applications were to be filled up.
a) In the backdrop of above facts, merely because A.O. signed on the
relevant forms to be filled up by him, on that ground alone we cannot
definitely conclude that there was no occasion for him to demand bribe. As
already stated, P.W.1 did not know that A.O. already signed on the forms to
be filled up by him and the remaining forms were to be filled up by him
(P.W.1) only and that P.W.4 returned papers to A.O.. etc., facts. This was the
factual situation as on 16.10.2003, i.e., the previous day of lodging Ex.P.1
report. Therefore, due to ignorance of P.W.1 about these facts, there was
every possibility for A.O. to demand bribe as the applications were lying with
him by 16.10.2003. This point is answered accordingly.
11) POINT No.2: This point is concerned on demand aspect, except P.W.1
admittedly there was no other witness who watched A.O. demanding bribe.
P.W.1 turned hostile and did not support prosecution to say that A.O.
demanded him bribe. On the other hand in the chief-examination his version
was that, P.W.3 the Village Servant informed him that A.O. was demanding
Rs.500/- for issuing copy of 10 (1) account and believing his word, he gave
Ex.P.1 report to ACB police. Since P.W.1 did not support prosecution, the
fiery argument of defence is that the prosecution utterly failed to prove the
demand aspect but the trial Court basing on the contents in FIR, statements
under Section 164 Cr.P.C., etc., wrongly concluded as if prosecution
established the demand aspect. It was argued that FIR and statements under
Sections 161 and 164 of Cr.P.C. were not substantive evidence to base
conviction. Defence on this aspect relied upon Periyaswamy Sangis case
(3rd supra).
12) In the light of above argument, the point is whether the trial court erred
in appreciating the hostile evidence of P.W.1 and whether its findings
suffered perversity. Under point No.4 of the judgment, the trial Court
elaborately discussed about the aspects of P.W.1 turning hostile and its effect.
The trial Court observed that to prove the aspects of demand and acceptance,
the prosecution apart from direct evidence can also rely upon the indirect
evidence and other attending circumstances and then proceeded to appreciate
them and discussed the indirect evidence and circumstances to arrive at the
conclusion that the prosecution could establish the aspect of demand and
acceptance of bribe by A.O. Ultimately the Court has drawn the presumption
under Section 20 of the P.C. Act. It must be said that in that process the trial
Court was not simply carried away by the FIR and the statements under
Sections 161 and 164 of Cr.P.C. of P.W.1. So, the above cited decision
(Periyaswamy Sangis case (3 supra)) has no application.
13) Coming to the appreciation of hostile evidence, the law is no more res
integra. Section 154 of Indian Evidence Act, reads thus:
Section 154 - Question by party to his own witness
(1) The Court may, in its discretion, permit the person who calls a
witness to put any question to him which might be put in cross-
examination by the adverse party.
(2) Nothing in this section shall disentitle the person so permitted
under sub-section (1) to rely on any part of the evidence of such
witness. (Emphasis supplied)
14) The Honble Apex Court in its latest judgment (Paulmeli and another
vs. State of Tamil Nadu, Traffic Inspector of Police
(MANU/SC/0505/2014), happened to discuss its previous judgments on the
aspects of appreciation and probative value of the evidence of a hostile
witness. It observed thus:
Para 16: This Court in Ramesh Harijan v. State of U.P. (AIR
2012 SC 1979) while dealing with the issue held:
It is a settled legal proposition that the evidence of a
prosecution witness cannot be rejected in toto merely because the
prosecution chose to treat him as hostile and cross examine him.
The evidence of such witnesses cannot be treated as effaced or
washed off the record altogether but the same can be accepted to
the extent that their version is found to be dependable on a careful
scrutiny thereof (Vide: Bhagwan Singh v. The State of Haryana :
AIR 1976 SC 202; Rabindra Kumar Dey v. State of Orissa: AIR
1977 SC 170; Syad Akbar v. State of Karnataka: AIR 1979 SC
1848; and Khujji @ Surendra Tiwari v. State of Madhya
Pradesh: AIR 1991 SC 1853).
Para 17: In State of U.P. v. Ramesh Prasad Misra and Anr. (AIR
1996 SC 2766), this Court held that evidence of a hostile witness
would not be totally rejected if spoken in favour of the prosecution
or the accused but required to be subjected to close scrutiny and
that portion of the evidence which is consistent with the case of the
prosecution or defence can be relied upon.
A similar view has been reiterated by this Court in Sarvesh
Narain Shukla v. Daroga Singh and others. (AIR 2008 SC 320);
Subbu Singh v. State by Public Prosecutor ((2009) 6 SCC 462);
C. Muniappan and others v. State of Tamil Nadu (AIR 2010 SC
3718); and Himanshu @ Chintu v. State (NCT of Delhi):(2011) 2
SCC 36).
Thus, the law can be summarized to the effect that the
evidence of a hostile witness cannot be discarded as a whole, and
relevant parts thereof which are admissible in law, can be used by
the prosecution or the defence.
In Himanshu @ Chintus case (4th supra) cited by learned Spl.P.P.
also, the Supreme Court reiterated the same principle.
15) In the light of above legal jurisprudence, it is now to be seen whether
the evidence of PW.1 offers any useful material helping the prosecution case
and whether that part of his evidence was amply corroborated by other
witnesses. As rightly observed by trial Court, the following key points would
emerge from the evidence of P.W.1.
i) P.W.1 approached A.O. with a request to issue 10 (1) account
extract which was appended to Ex.P.3 and Ex.P.6 loan
applications and by then he had no acquaintance with A.O.
ii) P.W.1 presented Ex.P.1 report to P.W.10 DSP ACB
complaining that A.O. demanded bribe of Rs.500/- for issuing 10
(1) account extract. In Ex.P.1, it was not his case that A.O.
demanded bribe through his Village Servant (P.W.3) or some
other person. His unequivocal allegation is that A.O. demanded
him bribe directly. P.W.1 did not tell the DSP that since Village
Servant demanded him bribe, he was under the impression that
A.O. demanded him bribe.
iii) On the instructions of P.W.10, P.W.1 attended before the DSP
and mediators along with the proposed bribe amount on
18.10.2003.
iv) P.W.1 admitted during cross-examination that both the
mediators read over the contents of Ex.P.1 report and
ascertained the truth of said report from him and he told them
that the facts contained in the report are true and correct.
(Emphasis supplied)
v) P.W.1, P.W.7 and P.W.10 at first went to Thaduvai Village and
as A.O. was not present then they went to M.R.O. office
Jangareddy.
vi) At M.R.O. office P.W.1 met A.O. and asked for his papers and
A.O. told that he handed over the papers to Village Servant
(P.W.3) and then P.W.1 took the money and gave it to A.O. At
that time there was no power as electricity went off. (Emphasis
supplied)
16) So, when the above points are carefully analysed, demand is
concerned, though P.W.1 in his chief categorically denied that A.O.
demanded him any bribe, still he admitted in his cross-examination that the
mediators ascertained the truth of Ex.P.1 report from him and he admitted
before them that the facts mentioned in the report were true and correct. In
this context, when Ex.P.1 report is perused, in it he clearly mentioned that
A.O. demanded him bribe for issuing certificate of 10 (1) account extract. In
Ex.P.1, it was not his case that P.W.3 told him that A.O. was demanding
bribe and thereby P.W.1 opined that A.1 demanded. It is true Ex.P.1 being
only an FIR, no direct reliance can be placed on it, but it serves the purpose
as corroboration to the version of P.W.1. Not only that, the evidence of
P.W.7 the mediator also lends corroboration on the aspect of demand. P.W.7
deposed that when himself and the other mediator K.Satyanarayana (L.W.11)
attended before DSP, he introduced P.W.1 to them and then gave a copy of
FIR and they read over the contents of FIR and P.W.1 admitted the contents
to be true and so both the mediators attested on the copy of FIR (Ex.P.10).
17) The above facts would show that though P.W.1 turned hostile and
denied about the demand made by A.O, still his admission in cross-
examination to the effect that the mediators ascertained the contents of
Ex.P.1 report to be true from him would establish that he indeed presented
Ex.P.1 report alleging that A.O. demanded bribe from him. It is true that
Ex.P.1 being FIR, same cannot be treated as substantive evidence to prove
the demand aspect. However as stated supra, the contents therein were
admitted by P.W.1 before P.W.7 and P.W.10 as true. P.W.7 and P.W.10 on
their part deposed that P.W.1 presented Ex.P.1 with the allegations as
contained in it. P.W.7 being independent mediator his evidence can be relied
upon. Similarly, P.W.10 is a Trap Laying Officer (T.L.O.) and nothing was
brought on record to hold that he speaks falsehood. It may be noted that it
was already held in point No.1 that the official favour was pending with A.O.
to demand bribe. Therefore, for all these reasons, I endorse the finding of the
trial Court holding that A.O. demanded bribe. This point is answered
accordingly.
18) POINT No.3: Then acceptance of bribe is concerned, from the above
points emerged in the evidence of P.W.1, it is clear that P.W.1 himself
admitted that he gave the tainted amount to A.O. It is not even his slightest
case that he stuffed the amount in the pocket of A.O. against his refusal.
Therefore, the acceptance of bribe can also be believed. As the prosecution
could establish the demand and acceptance of bribe, the trial Court was right
in drawing the presumption under Section 20 of the P.C. Act against the A.O.
19) Then it is to be seen whether AO could rebut the presumption. It is
true that unlike prosecution, the accused need not establish his case beyond
reasonable doubt but suffice he can establish preponderance of probabilities
in his favour. In this case, AO submitted a written explanation under Ex.P.12
within short time after trap wherein his version was that one person sent L.T
applications to him through village servant and he filled up the same and sent
through village servant (PW.3) to Secretary (PW.4) on 17.10.2003 but he
returned the same stating that there were some differences and so PW.3
returned applications to him on 18.10.2003. His further version was that as
on that day he (AO) had some work in MRO office, he went to MRO office
and while attending the work, the current went off and so he came out and in
the meanwhile one person approached him in the dark and asked him about
the sketches and then AO replied that he would issue on the next day and as
he was new to village he could not identify that person and in the meanwhile
that person offered some amount and unable to know why he was offering
the amount, AO questioned him what for that amount but that person stuffed
the amount in his shirt pocket and went away and in the meanwhile some
people came and surrounded him and enquired him whether he was the
Panchayat Secretary and as there was no current, he could not identify them
but replied that he was the Secretary and he explained that he did not demand
bribe from anybody but that person stuffed the amount forcibly in his shirt
pocket.
a) The above was the spontaneous explanation of the AO which is
precisely is that he never demanded bribe and some person stuffed the
amount in his pocket in the darkness. Since the amount recovered from his
pocket tallies with the amount produced by PW.1 before the trap party
members at the time of first mediator report, there can be no doubt that the
person approached AO was none other than PW.1. Now the point is whether
PW.1 stuffed the amount as narrated by AO. The defence version is quite
unbelievable. If really PW.1 stuffed the amount in his pocket so as to
implicate him in a false case, certainly he would not have turned hostile to
the prosecution and would not have deposed as if AO did not demand him
bribe. On the other hand, he turned hostile and deposed as if AO never
demanded him bribe but he admitted that he paid the amount to AO. So the
stuffing theory cannot be accepted. Further, if really PW.1 stuffed the
amount and immediately the raid party surrounded him, there was no
possibility of the hands of AO yielding positive result to the chemical test
because his hands had no occasion to come in contact with the tainted
amount. However, in the instant case, the left hand of AO yielded positive
result which probablises that AO must have accepted the amount and kept in
his left shift pocket. Hence the stuffing theory though propounded instantly,
is not acceptable.
b) The other defence theory which was propounded during the cross-
examination of PW.1 was to the effect that PW.3 informed PW.1 that he and
his sister-in-law had to pay the land revenue of Rs.552/- and before trap
PW.1 gave the amount and asked AO to pay the tax and inspite of AO telling
that revenue tax receipt cannot be given there and asked him to come on the
next day, he kept the amount in his shirt pocket and went out.
c) So by above defence plea, the AO tried to project that the amount that
was kept in his pocket by PW.1 was towards payment of land revenue and
not as bribe. Though such a suggestion was given to PW.1, he did not
positively respond but evasively stated as if he did not remember.
Therefore, there is no support from PW.1 with regard to this defence plea.
Even for argument sake, it is assumed that PW.1 stuffed the amount in his
pocket for payment of land revenue, the said amount should be Rs.552/- so as
to be believed as land revenue amount but the amount recovered from his
pocket was only Rs.500/-. Hence this defence plea is inconsistent with
previous plea on one hand and also inconsistent with the other facts and so
the same is not believable.
So on a conspectus of entire facts and evidence, it must be said that the
AO failed to probablise his defence version. The decisions cited by him will
not advance his cause. This point is answered accordingly.
20) POINT No.4: In the result, I find no merits in the Criminal Appeal and
the same is accordingly, dismissed by confirming the conviction and sentence
passed by the trial Court against AO in its judgment in C.C.No.7 of 2005.
The AO is directed to surrender before the trial Court on or before
22.12.2014 and on such surrender, the trial Court shall commit him to jail for
serving the sentence.
As a sequel, miscellaneous applications pending if any shall stand
closed.
________________________
U. DURGA PRASAD RAO, J
Date: 02.12.2014
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