Senapathi Ramakrishna, Vs State of a.P., Rep by Range Inspector of Police

Appeal under Section 374(2) of Cr.P.C, against the Judgment of the Special Judge for ACB Cases-cum-lll Additional District & Sessions Judge, Visakhapatnam, in C.C.No.11 of 2001 dated 27*^ day of April 2007. Between:

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Senapathi Ramakrishna, (A-2), S/o. Ramulu, Forest Beat Officer (Guard), Srikakulam.

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...APPELLANT/ACCUSED N0.2

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AND

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State, rep by Range Inspector of Police, ACB Srikakulam District, by Special Public Prosecutor.

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...RESPONDENT/COMPLAINANT

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jA NO: 1 OF 2007(CRLAMP 851 OF 2007

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Petition under Section 389(1) of Cr.P.C praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the execution of the sentence passed by the Special

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Judge for ACB Cases III Additional District & Sessions Judge, Visakhapatnam, in C.C.No.11 of 2001, dated 27-4-2007 and release the petitioner on bail pending disposal of the Criminal appeal. Counsel for the Petitioner : SRI A HARIPRASAD REDDY

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Counsel for the Respondent: PUBLIC PROSECUTOR

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APHC010445922007

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CRIMINAL APPEAL No.947 of 2007

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Appeal under Section 378(3) & (1) of Cr.P.C, questioning the acquittal of the Respondent/Accused Officer herein in CC.No. 11 of 2001 on the file of the Special Judge for SPE & ACB Cases, Visakhapatnam , after obtaining permission from the Govt. Vide Memo No.3848/For.lV(1)2007-1 of Environment Forests, Science and Technology, (For.IV) Department, dated 02.07.2007

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Between:

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State rep by Inspector of Police, Anti Corruption Bureau, Vizianagaram Range, Srikakulam District.

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(Through the Standing Counsel-cum-Special P.P. for ACB Cases)

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...APPELLANT/COMPLAINANT

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AND

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Sri Anakapalli Venkata Ramanamurthy, S/o. Rama Rao, Turupu Kapu Forest Range Officer, Srikakulam District.

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Senapathi Ramakrishna, S/o. Ramulu, Turupu Kapu Forest beat Officer(Guard), Srikakulam. (not necessary Party)

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(A-2 is convicted under Sections 7 & 13(2) r/w 13(1)(d) of the P.C.Act, 1988 in C.C.No.11/2001 on the file of the Special Judge for SPE & ACB Cases, Visakhapatnam. As such he is not made as a Respondent/Party in this Appeal)

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...RESPONDENTS/ACCUSED OFFICER

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Counsel for the Petitioner : PUBLIC PROSECUTOR Counsel for Respondent No.1: SRI BADETI VENKATA RATHNAM

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The Court made the following COMMON JUDGMENT :

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APHC010370822007

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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[3327]

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(Special Original Jurisdiction)

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MONDAY, THE TWENTY FOURTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY

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CRIMINAL APPEAL NOs. 562 & 947 OF 2007

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CRIMINAL APPEAL NO. 562 OF 2007:

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Between:

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1.SENAPATHI RAMAKRISHNA,. S/0. RAMULU FOREST BEAT OFFICER (GUARD), SRIKAKULAM

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...APPELLANT

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AND

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1.STATE OF A P REP BY RANGE INSPECTOR OF POLICE, ACB, Srikakulam Dist rep by Spl.P.P.

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...RESPONDENT

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Counsel for the Apellant:

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1 .A HARIPRASAD REDDY

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Counsel for the Respodent:

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PUBLIC PROSECUTOR

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CRIMINAL APPEAL NO. 947 OF 2007

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Between:

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STATE REP BY INSPECTOR OF POLICE , ACB REP.BY POLICE. ANTI CORRUPTION BUREAU,

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VIZIANAGARAM RANGE, SRIKAKULAM DISTRICT (THROUGH THE STANDING COUNSEL-CUM-SPL.PP FOR ACB CASES)

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...appellant

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AND

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1.SRI ANAKAPALLI VENKATA RAMANAMURTHY AND ANOTHER,

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S/0. RAMA RAO, FOREST RANGE OFFICER SRIKAKULAM DISTRICT.

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2.SENAPATHI RAMAKRISHNA, S/0. RAMULU FOREST BEAT OFFICR(GUARD) SRIKAKULAM (NOT NECESSARY PARTY)

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...RESPONDENT(S):

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Counsel for the Appellant;

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PUBLIC PROSECUTOR

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Counsel for the Respondent(S):

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BADETI VENKATA RATHNAM

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The Court made the following:

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COMMON JUDGMENT:

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These Criminal Appeals are preferred against the judgment dated 27.04.2007 passed in C.C.No.11 of 2001 on the file of the Special Judge for ACB Cases-cum-lll Additional District & Sessions Judge, Visakhapatnam (hereinafter referred to as ‘the Special Judge’).

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The appellant in Criminal Appeal No.562 of 2007 is^{AccusedOfficer} No.2 (A.0.2) and the Respondent No.1 in Criminal Appeal No.947 of 2007 is Accused Officer No.1 (A.0.1), in the said Calendar^Case.

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The Anti-Corruption Bureau, Vizianagaram Range, Srikakulam District registered a case in Crime No.1/RC/ACB-VZM/2000 against A.0.1 and A.0.2, and filed charge sheet against them before the Special Judge for the offences punishable under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (for short ‘P.C. Act, 1988’) read with 34 of the Indian Penal Code (for short ‘IPC’). The learned Special Judge framed charges for the offences^{underSection7} of the P.C. Act read with 34 IPC and 13(1) (d) read with 13(2) of the P.C. Act, 1988 read with 34 IPC, against A.0.1 and A.0.2, and charge under Section 12 of the P.C. Act, 1988 against A.0.2.

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Substance of charges framed against A.0.1 and A.0.2^are that A.0.1 and A.0.2, being the public servants i.e. the Forest Range Officer and the Forest Beat Officer (Guard), Srikakulam respectively, on 22.12.1999, in furtherance of common intention of extracting money, demanded and accepted an amount of Rs.2,000/- from^PW1andonor about 03.01.2000 at about 7.50 p.m. at Satya Chicken^Centerof PW1, A.0.1 accepted a sum of Rs.3,000/- through A.0.2 as a gratification other than legal remuneration as a motive or reward to show^{officialfavourin}

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the matter of not registering a case against the informant (PW1), thereby they are alleged to have committed an offence punishable under Sections 7, 13(1)(d) r/w 13(2) of the P.C. Act, 1988 read with Section 34 IPC. Since A.0.2 abetted/aided A.O. 1 to commit an offence punishable under Section 7 of P.C. Act, 1988 a charge under Section 12 of the P C. Act 1988 was framed against A.0.2.

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After completion of trial vide the impugned judgment in the aforesaid Calendar Case, the learned Special Judge acquitted A.0.1 of all the charges framed against him. The learned Special Judge acquitted A.0.2 of the charge under Section 12 of the P.C. Act, 1988, but convicted a.0.2 of the charges under Sections 7 and 13(2) read with 13(1)(d) of the P C. Act, 1988 and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/-, in default to suffer simple imprisonment for two months, for the offence punishable under Section 7 of the P.C. Act, 1988, and further sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/-, in default to suffer simple imprisonment for two months, for the offence punishable under Section 13(2) read with 13(1)(d) of the P.C. Act, 1988. Both the substantive sentences were directed to run concurrently. M03 - tainted amount of Rs.3,000/was ordered to be confiscated to the State as PW1 turned hostile.

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Case of the prosecution, briefly, is as follows:

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A.0.1 was working as Forest Range Officer, Srikakulam and A.0.2 was working as Forest Beat Officer, Dharmavaram Beat, office of the Forest Range Officer, Srikakulam, in the year 1999. The informant (PW1) is a resident of Kesavaraopeta Village of Etcherla Mandal, Srikakulam District and was running a Chicken center. He purchased five teakwood trees from LW6 - Kalisetty Ramulu for Rs.11,000/-. After receiving the amount, the said Ramulu cut the trees into sizes as per the measurements given by PW1 and transported the same to the house of PW1 in the month of September, 1999. The said timber was stored in the house of PW1. On 22.12.1999, at about 1.30 pm., A.0.1 and A.0.2 came to the house of PW1, found the timber and demanded documents pertaining to the timber. PW1 produced Ex.P.1 - Certificate of Transportation issued by Village Administrative Officer, Murapaka Village. Then, A.0.1 and A.0.2 informed that the said letter is an invalid document and valued the cost of teakwood at Rs. 14,000/- and informed that fine would be imposed for five times of the cost of the timber i.e. Rs.70,000/-. PW1 requested them to help him in the matter as he was unable to pay the fine and compounding fee. Thereupon, A.0.1 demanded an amount of Rs.7,000/- towards bribe for not registering criminal case under the Forest Act for possessing teakwood illegally. Then, PW1 and his wife (PW4) requested A.0.1 and A.0.2 to reduce the

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bribe amount. Finally, A.0.1 reduced the bribe amount from Rs.7,000/- to Rs.5,000/-. Immediately, PW1 made part payment of Rs.2 ,000/- to A.0.2 on the instructions of A.0.1. PW1 kept the amount of Rs.2,000/- in the hand bag when A.0.2 opened the zip of the bag. PW1 agreed to pay the balance demanded amount of Rs.3,000/- on 03.01.2000 through A.0.2. In fact, PW1 was not willing to pay the balance bribe amount, as such he approached the Deputy Superintendent of Police, Anti-Corruption Bureau, Vizianagaram Range (PW6) and lodged a written complaint (Ex. P.4) on 01.01.2000 at 6.00 p.m. requesting to initiate suitable action against A.0.1 and A.0.2. PWG registered the same as a case in Crime No.l/RCACB/VZM/2000 for the offences under Sections 7, 11 and 13(2) read with 13(1 )(d) of the P.C. Act, 1988 against A.0.1 and A.0.2.

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After registration of crime, PW6 gathered two mediators i.e. PW3 and LW10 - M.Baburao for laying trap. On 03.01.2000 in the presence of said mediators, PW1 was called and got examined through mediators about the antecedents of PW1 and genuineness of the written complaint given by him. The amount of Rs.3,000/- produced by PW1 was tainted with phenolphthalein powder. After conducting the chemical tests pre trap proceedings (Ex.P.8) were prepared by noting the numbers of the tainted currency notes, and instructions were given to PW1, mediators and trap party as to how to act at the trap place. The tainted amount (M03) was kept at the shirt pocket of PW1 and he was instructed to pay

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the same amount on demand by the accused officers only. On the same day i.e. 03.01.2000 at about 7.50 p.m., the trap party,^alongwithPW1 and mediators, went near to Satya Chicken Center at Srikakulam, at and collect the amount. The which place PW1 asked A.0.2 to come mediators and trap party took their vantage positions. The mediator - PW3 was with PW1. At about 7.40 p.m., A.0.2 came on his TVS^Champ and parked on the other side of the road in front of^{ChickenCenterand} came near to PW1 and demanded the balance bribe amount of Rs.3,000/-. PW1 took A.0.2 near to telephone pole,^{tookouttheamount} of Rs.3,000/- from his shirt pocket and gave the same^toA.0.2. A.0.2 received the same with his left hand and kept it in the left side pocket^of his pant. Thereafter, PW1 gave a signal to the trap^{partyandimmediately} the trap party came there, surrounded A.0.2 and enquired about his identity. A.0.2 disclosed his name as Rama Krishna and working as Forest Beat Officer (Guard). When A.0.2 was asked to^come near chicken shop A.0.2 took out the tainted amount from his pant pocket^and threw the same on the ground. The trap party called^{thephotographer} (PW2) and got photographed the scene of offence. Chemical tests were conducted on both hand fingers of A.0.2 with Sodium^{Carbonatesolution,} in which A.0.2 rinsed his lefthand fingers which turned^{tolightpinkcolour,} whereas test conducted on right hand fingers gave negative^result. The pant worn by A.0.2 was seized by supplying another^{pantastheinner}

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linings of the left side pocket of the pant of A.0.2 was subjected to chemical test and in the test, solution turned into pink colour. Then, PW6 got prepared the post-trap proceedings (Ex.P.15) through mediators. A.0.1 was called to the scene of offence through trap party and PW1 identified A.0.1 and A.0.2 as the same persons who came to his house demanded the bribe amount and received part bribe amount of Rs.2,000/Immediately, A.0.1 and A.0.2 were arrested.

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During the course of investigation, witnesses were examined and concerned records were seized from the Forest Office, PW1 was produced before the Judicial Magistrate of First Class, Srikakulam and got recorded his statement under Section 164 Cr.P.C The material papers were placed before the Disciplinary Authority of A.0.1 and A.0.2 and prosecution sanction orders under Exs.P.19 and P.20 were obtained, and after completion of investigation and after receipt of relevant documents, charge sheet was filed.

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After considering the material on record, the learned Special Judge took cognizance of the case for the offences under Sections 7 and 13(2) read with13(1)(d) of the P.C. Act, 1988 against A.0.1 andA.O.2.

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On appearance of A.0.1 and A.0.2, charges under Sections 7 and 13(2) read with 13(1)(d) of the P.C. Act, 1988 against A.0.1 and A.0.2 and Section 12 of the P.C. Act, 1988 against A.0.2 were framed, read

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over the contents and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.

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In support of its case, the prosecution examined PWs.1 to 6, got marked Exs.P1 to P20 and exhibited MOs.1 to 8. On behalf of defence, Ex.D.1 was marked.

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When A.0.1 and A.0.2 were examined under Section 313 Cr.P.C. they denied the incriminating material appearing against them and reported no defence witnesses, but they filed written^{statementsunder} Section 243(2) Cr.P.C. separately.

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The learned Special Judge, on appreciation of entire oral and documentary evidence on record, acquitted A.0.1 of all the charges leveled against him and also acquitted A.0.2 of the charge for the offence under Section 12 of the P.C. Act, 1988, but convicted^andsentenced A.0.2 as aforesaid, vide impugned judgment dated 27.04.2007. Aggrieved by the said judgment, A.0.2 preferred Criminal Appeal No.562 of 2007, and the State preferred Criminal Appeal No.947^of2007 as against acquittal of A.0.1.

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Sri A.Hariprasad Reddy, learned counsel appearing on^behalfof appellant/A.0.2 submitted that case against A.0.2 stands^onthebetter footing when compared to A.0.1. According to him, PW1 is a decoy witness, he did not support the prosecution case and hence he was

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treated as hostile by the prosecution. He further submitted that the learned Special Judge, having come to a conclusion that there is no demand on the part of Accused Officers from PW1, the question of convicting A.0.2 by acquitting A.0.1 would amount to travesty of justice. He further submitted that according to PW1, the Accused Officers are not the persons who came to his house on 22.12.1999 or on subsequent date and demanded any amount as bribe.

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Learned counsel appearing on behalf of appellant/A.0.2 further submitted that except the evidence of PW3, there is no other evidence for convicting the Accused Officer No.2. The said evidence also cannot be relied upon by the prosecution for the reason that he is an interested witness as he went along with the trap party and there are number of inconsistencies in his evidence. He further submitted that when once the prior demand of bribe has been disbelieved, the question of the appellant herein accepting the amount on a later date would not in any way attract the aforesaid offences. Hence, he prays to set aside the convictions and sentences recorded as against A.0.2 and acquit him of the charges. 13. Sri Badeti Venkataratnam, learned counsel appearing^onbehalfof respondent No.1 in Criminal Appeal No.947 of 2007 (A.0.1)^concurred with the submissions made by the learned counsel for the appellant/A.0.2 in Criminal Appeal No.562 of 2007. He further added that the evidence of PW3 cannot be taken into account for the reason that he is an interested

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witness, and relied upon decision of the Hon’ble Supreme^Courtinthe case of Som Parkash Vs. State of Punjab^ He further^submittedby placing reliance on the judgment of the Hon’ble Supreme^Court in the in a case of case of Mallappa and others Vs. State of Karnataka^, that reversal from acquittal to conviction, the appellate court has to demonstrate an illegality, perversity or error of law^{orfactinthedecision} of the trial court. According to him, in the case on hand, there is absolutely no evidence to show that it is the Accused Officers who demanded and accepted the money, more particularly^whenoncePW1 was treated as hostile by the prosecution. Hence, he^{praystodismiss} Criminal Appeal No.947 of 2007.

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Learned Assistant Public Prosecutor appearing on behalf of State submitted by relying on the evidence of PW1 that^{on22.12.1999,} both the Accused Officers made a demand of bribe. According^tohim, receipt of an amount of Rs.3,000/- by A.0.2 on a subsequent^datewould show that it is the Accused Officers who are to said^{tohavedemanded} the amount from the informant. According to him, it^{isaclearcasewhere} A.0.1 was also part of the demand made along with A.0.2^tothedefacto complainant. He submits that in case the material prosecution^witness turns hostile, circumstantial evidence can be taken^{intoconsiderationto}

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^ 1992 CRI. LJ. 490 ^ (2024) 3 S.C.C. 544

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convict the accused officer. According to him, the learned Special Judge erred in acquitting A.0.1 of all the charges leveled against him, but he rightly convicted A.0.2 and no interference is called for by this Court in respect of conviction imposed on A.0.2.

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The point that arises for determination is whether the prosecution is able to bring home the guilt of the accused officers beyond all reasonable doubt for the charges levelled against them and whether the impugned judgment calls for any interference by this Court ?

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Heard. Perused the record.

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PW1 is a decoy witness. According to him, on 22.12.1999 at 1.30 p.m., two persons, claiming themselves to be the Forest officials, went to the house of PW1 and found teakwood pieces kept at the place where the construction was going on. On questioning about the teakwood pieces, PW1 explained as to how the same was delivered to him. In connection with that, PW1 showed the letter delivered to him by LW6 namely K.Ramulu. Ex.P.1 is the Certificate of Transportation, The persons who went to the house of PW1 told him that Ex.P.1 was not an authenticated one and asked him to pay the penalty for possessing the teakwood pieces. According to PW1, both the persons who went to the house of PW1 assessed the value of teakwood pieces at Rs. 14,000/- and asked the PW1 to pay the penalty of five times on the value of teakwood pieces i.e. Rs.70,000/-. On that, PW1 was perturbed and said that it was

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not possible for him to pay Rs.70,000/-. Thereafter, the persons who went to the house of PW1 were alleged to have made a demand to pay Rs.7,000/-, for which PW1 presumed that they are asking^abribe. When PW1 expressed his inability to pay Rs.7,000/-, they^{demandedtopay} Rs.5,000/-. By that time, PW1 was not in the custody of Rs.5,000/-. Accordingly, he paid an amount of Rs.2,000/- to one^{Guardandthesame} was kept in a zip bag. The persons who went to the^{houseofPW1were} said to have instructed PW1 to pay the balance amount^ofRs.3,000/- within two or three days. Upon which, PW1 expressed^{thathewasnotin} a position to pay the said amount within two or three days and sought time to pay the same within a period of ten days, for^{whichthepersons} who went to the house of PW1 agreed.

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It is alleged that the said persons were alleged to have gone^tothe Chicken shop belonging to PW1 for every three days^{anddemandedto} pay the balance amount of Rs.3,000/-, and in case of^{failuretopaythe} said amount, they threatened PW1 to register a case as against^him. At the end of December, 1999, PW1 went to Anti-Corruption^BureauOffice and gave a report to PW6. Ex.P.4 is the complaint.^{Onthestrength of} complaint received by PW6, a case in Crime No.1/RC/ACB-VZM/2000 was registered and sent the same to all the concerned, Ex.P.7 is the copy of FIR. PW6, after explaining all the formalities^{toPW1,alongwith} his staff and mediators proceeded to the shop of PW1^{on03.01.2000.}

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According to PW1, the appellant i.e. A.0.2 went to the shop at 7.40 p.m. instead of the Guard who went to his house on earlier occasions. It is alleged that A.0.2 asked PW1 as to why he was called for. On that, PW1 delivered Exs.P.2 and P.3 and cash of Rs.3,000/- to A.0.2. It is said that A.0.2 refused to receive the cash of Rs.3,000/- and said that he was not concerned with it and directed him to pay the amount by himself or to pay the amount to the person who demanded him.

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The prosecution treated PW1 as hostile as he resiled from his earlier statement. Thereafter, PW1 was cross-examined at length but nothing incriminating has been culled out from the said crossexamination.

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PW2 is the photographer, In the cross-examination, he categorically stated that he was asked to take the photographs of the currency notes alone although some papers were lying on the ground.

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PW3 is the mediator. He supported the prosecution case by stating that on the date of incident i.e. 03.01.2000 at 6.15 p.m., he went along with the trap party to the Satya Chicken Center. According to him, A.0.2 came to the Chicken Center at 7.40 p.m. and asked PW1 to pay the amount of Rs.3,000/-. PW1 led A.0.2 to an electrical pole which is away by one meter from Satya Chicken Center and paid Rs.3,000/- to A.0.2. a.0.2 received the amount with his left hand and kept the same in his left pant pocket. Thereafter, PW1 combed his hair with comb. Then, PW6

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and his staff went to the electrical pole and surrounded A.O.2. Thereafter, A.0.2 picked out the tainted amount of Rs.3,000/- from his left pant pocket and threw it on the ground. When PW6 caught A.0.2, he stated that he did not commit any wrong and asked to save him. Thereafter, the photographer took the photographs of the currency notes which were found lying on the ground. Then, they complied^with all the formalities of trap proceedings, In the chief-examination, PW3 categorically stated that nothing was found near the currency notes which were lying on the ground.

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PW4 is the wife of PW1. She did not support the prosecution case and she was treated as hostile by the prosecution. 22. to PW5 is the Forest Range Officer. He only explained with regard the procedure prevailing in the department. 23. PW6 is the Deputy Superintendent of Police, ACB, Vizianagaram Range, who registered the case and investigated into. 24. The learned Special Judge divided the case into two parts, The first part is with regard to the demand made by the Accused Officers, In respect of the first part, it is pertinent to note that the alleged demand made by both the Accused Officers was on 22.12.1999. It is stated that an amount of Rs.2,000/- was received by both the Accused Officers on 22.12.1999. The only person who is expected to give explanation to the

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said portion is PW1. But, PW1 did not support the prosecution case and he was treated as hostile by the prosecution, He resiled from his earlier statements i.e. his statements under Sections 161 and 164 Cr.P.C.. As per the earlier demand, initially on 22.12.1999, A.0.1 and A.0.2 went to the house of PW1 and demanded an amount of Rs.7,000/- in order not to seize the teakwood and not to register a criminal case against PW1 On failure to pay, the Accused Officers were alleged to have threatened to impose penalty of Rs.70,000/-. Thereafter, on negotiations, the demanded brief amount was reduced from Rs.7,000/- to Rs.5,000/-. Immediately, an amount of Rs.2,000/- was paid to the Accused Officers. Since PW1 has not supported the prosecution case and further categorically stated that A.0.1 and A.0.2 are not the persons who visited his house on the said date, the learned Special Judge rightly acquitted A.0.1.

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It is pertinent to mention here that A.0.1 in his written statement filed before the learned Special Judge took a plea that as on the date of the incident, he was not even present at the scene of offence and he was at Kuppili for beat inspection and stayed there for a period of two days for inspection proceedings. In support of his version, he relied upon Ex.D.1 Xerox copy of Beat Inspection report, in which the beat inspection period was shown as 22.12.1999 and 28.12.1999.

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It is settled principle of law that there is a presumption^available -I1 under law that an accused is presumed to be innocent unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal passed by the learned Special Judge.^{Unlessthereare} substantial or compelling reasons, this Court will not ordinarily disturb the findings of the trial Court. The material prosecution^{witnessP.W.1resiled} from his earlier version and did not depose anything with regard to A.0.1 making demand of bribe on 22.12.1999. Further, there is no recovery of tainted currency from the possession of A.0.1. In view of the said circumstances, this Court has hesitation to hold that the prosecution failed to establish the guilt of A.0.1 with regard to the alleged prior demand of bribe on 22.11.1999 or on the date of the trap on 03.01.2000,^muchless any acceptance thereof, beyond reasonable doubt. The learned Special Judge rightly came to a conclusion, by relying upon^{Ex.D.1,thatA.0.1} was not one of the two persons who visited the house of PW1 on 22.12.1999. This Court too concurs with the view taken by the learned Special Judge in coming to such a conclusion. Accordingly, the prosecution failed to prove the first part of the offence. Therefore, Criminal Appeal No.947 of 2007 fails and thereby the^{sameisdismissed.}

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Further, the alleged earlier demand made by Accused^Officerson 22.12.1999 for an amount of Rs.5,000/- cannot be said^{tobeestablished} for the reason that PW1 did not support the prosecution^caseandhewas

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treated as hostile by the prosecution. It is the categorical evidence of P.W.1 that A.0.1 and A.0.2 are not the persons who visited his house on 22.12.1999. When once the learned Special Judge came to a conclusion that it is not A.0.1, who went to the house of PW1 on 22.11.1999, there is any amount of ambiguity as to how the learned Special Judge came to a conclusion that there was demand of bribe on the part of A.0.2 on 22.11.1999. If the initial part of demand has been disbelieved by the prosecution, the question of subsequent demand on the date of trap and acceptance cannot be taken into account for convicting an accused.

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Learned counsel appearing on behalf of A.0.2 relied upon the decision of the Hon'bie Supreme Court in the case of Hah Dev Sharma I/s. State (Delhi Administration^, wherein it is held at Para 3 thus:

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The High Court on appeal preferred by the appellant before us did not accept the prosecution case on the first two charges on the ground that it would be unsafe to hold on the bare testimony of the complainant that Rs.20 had been paid to the appellant as alleged. Apparently, the High Court looked upon the complainant as a witness not to be believed unless his evidence was corroborated by other evidence. The High Court however accepted the other part of the prosecution case that the appellant had been caught while accepting Rs.70 as bribe from the complainant. One circumstance which appears to have impressed the learned Judge was that the complainant was being harassed by various objections raised on his application ever since 1964 when the property was purchased. It appears however that the appellant started dealing with the file only

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' (1977) 3 see 352

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from July, 1966, and the earliest of the notes made by him on the file was dated July 20, 1968. Admittedly, the complainant^met the appellant for the first time on January 29, 1969 and, that being so, it is difficult to hold that the objections raised prior^{tothisdatewere} calculated to put pressure on the complainant. It is hardly reasonable to think that the appellant could anticipate what in fact followed. Besides, the appellant could not have been responsible for any objection raised between 1964 and July 1966. But the main difficulty we feel in accepting the prosecution case arises out^{ofthefactthat} the High Court disbelieved the part of it which, according to the prosecution, was the genesis of the case. Having disbelieved^the story that the appellant had asked for a bribe of Rs.lOO^ofwhich Rs.20 was paid in advance, we do not think the High^Courtcould reasonably proceed on what was left of the prosecution^casetoaffirm the order of the conviction passed by the trial Court. The prosecution case was one integrated story which the trial Court had accepted. If the High Court did not find it possible to accept a vital part of the story, it is difficult to see how the other part, which did not stand by itself, could be accepted. It was not the prosecution^{casethatRs.70} which was recovered from the appellant was the amount^thatthe appellant had asked for from the complainant. This^wasanewcase made by the High Court. Undoubtedly there are circumstances in this case which are highly suspicious against the appellant,^butthe High Court having disbelieved an essential part of the prosecution case on which the other part was dependant, we do not^consider it safe to sustain the conviction of the appellant. Accordingly,^weallow the appeal and set aside the order of conviction and sentences passed against the appellant.”

¶132

The facts in the present case and the facts in the aforesaid judgment relied upon by the learned counsel appearing for A.0.2 appear to be similar. In the judgment relied upon by the learned counsel

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appearing on behalf of A.0.2 goes to show that there was a demand of Rs.100/- by the accused officer therein from the informant therein, out of which, Rs.20/- was paid in advance and the remaining part of Rs.70/having been paid on a later point of time. The Hon’ble Apex Court, after having gone through the record, came to a conclusion that having disbelieved the story that the appellant therein asked for a bribe of Rs.100/-, out of which Rs.20/- was paid in advance, the Hon’ble Apex Court thought that the High Court could not reasonably proceed on what was left of the prosecution case. The Hon’ble Apex^Court categorically stated that the prosecution case was one integrated story which the trial Court had accepted. If the High Court did not find it possible to accept a vital part of the story, it is difficult to see how the other part, which did not stand by itself, could be accepted.

¶135

In the case on hand, on 22.12.1999, it is alieged that a demand of Rs.5,000/- was made by A.Os.1 and 2 and an amount of Rs.2,000/- was paid by P.W.1 to A.0.1 and A.0.2, and subsequently, on 03.01.2000, an amount of Rs.3,000/- was paid to A.0.2. The facts in the present case are similar to the judgment of the Hon’ble Apex Court that has been relied upon by the learned counsel for the appellant/A.O.2. There cannot be any dispute that the prosecution case is one integrated story. In view of lack of substantive evidence with regard to the alleged demand made by A.0.2 on the earlier occasion i.e. on 22.11.1999, it is difficult to accept the

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vital part of the story i.e. earlier demand made by A.0.2 on 22.11.1999, which is the genesis of the case. In the absence of the same, the other part of the prosecution story did not stand by itself^andthesame is also not acceptable.

¶138

With regard to the fact of recovery of tainted currency^fromthe possession of A.0.2 on 03.01.2000 and the chemical^{testconductedon} the hands of AO.2 giving positive result, it is settled that mere recovery of tainted currency, by itself, is not a ground to find a person guilty of the offences alleged. The prosecution failed to establish^{theearlierdemand} and the demand on the date of the trap made by A.0.2.

¶139

On this aspect, learned counsel appearing on behalf^{ofA.0.2relied} upon the Full Bench decision of the Hon’ble Supreme^{Courtinthecaseof} P.Satyanarayana Murthy /s. District Inspector of Police and another"^, wherein it is held thus:

¶140

“21. The proof of demand of illegal gratification, thus, is the gravamen of the of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, de hors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.

¶141

As a corollary, failure of the prosecution to prove^thedemandfor illegal gratification would be fatal and mere recovery^oftheamount

¶142

"air 2015 S.C. 3549

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from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder. 23. The sheet anchor of the case of the prosecution is the evidence, in the facts and circumstances of the case, of PW1-S. Udaya Bhaskar. The substance of his testimony, as has been ailuded to hereinabove, would disclose qua the aspect of demand, that when the complainant did hand over to the appellant the renewal application, the latter enquired from the complainant as to whether he had brought the amount which he directed him to bring on the previous day, whereupon the complainant took out Rs.500/- from the pocket of his shirt and handed over the same to the appellant, Though, a very spirited endeavour has been made by the etamed counsei for the State to oorrelate this statement of PW1-S. Udaya Bhaskar to the attendant facts and circumstances including the recovery of this amount from the possession of the appellant by the trap team, identification of the currency notes used in the trap operation and also the chemical reaction of the sodium carbonate solution qua the appellant we are left unpersuaded to return a finding that the prosecution in the instant case has been able to prove the factum of demand beyond reasonable doubt. Even if the evidence of PW1-S. Udaya Bhaskar ISi accepted on the face value, it falls short of the quality and decisiveness of the proof of demand of illegal gratification as enjoined by law to hold 1 that the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act has been proved. True it IS, that on the demise of the complainant, primary evidence, if any, of the demand is not forthcoming. According to the prosecution,^the demand had in fact been made on 3.10.1996 by the appellant to the complainant and on his complaint, the trap was laid on the next date i e. 4.10.1996. However, the testimony of PW1-S. Udaya Bhaskar does not reproduce the demand allegedly made by the appellant to the complainant which can be construed to be one as contemplated in law to enter a finding that the offence under Section 7or13(1)(d)(i)

i

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and (ii) of the Act against the appellant has been proved beyond reasonable doubt.”

¶149

On a perusal of the aforesaid judgment goes to show^thatinthe absence of any evidence of demand, mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, would not be sufficient to base the conviction for the offences alleged. In the present case on hand, only the earlier demand made on 22.12.1999 has been disbelieved by virtue of the fact that the informant did not support the prosecution case and he was treated as hostile, then the question of demand made by the accused officers on the subsequent^{occasionwould} not arise. Even there is no circumstantial evidence to establish the same.

¶150

The entire case now rests on the evidence of PW3, who is arrayed

¶151

as accompanying witness with the trap party. But, his^{evidencecannot} be treated as independent evidence insofar as demand and acceptance of illegal gratification. In the absence of any evidence^{fromthematerial} prosecution witness P.W.1, the evidence of P.W.3 is not at all helpful to the case of prosecution to base a conviction. The Hon’ble Supreme Court in the case of Som Parkash Vs. State of Punjab (1^^ cited), wherein it is held thus:

¶152

“... We agree with the learned counsel for the appellant^thatin the face of the finding that the witnesses who formed part of the raiding party were not independent and the evidence regarding handing over money to the appellant being

¶153

N

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unbelievable, the conviction of the appellant cannot be sustained, The guilt of the appellant has not been proved beyond reasonable doubt and as such the benefit must go to him.”

¶156

Apart from the same. PW2 is the Photographer. He is said to have stated that on the instructions given by PW6 - Deputy Superintendent of Police, he took the photographs of the currency notes alone although certain papers were lying on the ground along with^the currency notes. PW3 who accompanied the trap party categorically stated that nothing was found near the currency notes which were found lying on the ground. When an independent witness like photographer categorically^stated that along with the currency notes, some papers were also present, there is no reason why PW3 stated that near currency notes, nothing was found lying on the ground. Relying upon the same, learned counsel appearing for A.0.2 categorically stated that the accompanying witness i.e. PW3, is an interested witness and much credibility cannot be attached to the said witness.

¶157

In view of the aforesaid facts and circumstances, since prosecution case was one integrated story, and the prosecution failed to establish the vital part of the story i.e. earlier demand, it is difficult to see how the other part, which did not stand by itself, could be accepted, Since there is no earlier demand that has been proved by the prosecution and there i IS any amount of inconsistency as to whether A.0.2 was present when the

¶158

demand was made on 22.12.1999, this Court is of the opinion that the prosecution failed to establish its case against A.0.2 for the charges levelled against him. The learned Special Judge has not properly appreciated the evidence on record in right perspective and erred in convicting and sentencing A.0.2, and the same are liable to be set aside.

¶159

Accordingly, Criminal Appeal No.562 of 2007 is allowed, setting aside the judgment dated 27.04.2007 passed in C.C.No.11 of 2001 on the file of the Special Judge for ACB Cases-cum-lll Additional District & Sessions Judge, Visakhapatnam. The convictions and sentences recorded by the learned Special Judge against the appellant/A.O. 2 in the impugned judgment are set aside and A.0.2 is found not guilty of the said charges and is acquitted of the same, Fine amount, if any, paid by him shall be refunded to him.

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