IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE THIRTY FIRST DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL APPEAL NO. 638 OF 2003 Between : Dr.P.Achuta Rao .... Appellant. A N D State, Rep.by ACB, Warangal …Respondent THE HON'BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL APPEAL NO. 638 OF 2003 JUDGMENT: This Appeal is directed against the Judgment, dated 30.06.2003, in C.C. No.9 of 1999, passed by the Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad (herein after referred to as ‘learned Special Judge’) whereby and whereunder the appellant was found guilty for the offences under Sections 7 and 13 (1) (d) read with 13 (2) of thePrevention of Corruption Act, 1988 (herein after referred to as ‘ the Act’). Accordingly, he was convicted and sentenced to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs.500/- , in default to suffer simple imprisonment for three months for the offence under Section 7 of the Act, and further convicted and sentenced to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs.500/-, in default to suffer simple imprisonment for three months for the offence under Section 13 (1) (d) read with 13 (2) of the Act. Both the substantive sentences were ordered to run concurrently. 2. The brief facts of the case are as follows: The Appellant was working as Assistant Civil Surgeon, Government Civil Hospital, Garla (V) and Mandal, Khammam District, from 26.03.1997 to 10.12.1997, as such he is a public servant within the meaning of Section 2( c) of the Act. 3. One Chinthala Renuka, wife of Balaiah, was brought to Government Civil Hospital, Garla for delivery. The appellant alleged to have demanded a bribe of Rs.500/- for admitting the said Renuka in the hospital and for her treatment. The said Renuka was the aunt of PW-1 S.Vekateswarlu. PW-1 was also accompanied her to the Government Hospital. When the appellant demanded a bribe of Rs.500/- for admitting the said Renuka in the hospital, PW.1 stated to the appellant that he had no capacity to pay such huge amount and that he is a poor man. Then the appellant reduced the amount to Rs.300/-. The appellant admitted the said Renuka in the hospital on 06.11.1997 and on the same day she delivered a baby. The appellant had also told to PW.1 that he had purchased some medicines from outside and used them for treating Renuka, and therefore, PW.1 had to pay the cost of the medicine. Since PW.1 was not intending to pay the amount, demanded by the appellant, he approached A.C.B officials on 11.11.1997 and gave a complaint Ex.P1 against the appellant. 4. PW.6 Mahamood Ali, was working as D.S.P., A.C.B, Warangal, during the relevant period. Having received Ex.P1 complaint, he registered the same as a case in Crime No.8 of ACB, Khammam/97 under Sections 7 and 11 of the Act and summoned PW-2 B.Ravinder Naik and another mediator V.Naggeswar Rao. Then PW.6 introduced PW.1 to the mediators and the mediators had gone through the contents of the complaint and then PW.1 produced the proposed bribe amount of Rs.300/- in hundred rupees denominations and PW.6 had demonstrated the significance of the phenolphthalein test and explained the same to the mediators. Then the currency notes were tainted with the phenolphthalein powder and the notes were kept in the left side shirt pocket of PW.1. He was directed to pay the amount only on the demand of the appellant. He was also directed to give a signal by wiping out his face if the appellant had accepted the bribe amount. All the proceedings were drafted in the first mediators report under Ex.P4. After completion of First Information Report, the trap party proceeded to Garla in a jeep. They parked the jeep at a distance of one furlong from the hospital. PW.1 proceeded to the Government Civil Hospital, Garla. The appellant was not present in the hospital by the time PW.1 reached the hospital. However, he came to the hospital within ten to fifteen minutes. PW.1 wished the appellant and the appellant enquired whether PW-1 brought the amount and when PW.1 answered affirmatively, the appellant asked him to give the money. Then PW-1 handedover the tainted currency notes to the appellant. The appellant received and counted the notes and then PW.1 came outside and gave the pre-arranged signal. Then the trap party rushed into the hospital and PW.6 introduced himself and also the mediators to the appellant. PW-6 directed PW-1 to wait outside the room of the appellant. After questioning the appellant whether he has accepted the amount from PW.1, phenolphthalein test was conducted by preparing sodium carbonate solution in two glass tumblers and subjected both the hand fingers of the appellant to sodium carbonate test separately and both the solutions turned into pink colour. The solutions were preserved in two sealed bottles marked as Mos. 4 and 5. Then the appellant was directed to produce the tainted amount and the appellant produced the same from his stethoscope bag. The mediators verified the currency note numbers and found the same were tallied with the numbers noted in the First Information Report. When the inner laying of the bag was subjected to phenolphthalein test the same also turned into pink colour. The resultant solution was preserved in a sealed bottle marked as M.O.7. The samples of Sodium Carbonate powder used at the time of the trap was preserved in a sealed cover marked as M.O.8. Then PW-1 was called inside and his statement was recorded and then PW-6 seized Exs.P5 to P9 i.e., Ex.P5 leave application of Shaik Khairatha Hussain, Ex.P6 Admission register maintained from June, 1997, Ex.P7 relevant entry showing the admission of Smt.Renuka W/o Balaiah, Ex.P8 inpatient case sheet of S.Renuka and Ex.P9 Attendance register of Government Civil Hospial. Rough sketch of scene of offence and search list of office chambers Ex.P12 was also drawn. Then second mediators report was drafted incorporating all the details in Ex.P.10. PW-8 G.Raghava Reddy, who was working as Inspector, ACB, Kahammam, took up investigation in this case and got recorded the statement of PW-1 under 164 Cr.P.C. He had also examined PWs, 1, 3 , 4 and other witnesses and he also obtained sanction orders and after completing investigation filed charge against the appellant. 5. PW-2 is one of the mediator, PW-3 is the attender working in the hospital during the relevant period. PW-4 is the staff nurse in the said hospital during the relevant period. PW-6 is the D.S.P who registered the case and PW-7 is the Section Officer who spoke about the sanction order grated by the Government for prosecuting the appellant. 6. Since the appellant denied the charges framed against him, the prosecution in order to prove its case examined PWs. 1 to 8 and got marked Exs.P-1 to P15 and M.Os. 1 to 8. 7. Learned Special Judge on condition of the oral and documentary evidence convicted and sentenced the appellant s stated above. 8. Sri C. Padmanabha Reddy, learned senior counsel representing Sri C.Praveen Kumar, learned counsel for the accused submits that the only witness, who spoke about the demand and acceptance, i.e., Pw-1 turned hostile and he had given inconsistent versions, and therefore, the learned Special Judge ought not to have relied upon the evidence of PW-1. He also submitted that the learned Special Judge ought not to have relied on Exs.P-1, P-3 and P-10 for convicting the accused, particularly when Pw-1 was turned hostile. His main submission is that the earlier statement of PW-1 cannot be used as an substantive evidence and can be used only for contradicting the version of Pw-1 given in the court. He also submitted that PWs 2 and 5 have supported the plea of the appellant that PW-1 shook his hands. 9. It is also argued that the patient Renuka was already admitted in the hospital on 06.11.1997, and on the same day she delivered a baby and those circumstances falsifies the case of the prosecution that the accused demanded bribe for admitting and treating Smt. Renuka. It is further argued that the entire evidence of PW-1 is inconsistent and at one point of time he had stated that the accused demanded bribe of Rs.500/- and subsequently reduced the same to Rs.300/-, and in chief examination at later point of time PW-1 had deposed that the appellant asked the amount towards cost of the medicines, and therefore, the evidence of PW-1 cannot be relied upon. It is also argued that PW-1 himself admitted that he shook the hands of the appellant and this fact was not taken into consideration by the learned Special Judge. It is also submitted that admittedly the amount was not recovered from the appellant and it was recovered from stethoscope bag of the appellant and these circumstances also gives a doubt about the prosecution case. It is further argued that admittedly neither the patient Renuka nor her husband Balaiah were examined. It is further argued that PW-2 is not accompanying witness and he did not witness either the demand or acceptance of bribe amount by the appellant. It is further argued that the scanty testimony of PW-1, which is not inspiring confience, cannot be relied upon and when the evidence of witnesses is not only reliable and when there is no other evidence no conviction can be placed. 10. The learned Public Prosecutor for ACB Mr. P.Ravi Kiran Rao, submitted that PW-1 supported the case of the prosecution in all material aspects and that though he was declared as hostile and he did not support the case of the prosecution, his evidence cannot be rejected in toto. His main submission is that to the extent the evidence of PW-1 is acceptable the same can be taken and it shows that PW-1 lodged Ex.P1 complaint to DSP ACB and PW-1 himself deposed that the appellant demanded the bribe amount of Rs.500/- for admitting Renuka in the hospital and subsequently the appellant also reduced the same to Rs.300/- and the appellant forced PW-1 to pay the bribe amount. He had no other go except to report the matter to the ACB officials. It is further submitted that PW-1 had no intention to implead the appellant falsely in this case and that the defence version of the accused is totally improbable. It is further argued that the minor contradictions need not be taken into consideration and the suggestions given to PW-1 goes to show that he had denied the suggestions and he kept the tainted currency notes in the stethoscope bag and the circumstances that the appellant himself had taken out the amount from the stethoscope bag prove the prosecution case. It is also argued that the lower court has given valid reasons and no interference is required. 11. The only point that arises for consideration is whether the scanty testimony of Pw-1 is reliable and a conviction can be safely placed on relying such evidence. 12. It is not in dispute that Renuka is the aunt of Pw-1. Her husband name is Balaiah. PW-1 brought the said Renuka to the hospital on 06.11.1997 for delivery. It is also not in dispute that the appellant was working as Assistant Civil Surgeon, Government Civil Hospital, Garla Mandal, Khammam District, during the relevant period. The evidence of PW-3 B.Veeramma, who was working as attender in the said hospital shows that on 06.11.1997, Renuka came to the hospital and she prepared out patient slip under Ex.P2. It was entered in the out patient register EX.P3 is the relevant entry at Sl.No.81, dated 6.11.1997. The evidence of PW-4 D.Snehalatha shows that she was working as staff nurse in the said hospital during the relevant period. According to PW-4 on 06.11.1997 one patient by name Renuka was admitted in the hospital for delivery and it is noted in the admission register and that Ex.P8 is the inpatient case sheet of patient Renuka maintained by her. Ex.P7 is the admission register. Ex.P6 shows that Renuka was admitted in the hospital on 06.11.1997 at 4.30 p.m. It is also not in dispute that Renuka delivered a baby on the same day. 13. For the purpose of proving misconduct as defined under the Act, the prosecution has to prove the demand and acceptance of the bribe amount. It is settled law that mere recovery of amount is not sufficient to convict the accused. There must be a prime demand and in pursuance of the demand the appellant should have accepted the amount. Presumption under Section 20 of the Act may be raised only where the basic ingredient of demand and acceptance have been proved. In this case, the main witness is PW-1. The evidence of PWs- 2 and 5 go to show that after receiving pre-arranged signal from PW-2, the trap party entered into the room of the appellant and when both the hand fingers of appellant were subjected to phenolphthalein test, they gave positive result. Their evidence further shows that the tainted currency notes were recovered from the bag, in which stethoscope was kept. As far as the demand and acceptance is concerned, we have a scanty testimony of PW-1. Except the evidence of PW-1, there is no other evidence in this case. The patient Renuka or her husband Balaiah were not examined. According to PW-1, the appellant demanded Rs.500/- for admitting his aunt Renuka in the hospital for delivery on 06.11.1997. However, during cross examination PW-1 stated that it is Balaiah, husband of Renuka, who told him that the appellant demanded Rs.500/- for treating Renuka in the hospital. Though in the chief examination PW-1 stated that A.O. demanded Rs.300/-, but in the cross examination he stated that it is Balaiah who told him that the appellant demanded Rs.500/-. In view of these two inconsistent versions, the evidence of PW-1 becomes wholly unreliable. It has to be seen that PW-1 admitted that he was not at Garla from 06.11.1997 to 11.11.1997. It has to be seen that on 11.11.1997 Ex.P1 complaint was lodged to DSP, ACB. From 06.11.1997 to 11.11.1997, PW-1 was at Buddaram. Therefore, if any persistent demand was made by the appellant, it must have been made to Balaiah, husband of Renuka. Admittedly, the said Balaiah was not examined. The purpose for which demand was made is also not consistent. According to PW-,1 the appellant demanded the amount for admitting and treating Renuka. But his subsequent evidence shows that the appellant demanded Rs.300/- towards the cost of the medicines. The learned Special Judge, observed that the version of PW-1 that the appellant told him that he purchased some medicines from outside and used to Renuka and PW-1 has to pay the cost and that since it is a Government Hospital he went to the ACB office on 11.11.1997 and lodged Ex.P1 complaint is not there in EX.P1 and also in EX.P3 statement made before the Judicial First Class Magistrate, It is settled law that the contents of First Information Report are not substantial evidence. First Information Report can be used only for the purpose of contradicting her corroborating its maker. It has to be seen that PW-1 himself stated in the cross examination that he had written EX.P1 to the dictation of ACB officials. In view of the same, the contents of Ex.P1 cannot be used for convicting the appellant. However, contents of EX.P1 complaint can be used either for contradicting or corroborating the version of PW-1. The versiono f PW- 1 is inconsistent as to the purpose for which appellant demanded Rs.300/-, once he says that the appellant demanded Rs.300/- for the purpose of admitting and treating Renuka in the hospital and from next movement he says that appellant demanded amount for purchasing the medicines from outside and used for Renuka. 14. In the above circumstances, the demand by the appellant appears to be not proved by the prosecution. The other circumstances are that the appellant admitted Renuka on the same day when she came to the hospital i.e. on 06.11.1997 and on the same day she delivered a baby. According to PW-1 by 11.11.97 stitches were removed and Reneuka was asked to go to her house. These circumstances go to show that no official favour was pending with the appellant on the day when the trap was raid. According to PW-1, Balaiah accompanied him to ACB office and to the dictation of ACB officials he wrote Ex.P1. He contends that since Balaiah does not know how to give complaint Balaiah suggested his name to lodge complaint and the complaint was prepared in his name. The evidence of Pw-1 further shows that he informed the ACB officials that the appellant demanded Rs.300/- towards cost of the medicines and in the above circumstances, the ACB officials ought to have enquired, whether the appellant had purchased any medicines from outside the hospital and used them for treating Renuka. 15. As far as acceptance of bribe amount is concerned, according to PW-1 the appellant received the currency notes and gave a signal. Nobody has seen how the amount came into zip bag of stethoscope. According to PW-2 the appellant removed the tainted currency notes from the zip bag of stethoscope. The appellant had given explanation on this aspect. As seen from the contents of second mediator report Ex.P10, the appellant stated that he never demanded bribe and according to the appellant on his advise only Renuka was admitted in the hospital for delivery and after delivery PW-1 came to his house and requested him to accept Rs.300/- as good will and he denied the same and that on 11.11.1997 in the morning hours PW-1 came to the chambers and kept Rs.300/- on his desk and though he was denied the amount he went out according to PW-1 familiar to him he issued the amount to him and therefore, he took the amount from the desk and kept it in his bag. He says that he was forced to touch the amount. According to PW-1 after entering into the room of appellant he shook hands with the appellant. Therefore, there is no clear and satisfactory evidence to show that the appellant had accepted tainted amount officially. The evidence of PW-1 is not inspiring confidence and it is with full of inconsistencies. 16. As far as the result of phenolphthalein test it is true that when the both hand fingers of the appellant raised in the sodium carbonate it turned to pink colour and gave positive result. 17. There are three circumstances which are in favour of the appellant. The first even according to PW-2 the appellant first paid the money of Rs.300/- from his zip bag containing stethoscope and then his both hand fingers were subjected to sodium carbonate test. The second circumstance is that according to PW-1 he had taken out tainted currency notes and he himself handed over the same to the appellant. He further deposed that he gave shake hand to the appellant. Therefore, while so the tainted currency notes powder must be touched the fingers of PW-1 and consequently when he gave shake hand to the appellant, the possibility of appellant fingers also coming in contact with phenolphthalein powder cannot be ruled out. 18. Even according to the appellant he had taken out the currency notes from the zip bag of stethoscope and handed over the same to the ACB officials and then the test was conducted. In the above circumstances, even the recovery of currency notes from the instance of the appellant from the zip bag of stethoscope. 19. In view of the above discussion it has to be held that the prosecution failed to prove the demand and acceptance. In the above circumstances, no presumption can be raised under Section 20 of the Act and the prosecution has failed to prove its case. 20. Since I have already held that the prosecution failed to prove its case, there is no need to discuss whether the version of the defence is probable or not. Though some enmity is admitted between PW-1, there is no sufficient evidence to prove the same. In view of the above discussion, it is clear that the learned Special Judge had not considered the above important defects in the evidence of the prosecution witnesses. 21. In the result, the Criminal Appeal is allowed, consequently, setting aside Judgment passed by the learned Sessions Judge, imposed against appellant stands set aside. The fine amount, if any paid to by the appellant shall be returned to him. ________________________ B.CHANDRA KUMAR, J MARCH 31, 2010. YVL