IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SIXTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT: THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CRIMINAL APPEAL NO.653 of 2003 Between: Dr. E. Vasantha Murthy, Assistant Professor of Ophthalmology, Kurnool Medical College/Regional Eye Hospital, Kurnool. - - - Accused/Appellant. AND The State of A.P. Rep. by P.P. of Anti Corruption Bureau, High Court of A.P., Hyderabad. - - - Complainant/Respondent. The Court made the following: THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR CRIMINAL APPEAL NO.653 OF 2003 JUDGMENT This appeal is directed against the judgment, dated 04-07-2003, passed in C.C. No. 23 of 2000 by the learned Additional Special Judge for SPE and ACB Cases-cum-V Additional Chief Judge, City Civil Court, Hyderabad (Hereinafter referred to as ‘learned Special Judge’). The appellant, herein, who was the sole accused in that case was found guilty for the offences punishable under Sections 7 and 13(1)(d) read with 13 (2) of the Prevention of Corruption Act 1988 (for short ‘the Act’), and was sentenced to suffer Rigorous Imprisonment for a period of two years and to pay fine of Rs.1,000/-, in default to suffer Simple Imprisonment for three months for the offence under Section 7 of the Act and was also sentenced to suffer Rigorous Imprisonment for a period of two years and to pay fine of Rs.1,000/- in default, to suffer Simple Imprisonment for three months for the offence under Section 13(1)(d) read with Section 13(2) of the Act. Both the sentences were ordered to be run concurrently. 2) The brief facts of the case are as follows : The Appellant/accused officer was working as Assistant Professor in Ophthalmology in Kurnool Medical College/Regional Eye Hospital Kurnool (For brevity ‘the hospital’). Dr. D.V. Giddaiah PW.4 was working as Superintendent doctor in the hospital. PW.5 Shaik Peeran Saheb was working as watchman of the said hospital. PW.1 Vadda Seshamma is resident of Tarigopula village of Kurnool District. PW.2 Vadda Seshanna is the husband of PW.1. As cataract developed in the right eye of PW.2, he went to the hospital wherein the accused and PWs. 4 to 6 were working. After conducting necessary tests, PW.2 was asked to come to the hospital after two months. After two months when he went there, again he was asked to come after one week, then he along with his wife went to the hospital and he was admitted in the hospital. The accused officer examined PW.2 and told that he would perform the operation on Monday. It is alleged that accused demanded an amount of Rs.1,000/- bribe for performing the eye operation. PWs. 1 and 2 agreed to pay the said amount but, however, requested the accused to perform the operation and further told him that after arrival of their son, they would pay the amount as demanded by the accused. Accordingly, operation was conducted on Monday. However, after completing the operation, the accused was asking PWs. 1 and 2 to pay the bribe amount. PW.2 asked his wife to send a word to his son to send the amount, when his son informed them that he had no amount, then PW.2 told the accused that he was not having the money. Then accused is alleged to have asked him to pay at least Rs.500/- to him. Then, PW.2 came to know that the office of ACB is situated at Narsingarao pet and that they could approach the ACB officials, then he asked his wife PW.1 to go and lodge a complaint against the accused officer. Accordingly, PW.1 went to the ACB office and laid an oral complaint to Abdul Sattar Khan who was the then DSP ACB, Kurnool. Then, he directed PW.9 A Shiva Shankaraiah, to record the statement of PW.1, which is Ex.P1. Then, PW.9 got the antecedents of the accused officer verified and then registered a case in Crime No.10/ACB-KUR/99, under Sections 7 and 13(1)(d) read with 13 (2) of the Prevention of Corruption Act 1988 and issued F.I.R. which is marked as Ex.P18. 3) Then, PW.1 went to one of her villagers who was residing at Kurnool and collected Rs.500/- from that lady. Then, PW.8 secured the mediators i.e. B.V. Balaram Reddy, Deputy Director of adult education, Kurnool PW.3 and D. Chandrasekhar Reddy, Supervisor, Adult education, Kurnool and then introduced PW.1 to those mediators. Then, PW.1 produced Rs.500/- and the mediators noted down the currency notes numbers. Then, phenolphthalein powder was applied to those notes, a test was demonstrated and mediators were explained how the colour of the sodium carbonate solution changes when the fingers touched with phenolphthalein powder are rinsed in the solution. PW.1 was instructed to pay the amount on the demand of the accused officer. As instructed by the DSP ACB, PW.1 went to the hospital and met the accused officer, accused asked her whether she had brought the amount, she answered positively and handed over the tainted amount to the accused officer. Then, she came out and gave prearranged signal to the trap party. Then, the trap party entered into the hospital ward at about 11-05 a.m. PW.8 disclosed his identity to the accused officer, the accused started saying that one Intra Ocular Lenses (IOL) is lost. However, he was pacified and when the sodium carbonate solution was prepared in two glasses then AO rinsed his fingers separately in the said two glasses, the sodium carbonate solution turned into pink colour. Then, both the solutions were preserved in clean bottles and they were duly sealed, labeled and attested and they are marked as Mos. 3 and 4. Then, the accused produced the currency notes from his left side pant pocket. The mediators counted the notes and verified the notes numbers, which tallied with the notes numbers mentioned in the first mediators report. Then the pant of the accused was also seized and fresh sodium carbonate solution was prepared, the inner portion of the left side pocket was inserted in sodium carbonate solution and the colour of the solution turned into pink colour. It was also preserved in the bottle and the same was similarly packed, labeled and attested and marked as MO.6. The seized pant is MO.7. Then, PW.8 seized Attendance register, Ex.P9, IOL indent book Ex.P6, IOL Maintenance book Ex.P10, Nominal register Ex.P8, Operation theatre register Ex.P7, Ex.P5 is case sheet of PW.2. PWs.1 and 2 were examined. The statement of the accused and all other proceedings were noted in Ex.P14, post trap proceedings. The rough sketch of the scene of offence was prepared in Ex.P15. The samples of sodium carbonate powder used in the preparation of solutions were preserved in MO.9. After taking the signatures of the mediators and after arresting of the accused and releasing him on bail, post trap proceedings were concluded at 16.05 hours on 02-07-1999. After obtaining necessary sanction, the investigating officer PW.9 laid charge sheet in this case. 4) When the charges were framed, read over and explained to the accused, the accused pleaded not guilty and claimed to be tried. The prosecution, in order to prove its case, examined PWs. 1 to 9 and got marked Exs.P1 to P.18 and Mos. 1 to 9 and on behalf of the accused DW.1 was examined. 5) The learned Special Judge, having considered the entire evidence, came to the conclusion that the explanation offered by the accused is improbable and that there is no record to show that the accused purchased IOL for fixing in the eye of PW.2 and that no witness is examined to show that IOL was slipped and became contaminated and could not be used in the operation and that when the IOL was not used the accused was not justified in demanding money from PWs 1 and 2 and holding so, convicted the accused as referred above. 6) Sri C. Praveen Kumar, learned counsel for the accused, submitted that the allegation against the accused is that he demanded amount for the purpose of performing cataract operation on PW.2 and admittedly the operation was performed even before payment of any amount to the accused. His main submission is that if at all the accused wanted to take bribe, he would not have performed the operation and he would have waited till the amount is paid to him. Therefore, the amount paid by PW.1 cannot be treated as bribe amount for the purpose of performing operation on PW.2. It is further argued that PW.1 did not mention wherefrom she got Rs.500/- in Ex.P1. It is also argued that it is improbable to say that PW.1 went to her villager and collected the amount for the purpose of handing over the same to ACB Officials. It is also argued that no specific dates have been given when the demand of bribe was made. It is also argued that the explanation given by the accused is probable. It is submitted that the evidence of PWs.4 and 6 shows that there was no supply of IOL from the hospital and therefore the patients were directly purchasing IOL or when IOL is supplied by the doctors the patients were paying the cost of IOL to the doctors. It is submitted that the amount demanded by the accused is not the bribe amount for conducting operation but it is towards the cost of IOL. 7) It is further argued that the accused had taken the plea immediately at the time of trap and even before conducting necessary tests. It is further submitted that the version of PWs. 1 and 2 with regard to the date and time of demand is not consistent and in fact no dates have been mentioned by PW.1. It is further argued that there are material contradictions with regard to place where PW.1 had paid the amount to the doctor. It is further argued that according to PW.1, the amount was paid in the ward but according to prosecution case the amount was paid at the gate of the hospital. It is also argued that even the version of PW.1 is not consistent since in his chief-examination she stated that the amount was paid in the ward but in her cross- examination she stated that the amount was paid at the gate. It is further argued that the evidence of DW.1 shows that the accused performed number of operations at free of cost and that he was helping several poor patients and in the above circumstances, the version of prosecution is improbable. 8) The learned Special Public prosecutor for ACB cases Sri V. Ravi Kiran, submits that PWs 1 and 2 are innocent villagers, there is no need for them to speak falsehood against the accused. It is further argued that the accused demanded bribe of Rs.1,000/- for conducting operation and that when PWs. 1 and 2 promised him to pay the amount, he conducted the operation and when PWs. 1 and 2 were unable to secure the amount and when the accused was insisting for the amount regularly, PW.1 approached the ACB officials. No suggestion was given to PW.s 1 and 2 that AO demanded the amount towards the costs of IOL and that no suggestion was given to them and that they requested the doctor to arrange IOL and the IOL fell down and became contaminated and could not be used at the time of operation. It is further argued that even if the version of the accused is correct, when IOL fell down and became contaminated and it could not be fixed in the eye of PW.2, the accused was not justified in forcing PWs. 1 and 2 to pay the costs of the IOL and in collecting the amount from PW.1. It is also argued that when the doctors were specifically directed not to purchase IOLs and not to collect the amounts from the patients, the version of accused officer cannot be accepted. It is further argued that the learned Special Judge has given valid reasons and his findings are based on record and no interference is required. 9) The only point that arise for consideration is : Whether the version of accused is probable? 10) It is not in dispute that PWs. 1 and 2 were not on inimical terms with the accused. Admittedly, no suggestions were given to PWs 1 and 2 that the accused informed them that they had to pay Rs.500/- towards the costs of the IOL and that the IOL fell down and could not be fixed in the eye of PW.2 at the time of operation. It is also a fact that there is no evidence to show that the accused purchased IOL or that the IOL fell down at the time of conducting operation. However, the fact remains that the accused had taken a specific plea that the amount received by him relate to IOL purchased by him for PW.2 and that IOL could not be used in the operation as it fell down. It also appears that the accused was not justified in demanding money from PWs. 1 and 2 when the IOL fell down and it could not be used. However, it has to be examined whether the version of accused is probable or not. It appears that the version of the accused is probable, then he is entitled to benefit of doubt. It is also settled law that the accused need not prove his case beyond reasonable doubt. It is sufficient if it appears from record that the version of accused is probable. 11) It is not in dispute that PW.2 admitted in the hospital and the accused officer performed operation on Monday. Admittedly no amount was paid before conducting operation. Of course, it is the case of PWs. 1 and 2 that the accused demanded an amount of Rs.1,000/- for performing operation but subsequently reduced the same to Rs.500/-. It is also not in dispute that an amount of Rs.500/- was seized from the accused and though there are minor contradictions as to the place where the amount was paid by PW.1 to the accused and also with regard to the dates of demand etc., but since it is an admitted case that the accused had taken Rs.500/- from PW.1, it appears that there is nothing to discuss the point as to whether the accused had received the amount or not. However, it is also settled law that mere recovery of tainted amount will not prove the guilty of the accused unless it is proved that the accused accepted it knowing fully well that it is bribe amount. In view of the specific stand of the accused what is to be seen is whether the version of the accused is probable or not? The evidence of PW.4 and 6 throws some light on this aspect. 12) According to PW.4, he was working as Superintendent in the Regional Eye Hospital, Kurnool. According to him, when IOL is not available in the hospital, the patients purchase the same from outside the hospital and sometimes they pay money to the doctors requesting them to purchase IOL outside the hospital. He says that at that time the cost of the IOL is Rs.200/- to Rs.300/-. He says that at that time Dr. Bhaskar was in-charge of Unit-IV of the hospital and he never gave any written instructions to the doctors working in that hospital to purchase IOLs outside the hospital when there is no stock at the hospital. He says that a list will be prepared showing the list of the patients going to be operated and the dates of operation. 13) According to PW.6, as on the date of operation to PW.2, there was no stock of IOLs in the hospital. He has also stated that when there is no stock of IOLs, the patients themselves have to secure the same and then the cost of IOL was between Rs.600/- to Rs.3,000/- depending upon the company which manufactured the IOLs. Ex.P6 is the IOL indent book, which shows that there was no supply of IOLs as on the date of operation. The last date of supply of IOLs to the hospitals was on 10-04-1999. Ex.P10 is the IOL maintenance book, which shows that the IOL was lastly used on 15-03-1999. Ex.P6 is the indent book for IOLs, which shows that there was no supply of IOLs after 10-04-1999. Thus, it is clear that there was no supply of IOLs during the relevant period. So, when there is no supply of IOLs as seen from the evidence of PWs. 4 and 6, the patients used to secure IOLs from outside the hospital or otherwise requesting the doctors to arrange IOLs and then the cost of the IOL was paid to the doctors. 14) In the light of the above referred facts, we have to examine the spot explanation given by the accused officer. According to the accused, as soon as he was caught by the ACB officials, his immediate reaction was that he uttered “IOL was lost” and subsequently he informed the ACB Officials which was incorporated in the second mediators report that on the date of operation that on 28- 06-1999, while he was about to fix IOL at the time of operation, it slipped and fell down on the floor. Since it became contaminated, he completed operation without using the IOL and advised PW.2 to use conventional glasses. His specific case is that since IOL was lost, he was claiming the cost of the IOL from PW.2. He says that the amount of Rs.500/- which he had accepted from PW.1 represents the cost of the IOL. Accused also produced one pocket containing IOL bearing No.901310-K.044 and it was seized by the ACB officials and marked as MO.8. The second mediators report also shows that Dr. Bhaskar, the then in-charge superintendent (Who died subsequently and could not be examined), stated that he gave oral instructions that no medical officer is supposed to purchase IOL on their own accord and claim money from the patients towards the costs of the IOLs. At the time of second mediators report, one Nallagolla Shankaramma and Nookaraju Ramanadhamma seems to have appeared before the ACB Officials and informed that accused conducted operation on 25-06- 1999 and that Nookaraju Ramanadhamma paid an amount of Rs.500/- to the accused towards the costs of IOL. The case sheet of said Ramanadhamma shows that IOL was used at the time of conducting operation on her. The case sheet of PW.2 shows that no IOL was fixed in the eye of PW.2. Thus, a reading of second mediators report reveals that the accused had taken a specific stand and also produced contaminated IOL MO.8 and specifically informed that when he wanted to fix IOL at the time of operation on PW.2, the said IOL fell down and became contaminated and therefore he could not use the same and he was demanding the costs of IOL from PWs. 1 and 2. A reading of the evidence of PW.s 4 and 6 shows that though there was a direction to the doctors not to purchase the IOLs on their own accord and to use the same at the time of operations and then to collect the costs of the IOLs from the patients but the doctors were using the IOLs and they were collecting the costs of IOLs from the patients. It appears that fixing of IOL is a normal course while conducting cataract operations. In this case, admittedly, IOL could not be fixed to PW.2 and the accused had purchased MO.8. Of course, it appears that there was no need for the accused to keep the said IOL in his pocket even after three or four days after completing the operation. However, when the accused had produced MO.8 and stated that it fell down and became contaminated, the Investigating Officer ought to have examined whether MO.8 was contaminated or not. He ought to have examined whether it was a normal practice in the hospital to collect the costs of the IOL from the patients in the absence of supply of IOLs by the hospital authorities. It appears that PWs. 1 and 2 were not having money and when the accused demanded them to pay the amount whether as bribe or towards the costs of the IOL, it appears that they promised him to pay the amount subsequently. Admittedly, the accused conducted operation on 28-06-1999. Admittedly, the accused was insisting PWs. 1 and 2 to pay Rs.500/-. The evidence of PW. 2 show that they had sent a word to his son through one Thikkanna of their village and when PW.1 went to the village and requested their son to give the amount, their son did not give the money on the ground that he was not having the money. It appears that PWs. 1 and 2 were unable to pay the amounts to the accused. Admittedly, IOL was not fixed in the eye of PW.2 at the time of operation. Therefore, the accused was not justified in demanding even the costs of IOL from PW.s 1 and 2 but however, having regard to the facts and circumstances of the case, it appears that the version given by the accused also appears to be probable. Admittedly, there was no supply of IOLs to the hospital. Admittedly, IOLs were being fixed at the time of conducting cataract operations. Admittedly, patients were either purchasing IOLs or paying cost of IOLs to the doctors who conducted operation. Admittedly, the accused has given spot explanation and produced MO.8. It is not the case of PWs. 1 and 2 that they had purchased IOL. 15) In the above circumstances, it cannot be said that the version of the accused is totally improbable. Of course, it is also a fact that PWs. 1 and 2 were not inimical towards the accused and there was no need for them to speak falsehood against the accused. It appears that there is every possibility of PWs. 1 and 2 misunderstanding the accused when he demanded cost of the IOL from PWs. 1 and 2. It appears that the accused did not explain them as to why he was demanding for the cost of IOL and accused also failed to understand the circumstances under which PWs. 1 and 2 could not pay the amount, and therefore, it appears that there was misunderstanding between them and it appears that due to this misunderstanding a complaint was given by PW.1 to the ACB Officials. So, in the above circumstances, it appears that the accused is entitled to the benefit of doubt. Though, DW.1 deposed that the accused has conducted 80 to 90 cataract operations free of cost and that he was felicitated by DW.1 and others but the same needs no further discussion in view of my finding that the accused is entitled for benefit of doubt. 16) In view of the above discussions, I hold that the judgment of the lower court has to be set aside. Consequently, the conviction and sentences passed against the accused stands set aside. The fine amount, if any, paid by the accused shall be returned to him. In the result, the Criminal Appeal is allowed. ____________________ B. CHANDRA KUMAR, J Date: 26-02-2010. DSH.