THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.656 of 2004 BETWEEEN: State: A.C.B. rep. by Dy.Supdt. of Police … Appellant AND Dr.M.Karunakar, Civil Asst. Surgeon … Respondents THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.656 of 2004 JUDGMENT: This is an appeal against acquittal. The Special Judge for ACB cases, Visakhapatnam by judgment dated 05.12.2003 in CC.No.39 of 2000 acquitted the accused of the charges under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act). The accused/respondent was working as Civil Assistant Surgeon and E.N.T. specialist in M.R. Government Headquarters Hospital, Vizianagaram. It is alleged that when PW1 took her son Sayyed Faiaz to M.R. Government Headquarters Hospital, Vizianagaram on 29.11.1993, the accused examined him and advised him to be operated for tonsils and instructed her to bring some amount for conducting the operation on the patient and that on 10.12.1993, when PW1 took her son to the accused in the same hospital and requested him to make arrangements for operation of her son and informed him about she bringing Rs.100/- as demanded by the accused, the accused asked her to meet him at his house on the same evening and that when PW1 met the accused at his house, the accused stated about requirement of Rs.170/- for purchase of injections to give anasthesia and demanded bribe of Rs.400/- for conducting the operation in a day or two prior to 18.12.1993, on which date the operation would be conducted. Thereupon PW1 gave Ex.P3 report to PW5, the Deputy Superintendent of Police, Anti Corruption Bureau (ACB), Vizianagaram on 16.12.1993. PW5 arranged trap for the accused on 17.12.1993. Prior to the trap, pre- trap proceedings were prepared as per Ex.P4. It is alleged that on 17.12.1993, at about 5:20PM, the accused was successfully trapped at his house when he demanded and accepted illegal gratification of Rs.400/- from PW1 under the cover of Ex.P7 post-trap proceedings. Plea of the accused is one of not guilty. After trial in which PWs 1 to 5 were examined and Exs.P1 to P15 and Mos1 to 8 were marked, the lower Court found the accused not guilty of the charges. 2. PW2 is the husband of PW1. During trial in the lower Court, PWs 1 and 2 turned hostile to the prosecution and did not support the prosecution case. They did not dispute about PW1 going along with her son Sayyed Faiaz for treatment to the accused in Maharaja Government Hospital, Vizianagarm. Ex.P1 is O.P. chit for treatment of PW1’s son. Ex.P2 contains prescriptions given by the accused to PW1’s son for treatment. PW1 says that the Doctor demanded Rs.400/- towards expenses for the operation. She says that when her husband wrote Ex.P3, she signed it. According to PW1’s evidence in examination- in-chief itself, when she and her husband entered into house of the Doctor, the police officials followed them, and the Doctor asked whether she brought money for the purpose of operation of her son, and when she replied positively, the Doctor asked her to give the amount and she gave it, and the Doctor asked her to bring her son on the next day to his house. But, PW1 did not identify the accused as the said Doctor. She says that due to lapse of time, she cannot identify the accused. In cross-examination by the Special Public Prosecutor in the lower Court, PW1 stated that she gave true version to the Magistrate and that the statement recorded by the Magistrate was true. But there is no such statement of PW1 recorded by the Magistrate before this Court. In cross-examination by the defence counsel in the lower Court, PW1 deposed that she does not know contents of Ex.P3 and that they were not read over to her. She says that they asked the accused the expenses that would be incurred to undergo operation in a private nursing home and he gave the amount as Rs.400/- to Rs.500/- for undergoing operation in a private hospital. She further says that the accused asked them to decide whether to get the operation performed in Government Hospital or in a Private Nursing Home. She admits that when she went to house of the Doctor during trap, the Doctor gave prescription. According to the accused, Ex.P2 is the said prescription given by the accused at his residence. Even though PW1 could not identify the accused as the Doctor, during cross-examination of PW1 by the defence counsel, there was no dispute about identity of the accused as that Doctor. PW2’s evidence is not at all useful to the prosecution because he was not present when the alleged demand for Rs.400/- was said to have been made by the accused. PW2 stated in the lower Court on the same lines of his wife PW1 about the trap. PW3 is the then Junior Assistant in the Headquarters Hospital at Vizianagaram. He says that the accused was working as E.N.T. Doctor during that period in that hospital. He speaks about Ex.P1 O.P. cheque issued in that hospital. 3. PW4 is the mediator in Ex.P4 pre-trap proceedings and Ex.P7 post-trap proceedings. Evidence of PWs 4 and 5 and Ex.P7 are to the effect that tainted cash of Rs.400/- covered by MO.5 was recovered from possession of the accused and his hand rinses turned pink in Sodium Carbonate Solution. 4. The spontaneous explanation/statement given by the accused at the time of trap is relevant under Section 8 of the Evidence Act. In Ex.P7 post-trap proceedings, it is noted that when PW5 questioned the accused as to what transpired between him and PW1, the accused stated that four or five days ago, a lady came to his house at about 3:00 P.M. and requested him to operate tonsils of her son who also came with her and that he examined the boy and suggested operation to be conducted on him for tonsils and prescribed some medicines to be used by the boy for conducting the operation and that he asked her to bring the boy to his house on 16.12.1993 at 3:00 P.M. for conducting the operation in a private nursing home at Vizianagaram and that she did not come to his house on 16.12.1993 and that on 17.12.1993 at about 5:45 P.M., the same lady along with a man who is said to be her husband, came there. The accused further stated in Ex.P7 that when the lady met him on the same day, he informed her that he would conduct the operation for tonsils of her son at 6:00 A.M. on 18.12.1993 in a private nursing home, and that thereupon, the said lady gave him Rs.400/- towards the operation charges in a private nursing home and went away. Though the accused admitted about receipt of MO.5 cash of Rs.400/-, it is his consistent version that the said amount was paid by PW1 to him towards operation expenses for the operation to be conducted for tonsils on her son in a private nursing home. PW1 also stated the same in the lower Court. PWs 1 and 2 also support the said version. 5. It is contended by the Special Public Prosecutor that a Government Doctor like the accused is not expected to do private practice and is not expected to receive amount from his patients for conducting operation in a private hospital. No documents or notifications or Government orders are produced by the prosecution to show that during that relevant time, there was ban on doing private practice by a Government Doctor. Assuming for a moment for the sake of argument that there was any such ban for Government Doctors for doing private practice; and if the said ban is violated by the accused as Government Doctor, then the accused can be prosecuted for violating the ban and not for receiving expenses for conducting operation in a private hospital treating the same as illegal gratification covered by the Act. Viewed from any angle, the prosecution thoroughly failed to prove that the amount of MO.5 received by the accused from PW1 was a bribe and that the accused demanded any bribe or illegal gratification from PW1 and accepted the same. Having regard to the evidence on record, the lower Court came to a right conclusion finding the accused not guilty of the charges. There are no reasons to come to a different conclusion by this Court in this appeal. 6. Hence, the Criminal Appeal is dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated: 28.04.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJUL CRIMINAL APPEAL No.656 of 2004 DATED: 28.04.2011 ysk