THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 395 OF 2003 JUDGMENT: 1. This Criminal Appeal is directed against the judgment dated 27.03.2003 in Calendar Case No.24 of 1998 on the file of the III Additional District & Sessions Judge-cum- Special Judge for A.C.B. Cases, Visakhapatnam, whereunder and whereby the appellant/sole accused was convicted of the offences under Sections 7 and 13(1) (d) (ii) read with 13(2) of the Prevention of Corruption Act, 1988 (for short, ‘the Act’) and sentenced to undergo simple imprisonment for a period of one year and also to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for one month, under each count. 2. The brief facts as depicted by the witnesses examined on behalf of the prosecution may be stated as follows: P.W.1 is the defacto-complainant. P.W.2 is the then Principal/ Assistant Apprentice Advisor, Government Related Institutional Classes Centre (hereinafter referred to as ‘R.I.C.’), Kakinada. P.W.3 is the pre and post mediator. P.W.4 is the Deputy Superintendent of Police, Anti Corruption Bureau (‘A.C.B.’) and P.W.5 is the Inspector of Police, A.C.B., Rajamundry Range. P.W.1, who did not get any opportunity for doing apprenticeship in any company even after completing ITI course of 2 years, approached R.I.C., Kakinada on 17.2.1998, met the appellant, who was working as Junior Assistant in the office, on the same day at about 12.30 noon and showed his certificates. After going through his certificates, the appellant demanded P.W.1 to pay Rs.500/- as bribe for recommending his name as an apprentice in any company. P.W.1 expressed his inability to pay the amount and he further stated that in case his name was recommended for apprenticeship he would pay the bribe amount subsequently. The appellant did not agree therefor and stated that unless the said amount was paid he would not recommend the name of P.W.1 for apprenticeship in any company. Thereupon, P.W.1 reluctantly agreed to pay the bribe amount within 2 or 3 days. Then P.W.1 went to the office of A.C.B. at about 2.00 P.M. and gave Ex.P1- report against the appellant. After receiving Ex.P.1, P.W.4 asked P.W.1 to come to his office on the next day morning along with certificates and proposed bribe amount. On the basis of Ex.P.1, P.W.4 registered a case in Cr.No.2/RC/RJY/98 and issued Ex.P10- F.I.R.. On 18.2.1998, at about 10.30 A.M., P.W.1 met P.W.4 in A.C.B. Office as per P.W.4’s earlier instructions. P.W.4 secured the presence of mediators P.W.3 and another. Thereafter Ex.P4-pretrap mediators report was prepared. At about 12.00 noon all of them started from A.C.B. Office and reached Engineering College campus at 1.30 P.M. and the trap party took vantage position. Then P.W.1 entered R.I.C.. The appellant and some other office staff members were present there. On seeing P.W.1, the appellant asked P.W.1 whether he brought the demanded amount. Then, P.W.1 replied in affirmative way and took out the wad of Rs.500/- currency notes and gave to the appellant with his right hand and the appellant received it with his left hand and kept the same in his left side shirt upper pocket. P.W.1 then submitted copies of his certificates to the appellant and the appellant told P.W.1 that he would be sent as an Apprentice to A.P. Paper Mills, Rajahmundry. Then P.W.1 came out and gave the pre-arranged signal. On seeing the signal, P.W.4 and his staff rushed into the office of the appellant. The hand fingers of the appellant were subjected to sodium carbonate solution test under M.Os.3 and 4. The test conducted on right hand fingers gave negative result and the test conducted on left hand fingers gave positive result for the test. Then P.W.4 seized the tainted amount of Rs.500/- and the shirt of the appellant. The inner lining of left side upper shirt pocket of the shirt of the appellant, when subjected to sodium carbonate solution test, gave positive result under. Thereafter, Ex.P8-post trap panchanama was prepared in the presence of mediators P.W.3 and another. P.W.4 examined and recorded the statements of P.W.1, 2 and others. Thereafter P.W.4 handed over the case file to P.W.5-Inspector for further investigation, who obtained Ex.P9-sanction orders and after completion of investigation, laid the charge sheet. 3. The charges framed against the appellant are as follows: “FIRSTLY, That you, Mudunuri Bapiraju, being a Public Servant i.e. Junior Assistant Apprentice Adviser in the office of the Principal/Assistant Apprentice Adviser, Government Related Institutional Classes Centre, Kakinada, East Godavari District, on or about 18th day of February,1998 at about 1.15 P.M. in your office room, accepted or obtained a sum of Rs.500/- from one Pulla Sesharao, a resident of Sarpavaram village, who passed I.T.I., for yourself as gratification other than legal remuneration as a motive or reward to show official favour in recommending his name for apprentice to any company in the exercise of your official functions and thereby committed an offence punishable Under Section 7 of the Prevention of Corruption Act, 1998 and within my cognizance: SECONDLY, That you, Mudunuri Bapiraju, at the same time and place stated supra, by means of Corrupt or illegal means or by otherwise abusing your position as such public servant obtained for yourself pecuniary advantage to an extent of Rs.500/- from one Pulla Sesharao of Sarpavaram village who has passed I.T.I and thereby committed an offence specified Under Section 13(1)(d) of the Prevention of Corruption Act,1988 punishable Under Section 13(2) of that Act and within my cognizance.” When the charges were read over and explained to the appellant, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws. 1 to 5 and got marked Exs.P1 to P11, besides case properties M.Os. 1 to 8. 5. After closure of prosecution evidence, when the appellant was examined under Section 313 Cr.P.C. with reference to the incriminating material appearing against him in the evidence of the prosecution witnesses, he denied the same. On behalf of the accused, D.W.1 was examined and Exs.D1 to D10 were marked. 6. The trial Court, accepting the evidence of prosecution witnesses, found the appellant guilty of the offences under Sections 7 and 13(1) (d) read with 13(2) of the Prevention of Corruption Act, 1988, accordingly convicted and sentenced him as above. Challenging the same, the present appeal is preferred by the appellant/accused. 7. Now, the point for determination is whether the prosecution proved the guilt of the appellant/accused for the charges under Sections 7 and 13(1) (d) read with 13(2) of the Prevention of Corruption Act, 1988 ? 8. The learned senior counsel Sri C.Padmanabha Reddy, appearing for the appellant contended that, it the case of the prosecution that P.W.1 met the appellant for the first time on 17.2.1998, but the voluminous documents Exs.D6 to D10, show that the appellant was present in A.P. Paper Mills, Rajahmundry for conducting resurvey work along with D.W.1, and therefore the question of demanding any bribe from P.W.1 on 17.2.1998 at Kakinada by the appellant does not arise, and so the allegation that the appellant demanded Rs.500/- on 17.2.1998 is improbable and appears to be false; that, except the solitary testimony of P.W.1, there is no other evidence to show that the appellant demanded gratification other than legal remuneration as motive or reward for showing any official favour; that the machinery of A.C.B. has been used by P.W.1 to get apprenticeship and as a matter of fact, he got apprenticeship in the company after the trap, out of seniority. The learned senior counsel further contended that, on the date of the incident, when P.W.1 offered the amount of Rs.500/-, the appellant refused to take the amount and P.W.1 thrusted the amount into his shirt pocket, and that is the reason why the left hand fingers and the inner lining of the shirt pocket of the accused, when subjected to sodium carbonate solution test, turned into pink colour; that, it is not for the accused to show as to why P.W.1 foisted the false case against him; that, as P.W.5 and P.W.1 belong to the same village, P.W.5 might have instigated P.W.1 to lay the false trap on the appellant, and in view of the above circumstances, P.W.1 cannot be put in the category of wholly reliable witness. Hence, he prays to set aside the convictions and sentences recorded against the appellant. 9. On the other hand, Sri V.Ravi Kiran Rao, the learned Counsel appearing for the A.C.B., contended that, there is absolutely no animosity or motive for P.W.1 to foist a false case of this nature against the appellant; that in the forenoon of 17.2.1998, the appellant was present in the office, and that unless the appellant demanded P.W.1 to pay Rs.500/- towards bribe, P.W.1 would not have lodged Ex.P1-complaint to P.W.4 on the same day at about 2.00 PM; that, the lodging of Ex.P1-complaint on the same day at about 2.00 PM indicates that the demand was made by the appellant prior to 1.00 PM on that day; that, the evidence of D.W.1 and the recitals in Exs.D6 go D10 would not clinchingly disclose that the appellant was present in A.P. Paper Mills, Rajahmundry from 9.00 AM to 5.00 PM, and that the alibi as pleaded by the appellant has not been established; that, the amount has been seized at the instance of the accused from his shirt pocket; that, even the appellant did not deny or dispute about the recovery of money; that, the trial court, after an elaborate consideration of the evidence on record, rightly placed implicit reliance on the evidence of P.W.1, and accordingly convicted and sentenced the appellant, and there are no grounds to interfere with the same. 10. The essential ingredients of Section 7 of the Act are: i. that the person accepting the gratification should be a public servant; ii. that he should accept the gratification for himself and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or dis-favour to any person. Insofar as Section 13 (1) (d) of the Act is concerned, its essential ingredients are: i. that he should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person. 11. In so far as the offence under Section 7 of the Act is concerned, the initial burden is on the prosecution to establish that the appellant demanded illegal gratification to show an official favour and received or agreed to receive the same. After discharge of the said burden only, the presumption under Section 20(1) of the Act can be drawn shifting the burden on to the appellant to rebut the same. 12. It is not in dispute that, P.W.1 passed a Certificate Course in Electronics, Mechanics in Srikanth Industrial Training Institute (I.T.I.), Thimmapuram in the year 1995, and till February, 2008, he cold not secure any job and he was idle. Therefore, he approached R.I.C., Kakinada, on 17.2.1998 at about 12.00 noon, and on enquiry, he came to know that the appellant was the Advisor, and so showed his certificates to the appellant and told him the purpose of his visit. On going through his certificates, the appellant demanded Rs.500/- as bribe for recommending his name for apprenticeship in any company. When P.W.1 expressed his unwillingness to pay that amount, the appellant stated that unless he paid that amount, his name would not be recommended. Not willing to pay that amount, he lodged Ex.P1- complaint with A.C.B. 13. As rightly pointed out by the learned senior counsel appearing for the appellant, with regard to demand, there is solitary testimony of P.W.1. When a case rests upon the evidence of a solitary witness, the law is well settled that it must be unimpeachable, true, trustworthy, free from doubt and must be put in the category of ‘wholly reliable’. Then only such evidence needs no corroboration. When the evidence of a witness is put in the category of ‘wholly reliable’, then only there is no legal bar to base conviction on the solitary testimony of the witness. When the evidence of witness is neither wholly reliable nor wholly unreliable, then such evidence requires corroboration. On this aspect, it is pertinent to refer to a decision in VADVIVELU THEVAR V THE STATE OF MADRAS , wherein it was held thus: (para 10) “Generally speaking oral testimony in this context may be classified into these categories, namely: i. Wholly reliable ii. Wholly unreliable iii. Neither wholly reliable nor wholly unreliable In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach on suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.” Bearing the above principles in mind, it has to be seen whether P.W.1 is wholly reliable witness or not. 14. P.W.1 is totally a stranger to the appellant. Even he did not apply for apprenticeship on his own accord after passing the Certificate Course in I.T.I. 1. It is the specific case of P.W.1 that he never met the appellant prior to 17.2.1998, and for the first time, he met the appellant on 17.2.1998 in morning hours. Though it is suggested to him that prior to 17.2.1998, he met the appellant for recommending his name for apprenticeship in any company and the appellant refused to recommend his name on the ground that list of candidates for apprenticeship would be sent as per seniority, except mere suggestion, there is absolutely no evidence to show that P.W.1 met the appellant prior to 17.2.1998. Mere hurling a suggestion is not evidence. Therefore, the contention that P.W.1 met the appellant prior to 17.2.1998 is not substantiated with any other evidence. Further, as per the evidence of P.W.1, the alleged demand was made at 12.30 noon on 17.2.1998. But, as per Ex.D4-admissible portion of earlier statement made by P.W.1 to police, it would go to show that he met the appellant at 11.00 AM. Admittedly, Ex.P1-report was received by P.W.4 on the same day at about 2.00 PM at Kakinada. Though there is slight variation with regard to the time of meeting the appellant in the earliest version recorded by the police and the evidence of P.W.1, at the same time, it can be inferred from the facts and circumstances of the case that P.W.1 must have met the appellant in the forenoon i.e. prior to 2.00 PM. So, it is clear that prior to 2.00 PM, there was possibility for P.W.1 to meet the appellant. 15. The suggestions given to P.W.1 are that he lodged the false complaint against the appellant so as to get the apprenticeship out of seniority and that A.C.B. officials instructed him to forcibly thrust the bribe amount in case the appellant refused to receive the amount, and that he knew very well one of the Inspectors C.Ramarao (P.W.5), who was his neighbour, and he actively helped him in lodging the report and he utilized services of P.W.1 in getting the appellant illegally trapped. Except giving these suggestions, there is absolutely no reason attributed to P.W.1 to entertain grouse or enmity against the appellant. No doubt, one of the Inspectors C.Ramarao (P.W.5) and P.W.1 were residing in the same village. But, at the same time, P.W.5 has also no grouse or enmity against the appellant so as to make use of services of P.W.1 in laying the false trap against the appellant. Therefore, in the absence of any bitter grouse or enmity, P.W.1, who was a student at that time, would not have gone to the extent of giving evidence to accommodate the Anti Corruption Bureau in the case of false trap. 16. On this aspect, the learned counsel for the appellant relied on a decision in Paire Dusadh & others v. Emperor, wherein it is held thus: “.. Once a witness has been found to be wholly unreliable it is unsafe to place any reliance upon any part of his testimony. It should not be open to the prosecution to pick out a bit here and a bit there from the evidence of a witness whom they themselves are not willing to accept as a witness of truth, and to use these salvaged bits, from testimony which is otherwise contaminated, to bolster up their case against particular accused persons. The gist of the learned High Court Judge’s finding on the whole case is contained in the observation that there was really no explanation why anybody should have invented a false case against the appellants. This is not in our opinion a justifiable point of view to adopt in a case like the present where the prosecution evidence was found to be largely false and riddled with defects and contradictions. The prosecution having failed completely to establish the guilt of the appellants by good and reliable evidence, it was not for the appellants to explain why their names had been mentioned by the prosecution witnesses as persons who had participated in the riot.” It is a case where Their Lordships came to conclusion that the witness was wholly unreliable. Even in view of the decision in VADVIVELU THEVAR case (1 supra), when the evidence of a witness is to be in the category of wholly unreliable, there is no difficulty in rejecting his evidence. In the case on hand, there are no circumstances to vindicate that P.W.1 can be put in the category of neither wholly reliable nor wholly unreliable. He appears to be a truthful witness and in the absence of any animosity or grouse against the appellant, there is no reason for him to foist a case of this nature laying a false trap against the appellant, if really the appellant had not demanded any amount from him. So, the evidence of P.W.1 is to be accepted as true and trustworthy. 17. The evidence of PW.3, who is mediator, and the evidence of P.W.4-who is trap laying officer, would clearly go to show that M.O.5- tainted currency notes were seized from the possession of the appellant. P.W.3 is totally an independent mediator. Their evidence would go to show that when the left hand fingers and the inner lining of left side upper shirt pocket of the appellant were subjected to sodium carbonate solution test, the solution in tumblers turned into pink colour, suggesting that the appellant received the amount. Therefore, their evidence, coupled with the objective findings in Ex.P8-post trap proceedings, would clearly reveal that the appellant accepted the tainted currency notes. Therefore, in the above circumstances, it can be said that the prosecution proved its case beyond reasonable doubt for the offence punishable under Section 7 of the Act. 18. Now, the burden shifts on to the accused under Section 20 of the Act, to rebut the same. The words ‘unless contrary is proved’ in Section 20 of the Act indicates that there must be plea and proof with regard to that aspect. The law is well settled that mere explanation of the accused is not sufficient to rebut the presumption under Section 20 of the Act. To substantiate his defence, the appellant examined D.W.1-who was working as Training Officer in A.P. Paper Mills, Rajahmundry. His evidence shows that resurvey work was taken up in the Paper Mills on 17.2.1998 and the appellant attended the Mill on that day in between 10.00 and 11.00 AM for resurvey work and Exs.D8 to D11 are the documents which are relating to resurvey work. According to him, the survey and resurvey work once conducted will not be conducted again in close succession. His evidence is silent with regard to the previous survey and resurvey. He admitted that Exs.D8 to D10 do not disclose as to who was present in A.P. Paper Mills, Rajahmundry, and from what time to what time. These documents appear to have been filed for the first time in the court when D.W.1 was summoned. Though these documents appear to have been signed by D.W.1 on 17.2.1998, they do not indicate that from what time to what time the appellant was present in the A.P. Paper Mills at Rajahmundry. No doubt, the burden placed on the appellant to rebut the same, is not so heavy than the one lies on the prosecution, but the appellant must show the same by preponderance of probability. Except the oral testimony of D.W.1, there is no other documentary evidence to show that the appellant was present in A.P. Paper Mills, Rajahmundry in the forenoon of 17.2.1998. 19. It is also not out of place to mention that the distance between Rajahmundry and Kakinada can be covered by 1 ½ hours as seen from the evidence of P.W.2, who was the Principal of R.I.C. at the relevant point time of the incident. His evidence would go to show that on 17.2.1998 and 18.2.1998, the appellant signed in the Registers. His evidence would also go to show that the appellant was in the habit of going to inspection for conducting survey and resurvey for about 22 days in a month. His evidence also discloses that the appellant used to sign in Attendance Register and go to survey duties and again return to office after the duty, and that, after return from the survey duty, the appellant had to submit a report to him with regard to survey conducted in various companies. It is in his evidence that, Ex.P11 is original communication with enclosed tour programme of appellant for the month of February, 1998, and he admitted that Ex.P11 did not disclose that the appellant went to A.P. Paper Mills either on 17.2.1998 or 18.2.1998 and that, the appellant did not obtain permission from him for going on tour to Rajahmundry either on 17th or 18th February, 1998 on the above mentioned dates. It is not in dispute that Ex.P11 was signed by P.W.2 after due verification of the records in his office with reference to tour diary. Therefore, the evidence of P.W.2, who was the Principal of R.I.C., Kakinada at the relevant point of time of the incident, would clearly go to show that the appellant was not on tour at Rajahmundry either on 17.2.1998 or 18.2.1998. Even assuming for a moment that the appellant was on survey duty on 17.2.1998, it was not an impossible task for him to go to A.P. Paper Mills situated at Rajahmundry in the afternoon. So, the presence of the appellant in the office at Kakinada in the forenoon of 17.2.1998 cannot be shown to be impossible. 20. Further more, the crux of the case with regard to absence of the appellant from the early hours of the day on 17.2.1998 in Kakinada on other duty would be best established by producing the movement register. That Register would disclose at what point of time the appellant left the office at Kakinada. P.W.2 has categorically stated that movement registered was being maintained for the staff members to note about the movements of the staff. Had that register been produced or summoned by the appellant, it would have clinchingly shown at what time he left Kakinada to Rajahmundry for conducting survey and resurvey work with regard to ascertaining apprenticeship particulars in A.P. Paper Mills. In view of the fact that the burden lies on the appellant, it is for him to establish the same. But, that document has not been summoned for the reasons best known to the appellant. The plea of alibi postulates that it was not possible for the appellant to be