THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No. 855 of 2004 Date: 07th June, 2011 Between: Dr. P. Narasimham … Accused-Petitioner A n d State rep. by The Inspector of Police … Respondent-Complainant THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No. 855 of 2004 JUDGMENT: The appellant/accused was working as Professor and Chief of Orthopedics in Government General Hospital, Guntur. By Judgment dated 29.03.2004, the Special Judge for SPE & ACB Cases, Vijayawada, in C.C.No.4 of 1995, convicted him for the offences under Sections 7 and 13(1) (d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act) and was sentenced to rigorous imprisonment for one year and fine of Rs.1,000/- on both the counts separately. PW.2 is brother-in-law of the de facto complainant PW.1. PW.2 suffered injuries on head and both upper limbs in motor accident on 29.06.1994. PW.2 was treated initially in Government Hospital, Ongole. Subsequently, PW.2 was shifted to Government General Hospital, Guntur for better treatment on 30.06.1994. PW.2 was not in consciousness because of head injury. In Guntur hospital PW.2 was admitted as an in-patient in Neuro ward headed by PW.9 who is Neuro Surgeon and chief of Neuro department in that Hospital. On 06.07.1994, the patient was referred to Ortho-III Unit of the accused. On 06.07.1994, the accused examined PW.2. It is alleged that after examining PW.2 on 06.07.1994, the accused asked PW.1 who was attending on the patient to meet him and that when PW.1 met the accused, the accused demanded Rs.500 as bribe for giving better treatment to the patient, and that PW.1 expressed his inability to pay the bribe amount and went away. It is further alleged that in spite of referral from 13.07.1994 to 16.07.1994, the accused did not go to neuro ward for reviewing the condition of PW.2, and that on 17.07.1994, PW.1 met the accused in his room and requested him for better treatment to his brother-in-law and that the accused demanded bribe of Rs.500 and subsequently reduced the same to Rs.300 on the request of PW.1. It is the prosecution case that PW.1 met the Inspector of Police, Anti Corruption Bureau (ACB) (PW.11) on 17.07.1994 and gave Ex.P1-Report to him. Deputy Superintendent of Police, ACB, Vijayawada arranged the trap to the accused through PW.1 on 20.07.1994. It is alleged that the trap was successful and the accused was caught red-handed while in possession of MO.1-tainted cash of Rs.300/-. Ex.P10 is the mediators report relating to pre-trap proceedings and Ex.P13 is the mediators report relating to post-trap proceedings. PWs 7 and 8 were the mediators in Exs. P10 and P13. Plea of the accused is total denial and one of not guilty. Under Ex.P13-post trap proceedings, the tainted cash MO.1 was recovered from possession of the accused, and the accused gave spot explanation to the trap laying officer to the effect that he noticed MO.1-cash on his table and that he did not know who put the said currency notes on his table and that he picked up the said currency notes and put the same in his left pant pocket with an intention to return the same to the person who kept the currency notes after verification. He added that he did not demand or accept any bribe amount from any person. The lower Court, after trial, found favour with the prosecution and held the accused guilty of the charges under Sections 7 and 13(1)(d)/13(2) of the Act. It is contended by the Senior Counsel appearing for the appellant/accused that expect the evidence of PW.1, there is no evidence in support of the prosecution corroborating his version and that PW.1’s evidence is highly improbable and inconsistent with the record and that he is not a trustworthy witness and that the lower Court erred in accepting his version without any corroboration. According to the accused, false case was foisted on him because of disputes in the department on the basis of caste. PW.9 is Brahmin by caste, whereas the accused is Kamma/Choudhary by caste. It is contended that because of caste rivalry in the department, the accused was made scapegoat in this case through PW.1. It is further contended that one Koti Nagaiah was one of the persons who was behind the entire episode. PW.1 in his cross- examination denied any acquaintance for him with Koti Nagaiah. Whereas, PW.2 in his cross-examination deposed that Koti Nagaiah is his brother-in-law by courtesy and that the said Koti Nagaiah was undergoing House Surgeonship in the same hospital during that time and that Koti Nagaiah is also related to PW.1. PW.1, for the sake of this case, denied his acquaintance as well as his relationship with Koti Nagaiah. Even though there is no direct evidence with regard to caste rivalry in the department/hospital, one has to see whether there is any indication on record with regard to bitterness between the two departments, viz., Neuro department and Ortho department in that hospital. For the said purpose, examination of Ex.P3-case sheet of the patient-PW.2 becomes necessary. Even though several entries in Ex.P3-case sheet were marked as further exhibits by the lower Court, I propose to consider the case sheet- Ex.P3 as such with reference to the date-wise entries and without reference to further exhibits marked therein. PW.3 is the Assistant Surgeon in Neuro department working along with PW.9. PW.3 as well as PW.9 gave details of various entries contained in Ex.P3-case sheet of PW.2. On 06.07.1994, Neuro department addressed to the Assistant Surgeon, Ortho Unit-III unit, requesting him to kindly come over to Neuro Surgery Unit-Head Injury ward to review this case. Dr. K.Dharma Rao who is the Assistant Surgeon in Ortho-III ward working along with the accused received the said requisition contained in the case sheet and acknowledged the same on the same day. There are entries in the case sheet on 06.07.1994 itself to the effect that the accused who is Chief of Ortho-III unit went to Neuro Surgery ward and reviewed the patient-PW.2. Ex.P3 further shows that on 07.07.1994 also the accused reviewed the patient and applied bandage to him and gave necessary treatment and instructions. It is the evidence of PW.1 that after attending on his brother-in-law on 06.07.1994, the accused asked him to meet in his room and that as per his instructions, he met the accused in his room, and that the accused informed him that for treating his brother-in-law he has to pay Rs.500/- as bribe to him, and that he informed the accused that he already spent huge amount on his brother-in-law and that he cannot pay the demanded bribe amount, and that the accused informed him that if he pays the amount, he would give better treatment to his brother-in-law. PW.1 further deposed that on the second day the accused came and dressed the wounds of his brother-in-law and that he suspected that the accused did not apply bandage properly, and that two days thereafter the bandage became loosened and that after observing the condition of the bandage, PW.9 referred the case sheet to Ortho ward on 13.07.1994 and that in spite of it no Doctor attended on his brother-in-law. It is further evidence of PW.1 that on 17.07.1994, he went to Ortho ward and met the accused in the verandah attached to the Ortho ward and that on seeing him, the accused enquired whether he brought the demanded bribe amount and that he requested the accused several times and in spite of it, the accused informed that he would not treat his brother-in-law unless he pays the demanded bribe amount and that when he expressed his incapacity to pay the demanded bribe amount of Rs.500/-, the accused asked him to pay at least Rs.300/- as bribe amount or otherwise he would not attend on his brother-in-law, and that he agreed to pay Rs.300/- and that as he was not willing to pay the bribe amount, on the same evening he met the Deputy Superintendent of Police, ACB, Guntur and gave report. Either on the date of 1st demand on 06.07.1994 or on the date of 2nd demand on 17.07.1994, even according to evidence of PW.1, none else was present. There is only evidence of PW.1 for proof of the demands on 06.07.1994 and 17.07.1994. After 07.07.1994, there is no referral by Neuro ward to Ortho ward as per Ex.P3 until 13.07.1994. If there was any defective bandage or loosening of bandage for the wounds of PW.2 two days after 07.07.1994, PW.9 would have noted the same in the case sheet and would have requisitioned Ortho doctors to review PW.2’s condition. On 13.07.1994, there is reference to Ortho-III unit. It is noted as 1st referral. There was no need to note in the case sheet that it was the 1st referral. There is no acknowledgement from Ortho-III unit about receipt of this referral on 13.07.1994. On 14.07.1994, 2nd referral was endorsed on the case sheet, on 15.07.1994, 3rd referral was endorsed on the case sheet, on 16.07.1994, 4th referral was endorsed on the case sheet. For all the referrals noted in the case sheet from 13.07.1994 to 16.07.1994, there is no corresponding acknowledgment from Ortho unit. The prosecution examined PW.6-Male Nursing Orderly working in that hospital, intending to prove that the referrals noted in the case sheet-Ex.P3 from 13.07.1994 to 16.07.1994 were communicated to Ortho-III unit. But PW.6 did not support the prosecution in toto. According to PW.6, in July, 1994, he took the case sheet and showed one endorsement to the accused and on seeing the same, the accused informed him that he would send a doctor for treatment of the patient. On second occasion, according to PW.6, he showed the case sheet to Dr. K. Dharma Rao. But in none of the referrals from 13.07.1994 to 16.07.1994, PW.6 obtained any acknowledgment of either the accused or that of Dr.K.Dharma Rao about noting the said referrals. There is practice of noting acknowledgment of the referrals in the case sheet and it is evident from the referral made on 06.07.1994, which was acknowledged by Dr.K.Dharma Rao on the same date and the said referral was complied with by Dr. Dharma Rao as well as the accused reviewing PW.2’s condition. In view of possibility of obtaining acknowledgment and in the absence of obtaining factual acknowledgment on the referrals in Ex.P3, the evidence of male nursing orderly-PW.6 cannot be taken on its face value. PW.6 in cross-examination deposed that if the doctor after going through the referral endorsement did not initial, then he has to report the same to the Superintendent of the hospital. PW.6 admits that in this case he did not report anything against either the accused or Dharma Rao for not initialing on the case sheet. In spite of four endorsements of referrals in the case sheet and in spite of the alleged non-compliance of said referrals by the Ortho unit, PW.9 also did not take any further steps in respect of doctors from Ortho unit not attending on the patient and not reviewing the condition of PW.2. It is contended by the senior counsel for the appellant that the fact that the neuro unit noted the referrals from 13.07.1994 to 16.07.1994 as 1st referral, 2nd referral, 3rd referral and 4th referral indicates that because of the rivalry in the hospital on caste basis, PW.9 intended to create unilateral ground for taking action against the accused. It is further contended that the referral entries from 13.07.1994 to 16.07.1994 were subsequently interpolated by PW.9 and that this conclusion is inevitable because PW.9 did not take any further steps after 13.07.1994 when the 1st referral was not complied with by Ortho-III unit. Undoubtedly, the unilateral referrals from 13.07.1994 to 16.07.1994 indicate that there was bitterness between the two departments or its heads/chiefs. The said bitterness between the two unit heads or between the two units resulted in sufferance to the patient PW.2. Perhaps, it irked PW.1 who was attending on PW.2 in the hospital and made him to take drastic action against the accused who was the Chief of Ortho-III unit. There is also possibility of PW.2’s relation Dr. Koti Nagaiah involving in the matter and associating with PW.1 at the instance of PW.9 who is head of neuro surgery unit. In the light of bitterness between two units in the Government General Hospital, Guntur and the possibility of PW.1 being employed in this case in view of the said bitterness, the evidence of PW.1 has to be further scrutinized. After completing pre-trap proceedings covered by Ex.P10-mediators report, PW.1, mediators and the trap laying officer along with his staff started at 10.30 A.M. on 20.07.1994 to the Government General Hospital, Guntur and reached there at 10.50 A.M. PW.1 deposed that he proceeded towards Ortho ward and reached there at 11.00 A.M. and that he found the accused in Ortho ward and that on seeing him the accused enquired as to whether he brought the amount of Rs.300/- and hat he informed the accused positively and that the accused asked him to bring the case sheet of his brother-in-law and that he went to the bed of his brother-in-law and brought the case sheet and handed over the same to the accused in his room in the ward and that the doctor took the case sheet and noted on it to transfer the patient to Ortho ward and that he took back the case sheet, went to neuro ward and showed the same to the persons in that ward and that on seeing the same, his brother-in-law was shifted to ortho ward. PW.1 says that after making necessary arrangements to his brother-in- law in ortho ward, he came out of the ward and that the accused was seen going into his room and that he also entered into the room of the accused and found the accused alone in the room and that on seeing him, the accused asked him to pay the demanded bribe amount and that he took out and offered to pay the bribe amount of Rs.300/- and that the accused asked him to keep the same on his table and that accordingly he kept the same on his table and that the accused took the currency notes with his left hand and kept the same in his left side pant pocket. Even for the alleged handing over of MO.1-tainted cash of Rs.300/- to the accused, except PW.1 there is no other evidence. Even though one Head Constable by name Shankar Rao was tried to be employed an accompanying witness to PW.1, Shankar Rao had chosen to remain at a distance from PW.1 and he did not enter into the room of the accused along with PW.1 at the time of alleged payment of MO.1-tainted cash by PW.1 to the accused. It is contended by the senior counsel that the entire evidence of PW.1 with regard to the events resulting in shifting of PW.2 from neuro ward to Ortho ward is contrary to the entries in Ex.P3-case sheet. Shifting of PW.2 from neuro ward to ortho ward was not initiated by the accused. It was initiated by the neuro unit only. On 20.07.1994, the neuro unit endorsed on the case sheet addressing the ortho surgeon unit-III to the effect that since the patient does not require any further head injury management, the patient may be taken by the ortho unit. Thereupon Dr. K. Dharma Rao of the unit of the accused endorsed on the case sheet on the same day to the effect that if there is no head injury prevailing, the case may be transferred to ortho- III unit. Thus, neither the accused initiated transfer of PW.2 from neuro ward to ortho ward nor the accused made either the initial endorsement or final endorsement on 20.07.1994 for transfer of the patient from neuro ward to ortho-III ward. Therefore, it is contended that the evidence of PW.1 to the effect that the accused after ascertaining about his bringing of bribe of Rs.300/-, endorsed on the case sheet that PW.2 should be transferred from neuro ward to ortho ward, cannot be correct. When PW.1 was seen by the accused on 20.07.1994 for the first time and when the accused ascertained from PW.1 about he bringing the bribe amount of Rs.300/-, nothing prevented the accused to receive the said amount from PW.1. Instead, he is said to have given several instructions to PW.1 to bring the case sheet of PW.2 from neuro ward and to take back the case sheet after his endorsement to neuro ward and to get PW.2 shifted from neuro ward to ortho ward. According to PW.1’s evidence, it is only after completion of shifting of PW.2 from neuro ward to ortho ward and after PW.1 attended to the requirements of PW.2 in ortho ward, PW.1 went into the room of the accused and paid the bribe amount to the accused. By the time when PW.1 is stated to have paid the bribe amount to the accused, it was 2.40 P.M. on that day. It is contended for the appellant that even though PW.1 and the trap party reached Government General Hospital by 10.50 A.M., PW.1 was waiting for an opportunity to plant tainted cash in the room of the accused upto 2.40 P.M. for nearly four hours. It is the explanation of the accused that when he went into bath room, in his absence, MO.1-tainted cash was placed on the table of the accused and when the accused returned from bath room, he found the cash and with an intention to return the amount to the person who placed the cash, the accused picked the cash and kept the same in his pant pocket. On the other hand, it is contended by the Special Public Prosecutor that the accused did not take up plea of there being caste rivalry in the hospital and among the doctors, at the initial stages an that such suggestions were given only during cross-examination of the prosecution witnesses. It is also contended by him that the accused did not put forward the said plea even in the spot explanation recorded in the post trap proceedings covered by Ex.P13. According to the accused, he was not aware as to who placed MO.1-cash on his table. If really the accused demanded the bribe amount and ascertained from PW.1 as to whether he brought the demanded bribe amount, the accused would have received the bribe amount in his room where he was alone. Instead, even as per PW.1’s evidence, the accused asked PW.1 to keep the said cash on the table and after PW.1 placing the cash on the table, the accused picked up the cash with his left hand and kept the amount in left side pant pocket. There is no possible explanation as to why the accused asked PW.1 to keep the cash on his table, particularly when there were no persons in the room of the accused. Having regard to the divergent versions noted above given by PW.1 in his evidence, which are contrary to record and even denying relationship, in my opinion ipse dixit of PW.1 should not have been taken on its face value by the lower Court. The lower Court should have sought for some corroboration from an independent source for the evidence of PW.1 in view of the state of affairs in which PW.1 deposed. In the absence of corroboration from independent source, in my opinion, evidence of PW.1 cannot be accepted on its face value. In my opinion, the lower Court could not read the solitary evidence of PW.1 in the light of the above attending circumstances which point out a doubting finger towards his evidence. In that view of the matter, I find that the prosecution is not able to prove successful laying of trap for the accused beyond shadow of doubt. Therefore, the accused is not liable to be convicted for the charges framed in the lower Court. In the result, the appeal is allowed, setting aside the conviction and sentence passed by the lower Court against the accused/appellant, and acquitting him. ___________________________________ SAMUDRALA GOVINDARAJULU, J Date: 07th June, 2011 KSM THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No. 855 of 2004 Date: 07th June, 2011 ksm