THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1908 of 2004 Date: 01st July, 2011 Between: Vemula Radha Krishna Murthy (A-2) … Accused / Appellant And: State – rep., by ACB … Respondent / Complainant THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1908 of 2004 JUDGMENT: The State represented by Anti Corruption Bureau (ACB), Vijayawada range, filed charge sheet in C.C.No.7 of 1995 on the file of Special Judge for SPE & ACB Cases, Vijayawada against two individuals who are arrayed as A1 and A2. After framing of charges by the lower Court, A1 died and so the case against A1 stood abated in the lower Court. A2 alone faced trial in the lower Court. After trial, the lower Court convicted A2/appellant for the offences under Section 7 of the Prevention of Corruption Act, 1988 (in short, the Act) read with Section 34 IPC, Section 13(1)(d) & 13(2) of the Act read with Section 34 IPC, Section 13(1)(a) of the Act read with Section 34 IPC and Section 12 of the Act and sentenced him to Simple Imprisonment for one year and fine of Rs.1000 on the above four counts separately. Questioning the convictions and sentences passed against him, A2 filed this appeal. A1 was working as Civil Surgeon, Resident Medical Officer (RMO), Government General Hospital, Guntur and A2 was working as Attender with A1 in the same hospital. Several candidates were selected as police constables in Andhra Pradesh Special Police force (APSP) in VI Battalion, Mangalagiri. They were scheduled to be inducted into service after medical examination and the schedule for medical examination was fixed from 16.05.1994 to 19.05.1994. The selected candidates were taken to Government General Hospital, Guntur for medical certification in batches. It is alleged that when PW1- Reserve Inspector of Headquarters of the battalion took first batch of candidates to A1, A1 demanded bribe of Rs.120/- per candidate, out of which amount Rs.100/- was meant for himself and Rs.20 was meant for A2 and that A1 directed payment of bribe to A2 and that even though there was resistance from PW.1 for payment of bribe, A1 refused to proceed with the medical check-up of the candidates unless the demanded amount is paid and that having no other go, PW1 conveyed the same to the candidates who reluctantly agreed for the said payment, and that the demanded bribe amount was accordingly paid to A2, who divided the same into two parts, one for himself at the rate of Rs.20/- per candidate and the other for A1 at the rate of Rs.100/- per candidate. With the said allegations, PW1 gave Ex.P1-report to PW.10-Deputy Superintendent of Police, ACB, Vijayawada on 16.05.1994. It is alleged that payments of bribe per candidate were accordingly made on 16.05.1994, 17.05.1994 and 18.05.1994. PW.10 organized trap for the accused on 19.05.1994 in the presence of mediators including PW.8. PW.8 was the then Deputy Commercial Tax Officer, Guntur. Before proceeding for the trap, pre- trap procedures were conducted on 19.05.1994 under the cover of Ex.P2-mediators report. It is alleged that the trap was successful and A2 was caught red-handed with tainted cash of Rs.960/- divided into two parts of Rs.800/- and Rs.160/- in two different pockets. Plea of A2 is one of not guilty. He contended that MO.3-tainted cash of Rs.960/- was thrusted into his two pockets by PW.3 during the trap. The lower Court, after trial, came to the conclusion that the prosecution has proved guilt of A2 on all the charges, and rejected the defence raised by A2. In this appeal, it is contended by the appellant’s counsel that even as per the prosecution case, there was no demand for any bribe by A2 and that even if recovery of MO.3-tainted cash from A2 is said to be proved, it would not amount to any offence under Section 7 or Section 13 of the Act, in the absence of proof of demand on the part of A2. It is further contended that A2 being a last grade servant and subordinate of A1, followed the instructions of A1 without any guilty mind on his part. The lower Court held that there was common intention on the part of A2 also in A1 demanding for bribe amount because the said demand for bribe was made by A1 in the presence of A2. It is pointed out by the appellant’s counsel that neither in Ex.P1-report nor in the statement of PW.1 recorded by the investigating officer under Section 161(3) Cr.P.C., PW.1 stated about the presence of A2 at the time of A1’s demand for bribe of Rs.120/- per candidate, out of which amount Rs.100/- was meant for himself and Rs.20/- was meant for A2. PW.1 deposed in examination-in-chief that at the time of demand, A2 who was Dafedar, was present by the side of A1. In cross-examination, PW.1 deposed that A2 never made any demand to pay the bribe amount. He admits that neither in Ex.P1 nor in his statement under Section 161(3) Cr.P.C., he stated about the presence of A2 when A1 demanded to pay Rs.100/- to himself and Rs.20/- to A2 for conducting medical check-up of the candidates. Even though presence of A2 along with A1 is absent in Ex.P1-report as well as in the statement of PW.1 recorded during investigation under Section 161(3) Cr.P.C., it is to be seen whether there is any other material on record to show presence of A2 when A1 was making the demand for bribe. It is further evidence of PW.1 that when the candidates expressed their willingness reluctantly to pay the demanded bribe amount, PW.1 conveyed the same to the accused and that A1 demanded to pay the amount and that when the Head Constable offered to pay Rs.4,000/- and odd to A1, A1 instructed the Head Constable (PW.2) to hand over the said amount to A2 and that A2 received the amount, counted the same and divided his share and share of the Doctor and kept two bundles in his shirt pocket. On 16.05.1994, 35 candidates were taken to the hospital for medical examination; on 17.05.1994, 33 candidates were taken for medical examination; on 18.05.1994, 34 candidates were taken for medical examination; and on 19.05.1994, 8 candidates were taken for medical examination. PW.1 further deposed that on 17.05.1994 when he and the Head Constable met A1, he asked whether they brought the amount with the candidates and when he stated in the positive, A1 asked him to pay the bribe amount of Rs.120/- per candidate to A2 and that PW.2 paid the amount to A2, and A2 counted, divided share of A1 and his share and kept two bundles in his shirt pocket. It is further evidence of PW.1 that on 18.05.1994, A1 asked him and the Head Constable (PW.3) to hand over the bribe amount to A2 and that PW.3 paid the amount at the rate of Rs.120/- per candidate and that A2 received the said amount, counted the same, divided into two bundles, one for himself and another for A1 and kept the same in his shirt pocket. On the date of trap on 19.05.1994, it is evidence of PW.1 that he and PW.3 entered into A1’s chambers and found A1 and A2 in the office room of A1 and that when he informed about bringing 8 candidates for medical examination, A1 enquired whether he brought the amount relating to 8 candidates and that when he showed the amount, A1 asked him to pay the same to A2 and that accordingly he handed over the tainted amount of Rs.960/- to PW.3, who in turn handed over the same to A2 and that A2 received the amount, counted the same and divided it into two shares, one for himself and another for A1 and kept one portion of amount in his shirt pocket and the remaining amount in back pocket of his pant. Even though it is pointed that there was omission on the part of PW.1 to state about the presence of A2 along with A1 on 16.05.1994, there was no such omission pointed out from the record, relating to demand of bribe by A1 in the presence of A2 on 19.05.1994. On 19.05.1994, A1 after ascertaining about bringing bribe amount in the presence of A2, asked PW.1 to pay the bribe amount to A2. It is evidence of PW.2 that on 16.05.1994, A2 was sitting on stool in front of A1’s room and that he handed over collected amount of bribe to A2, who received the said amount and kept it in his pocket. It is his further evidence that on 17.05.1994, the attender/A2 was found sitting in a small room adjacent to A1’s room, and that he went to A2 and paid the collected amount of bribe to him. In cross-examination, PW.2 deposed that A2 can easily hear the demand made by A1 as he was sitting close to the room of A1. It is evidence of PW.3 that on 16.05.1994, he and PW.1 approached A1 and informed him about bringing candidates for medical check up and that A1 demanded to pay Rs.120/- per candidate for making medical check-up. He says that after collecting the amount from the candidates, the said amount was paid to A2 who was along with A1. On the date of trap, it is evidence of PW.3 that A1 demanded to pay the amount for examining the candidates and that PW.1 took out Rs.960/- which is tainted cash and gave the same to him and that he took it and handed over to A2 in the office room of A1, and that A2 received the amount and kept the same in his pockets. In cross-examination, he deposed that on 16.05.1994, though he accompanied the candidates to the hospital, he did not go into the chambers of A1. PWs.4 to 7 are the candidates who were examined by A1 for medical certification on 16.05.1994, 19.05.1994, 17.05.1994 and 18.05.1994 respectively. They speak about PWs.1 and 2 conveying the demand of A1 for bribe amount at the rate of Rs.120/- per candidate, out of which amount Rs.100/- was for the Doctor and Rs.20/- was for the attender as bribe and about they paying the demanded bribe amount reluctantly. In spite of there being omission in Ex.P1-report and in statement of PW.1 recorded under Section 161(3) Cr.P.C., there is other material on record as indicated above which undoubtedly indicate the presence of A2 in and around A1 when A1 demanded bribe amount for himself and for A2. In the light of the said evidence, the lower Court rightly found that the demand for bribe for himself and for A2 was made by A1 with common intention of A2. Simply because A2 happened to be a subordinate of A1, A2 is not expected to carry out any illegal or criminal directions of A1. Unless A2 is also a party to the criminal intention of A1 to collect bribe amount for himself and for A2, A2 would not have been a party for collection of bribe amounts for himself and for A1. It is contended that there was no official favour pending with A2 because it was A1 who has to make medical check-up and who has to give medical certificates to the candidates. PW.1 deposed in cross-examination that it was A2 who was distributing the certificates to the candidates after A1 completed medical check-up and signed the medical certificates. Unless the demanded bribe amount is received by A2, there may not be any possibility of A2 handing over the medical certificates signed by A1 to the candidates. Therefore, it cannot be said that there was no official favour pending with A2 in this case. Insofar as the plea of thrusting of tainted cash into two pockets of A2 is concerned, it is no basis in Ex.P10- mediators report relating to post-trap proceedings. It is contended by the Special Public Prosecutor that during post-trap proceedings covered by Ex.P10 which is certified by PW.8-mediator and PW.10-trap laying officer, A2 admitted the entire facts relating to receipt of tainted cash and the purpose for which the tainted cash was received, and that the said statement which is in the nature of spontaneous reply given by A2 would be admissible under Section 8 of the Evidence Act. In my opinion, the said statement of A2 is inadmissible in evidence as it is in the nature of a confession made by A2 to the police officer or in the presence of police officer, and it is inadmissible under Section 26 of the Evidence Act. Section 26 of the Evidence Act prevails over Section 8 of the Evidence Act. At best, the statement of A2 contained in Ex.P11-post-trap proceedings becomes relevant to the limited extent of noting the omission of A2 in taking up theory of thrusting the tainted cash into his pockets, at the earliest point of time. PW.3 denied having thrusted any amount into the pockets of A2. Out of MO.3-tainted cash of Rs.960/-, Rs.800/- was found in back pocket of A2’s pant whereas Rs.160/- was found in front shirt pocket of A2. In the case of any planting or thrusting of cash, there cannot be two thrustings of tainted cash in two different pockets of A2 which are in two different directions of his body. Even if any amount was thrusted into his pocket, nothing prevented A2 to discard the said thrusted material from out of his pocket or pockets. Instead, A2 retained two wads of cash in two pockets until the trap party entered and seized the same from his possession. On re-appraisal of the entire evidence on record in this appeal, I have no hesitation to come to the conclusion that the lower Court ultimately came to a right conclusion in favour of the prosecution on all the charges framed against A2/appellant. There can be no doubt of the fact that A2 not only intentionally aided in collection of bribe by A1, but also had common intention with A1 in sharing the bribe amount at the rate of Rs.100/- for A1 and at the rate of Rs.20/- for A2, per candidate and that A1 and A2 doing the said corrupt activity as a matter of habit. I do not find any valid reasons to come to a different conclusion from that of the lower Court, in this appeal. In the result, the appeal is dismissed. __________________________________ SAMUDRALA GOVINDARAJULU,J 01st July, 2011 KSM