THE HON’BLE SRI JUSTICE R.KANTHA RAO. CRIMINAL APPEAL Nos. 1 and 6 of 2004. COMMON JUDGEMENT: These two appeals arise out of the Judgement passed by the learned Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad in C.C.No. 14 of 1999. Criminal Appeal No. 1 of 2004 is filed by Shaik Lal Ahemed (A.1) and Criminal Appeal No. 6 of 2006 is filed by Sarikonda Satyanarayana Raju (A.2). Since both the appeals arise out of the same Judgement and since common questions of fact and law would arise for consideration, I heard both the appeals together and do hereby dispose of them by this common Judgement. I have heard Smt.Y.Ratnaprabha the learned counsel appearing for the appellant in Crl.A.No. 1 of 2004 and Sri.Palle Nageshwar Rao, the learned Counsel appearing for the appellant in Crl.A.No. 6 of 2004 and the learned Special Public Prosecutor for ACB. The brief facts, which are relevant for considering the present appeals are that Pw.1 Khanna Madhusudhan Dass was running a video shop under the name and style of Sri Krishna Video Library at Nimboliadda, Hyderabad. On 4.1.1996, A.2 and Syed Nazir (Pw.5) who were the Constables of Kachiguda Police Station went to the video shop of Pw.1 and picked out four video cassettes namely Dilwale Dhulhaniya Lejayenge, Basic Instinct, Dead on and Another Women’s Lipstick and got displayed in the video shop itself and stated to Pw.1 that they are blue film cassettes and therefore he has to meet A.1 who was working as the Detective Sub-inspector of police, Kachiguda Police Station. On the same day when Pw.1 went to the police station and met A.1 and asked him to return the video cassettes, it is stated that A.1 demanded an amount of Rs. 10,000/- for not booking a case against him for possessing blue film cassettes and also for the purpose of returning the video cassettes seized. After persuasion, A.1 reduced the bribe amount to Rs. 5,000/- and insisted upon Pw.1 to pay the said amount immediately but by then Pw.1 was having only an amount of Rs. 2,000/- he paid the same amount to A.2 on the instructions of A.1 and thereafter A.1 let off Pw.1 with a demand to pay the balance amount of Rs. 3,000/-, within three days. Pw.1 who was not willing to pay the bribe, gave a report (Ex:P.1) to DSP, ACB (Pw.6) on 16.1.1996, who got laid the trap on the same day and according to the prosecution, the tainted currency notes of Rs. 3,000/- were recovered from the possession of A.2 who allegedly received the same from Pw.1 on the instructions of A.1. Both the appellants were tried by the learned Special Judge for SPE and ACB cases, Hyderabad for the offences punishable under Sections 7, 13 (1) (d) r/w Section 13 (2) of the Prevention of Corruption Act, 1988 read with Section 34 IPC and after completion of trial and after hearing the arguments on either side, the learned Special Judge convicted the appellants for the above mentioned offences and sentenced them to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1,000/-, in default of payment of fine, to undergo simple imprisonment for a period of one month each for the offence under Section 7 of Prevention of Corruption Act, 1988. The appellants were further sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/-, in default of payment of fine to undergo simple imprisonment for a period of one month for the offence under Section 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, 1988 read with Section 34 IPC while ordering both the sentences under two counts shall run concurrently. Aggrieved by the same, the appellants filed two separate appeals. It is contended on behalf of the appellants that the evidence of Pw.1 is highly inconsistent and suffers from material infirmities. Despite the fact that the testimony of Pw.1 is proved to be unworthy of credence, the learned trial court mainly rested on his evidence to record the conviction. It is further contended that the other evidence also suffers from material insistencies and improbabilities and therefore the learned trial court ought not to have convicted the appellants. On the other hand, the learned Special Public Prosecutor for ACB would submit that as the prosecution proved receiving of money by A.2 on the instructions of A.1, presumption can be drawn against the appellants under the provisions of the Prevention of Corruption Act and as the trial court rightly recorded conviction against the appellants, the same need not be interfered with in these appeals. Though Pw.1 stated in his deposition before the trial court about A.2 and Pw.5 taking away four video cassettes from his shop, thereafter A.1 demanding the amount, his paying Rs. 2,000/- in the first instance and A.1 further insisting upon him to pay the remaining amount of Rs. 3,000/-, his approaching to DSP ACB who laid the trap and in the course of which A.2 receiving tainted cash of Rs. 3,000/- on the instructions of A.1, his evidence does not inspire any confidence when it is examined basing on the probability factor. According to Pw.1, cassettes, which were seized, by A.2 and A.5 were displayed in his shop were not blue films cassettes. They were not recovered under any recovery panchanama and that the cost of each cassette will be around Rs. 100/- to 150/-. If that is so, there is absolutely no necessity for Pw.1 to pay bribe at the instance of A.1 since no case could be booked on that the ground that he was possessing and selling blue film cassettes. In his cross-examination on behalf of A.2, Pw.1 stated that A.2 did not demand any amount from him and that except on the date of trap proceedings, he did not see A.2 at any time and that A.2 does not know for what purpose he (Pw.1) was asked to pay Rs. 3,000/- to A.2 who was asked to receive it from him. This version clearly goes contrary to the case of the prosecution and also to the version of Pw.1 in Ex:P.1 lodged by him with Pw.6 and also to his evidence in chief examination. Thus, as rightly contended by the learned Counsel appearing for the appellants, it is quite unsafe to place reliance on the evidence of Pw.1. Pw.2 is a mediator and he was a member of the trap party. In Ex:P.4 the mediators report-2, it is clearly mentioned that after the trap was over when DSP called Pw.2 and examined him, he stated that he was standing outside when Pw.1 went into the room of A.1. Further Pw.7 who was the Investigating Officer stated in his cross-examination that he did not examine and record the statement of Pw.2 and there was no occasion to enquire why he stood outside the police station instead of following Pw.1 into the room of A.1. He further admitted in his cross examination that the contents of Ex:P.1 did not disclose any demand for bribe by A.2 and that his investigation did not reveal any such demand made by A.2. He also admitted in his cross-examination that none of the staff members of the police station corroborated the version of Pw.1 either regarding his visit to the police station on 12.1.996 or on 16.1.1996 and meeting A.1. He further admitted that no police personnel came forward to support the version of Pw.1 that he met A.1 and A.2 in the room of A.1 on 12.1.1996. One more important aspect which requires to be noticed in this context is that Pw.6 the DSP ACB admitted in his cross- examination that he did not display any of the four video cassettes after he seized from the Almyrah in the room of A.1 to ascertain whether they were blue film cassettes or not. He also admitted that there is no record in the police station showing that any of the Constables went to the shop of Pw.1 and brought four cassettes. Admittedly, he did not try to ascertain as to who among the Constables went to the video shop of Pw.1 and brought the cassettes from the said shop and he also did not initiate any action against any of the Constables who brought the cassettes without any instructions. Admittedly no panchanama was conducted at the time of seizure of video cassettes. Therefore, as could be seen from the evidence of Pws 6 and 7, even after the entire investigation was completed, they were not aware as to whether the video cassettes which were brought from the shop of Pw.1 were in fact blue film cassettes or not. Unless they are blue film cassettes, absolutely there is no need for Pw.1 to succumb to the demand made by A.1 or A.2. Before parting with the Judgment, I would like to refer to the decisions relied upon by the learned Counsel appearing for the appellants. In Som Parkash vs. State of Punjab[1] the Supreme Court held that the witness who formed part of raiding party was not an independent witness and when it appears that the evidence regarding handing over of money to the appellant is unbelievable, the conviction of the appellant cannot be sustained and that the guilt of the appellant has not been proved beyond all reasonable doubt and as such benefit must go to him. In A.Subair vs. State of Kerala[2] wherein it was held that the fact of demand and acceptance of bribe has to be satisfactorily established and that the quality and credibility of the evidence cannot be dispensed with and that illegal gratification must be proved like any other criminal case. On the other hand, the learned Special Public Prosecutor for ACB relied upon a decision in Virendranath vs. State of Maharastra[3] wherein the Supreme Court held as under: “The Court of the Special Judge and the High Court believed the prosecution case and in particular the evidence of Pw.1, Pw.3 and Pw.12 to the successful completion of the trap. Two points however have been urged by the learned Counsel appearing for the respective appellants and these are 1) since the tainted money was found from A.2, complicity of A.1 is ruled out and 2) complicity of A.2 is otherwise not established unless the prosecution could lead further evidence to show some meeting of minds between the two accused for acceptance of money, as mere acceptance on the suggestion of A.1 did not establish any guilty intent. Insofar as the first question is concerned, the fact that the tainted money in the hands of the complainant were meant to be passed on to A.1 as bribe is beyond dispute in view of the consistent and cogent evidence of the members of the trap party. Pw.3 is an independent witness in that regard. He is a witness to the effect that it is at the asking of A1 that a.2 took the tainted money and that beforehand talk had ensued between A.1 and the complainant, the bribe money with the complainant was meant to pass on to A.1 at the restaurant of A.2 the convenient place chosen by him. When the complainant paid the money to A.2 on the directions of A.1 then it was as good as if A.1 had taken the money and passed on to A.2. Acceptance is thus established from the conduct of A.1. On this understanding of the situation, it is difficult for us to accept the contention of the learned counsel for A.1 that he was not guilty of the crime. We reject the contention outright and confirm the conviction of A.1, dismissing the appeal. However, we are inclined to reduce his sentence to the minimum imprisonment i.e. one year rigorous imprisonment under all counts, while sustaining that of fine with the default clause.” The decision relied on by the learned Special Public Prosecutor is not applicable to the facts of the present case since this court upon scrutinizing the entire evidence arrived at the conclusion that the evidence adduced either in regard to seizure of cassettes or demand or acceptance of bribe is untrustworthy for the reasons indicated above. When it is not possible to place reliance on the evidence of Pw.1 who is the de facto complainant, the entire case of the prosecution falls to the ground and it is not possible to record the conviction against the appellants. The learned trial court, according to me, erroneously recorded conviction against the appellants, which is liable to be set aside in these appeals. Consequently, the conviction and sentence passed against the appellants by the learned Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad is set aside. In the result both the criminal appeals are allowed. The fine amount if any paid by the appellants shall be refunded. ______________________ R.KANTHA RAO,J 2.09.2010. KRB. THE HON’BLE SRI JUSTICE R.KANTHA RAO. CRIMINAL APPEAL Nos. 1 and 6 of 2004. COMMON JUDGEMENT: Dt. 2.09.2010 [1] 1992 CRL.L.J. 490 [2] (2009) 6 Supreme Court Cases 587. [3] AIR 1996 SC 490.