THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.2002 of 2004 BETWEEEN: State: rep. By Inspector of Police … Appellant AND B.Sailoo, Junior Assitant … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2002 of 2004 JUDGMENT: The accused/respondent was working as Junior Assistant in VII Batallion of Andhra Pradesh Special Police (APSP) at Dichpally, Nizamabad District. By judgment dated 29.03.2004 in CC.No.22 of 1994, the Principal Special Judge for SPE and ACB cases, Hyderabad, acquitted the accused of the offences punishable under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act). Questioning the same, the State filed this appeal. 2. PW1 retired from service as Armed Reserve Sub- Inspector in VII Batallion of APSP, Dichpally on 31.12.1992. He submitted applications claiming retirement benefits including balance of Earned Leave encashment. It is alleged that inspite of receipt of service book from Accountant General Office in January, 1993 itself, his Earned Leave encashment application was not processed and that the accused obtained fresh application therefor on 06.07.1993 from PW1 and demanded PW1 for illegal gratification of Rs.500/- for showing official favour of processing the said application and that on 07.07.1993, when PW1 approached the accused, the accused while reiterating his demand for bribe, reduced the same to Rs.200/- on the request of PW1. With the said allegations, PW1 gave Ex.P1 report to PW8, Deputy Superintendent of Police, Anti Corruption Bureau (ACB), Nizamabad. After issuing Ex.P6 FIR on the basis of Ex.P1, PW8 organized trap for the accused on 08.07.1993. It is alleged that the trap was successful and that during the course of trap, on the directions of the accused, PW1 paid demanded bribe amount of Rs.200/- (MO.1) to PW3, who received the same on behalf of the accused. Plea of the accused is one of total denial and not guilty. After trial, the lower Court found the accused not guilty of the charges. 3. In this appeal, the Special Public Prosecutor contended that the lower Court did not appreciate the evidence on record in the right direction and that entire evidence let in by the prosecution is liable to be scrutinized again in this appeal for arriving at proper conclusion. It is further contended that the lower Court relied upon minor discrepancies in the evidence of PW1 which have no bearing in deciding reliability of PW1. In order to find whether a discrepancy is a minor one or a material one, it is necessary to go into evidence let in by the prosecution. 4. It is prosecution case as disclosed in Ex.P1 report that on 06.07.1993, PW1 gave another application for encashment of Earned Leave and the accused demanded for bribe of Rs.500/- in case, PW1 wanted the said encashment early and that finally, when PW1 met the accused on 07.07.1993 at 11:00 A.M. and requested him, the accused bluntly informed him that he will attend to his bill if he pays him bribe of Rs.200/- by 08.07.1993. But, PW1 speaks about his meting with the accused on 06.07.1993 only and did not speak about he meeting the accused on 07.07.1993. According to PW1, on 06.07.1993, he gave fresh application for leave encashment and the accused demanded Rs.500/- for releasing his pension and surrender arrears and when he told the accused about his inability to pay the said amount and requested him, the accused reduced the bribe amount to Rs.200/-. PW1 did not speak at all about meeting between him and the accused on 07.07.1993. Date of demand for bribe is one of the dates of the offence relating to basic ingredient of demand. It cannot be said that it is on a minor aspect of the case. Date of offence is a material aspect of the case. It is not the prosecution case that PW1 gave date in a mistaken fashion. In this case, PW1 totally omits the date of final demand, when the demanded bribe amount was stated to have been reduced from Rs.500/- to Rs.200/-. 5. After the offence was allegedly detected by way of trap, PW1’s statement was recorded by the Magistrate under Section 164 Cr.P.C. PW1 admits that in the said statement before the Magistrate, he stated that Narsimhulu demanded him for bribe. Name of the accused is not Narsimhulu, but is Sailoo. Narsimhulu was the then Personal Assistant to the Commandant of VII Batallion. It is contended by the Special Public Prosecutor that on the same day of recording of the said statement, PW11 gave Ex.D1 petition to the Magistrate requesting him to correct the name as Sailoo instead of Narsimhulu because he gave name of Narsimhulu for Sailoo out of confusion as he happened to go to Court for the first time. It is not the prosecution case that the Magistrate in pursuance of Ex.D1 application of PW1 passed any order thereon, much less corrected name of the person who demanded for bribe as Sailoo by striking out the name of Narsimhulu. In the absence of any repairing of the statement given by PW1 to the Magistrate, the person who demanded bribe remained therein as Narsimhulu and not Sailoo. Name of the accused is a material aspect of the case and cannot be termed as a minor discrepancy. 6. According to PW1, he was made to go round the office for encashment of balance Earned Leave for the last six months. In Ex.P1, PW1 stated that the accused was making him go round for the last six months saying that his service book did not reach that office from Hyderabad. The question of the accused making PW1 to go round him for six months prior to the date of Ex.P1 may not arise at all, because the accused took charge in that seat in that office only on 03.05.1993. PW8 in cross-examination deposed that the accused took charge of his seat on 03.05.1993 from one Chakrapani. Therefore, the lower Court rightly came to the conclusion that PW1 was not giving correct version. 7. After the accused took charge of that seat on 03.05.1993, PW1 gave his application for Leave Encashment on 06.07.1993 only. PW1 gave the said application to the Personal Assistant of the Commandant and obtained urgent endorsement on it and the application reached the accused on the same day. PW8 seized the file relating to that application as per Ex.P8. PW8 deposed in cross-examination that the accused prepared the note on 06.07.1993 itself and also kept ready the draft letter to be signed by the commandant. Therefore, it is contended that by the date of trap on 08.07.1993, there was no official favour pending with the accused. Even though note file was prepared along with draft proceedings on 06.07.1993, it is not known whether the file was sent to the commandant or whether the file was retained by the accused with himself. Neither in PW8’s evidence nor in Ex.P3, second mediators report relating to post-trap proceedings, it was stated as to from which seat Ex.P8 file was seized by the trap-laying officer. PW5 is the then Superintendent in that office. He says that on 06.07.1993, the accused kept PW1’s file ready for placing it before him, but he did not place the file before him till 08.07.1993. According to him, the file has to reach the commandant through the Superintendent, the Administrative Officer. In cross-examination, PW5 deposed that the accused kept the file ready by the 6th of that month including the draft proceedings and that when ACB officials showed the file to him on the 8th evening, he came to know that the file was made ready by the 6th itself. After preparation of the note file and draft proceedings, the accused kept the file with himself without forwarding the same to the commandant for signatures. It is contended for the accused/appellant that the note file was not forwarded to the commandant because the commandant was not at the batallion headquarters and was away at Hyderabad from 06.07.1993 to 08.07.1993. Evidence of PW5 and PW4 reveals that the commandant instructed the office not to send files to his camp office for signatures except emergent files. PW8 deposed in cross-examination that on the date of trap, on 08.07.1993, the commandant was not available in the office. He says that he did not verify whether the commandant was not in the batallion headquarters from 06.07.1993 onwards. The accused could not send the note file along with draft proceedings to the commandant for signature, as the commandant was not available in the headquarters and was on camp. In those circumstances, the lower Court rightly came to the conclusion that there was no official favour pending with the accused by the date of trap on 08.07.1993. 8. During the course of trap, even though PW2, who is one of the mediators, was employed as accompanying witness for PW1, PW2 accompanied PW1 upto varandah of the office and did not enter into the office room along with PW1. PW2 admits that he did not hear the conversation between the accused and PW1. It is evidence of PW1 that when he went to the accused during the trap, the accused enquired him whether he brought the demanded bribe amount and when he expressed the same in positive terms and offered to handover MO.1 cash to the accused, the accused asked him to wrap the cash in a paper and may hand over the same to PW3, who was sitting in front of the seat of the accused. PW1 says that without handing over the cash and wrapping the same in paper, he went out and informed the same to PW8, who was at a distance from that office and when PW8 asked PW1 to do as per the directions of the accused, PW1 again returned to the office and wrapped the cash in a paper and handed over the same to PW3. PW2 says that he saw the accused handing over the cash to PW3. PW3 says that he did not hear the conversation between the accused and PW1. According to PW3, he received Mo.1 cash because the accused directed him to receive. PW3 says that he does not know for what purpose PW1 paid that cash and why the accused asked him to receive that cash from PW1 and keep it with him. Ultimately, MO.1 tainted cash was not seized from the accused by the raid party, but it was seized from the possession of PW3. Even though PW3 is stated to have aided the accused in accepting the bribe, the investigating agency did not choose to charge PW3 for the offence under Section 12 of the Act. In any event, PW3 did not know for what purpose PW1 paid the said cash and for what purpose, the accused asked him to receive the said cash from PW1. There is no corroboration for PW1’s evidence with regard to the alleged demand made by the accused during the course of trap. It is no doubt true that corroboration is not required as a matter of rule, but corroboration can be sought only as a matter of prudence, in case sole testimony of the de facto complainant/PW1 suffers from serious infirmities. In this case, evidence of PW1 suffers from serious infirmities with regard to date of demand and also name of the person who demanded the bribe amount. In those circumstances, the lower Court rightly did not place any reliance on PW1’s evidence and ultimately recorded acquittal of the accused. There are no grounds in this appeal to interfere with the said finding of acquittal recorded by the lower Court. 9. In the result, the Criminal Appeal is dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated:13.07.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJUL CRIMINAL APPEAL No.2002 of 2004 DATED:13.07.2011 ysk