THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.696 of 2004 BETWEEEN: The State of A.P. … Appellant AND M.Ramanjaneyulu … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.696 of 2004 JUDGMENT: This is an appeal against acquittal. The Special Judge for C.B.I. cases, Hyderabad by judgment dated 06.01.2003 in CC.No.10 of 2001 acquitted the accused of the charges under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act). The accused/respondent was working as lineman in Kollur Telephone Exchange of Medak District. It is alleged that the accused demanded and accepted illegal gratification of Rs.200/- each from PWs 1 and 2 who are telephone subscribers on 24.11.2000 and that trap laid by PW7, Inspector of Police, Central Bureau of Investigation (CBI), Hyderabad was successful. Plea of the accused is one of total denial. During trial in the lower Court, PWs 1 to 8 were examined under Exs. P1 to P15 and MOs 1 to 4 were marked for the prosecution and Exs.D1 to D3 were marked on behalf of the accused. 2. Before proceeding to discuss the respective arguments of the Special Public Prosecutor and the respondent’s counsel in this appeal, the following five guidelines laid down by the Supreme Court in CHANDRAPPA Vs. STATE OF KARNATAKA[1] may be usefully noted with regard to scope of interference in an appeal against acquittal: “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge: (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.” 3. PWs 1 and 2 are the complainants who gave a joint report to the Superintendent of Police, C.B.I., Hyderabad on 23.11.2000. Neither original report dated 23.11.2000 nor original FIR issued by CBI on the basis of such report, is filed by the prosecution in the lower Court during trial. Ex.P8 is Photostat copy of the report said to have been given by PWs 1 and 2 and Ex.P15 is Photostat copy of FIR said to have been issued by C.B.I. on the basis of the original report. No explanation is given for non-production of and for non-marking of original report and original FIR. With this flaw in conducting prosecution in the lower Court, the CBI wants to establish its case against the accused. 4. In Ex.P8, it is stated by PWs 1 and 2, who are the de facto complainants that they applied for new telephone connections on 22.10.1999 and 13.10.1999 respectively with STD facility and that the telephones were installed at their respective residences without STD facility for outgoing and incoming calls and that on 04.11.2000, when they complained to the accused who installed the telephones at their residences, the accused demanded bribe of Rs.300/- from each of them to rectify the above problem. The lower Court noticed that there is no evidence produced by the prosecution to show that PWs 1 and 2 applied for new telephones with STD facility. Ex.P2 is the application of PW1 for telephone connection in his residence given on 22.10.1999. It shows that PW1 requested for telephone connection without STD facility. Therefore, the allegation that he applied for telephone connection with STD facility is proved to be false. Since he did not ask for STD facility and specifically asked for telephone connection without STD facility, no STD facility was granted to the telephone installed in PW1’s house. Insofar as PW2 is concerned, the prosecution did not produce original application of PW2 for telephone connection to his residence, in order to find out whether PW2 applied for telephone connection with STD facility or without STD facility. Ex.P1 is representation dated 24.11.2000 addressed by PW1 to the Sub-Divisional Telecom Officer, Patancheru, Medak District seeking for providing STD facility to his telephone. Ex.P1 is stated to have been given to the accused simultaneously along with the alleged bribe amount of Rs.200/- at the time of trap. Till the date of trap, the prosecution is not able to prove that any of PWs 1and 2 applied for STD facility to their respective telephones. In the absence of proof of pendency of any applications of PWs 1 and 2 for STD facility and in the absence of proof of PWs 1 and 2 originally applying for new telephone connections with STD facility, it cannot be said that there was any official favour pending with the accused much less with the telephone department by the date of trap. 5. PW5 is Deputy General Manager, Telecom at Sangareddy who gave Ex.P10 sanction order for prosecution of the accused. It is his evidence that a lineman is not an authorized person to provide STD facility to the consumers and that it is only telecom technical assistant who is the authority to provide STD facility. Therefore, the accused was a person who is not in a position to extend any favour much less official favour to PWs 1 and 2 by way of providing STD facility to their telephones. It is not the prosecution case that the accused demanded the bribe for handing over the same to any other officer or staff member who is competent to provide STD facility for the telephones of PWs 1 and 2. 6. After assessing oral evidence of PWs 1 to 3, the lower Court doubted the factum of trap itself. No doubt, the lower Court pointed out certain innocuous portions of evidence of PWs 1 and 2. Apart from the said pieces of innocuous evidence of PWs 1 and 2, there is glaring discrepancy with regard to the place of trap. PWs 1 and 2 are the persons who are stated to have handed over Rs.200/- each covered by MOs.1 and 2 to the accused towards illegal gratification, though the alleged demand of the accused was for Rs.300/- from each of them. PW3 was working as Lower Divisional Clerk in the office of Joint Director, Foreign Trades at Hyderabad. He functioned not only as a mediator in Ex.P3 First Mediators Report relating to pre-trap proceedings as well as Ex.P4 second mediators report relating to post-trap proceedings. He also functioned as accompanying witness with PWs 1 and 2 during the trap. PW7 is the trap laying officer and Inspector of CBI. According to PWs 1, 2 and 7, the trap took place at the residence of the accused in Kollur village. Ex.P4 second mediators report also reads as if the trap took place at residence of the accused in Kollur Village. But, surprisingly, PW3 deposed as if the trap took place in the office of the accused. After handing over of MOs1 and 2 tainted cash to the accused, PW3 is stated to have given pre-arranged signal to the raid party for their entry into the scene of offence. PW3 says that after receiving pre- arranged signal given by him, the trap team rushed inside the office of the accused and caught held of hands of the accused which turned pink when rinsed in Sodium Carbonate Solution. At another place in his Examination-in Chief, PW3 stated that the Inspector made enquiry with him about the events that took place inside the office of the accused. The prosecution did not question evidence of PW3 during trial in the lower Court. The Public Prosecutor who conducted trial in the lower Court simply gulped the above evidence of PW3. There is no dispute that PW3 being an official witness, is entitled for refreshing his memory either before giving evidence in Court or during the course of his evidence in Court. But, the Public Prosecutor who conducted trial in the lower Court, did not refresh memory of PW3 with regard to the place of raid and trap either before PW3 went into the witness box or during the course of PW3 giving his Examination-in-Chief in the lower Court. In case PW3 was adamant in persisting that the trap took place at the office and not at the residence of the accused, then the Public Prosecutor who conducted trial in the lower Court should have sought for permission of the lower Court to treat PW3 as hostile to the prosecution to the limited extent of the place of offence and should have cross- examined PW3 with regard to the place of offence. Neither the Public Prosecutor refreshed memory of PW3 before giving evidence or during evidence nor the Public Prosecutor sought permission of the lower Court to treat PW3 as hostile to the prosecution to the limited extent of his evidence relating to the place of trap. The Public Prosecutor did not act in a proper manner during trial in the lower Court. Thus, there are two versions before the lower Court to the effect that the trap took place at residence of the accused and that the trap took place at the office of the accused. Both the versions are irreconcilable. It is contended by the Special Public Prosecutor in this appeal that discrepancy relating to the place of trap is a minor aspect of the case and that if documentary evidence contained in Ex.P4 and oral evidence of PWs 1, 2 and 7 are taken into consideration, then it is evident that the trap took place only at the residence of the accused. But, evidence of PW3 to the effect that the trap took place at the office of the accused, cuts at the bottom of the prosecution case and falsify evidence of PWs 1, 2 and 7 as well as Ex.P4 scene of offence in a criminal case is a material aspect. When the factum of trap itself is doubted by the lower Court having regard to conflicting evidence let in by the prosecution, the question of presumption under section 20(1) of the Act coming into play in this case will not arise at all. As pointed out in CHANDRAPPA (1 supra), even if two views are possible while assessing the evidence, the appellate Court cannot take the other view than that of the view taken by the lower Court, in case the view taken by the lower Court is one of the two possible views. In that view of the matter, I am of the opinion that the appellant could not make out its case in this appeal also. I do not find any reasons to come to a different conclusion from that of the lower Court. 7. Hence, the Criminal Appeal is dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated: 29.04.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.696 of 2004 DATED: 29.04.2011 ysk [1] (2007) 4 Supreme Court Cases 415