* THE HONOURABLE SRI JUSTICE B.CHANDRA KUMAR + CRIMINAL APPEAL No.1097 of 2003 % Dated 09.06.2010 # V.Suresh, Mandal Deputy Surveyor, O/o. The Mandal Revenue Officer, Rapthadu, Ananthapur District …Accused / App AND $ The State of A.P. Rep. by the ACB …Respondent / Comp ! Counsel for the petitioner: C.Praveen Kumar, Advocate ^ Counsel for the Respondents: V.Ravi Kiran Rao, SC & Spl PP for ACB < Gist : > Head Note: ? Cases Referred: 1. 2007 Crl.L.J.754 2. (1968) 1 Andh.W.R. 178 3. AIR 1972 SC 283 4. AIR 1975 SC 1252 5. AIR 1962 SC 399 6. 1989 Crl.L.J. 1876 7. AIR 1978 Jammu and Kashmir 53 8. AIR 1969 Andhra Pradesh 271 9. AIR 1969 Rajasthan 219 THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL APPEAL No.1097 of 2003 Dated:- 09th June, 2010 Between:- V.Suresh …Accused /Appellant AND The State – rep by ACB …Respondent / Complainant THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL APPEAL No.1097 of 2003 JUDGMENT:- The appellant, in this criminal appeal, has been challenging the judgment dated 01.09.2003 in C.C.No.7 of 2000, passed by the Additional Special Judge for SPE & ACB – cum V Additional Chief Judge, City Civil Court, Hyderabad (hereinafter referred to as ‘Special Judge’), whereby and whereunder, he was convicted and sentenced to undergo Rigorous Imprisonment for a period of one year and to pay fine of Rs.1,000/- in default to suffer Simple Imprisonment for three months for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988, (‘the Act’, for brevity) and further sentenced to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs.1,000/- in default to undergo Simple Imprisonment for three months for the offence punishable under Section 13(1)(d) of the Act. Both the substantive sentences were ordered to run concurrently. The appellant herein will be hereinafter referred to as the accused for the sake of convenience. 2. The facts that are necessary for disposal of the prosecution case, in brief, are as follows:- The accused was working as Mandal Deputy Surveyor in the office of the Mandal Revenue Officer (hereinafter referred to as ‘MRO’), Raptadu Mandal, Ananthapur District during the period 06.07.1997 to 04.02.1999 and as such he was a public servant within the meaning of Section 2(c) of the Act. P.W.1 – Yerri Swamy is resident of Kottapalli Village, Raptadu Mandal, Ananthapur District. He and his elder brother – Ramakrishna partitioned the joint family property about eleven years prior to 08.01.2002. But however, boundaries to their lands were not fixed. Therefore, P.W.1 submitted an application to MRO requesting him to survey the lands and fix the boundaries in Survey No.88/1, 89/2B of G.Kothapalli village and Survey No.396/A of Bukkacharla Village. He had remitted the requisite amount in the bank and enclosed the bank challans along with his application. As the MRO was not present in the office, P.W.3 – G.Narsimhulu, who was working as Superintendent of the MRO office during the relevant period, received the application of P.W.1 and told P.W.1 that he would send the Surveyor. On 13.01.1999 at about 04:00 P.M., P.W.1 again went to the MRO office and at that time, the accused was present in the office. According to P.W.1, when he asked the accused for survey of their lands, the accused demanded a bribe of Rs.4,000/- for conducting survey. When P.W.1 expressed difficulty in paying the demanded bribe amount, the accused reduced the same to Rs.3,000/- and directed P.W.1 to pay Rs.1,000/- as advance on 18.01.1999. Then, on 17.01.1999, P.W.1 lodged a complaint with P.W.6 – A.Satyanarayana, Deputy Superintendent of Police, ACB, Ananthapur. After receiving Ex.P.1 – complaint from P.W.1 and after ascertaining the genuineness of the complaint, P.W.6 registered a case in Crime No.1/ACB-ATP/99 and issued Ex.P.11 – FIR. 3. On 18.01.1999, P.W.1 came to the office of P.W.6 along with Rs.1,000/-, the proposed bribe amount as directed by P.W.6. P.W.6 secured the presence of mediators i.e. P.W.2 and one N.Rameshwar Rao and after introducing P.W.1 to the mediators and vice-versa, pre-trap proceedings were held. The significance of the Phenolphthalein test was explained and demonstrated. The currency note numbers were noted by the mediators and Phenolphthalein Powder was applied to those notes. Then the tainted currency notes were kept in the upper shirt pocket of P.W.1. P.W.1 was directed not to touch the tainted currency notes and to pay the same to the accused only on his demand. What all transpired during the pre-trap proceedings was noted in Ex.P.5 – First Mediator’s Report. Then, the entire trap party, along with P.W.1 and the mediators, proceeded to Raptadu in a jeep and reached the vicinity of the MRO office, Raptadu Mandal at about 11.15 A.M. 4. P.W.1 was directed to go and meet the accused. The other trap party members took vantage positions. Then, P.W.1 met the accused who was standing outside the MRO office. The accused asked P.W.1 whether he had brought the bribe amount and he received positive signal, from P.W.1. Then, as per the directions of the accused, P.W.1 proceeded along with him to a nearby Dhaba Hotel. On the way, the accused directed P.W.1 to pay the amount. Then, P.W.1 took out the tainted currency notes from his shirt pocket and gave them to the accused. The accused took the amount with his right hand and kept it in his left side pant pocket. 5. Then, P.W.1 gave pre-arranged signal to the trap party and the trap party immediately rushed to the Dhaba Hotel where the accused was sitting. Then, P.W.6 introduced himself and mediators to the accused. He got prepared the Sodium Carbonate Solution in two separate glass tumblers and at the request of P.W.6, the accused rinsed his both hand fingers separately in those solutions, as a result of which, the right hand wash turned into light pink colour and the left hand wash turned into dark pink colour. On demand by P.W.6, the accused produced the bribe amount and P.W.2 compared the note numbers with the numbers noted in the pre-trap proceedings and found them tallying. Then, the currency notes – M.O.5 were seized. The inner lining of the left side pant pocket of the accused was also subjected to the Sodium Carbonate test which yielded positive result. What all stated by the accused and P.W.1 were incorporated in the post-trap proceedings. The application of P.W.1 was also produced by the accused. Then, the trap party proceeded to the office of the MRO and Ex.P.3 – the application of P.W.1 along with the two challans were seized. 6. P.W.7 – S.Jawahar Basha, Inspector of Police, Vigilance and Enforcement, Kurnool, took up further investigation in this case, examined some witnesses and after obtaining sanction order, laid the charge sheet against the accused. 7. Since the accused denied the charges leveled against him, the prosecution, in order to prove its case, examined P.Ws.1 to 7 and got marked Exs.P.1 to P.18. On behalf of the accused, D.Ws.1 and 2 were examined and Exs.D.1 to D.8 were marked. 8. The learned Special Judge, having believed the prosecution case, found the accused guilty and convicted and sentenced him as referred supra. 9. Sri C.Padmanabha Reddy, learned senior counsel, representing Sri C.Praveen Kumar, learned counsel for the appellant submits that P.W.1 had given a complete go-bye to his earlier version in the cross-examination and that he had specifically deposed that he had paid Rs.100/- by way of challan without enquiring from the MRO office as to the exact fees payable for survey and demarcation of sub-divisions of his lands. He deposed that when he met the Superintendent of MRO office, he was directed to meet the accused to know the exact fees payable for marking sub-divisions. According to P.W.1, there were no sub-divisions in their lands and that there could be 12 to 13 sub-divisions in the survey numbers mentioned in the application. It is also his case that the accused informed him that he had to pay Rs.100/- per sub- division. According to him, he met the ACB officials assuming that the accused was demanding a bribe of Rs.1,000/- and lodged the complaint accordingly. According to P.W.1, even on 08.01.1997, he requested the accused to pay the amount in the bank as the working hours of the bank for the day were over and handed over the amount to the accused towards fees for sub- division. Thus, the main submission of the learned senior counsel is that P.W.1 categorically stated that the amount of Rs.1,000/- paid to the accused was towards the fees for sub- divisions and not the alleged bribe amount. It is also submitted that the evidence of P.W.1 establishes that there was no demand of bribe by the accused and once the demand of bribe had not been proved by the prosecution, even if it is held that the tainted currency notes had been seized from the accused, no presumption can be drawn and that the Court below ought not to have convicted the accused. Learned senior counsel had also taken this Court through the judgment of the learned Special Judge and submitted that the learned Special Judge had erred in relying on the oral statement of P.W.1 recorded by the ACB officials and also on the statements made by him in pre- trap and post-trap proceedings, which are inadmissible in evidence. Thus, his main submission is that the learned Special Judge sought corroboration to the evidence of P.W.1 on inadmissible evidence and, therefore, the findings of the learned Special Judge are liable to be set aside. It is also his submission that in view of the total inconsistent versions given by P.W.1, his evidence cannot be taken as basis for convicting the accused. It is his further submission that except the evidence of P.W.1, there is no other evidence on record to prove the demand and acceptance of bribe amount by the accused. It is also his submission that if at all P.W.1’s version is supporting the version of the accused, the prosecution should have declared him hostile and cross-examined him and confronted him with all his earlier statements. Without confronting with his earlier statements, the learned Special Judge ought not to have relied on inadmissible earlier statements of P.W.1. It is also his submission that the evidence of P.Ws.3 and 4 would go to show that the version of the accused is probable. 10. Per contra, Sri V.Ravi Kiran Rao, learned Standing Counsel and Special Public Prosecutor for ACB, submits that P.W.1 was examined in chief on 08.01.2002 and that he was cross-examined on 30.01.2002 and a reading of the evidence of P.W.1 clearly shows that when he was examined in chief, he supported the prosecution case and that when he was subsequently cross-examined after twenty days, he had resiled from his earlier version and supported the version of the accused. It is his submission that the circumstances that P.W.1 lodged the complaint with ACB officials and when the mediators enquired with P.W.1 during pre-trap proceedings P.W.1 admitted the correctness of contents of Ex.P.1 and that the evidence of P.W.1 in chief and recovery of tainted currency notes from the possession of the accused clinchingly establish the prosecution case. It is also his submission that even according to P.Ws.3 and 4, the surveyor is not expected to take any amount from any party and that the amount for fixing boundaries for sub-divisions have to be paid through bank challans. It is also his contention that the application of P.W.1 is not for sub-divisions and, therefore, the question of paying fees for sub-divisions would not arise. It is also submitted that what is the total amount to be paid for sub-divisions was not ascertained by P.W.1 and without ascertaining the amount, P.W.1 was directed to pay an amount of Rs.1,000/- which cannot be treated as fee for making sub- division of lands. Thus, the main submission of the learned standing counsel for ACB is that since there was no application for making sub-division of land, subsequent version of P.W.1 cannot be accepted. It is also his submission that considering the facts and circumstances, the version of P.W.1, which is supporting the case of the prosecution in the chief-examination was rightly relied upon by the learned Special Judge. 11. Now the points that arise for consideration in this appeal are (1) Whether the evidence of P.W.1 can be relied upon for convicting the accused; (2) whether the earlier statements made by P.W.1 can be taken as corroborative evidence and whether they are hit by Section 162 Cr.P.C. 12. As far as recovery of amount from the accused is concerned, the accused himself admitted that he received Rs.1,000/- from P.W.1 towards fees to be paid for making sub- divisions of the said survey numbers. Therefore, it is not necessary to discuss in detail with regard to the post-trap proceedings. However, the evidence on record reveals that P.W.2 – the mediator who accompanied the trap party had categorically deposed that he witnessed the pre-trap proceedings and that at about 01:28 P.M., P.W.1 gave pre arranged signal and accordingly, they rushed to the Dhaba Hotel and when the Sodium Carbonate Solution test was conducted to the both the hand fingers of the accused, it gave positive result. His evidence also shows that the accused produced the bribe amount from his left side pant pocket. He had also deposed that when the inner lining of the left side pant pocket of the accused was subjected to Sodium Carbonate Solution test, it gave positive result. Thus, the evidence of P.W.2 and the evidence of P.W.6 – Investigating Officer would establish that the amount of Rs.1,000/- was seized from the possession of the accused and that the Sodium Carbonate Solution test gave positive result. 13. In the case between V.Venkata Subbarao Vs. State of A.P.[1], the Apex Court observed that “in the absence of any proof of demand, the question of raising presumption would not arise. Section 20 of the Act provides for raising of presumption only if the demand is proved”. It was also held that “If the version of the accused appears to be probable, the same is sufficient and the standard of proof as is required to be made by the prosecution is not necessary to prove the version of the accused”. 14. In view of the same, now we have to see whether the prosecution had proved that there was any demand for illegal gratification and whether the accused accepted illegal gratification. 15. As seen from the evidence of P.W.1, it is clear that he had not supported the case of the prosecution when he was cross-examined. Of course, he had supported the case of the prosecution when he was examined in chief. Thus, he had given a complete go-bye to what he had stated in the chief- examination. In the chief-examination, P.W.1 categorically deposed that when he asked the accused to survey the land, the accused demanded a bribe of Rs.4,000/- but on his request the accused reduced it to Rs.3,000/-. It is also his specific case that the accused also directed him to pay Rs.1,000/- as advance on 18.01.1999 and that on 17.01.1999, he went to the ACB office, Ananthapur and lodged Ex.P.1 – complaint. Subsequently, when he was cross-examined, it is his specific case that he was not happy with the accused as the accused refused to measure the pathway as per the judgment of a civil Court and that he had not paid the requisite fee for making sub- divisions of the lands. It is the specific case of P.W.1 that the accused never demanded any amount of bribe and that the accused directed him to deposit the amount in the bank and get the challans for making sub-divisions and that he himself requested the accused to pay the amount in the bank. Thus, the specific case of P.W.1 is that there was no demand of amount by the accused and that the amount of Rs.1,000/- given by him to the accused was not towards bribe but towards fees for making sub-divisions. 16. Now it has to be seen which version is acceptable and which is his earlier version. Suppose if the version of P.W.1 in chief appears to be his earliest version, the Court may accept the same. Therefore, we have to examine what is the earliest version of P.W.1 and whether the earlier version of the P.W.1 has been brought on record as per the settled legal principles. 17. Learned Special Judge, while discussing the evidence of P.W.1, observed that the evidence of P.W.1 in the chief examination had been supported by his earlier statements. Learned Special Judge referred as follows: “…It was first in Ex.P.1 – complaint which is in his own hand P.W.1 has referred to the alleged demand, wherein he mentioned, that he submitted his Ex.P.3 application with Ex.P.4 challans on 09.01.1999 to P.W.3 – Superintendent of MRO office as the MRO was not available on that day in the office, P.W.3 stasted to him that he would send his application to the A.O. and he meet the A.O. later, accordingly on 13.1.1999, he met the A.O. and asked him to conduct a survey as per his application, demanded to pay him Rs.4,000/- to conduct the survey, and when he expressed his inability, bargained and reduced it to Rs.3,000/- and having no other go, he agreed, and then the A.O. asked him to pay an advance of Rs.1,000/- after the Sankranti Holidays i.e., on 18.1.1999.” 18. The learned Special Judge had also taken corroboration from the contents of the post-trap proceedings under Ex.P.6. It reads as follows:- “…I perused Ex.P.6 and found, P.W.1 at that earliest point of time gave a statement exactly what he stated before the Court in his chief examination as recorded supra and there is no deviation whatsoever.” 19. Further, the learned Special Judge referred as follows:- “…what P.W.1 mentioned in his complaint Ex.P.1 and stated in his subsequent statements that it is not for the sub division of the land but for fixing only the boundaries of the land in two villages and to know the extent he sought the official services of the A.O.” 20. The learned Special Judge also referred to the evidence of P.W.6 and stated as follows:- “…P.W.6 – the DSP deposed, that P.W.1 came on 17.1.1999 to his office and stated about the demand for bribe made by the A.O. for conducting survey of his land and submitted a Telugu written report Ex.P.1.” 21. The learned Special Judge further referred to as follows:- “…Before recording what those deviated statements are spoken to by P.W.1 in his cross examination by defence counsel, it is necessary to record here first the admissions made by P.W.1 in the re-examination by the learned Public Prosecutor, after the cross- examination by the defence counsel, where P.W.1 categorically admitted to be true, that what all he stated during the cross-examination by the defence counsel was not stated by him either in his complaint Ex.P.1 or in his statement before the Magistrate or in his statement before the Inspector, ACB.” 22. Thus, the learned Special Judge had given his reasons for his conclusions. No doubt, the reasoning appears to be justified, but however, whether the learned Special Judge could have sought corroboration from the contents of Ex.P.1 – complaint and Ex.P.6 – Mediators Report and whether the contents of those documents can be relied upon without marking contradictions and omissions as per law. The legal position has been well settled. The FIR, being not a substantive piece of evidence, if a party wants to contradict the witness, i.e., maker of the FIR, when he deviates from the version given in the FIR, the attention of the said witness (author of the FIR) should be brought to the contents of the FIR before he is discredited with respect to his earlier statements. Such previous statements must be confronted to him. Admittedly, in this case, P.W.1 was not declared hostile. He was not cross-examined by the learned Public Prosecutor. His attention was not drawn to the contents of Ex.P.1 – complaint. The only suggestion given to him and accepted by P.W.1 was that what all he stated during the cross- examination by the defence counsel was not stated by him either in his complaint – Ex.P.1 or in the statement made before the Magistrate under Ex.P.2 or in the statement made before the ACB Inspector. Thus, what all he stated in his cross- examination was sought to be shown as omission. It was also suggested to him that during the post-trap proceedings, he did not state what all he had stated during the cross-examination. 23. In the above circumstances, we have to examine how the contents of FIR can be used, how the statements made by the witness when he was examined by the police can be used and how the contents of the panchanamas i.e., the first mediator’s report and the second mediator’s report in a trap case can be used. As far as the FIR is concerned, in case between Nagi Reddy Vs. State of A.P.[2], it was observed as follows. “First Information Report is a valuable piece of evidence inasmuch as it is the earliest version that can be compared with what is later told during the trial. All variations i.e., contradictions and omissions can be considered in judging the truth or otherwise of such version.” 24. It is also settled legal position that the FIR is not a substantive piece of evidence. However, it can be used for one of the limited purposes of corroborating or contradicting the maker thereof. Another purpose for which the FIR can be used is to show that the information is a piece of evidence res gastae. In certain cases it can be used as dying declaration under Section 32 of the Evidence Act as to the cause of informant’s death or as part of the informant’s conduct {Refer Damodar Prasad Chandrika Prasad Vs. State of Maharashtra (AIR 1972 SC 622)}. Therefore, what was stated by a witness immediately after the occurrence of an incident becomes a piece of evidence on the basis of the principle of res gastae. Thus, it is admissible under Section 157 or Section 8 of the Evidence Act as a evidence of conduct. Since the FIR is not a substantive piece of evidence and it can be used only for the purpose of corroboration or contradiction when the maker of FIR gives a different version before the Court, his attention must be brought to the contents of the FIR and he must be specifically asked whether he had stated as in FIR. Without following such procedure, the contents of FIR cannot be relied upon. 25. Section 161 of the Criminal Procedure Code, 1973, reads as under:- 161 - Examination of witnesses by police:- (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. 1[Provided that statement made under this sub-section may also be recorded by audio- video electronic means.] 26. Section 162 of Criminal Procedure Code, 1973, reads as under:- 162. Statements to police not to be signed: Use of statements in evidence:- (1) No