HONOURABLE SRI JUSTICE K.C.BHANU Dated 2nd December, 2009 CRIMINAL APPEAL No.521 OF 2003 Between: M.Saraiah. …Appellant. And: State-CBI/SPE, Hyderabad. …Respondent. HONOURABLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.521 OF 2003 JUDGMENT: This Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973, is directed against the judgment, dated 16-05-2003, in C.C.No.21 of 2001, on the file of the learned Special Judge for CBI Cases, Hyderabad, whereunder and whereby, the appellant-accused was found guilty of the offences under Sections 7 and 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988 (for short ‘the Act’), and accordingly, convicted and sentenced to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs.1,000/- in default, to suffer Simple Imprisonment for a period of three months, under each count. 2. Brief facts that are necessary for disposal of the present Criminal Appeal may be stated as follows: P.W.1 is the wife of P.W.2. The appellant was working as Telephone Mechanic in the office of Sub-Divisional Officer- Phones-I in Musheerabad Telephone Exchange. P.W.1 applied for Public Telephone at Ramnagar. Ex.P.1 is her application. Subsequently, P.W.1 sought for telephone connection at TRT quarters as they shifted the residence. P.W.2 was looking after all the affairs. In the year 2001, telephone was allotted and amount was also paid. Ex.P.2 is the allotment order. After receiving Ex.P.2 order, P.W.2 approached the appellant for fixing the telephone number of times and finally, the appellant demanded Rs.1500/- for doing so. As P.W.2 was reluctant to give, he showed the allotment order to the appellant and questioned him as to why he was not installing the telephone. Then, the appellant installed the telephone but there was no dial tone. When P.W.2 informed the same to the appellant, he alleged to have demanded Rs.1500/-. As P.W.2 was not willing to pay the money, he lodged a report with P.W.9-Inspector of Police on 8-3-2001 which was registered as R.C.10 (A)/2001. P.W.9 asked P.W.2 to appear before him on 9-3-2001 with bribe money. P.W.3 was sent to act as a mediator and he also came to CBI Office on 9-3-2001. The report lodged by P.W.2 was shown to P.W.3. Thereafter, the bribe money was produced and pre-trap formalities were completed. Ex.P.4 is the 1st mediator’s report. At about 10.30 A.M., the trap party reached Musheerabad Telephone Exchange. P.Ws.2 and 3 went inside the office while other members took their positions. After some time, P.Ws.2 and 3 came out saying that appellant was not there and that he was attending work at Shivam Temple, Booth No.79. Then the entire trap party reached Shivam Temple at Booth No.79. P.Ws.2 and 3 saw the appellant attending to some work. On seeing P.W.2, the appellant alleged to have stated that he was waiting for him. Appellant asked P.W.2 to wait, and enquired about P.W.3. Then Appellant took P.W.2 by side of the telephone booth and enquired about money. Initially P.W.2 told the appellant that he brought Rs.1400/- but A.O. replied that he would not accept money less than Rs.1500/-. It is said that P.W.3 was beside P.W.2 at that time. P.W.2 gave Rs.1500/- to the appellant who took it with his right hand and kept it in the left side shirt pocket. Thereafter, P.W.3 gave the pre-arranged signal. Immediately, P.W.9 came to the spot and caught hold of the hands of the appellant. The appellant was taken to the Administrative Training Institute which was on the opposite side of the road to complete the post trap formalities. The left hand fingers of the appellant proved negative to sodium carbonate solution test whereas right hand fingers proved positive to the test. The appellant when questioned, removed the bribe amount from his shirt pocket. The appellant stated to P.W.9 that he received the money from P.W.2 towards the amount payable in connection with earlier transaction for sale of table and chair. After incorporating the explanation, a Second Mediator’s Report was prepared which is marked as Ex.P.5. P.W.10 took up further investigation and filed the Charge Sheet after completion of investigation. 3. The learned Special Judge for CBI Cases, Hyderabad, framed the following charges against the appellant: “Charge No.1: That you, being a Public Servant employed as Telephone Mechanic in the office of Sub-Divisional Officer, Phones-I (SDOP –I) under Musheerabad Telephone Exchange demanded and accepted Rs.1500/- on 9-3-2001 from Sri G.Anjaiah r/o 2-2- 1089/7/1, Golnaka, Hyderabad for yourself as gratification other than legal remuneration for commissioning/giving dial tone to the connection of PCO (without STD) of complainant’s wife Smt. G.Yadalaxmi and thereby committed an offence punishable u/s 7 of P.C. Act, 1988 and within my cognizance.” “Charge No.2: That you, being a public servant by corrupt or illegal means obtained for yourself a pecuniary advantage of Rs.1500/- from Sri G.Anjaiah on 9-3-2001 and thereby committed an offence punishable u/s 13 (2) r/w 13 (1) (d) of P.C.Act, 1988 and within my cognizance.” When the charges were read over and explained to the appellant, he pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws.1 to 10 and got marked Exs.P.1 to P.21 besides the case properties M.Os.1 to 5. 5. After closure of the prosecution evidence, the appellant was examined under Section 313 Cr.P.C. with reference to the incriminating material found against him in the evidence of prosecution witnesses. He denied the same. On behalf of the appellant, D.Ws.1 to 3 were examined and Ex.D1 was marked. 6. The trial Court, accepting the evidence of P.Ws.1 and 2 with regard to the demand and acceptance and also P.Ws.3 and 9, with regard to the recovery of tainted currency notes from the possession of the appellant, found him guilty and accordingly, convicted and sentenced him as stated above. Challenging the same, the present Criminal Appeal is filed. 7. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the appellant for the offences punishable under Sections 7 and 13 (1) (d) read with Section 13 (2) of the Act and whether the judgment of the trial Court is correct, legal and proper? 8. Learned Senior Counsel, Sri C. Padmanabha Reddy, appearing for the appellant, contended that no official favour to be shown to P.W.1 by the appellant was pending; that the appellant discharged his duties by installing the telephone instrument in the house; that by suppressing certain material facts, P.W.1 obtained telephone connection; that P.W.1 does not come under the category of physically handicapped woman, even then she applied under the said quota; that the evidence of P.W.1 cannot be put in the category of wholly reliable and therefore, her evidence needs corroboration; that the appellant received the money towards purchase of Chair and Table and differences arose between P.W.1 and the appellant with regard to their value and then P.W.1 returned the money; that the spontaneous explanation given by the appellant would clearly show that the appellant did not receive money for showing an official favour to P.W.1 but it was received as an amount advanced by him for purchase of Chair and Table. Therefore, he prays to set aside the convictions and sentences recorded by the trial Court. 9. On the other hand, Sri T. Niranjan Reddy, learned Standing Counsel for the Central Bureau of Investigation (for Short ‘C.B.I.) contended that absolutely there is no reason for P.W.1 to foist a false case of this nature against the appellant; that P.W.1 might not be knowing about giving Telephone connection to the house for which it was taken; that the evidence of P.W.2 would in the first instance disclose that, for installing telephone, he demanded money, and when P.W.2 showed the work order, he installed the instrument but dial tone connection had not been given and therefore, for giving telephone connection through the Exchange, the possibility of Accused demanding Rs.1500/- is quite possible; and that when the right hand fingers of the Accused were subjected to Sodium Carbonate Solution Test it proved positive suggesting that he accepted the money that the trial Court after elaborate consideration of evidence on record, rightly found him guilty and therefore, there is no ground to interfere with the convictions and sentences passed by the trial Court. 10. The essential ingredients to constitute the offence under Section 7 of the Act are: i) that the person accepting the gratification should be a public servant; ii) that he should accept the gratification for himself and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or dis-favour to any person. Insofar as offence under Section 13 (1) (d) of the Act is concerned, its essential ingredients are: i) that he should have been a public servant; ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person. 11. The Charges leveled against the appellant is that he demanded gratification other than legal remuneration for commissioning/giving dial tone to the connection of PCO (without STD) to P.W.1. The entire case of the prosecution rests upon the evidence of P.W.2. When a case rests upon the evidence of a solitary witness, the law is well settled that it must be unimpeachable, true, trustworthy, free from doubt and must be put in the category of ‘wholly reliable’. Then only such evidence needs no corroboration. When the evidence of a witness is put in the category of ‘wholly reliable’, then only there is no legal bar to base conviction on the solitary testimony of the witness. When the evidence of witness is neither wholly reliable nor wholly unreliable, then such evidence requires corroboration. On this aspect, it is pertinent to refer to a decision in VADVIVELU THEVAR V THE STATE OF MADRAS ([1]), wherein it was held thus: (Para “Generally seeking oral testimony in this context may be classified into these categories, namely: (i) Wholly reliable (ii) Wholly unreliable (iii) Neither wholly reliable nor wholly unreliable In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach on suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.” Bearing the above principles in mind, it has to be seen whether P.W.2 is wholly reliable witness or not. 12. It is not in dispute that P.W.1 made an application to the Telecom Department for providing Telephone Connection for maintaining Public Call Office (PCO) (without STD). Admittedly, P.W.1 is not a physically handicapped person. As seen from Ex.P.1 a Medical Certificate, has to be issued by a competent doctor in case of physically handicapped person who wants to run the PCO. The address is given as house bearing No.16-11- 959/A/1, Ambar Nagar, Ram Nagar, Hyderabad. The corresponding address was given as he was residing in Ambedkar Nagar Colony, Saroor Nagar, Ranga Reddy District. There is no evidence on record to show that P.Ws.1 and 2 are actually residing in Ambedkar Nagar Colony, Saroor Nagar, Ranga Reddy District by the date of giving Ex.P.1. The corresponding address given in Ex.P.1 is false. It is not known as to why P.Ws.1 and 2 suppressed the residential address when they are not admittedly residing at Saroor Nagar. Admittedly, the house for corresponding address at Saroor Nagar was occupied by the friend of P.W.2 as on the date of Ex.P.1. According to P.W.1, he applied for telephone connection for uneducated and unemployed youth. There is no mention in Ex.P.1 that the application was made for giving PCO for unemployed youth. 13. On the other hand, the application is made under physically handicapped quota. It is not in dispute that the telephone connection was given by the Department at a house situated in T.R.T. Quarters, Vidyanagar New Nalakunta though P.W.1 stated that he made an application for change of address but the concerned file did not disclose about making such an application. It is not in dispute that P.W.2 was a painter and was having PCO connection at Vidyanagar. It is also not in dispute that since P.Ws.1 and 2 are not paying the bill amount due to the Telephone Department, the PCO connection was disconnected. So, the application made through his wife and giving information and giving wrong address and taking connection at a different place other than the place where P.W.2 wanted to install the telephone connection would indicate the conduct and behavior of P.W.1 is not above board. 14. The earliest Report Ex.P.3 would go to show that the appellant told P.W.2 that if Rs.1500/- is paid as bribe, dial tone will be given. The evidence of P.W.2 would go to show that even prior to the installation of instrument in his house, the appelant demanded money of Rs.1500/- for fixing the telephone instrument; and that when he showed the work order, he installed the telephone instrument and that for giving dial tone, he demanded money. The evidence of P.W.2 does not disclose on what date the appellant demanded money. P.W.2 hasn’t applied for the telephone connection first time, he was already having PCO connection and therefore, he would have known the person who has to give dial connection. It is not in dispute that Telephone Exchange people have to activate number by giving the dial tone. This can be seen from the evidence of P.W.5 who categorically stated that the work of Telephone Mechanic or lineman would be completed the moment he furnishes the vertical details to the concerned J.T.O. or S.D.O.P. and thereafter, it is for the Exchange people to activate the number. It is not the case of prosecution that the appellant as Mechanic did not furnish the vertical details before the J.T.O. or S.D.O.P. As a matter of fact, Ex.P.19 shows that Jumber Memo shown to P.W.5 was signed by P.W.5 and that there was a delay in sending the Jumber Memo due to the trap incident which was on 9-3-2001. Therefore, there is no official favour shown by the appellant pending. 15. It is enough for the prosecution to show that the appellant abused his official position and obtained himself any pecuniary advance. On this aspect, it is pertinent to refer the decision reported in RAM KRISHNA AND ANOTHER v. STATE OF DELHI ([2]) wherein it was held at paragraph 9 as follows: “If a man obtains a pecuniary advantage by the abuse of his position, he will be guilty under sub-cl. (d). Sections 161, 162 and 163 refer to a motive or a reward for doing or for bearing to do something, showing favour or disfavour to any person, or for inducing such conduct by the exercise of personal influence. It is not necessary for an offence under cl. (d) to prove all this. It is enough if by abusing his position as a public servant a man obtains for himself any pecuniary advantage, entirely irrespective of motive or reward for showing favour or disfavour.” 16. From the above decision, it is clear that there must be some nexus between the official act and proof of demand or acceptance. Admittedly, there is no official favour to be shown by the appellant to P.W.1 was pending because it is not part of the duty of the appellant to activate the telephone. The activation of the telephone should be done in the Exchange. Therefore, the allegation that the appellant demanded money for giving dial tone appears to be improbable since the appellant has to verify the status of the subscriber and residential particulars. The connection was taken at the premises at Ramnagar and actually, the connection was installed at another place. Therefore, the possibility of cropping up some misunderstandings between the appellant and P.W.2, cannot be ruled out. For the aforesaid reasons, P.W.2 cannot be put in the category of wholly reliable witness. The law is well settled that when the evidence of a witness is wholly reliable or wholly unreabliable, then such evidence requires corroboration. There is no corroboration with regard to demand and acceptance in this case admittedly; because the trap laying Officer did not send any accompanying witness to watch or observe the demand if any to be made by the appellant at the time of receiving the gratification. 17. It is not in dispute that P.W.9 Trap Laying Officer after receipt of the pre-arranged signal went to the place and asked Sri Guild, Police Constable to prepare Sodium Carbonate Solution in a glass tumbler which he did and the appellant was asked to dip his right hand in the solution and the said solution turned into pink, the same was transferred into a clean glass bottles and it was sealed and obtained the signature of the independent witnesses. He further stated that thereafter, the said Police Constable was asked to prepare another Sodium Carbonate Solution which he did and again the appellant was asked to dip his left hand fingers in the solution, but there was no colour change in the solution. Hence, the test conducted on right hand finger of the appellant gave positive result suggesting that appellant received money from P.W.2. Even the appellant did not deny or dispute about the receipt of money from P.W.1. His contention is that he received the amount towards the value of chair and table. There may not be any dispute that mere explanation is not sufficient to discharge the burden placed on the appellant. For discharging his burden, he need not examine himself in Court but he can as well show it by cross examining the prosecution witnesses. P.W.2 admitted that the table, chair and stool were not accommodated in the place of the stairs and he is not having the same as the same were taken away by the appellant towards the amount due by P.W.2 for which P.W.2 promised to pay at the time of giving S.T.D./P.C.O. connection. If really that statement is found to be false, then the appellant would not have given spontaneous explanation stating that he received the amount which was due from P.W.1 towards cost of table and chair. In Ex.P.5 Post trap proceedings, it is clearly mentioned that the appellant has given a spontaneous explanation to the effect that he received the amount from P.W.2 towards the amount due. That spontaneous explanation coupled with the admission made by P.W.2 suggests that P.W.2 owed some amount to the appellant. If the evidence of P.Ws.1 and 3 and 9 is to be accepted as correct, it is clear that the appellant demanded and accepted illegal gratification for showing the official favour. Similarly, if the immediate explanation coupled with the evidence brought on record would also equally possible that the appellant received the amount from P.W.2 as he owed some amount to him. When two views are reasonably possible, the view in favour of the appellant should be adopted on this aspect. It is pertinent to refer a decision reported in KALI RAM V STATE OF HIMACHAL PRADESH ([3]) wherein it was held thus: “Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable; it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. As mentioned by us recently in the case of State of Punjab V Jagir Singh (AIR 1973 SC 2407) a criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions, in arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final anolysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.” 18. From the above decision, it is clear that when two views are reasonably possible, the view favourable to the appellant should be adopted. Therefore, the appellant had shown by preponderance of probability that he received the amount from P.W.1, as P.W.1 had to pay some amount to him. Therefore, the benefit of doubt should be given to the accused. 19. The trial Court relied upon the circumstance that when P.W.1 was giving money as he owed to the appellant, there is no need for him to take it in a secret way. There is no evidence to show that the appellant took P.W.2 to a secret Place. It is the evidence that when the appellant and some other persons were attending to the repairs at Sivam Road, P.Ws.2 and 3 went there, then the appellant took P.W.2 to the place near pole. That cannot be said to be secret place. Even that place was visible to the place where P.W.1 was standing. Therefore, for the aforesaid reasons, the evidence adduced on behalf of the prosecution equally suggests that the appellant has not received the amount for showing any official favour as a Pubic Servant. 20. In view of the above discussion, this Court has no hesitation in holding that the prosecution failed to establish the guilt of the appellant beyond all reasonable doubt for the charges levelled against him. 21. In the result, the conviction and sentence passed by the learned Special Judge for CBI Cases, Hyderabad, in the judgment, dated 16-05-2003, in C.C.No.21 of 2001, on the file of the learned Special Judge for CBI Cases, Hyderabad, against the appellant- accused of the offences punishable under Sections 7 and 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act are set aside. The appellant-Accused is found not guilty of the offences levelled against him and accordingly, he is acquitted. The bail bonds of the appellant/accused shall stand cancelled. The fine amount, if any, paid by the appellant-Accused shall be refunded to him. 22. Accordingly, the Criminal Appeal