THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NOS. 634 AND 635 OF 2003. COMMON JUDGMENT: Since both the appeals arise out of same judgment, they are being taken up together and disposed of by way of this common judgment. 2. Criminal Appeal No.634 of 2003 by the appellant-A1 and Criminal Appeal No.635 of 2003 by the appellant-A2 under Section 374 (2) Cr.P.C., are preferred against the judgment, dated 16-06- 2003, in C.C. No. 21 of 2001, on the file of the Special Judge for CBI Cases, Visakhapatnam, whereunder and whereby the appellants were convicted of the charge under Section 120-B IPC and sentenced to undergo Simple Imprisonment for a period of one year each and also to pay a fine of Rs.500/- each, in default to undergo Simple Imprisonment for a period of one month each and further convicted of the charges under Sections 7 and 13 (1 (d) (ii)) r/w 13 (2) of the Prevention of Corruption Act, 1988 (for brevity ‘the Act’) and sentenced to undergo Simple Imprisonment for a period of one year each and also to pay a fine of Rs.1,000/- each, in default to undergo Simple Imprisonment for a period of one month each under each count and all the sentences were directed to run concurrently. 3. Brief facts, that are necessary for disposal of the present Criminal Appeals, may be stated as follows: P.W.1 is a business man running retail Medical Stores at Eluru Road in Gudiwada and since 1992 he was filing Income Tax Returns before the concerned authorities. During the last week of March, 2001, both A1 (hereinafter referred to as ‘A.O.1’) and A2 (hereinafter referred to as ‘A.O.2’) visited his shop and informed him that he was not filing the proper Income Tax Returns and was not declaring the actual income and is liable to pay Rs.50,000/- towards tax. A.Os. 1 and 2 threatened him that they would conduct survey at his house and shop and ensure that he would pay tax of Rs.50,000/- and then demanded bribe amount of Rs.5,000/- to avoid survey at his house and at the shop. Subsequently again on 25-04-2001 they visited P.W.1 and demanded him to pay Rs.5,000/- to either of them, failing which they would take action against him. On 27-04-2001 at 8 A.M. P.W.1 lodged Ex.P1-report against the A.Os before the CBI inspector. On receipt of the said report, P.W.3 sent the original complaint to Superintendent of Police, CBI, Visakhapatnam for registration. Thereafter, P.W.4 registered a case in Cr.No.RC 12 (A) of 2001 and issued Ex.P14- FIR. On the advice of P.W.3, P.W.1 visited the office at 10.15 AM with the bribe amount of Rs.5,000/-. In the meanwhile P.W.3 also secured the mediators-P.W.2 and another and introduced them to P.W.1 and held Ex.P3-pre-trap proceedings i.e., denomination and serial numbers of the currency notes were noted and demonstrated the sodium carbonate solution test to P.Ws. 1 and 2 and others. Then the entire trap party left the office by 11 A.M. and reached Gudivada by 12.45 P.M. Then P.Ws. 1 and 2 proceeded to the Income Tax Office and remaining trap party members took their vantage positions. On seeing P.W.1, A.O.1 offered them to sit and then A.O.1 enquired whether he brought the amount and on said demand, the tainted amount was handed over to A.O.1. A.O.1 received the same with his right hand and handed over the same to A.O.2 with his left hand. A.O.2 took the same and placed it in his right side table drawer. On receipt of pre- arranged signal by P.W.2, the trap party entered into the office and disclosed their identity and questioned both the A.Os about their demand and acceptance. Their version was incorporated in Ex.P7- post-trap proceedings. Then sodium carbonate solutions were prepared and both the A.Os were made to dip their hands in separate solutions, which gave positive results i.e., solution turned into pink colour. The solutions were collected in four separate bottles, sealed labeled and seized by P.W.3. He recorded the statement of P.Ws. 1 and 2 and incorporated the same in post-trap proceedings. At the instance of P.W.3, other mediator opened the right side drawer of the table of A.O.2 and found a bundle of fifty one hundred rupee currency notes. They verified the said currency notes and found the serial numbers of the notes tallied with those noted in Ex.P3-pre-trap proceedings. P.W.3 seized the currency notes. Thereafter, the drawer of the table was subjected to sodium carbonate solution test, which also gave positive result. Thereafter, P.W.3 conducted search of the office table of A.O.1 and seized Exs.P4 and P5 under Ex.P8-panchanama. He further seized attendance register of the Income Tax Office under Ex.P9 and Income Tax Return of P.W.1 under Ex.P13 panchanama. A rough sketch of the scene was prepared under Ex.P6. Then P.W.3 conducted search of the house of both A.Os. On completion of trap, P.W.5 took over further investigation, and after obtaining report under Ex.P12 and sanction under Ex.P11, filed the charge sheet. 4. The learned Special Judge framed the following charges against the accused: CHARGE NO.1: That you A1 and A2 during the month of March, 2001, while A1 and A2 of you were working as Income Tax Inspectors in the office of Income Tax Officer, at Gudivada, agreed to do, to wit you both demanded Rs.5,000/- as bribe by illegal means, threatening P.Venkateswara Rao, the complainant, that he has to pay Rs.50,000/- as Income Tax when you visited his medical shop and proclaimed that you both would conduct survey at the house and shop of the said Venkateswara Rao and demanded and accepted the illegal gratification of Rs.5,000/- as bribe from the said Venkateswara Rao on 27-04-2001 at about 1.00 P.M. at your office for not conducting survey at the medical shop and at the house of the said Venkateswara Rao, the complainant in pursuance of an agreement between you A1 and A2 and thereby both have committed an offence punishable under Section 120-B IPC. CHARGE NO.2: That you A1 and A2 on 27-04-2001 at about 1.00 P.M. at the office of Income Tax Officer, Gudivada, being the public servants employed as Income Tax Inspectors, demanded an accepted Rs.5,000/- as bribe from Venkateswara Rao, the complainant in pursuance of your earlier demands for yourselves, as gratification other than legal remuneration, as a motive or reward for official favour in the exercise of your official functions for not conducting survey at the medical shop and the house of P.Venkateswara Rao, the complainant when you visited the medical shop of P.Venkateswara Rao, you threatened him that he has to pay Rs.50,000/- as income tax, proclaimed that you would conduct survey at the house and medical shop of the said P.Venkateswara Rao, if the bribe amount is not paid to both of you, and you thereby committed an offence punishable under Section 7 of the P.C. Act, 1988. CHARGE NO.3: That you A1 and A2 on 27-04-2001 at about 1.00 P.M. at the office of Income Tax Officer, Gudivada, being the public servants employed as Income Tax Inspectors, demanded an accepted Rs.5,000/- as bribe from Venkateswara Rao, the complainant in pursuance of your earlier demands for yourselves, as gratification other than legal remuneration, as a motive or reward for official favour in the exercise of your official functions for not conducting survey at the medical shop and the house of P.Venkateswara Rao, the complainant when you visited the medical shop of P.Venkateswara Rao, you threatened him that he has to pay Rs.50,000/- as income tax, proclaimed that you would conduct survey at the house and medical shop of the said P.Venkateswara Rao, if the bribe amount is not paid to both of you, by corrupt or illegal means or by otherwise abusing your position as such public servant obtained for yourselves a pecuniary advantage to the extent of Rs.5,000/- as bribe and thereby you have committed the offence specified in section 13 (i)(d)(ii) of the P.C. Act, 1988 punishable under Section 13 (2) of that Act When the above charges were read over and explained to the A.Os 1 and 2 in Telugu, they pleaded not guilty and claimed to be tried. 5. To substantiate the charges, the prosecution examined P.Ws. 1 to 5 and got marked Exs.P1 to P14 besides case property M.Os. 1 to 6. 6. After closure of the prosecution evidence, A.Os 1 and 2 were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same. On behalf of the A.Os, D.Ws. 1 to 4 were examined and Exs.D1 to D5 were marked. 7. The trial Court upon consideration of entire oral and documentary evidence available on record, convicted and sentenced the A.Os. as above. Challenging the same, A.Os. preferred these two appeals. 8. Now the point that arises for consideration is whether the prosecution proved its case against the A.Os of the offences punishable under Sections 120-B IPC and 13 (1) (d) (ii) r/w 13 (2) of the Act beyond all reasonable doubt and whether the judgment of the trial Court is legal, correct and proper? 9. Mr.C.Padmanabha Reddy, learned senior counsel appearing for the appellants-A.Os contended that the evidence of prosecution witnesses appears to be improbable in view of several circumstances which indicate their testimony as unbelievable, that there is evidence to show that till 25-04-2001, A.O.1 had taken treatment as an inpatient in the clinic of D.W.4 and therefore, question of demand made by both the A.Os does not arise, that immediately after discharge, he left to Hyderabad to attend a function at his friend’s house, that on 27-04-2001 morning he returned to Gudivada and while getting down from the train, he sustained injury and therefore, this circumstance would clearly go to show that the demand made by them on 25-04-2001 appears to be false, that it was not possible to scribe a report like Ex.P3, which contain the demonstration, noting down the numbers, applying phenolphthalein powder and the procedure to be followed within a span of one hour, that it is highly difficult to travel eight persons in a car from Vijayawada to Gudivada, that it is also highly improbable to believe that two persons demanded bribe for showing official favour and A.O.2 is nothing to do with jurisdiction in which the medical shop is maintained by P.W.1, that as the Income Tax returns have to be submitted in the month of August every year, the allegation that the A.Os. demanded money appears to be improbable, that contacting P.W.2 and another official in the morning time by the Trap Laying Officer is highly improbable, that the evidence adduced by the defence would also reasonably possible, that it was not possible for P.W.1 to be present at Vijayawada and on the other hand, the evidence of D.W.3 coupled with the recitals in Ex.D5 would go to show that P.Ws. 1 and 2 were present in the Income Tax Office, Gudivada at 10.30 A.M., that there is evidence to show that P.W.5- Investigating Officer was present in Gudivada from 26-04-2001 till 28-04-2001, but that fact has been suppressed by the prosecution, that one Hanumantha Rao, who is the Income Tax Practitioner is the person behind laying of false trap against A.Os as all the Inspectors would act according to his tunes, that the evidence of D.W.2 would go to show that the Trap Laying Officer including P.Ws. 1 and 2 were present in Gudivada from the morning on the date of trap, that in view of these infirmities, it is not safe to place an implicit reliance on the evidence of prosecution witnesses and hence, he prays to set aside the convictions and sentences recorded against the A.Os. 10. On the other hand Mr.T.Niranjan Reddy, learned standing counsel appearing for CBI cases contended that P.W.1 has no enmity or animus against both the A.Os so as to foist a false case of this nature, that there is no evidence to show that P.W.1 and Hanumantha Rao at whose instance the alleged false case is foisted is shown to be good friends and not even the person dealing with the Income Tax Returns of P.W.1, that P.W.2 is totally an independent witness, who was summoned by the Trap Laying Officer and he has no other reason to speak false against the A.Os, that when both the hand fingers of A.Os were subjected to Sodium Carbonate Solution Test, they turned into pink colour, that the tainted currency notes were seized from the table drawer of A.O.2, that there is no need for them to receive any amount from P.W.1 and receipt of amount has been established, that it was not that difficult to scribe Ex.P3 report within one hour, that there is no other reason for P.W.3 to foist a false trap against the A.Os, that the evidence of D.W.2 cannot be accepted in view of the fact that for the first time, he was deposing in the Court, that after elaborate consideration of evidence on record, the trial Court rightly convicted and sentenced the A.Os and absolutely, there are no grounds to interfere with the same. 11. Section 120-B IPC prescribes punishment for criminal conspiracy. Necessary ingredients to constitute the offence of Criminal Conspiracy are as follows: “(a) Two or more persons agree to do or cause to be done an act. (b) The act agreed must be- (i)an illegal act or, (ii)an act which is not illegal but is done by illegal means (c) If the agreement is not to commit an offence then some act besides the agreement is- (i) by one or more parties to such agreement (ii) in pursuance of the agreement” 12. The essential ingredients of Section 7 of the Act are: a. that the person accepting the gratification should be a public servant; b. 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. 13. Insofar as 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. 14. It is not in dispute that P.W.1 was running a medical shop under the name and style of ‘Madhavi Medical Stores’, Gudivada. It is also not in dispute that he was an income tax assessee. Since 1992, he was filing Income Tax Returns before the concerned authorities. It is also not in dispute that A.Os. 1 and 2 were working as Inspectors in the Income Tax Office at the relevant point of time. It is also not in dispute that A.O.1 was having jurisdiction to inspect the premises of P.W.1. It is also not in dispute that A.O.2 was not having any jurisdiction to conduct any inspection of the medical shop of P.W.1. It is also not in dispute that when both hands fingers of A.Os. 1 and 2 were subjected to Sodium Carbonate Solution Test, the solution turned into pink colour. It is also not in dispute that the upper lining of the table drawer got washed with cotton was also when subjected to test, it gave positive result. 15. According to P.W.1, in the last week of March, 2001, both the A.Os. 1 and 2 came to his medical shop and stated that he was not declaring his actual income and that he has to pay Rs.50,000/- towards tax. When P.W.1 stated that he was declaring annual income and paying the tax, both the A.Os. threatened him that they would conduct survey at his house and shop and demanded bribe of Rs.5,000/- to avoid survey at his house. Again on 25-04-2001 evening, they came to the shop and demanded bribe of Rs.5,000/- to be paid to either of them on 27-04-2001 in their office, failing which, they would initiate action against him. From the evidence of P.W.1, it is clear that the first demand was made in the last week of March, 2001, whereas the second demand was made on the evening of 25-04-2001. The earliest report would also go to show that both the A.Os. 1 and 2, who were working as Income Tax Inspectors came to his house one month prior to lodging of report and stated that he was not filing proper Income Tax Returns and that he has to pay Rs.50,000/- toward tax. When he stated that he was filing annual returns and he need not pay income tax, they threatened him that if he does not pay tax of Rs.50,000/-, they would initiate action against him. For not initiating action, they demanded bribe of Rs.5,000/-. Though it is stated that since then they been coming to his shop and made repeated demands for bribe, that appears to be false in view of the fact that A.O.1 was admittedly taken treatment for his ailment in the clinic of D.W.4 from 05-04-2001 till 25-04-2001. It is also clearly stated in Ex.P1 that on 25-04-2001 evening, both the officers came and demanded to pay Rs.5,000/- as bribe on 27-04-2001, failing which, action would be initiated against him. The earliest version as stated in Ex.P1 is completely in corroboration with the evidence of P.W.1 on material particulars, namely with regard to the A.Os. 1 and 2 demanding Rs.5,000/- as bribe in the last week of March, 2001 as well as on the evening of 25-04-2001. No doubt, P.W.1 has not stated in Ex.P1 that at what point of time, money was demanded on 25-04-2001 by the A.Os, but in the evidence he stated that both the A.Os. 1 and 2 at about 6.00 P.M. on 25-04-2001 demanded him to pay Rs.5,000/-, which according to the learned senior counsel appearing for A.Os. 1 and 2 is quite improbable in view taking treatment by A.O.1 in the clinic of D.W.4. 16. D.W.4 who was examined on behalf of A.Os stated that A.O.1 had taken treatment in his clinic on 05-04-2001 with complaints like fever and lack of appetite. He conducted investigation and one of the tests confirmed Jaundice. A.O.1 was also having fungal infection in the throat. He issued Ex.D5 bunch of medical certificates on 02-05-2001. Therefore, from the evidence of D.W.4, it is clear that A.O.1 was suffering from Jaundice prior to the date of alleged second demand made along with A.O.2. On the evening of that day, according to A.O.1, he left to Hyderabad to attend a function at his friend’s house. It is not in dispute that he returned to Gudivada on the morning of 27-04- 2001. It is also not in dispute that while getting down from the train, he sustained head injury and he fell down. Though he stated that on 25-04-2001 evening, A.Os. 1 and 2 allegedly made demand, but at the same time it must be shown that by evening A.O.1 left Gudivada to go to Hyderabad to attend a function at his friend’s house. No doubt, burden placed on the A.Os. 1 and 2 is not so high when compared with the prosecution, but at the same time, they must establish their case beyond preponderance of probability. There must be some evidence that at what time, A.O.1 left Gudivada to go to Hyderabad. Even by bus one can cover the distance by that night. Therefore, at what point of time A.O.1 left Gudivada is more important. To prove that fact, A.O.1 has not produced any documentary evidence. Similarly, it was not that impossible for a person after discharge from the hospital before noon to go to the shop of P.W.1 and make a demand. It is not in dispute that, before noon, on 25-04-2001 he was discharged from the hospital. He has not undergone any surgery so that it was not possible for him to go to any other place except to his house. He was treated for fever and jaundice and D.W.4 also admitted that at the time of discharge, A.O.1 was in good condition to travel from Gudivada and back. Such is the case there is every possibility for A.O.1 to go along with A.O.2 to the shop of P.W.1 on the evening of 25-04-2001. That aspect of the case cannot be shown to be impossible. There must be some animus for P.W.1 to foist a false case of this nature against A.Os. 1 and 2. According to P.W.1, he was filing Income Tax Returns for his medical shop right from the year 1992. It is not the case of A.Os. 1 and 2 that P.W.1 was making any false returns or that he was warned by the Income Tax authorities for not filing true and correct returns prior to the date of trap. Therefore, absolutely there is no reason for P.W.1 to foist a false case of this case against both A.Os. 1 and 2 unless they demanded some amount. There is official favour to be shown by A.Os. 1 and 2 to P.W.1 was pending i.e., not to conduct survey at his house and shop and not to levy tax of Rs.50,000/-. Though A.O.2 was not having any jurisdiction to conduct survey, he accompanied A.O.1 on both occasions to the shop of P.W.1. When A.O.2 was not having any jurisdiction, there is no need for him to accompany A.O.1 to the shop of P.W.1. 17. The evidence of P.W.2, who is an independent witness would go to show that he accompanied P.W.1 on the date of trap i.e., on 27-04-2001 at about 12.45 P.M. and entered into the office of A.Os. It is the A.O.1 who demanded P.W.1 to pay Rs.5,000/- and accordingly, P.W.1 paid amount to A.O.1. A.O.1 received with his right hand and gave it to A.O.2 with his left hand. A.O.2 after counting the currency notes with his both hands, kept the same in the table drawer. On this aspect, the evidence of P.Ws. 1 and 2 is completely in corroboration with each other. There are no discrepancies with regard to demand made by A.O.1 and receiving money in the first instance by A.O.1 and passing it to A.O.2 and A.O.2 keeping the same in the table drawer after counting. It is not in dispute that the currency notes were seized from the table drawer of A.O.2. 18. The case of A.Os. 1 and 2 is that when P.W.1 kept the currency notes on the table requesting A.O.1 to keep that amount with him and not to trouble the medical shop owners, A.O.1 pushed back the currency notes and went to his office room. Thereupon, P.W.1 allegedly put the currency notes in both the hands of A.O.2. A.O.2 also refused to receive the amount and so refusing, he left the office room. Thereafter, it is alleged that P.W.1 kept the amount in the table drawer of A.O.2. There is no evidence to show that these two Inspectors were troubling P.W.1 or anyone of the medical shop owners in Gudivada town. There is absolutely no reason for P.W.1 to give Rs.5,000/- on the date of trap to both A.Os. 1 and 2. If really the amount was kept by P.W.1 on the table drawer of A.O.1 and he pushed the same refusing to receive the same and thereafter P.W.1 kept the same in both the hands of A.O.2, the spontaneous explanation would be the same. On the other hand, both A.Os. 1 and 2 did not give any spontaneous explanation to trap laying officer. It is not the case of both A.Os. 1 and 2 that the version given by them has not been incorporated in Ex.P7. On the other hand, the evidence of P.Ws. 1 and 2 would clearly disclose that on the date of