HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2224 OF 2004 Dated 18-02-2011 Between: G Venganna ……..Appellant Vs. State, rep. by ACB., Kurnool. ………Respondents HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2224 OF 2004 JUDGMENT: The appellant herein is the accused No.3 in C.C.No.12 of 1998 on the file of the Additional Special Judge for SPE & ACB Cases- cum- V Additional Chief Judge, City Civil Court, Hyderabad and he was prosecuted along with other two accused for an offence under Sections 7, 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 (for short, the Act) read with 34 IPC. The case of the prosecution is that one patient by name D. Ramudu was admitted in E.N.T Ward Government General Hospital, Kurnool on 21.4.1997 with an ear ailment and he was operated in D Operation theatre No.I, Government General Hospital, Kurnool on 22.4.1997. The accused 1 to 3 of DOT-II assisted the ENT doctors at the time of performing operation on the patient D. Ramudu. While shifting the patient from operation theater to ENT ward, the accused held up the patient on the way for half an hour for want of bribe. The accused No.1 demanded an amount of Rs.600/- as bribe from the complainant, who was with the patient for himself and for the accused No.2 and 3 for the service and assistance rendered by them. Subsequently on 23.4.1997 and on 24.4.1997, the accused 1 to 3 visited the ENT ward and harassed the complainant and his relatives for payment of bribe amount. The complainant unwilling to pay the bribe approached PW.9 who is the Deputy Superintendent of Police, ACB, Kurnool and gave Ex.P.1 complaint and the same was registered in Crime No.7/ACB-KUR/97, dated 24.4.1997 and took up the investigation. During the course of investigation, P.W.9 the Deputy Superintendent of Police, ACB, secured the services of P.W.1 the complainant, P.W.2 Assistant Labour officer, Kurnool and laid a trap against the accused on 25.4.1997. On 25.4.1997, P.W.1 accompanied by P.W.2 entered the ENT ward and approached the accused 2 and 3 near operation theater and they took them to dressing room and demanded and accepted the tainted amount of Rs.400/- as illegal gratification, saying that they had done a lot of service at the time of operation and thereafter. When the fingers of the accused 2 and 3 were subjected to sodium carbonate solution test, for the presence of phenolphthalein articles, the right hand fingers of accused officer No.2 and also right hand fingers of accused No.3 gave positive result and the tainted currency of Rs.400/- wrapped in hand kerchief of the accused No.2 and kept on the table was seized at the instance of the accused. Hence, they were prosecuted for the offence under Sections 7, 13(1)(d) read with Section 13(2) of the Act. The learned Special Judge has framed a charge under Sections 7, 13(1)(d) read with Section 13(2) of the Act against the accused 1 to 3 and the accused pleaded not guilty for the said charges. During the pendency of the trial, A.2 expired and the trail was conducted against the accused 1 and 3 only. The prosecution in order to establish the charges, examined P.Ws.1 to 10 and got marked Exs.P.1 to P.13 and MOs.1 to 10. When the accused 1 to 3 were examined under Section 313 of Cr.P.C, they filed written statement stating that they did not demand any bribe amount from the complainant and they never accepted the same when they were posted in DOT from 1.4.1997 and the operation of D. Ramudu was conducted in DOT-I on 22.4.1997 and the accused did not assist the Doctor when he was operated and it is highly impossible for the accused No.2 to tie the currency notes in hand kerchief with his right hand only. On the date of trap while the accused were changing the clothes to go to operation theater, all of a sudden the Deputy Superintendent of Police, ACB and some others rushed into the room and asked the accused No.2 to untie and pass on the bundle lying on the table to the accused officer No.3 and that the accused have no knowledge about the bundle containing the currency notes. The learned Special Judge after taking into consideration of both oral and documentary evidence found A.1 not guilty for the offence under Sections 7, 13(1)(d) of the Act and found A.3 guilty for the offence under Sections 7, 13(1)(d) read with Section 13(2) of the Act and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.500/- in default to undergo simple imprisonment for a period of three months under each Section. Aggrieved by the said conviction and sentence, the present appeal is filed. Now the point that arises for consideration is whether the prosecution could able to establish the accused has committed the offence punishable under Sections 7, 13(1)(d) read with 13(2) of the Act? The learned counsel for the appellant has pleaded that the accused V. Lava Raju, Shik Hussain and Vengaiah worked as a Male Nursing orderly in DOT-II, Government General Hospital, Kurnool and the patient D. Ramudu under gone operation in DOT-I and they never assisted the Doctor who conducted the operation on D. Ramudu and they never demanded any amount from the complainant and the accused was falsely implicated in this case by the Deputy Superintendent of Police, ACB. The learned counsel has further pleaded that P.W.1 who is the complainant has not identified the accused and P.W.3 who is the relation of the patient D. Ramudu has not supported the case of the prosecution and the only evidence available on record is of the evidence of accompanying witness cum Mediator for the trap P.W.2 and he has stated that cash was paid by the complainant to A.2 and the said A.2 is no more. The only evidence that is pointing out the appellant i.e., A-3 the test conducted by the Deputy Superintendent of Police, ACB on the right hand fingers which resulted positive. Therefore, the prosecution could not able to establish the offence of demanding and accepting of the bribe amount by the present accused. The learned Public Prosecutor, on the other hand, has pleaded that the Prevention of Corruption Act is a social legislation to curb illegal activities of public servants and should be liberally construed so as to advance its object and not liberally in favour of the accused and in support of his contention, he relied upon a decision rendered in State of MP and others vs. Ram Singh[1] wherein the Apex Court has held: “It is a a social legislation to curb illegal activities of public servants and should be liberally construed so as to advance its object and not liberally in favour of the accused.” The learned Public Prosecutor has also pleaded that the evidence adduced before the lower court has properly appreciated by the lower court and the same does not warrant any interference by this Court and in support of his contention, he relied upon a decision rendered in State of A.P., vs. K. Punardana Rao[2] wherein the Apex Court has held: “The High Court has committed a serious error by rejecting the evidence of P.W.1 and the evidence of the accompanying witnesses of the trap party. The recovery of the tainted money from the respondent coupled with the evidence of P.W.1 clearly establishes that the respondent did receive a bribe and thus committed the offence under Section13(1)(d) read with S.13(2) of the Act. The defence evidence adduced by the respondent was not able to cast any suspicion on the prosecution case.” In view of the above decisions and contention of the learned counsel for the appellant, it has to be examined whether the prosecution could able to establish that the accused has demanded and accepted the illegal gratification as alleged by the prosecution. According to the prosecution on 21.4.1997 one D. Ramudu was admitted in the Government General Hospital, Kurnool with ear ailment and he was operated on 22.4.1997 in DOT-I operation theater and while the patient was shifted from the operation theater to the ENT ward, A.1 to A.3 held the patient on the way for an half an hour and demanded the complainant to pay Rs.600/- and when he expressed his inability to pay the same they reduced the same from Rs.600/- to Rs.400/- and compelled him to pay the said amount and the complainant promised to pay the same after getting the money from his elders. Subsequently also the accused harassed the complainant and his brother in the ENT ward. Thereafter, on the complaint of the complainant, a successful trap was conducted and the present accused has received the amount from the complainant and it gave positive result. The main contention of the learned counsel for the appellant is that the accused have not worked in the DOT-I operation theater and they are only working in the DOT-II operation theater and there is no evidence to show that as on the date of the operation of the said D. Ramudu on 22.4.1997, the accused 1 to 3 worked in DOT-II. In that regard, the prosecution examined P.W.4 Dr. P. Subramanyam who worked as ENT Chief, Government General Hospital, Kurnool from 1994 to 15.1.2000 and according to him, the patient D. Ramudu was operated by him on 22.4.1997. There are two operation theaters adjacent to each other. There are 6 ward boys and three of them attend each theater. He does not remember the names of the 6 ward boys who attended the duty on 22.4.1997. One Mr. Lavaraju, Mr. Vegaiah and one muslim boy are the ward boys who attended this operation, another ward boy Krishna Murthy also attended this operation and he identified A.1 and A.3 who were present in the court hall. In the cross- examination, he admitted that there are two operation theaters they are called as DOT-I and DOT-II and there is one Head Nurse for both the operation theatres. Dr. N. Surya Rao was the in-charge of both the theaters. He admitted that the operation on D. Ramudu was performed on 22.4.1997 in DOT-I. There is no entry in the record with regard to the names of the ward boys who attended the operation. Another witness Dr. S. Surya Rao was examined as P.W.5 who is said to be the in-charge of the ‘A’ and ‘B’ operation theatre and Emergency operation theatre. There are staff nurses and MNL are separately allotted to each theatre. Whenever the services of the staff is required from one theatre to another theatre Head Nurse will make necessary arrangements. On 25.4.1997, he was called to DOT complex by the ACB officials between 10.00 or 10.30 a.m then at the request of the ACB officials, he verified the registers and also attendance register with regard to attendance of register pertaining to DOT 1 and 2 from 22.4.1997 to 25.4.1997. In the cross-examination, he admitted that for taking the service of ward boys or sweepers of one theatre to another theatre, the permission of in-charge doctor or head nurse is required. He also admitted that he told the ACB officials that he did not give any permission for utilizing the services of the word boys of DOT-II to DOT-I and he also called the head nurse Rama Laxmamma and enquired with her and she told that she did not give any such permission. Therefore, according to P.W.5, he did not give any permission for utilizing the word boys attached to DOT-II in DOT-I. P.W.6 K. Rama Laxmamma was examined and stated that she used to supervise all the operation theatres on the instructions of the doctor, the staff nurse will take the services of any staff member working in operation theater into another theater whenever there is necessity. In the cross-examination, she stated that the in-charge doctors permission is required for taking the services of the staff from one theatre to another theatre. She has not given any permission for taking the services of the accused in DOT-I on 22.4.1997 and all the staff members of the DOT-I were present as seen from Ex.P.8. The another witness K. V. Uma Maheswari, Staff Nurse was examined as P.W.7 and she stated that the accused were working in DOT-II during that time. But she admitted in the cross-examination that Dr. Surya Rao was in-charges of DOT-I and II and P.W.6 was the Head Nurse of the DOT-I and II. She also admitted tht for taking the services of the staff members from one theater to another theater, the permission of the in-charge doctor or the Head Nurse is required and they adjust the staff if any one is absent or on leave by taking permission of in-charge doctor or Head Nurse. She also admitted that P.W.6 or In-charge doctor has not given any permission to the accused persons to work in DOT-I. Therefore, from the above evidence of P.Ws.4,5, 6 and 7, it is evident that the accused officer working only in DOT-II operation theater and they have not worked in DOT-I operation theater on 22.4.1997. Even though they worked in the said theater as stated by P.Ws.5, 6 and 7, the permission of the doctor is required for taking the services of the staff of the DOT-II to DOT-I and no such permission was granted by the in-charge doctor P.W.5 or Head Nurse P.W.6. Therefore, the prosecution could not able to establish that the accused worked in DOT-I as on the date of the operation conducted on D. Ramudu on 22.4.1997. With regard to payment and acceptance of the illegal gratification, according to the prosecution, the accused demanded the complainant for payment of illegal gratification of Rs.600/- while the patient being shifted from operation theater to ENT ward and when he expressed his inability to pay the such huge amount, the same was reduced to Rs.400/- and he has promised to pay the said amount after taking the same from their elders and subsequently when the accused started harassing the complainant, the complainant lodged a complaint with the Dy. Superintendent of Police, ACB. Even though P.W.1 has stated that after completion of the operation, Ramdu was brought out side the operation theatre by the three ward boys viz., Lavaraju, Shaik Hussain and G. Venganna and from there to shift him to the ward, the said three ward boys demanded money of Rs.600/- @ Rs.200/- each and that when the complainant expressed his inability to pay that much of amount, the accused reduced it to Rs.400/- and he told that they will give the amount after their elders coming to the hospital from the village and thus he postponed the matter. On 24.4.1997, he went to the ACB officials, Kurnool and orally complained to them and they reduced it in writing and obtained his signature. Ex.P.1 is complaint containing his signature. But he did not identify the accused 1 to 3 present in the court hall and he has specifically stated that they are not the persons who demanded the amount from him and he never saw them earlier. In the cross-examination he stated that the operation of his brother D. Ramudu was performed in the DOT- I. There are separate ward boys in DOT-I and II. He has paid the said amount to the word boys. He admitted that he does not know the names of word boys who demanded the bribe and one constable gave the names of the word boys. When he was examined by DSP, he has not stated the names mentioned in the complaint Ex.P.6 which is in Telugu. Therefore, according to P.W.1, the accused present in the court hall are not the persons who demanded the amount from him. P.W.3 who is the cousin of P.W.1 even though stated that his father Ramudu was admitted in the Government General Hospital, Kurnool for ear operation, he did not say anything about the demand made by the accused and he also not supported the version of the prosecution with regard to A.1 to A.3 demanding illegal gratification from the complainant and harassing the P.Ws.1 and 3. Therefore, there is no direct evidence on record to show that the accused has demanded illegal gratification. With regard to conducting of the trap, according to the prosecution on 25.4.1997, the complainant along with the accompanying witness, Y. Satyanarayana gone to the Government General Hospital, Kurnool and at the instance of P.W.3 they have gone to the operation theater and found A.2 and A.3 and they took them to Ward boys dress change room and demanded and accepted tainted amount of Rs.400/- and on the signal given by P.W.1, they have gone to the dress changing room and conducted the sodium carbonate solution test both on A.2 and A.3 and it gave positive results. P.W.1 who is the complainant in chief-examination has stated that himself and mediator went to the operation theater. One of the three ward boys asked them to pay the amount to the other ward boys and went away from there. The other two ward boys took them into the room which is meant for changing the dress for the staff and in that room he paid the amount to them. At that time the mediator was also present. Then he came out and wiped his face three times with hand kerchief as directed by DSP, ACB. Then DSP and his party came there and went to the room where he paid amount and took the two ward boys to another room and conducted proceedings. When DSP enquired him, he told him that the amount was given to the two ward boys. But in the cross-examination by the A-1 counsel, he has stated that after giving signal, the trap party entered into the room of the word boys who have taken the money were not there and the money was lying on the table and some ward boys were changing the dresses. P.W.2 is the accompanying witness has stated that they reached the Government General Hospital, Kurnool by 8.25 a.m and they went to bhoot bunglow unit in the hospital. The trap party had taken vantage positions. Then himself and P.W.1 went to the P.W.1’s brother who was admitted in the hospital. When they enquired with them they were told that the ward boys came and went away. Then they went to the dressing room of the ward boys where they found 2 ward boys namely Shaik Hussain Peera and G. Vengaiah and they are A-2 and A-3 present in the court. When they demanded the money, P.W.1 gave the money to A.2 Shaik Hussain Peera. Then himself and P.W.1 came out and P.W.1 gave the prearranged signal to the trap party. They also followed the trap party and entered inside the room. At that time A-2 and A-3 changing the dresses and another ward boy by name Sunder Raju is there. That Sunder Raju was not present in the court hall among the accused who are in the court hall. DSP enquired the identity of A.2 and A.3 and also revealed the identity of mediators and DSP got prepared six sodium carbonate solution and conducted tests which gave positive result. Therefore, according to P.W.2 the amount was paid by him to A.2 and the Investigating Officer P.W.9 has stated abut his proceeding to the ward boys dress changing room on the signal given by P.W.1 and conducting the test to the fingers of right hand of A.2 and A.3 separately they turned into pink colour and gave positive result. According to him both of them pleading for excuses voluntarily indicated at a small bundle found on the table close to them. On his request, the mediators picked up the wad of currency notes and compared the particulars with those recorded in the pre trap proceedings. They confirmed that the amount was Rs.400/- and tallied in all particulars in numbers. Therefore, according to the Investigating Officer also the test conducted on the fingers of right hand of both the accused A-2 and A-3 turned positive. Thus, except the test conducted found positive to the right hand fingers, there is no other evidence to show that A-3 has accepted the illegal gratification from P.W.1. According to P.W.2 the amount was found tied in a kerchief on the table and the same was not recovered from the possession of either A.2 and A.3. Admittedly A.2 is no more and he was not tried for the said offence. The contention of the learned counsel for the appellant is that the said amount was found in tied hand kerchief on the table and the ACB officials asked the accused to open the said hand kerchief and due to which his right hand fingers turned positive result. With regard to giving complaint, P.W.1 has stated that he has given a complaint orally in Telugu and the same was recorded by the DSP, ACB and he has not disclosed the names of the persons who demanded the amount from him. Ex.P.1 contains the names of the person who has said to be demanded the illegal gratification from P.W.1. But as P.Ws.1 and 3 turned hostile to the prosecution, the prosecution could not able to establish that the present accused demanded and accepted the illegal gratification from P.W.1. As already observed above, except the test giving positive result to the right hand fingers of the accused, there is no evidence to show that he has accepted the illegal gratification from the P.W.1. Therefore, the prosecution has failed to establish that the accused who is the appellant herein has demanded and accepted the illegal gratification from the P.W.1. Simply because, the right hand fingers of the accused turned positive to the sodium carbonate solution test, it cannot be presumed that he has accepted the illegal gratification. Hence, I hold that the prosecution has failed to establish that the accused has committed the offence under Sections 7, 13(1)(d) read with 13(2) of the Act beyond reasonable doubt. In the result, the appeal is allowed and the conviction and sentence passed by the Additional Special Judge for SPE & ACB Cases-cum- V Additional Chief Judge, City Civil Court, Hyderabad in C.C.No.12 of 1998 dated 06.10.2004 is hereby set aside and the accused is acquitted. _____________________ P.DURGA PRASADJ. Date:18.02.2011 Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2224 OF 2004 Dated 18-02-2011 Gk. [1] (2000) 5 Supreme Court Cases 88 [2] AIR 2004 Supreme Court 4194