IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE NINETEENTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT: THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CRIMINAL APPEAL No.268 of 2002 Between: Mamidipally Seshagiri, S/o.Damodhar,H.C. No.444, Makloor P.S., Nizamabad District. (Died). Mamidipally Vijaya Lakshmi, W/o. Late M. Seshagiri, H.C. No.444, Makloor P.S., Nizamabad District. - - - Accused/Appellant. AND The State of A.P. Rep. by Anti Corruption Bureau, Nizamabad Range, Nizamabad. - - - Complainant/Respondent. The Court made the following: THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR CRIMINAL APPEAL No.268 of 2002 JUDGMENT The Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”) read with Section 27 of Prevention of Corruption Act, 1988 (for short, ‘P.C. Act’), is originally filed by the accused M. Seshagiri, challenging the judgment dated 06-03-2002, in C.C. No.19 of 1998, on the file of the learned Principal Special Judge for SPE and ACB Cases-cum-IV Additional Chief Judge, City Civil Court, Hyderabad (Hereinafter referred to as ‘learned Special Judge’), wherein the learned Special Judge convicted the accused for the offences punishable under Sections 7, 11 and 13(2) Read with 13(1) (d) of P.C. Act, 1988, and sentenced him to undergo R.I. for a period of one year and to pay a fine of Rs.250/-, in default, to undergo RI for a period of two months for the offence punishable under Section 7 of P.C. Act, and also convicted the accused for the offence punishable under Section 13(1) (d) read with Section 13(2) of P.C. Act, and sentenced him to undergo R.I. for a period of one year and fine of Rs.250/- in default, to undergo R.I. for a period of two months. Both the sentences are ordered to run concurrently. After filing the Appeal the appellant died, his wife filed an application to continue the appeal and she was brought on record as the legal representative of the appellant vide separate orders in Crl.M.P. No.2353 of 2005, dated 28-12-2005. 2. The brief facts of the case are as follows : Sri Sunkara Goverdhan (PW.1) who is the complainant is resident of Nizamabad and he was running a Dairy Farm at Madapur of Makloor Mandal. On 01-05-1997, PW.1 having seen that the cattle of Chakali Lingam (DW.1) grazing in his dairy farm, he drove them away and in that process he beat calf of Chakali Lingam (DW.1) and the said calf sustained fracture to its leg and backbone and subsequently died on the next day. According to PW.1, Chakali Ashok, brother of Chakali Lingam beat him, and then the neighbours intervened and rescued him. On the same day, PW.1 went to Nizamabad and returned at about 10-00 p.m., then he learnt that during his absence some henchmen of DW.1 came to the dairy farm and created galata, and when, he went to the police station to lodge a complaint, the accused officer abused and beat him and informed that DW.1 had already lodged a complaint against PW.1 and he was detained in the police station. Then, at the instance of Sarpanch of the village i.e. J. Pandari (DW.2), PW.1 was released from the police station on 02-05-1997. The Sarpanch and other village elders settled the dispute between PW.1 and DW.1, and on 03-05-1997 PW.1 went to the police station and handed over a compromise letter to the accused. Then S.I. of police was also present in the police station. After handing over the compromise letter, when PW.1 was returning, the AO called PW.1 and demanded a bribe of Rs.3,000/- i.e. Rs.2,000/- to him and Rs.1,000/- to his staff. When PW.1 expressed his inability to pay the amount, it is alleged that, the accused threatened to kill him and asked him to pay the said amount within two or three days. On 06-05-1997 accused came to the dairy farm of PW.1 during his absence of and collected Rs.400/- from one Satyapaul one of the partners of dairy farm. On 10-05-1997 at about 09-00 a.m. while PW.1 was having tea near Makloor police station, the accused officer demanded bribe amount from PW.1. It is also alleged that the accused threatened PW.1 that if he did not pay the bribe amount, he would be implicated in a false case. On 11-05-1997, PW.1 approached the DSP ACB Nizamabad, i.e. PW.6 and lodged a complaint in Ex.P1 on that DSP ACB Nizamabad, advised PW.1 to come to his office next day along with proposed bribe amount of Rs.3,000/- 3. According to PW.6, after receiving Ex.P1 report, he made discrete enquiries and then registered a case in crime No.4/ACB- NZB/97 under Section 7 and 11 of P.C. Act, 1988 and issued F.I.R. Ex.P.11, then he gave requisition to arrange mediators to the Principal, Government Polytechnic, Nizamabad, and accordingly A. Manohar Reddy (PW.2) and Ahmed Ibrahim went to the office of ACB, Nizamabad, on 12-05-1997 at 11-00 a.m. Then, PW.6 introduced PW.1 to PW.2 and another mediator and after PW.1 produced Rs.3,000/- of Rs.100/- denominations (MO.1), PW.2 counted the amount and noted its numbers and one Laxman applied phenolphthalein powder to those 30 currency notes of each Rs.100/- denomination as per the directions of PW.6 and after completing the usual procedure Ex.P3 first mediators report was prepared and the proceedings were concluded at 12-10 p.m. Then PW.1 was directed to hand over the proposed bribe amount only on demand of accused, PW.2 was asked to accompany PW.1 to the dairy farm of PW.1. PW.2 was directed to give signal by wiping of his face with his handkerchief after the accused officer accepted the bribe amount. Accordingly, PWs. 1 and 2 left on scooter, PW.6 and other trap party members followed them in their official jeep to the dairy farm shed of PW.1 at Madapur village. The distance between the office of PW.6 and dairy farm is about 15 kilometers, PW.6 and others reached the dairy farm at about 01-00 p.m. and took vantage positions. 4. According to PW.1, while they were proceeding to the dairy farm enroot police station and when they crossed police station, AO met them and on seeing them he stopped the scooter and informed them to wait in the dairy farm and that he would come there and collect the money. According to PW.1, the accused came to dairy farm at about 01-40 a.m. and he enquired PW.1 whether he had brought the amount and then PW.1 replied positively and handed over MO.1 to AO. AO took the said amount with his left hand and counted with his right hand, then PW.2 went outside the shed and signaled by wiping his face with handkerchief. 5. Having received prearranged signal, PW.6 and other trap party entered into the shed of the dairy farm of PW.1 and PW.6 asked PW.1 to wait outside. PW.2 had taken the currency notes from the hands of the accused on the instructions of PW.6, the amount was counted, the currency notes numbers tallied with the numbers noted in the first mediators report. Then, the accused was directed to rinse his fingers of both hands in the two glass tumblers of sodium carbonate solution and the left hand fingers washed gave dark pink colour and the right hand fingers washed turned into light pink colour, the resultant solutions were preserved as Mos. 4 and 5. Rough sketch of scene of offence was drawn, photographs were also taken, then PW.1 was called and PW.6 enquired with PW.1 as to what happened, then PW.2 and AO were also examined and entire proceedings were incorporated in Ex.P7 second mediators report. 6. According to PW.3 Shaik Hussain the Head Constable, on 01-05-1997 at about 08-00 p.m one Ashok submitted a written complaint in Ex.P5 against PW.1 and that he made G.D. entries to that effect and sent the said Ashok to Government Hospital, Nizamabad. Ex.P4 is the Photostat copy of said G.D. entry. However, the Ashok did not go to the hospital and again came to police station at 10-00 or 10-30 p.m. with his brother Lingam DW.1 and complained that the henchmen of PW.1 were trying to beat him and at about 10-30 p.m. he deputed the accused to make enquiry into the matter and to bring PW.1 to the police station. Accordingly, the accused brought PW.1 to the police station at about 11-00 p.m. then the Sarpanch of the village came to the police station and then PW.1 was released from the police station. On the next day, PW.1, DW.2 and others informed the S.I. of police about the likelihood of the settlement between the parties. On 03-05-1997, PW.1, DW.s 1 and 2 and others came to the police station and appeared before the S.I. of police and submitted Ex.P6 compromise deed dated 03-05-1997. 7. PW.4 who was working as Section Officer in Home (S.C.A.) Department, Secretariat, Hyderabad, deposed about the sanction proceedings issued by the Principal Secretary (Home) Department sanctioned the G.O. to prosecute the accused. Ex.P10 is the copy of the said G.O. 8. PW.5 is the Sub-Inspector of police, C.B.C.I.D. Nalgonda Zone, according to him on 02-05-1997, PW.3 informed him about the quarrel that took place at Madapur village and about the settlement of the dispute at the instance of the Sarpanch of the village. According to him on 03-05-1997, he went to Nizamabad on some other official duty. 9. On behalf of the accused B. Lingam is examined as DW.1 and J. Pandari, Sarpanch of the village is examined as DW.2. Their evidence reveals that while the cattle of PW.1 grazing in the dairy farm of PW.1, PW.1 beat the calf resulting in fracture to its leg and backbone upon which Ashok brother of DW.1 and Lakshmi wife of DW.1 went to PW.1 and a quarrel ensued between them. Then, PW.1 beat his brother Ashok and also pushed his wife Lakshmi, on that his brother Ashok went to police station to give a report, Ex.P5 is the Photostat copy of the report given by Ashok. Then, as per the instructions of Station House Officer, the accused brought PW.1 to the police station and accused beat PW.1, then DW.2 intervened and at his instance the matter was settled. PW.1 agreed to pay an amount of Rs.3,000/- for the loss of calf and a compromise deed was also executed i.e. Ex.P6 is the photostat copy of the compromise deed which bears the signature of PW.1, his brother, DW.1 and others. The original compromise deed was submitted to the police. According to DW.1, till the date of his examination, PW.1 did not pay the amount of Rs.3,000/- for the death of his calf as agreed. According to DW.2, he effected settlement between PW.1 and DW.1 and that PW.1 agreed to pay compensation but did not pay the agreed amount to PW.1. 10. The learned Special Judge believed the version of prosecution and convicted the accused as stated supra. The learned Special Judge further held that the accused out of curiosity to know the result of the case would have waited in the police station on 03-05-1997 and it is improbable to say that he was not in the police station on 03-05- 1997. The learned Special Judge also believed the version of PW.1 that the accused threatened to implicate him in a false criminal case and demanded bribe of Rs.3,000/- and he says if at all the accused had not threatened the PW.1, PW.1 would not have given a complaint to the A.C.B. Officials. It is also observed that there is no evidence to show that the accused was directed to collect compensation amount from PW.1. It is also observed that the accused did not inform that the amount received by him represents the compensation. It is also argued that Ex.P6 does not contain any amount to be paid towards compensation towards the death of calf. 11. The learned counsel for the Appellant/Accused submitted that admittedly the calf of DW.1 was beaten by PW.1 and subsequently it died. Admittedly, there was settlement between the parties at the instance of DW.2. According to DW.1, PW.1 agreed to pay an amount of Rs.3,000/- towards compensation towards the death of the calf. However, it was not paid by PW.1 till the date of examination of DW.1. It is further submitted that admittedly, the accused beat PW.1 and took PW.1 to the police station. According to the learned counsel for the Appellant/Accused, PW.1 bore grudge against the accused since he was seen by accused in the police station and in order to take revenge, he induced the accused to collect compensation amount from him and thereby trapped the accused with the help of A.C.B. Officials. It is further argued that though the terms and conditions of settlement are silent, the circumstances show that in all probabilities, PW.1 might have agreed to pay some amount towards compensation. It is also argued that when there is no direct evidence to show that the accused was directed to collect the compensation amount but the circumstances show that the accused had brought PW.1 to the police station and since he was dealing with that case, it appears that the accused intended to collect the compensation amount from PW.1 to pay the same to DW.1. It is further argued that there is no evidence to show that the accused informed PW.1 that he would come to the shed of the dairy farm for collecting the bribe amount. It is further argued that when the accused did not inform PW.1 that he would come to the dairy farm to collect the amount, it is not clear on what basis PW. 6 and other trap party members waited at the shed of the dairy farm. It is further argued that according to PW.6, he never directed PW.1 to go to police station and to inform the accused to come to dairy farm. It is further argued that the entire evidence if examined critically would go to show that the accused was falsely implicated in this case by PW.1. 12. The learned Special Public Prosecutor submitted that admittedly PW.1 beat the calf and subsequently the said calf died. Admittedly, Ashok brother of DW.1 lodged a complaint at the police station and it is accused who brought PW.1 to the police station and beat PW.1. It is further argued that according to DW.1, DW.2 and the S.I. of police PW.3, the matter was already settled and a compromise deed was also handed over to the S.I. of police and if at all any compensation was agreed to be paid to DW.1, PW.1 would have paid the said amount in all probabilities before signing Ex.P6. So, according to him, the question of paying the compensation after the matter is settled in the police station does not arise. He further says that since the accused demanded bribe amount from PW.1 and threatened him to implicate in a Criminal case, PW.1 approached the A.C.B. Officials and the trap was laid. It is further argued that there was no need for the accused to go to the dairy farm except for collecting the bribe amount and if at all the amount was intended to be paid as compensation amount, PW.1 would have directly paid to DW.1 or to the Sarpanch in the police station itself. It is further argued that the judgment of the lower court is based on proper reasoning and there is no need to interfere with the same. 13. Now, the points that arise for consideration is : 1) Whether the version of the prosecution is believable? And 2) Whether the amount paid by PW.1 to the accused was compensation agreed to be paid by PW.1? 14. The initial version of PW.1 as seen from the contents of Ex.P1 is that on 01-05-1997 the cattle of DW.1 entered into his dairy farm premises and that he drove them away and while driving them away, one calf fell down. His further case is that then brother of DW.1 came and abused PW.1 and beat him and neighbours intervened and rescued him. He says at about 06-00 p.m., he went to Nizamabad and returned and then he learnt during his absence some henchmen of Chakali Lingam came there and made gallata and then he went to police station to lodge a complaint. He says then the accused officer abused him and beat him stating that DW.1 had already lodged a complaint against him and detained him in the police station. He further says that then the Sarpanch of the village came to police station and got him released. He says that on the next day, the issue was settled at the instance of Sarpanch, and on 03-05-1997 in the morning himself, DW.1 went to the police station and handed over compromise letter to accused, he says S.I. was also present in the police station. He says when they were returning, the accused called them and demanded an amount of Rs.3,000/-. His further case is that on 06-05-1997 accused again came to the dairy farm and had taken an amount of Rs.400/- from his partner Satyapaul. He says on 10-05- 1997 again the accused met him near a hotel and demanded the amount of Rs.3,000/- 15. Admittedly, PW.1 did not mention that calf of DW.1 sustained injuries resulting in fracture to its legs and backbone and subsequently it died. Admittedly, PW.1 did not whisper about the terms and conditions on which the matter was settled between himself and DW.1. When the calf of DW.1 died, his wife and his brother were beaten, DW.1 and his brother would not have agreed for settlement unless PW.1 agreed to pay some amount towards compensation for the death of the calf of DW.1. It is to be seen that Ashok brother of DW.1 was sent to the hospital for treatment and wound certificate. As seen from the contents of Ex.P4, G.D. entry, Ex.P5 is the copy of the complaint, which shows that the calf sustained fractures and that PW.1 beat the brother of DW.1 and others. Ex.P6 is the copy of compromise deed dated 03-05-1997. 16. A reading of Ex.P6 reveals that it is not a compromise deed but a letter withdrawing the complaint lodged against PW.1. It is true that Ex.P6 also does not speak on what terms and conditions the settlement was made. 17. According to PW.1, the first demand was made by accused on 03-05-1997 at about 09-00 a.m., he says on 03-05-1997, he along with DWs. 1 and 2 and others went to the police station and handed over the compromise petition, he says S.I. of police was also present there, who received the compromise letter from them and it was handed over to Shaik Hussain, Constable i.e. PW.3. PW.3 admits that as seen from Ex.D1 contents of G.D. on 03-05-1997 around at 08- 30 a.m. the accused was deputed on some other duty in Crime No. 39 of 1997 and he reported to the police station at about 04-00 p.m. on the same day. He says that he opened the G.D. at about 08-00 a.m. and there is nothing on record to show that the accused was present in the police station after 09-00 a.m. on 03-05-1997. The record i.e. Ex.D1 and evidence of PW.3 is very clear on that aspect. No suggestion was given to PW.3 that the accused was present in the police station after 09-00 a.m. on 03-05-1997. Thus, the claim of PW.1 that the accused demanded him Rs.3,000/- on 03-05-10997 at about 09-00 a.m. appears to be baseless and against the record. The further case of PW.1 is that on 06-05-1997 A.O. came to the dairy farm to collect the amount of Rs.400/- from his partner Satyapaul. Admittedly, the said Satyapaul has not been examined. Except the evidence of PW.1, there is nothing on record to show that the accused went to dairy farm on 06-05-1997 and collected an amount of Rs.400/- that too admittedly PW.1 was not present at that time. It is nothing but hearsay evidence and therefore, no credence can be given to the evidence of PW.1 on this aspect in the absence of evidence of Satyapaul or any direct witness. The next contention of PW.1 is that on 10-05-1997 at about 09-00 a.m. while he was taking tea at a hotel near Makloor police station, accused demanded him the bribe amount. Except the self- serving evidence of PW.1, there is no corroborating evidence on this aspect. 18. Admittedly, Accused beat PW.1 in the police station. Therefore, the possibility of PW.1 developing grudge against accused and falsely implicating in this case cannot be ruled out. 19. There is another important aspect in this case. Admittedly trap was arranged at the shed of the dairy farm. It is the case of PW.6 that after completing Ex.P3 proceedings, he himself and other trap members went to the dairy farm at about 01-00 p.m. and took vantage positions. He had also deposed that he instructed PW.2 to come out of the shed after A.O. accepted the amount and to give pre arranged signal so the evidence is clear on this aspect that PWs.1, 2 and PW.6 were all waiting at the dairy farm of PW.1 for arrival of accused. A reading of evidence of PW.1 does not show that the accused at any time prior to first mediators report promised to come to the dairy farm on 12-05-1997 i.e. on the date of trap. Ex.P3 also does not show that PW.1 informed PW.6 and other witnesses that the accused promised to come to the shed of dairy farm on the date of trap. Then, it is not clear how the trap was arranged at the dairy farm, when PW.1 had no information about the arrival of accused to dairy farm at about or after 01-00 p.m. on 12-05-1997. According to PW.2, after visiting the dairy farm at about 01-00 p.m. he along with PW.1 went to the police station and on the way, they met accused and PW.1 questioned accused as to when he is likely to visit the dairy farm, then accused told them to wait at the dairy farm. Thus till PW.s 1 and 2 went to the police station and met the accused near Makloor police station on the way to dairy farm, they had no knowledge that the accused would be visiting the dairy farm at the relevant point of time. The evidence of PW.6 assumes important on this aspect. PW.6 categorically deposed that he never instructed PWs. 1 and 2 to go to police station and inform the accused to come to dairy farm. According to PW.6, he is not aware about the visit of PW.s 1 and 2 to the police station till he examined them. 19. Therefore, it is clear that none of the prosecution witnesses had no knowledge about the visit of accused to the dairy farm at about 01-00 p.m. 20. Even, the purpose of visit of accused to dairy farm also creates some doubt. PW.6 himself categorically admitted that he examined DW.1 Lingaiah, who stated that PW.1 agreed to pay some amount as compensation in terms of compromise, PW.6 further admitted that DW.2 also supported the said version of PW.1. PW.6 also admitted that PW.1 did not state before him about the terms of the compromise. According to PW.6, he did not examine PWs. 1 and 2 again in the light of the facts revealed by DWs. 1 and 2. Even the investigating officer has not done his duty properly. He ought to have examined the matter afresh when he came to know through DWs 1 and 2 that as per the terms of the settlement PW.1 agreed to pay some amount to DW.1. It is settled law that mere acceptance of amount is not sufficient, admittedly, the matter was settled between PW. 1 and DW.1, the compromise letter was given to PW.3, the S.I. of police, who was also present at the police station, admittedly after settlement, PW.1 was never called to the police station. PW.1