THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.2150 of 2004 BETWEEEN: State: rep. By Inspector of Police-I … Appellant AND Sri P.Bhaskara Rao … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2150 of 2004 JUDGMENT: The respondent/accused was working as Village Administrative Officer, Bheemavarappadu Village, Kondapuram Mandal of Nellore District. By judgment, dated 31.05.2004, in C.C.No.5 of 1999, the Special Judge for SPE & ACB Cases, Nellore, acquitted the accused of the offences under Sections 7 and 13(1)(d)/13 (2) of the Prevention of Corruption Act, 1988 (in short, the Act). Questioning the same, the State filed this appeal. 2. PW.1 is an agriculturist in Bheemavarappadu Village. He wanted to raise loan from Primary Agricultural Co-operative Credit Society (PACS), Bheemavarappadu, on the security of his lands. Therefore, PW.1 approached PW.6, who was the President of PACS, Bheemavarappadu. PW.6 after looking into Pattadar Pass Book and Title Deed produced by PW.1, instructed PW.1 to bring copies of No.10 (1) Account as well as Adangal, for the purpose of granting loan to him. The accused was residing at Kavali Town. Therefore, PW.1 approached him for copies of No.10(1) Account and Adangal. In the meanwhile, five others also are stated to have requested PW.1 to get certified copies of those Revenue Records relating to their respective lands from the accused so that they can also apply for loan to PACS. It is alleged that on 05.09.1998 when PW.1 approached the accused at his house and requested for copies of No.10 (1) Accounts and Adangals relating to himself and five others, the accused demanded for bribe of Rs.600/- for issuing copies of the said documents at the rate of Rs.100/- per individual. With the said allegations, PW.1 gave Ex.P1 report to PW.8, Deputy Superintendent of Police, Anti Corruption Bureau (ACB), Nellore. After issuing Ex.P17 – First Information Report on the basis of Ex.P1 given on 06.09.1998, PW.8 organized trap for the accused on 07.09.1998 in the presence of mediators including PW.3. PW.3 was working as Assistant Executive Engineer in the Office of Executive Engineer Rural Water Supply Division, Nellore. Before proceeding for the trap, pre-trap procedures were conducted at Nellore under the cover of Ex.P13, Mediators Report. It is alleged that the trap was successful and that the accused was caught red-handed while in possession of M.O.3, tainted cash of Rs.600/-. Plea of the accused is that of not guilty. After trial, the lower Court found that the accused was not guilty of both the charges. 3. In this appeal, it is contended by the Special Public Prosecutor that the lower Court did not appreciate the prosecution evidence properly and that evidence of PW.1 was not in any way shaken in his cross-examination and that the lower Court did not consider relevant and admissible material in arriving at correct conclusion in favour of the prosecution. 4. The lower Court primarily based its conclusion on enmity between the accused and PW.1 and also on antecedents of PW.1. PW.1 in cross-examination admitted that the accused gave report against him in Kondapuram Police Station alleging that he beat the accused with a Chappal while the accused was doing official duties at Bheemavarappadu, and that C.C.No.366 of 1995 was filed in the Court of Additional Judicial Magistrate of the First Class, Kavali, against him and he contested the same and that the accused gave evidence against him and that the said Court convicted him and sentenced him to pay fine of Rs.1,000/-. PW.1 further says in cross-examination that about two years prior to 07.09.1998, the said report was given by the accused against him under Section 353 IPC and that while that case was pending, the incident reported in the present case took place. 5. It is contended by the respondent’s counsel that in the light of bitter animosity between the accused and PW.1, which resulted in C.C.No.366 of 1995, which was pending by the date of trap in this case, PW.1’s evidence cannot be believed regarding demand and acceptance of bribe by the accused. 6. It is also elicited in cross-examination of PW.1 that PW.1 figured as an accused in C.C.No.435 of 2001 on the file of the same Magistrate Court at Kavali for an offence under Section 9 of the Andhra Pradesh Gambling Act. PW.1 admits that the Vinjamur police registered case in Crime No.83 of 2001 against him for the offences under Sections 420 and 409 IPC alleging that he was involved in selling ‘Food for Work’ Rice in black market and that police filed charge sheet in that regard in C.C.No.370 of 2002 on the file of Additional Judicial Magistrate of the First Class, Atmakur. PW.1 further admits that O.P.No.12 of 2001 on the file of Principal Junior Civil Judge, Kavali, was filed against him to declare that his holding of the post of Sarpanch of their Gram Panchayat is illegal. He also admits that his workers filed PWMP.No.2 of 1998 before the authority under the Payment of Wages Act, Nellore, alleging that he did not pay wages for the said workers and that after enquiry, the said authority imposed fine of Rs.20,000/- on him. It is contended that the above litigation in which PW1 was involved, demonstrates that he is a litigant and that his evidence may not be believed. Simply because the de facto complainant is a litigant having many criminal and civil cases, it is no ground to disbelieve his evidence. All the above cases relate to the period subsequent to the date of trap. In my opinion, only CC.No.366 of 1995 is relevant herein to decide veracity of PW1. CC.No.366 of 1995 relates to an offence of assaulting the accused who is a public servant with a chappal by PW1. That case was pending by the date of the alleged demand for bribe and by the date of trap. It was disposed of subsequent to the date of trap. It is contended for the respondent that PW1 gave false report and became a party to a false trap in order to settle his scores with the accused in CC.No.366 of 1995. It is a strong circumstance in favour of the accused. The lower Court based its conclusion on the above probability. It cannot be said that the said conclusion of the lower Court is in any way perverse or unjust. 7. PW1 became Sarpanch and PW2 became Upa-Sarpanch of Bheemavarappadu Gram Panchayat, subsequent to the date of trap. Both belong to the same political party. PW2 turned hostile to the prosecution and supported the defence of the accused. 8. In Ex.P15 mediators report relating to post-trap proceedings, the instantaneous explanation given by the accused is noted. When the trap-laying officer questioned the accused about the tainted cash with him, the accused stated that PWs 1 and 2 approached him for extracts of No.10(1) accounts and adangals for the lands owned by them and four others and that he prepared the extracts of some of them and did not prepare extracts relating to lands of PW2 as he intended to see the lands and prepare the same thereafter. In Ex.P15- post–trap proceedings, it is noted that the accused confessed the offence. Since that portion of post-trap proceedings is in the nature of confession of the accused to a Police Officer, it is inadmissible in evidence under Section 26 of the Evidence Act. It is contended by the Special Public Prosecutor that the entire statement given by the accused to the trap-laying officer as noted in Ex.P15, becomes relevant under Section 8 of the Evidence Act, since it is a spontaneous version of the accused at the scene immediately after the occurrence. When there is conflict between Sections 8 and 26 of the Evidence Act, Section 26 of the Evidence Act prevails over Section 8 of the Evidence Act. It is so because valuable right of the accused guaranteed under Section 26 of the Evidence Act cannot be taken away by any other provision under the evidence Act which is favourable to the prosecution. Therefore, I find that the alleged confession statement of the accused contained in Ex.P15 is totally inadmissible in evidence and that the prosecution cannot be allowed to rely upon the said portion of Ex.P15 for any purpose and that it is for the prosecution to prove its case from other evidence on record which is admissible in law. 9. It is the contention of the accused in the lower Court that PW1 paid Rs.600/-(MO.3) towards arrears of land revenue payable by him and that after receiving the said amount from PW1, he passed Ex.X1 receipt to PW1 therefor and that on the next day, he submitted Ex.X3, land revenue receipt book to Mandal Revenue Office. DW4 is the then Junior Assistant in Mandal Revenue Office. It is his evidence that the accused submitted Ex.X3 book in their office on the next date of trap, but the accused did not remit the amount of Rs.600/- covered by the receipt given to PW1 since the said amount was seized by ACB officials. It is contended by the Special Public Prosecutor that if the accused passed Ex.X1 receipt to PW1, it should have been with PW1 only. Ex.X1 receipt was produced by PW2 during his cross-examination. It is evidence of PW2 that after receiving Ex.X1 receipt from the accused, PW1 gave the same to him and thereafter, the trap party came to the scene. He says that subsequently he did not return Ex.X1 to PW1 even though he asked him for the same, suspecting PW1’s bonofides. It is contended by the Special Public Prosecutor that this explanation which was put forward by the accused is an after thought and that it does not find place in the instant explanation given by the accused and which was incorporated in Ex.P15-post trap proceedings. In my opinion, instant explanation incorporated in Ex.P15-post trap proceedings can be looked into to the limited extent of finding out whether it contains the present defence put forward by the accused during trial. In the instant explanation of the accused recorded in Ex.P15-post-trap proceedings, the accused did not state that he received Rs.600/-(MO.3) from PW1 towards arrears of land revenue payable by PW1. It is evident that the accused and PW2 colluded with each other subsequent to the trap and brought Ex.X1 receipt into existence in order to use the same in support of the after-thought. For that reason, PW2 turned hostile to the prosecution during trial in the lower Court. The collusion between PW2 and the accused is evident not only from the circumstance of production of Ex.X1 by PW2 during his cross-examination and also by the subsequent conduct of PW2 turning hostile to the prosecution and supporting the defence version. Simply because the defence version is dis-believed, the Court cannot jump to the conclusion in favour of the prosecution. Irrespective of falsity of the defence version, the Court has to see whether the prosecution has made out its case beyond doubt. There is only evidence of PW1 on record with regard to the alleged demand for bribe and payment of the same by PW1 to the accused in pursuance of the said demand. It is contended by the respondent’s counsel that there is no corroboration for PW1’s evidence. Corroboration cannot be demanded as a matter of rule and corroboration can only be sought as a matter of prudence. Even in the absence of any corroboration, evidence of PW1 alone can be relied in case, the said evidence is intrinsically true and believable. 10. According to PW1, he approached the accused for true extracts of No.10(1) Accounts and Adangals relating to himself, his mother Saraswathamma, his maternal uncle Aluru Subbarayudu and other villagers namely, Kommi Sreenivasulu, Nadendla Ramanamma and PW2. As pointed out earlier, PW2 did not support the prosecution case. When PW2 was accompanying PW1 to the accused, the question of PW2 requesting PW1 to get certified extracts relating to his lands also may not arise. Therefore, collection of money from PW2 by PW1 and paying the said amount also to the accused may not arise. The lower Court accepted the defence contention that PW1 gave false report and participated in a false trap with an intention to settle his scores with the accused in CC.No.366 of 1995 which was pending in the Magistrate Court by then. This reasoning of the lower Court is neither perverse nor unreasonable. In that view of the matter, it cannot be said that finding of the lower Court that PW1’s evidence cannot be believed on its face value, is not suffering from any infirmity. Therefore, I find that the finding of acquittal recorded by the lower Court is neither perverse nor unreasonable nor unjust. There are no grounds in this appeal to interfere with the said finding of the lower Court. 11. Hence, the Criminal Appeal is dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated:28.07.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJUL CRIMINAL APPEAL No.2150 of 2004 DATED:28.07.2011 ysk