HON’BLE SRI JUSTICE B. CHANDRA KUMAR Crl.A.Nos. 1213 and 1222 of 2003 Date: 19-04-2010 Between D.V.V.t. Satyanarayana and others Appellants And State rep. by the Inspect of Police, SPE/CBI, Visakhapatnam Respondent HON’BLE SRI JUSTICE B. CHANDRA KUMAR Crl.A.Nos. 1213 and 1222 of 2003 COMMON JUDGMENT: Crl.A.No.1213 of 2003 has been preferred by A-1 and A-2 and Crl.A.No.1222 of 2003 has been preferred by A-3 against the Judgment, dated 14-11-2003 in C.C.No.26 of 2001 on the file of the Special Judge for CBI Cases, Visakhapatnam (hereinafter referred to as ‘learned Special Judge’), whereby and whereunder A-1 and A-2 were found guilty of the offences punishable under Sections 120-B of IPC and Sections 7 and 13 (1) (d) read with 13 (2) of the Act and accordingly, they were convicted and sentenced to suffer rigorous imprisonment for one year and also to pay a fine of Rs.500/-, in default to suffer simple imprisonment for one month, each of the Accused for each of the offences. A-3 was also found guilty of the offence under Section 13 (1) (d) (ii) read with 13 (2) of the Act and accordingly he was convicted and sentenced to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.500/-, in default to suffer simple imprisonment for one month. The substantive sentences were ordered to run concurrently. 2. Since both the Appeals arise out of the same Judgment, they are clubbed and this common Judgment is being passed. For the sake of convenience, the Appellants will be referred to as A1 to A-3 hereinafter. 3. The brief facts of the case are as follows: A-1 was working as Junior Telecom Officer, A-2 was working as Phone Mechanic (lineman) and A-3 was working as Phone Mechanic (Cable Joint) in Telecom Department, Tagarapuvalasa. PW-1 is a resident of Tagarapuvalasa. He is running an STD booth at Tagarapuvalasa since two years prior to the date of trap. He had applied for local public telephone (coin) and for that purpose he had paid an amount of Rs.1,000/- on 16-10-2000 to the telecom department under in Ex.P-2 receipt and the department issued Ex.P-3, demand note, showing telephone No.896542. After receiving Ex.P-3, PW-1 met A-1 and informed about the payment of deposit amount by him and A-1 told PW-1 that the telephone connection would be given within two days. On 22-02-2000, PW-1 lodged Ex.P-4, complaint, to the CBI officials alleging that A-1 demanded an amount of Rs.1,000/- bribe through A-2. PW-5, P.M. Naidu, the then Inspector of Police, CBI, Visakhapatnam, received Ex.P-4 from PW-1 and basing on the same, registered a case in R.C.29(A)/2000. The presence of PWs.2 and 3, mediators, was secured and PW-1 was introduced to them. They were shown Ex.P-5, xerox copy of the complaint, and they enquired about the contents of Ex.P-5 with PW-1. Then PW-1 produced Rs.1,000/- bribe amount in Rs.100/- denomination. Necessary formalities, such as explaining the significance of the sodium carbonate test, tainting the currency notes with phenolphthalein powder, keeping the currency notes in the shirt pocket of PW-1 and giving necessary instructions to PW-1 and the mediators were completed. The first mediators report was prepared in Ex.P-6. 4. After completing the first mediators report, the trap party proceeded to the telephone exchange of Tagarapuvalasa. PWs.1 and 2 went into the telephone exchange, while others have taken vantage positions. Initially A-1 and A-2 were not present when PWs.1 and 2 went into the telephone exchange, but after some time they arrived. After A-1 entered into his chambers, PW-1 went into the chambers of A-1, while PW-2 was waiting at the door. According to PW-2, A-1 asked PW-1 whether he got telephone connection and when PW-1 replied in negative, A-1 asked him whether he brought the money. Then PW-1 replied in affirmative and A-1 enquired about PW-2 and PW-2 stated that he accompanied PW-1 for his telephone connection. A-1 informed that A-2 would come and give telephone connection. When PW-1 offered to pay the amount, A-1 informed PW-1 that he could give the money to A-2 when he comes for giving connection at the telephone booth. Then PWs.1 and 2 met A-2 who was available in the adjacent room. PW-1 told A-2 that A-1 told them that he would give telephone connection and asked A-2 whether he would come to the telephone booth for giving telephone connection. Then A-2 directed PW-1 to wait at his telephone booth and that he would come and give connection. PWs.1 and 2 came out of the telephone exchange and proceeded to the telephone booth of PW-1. The entire trap party waited at telephone booth till 8-00 PM and at that time, A-2 made a phone call to PW-1 and informed that it was not possible for him to give connection on that day and that he would come and give connection on the next day morning. Then the tainted currency notes were collected from PW-1 and they were kept in a cover and it was sealed and signed by PW-1 and mediators. PW-1 was directed not to open the said envelop until further instructions. Ex.P-7 is the said cover. The second mediators report was prepared. On the next day as per the instructions of PW-5, Investigating Officer, PW-1 came to the telephone booth with the sealed cover. The trap party also, along with the mediators, reached the telephone booth at about 7-30 AM. The cover was opened and the numbers of the currency notes were verified and they were kept in the left side shirt pocket of PW-1 directing him to give the said currency notes to A-2 on his demand. PW-3 was directed to accompany PW-1 and to observe the events and to give prearranged signal after A-2 accepted the bribe amount. The telephone instrument was also tested by PW-2 and it was found to be not working. The trap party members took vantage positions. At about 7-45 AM, PW-1 received a phone call from A-2 and it appears that PW-1 was informed that A-2 would be sending A-3 for giving connection and that PW-1 should pay the amount to A-3. Within 10 to 15 minutes, A-3 came to the telephone booth along with two mazdoors. A-3 gave connection to the public telephone of PW-1. A-3 also tested the phone and found that it was working. When PW-1 offered to pay the money to A-3, he told that he would come again to collect the amount and left the telephone booth along with two mazdoors. After about 15 minutes, A-3 came to the telephone booth of PW-1 and PW-1 gave Rs.1,000/- to A-3. A-3 received the currency notes from PW-1 with his right hand and kept the same in his front side pant pocket. Then PW-3 went out and gave prearranged signal. 5. Having received the prearranged signal, PW-5 rushed to the telephone booth and disclosed his identity to A-3 and prepared the sodium carbonate solution. When A-3 dipped his both hand fingers separately in the solution, the solution turned into pink colour. In the meanwhile, A-2 also came to STD booth. Whatever was stated by A-2 and A-3 was incorporated in the mediators report. The mediators found the tainted currency notes in the backside pant pocket of A-3. The numbers of the currency notes were verified and they tallied with the numbers noted in Ex.P-6. The pant back pocket was also subjected to sodium carbonate solution test and it gave positive result. The tainted currency notes were seized. The rough sketch of the scene of offence was prepared. What all stated by PWs.1 to 3 was incorporated in the mediators report. The resultant solutions were separately packed and sealed. Then the trap party proceeded to the telephone exchange and questioned A-1 and what all he stated was incorporated in Ex.P-10. After obtaining the sanction order and completing the investigation, PW-6 laid charge sheet against the Accused. 6. Since the Accused denied the charges framed against them, the prosecution, in order to prove the guilt of the Accused, examined PWs.1 to 6 and got marked Exs.P-1 to P-31 and M.Os.1 to 5. On behalf of the Accused, none were examined, but Exs.D-1 was got marked. 7. The learned Special Judge, after considering the oral and documentary evidence, accepted the case of the prosecution and accordingly, convicted and sentenced the Accused as stated above. 8. Heard Sri C. Padmanabha Reddy, learned Senior counsel, representing Sri C. Praveen Kumar, learned counsel for A-1 and A-2, and Sri Purnachandra Reddy, Advocate, representing Sri K. Suresh Kumar Reddy, learned counsel for A-3. 9. It is submitted that the material witness, PW-1, himself turned hostile and therefore, there is no evidence to prove the demand made by A-1 andA-2 and there is nothing on record to show that there was any connection between A-1, A-2 and A-3 and in the absence of any such connection, no presumption can be drawn in favour of the prosecution. It is further argued that there are inherent contradictions in the version of the prosecution, which proves that the prosecution case is not probable. It is further argued that the case of the prosecution is that A-1 and A-2 demanded bribe amount and if that is the case, when PW-1 went to the telephone exchange with bribe amount, nothing prevented A-1 and A-2 to accept the said amount from PW-1, but admittedly A-1 did not accept the money and A-2 did not whisper about the bribe amount. It is further argued that when PW-1 himself did not support the case of the prosecution, the evidence of PW-2 cannot be relied upon to say that A-1 demanded any bribe amount from PW-1. It is further argued that the evidence of PW-2 that he heard the version between PW-1 and A-1 cannot be believed and there is no possibility for PW-2 to hear their conversation since he was standing at the door and there was a generator in the telephone exchange, which make noise. It is further argued that no official favour was pending with A-1 and that the telephone connection was already sanctioned and there is no need for PW-1 to pay the amount to A-3 and the circumstances support the version of the Accused that the tainted currency notes were thrusted into the backside pant pocket of A-3. 10. It is further argued that as far as A-2 is concerned, there no evidence to show that he ever demanded any amount or that he had deputed A-3 to go the telephone booth of PW-1 for collecting the bribe amount. Admittedly no amount has been recovered from the possession of A-1 and A-2 and the trap failed in respect of A-1 and A-2 on 22-12-2000 and another trap was arranged on 23-12-2000 at the telephone booth. It is further argued that admittedly A-2 did not go to the telephone booth for giving telephone connection and if at all the prosecution version is true, A-2 would have gone to the telephone booth for collecting the amount. 11. It is further argued that the first mediators report and the evidence of PWs.2, 3 and 5 shows that the pocket of PW-1 was emptied before keeping the currency notes in the said pocket and therefore, the question of PW-1 taking coins from the same pocket and giving them to A-3, has no basis. It is further argued that the tainted currency notes were taken from the pocket of A-3 by the mediators and therefore, the question of A-3 touching the tainted currency notes does not arise. It is further argued that the evidence of PW-3 that he does not know as to who was coming to the telephone booth, whether it is A-2 or somebody else, shows that PWs.1 and 3 had no knowledge as to the person who was coming to the telephone booth. 12. It is further argued that the so called statements of A-3 that at the instance of A-2 he had accepted the amount cannot be used as substantive evidence and similarly the evidence of PW-3 that PW-1 told him about the telephone conversation between himself and A-2 when A-2 made a phone call to PW-1 is also hearsay and no reliance can be placed on such evidence. It is also argued that the trap failed in respect of A-3 in view of the admission of PW-3 that initially A-3 was directed to take the tainted currency notes from his pocket and then his both hand fingers were subjected to sodium carbonate test. It is also argued that the evidence of PW-3 that the tainted currency notes were kept in the front side pant pocket is quite contrary to the prosecution version that the tainted currency notes were kept in the backside pant pocket and therefore, in view of these inconsistencies and the contradictory versions, it cannot be said that the prosecution has proved that the tainted currency notes have been seized from A-3 and therefore, the Judgment of the learned Special Judge cannot sustain and the same is liable to be set aside. 13. Per contra, Sri P. Kesava Rao, the learned Special Standing Counsel for CBI, argued that the evidence of PW-3 proves that when PW-2 accompanied PW-1 and met A-1, A-1 demanded bribe amount for giving telephone connection to PW-1 and thus the evidence of PW-2 proves that A-1 has demanded the bribe amount. It is further argued that the evidence of PW-3 that PW-1 told him that he received telephone call from A-2 asking him to handover the bribe amount to A-3 proves that A-2 had demanded the amount. It is further argued that A-2 and A-3 were working under A-1 and that though PW- 1 had paid the required amount in the month of October, no telephone connection was given and this itself shows that PW-1 was pressurized to part with the bribe amount. It is further argued that the prosecution has proved the link between A-1 to A-3 and proved that A-1 and A-2 have demanded the amount and A-3 had accepted the amount. It is also argued that one officer may demand the bribe amount and other officer may accept it and it is not necessary that the same officer should demand and accept the amount and even if it is proved that the amount is accepted by some other person, it has to be held that as a result of the demand made by the officer, the bribe amount is accepted by another person. 14. The learned Special Public Prosecutor has also relied on VIRENDRANATH v. STATE OF MAHARASHTRA [1], in support of his contention that even if the tainted currency notes are accepted by another person in pursuance of the direction given by the Accused, the same amounts to accepting the bribe amount by the Accused. 15. It is further argued that though PW-1 turned hostile, he admitted about the facts mentioned in Ex.P-4, which corroborates the case of the prosecution, and it proves the demand made by A-1 and A- 2. It is further argued that generally there will be minor contradictions and omissions in the evidence of the prosecution witnesses but they need not be given much credence since the witnesses may not be able to remember all the facts in view of the delay in holding the trial. It is further argued that there is nothing on record to show that the generator in the telephone exchange was working when PWs.1 and 2 went to the office of A-1, and in the absence of any evidence, the version of the Accused cannot be accepted that PW-2 was not in a position to hear the conversation between A-1 and PW-1. 16. In the light of the rival contentions, the points that arise for consideration are: 1. Whether the evidence on record proves that A-1 and A-2 demanded any bribe amount from PW-1? and 2. Whether the prosecution proved that the tainted currency notes were seized from the pocket of A-3? 17. The case of the prosecution is that PW-1 was running a telephone booth and that he applied for local public telephone (coin) and paid the requisite fee by 16-10-2000 and that the telephone connection was not given, and therefore, he met A-1 and requested to give connection. Since PW-1 did not support the case of the prosecution, he did not say that A-1 and A-2 demanded any amount from him for giving telephone connection. However, he admitted that he gave Ex.P-4, complaint, to PW-5 and in the said complaint, he had alleged that A-1 demanded bribe amount of Rs.1,000/- through A-2 for giving telephone connection to his local public telephone (coin). Moreover, PW-1 made certain admissions, which support the case of the Accused. Therefore, the evidence of PW-1 is not helpful to the prosecution. 18. As far as A-1 is concerned, except the evidence of PW- 2, there is no other evidence in this case. According to PW-2, he was acting as a mediator and that he accompanied PW-1 to the office of A-1 and when PW-1 met A-1, A-1 asked him whether he got the telephone connection and when PW-1 replied in negative, A-1 again asked him whether he brought the amount and when PW-1 replied in affirmative, A-1 told PW-1 that A-2 would come and give telephone connection. It is his further case that when PW-1 offered to pay the amount to A-1, A-1 stated that PW-1 may give the amount after A-2 had given connection. 19. The above evidence shows that when PW-1 offered to pay the amount to A-1, he did not accept the same and as submitted by the learned counsel for the Accused, nothing prevented A-1 from accepting the amount from PW-1. 20. Let us examine the case of A-2 and A-3. Admittedly A-2 was working under A-1. As far as A-2 is concerned, we have the evidence of PWs.2 and 3. PW-2 deposed that after he met A-1, himself and PW-1 met A-2 in the adjacent room and then PW-1 stated to A-2 that A-1 told him that A-2 would give connection and asked A-2 whether he would come for giving the telephone connection. According to PW-2, A-2 directed PW-1 to wait at the telephone booth and further told that he would come and give the connection. Admittedly A-2 did not whisper anything about the bribe. He did not ask PW-1 to pay him the bribe amount at the telephone booth. It is not the case of PWs.1 and 3 that A-2 knows about the demand made by A- 1 or that he knows that A-1 directed PW-1 to pay the bribe amount to him after giving the telephone connection. 21. The other circumstance against A-2 is that according to PW-3 on the next day when he was in the telephone booth, PW-1 received a phone call and on his questioning, PW-1 informed that A-2 told him over telephone that he could not come to the telephone booth for giving telephone connection and he was sending his brother. Except the evidence of PW-3 there is nothing on record to say that PW-1 received a telephone call from A-2. The version of PW- 2 that PW-1 told him that A-2 instructed him over telephone to give Rs.1,000/- to A-3 at the telephone booth cannot be accepted in view of the subsequent version of PW-2. In the cross-examination PW-2 admitted that by the time he gave prearranged signal, he does not know who came to telephone exchange whether it was A-2 or somebody else. If that the version of PW-2, his earliest version that PW-1 told him that A-2 informed over phone that he (A-2) was not coming to the telephone booth and that he was sending his brother falls to ground. 22. So in view of these two circumstances that PW-2 did not whisper that A-2 made any demand of bribe when himself and PW-1 met him in his chambers, and that PW-3 had no knowledge as to whether A-2 or somebody else was coming to give telephone connection establishes that the prosecution has failed to prove that A-2 had made any demand for illegal gratification. It is not the case of the prosecution that A-2 was also present along with A-1 when A-1 directed PW-1 to pay the amount to A-2 at his telephone booth. Thus it appears that the prosecution has failed to prove that there was any demand by A-2. 23. As far as A-3 is concerned, there are some peculiar circumstances in this case i.e., admittedly A-3 never demanded any bribe amount from PW-1 for giving telephone connection. There is no satisfactory evidence to show that A-3 visited the telephone booth of PW-1 as per the directions of A-1 or A-2 and admittedly he did not accept any amount when offered by PW-1 after giving the telephone connection. 24. As far as the seizure of currency notes is concerned, the case of the prosecution that A-3 rinsed his both hand fingers in the sodium carbonate solution and it gave positive result, cannot be accepted because PW-3 himself admitted that A-3 was directed to take out the tainted currency notes from his pant pocket and accordingly he had taken out the currency notes from his pant pocket and handed over the same to the Inspector and subsequent to that, the Inspector conducted sodium carbonate test on the hand fingers of A-3. The mediators report shows that A-3 had made two telephone calls from the telephone booth after collecting the coins from PW-1. In the chief examination, PW-1 admitted that he gave two coins to A-3 from his shirt pocket, in which the tainted currency notes were kept earlier, to enable him to make phone calls by using those coins. These two circumstances show that the hand fingers of A-3 came in contact with the tainted currency notes before conducting the test. Therefore, it cannot be said that the prosecution has successfully conducted the sodium carbonate test in respect of A-3 and the test gave positive result. 25. Another controversy is that according to PW-3, the tainted currency notes were kept in the front side pant pocket of A-3. But the prosecution case is that the currency notes were kept in the backside pant pocket of A-3. According to the learned Special Public Prosecutor, it is a minor contradictory and need not be given much credence. In the light of the facts and circumstances of the case and in view of the fact that A-3 never demanded any bribe amount and the sodium carbonate test in respect of A-3 seems to have been not successful, I am of the view that the contradiction whether the tainted currency notes were kept in the front side or backside pant pocket cannot be treated as minor contradiction. 26. Admittedly, the prosecution could not prove that there was any connection between A-1 and A-3 at any point of time. The version of A-3 is that the currency notes were thrusted into his pocket. Admittedly, the trap failed on 22-12-2000. The submission of the learned counsel for the Accused that since the trap failed on the first day, the CBI officials wanted to see that the trap is successful on the second day and in order to make it successful, they have shown some seizure of tainted currency notes from the possession of A-3, cannot be altogether brushed aside. Admittedly, there was a generator in the telephone exchange and PW-2 was standing at the door of the chamber of A-1 and he did not enter into the chamber of A-1 along with PW-1. In fact A-1 was not directly visible to a person standing at the door of his chamber. Admittedly A-1 did not accept the amount when offered by PW-1. In the above circumstances, it appears that the prosecution has failed to prove the case against A-1 to A-3. 27. In the decision relied upon by the learned Special Public Prosecutor, when the complainant approached A-1, who is a police officer, and offered the amount, A-1 had taken