J APHC010370822007 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI MONDAY, THE TWENTY FOURTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT HONOURABLE SRI JUSTICE K SREENIVASA REDDY CRIMINAL APPEAL Nos.562 & 947 of 2007 CRIMINAL APPEAL No.562 of 2007 Appeal under Section 374(2) of Cr.P.C, against the Judgment of the Special Judge for ACB Cases-cum-lll Additional District & Sessions Judge, Visakhapatnam, in C.C.No.11 of 2001 dated 27*^ day of April 2007. Between: Senapathi Ramakrishna, (A-2), S/o. Ramulu, Forest (Guard), Srikakulam. Beat Officer ...APPELLANT/ACCUSED N0.2 AND State, rep by Range Inspector of Police, ACB Special Public Prosecutor. Srikakulam District, by ...RESPONDENT/COMPLAINANT jA NO: 1 OF 2007(CRLAMP 851 OF 2007 Petition under Section 389(1) of Cr.P.C praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the execution of the sentence passed by the Special Judge for ACB Cases III Additional District & Sessions Judge, Visakhapatnam, in C.C.No.11 of 2001, dated 27-4-2007 and release the petitioner on bail pending disposal of the Criminal appeal. Counsel for the Petitioner : SRI A HARIPRASAD REDDY Counsel for the Respondent: PUBLIC PROSECUTOR APHC010445922007 CRIMINAL APPEAL No.947 of 2007 Appeal under Section 378(3) & (1) of Cr.P.C, questioning the acquittal of the Respondent/Accused Officer herein in CC.No. 11 of 2001 on the file of the Special Judge for SPE & ACB Cases, Visakhapatnam , after obtaining permission from the Govt. Vide Memo No.3848/For.lV(1)2007-1 of Environment Forests, Science and Technology, (For.IV) Department, dated 02.07.2007 Between: State rep by Inspector of Police, Anti Corruption Bureau, Vizianagaram Range, Srikakulam District. (Through the Standing Counsel-cum-Special P.P. for ACB Cases) ...APPELLANT/COMPLAINANT AND 1. Sri Anakapalli Venkata Ramanamurthy, S/o. Rama Rao, Turupu Kapu Forest Range Officer, Srikakulam District. 2. Senapathi Ramakrishna, S/o. Ramulu, Turupu Kapu Officer(Guard), Srikakulam. (not necessary Party) Forest beat (A-2 is convicted under Sections 7 & 13(2) r/w 13(1)(d) of the P.C.Act, 1988 in C.C.No.11/2001 SPE & ACB Cases, Visakhapatnam. As such he is not made as a Respondent/Party in this Appeal) on the file of the Special Judge for ...RESPONDENTS/ACCUSED OFFICER : PUBLIC PROSECUTOR Counsel for Respondent No.1: SRI BADETI VENKATA RATHNAM The Court made the following COMMON JUDGMENT : Counsel for the Petitioner APHC010370822007 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3327] MONDAY, THE TWENTY FOURTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY CRIMINAL APPEAL NOs. 562 & 947 OF 2007 CRIMINAL APPEAL NO. 562 OF 2007: Between: 1.SENAPATHI RAMAKRISHNA,. S/0. RAMULU FOREST BEAT OFFICER (GUARD), SRIKAKULAM ...APPELLANT AND 1.STATE OF A P REP BY RANGE INSPECTOR OF POLICE, ACB, Srikakulam Dist rep by Spl.P.P. ...RESPONDENT Counsel for the Apellant: 1 .A HARIPRASAD REDDY Counsel for the Respodent: 1. PUBLIC PROSECUTOR 2 CRIMINAL APPEAL NO. 947 OF 2007 Between: 1. STATE REP BY INSPECTOR OF POLICE , ACB POLICE. ANTI CORRUPTION BUREAU, VIZIANAGARAM RANGE, SRIKAKULAM DISTRICT (THROUGH THE STANDING COUNSEL-CUM-SPL.PP FOR ACB CASES) REP.BY ...appellant AND 1.SRI ANAKAPALLI VENKATA RAMANAMURTHY AND S/0. RAMA RAO, FOREST RANGE OFFICER DISTRICT. 2.SENAPATHI RAMAKRISHNA, S/0. RAMULU FOREST BEAT OFFICR(GUARD) SRIKAKULAM (NOT NECESSARY PARTY) ...RESPONDENT(S): ANOTHER, SRIKAKULAM Counsel for the Appellant; 1. PUBLIC PROSECUTOR Counsel for the Respondent(S): 1. BADETI VENKATA RATHNAM The Court made the following: COMMON JUDGMENT: These Criminal Appeals are preferred against the judgment dated 27.04.2007 passed in C.C.No.11 of 2001 for ACB Cases-cum-lll Additional Visakhapatnam (hereinafter referred to on the file of the Special Judge District & Sessions Judge, as ‘the Special Judge’). 3 2. The appellant in Criminal Appeal No.562 of 2007 is Accused Officer No.2 (A.0.2) and the Respondent No.1 in Criminal Appeal No.947 of 2007 is Accused Officer No.1 (A.0.1), in the said Calendar Case. The Anti-Corruption Bureau, Vizianagaram Range, Srikakulam District registered a case in Crime No.1/RC/ACB-VZM/2000 against A.0.1 and A.0.2, and filed charge sheet against them before the Special Judge for the offences punishable under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (for short ‘P.C. Act, 1988’) read with 34 of the Indian Penal Code (for short ‘IPC’). The learned Special Judge framed charges for the offences under Section 7 of the P.C. Act read with 34 IPC and 13(1) (d) read with 13(2) of the P.C. Act, 1988 read with 34 IPC, against A.0.1 and A.0.2, and charge under Section 12 of the P.C. Act, 1988 against A.0.2. 3. 4. Substance of charges framed against A.0.1 and A.0.2 are that A.0.1 and A.0.2, being the public servants i.e. the Forest Range Officer and the Forest Beat Officer (Guard), Srikakulam respectively, on 22.12.1999, in furtherance of common intention of extracting money, demanded and accepted an amount of Rs.2,000/- from PW1 and on or about 03.01.2000 at about 7.50 p.m. at Satya Chicken Center of PW1, A.0.1 accepted a sum of Rs.3,000/- through A.0.2 as a gratification other than legal remuneration as a motive or reward to show official favour in the matter of not registering they are alleged to have 7, 13(1)(d) r/w 13(2) of the P.C. Since A.0.2 abetted/aided A.O. Section 7 of P.C. Act, 1988 1988 was framed against A.0.2. a case against the informant (PW1), thereby committed an offence punishable under Sections Act, 1988 read with Section 1 to commit 34 IPC. an offence punishable under a charge under Section 12 of the P C. Act 5. After completion of trial aforesaid Calendar Case, the learned all the charges framed A.0.2 of the charge under Section vide the impugned judgment in the Special Judge acquitted A.0.1 of acquitted against him. The learned Special Judge 12 of the P.C. Act, 1988, but convicted 7 and 13(2) read with 13(1)(d) of the him to undergo rigorous imprisonment for a.0.2 of the charges under Sections P C. Act, 1988 and sentenced one year and to pay a fine of Rs.500/-, in default to suffer simple imprisonment for two months, for the offence of the P.C. Act, 1988, punishable under Section 7 and further sentenced him to undergo rigorous pay a fine of Rs.500/-, in default to imprisonment for one year and to suffer simple imprisonment for under Section 13(2) read with 13(1)(d) substantive sentences two months, for the offence punishable Both the concurrently. M03 - tainted was ordered to be confiscated to the State of the P.C. Act, 1988. were directed to run amount of Rs.3,000/- as PW1 turned hostile. 5 Case of the prosecution, briefly, is as follows: A.0.1 was working as Forest Range Officer, Srikakulam and A.0.2 was working as Forest Beat Officer, Dharmavaram Beat, office of the Forest Range Officer, Srikakulam, in the year 1999. The informant (PW1) is a resident of Kesavaraopeta Village of Etcherla Mandal, Srikakulam District and was running a Chicken center. He purchased five teakwood trees from LW6 - Kalisetty Ramulu for Rs.11,000/-. After receiving the amount, the said Ramulu cut the trees into sizes as per the measurements given by PW1 and transported the same to the house of PW1 in the month of September, 1999. The said timber was stored in the house of PW1. On 22.12.1999, at about 1.30 pm., A.0.1 and A.0.2 came to the house of PW1, found the timber and demanded documents pertaining to the timber. PW1 produced Ex.P.1 - Certificate of Transportation issued by Village Administrative Officer, Murapaka Village. Then, A.0.1 and A.0.2 informed that the said letter is an invalid document and valued the cost of teakwood at Rs. 14,000/- and informed that fine would be imposed for five times of the cost of the timber i.e. Rs.70,000/-. PW1 requested them to help him in the matter as he was unable to pay the fine and compounding fee. demanded an amount of Rs.7,000/- towards bribe for not registering criminal case under the Forest Act for possessing teakwood illegally. Then, PW1 and his wife (PW4) requested A.0.1 and A.0.2 to reduce the Thereupon, A.0.1 i bribe amount. Finally, A.0.1 reduced the bribe Rs.5,000/-. Immediately, PW1 made part payment of Rs.2 amount from Rs.7,000/- to ,000/- to A.0.2 on the instructions of A.0.1. PW1 kept the amount of Rs.2,000/- in the hand bag when A.0.2 opened the zip of the bag. PW1 agreed to pay the balance demanded amount of Rs.3,000/- on 03.01.2000 through A.0.2. In fact, PW1 was not willing to pay the balance bribe amount, as such he approached the Deputy Superintendent of Police, Anti-Corruption Bureau, Vizianagaram Range (PW6) and lodged a written complaint (Ex. P.4) on 01.01.2000 at 6.00 p.m. requesting to initiate suitable action against A.0.1 and A.0.2. PWG registered the same as a case in Crime No.l/RC- ACB/VZM/2000 for the offences under Sections 7, 11 and 13(2) read with 13(1 )(d) of the P.C. Act, 1988 against A.0.1 and A.0.2. After registration of crime, PW6 gathered two mediators i.e. PW3 and LW10 - M.Baburao for laying trap. On 03.01.2000 in the presence of said mediators, PW1 was called and got examined through mediators about the antecedents of PW1 and genuineness of the written complaint given by him. The amount of Rs.3,000/- produced by PW1 was tainted with phenolphthalein powder. After conducting the chemical tests pre trap proceedings (Ex.P.8) were prepared by noting the numbers of the tainted currency notes, and instructions were given to PW1, mediators and trap party as to how to act at the trap place. The tainted amount (M03) was kept at the shirt pocket of PW1 and he was instructed to pay the same amount on demand by the accused officers only. On the same day i.e. 03.01.2000 at about 7.50 p.m., the trap party, along with PW1 to Satya Chicken Center at Srikakulam, at and collect the amount. The and mediators, went near which place PW1 asked A.0.2 to come mediators and trap party took their vantage positions. The mediator - with PW1. At about 7.40 p.m., A.0.2 came on his TVS Champ and parked on the other side of the road in front of Chicken Center and and demanded the balance bribe amount of PW3 was came near to PW1 Rs.3,000/-. PW1 took A.0.2 near to telephone pole, took out the amount of Rs.3,000/- from his shirt pocket and gave the same to A.0.2. A.0.2 with his left hand and kept it in the left side pocket of received the same his pant. Thereafter, PW1 gave a signal to the trap party and immediately the trap party came there, surrounded A.0.2 and enquired about his Rama Krishna and working as identity. A.0.2 disclosed his name as Forest Beat Officer (Guard). When A.0.2 was asked to come near A.0.2 took out the tainted amount from his pant pocket and chicken shop threw the same on the ground. The trap party called the photographer (PW2) and got photographed the scene of offence. Chemical tests were conducted on both hand fingers of A.0.2 with Sodium Carbonate solution, in which A.0.2 rinsed his lefthand fingers which turned to light pink colour, whereas test conducted on right hand fingers gave negative result. The pant worn by A.0.2 was seized by supplying another pant as the inner 8 linings of the left side pocket of the pant of A.0.2 was subjected to chemical test and in the test, solution turned into pink colour. Then, PW6 got prepared the post-trap proceedings (Ex.P.15) through mediators. A.0.1 was called to the scene of offence through trap identified A.0.1 and A.0.2 party and PW1 as the same persons who came to his house demanded the bribe amount and received part bribe amount of Rs.2,000/- Immediately, A.0.1 and A.0.2 were arrested. During the course of investigation, witnesses concerned records were seized from the Forest Office, produced before the Judicial Magistrate of First Class, got recorded his statement under Section 164 Cr.P.C were examined and PW1 was Srikakulam and The material papers were placed before the Disciplinary Authority of A.0.1 and A.0.2 and prosecution sanction orders under Exs.P.19 and P.20 were obtained, and after completion of investigation and after documents, charge sheet was filed. receipt of relevant 7. After considering the material on record, the learned Special Judge took cognizance of the case for the offences under Sections 7 and 13(2) read with13(1)(d) of the P.C. Act, 1988 against A.0.1 andA.O.2. 8. On appearance of A.0.1 and A.0.2, charges under Sections 13(2) read with 13(1)(d) of the P.C. Act, 1988 against A.0.1 and A.0.2 and Section 12 of the P.C. Act, 1988 against A.0.2 were framed, read 7 and 9 over the contents and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried. In support of its case, the prosecution examined PWs.1 to 6, got 9. marked Exs.P1 to P20 and exhibited MOs.1 to 8. On behalf of defence, Ex.D.1 was marked. When A.0.1 and A.0.2 were examined under Section 313 Cr.P.C. 10. they denied the incriminating material appearing against them and reported no defence witnesses, but they filed written statements under Section 243(2) Cr.P.C. separately. The learned Special Judge, on appreciation of entire oral and documentary evidence on record, acquitted A.0.1 of all the charges leveled against him and also acquitted A.0.2 of the charge for the offence 11. under Section 12 of the P.C. Act, 1988, but convicted and sentenced A.0.2 as aforesaid, vide impugned judgment dated 27.04.2007. Aggrieved by the said judgment, A.0.2 preferred Criminal Appeal No.562 of 2007, and the State preferred Criminal Appeal No.947 of 2007 as against acquittal of A.0.1. Sri A.Hariprasad Reddy, learned counsel appearing on behalf of appellant/A.0.2 submitted that case against A.0.2 stands on the better footing when compared to A.0.1. According to him, PW1 is a decoy witness, he did not support the prosecution case and hence he was 12. 10 treated as hostile by the prosecution. He further submitted that the learned Special Judge, having come to a conclusion that there is no demand on the part of Accused Officers from PW1, the question of convicting A.0.2 by acquitting A.0.1 would amount to travesty of justice. He further submitted that according to PW1, the Accused Officers are not the persons who came to his house on 22.12.1999 or on subsequent date and demanded any amount as bribe. Learned counsel appearing on behalf of appellant/A.0.2 further submitted that except the evidence of PW3, there is no other evidence for convicting the Accused Officer No.2. The said evidence also cannot be relied upon by the prosecution for the reason that he is an interested witness as he went along with the trap party and there are number of inconsistencies in his evidence. He further submitted that when once the prior demand of bribe has been disbelieved, the question of the appellant herein accepting the amount on a later date would not in any way attract the aforesaid offences. Hence, he prays to set aside the convictions and sentences recorded as against A.0.2 and acquit him of the charges. Sri Badeti Venkataratnam, learned counsel appearing on behalf of respondent No.1 in Criminal Appeal No.947 of 2007 (A.0.1) concurred with the submissions made by the learned counsel for the appellant/A.0.2 in Criminal Appeal No.562 of 2007. He further added that the evidence of PW3 cannot be taken into account for the reason that he is an interested 13. 11 witness, and relied upon decision of the Hon’ble Supreme Court in the case of Som Parkash Vs. State of Punjab^ He further submitted by placing reliance on the judgment of the Hon’ble Supreme Court in the of Mallappa and others Vs. State of Karnataka^, that in a case of reversal from acquittal to conviction, the appellate court has to demonstrate an illegality, perversity or error of law or fact in the decision According to him, in the case on hand, there is absolutely no evidence to show that it is the Accused Officers who demanded and accepted the money, more particularly when once PW1 was treated as hostile by the prosecution. Hence, he prays to dismiss case of the trial court. Criminal Appeal No.947 of 2007. Learned Assistant Public Prosecutor appearing on behalf of State submitted by relying on the evidence of PW1 that on 22.12.1999, both the Accused Officers made a demand of bribe. According to him, receipt of an amount of Rs.3,000/- by A.0.2 on a subsequent date would show that it is the Accused Officers who are to said to have demanded the amount from the informant. According to him, it is a clear case where A.0.1 was also part of the demand made along with A.0.2 to the de facto complainant. He submits that in case the material prosecution witness turns hostile, circumstantial evidence can be taken into consideration to 14. ^ 1992 CRI. LJ. 490 ^ (2024) 3 S.C.C. 544 12 convict the accused officer. According to him, the learned Special Judge erred in acquitting A.0.1 of all the charges leveled against him, but he rightly convicted A.0.2 and no interference is called for by this Court in respect of conviction imposed on A.0.2. 15. The point that arises for determination is whether the prosecution is able to bring home the guilt of the accused officers beyond all reasonable doubt for the charges levelled against them and whether the impugned judgment calls for any interference by this Court ? 16. Heard. Perused the record. 17. PW1 is a decoy witness. According to him, on 22.12.1999 at 1.30 p.m., two persons, claiming themselves to be the Forest officials, went to the house of PW1 and found teakwood pieces kept at the place where the construction was going on. pieces, PW1 explained as to how the same was delivered to him. In On questioning about the teakwood connection with that, PW1 showed the letter delivered to him by LW6 namely K.Ramulu. Ex.P.1 is the Certificate of Transportation, persons who went to the house of PW1 told him that Ex.P.1 was not an authenticated one and asked him to pay the penalty for possessing the teakwood pieces. According to PW1, both the persons who went to the house of PW1 assessed the value of teakwood pieces at Rs. 14,000/- and asked the PW1 to pay the penalty of five times on the value of teakwood pieces i.e. Rs.70,000/-. On that, PW1 was perturbed and said that it was The 13 not possible for him to pay Rs.70,000/-. Thereafter, the persons who went to the house of PW1 were alleged to have made a demand to pay Rs.7,000/-, for which PW1 presumed that they are asking a bribe. When PW1 expressed his inability to pay Rs.7,000/-, they demanded to pay By that time, PW1 was not in the custody of Rs.5,000/-. Accordingly, he paid an amount of Rs.2,000/- to one Guard and the same was kept in a zip bag. The persons who went to the house of PW1 were said to have instructed PW1 to pay the balance amount of Rs.3,000/- within two or three days. Upon which, PW1 expressed that he was not in a position to pay the said amount within two or three days and sought time to pay the same within a period of ten days, for which the persons Rs.5,000/-. who went to the house of PW1 agreed. It is alleged that the said persons were alleged to have gone to the Chicken shop belonging to PW1 for every three days and demanded to pay the balance amount of Rs.3,000/-, and in case of failure to pay the said amount, they threatened PW1 to register a case as against him. At the end of December, 1999, PW1 went to Anti-Corruption Bureau Office and gave a report to PW6. Ex.P.4 is the complaint. On the strength of complaint received by PW6, a case in Crime No.1/RC/ACB-VZM/2000 Ex.P.7 is the was registered and sent the same to all the concerned, copy of FIR. PW6, after explaining all the formalities to PW1, along with his staff and mediators proceeded to the shop of PW1 on 03.01.2000. 14 According to PW1, the appellant i.e. A.0.2 went to the shop at 7.40 p.m. instead of the Guard who went to is alleged that A.0.2 asked PW1 PW1 delivered Exs.P.2 and P.3 said that A.0.2 refused to his house on earlier occasions. It as to why he was called for. \ On that, and cash of Rs.3,000/- to A.0.2. It is receive the cash of Rs.3,000/- and said that he to pay the amount by himself was not concerned with it and directed him or to pay the amount to the person who demanded him. 18. The prosecution treated PW1 earlier statement. Thereafter, nothing incriminating has been examination. as hostile as he resiled from PW1 was cross-examined at length but his culled out from the said cross- 19. PW2 is the photographer, categorically stated that he In the cross-examination, he was asked to take the photographs of the currency notes alone although some papers were lying on the ground. PW3 is the mediator. He that on the date of incident i.e. 03.01.2000 at 6.15 20. supported the prosecution case by stating p.m., he went along Center. According to him, A.0.2 p.m. and asked PW1 to pay the an electrical pole which is away Center and paid Rs.3,000/- to A.0.2. left hand and kept the same in his left combed his hair with comb. Then, PW6 with the trap party to the Satya Chicken came to the Chicken Center at 7.40 amount of Rs.3,000/-. PW1 led A.0.2 to by one meter from Satya Chicken a.0.2 received the amount with his pant pocket. Thereafter, PW1 15 and his staff went to the electrical pole and surrounded A.O.2. Thereafter, A.0.2 picked out the tainted amount of Rs.3,000/- from his left pant pocket and threw it on the ground. When PW6 caught A.0.2, he stated that he did not commit any wrong and asked to save him. Thereafter, the photographer took the photographs of the currency notes which were found lying on the ground. Then, they complied with all the formalities of trap proceedings, categorically stated that nothing was found near the currency notes which were lying on the ground. In the chief-examination, PW3 21. PW4 is the wife of PW1. She did not support the prosecution and she was treated as hostile by the prosecution. PW5 is the Forest Range Officer. He only explained with regard the procedure prevailing in the department. PW6 is the Deputy Superintendent of Police, ACB, Vizianagaram Range, who registered the case and investigated into. case 22. to 23. 24. The learned Special Judge divided the case into two parts, first part is with regard to the demand made by the Accused Officers, respect of the first part, it is pertinent to note that the alleged demand made by both the Accused Officers was on 22.12.1999. It is stated that an amount of Rs.2,000/- was received by both the Accused Officers 22.12.1999. The only person who is expected to give explanation to the The In on i 16 said portion is PW1. But, PW1 did not he was treated as hostile by the prosecution, statements i.e. his statements under Sections 161 and 164 support the prosecution case and He resiled from his earlier Cr.P.C.. As per the earlier demand, initially on 22.12.1999, A.0.1 and A.0.2 went to the house of PW1 and demanded an amount of Rs.7,000/- in order not to seize the teakwood and not to register a criminal case against PW1 On failure to pay, the Accused Officers impose penalty of Rs.70,000/-. were alleged to have threatened to Thereafter, on negotiations, the was reduced from Rs.7,000/- to Rs.5,000/-. Immediately, an amount of Rs.2,000/- was paid to the Accused Officers. Since PW1 has not supported the demanded brief amount prosecution case and further categorically stated that A.0.1 and A.0.2 are not the persons who visited his house on the said date, the learned Special Judge rightly A.0.1. acquitted 25. It is pertinent to mention here that A.0.1 in his written statement filed before the learned Special Judge took a plea that as on the date of the incident, he was not even present at the scene of offence and he was at Kuppili for beat inspection and stayed there for a period of two days for inspection proceedings. In support of his version, he relied upon Ex.D.1 Xerox copy of Beat Inspection report, in which the beat inspection period was shown as 22.12.1999 and 28.12.1999. 17 26. It is settled principle of law that there is a presumption available -I1 under law that an accused is presumed to be innocent unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal passed by the learned Special Judge. Unless there are substantial or compelling reasons, this Court will not ordinarily disturb the findings of the trial Court. The material prosecution witness P.W.1 resiled from his earlier version and did not depose anything with regard to A.0.1 making demand of bribe on 22.12.1999. Further, there is no recovery of tainted currency from the possession of A.0.1. In view of the said circumstances, this Court has hesitation to hold that the prosecution failed to establish the guilt of A.0.1 with regard to the alleged prior demand of bribe on 22.11.1999 or on the date of the trap on 03.01.2000, much less any acceptance thereof, beyond reasonable doubt. The learned Special Judge rightly came to a conclusion, by relying upon Ex.D.1, that A.0.1 was not one of the two persons who visited the house of PW1 on 22.12.1999. This Court too concurs with the view taken by the learned Accordingly, the Special Judge in coming to such a conclusion. Therefore, prosecution failed to prove the first part of the offence. Criminal Appeal No.947 of 2007 fails and thereby the same is dismissed. Further, the alleged earlier demand made by Accused Officers on 27. 22.12.1999 for an amount of Rs.5,000/- cannot be said to be established for the reason that PW1 did not support the prosecution case and he was 18 treated as hostile by the prosecution. P.W.1 that A.0.1 and A.0.2 22.12.1999. When It is the categorical evidence of are not the persons who visited his house on once the learned Special Judge came to a conclusion that it is not A.0.1, who went to the house of PW1 on 22.11.1999, there is any amount of ambiguity as to how the learned Special Judge conclusion that there was demand of bribe came to a on the part of A.0.2 disbelieved by the on the date of trap and acceptance cannot be taken into account for convicting an accused. on 22.11.1999. If the initial part of demand has been prosecution, the question of subsequent demand 28. Learned counsel appearing on behalf of A.0.2 relied upon the decision of the Hon'bie Supreme Court in the case of Hah Dev Sharma I/s. State (Delhi Administration^, wherein it is held at Para 3 thus: The High Court on appeal preferred by the not accept the prosecution ground that it would be unsafe to hold appellant before us did on the first two charges on the case on the bare testimony of the complainant that Rs.20 had been paid to the appellant as alleged. Apparently, the High Court looked upon the complainant as a witness not to be believed unless his evidence was corroborated by other accepted the other part of the evidence. The High Court however prosecution case that the appellant had been caught while accepting Rs.70 as bribe from the complainant. One circumstance which was that the appears to have impressed the learned Judge complainant was being harassed by various objections raised on his application ever since 1964 when the property was purchased. It appears however that the appellant started dealing with the file only ' (1977) 3 see 352 19 from July, 1966, and the earliest of the notes made by him on the file was dated July 20, 1968. Admittedly, the complainant met the appellant for the first time on January 29, 1969 and, that being so, it is difficult to hold that the objections raised prior to this date were calculated to put pressure on the complainant. It is hardly reasonable to think that the appellant could anticipate what in fact followed. Besides, the appellant could not have been responsible for any objection raised between 1964 and July 1966. But the main difficulty we feel in accepting the prosecution case arises out of the fact that the High Court disbelieved the part of it which, according to the prosecution, was the genesis of the case. Having disbelieved the story that the appellant had asked for a bribe of Rs.lOO of which Rs.20 was paid in advance, we do not think the High Court could reasonably proceed on what was left of the prosecution case to affirm the order of the conviction passed by the trial Court. The prosecution case was one integrated story which the trial Court had accepted. If the High Court did not find it possible to accept a vital part of the story, it is difficult to see how the other part, which did not stand by itself, could be accepted. It was not the prosecution case that Rs.70 which was recovered from the appellant was the amount that the appellant had asked for from the complainant. This was a new case made by the High Court. Undoubtedly there are circumstances in this case which are highly suspicious against the appellant, but the High Court having disbelieved an essential part of the prosecution case on which the other part was dependant, we do not consider it safe to sustain the conviction of the appellant. Accordingly, we allow the appeal and set aside the order of conviction and sentences passed against the appellant.” 29. The facts in the present case and the facts in the aforesaid judgment relied upon by the learned counsel appearing for A.0.2 appear to be similar. In the judgment relied upon by the learned counsel 20 appearing on behalf of A.0.2 goes to show that there was a demand of Rs.100/- by the accused officer therein from the informant which, Rs.20/- was paid in advance and the therein, out of remaining part of Rs.70/- having been paid on a later point of time. The Hon’ble Apex Court, after having gone through the record, disbelieved the story that the appellant therein came to a conclusion that having asked for a bribe of Rs.100/-, out of which Rs.20/- was paid in advance, the Hon’ble Apex Court thought that the High Court could not reasonably proceed on what was left of the prosecution case. The Hon’ble Apex Court categorically was one integrated story which the trial Court had accepted. If the High Court did not find it possible to accept a vital part of the story, it is difficult to see how the other part, which did not stated that the prosecution case stand by itself, could be accepted. 30. In the case on hand, on 22.12.1999, it is alieged that a demand of Rs.5,000/- was made by A.Os.1 and 2 and an amount of Rs.2,000/- was paid by P.W.1 to A.0.1 and A.0.2, and subsequently, on 03.01.2000, an amount of Rs.3,000/- was paid to A.0.2. The facts in the present case are similar to the judgment of the Hon’ble Apex Court that has been relied upon by the learned counsel for the appellant/A.O.2. There cannot be any dispute that the prosecution case is one integrated story. In view of lack of substantive evidence with regard to the alleged demand made by A.0.2 on the earlier occasion i.e. on 22.11.1999, it is difficult to accept the 21 vital part of the story i.e. earlier demand made by A.0.2 on 22.11.1999, which is the genesis of the case. In the absence of the same, the other part of the prosecution story did not stand by itself and the same is also not acceptable. 31. With regard to the fact of recovery of tainted currency from the possession of A.0.2 on 03.01.2000 and the chemical test conducted on the hands of AO.2 giving positive result, it is settled that mere recovery of tainted currency, by itself, is not a ground to find a person guilty of the offences alleged. The prosecution failed to establish the earlier demand and the demand on the date of the trap made by A.0.2. 32. On this aspect, learned counsel appearing on behalf of A.0.2 relied upon the Full Bench decision of the Hon’ble Supreme Court in the case of P.Satyanarayana Murthy \/s. District Inspector of Police and another"^, wherein it is held thus: “21. The proof of demand of illegal gratification, thus, is the gravamen of the of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, de hors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. 22. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount "air 2015 S.C. 3549 22 from the person accused of the offence the Act would not entail his conviction thereunder. 23. The sheet anchor of the under Sections 7 and 13 of i case of the prosecution is the evidence, in the facts and circumstances of the case, of PW1-S. Udaya Bhaskar. The substance of his testimony, as has been ailuded to qua the aspect of demand, that when renewal hereinabove, would disclose the complainant did hand over to the appellant the application, the latter enquired from the complainant as to whether he had brought the amount which he directed him to bring previous day, whereupon the complainant took pocket of his shirt and handed on the out Rs.500/- from the over the same to the appellant, a very spirited endeavour has been made by the etamed counsei for the State to oorrelate this Though, statement of PW1-S. Udaya and circumstances including the possession of the appellant by the Bhaskar to the attendant facts recovery of this amount from the trap team, identification of the currency notes used in the trap operation and also the chemical reaction of the sodium carbonate solution qua the appellant we are left unpersuaded to return a finding that the prosecution in the instant case has been able to factum of demand beyond reasonable prove the doubt. Even if the evidence of PW1-S. Udaya Bhaskar iIS accepted on the face value, it falls short of the quality and decisiveness of the proof of demand of illegal 1 that the offence under been proved. True it gratification as enjoined by law to hold Sections 7 and 13(1)(d)(i) and (ii) of the Act has IS, that on the demise of the complainant, primary evidence, if any, of the demand is not forthcoming. According to the prosecution, the demand had in fact been made on 3.10.1996 by the appellant to the was laid on the next date complainant and on his complaint, the trap i e. 4.10.1996. However, the testimony of PW1-S. does not reproduce the demand allegedly the complainant which Udaya Bhaskar made by the appellant to can be construed to be one as contemplated in law to enter a finding that the offence under Section 7or13(1)(d)(i) 23 - f and (ii) of the Act against the appellant has been proved beyond reasonable doubt.” 33. On a perusal of the aforesaid judgment goes to show that in the absence of any evidence of demand, mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, would not be sufficient to base the conviction for the offences alleged. In the present case on hand, only the earlier demand made on 22.12.1999 has been disbelieved by virtue of the fact that the informant did not support the prosecution case and he was treated as hostile, then the question of demand made by the accused officers on the subsequent occasion would not arise. Even there is no circumstantial evidence to establish the same. 34. The entire case now rests on the evidence of PW3, who is arrayed accompanying witness with the trap party. But, his evidence cannot be treated as independent evidence insofar as demand and acceptance of illegal gratification. In the absence of any evidence from the material prosecution witness P.W.1, the evidence of P.W.3 is not at all helpful to the case of prosecution to base a conviction. The Hon’ble Supreme Court in the case of Som Parkash Vs. State of Punjab (1^^ cited), wherein it is held thus: as “... We agree with the learned counsel for the appellant that in the face of the finding that the witnesses who formed part of the raiding party were not independent and the evidence regarding handing over money to the appellant being ' N 24 unbelievable, the conviction of the sustained, beyond reasonable doubt and as such the benefit must him.” appellant cannot be The guilt of the appellant has not been proved go to 35. Apart from the same. PW2 is the Photographer. He is said to have stated that on the instructions given by PW6 - Deputy Superintendent of Police, he took the photographs of the currency notes alone although currency notes. PW3 who accompanied the trap party categorically stated that nothing was found near the currency notes which were found lying on the ground. When an independent witness like photographer categorically stated along with the currency notes, certain papers were lying on the ground along with the that some papers were also present, there is no reason why PW3 stated that near currency notes, nothing was found lying on the ground. Relying upon the same, learned counsel appearing accompanying witness i.e. PW3, is an interested witness and much credibility cannot be attached for A.0.2 categorically stated that the to the said witness. 36. In view of the aforesaid facts and circumstances, since prosecution case was one integrated story, and the prosecution failed to establish the vital part of the story i.e. earlier demand, it is difficult to see how the other part, which did not stand by itself, could be accepted, earlier demand that has been proved by the prosecution and there i amount of inconsistency as to whether A.0.2 Since there is no IS any was present when the demand was made on 22.12.1999, this Court is of the opinion that the prosecution failed to establish its case against A.0.2 for the charges levelled against him. The learned Special Judge has not properly appreciated the evidence on record in right perspective and erred in convicting and sentencing A.0.2, and the same are liable to be set aside. 37. Accordingly, Criminal Appeal No.562 of 2007 is allowed, setting aside the judgment dated 27.04.2007 passed in C.C.No.11 of 2001 on the file of the Special Judge for ACB Cases-cum-lll Additional District & Sessions Judge, Visakhapatnam. The convictions and sentences recorded by the learned Special Judge against the appellant/A.O. 2 in the impugned judgment are set aside and A.0.2 is found not guilty of the said charges and is acquitted of the same, shall be refunded to him. Fine amount, if any, paid by him 38. Criminal Appeal No.947 of 2007 is dismissed. As a sequel thereto. Miscellaneous petitions pending, if any, in these Criminal Appeals shall stand closed. SDI- E.KAMESWARA RAO JOINT REGISTRAR //TRUE COPY// SECTION OFFICER To 1. The Special Judge for ACB Cases-cum-lll Additional District & Sessions Judge, Visakhapatnam, Visakhapatnam District. f;rff f'. 2. The Inspector of Police, Anti Corruption Bureau, Srikakulam District. 3. One CC to Sri A Hariprasad Reddy, Advocate [OPUC] 4. One CC to Sri Badeti Venkata Rathnam, Advocate [OPUC] 5. Two CCs to the Public Prosecutor, High Court of Andhra Pradesh, Amaravathi [OUT] 6. The Section Officer, Criminal Section, High Court of Andhra Pradesh at Amaravathi. 7. Three CD Copies TK TAC m .m ^ HIGH COURT DATE 0:24/03/2025 COMMON JUDGMENT CRLA Nos. 562 & 947 of 2007 JUL2K I50i ALLOWING THE CRLA No.562 of 2007 AND DISMISSING THE CRLA No.947 of 2007