Telangana High Court
Sri S.V.Rao Another vs The State Of Andhra Pradesh, Thru ... on 29 November, 2022
Author: N. Tukaramji
Bench: N. Tukaramji
THE HONOURABLE SRI JUSTICE N. TUKARAMJI
CRIMINAL APPEAL No.339 OF 2010
JUDGMENT:
This appeal has been filed under Sections 374(2) of the Criminal Procedure Code, 1973 (for short 'the CrPC') r/w Section 27 of the Prevention of Corruption Act, 1988 (for short 'the PC Act') challenging the judgment of conviction and sentence dated 23.02.2010 in C.C.No.6 of 2006 passed by the Special Judge for C.B.I. Cases, Hyderabad whereby the appellants/1st and 2nd accused (hereinafter 'the 1st and 2nd accused) were convicted under Section 120-B of the Indian Penal Code (for short 'the IPC') and sentenced to rigorous imprisonment for a period of four years and to pay fine of Rs.2,000/- in default simple imprisonment for two months; and also convicted under Section 7 of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for four years and to pay fine of Rs.2,000/-, in default simple imprisonment for two months; further convicted for the offence under Section and 13(2) r/w 13(1)(d) of the PC Act and NTR,J 2 CRLA_339_2010 sentenced to undergo rigorous imprisonment for a period of four years and also to pay fine of Rs.2,000/- in default to undergo simple imprisonment for two months; with a direction to run the sentences concurrently.
2. Heard Sri B. Venkatratnam, learned counsel for the appellants/1st and 2nd accused and Sri N. Nagendran, learned Special Public Prosecutor for the Central Bureau of Investigation (for short 'the CBI').
THE PROSECUTION CASE:
3. On 20.01.2006 Sri P.Lingam/PW-1 a scrap dealer of Balanagar lodged written report/Ex.P-1 stating that on 18.01.2006 at about 6.30 a.m. the 2nd accused/RPF Constable and another RPF constable had taken away his employee/Raju/PW-3. At about 9.15 a.m. the 1st accused/the then Inspector, RPF Sanathnagar post, asked him/PW-1 to come to Bharathnagar Railway Station;
At the railway station, the 1st accused informed him/PW-1 that a criminal case has been registered that Raju/PW-3 had stolen railway material and brought it to his/PW-1's shop and NTR,J 3 CRLA_339_2010 he/PW-1 will be added as an accused. To disjoin him/PW-1 from the case, in the presence of the 2nd accused, the 1st accused demanded an amount of Rs.10,000/- as bribe. On pleading inability to pay as his/PW-1 daughter was hospitalized, the 1st accused advised to deliberate and to inform the intent.
Later on 19.01.2006 at about 2 p.m. he/PW-1 called the 1st accused and pleaded difficulty to pay the amount;
Again on 20.01.2006 at about 1.15 p.m. himself/PW-1 contacted the 1st accused and communicated his incapacity to pay Rs.10,000/-, the 1st accused asked him to pay Rs.7,000/- and the remaining amount within two or three days and directed to hand over that amount, when the 2nd accused visits his shop in the evening. As he/PW-1 was not interested to pay the amount, approached the CBI and lodged the written complaint/Ex-P1.
Basing on the report/Ex.P-1 and the endorsement made by the Superintendent of Police, CBI, Hyderabad, Sri D.Shanker Rao, the then Inspector of Police, CBI/PW-12 registered a case in Crime No. RC6(A)/06-CBI/HYD for the offences under NTR,J 4 CRLA_339_2010 Sections 120-B of IPC and Section 7 of the PC Act, 1988 and issued F.I.R./Ex.P-19.
Thereafter, the PW-12 secured the presence of mediators i.e. S.Srinivas Rao/PW-2 and Sri P.Anand Shanker, informed them about the complaint/Ex.P-1 and the significance of phenolphthalein test and by applying phenolphthalein powder prepared the currency brought by the PW-1, explained the formalities and instructed the PW-1 to give the tainted amount to the accused, on demand. In addition a digital voice recorder was also kept in the pocket of PW-1, with the instructions to switch it on when the 2nd accused approaches him for accepting bribe and one of the mediators/PW-2 was asked to accompany the PW-1, to act as witness. Accordingly, pre-trap proceedings were recorded in a report/Ex.P-2.
Thereafter, the PW-1 along with PW-2 on a two wheeler and trap laying team in another vehicle proceeded to the shop of PW-1. In the midway the PW-1 received phone call from the 1st accused and informed him that he would be sending 2nd accused. On reaching the shop, the PW-1 phoned to the 1st accused and NTR,J 5 CRLA_339_2010 that conversation was recorded on digital voice recorder. Thereafter PW-1 contacted the 2nd accused who in turn asked him to come to Bharathnagar railway booking office. There the trap laying team took convenient positions and the PW-1/complainant followed by mediator/PW-2 went to the 2nd accused. After handing over the bribe amount to the 2nd accused, the PW-1 gave pre-arranged signal, thereupon the PW-12 and the team apprehended the 2nd accused.
Later the 2nd accused was taken to Bharathnagar railway booking counter and subjected him to sodium carbonate test and collected the wash of the right, left hands/M.Os.2 and 3 and rexine bag/M.O.4 and also collected the rexine bag of the motorcycle/M.O.5, the tainted currency/M.O.1. These proceedings were recorded in post trap second mediator's report/Ex.P-3.
After that a search was conducted in the house premises of the 1st accused and enlisted the seized material in an inventory/Exs:P-8 and P-9 and the conversation between 1st NTR,J 6 CRLA_339_2010 accused and the PW-1 just before the trap proceedings, was transcribed as in Ex.P-5, in the presence of mediators.
The PW-13 forwarded the wash of phenolphthalein test/M.Os.2 to 4, rexine bag/M.O.5 and piece of cloth/M.O.6 to CFSL, Hyderabad for forensic examination and received the analysis report/Ex.P-16. The sample voice of the 1st accused/M.O.7 and recorded conversation between PW-1 and 1st accused/M.O.8 were forwarded to CFSL, New Delhi for voice analysis and received report/Ex.P-21. After collecting the call details/Ex.P-15 from Idea Cellular and Ex.P-11 from BSNL of three cell phones and daily dairy of RPF Nampally/ Exs:P-22 and P-23 and sanction orders to prosecute the 1st and 2nd accused/Exs:P-17 and P-18, laid the charge sheet. PROCEEDINGS BEFORE THE TRIAL COURT:
4. The trial Court after examining the 1st and 2nd accused and after due hearing, framed charges under Sections 120-B of the IPC and Sections 7 and 13(2) r/w 13(1)(d) of the PC Act against the 1st and 2nd accused.
NTR,J
7 CRLA_339_2010
5. During trial, the prosecution got examined PWs.1 to 14 and marked Exs:P-1 to P-23 and M.Os.1 to 10. The incriminating material was confronted to the 1st and 2nd accused under Section 313 of the Cr.P.C. The accused denied the material aspects and filed written statement. The 1st accused got examined DWs.1 and 2 on his behalf and marked Exs:D-1 to D-4. In the cross examination of the DW-1, certified copies of judgments dt.13.07.2007 in C.C.No.288 of 2006 and dated 28.03.2008 in C.C.No.129 of 2008/Ex. D-3 and D-4 were marked.
6. On considering the materials placed on record, the trial Court recorded the finding that the 1st and 2nd accused are guilty of the charges, accordingly convicted and sentenced as mentioned above.
PLEADINGS IN THE APPEAL:
7. The learned counsel for the 1st and 2nd accused pleaded that the trial Court disregarded the material contradictions and discrepancies in the evidence of prosecution witnesses and the elicited aspects from the witnesses. The trial Court ought to NTR,J 8 CRLA_339_2010 have considered that the documents marked in defence/Ex:D3 and D4, are establishing that the complainant/PW-1 and his employee/Raju/PW-3 were convicted in the case for theft of railway property and it is the cause for grudge and to initiate false proceedings against the 1st and 2nd accused. Further pleaded that the alleged implication of the complainant/PW-1 itself is improbable, as there was no reference of the PW-1 in that crime proceedings against Raju/PW-3. That apart, the evidence of tape recorded conversation is inadmissible as it is not properly brought on to record and even otherwise a comparison of duration of conversation/voice clip as per the BSNL and the voice clip in M.O.8 is probabalising the interpolations. In addition, the alleged recovery of tainted amount from the 2nd accused has not been established beyond doubt. Steadily more, the charge of conspiracy between the accused has not been proved by the prosecution even to presume that the 2nd accused had received those amounts in furtherance of conspiracy and on behalf of the 1st accused. Therefore, the prosecution failed to NTR,J 9 CRLA_339_2010 prove the charges beyond reasonable doubt and the accused are entitled for acquittal.
In support, the petitioners placed reliance on the following authorities (1) Neelesh Dinkar Paradkar v. State of Maharashtra - (2011) 4 SCC 14; (2) C. Sukumaran v. State of Kerala - (2015) 11 SCC 314 - (3) B.Jayaraj Vs. State of Andhra Pradesh1 - (2014) 13 SCC 55- (4) Dasarath Singh Chauhan v. Central Bureau of Investigation
- AIR 2018 SC 4720.
8. The learned Special Public Prosecutor would submit that the evidence of complainant/PW-1 as to the circumstances of demanding bribe, receiving the amounts through the 2nd accused is consistent with the other evidence on record and no material aspect is made out in the cross examination. The facts established by the prosecution witnesses are establishing that both the accused acted together in conspiracy and in furtherance the 2nd accused received the bribe amount. These facts are corroborated by the evidence of mediators/third parties and the trial Court in a proper perspective considered all these aspects 1 2014 (13) SCC 55 NTR,J 10 CRLA_339_2010 and concluded the guilt of the accused. Thus, no reason is made out for interference in the appeal.
9. In these rival pleadings, the point that arises for determination is:
Whether the prosecution is able to bring home the guilt of the accused for the charges of criminal conspiracy, demand and receipt of bribe to extend a favour by abusing their official position, beyond reasonable doubt?
POINT:
10. The sum and substance of the prosecution accusation is that to extend favour of disjoining the complainant/PW-1 from the offence committed by his employee/PW-3 by misusing the official position, the accused in conspiracy demanded bribe of Rs. 10,000/-, in pursuance thereof, the 2nd accused received that amount.
11. To prove the charges, the aspects to be proved are:
(a) the demand of bribe by the accused officer
(b) the accused officer receiving the bribe amount in pursuance of the demand;
(c) recovery of the bribe amount from the accused officer; and
(d) the demand for bribe is to extend a favour by abusing the official position.
NTR,J 11 CRLA_339_2010
12. In Jayraj v. State of Andhra Pradesh (1 supra) the Hon'ble Supreme Court held that, the demand of illegal gratification is sine qua non to constitute offence and mere recovery of the currency note cannot constitute offence under Section 7 of the Act. Further only proof of acceptance of illegal gratification, the presumption can be drawn under Section 20 of the Act. But, such gratification was received for doing or forbearing to do any official act.
13. In N.Vijayakumar v. State of Tamil Nadu (2 supra), the Hon'ble Supreme Court held that while considering the case under Sections 7 and 13(1)(d) (i) and (ii) of the Prevention of Corruption Act it has to be proved beyond reasonable doubt that accused voluntarily accepted the money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession of recovery of currency notes is not sufficient to constitute such offence. Further the presumption under Section 20 of the Act can be drawn only after demand for acceptance of illegal gratification is proved.
NTR,J 12 CRLA_339_2010
14. Similar view has been reiterated in the authorities P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh(3 supra) and K. Shanthamma v. State of Telangana (4 supra).
15. In the light of the above propositions, the material on record needs examination.
16. At the outset, the foundation for demand of bribe is to save the complainant/PW-1 from implication in the crime registered against his employee/PW-3. It is pertinent to mention that in the first information statement/Ex.P-1 the PW-1 specifically stated that the case was registered against Raju/PW-3 for bringing the railway material to his shop.
17. In this regard the prosecution got marked case file of Crime No.1/2006/Ex.P-20 registered against the 2nd accused. The entries in remand report, F.I.R. and panchanama and confessional statement dated 18.01.2006 are disclosing that at the relevant hour the PW-3 was found with a plastic bundle on his shoulder and on search in the presence of the two mediators, four iron plates were found and the PW-3 admitted that he had NTR,J 13 CRLA_339_2010 committed theft of the iron and taking it away for sale to the purchasers of scrap in the streets at Erragadda.
18. Further the complainant/PW-1 in his evidence deposed that on the next day of demand i.e. 19.01.2006 he had received a phone call from the 1st accused that Raju/PW-3 was granted bail and asked to take him. The PW-3 in his cross examination admitted that the PW-1 got released him on bail.
19. Thus, the record/Ex.P-20 is disclosing that PW-3 was caught red handed and nowhere in his statement referred the name of his employer/PW-1 or his shop.
20. Further the PW-1 had knowledge about the remand of PW-3 in the theft case and the fact of granting bail even by 19.01.2006. As mentioned above, the 1st accused also informed the PW-1 about the fact of granting bail to the PW-3. In this factual position, implication of the employer/PW-1 in the crime against the PW-3, would not be possible either for abetment to commit the offence of theft or as a receiver of stolen property. Nowhere in the record/Ex.P-20, these aspects are attributed to the PW-1. As the complainant/PW-1 is aware of the proceedings NTR,J 14 CRLA_339_2010 in the court against PW-3 and as the record is indicating that the investigating officer in no way could even implicate the PW-1 in the crime registered against the PW-3, the alleged threat showing him as an accused and extending assurance to save him by abusing his official position is implausible. This factual situation is effecting the very basis of the prosecution case.
21. With regard to demand, PW-1's version in Ex.P-1 that after the arrest of PW-3 and on instruction of the 1st accused he visited the railway station there, the 1st accused in the presence of the 2nd accused demanded bribe of Rs.10,000/-. Even though he pleaded inability the 1st accused asked him to re-consider and inform by the evening. However, he called the 1st accused at about 2 P.M. on 19.01.2006 pleaded incapacity. On 20.01.2006 at 1.15 p.m. when he called the 1st accused and pleaded predicament, the 1st accused asked him to pay Rs.7,000/- now and remaining Rs.3,000/- within two or three days and to pay the same to the 2nd accused when he visits his shop in the evening.
NTR,J 15 CRLA_339_2010
22. The complainant as PW-1 deposed that at 9.15 p.m. the 1st accused came to his shop and took him in his vehicle to Bharathnagar Railway Station and at railway station threatened to implicate him in the case registered against the PW-3 and demanded Rs.10,000/-. Again on 19.01.2006 the 1st accused called him and informed that bail was granted to PW-3. On 20.01.2006 at about 1 p.m. the 1st accused over phone instructed him to pay Rs.7,000/- now and the remaining in two or three days and that the 2nd accused will come to his shop at 7.30 p.m.
23. Thus, the version given by the complainant/PW-1 in the complaint/Ex.P-1 and his testimony is at variance as to who called whom i.e. in Ex.P-1 the PW-1 had phoned to the 1st accused, whereas as PW-1 the 1st accused called him over phone and the demand for bribe.
24. Further the complaianant/PW-1, mediator/PW-2 and investigating officer/PW-12 deposed that after reaching the shop the conversation between the 1st accused and PW-1 was recorded in a digital recorder.
NTR,J 16 CRLA_339_2010
25. On this point, the PW-1 stated that, in conversation at about 7 p.m. the 1st accused called him and asked, whether the amount is ready and on his affirmative answer and that he is in the shop, the 1st accused stated that he is sending the 2nd accused to collect the amount.
26. The PW-2 gave account that at 6.30 p.m. the PW-1 received two calls, and the second call was from the 1st accused. The PW-1 informed him that he is bringing what was asked and on reaching the shop the conversation between the Inspector and PW-1 was recorded in digital recorder and he/PW-2 heard the conversation, the 1st accused referred to bail and also asked him to pay the amounts to the 2nd accused.
27. The investigating officer/PW-12 stated that on reaching the shop, the PW-1 called the 1st accused and the conversation was recorded in the digital voice recorder.
28. To prove this aspect, the voice captured in the digital recorder was transferred into a cassette/M.O.8 and the dialogue was transcribed as in Ex.P-5. Following that, sample voice of the 1st accused in audio cassette/M.O.7 and the recorded NTR,J 17 CRLA_339_2010 conversation in the cassette/M.O.8 was forwarded for forensic analysis.
29. The Principal Scientific Officer/PW-14 deposed that he found the questioned voice in M.O.8 was tallying with the specimen voice. In cross examination it is elicited that the cassette recordings are from the digital tape and the audio clip was found for 2 minutes 29 seconds which is equivalent to 149 seconds and the opinion is basing on probability of 99%.
30. There cannot be other view that the admissibility of the digital evidence would be subject to the manner of presentation on record. Admittedly, the prosecution witnesses deposed that the conversation between PW-1 and the 1st accused was recorded in digital voice recorder from that devise, the recorded substance was transferred into an audio cassette/M.O.8. Therefore, the audio cassette/M.O.8 is copy of the version in digital recorder. As such, this material becomes admissible as secondary evidence subject to qualifying the requirements under Section 64 (B)(4) of the Indian Evidence Act.
NTR,J 18 CRLA_339_2010
31. The Hon'ble Apex Court in an authority between Anwar PV v. PK Basheer - 2014 (3) ECS (1) (SC) had fortified that unless the original document is presented to the Court for review the provisions of Section 65-B of the Indian Evidence Act would apply and the person in-charge must provide the certification to ensure the proper custody of device from which electronic record is generated and that the material has not been interfered with by others and unless the requirement is met, any information found in electronic record which is printed on a paper or stored or recorded or copied in optical or magnetic media is inadmissible in any proceedings of any nature, despite the production of material.
32. Thus, though there is an effort by the investigating agency to capture and prove the conversation between the complainant/PW-1 and the 1st accused the same stands inadmissible as no certification and the other requirements under law are complied with. In addition, it is elicited by the defence that, the conversation was of 92 seconds as per the BSNL/service provider, but the admitted length of the audio clip NTR,J 19 CRLA_339_2010 in M.O.8 is of 149 seconds, which ex facie pointing the probability of intervention. Thus, the M.Os.7, 8 and Ex.P-5 are of no help to derive any conclusion.
33. Further the prosecution secured the call data of the cell phones to establish the fact of demand for bribe. The evidence on record is indicating that the information called for of the Cell phone Nos.9441163974 of P.Lingam/PW-1, 9440029106 of one Solleti Rajareddy and 9447709671 of the 2nd accused.
34. However, the prosecution failed to establish the alleged conversation/demands of the 1st accused and PW-1/complainant. Further in cross examination of the PW-5 it is elicited that he cannot say the time of incoming and outgoing calls and whether the incoming calls received are one and the same. In addition, a careful perusal of these documents/Ex-11 is not tallying with the call details given by the PW-5.
35. Further no evidence has been placed on record that the SIM in the name of Solleti Rajareddy is actually used by the 1st accused and no effort is made at least to map basing the SIM and the IMEI number of the cell phone. Be that as it may, even if it NTR,J 20 CRLA_339_2010 is taken that there was communication, it cannot be conclusive proof of 'demand' unless the conversation is proved. The variance in the PW-1's version and the unconfirmed digital evidence and the call data are in no way clinchingly establishing the demand for bribe.
36. In regard to accepting and recovery of bribe amount, the complainant/PW-1 deposed that the 1st accused informed that he (1st accused) is sending the 2nd accused and asked him to give the amount to the 2nd accused. Thereupon, when contacted, the 2nd accused instructed him/PW-1 to come to the booking office of Bharathnagar railway station, on that himself/PW-1 and the accompanying witness/PW-2 went to the booking house of the railway station by walk and there when he called over phone, the 2nd accused asked him to wait. However, as he saw the 2nd accused by the side of rail track sitting on the stationed Herohonda motorcycle, both of them moved ahead to him.
37. The PW-2/the accompanying witness/mediator narrated that the 2nd accused did not come to the shop of PW-1. However, he (2nd accused) telephoned PW-1 and asked him to NTR,J 21 CRLA_339_2010 come to the booking house of Bharathnagar railway station. They went there and waited at booking house for five minutes. The 2nd accused again phoned and informed that he (PW-2) is at railway track and asked him to come there. Thereupon, PW-1 proceeded and himself (PW-2) followed him and found the 2nd accused at railway track.
38. In this respect, the investigating officer/PW-12 who is part of the trap laying team stated that when PW-1 contacted, the 2nd accused asked PW-1 to come to Bharathnagar railway booking counter. On reaching there, the PW-1 contacted the 2nd accused and informed him that he is waiting at the railway track opposite to Bharathnagar railway booking counter. After some time, when the PW-1 contacted the 2nd accused and informed him that he is waiting at railway track opposite to Bharathnagar railway counter. Accordingly, PWs.1 and 2 went there and the CBI team took convenient positions and waiting for the signal.
39. Again, the versions given by PWs.1 and 2 are displaying dissimilitude, particularly who contacted whom. The PWs.1 and 2 did not refer to any act of the trap laying team.
NTR,J 22 CRLA_339_2010
40. About the PW-1 approaching the 2nd accused and handing over the amount, the complainant/PW-1 asserted that himself and the accompanying witness/PW-2 were together and the PW- 1 informed the 2nd accused that 1st accused asked to meet him. Then, on questioning by the 2nd accused about Rs.10,000/-, the PW-1 explained that he brought Rs.7,000/- as directed by the 1st accused and handed over that amount to him (2nd accused) and also signal to the trap laying officer by wiping his face with kerchief. He further clarified that the amount was handed over with his right hand and the 2nd accused received the same with his right hand and changed into left hand and kept the amount in the pouch on the tank of the motorcycle. Immediately, Sri Shankar Rao/PW-12/investigating officer came there, caught hold of the hands of the 2nd accused at wrist level.
41. The accompanying witness/PW-2 deposed that he was five feet behind the PW-1 and the PW-1 and 2nd accused had conversation, then the PW-1 took the amount from his pant pocket and tried to hand over but the 2nd accused gave signal for keeping the amount in the pouch on the petrol tank of his NTR,J 23 CRLA_339_2010 motorcycle and the 2nd accused also pushed the amount inside the pouch with his hands. Then the complainant/PW-1 gave signal to the Inspector.
42. The PW-12 did not state any of these aspects but after receiving the signal by wiping the face of PW-1 with kerchief, immediately himself and the witnesses rushed to him and on being shown the 2nd accused was apprehended.
43. Another time, the narrative given by PWs.1 and 2 as to the manner in which the bribe amount was received/accepted was not analogues. The statements of the direct witnesses regarding the selfsame scene with disparity is giving scope to entertain any amount of reasonable doubt. Further the entire occurrence even as per the prosecution was at the railway track, a open place and the trap laying team should have been taken vintage positions so as to observe the signal to be given by the complainant/PW-1. The statement of the PW-12/trap laying officer that on seeing the signal rushed to the spot is explicating that the officer was in visible range. However, in either way stated that the manner of handing over the bribe amount and even identified the 2nd NTR,J 24 CRLA_339_2010 accused when shown to him is not even appealing the ordinary prudence.
44. Further the evidence of PWs.1, 2 and 12 referring to taking the 2nd accused to the booking house of the railway station and conducting phenolphthalein test and seizing the wash/ solution and the tainted amount handed over by the PW-1.
45. Further as per PW-1 the 1st accused came to Bharathnagar railway station, where the PW-12/investing officer had recorded panchanama/Ex.P-3 on which himself and all the accused signed. Thereafter, the 1st accused was taken to his house.
46. As per the PW-2 after the seizure proceedings, the playing of digital recorder and recording the same into a cassette and seizing the cell phones of 1st accused and the PW-1, proceeded to the house of 1st accused. However, in the trap laying officer the events took place in Bharathnagar railway station were reduced into mediators report. Thereafter, search was conducted in the residential premises of the 1st accused and seized certain documents. Therefore, even in regard to the proceedings after seizure, different versions were given by the witnesses.
NTR,J 25 CRLA_339_2010
47. A cumulative reading of these aspects and as there is distinctness in the particulars given by the witnesses who were projected as direct witnesses and conducted proceedings and the disharmony is effecting the reliability and possibility to conclude the aspects as charged by prosecution.
48. That apart, the specific case of the prosecution is that the 1st and 2nd accused had criminally conspired to commit the offence. Section 120-B of IPC contemplates that a criminal conspiracy consists in the agreement of two or more persons to do an unlawful act or to do a lawful act unlawfully. It is settled position that mere agreement to commit is sufficient proof of the offence of conspiracy and as it is distinct offence, the charge has to be proved independently.
49. The criminal conspiracy is a matter of inference which is normally deduced from the acts of the parties in pursuance of the criminal purpose in between them. Further Section 10 of the Indian Evidence Act envisages that, if the conditions of agency are satisfied the act done by one is admissible against the other co-conspirator, however, this aspect will come in aid if there is NTR,J 26 CRLA_339_2010 prima facie evidence that a person was party to the conspiracy and should have acted in reference to the common intention.
50. In the entire prosecution case the 2nd accused's reference is found place, firstly in the first information statement/Ex.P-1. As per PW-1 on 18.01.2006 at about 6.30 a.m. in the crime of theft by PW-3 the 2nd accused and another constable had taken away, the PW-3 from the shop premises of PW-1.
51. Secondly, in the complaint/Ex.P-1 that on 18.01.2006 at Bharathnagar Railway Station while the 1st accused demanded Rs.10,000/- in the presence of the 2nd accused. However, in the witness stand, for the reasons best known to the complainant/PW-1, the presence of the 2nd accused at the time of demand had not referred. Thirdly, the PW-1 deposed that the 1st accused asked him to give the bribe amount to the 2nd accused and he will come to his (PW-1's) shop to collect the amount. However, the 2nd accused did not visit the shop.
52. Finally, as per the PWs.1 the bribe amount was received by the 2nd accused and as it is part of trap proceedings he was apprehended by the trap laying team.
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53. A careful examination of the material even for discussion, if the 2nd accused taking away the PW-3 in the registered crime, is neither establishing the role of the 2nd accused in investigation nor his capacity in deal with the alleged implication of the PW-1. To note, in cross examination the PW-1 specifically stated that the 2nd accused never demanded any bribe. Without establishing the possible agreement between the 1st and 2nd accused to do illegal act, merely on the aspect that the 1st accused instructed to give that amount to the 2nd accused, who will come and collect the money from the PW-1 or actually collecting the money especially the 2nd accused being subordinate to the 1st accused, cannot be read as conclusive proof of the agreement between the accused to commit the offence and to hold that the collection of amount was in furtherance of the agreement between them. In the absence of any other ground to infer agreement, it shall be held that the material is falling short to establish the ingredients of conspiracy.
54. Therefore, a survey of the evidence on record is demonstrating that the evidence is not establishing the existence NTR,J 28 CRLA_339_2010 of foundational fact that the accused demanded bribe to disentangle the PW-1 from the crime registered against the PW-3 and the asserted facts of demand for bribe by the1st accused are unconvincing and the inconsistencies in the narration of the witnesses that accepting the tainted amount by the 2nd accused are giving scope to reasonably assuming contrasting aspects than projected by the prosecution. Thus, in the considered opinion of this Court, recording the guilt and conviction would be highly unsafe and in consequence, the accused are entitled for benefit of doubt.
55. Resultantly, it shall be held that the trial Court failed to consider the factual and legal aspects in proper perspective and therefore, the impugned judgment is liable to be set-aside.
56. In the result, the criminal appeal is allowed. The judgment of conviction and sentence dated 23.02.2010 in C.C.No.6 of 2006 passed by the Special Judge for CBI Cases, Hyderabad for the offences under Section 120-B IPC, Section 7 of the Prevention of Corruption Act, 1988 and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act are hereby set NTR,J 29 CRLA_339_2010 aside. The appellants/accused are acquitted of all charges. The fine amount if any paid shall be refunded.
As a sequel, miscellaneous petitions pending, if any, in this Appeal, shall stand closed.
________________ N.TUKARAMJI, J Date:29.11.2022 Ccm