Telangana High Court
Nurukurthi Appala Raju vs The State Of A.P., Rep. By Inspector Of ... on 9 November, 2018
THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
Criminal Appeal No.848 of 2006
JUDGMENT:
This Criminal Appeal is directed against the judgment in C.C.No.36 of 2000 dated 08.06.2006 passed by learned Special Judge for SPE and ACB Cases, Vijayawada, convicting the accused for the offences under Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 (for short "PC Act") and sentencing him to undergo RI for two years and pay fine of Rs.5,000/- and in default to suffer SI for a period of three months on two counts, while directing both sentences to run concurrently.
The parties are referred as they were arrayed before the trial Court.
2a) The appellant/accused who worked as Sub-Divisional Forest Officer, Koyyalagudem, West Godavari District was punished by the trial Court on the ground that he demanded and accepted bribe of Rs.1,500/- from PW1 on 18.05.1999 at Kannapuram forest rest house for processing the file relating to his application seeking permission to cut and transport the teak wood trees existing in his private patta land in Dippakayalapeam village.
b) The contention of accused was total denial of the offence. His defence was that he was not concerned with the file of PW1 as the Divisional Forest Officer (DFO) and Range Officer were the authorities 2 to process his file and therefore, no official favour was pending with him. His further contention is that he never demanded bribe and during the relevant period of alleged demand for bribe, he was engaged in Janmabhoomi programme at Jeelugumalli and Rowthugudem and hence he had no occasion to demand bribe. Regarding the trap incident, his contention is that he did not demand and accept bribe on the date of trap. PW1 came to him and requested for his file and went away and before parting, PW1 shook his hands with him and thereby he probably transferred phenolphthalein powder to his left hand which showed positive result to the chemical test. The bribe amount might have been stealthily kept under the mattress of the cot in the rest house by the prosecution party without his knowledge to implicate him in a false case. The above arguments were not found favour with the trial Court which, on analysis of evidence, satisfied that the accused had demanded and accepted the bribe and accordingly convicted and sentenced him as stated supra.
Hence the instant Criminal Appeal.
3) Heard arguments of Sri A. Hari Prasad Reddy, learned counsel for appellant and Sri P. Udaya Bhaskar Rao, learned Special Public Prosecutor (Spl.P.P) for the State (Andhra Pradesh). 4a) Severely castigating the judgment convicting the accused, learned counsel for appellant would firstly argue that in a trap case the prosecution shall establish by reliable evidence the two vital ingredients i.e., demand and acceptance of bribe. However, in the instant case, it 3 miserably failed to prove either of them. Regarding demand, he argued that it is the case of prosecution that in order to process the file of PW1 for according permission to cut and transport the teak wood trees standing on his private patta land, the accused allegedly demanded bribe. This allegation is false to the core inasmuch as the accused has nothing to do with the file of PW1. On the other hand, as per the circular orders issued by the Conservator of Forests, it was PW7--the Divisional Forest Officer and PW2--the Forest Ranger, who are responsible to process the file and issue necessary permission. Referring to the evidence of PW7, learned counsel submitted that the application seeking necessary permission to cut and transport will be made over by PW7 to jurisdictional Forest Ranger for enumeration and after receiving report, PW7 may either grant or refuse permission. As per the circular, if the enumeration is in respect of a small patta land, the Ranger himself will return the permit file to PW7 after enumeration and there is no necessity for him to send the file through the office of Sub-Divisional forest Officer. Learned counsel thus vehemently argued that while the responsibility to make enumeration of trees sought to be felled and transported lies with the Forest Ranger--PW2, the power to issue permit upon perusal of enumeration report vests with PW7. Therefore, accused had absolutely nothing to do with the processing of the file. As no official favour was pending with the accused, the question of his demanding bribe from PW1 does not arise. He would also argue that during the relevant period i.e., 17.05.1999 and on previous dates when he allegedly demanded bribe from PW1, the accused was camping at 4 Jeelugumilli and Rowthugudem to attend Janmabhoomi programme and hence PW1 approaching him on 17.05.1999 and his demanding bribe are all myth and concoction. Above all, learned counsel would vehemently argue, except the sole testimony of PW1 which is full of contradictions and even being declared to be hostile by the prosecution itself, there are no other independent witnesses to speak about the demand or acceptance of bribe by the accused. Learned counsel argued that there is any amount of contradiction between Ex.P1--report of PW1 and his evidence in Court on the aspect of demand of bribe. In Ex.P1 he mentioned as if 20 days prior to lodging report, when he met accused he demanded Rs.1,500/- as bribe for processing his file. Not willing to pay bribe he returned and sent his clerk--PW6 to whom also accused demanded bribe. Thereafter, when again PW1 met accused and requested to process his file, he rudely answered file was not with him and asked him to go away. So, again on 17.05.1999, when PW1 met accused and requested to process his file, the accused again reiterated his demand for the bribe of Rs.1,500/- and told that if the amount was paid by the evening of the next date his work would be completed. Learned counsel argued that as per Ex.P1, the demand was made by accused directly to PW1 on two or three occasions. However, in the evidence, PW1 did not depose in terms of Ex.P1 but deposed to the effect that when he sent his clerk to enquire about his file, he returned and informed as if accused demanded bribe of Rs.1,500/- for processing the file. On that without verifying the truth of the said information, he gave Ex.P1--report to DSP. He was declared hostile by the prosecution 5 and cross-examined but nothing was elicited. Learned counsel thus argued that the prosecution could not establish the plea of demand by placing reliable evidence.
b) Nextly, on the aspects of further demand and acceptance of bribe on the date of trap, learned counsel would argue that if really the accused made further demand on 17.05.1999, he would have instructed PW1 to come to the rest house at Kannapuram where he was camping but he would not have asked PW1 to come to his office at Koyyalagudem. It is argued, the fact that the trap party at first went to Koyyalagudem and on knowing that the accused was camping at Kannapuram and went there, would suggest an inference that accused had not made any further demand on 17.05.1999 as alleged by prosecution.
c) Learned counsel further argued that even just before trap also the accused did not make any demand for bribe which is evident from the deposition of PW1 who said that he met accused at the rest house and without there being any further demand, he kept the money on the file lying in front of accused and came back. That being the tenor of evidence, the prosecution cannot claim that it had established the crucial ingredients like further demand and acceptance of bribe. Learned counsel would submit that the incidents of recovery of tainted money and left hand of accused showing positive result to chemical test are not the proof positive for further demand and acceptance of bribe. Since PW1 shook his hands with accused before parting from him, the pre- 6 smeared phenolphthalein powder must have been transferred to the hand of accused unconsciously. That apart, tainted amount was admittedly not found in the position of accused but it was found only under the mattresses of the cot lying in the bed room of the rest house. Learned counsel argued, it was turned out in the evidence of PW3 that bed rooms are having front and rear door ways and thereby it is evident that one of the trap party members might have sneaked through the rear door way into the bed room and stealthily put the tainted amount underneath mattress to implicate the accused. So, mere recovery of the amount and accused's left hand yielding positive result to chemical test are of no significance to prove his guilt. He finally argued that the claim of PW2 that he handed over the file to accused on 18.05.1999 is false and it was only an attempt to implicate him. He cited the following decisions to buttress his arguments.
1. T.Ramesh Reddy v. State of A.P.1
2. B. Jayaraj vs. State of A.P.2
3. Karri Venkata Rama Reddy vs. State of Andhra Pradesh3
4. Smt. Meen vs. The State of Maharashtra4
4. Nagulapati Mallaiah vs. The State5
5. State of Gujarat v. Kumudchandra Pranjivan Shah6
6. Satvir Singh vs. State of Delhi7 1 2010 (1) ALD (Crl.) 342 (AP) 2 2014 (2) ALD (Crl.) 73 (SC) = MANU/SC/0245/2014 3 2015 (1) ALD (Crl.) 833 (AP) = MANU/AP/2767/2014 4 LC 2000 (1) SC 212 5 2013 (2) ALD (Crl.) 1 (AP) = MANU/AP/0261/2013 6 1995 Crl.L.J. 3623 7 2015 (1) ALD (Crl.) 48 (SC) 7 5a) In oppugnation, learned Spl.P.P. would firstly argue, official favour was indeed pending with accused to demand bribe since the accused has to verify the file submitted by Range Officer after making enumeration and then forward to DFO for orders. He would submit that though in respect of small patta lands the file can be directly submitted by Range Officer to DFO, however, in respect of other lands, the file has to enroute through Forest Range Officer to Sub-Divisional Forest Officer and then to DFO and in this regard, there are no specific guidelines as stated by PW7. Further, there is no clarification as to what extent of land can be called as small patta land. Therefore, in practice, all the files are being routed through Forest Range Officer after enumeration to the accused being the Sub-Divisional Forest Officer and then to DFO. Ex.P5--covering letter is an ample testimony that PW2 submitted the particulars of enumeration to accused for inspection which indicates that accused has necessarily to verify the enumeration made by Forest Ranger for forwarding to DFO for issuance of permit. Hence, the accused also has a key role to play in the matter of issuance of permit and he thus had an occasion to demand bribe.
b) Nextly, regarding demand of bribe, he argued that though PW1 in his evidence retracted to some extent, still his admission in the cross- examination of Public Prosecutor that he made a statement before the Magistrate under Section 164 Cr.P.C. that accused demanded him bribe on 17.05.1999 would clinchingly establish the demand aspect. Considering it and observing there was no enmity between complainant 8 and accused to speak falsehood, the trial Court held that the accused demanded bribe from PW1.
c) Nextly, regarding further demand and acceptance of bribe on the date of trap, learned Spl.P.P. argued that the recovery of Ex.P11--file relating to PW1 from the possession of accused at the time of trap and his left hand yielding positive result to chemical test are the strongest proofs against accused to show that he demanded and accepted bribe. He vehemently argued, the explanation that PW1 shook hand with accused and thereby his hand showed positive result to chemical test is an after thought and such a suggestion was not given to crucial witness i.e. PW1 and hence the said explanation had no probative value. On the other hand, the circumstances would show accused himself kept the money under mattress with an intention to carry the same with him while leaving the rest house. The accused did not give any spontaneous explanation for his left hand yielding positive result and hence the trial Court rightly held that the prosecution has proved the charges levelled against him. He thus prayed to dismiss the appeal.
6) The points for determination are:
1) Whether official favour was pending with accused during the relevant period to demand bribe from PW1?
2) If point No.1 is held affirmatively, whether prosecution could establish the demand and acceptance of bribe by accused and if so, whether the accused could probablise his defence theory?
3) Whether the judgment of the trial Court is factually and legally sustainable? 9
7) POINT No.1: It being a trap case, the prosecution shall, by plausible evidence, establish the two vital ingredients i.e., demand and acceptance of bribe by the accused. In the instant case, the staunch contention of accused is that no official favour relating to PW.1 was pending with him during the relevant period and therefore, the question of his demanding and accepting bribe does not arise. So the theory of demand put-forth by the prosecution has to be tested in the light of aforesaid contention.
8) It should be noted, the case of prosecution is that for processing the file of PW.1, the accused demanded bribe of Rs.1500/-. The accused refuted the same on the contention that concerned file should route between PW.2--the Forest Ranger and PW.7--the Divisional Forest Officer and in that regard, accused has no concern. I carefully perused their evidence.
a) PW.7 was the Divisional Forest Officer at Eluru, during the relevant period from 24.07.1998 to 30.04.2000. He deposed that PW.1 approached him regarding permission for felling and transportation of teak trees grown in his lands and gave a representation to him. This witness made endorsement thereon and forwarded to PW.2--Range Officer, Kannapuram. PW.1 met him only once in that occasion and he does not remember whether he perused the letter allegedly addressed by MRO, Koyyalagudem to him dated 11.05.1998. In the cross- examination the procedure relating to the processing of aforesaid application was elicited. This witness stated that every applicant seeking permission for felling and transporting timber within his jurisdiction 10 shall make an application in a prescribed proforma by affixing court fee labels. Thereupon, this witness will make it over to Jurisdictional Forest Ranger, for enumeration and report. On receiving the said report from the Ranger, he will either grant or refuse permission. He further stated that after according permission, the Range Officer or his Subordinate must be personally present at the time of felling of trees and make an imprint of hammer marks on the stem of the tree as well as the cut portion of the tree. If during transit, the Forest Officials find the absence of pass hammer mark on the logs, they will seize them. It should be noted that the original application of PW.1 seems to have been misplaced and hence Ex.P.2 the Xerox copy is marked. In that context, PW.7 stated that he did not initiate proceedings for the alleged loss or non-tracing of the file containing the application of PW.1. Then he further deposed that as per the certificate issued by the Forest Dept., Government of A.P, the accused attended a training course on monetary and evaluation of JFM from 30.06.1998 to 04.07.1998 at Hyderabad. Then regarding the role of Sub-Divisional Forest Officer in processing the permit files, it was put to PW.7 about circular Order No.4/1996-M5, in RC No.11473/96-M5 dt.30.12.1996 issued by the Conservator of Forests, Rajahmundry Circle and this witness stated that the said circular order was in force during his tenure as DFO, Eluru. He further stated that if the work is in respect of a small patta land, the Ranger himself will return the file to him (PW.7) after enumeration and there is no necessity to him to send the same through the office of Sub-Divisional Forest Officer. He admitted that he does not remember the extent of land 11 in which PW.1 sought permission for cutting and transporting the trees. During re-examination by Spl.P.P, PW.7 stated that there are no guidelines with regard to the enrouting of enumeration files through Sub-Divisional Forest Officer, Forest Range Officer and to him. To a Court question, he stated that he does not know what is meant by small patta land.
b) So on a close scrutiny of above evidence, it is clear that when an application is filed in prescribed proforma seeking permission to fell and transport teak trees, the DFO will forward the application to Jurisdictional Forest Ranger for enumeration. The said Ranger will make a physical verification of the concerned land and inspect the trees to be felled and make an enumeration and submit report. We will understand from the evidence of PW.7 that in case the subject land is a small patta land, the Ranger himself will return the file after enumeration to DFO without referring to Sub-Divisional Forest Officer. However, it is not clear what extent of land is officially regarded as small patta land. It is also not clear whether the land of PW.1 wherefrom trees were sought to be felled and transported was a small patta land or big land. Though PW.7 admitted that Circular No.4/96-M5 in RC No.11473/96-M5 dated 30.12.1996 issued by Conservator of Forests, Rajahmundry, was in force, the said circular was not produced and marked as exhibit on behalf of accused for appreciation. No doubt, with reference to the above circular, the other witness i.e, PW.2 in his cross- examination admitted that as per the said circular instructions, only the 12 Forest Range Officer and Divisional Forest Officer are responsible to look after all the affairs connected to the issuance of permits as a whole. It should be noted that inspite of this admission by PW.2, one cannot automatically conclude that the aforesaid circular totally excluded the role of Sub-Divisional Forest Officer (Accused) in the matter of processing the permit file. The reason being, PW.2 himself has submitted the enumeration report and other documents relating to PW.1 to the accused for inspection and onward transmission with remarks to DFO. We will presently discuss the said aspect in the evidence of PW.2. So the evidence of PW.7 would suggest an inference that in respect of private patta lands, other than small patta lands, the Ranger will refer the enumeration report to the Sub-Divisional Forest Officer i.e, accused for inspection. The evidence would further suggest that there are no specific guidelines with regard to enrouting of enumeration file. In that view of the matter, probably, the Ranger has been referring enumeration files to Sub-Divisional Forest Officer, as a matter of convention including the file of PW.1. We will know this fact from the evidence of PW.2.
c) PW.2 was the Forest Ranger at Kannapuram from 1998 to 2001. His evidence is that the application for felling and transportation of teak and other trees has to be submitted through him to the DFO. During 1998, the DFO instructed him to inspect the land of PW.1 regarding the existence of teak plantation and on 10.06.1998, he got conducted panchanama in the land of PW.1. He physically verified the land but did not find teak plantation in the land of PW.1 but found some logs of 13 teak in the godown of PW.1. (It may be noted as per PW6--the clerk of PW1, pending permit application, the trees in the land of PW1 fell down due to high velocity winds). There he held panchanama in the presence of mediators. Then, he made a crucial statement to the effect that he submitted his enumeration report to the Sub-Divisional Forest Officer, Koyyalagudem, i.e, accused for his inspection and onward report with remarks to the DFO. He further stated that on coming to know that his report was not received in the office of accused, he sent the Xerox copy of his earlier report along with Xerox copy of panchanama (Ex.P.4) and other particulars along with a covering letter dated 18.05.1999 (Ex.P.5). Then, most importantly, he stated that he personally handed over the documents such as Ex.P.2--Xerox copy of application of PW.1; Ex.P.4--Xerox copy of Mediator's panchanama and Ex.P.6--Xerox copy of measurement list of teak cut logs to the accused at Kannapuram on 18.05.1999 while he was on camp during morning hours.
d) In the cross-examination, as stated supra, it was elicited that as per the circular orders of the Conservator of Forests, the files relating to permit has to be processed by Forest Range Officer and DFO. This appears to be not an inscrutable rule because PW.2 himself has circulated the permit file of PW.1 to accused for verification and remarks and onward transmission to DFO. Further, PW.2 himself has personally handed over Exs.P.2, P.4 and P.6 to accused on 18.05.1999 at Kannapuram and according to PW.2, the accused endorsed on Ex.P.5. This witness denied the suggestion that he did not visit accused on 14 18.05.1999 and handover file but he left to Eluru to meet the DFO. He denied the further suggestion that he should send all references to DFO straight away but not through the office of accused.
9) So a conjunctive study and analysis of the testimony of PWs.2 and 7 would reveal that the accused indeed has a role to play in processing the permit files including that of PW.1. It is pertinent to note that Ex.P.5--covering letter was addressed by PW.2 to accused stating that since it was informed to him that the office of accused has not received the photocopies of the file of PW.1 and as the DFO instructed him by phone, PW.2 was submitting the file of PW.1 to accused for verification. Ex.P.5 contains the initial of accused with date as 18.05.1999 on the left side top of the page. Had the accused, had no concern with the file, he would not have received the file and initialled the same. Therefore, there can be no demur that official favour was pending with accused during the relevant period to demand bribe from PW.1.
This point is answered accordingly against the appellant.
10) POINT No.2: On the aspect of demand of bribe by accused, the main witnesses are PW.1 and PW.6.
a) Now coming to the evidence of PW.1, in his chief-examination he stated that he owned Ac.2-88cts of land in Sy.No.15/1 in Dippakayalapadu village wherein he raised teak trees. In March or April, 1999, he applied to DFO, Eluru for permission to cut and 15 transport the trees to use the wood for his new house under construction. He waited for one month to get permission and then approached to PW.7--DFO. On coming to know that the file was not reached to him from Range Office, Kannapuram, he went to PW.2--the Range Officer and came to know that his file would be forwarded through the Sub- Divisional Forest Officer (accused) to DFO. On that he deputed PW.6 who is his clerk to enquire about his file in the office of accused. PW.6 returned and informed that the accused demanded him bribe of Rs.1500/- for processing his file. Then without ascertaining the truth or otherwise of the said information, he gave Ex.P.1--written report dt.17.05.1999 to the Inspector, ACB, who asked him to come along with bribe amount on 18.05.1999. Then he deposed about pre-trap procedure conducted in the ACB office. He further stated that after making pre- trap arrangements, all of them at first proceeded to Forest Office, Koyyalagudem and having found that accused went to the Kannapuram Range Office, they went there. On enquiry, knowing that accused was available in the rest house, PW.1 on the instructions of PW.8--the DSP went and met the accused. PW.1 further stated that he found accused sitting on the chair in the veranda of Forest Rest House. He enquired accused about his pending file and accused told that he would look into it. Then PW.1 kept the bribe amount of Rs.1,500/- on a file which was lying on the table situated in front of accused. Then accused informed that he would look into the file and so saying, he took the file wherein PW.1 kept the tainted amount and went into the rest house and PW.1 16 came out and gave the pre-arranged signal and then the trap party members went inside and conducted the further proceedings.
b) His above evidence would depict that PW.1 resiled from his Ex.P.1--report and Ex.P.3--164 Cr.P.C statement to some extent and gave volte-face. He did not state that the accused demanded bribe directly from him when he met him on several occasions. So also, he stated as if he kept the money on a file lying in front of the accused without his further demand. Therefore, PW.1 was declared hostile and cross-examined by Spl.P.P. with reference to Exs.P.1 and P.3 and he admitted that he stated as contained therein.
c) Taking advantage that PW.1 did not support the prosecution case on the aspect of demand of bribe prior and also on the date of trap, it is vehemently argued by the learned counsel for appellant that the prosecution utterly failed to prove the fundamental ingredient i.e, demand. It is to be noted that the Trial Court having regard to the evidence of PW.1 coupled with the other oral and documentary evidence, held as if the prosecution could not establish the demand of bribe by accused prior to 17.05.1999 but it could establish the demand on 17.05.1999 and 18.05.1999. Therefore, this aspect needs a careful scrutiny.
11) So, on analysis, in his evidence PW1 did not depose that accused demanded him bribe directly either prior to or on the date of trap. However, we will find in Exs.P1 and P3 about accused demanding PW1 the bribe previously and also on the date of trap and even accepting the 17 same from him. PW1 admitted in the cross-examination of Spl.P.P. that he mentioned in Ex.P1 that when he himself approached accused, he demanded bribe amount on a number of times. He further admitted that he stated before Inspector during the post-trap examination that when he approached accused, he asked him whether PW1 brought the bribe amount and on his further demand, he handed over the bribe amount to accused and the accused took the amount with his left hand and kept the same on one of the files which were placed on a table situated in front of him and stated that PW1's file was pending with him and he would process the same and so saying he took the file along with the tainted amount and went into the bed room of the rest house. PW1 further admitted that he stated in similar lines before the mediators during post- trap proceedings and also before Magistrate while recording Ex.P3. Therefore, at this juncture, the crucial question is whether Ex.P3 which is the 164 Cr.P.C. statement of PW1 made on oath before the Magistrate, can be considered to hold that accused demanded and accepted bribe from PW1. On probative value of 164 Cr.P.C. statement, the trite law is that the statement under Section 164 Cr.P.C. is not substantive evidence. It can be used to corroborate and contradict the statement of witness (Ram Kishan Singh vs. Harmit Kaur and another8 and Phool Chand and etc. vs. State of U.P.9).
8 AIR 1972 SC 468 9 MANU/UP/0857/2003 18
12) In George and others vs. State of Kerala and another10, the Supreme Court again observed "the trial Court ignored a fundamental rule of criminal jurisprudence that a statement of witness recorded under Section 164 Cr.P.C. cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him".
13) Ashok Kumar Raut and Bhajan Paswan vs. State of Bihar11 is an interesting case where the High Court of Patna demonstrated how the 164 Cr.P.C. statement of a hostile witness can be legally used for the ends of justice. In that case the victim was a lady of unsound mind who was raped by both the appellants/accused. PW3, who was the pujari of temple, was the lone eye-witness who after witnessing the incident, went and informed to PW6 who lodged FIR. The 164 Cr.P.C. statement of PW3 was recorded by Magistrate during investigation. During trial, PW3 the sole eye-witness, resiled and turned hostile obviously for fear of the accused. The trial Court basing on the material on record convicted the accused. It was mainly argued before the High Curt of Patna that the only material witness i.e. PW3 has turned hostile and the lower Court had seriously erred in relying on Ex.2--164 Cr.P.C. statement of PW3 as substantive piece of evidence and convicted the accused. In that context, the High Court of Patna observed thus: 10
(1998) 4 SCC 605 11 2006 Crl.L.J.3362 = MANU/BH/0038/2006 19 "Para-16. Now I turned to the evidence of Mahesh Giri(P.W.3).
In examination-in-Chief, he has resiled from his earlier statement given before the police and denied to have given any statement before the police in course of the investigation. However, he has admitted that he is pujari in Kali Mandir and on the alleged date of the occurrence on hearing cry of the child he came out of the mandir in search of her mother. Apart from above, he has not made any statement in support of the prosecution story. Therefore, he has been declared hostile by the prosecution. In cross-examination, paragraph-2, taking U turn he denied entire prosecution story. However, from paragraph-3 of the cross-examination, it would appear that he did not muster courage to directly resile from the statement given be-fore the Magistrate under Section 164 Cr.P.C. While admitting about his statement before the Magistrate he simply said that he did not remember what statement he gave before him. To a query made by the court he tried to justify his evidence of ignorance by saying that due to failing memory he often forgets the happenings of last four months.
Para-17. Now turn to the statement of this witness given before Magistrate under Section 164 Cr.P.C., which is Ext.2. This document is an admitted document inasmuch as the P.W.3 in cross-examination has not only admitted about his statement before the Magistrate but also has proved his signature and endorsement upon it as Ext.I. Para-18. The alleged occurrence of rape took place in the night of 25th March, 2002. The fardbeyan was lodged on 6.4.2002 and the statement of this witness was recorded by Magistrate on 8.4.2002. On perusal of Ext.2, it would appear that this witness in his statement has fully supported the prosecution story of gang rape upon the victim by these two accused-appellants. He has claimed himself as an eye witness of the occurrence of rape. The contents of the statement of Ext. 2 fully , corroborate the factum of statement narrated by the informant(P.W.6).
Para-19 xx xx xx xx Para-20. From above facts, it is quite clear that this witness took 'U' turn from his earlier statements made before the police as well as Magistrate due to threat given by the accused-appellants 20 or otherwise and turned hostile before the court. There is no doubt that the fate of the prosecution is largely dependent on the evidence or statement of this witness.
Para-21. I am conscious of the well settled law that the statement of witness recorded under Section 164 Cr.P.C. even on oath cannot be used as a substantive piece of evidence. However, here the matter is not so plain or simple. Actually, P.W.3, Mahesh Giri is the person on whose disclosure the prosecution of the accused-appellants was set on motion. First of all he disclosed about the occurrence of rape committed by the appellants to the informant (P.W.6). On the basis of his disclosure, P.W.6 lodged fardbeyan before the police. The police in course of investigation recorded his statement. Thereafter, the statement of this witness was also recorded under Section 164 Cr.P.C. before the Magistrate at the earliest opportunity. Not only it, in course of investigation, he also gave written statement supporting the allegation which is Ext.3. In all these statements P.W.3 supported about the occurrence and claimed to be an eye witness of the incident of rape. Surprisingly, in evidence before the court he did not support about the occurrence and became turtle. Apparently, it was either due to some threat perception or due to some other consideration which prompted him to take 'U' turn from his consistent earlier statement made before the different persons or authorities.
Para-22. Now the question is whether this person Mahesh Giri be allowed to highjack justice by turning hostile before the court. In my opinion, he should not be allowed and his previous statement made before the Magistrate at the earliest opportunity under Section 164 Cr.P.C. must get some credence if it is being corroborated on material points by other evidence." Having found the corroboration to the contents of 164 Cr.P.C. statement of PW3 through the other witnesses such as PWs.1, 6 and 7, the High Court dismissed the appeal by confirming the conviction.
14) Thus, from the above precedential jurisprudence, it is clear that 164 Cr.P.C. statement is not a substantive evidence by itself and it can 21 be used to corroborate or contradict its maker. Further, going by the decision in Ashok Kumar Raut's case (11 supra), if the maker of 164 Cr.P.C. statement resiles during the trial but admits of his giving statement under 164 Cr.P.C. and its contents, the Court can accept the contents of the said 164 Cr.P.C. statement if those contents are corroborated on material points by other reliable evidence.
15) When the evidence of PW1 is tested on the touchstone of above rulings, we will find that PW1 has not totally resiled or turned hostile to prosecution. He supports prosecution case to the extent of his applying for permission and his coming to know through Range Officer, Kannapuram that his file would be forwarded to DFO through Sub- Divisional Forest Officer i.e. accused. He further supported the prosecution case by stating that he deputed PW6--his clerk to enquire about his file in the office of accused and his returning and informing that accused has demanded bribe of Rs.1,500/- for processing his file and thereupon his lodging Ex.P1--report. The only fact he did not state is about his personally approaching accused on different occasions and his demanding bribe. Again, PW1 supported prosecution case in respect of pre-trap proceedings etc. Where he again took U turn is that he stated as if he kept the bribe amount of Rs.1,500/- on a file lying on the table in front of accused even without any demand by him. However, Ex.P1 and most importantly Ex.P3--164 Cr.P.C. statement of PW1 project otherwise and they would disclose as if the accused demanded bribe from PW1 previously and also on the date of trap and accepted the 22 same. It is very important to note at this juncture that PW1 did not deny the contents of Exs.P1 and P3. He confirmed that he stated in similar lines in Exs.P1 and P3 and also before the mediators. Therefore, it has now to be seen whether the contents in Ex.P3 are corroborated on material particulars by other evidence. We will find corroboration from PWs.5 and 6 and Exs.P8 and P9 etc.
16) PW5 is one of the mediators for trap laid by PW8 on the accused. Speaking about pre-trap proceedings, he deposed that on 18.05.1999 in the morning hours himself and other mediator (LW11) went to the office of DSP, ACB, Eluru where PW8 introduced PW1 to them as the complainant in the present case and therefore, the DSP gave Ex.P8-- Xerox copy of FIR and asked them to read over it to ascertain the genuineness of its contents from PW1. Accordingly, when they enquired, PW1 asserted before them that the contents in Ex.P8 were true and correct and in token whereof both of them put their initials. Ex.P8 is the photostat copy of Ex.P1--report and it contains the initials of PW5 and LW11. The contents in Ex.P8 would show, when PW1 approached the accused to enquire about his file 20 days prior to lodging Ex.P1, he demanded Rs.1,500/- as bribe to process his file. Ex.P8 also contains the facts that when PW1 sent his clerk the accused demanded bribe from him also. Finally, when PW1 approached accused on 17.05.1999 and enquired about his file on that day also he demanded bribe and told that if the amount was paid by the evening of the next day, his work would be completed. The contents in Ex.P8 are similar to the contents in 23 Ex.P3--164 Cr.P.C. of PW1. Thus, in essence, the allegations regarding demand made by accused as contained in Exs.P3 and P8 (=Ex.P1) get corroboration from the evidence of PW5 who stated that before him and LW11, PW1 affirmed and asserted the truth of those contents as stated supra. The initials of mediators are found on Ex.P8 along with date 18.05.1999. Further, in Ex.P9--pre-trap mediators report also the factum of mediators ascertaining the genuineness of Ex.P8 was recorded. Sofaras the evidentiary value of mediators report is concerned, in V.A.Abraham vs. Superintendent of Police12 it is held that pre-trap mahazars are not the statements recorded by the police officer during the course of investigation and hence they are not hit by Section 162 Cr.P.C. On the other hand, those mahazars are contemporaneous recording of events seen and heard by the mediators for their memory when they give evidence in a court of law. Hence, those statements can be called as previous statements under Section 157 of Evidence Act and can be used to corroborate the evidence of mediators though such mediators' reports are not substantive evidence in the eye of law.
17) Thus, the evidence of PW5 and Exs.P8 and P9 cumulatively lend corroboration to the contents in Ex.P3--164 Cr.P.C. statement of PW1 relating to demand. It is true that PW1 has acted as mediator on previous occasions. However, by that count his veracity cannot be doubted unless it is brought to the notice of this Court that in previous cases any Court found him to be to an unreliable witness. Admittedly, there is no enmity between PW5 and accused to speak falsehood.
12
1988 Crl.L.J. 1144 (Kerala) 24
18) We have corroboration from PW6 also. He deposed that he was working as clerk under PW1 since 1973 and looking after his land affairs. PW1 owned 150 acres of land at Kannapuram wherein he raised teak trees on ridges. PW1 instructed him to approach DFO to enquire about his file and during 1999 on one day he went to DFO for permission. He informed him without giving money to him permission will not be granted. It should be noted that in his evidence, by mistake he referred the accused as DFO but he identified the accused in the Court hall as the person to whom he approached. In the cross- examination he specifically stated that he did not know the designation of the accused. He stated by the date he approached the accused, the trees have already fallen down due to high velocity winds and they cut and removed to godown of PW1. He denied the suggestion that accused did not demand him bribe. Except giving a denial suggestion, the defence has not shattered the credibility of this witness. He thus clearly stated that on the instructions of PW1 when he approached the accused, he demanded him bribe. So, his evidence lends corroboration to the contents in Ex.P3--164 Cr.P.C. I have no hesitation to hold that accused indeed demanded bribe from PW1 as well as PW6 prior to the date of trap for doing official favour. In this regard, the observation of the trial Court that the prosecution failed to establish the demand for bribe prior to 17.05.1999 cannot be accepted in view of above discussion. The demand for bribe both prior and as on 17.05.1999 is well established. 25
19) Now, coming to the demand and acceptance of bribe as on the date of trap, from the defence of accused it is not in dispute that he went to Kannapuram on 18.05.1999 in connection with some official work and it is also not in dispute while he was in the forest rest house PW1 went and met him to enquire about his file. Sofaras further demand and tendering of bribe amount are concerned, as already discussed supra, though PW1 resiled to some extent and stated as if he kept the amount on the file lying on a table in front of accused without his demand, still the contents in Ex.P3 would show that he tendered the amount only on his further demand. Corroboration of these crucial contents is concerned, we will find in the evidence of PW5 and in Ex.P13. PW5 stated that on receiving the signal from PW1 the trap party members rushed to the rest house and found the accused sitting in the veranda of rest house. After mutual introductions when DSP conducted sodium carbonate test to the both hands of accused, the left hand yielded positive result, while the other hand gave negative result. From the evidence on record, it is clear the positive result is a conclusive proof that accused handled the bribe amount which was smeared with phenolphthalein powder during pre-trap proceedings. So, the theory of PW1 that he only kept the amount on the file and came back does not stand to reasoning. For argument sake, if really he kept the amount without further demand, naturally accused would either express his anger or surprise and ask him to take away the amount, in which event the chances of his touching the amount does not arise. In fact, it is not the case of accused that PW1 without any demand kept the amount on 26 the file and he asked him to take away the amount by picking the same and handed it over or without touching the same asked PW1 to take back the amount. So, the theory of PW1 is only a futile attempt to save the accused probably due to compromise. Now, coming to defence of accused, his plea is that before parting, PW1 shook his hand with him and thereby the chemical powder might have transmitted from his hand to him. This defence is purely an afterthought since he has not given any explanation during post-trap proceedings, as Ex.P13 does not contain any such explanation. Further, most importantly he did not give any suggestion to PW1 that he shook hand with him. In the absence of it, no weight can be attached to the defence theory. So, the defence version that bribe amount was planted underneath the mattress by the trap party members by entering through rear door of the rest house also cannot be believed in view of overwhelming evidence showing his making further demand and acceptance of bribe.
20) So, on a conspectus of evidence on record, it must be held that the prosecution by cogent evidence established the demand and acceptance of bribe by the accused.
21) The defence relied on the judgment of this Court in T.Ramesh Reddy vs. State of A.P. (1 supra) to contend that when the case rests on evidence of solitary witness which is not trustworthy, the prosecution case must fail. There is no demur in the principle. However, in the instant case, it is already demonstrated as to how other evidence on record proves the prosecution case though PW1 resiled to some extent. 27
22) The defence relied on the judgment of the Supreme Court reported in B. Jayaraj vs. State of A.P. (2 supra) to contend that when complainant not supported the prosecution case regarding demand and disown the complaint allegations and when there is no other evidence to prove the demand, mere recovery of the tainted currency from the possession of accused will not prove the case of prosecution. This decision can be distinguished on facts. In that case, PW2--the complainant not only disowned the complaint allegations in his deposition but also stated that bribe amount of Rs.250/- was paid by him to the accused to deposit the same in the bank as fee for renewal of his licence. In that background facts and due to lack of cogent evidence it was held case was not proved. Such is not the case here.
23) The defence also relied on the judgment of this Court reported in Karri Venkata Rama Reddy vs. State of Andhra Pradesh (3 supra) to argue that in case where the tainted amount was not recovered from the person of the accused but recovered somewhere else, the prosecution case shall be viewed with suspicion.
24) It should be noted, non-recovery of tainted amount from the personal possession of the accused is not always suspicious. It depends upon the facts of each case. In the cited decision, money was recovered not from the person of the accused but in his table drawer. His spot explanation that while he was looking the files in the rack, PW1 might have pulled the drawer and planted the money was not recorded in the 28 post-trap mahazars. Further, in the sketch the presence of files rack was not shown. All these led to suspect the case of prosecution.
25) The defence relied upon the judgment of the Supreme Court in Smt. Meen vs. The State of Maharashtra (4 supra) to show mere recovery of amount from the table pad and not from the person of the accused will shatter the prosecution case. As already stated supra, though non-recovery of tainted amount from the person of the accused in a given case may be a suspicious circumstance, but that cannot be a ground to discard the case if it is otherwise trustworthy. The other decisions relied upon by the appellant/accused can be distinguished on facts and they will not advance his cause.
This point is answered accordingly.
26) POINT No.3: In view of answering points 1 and 2, the judgment of the trial Court is found to be factually and legally sustainable.
27) It should be noted, learned counsel made an alternative submission that appellant became old and he is suffering with paralysis therefore, lenience may be shown to him and sentence may be reduced if he is found to be guilty. He produced disability certificate said to be issued by Government of Andhra Pradesh. Generally the Court will show sympathy due to such disability of the accused. However, it should be mentioned here that the evidence of PW5 would reveal PW1-- complainant is also a handicapped person from whom the accused 29 demanded bribe. In that view of the matter, this Court honestly feels there is no need to show any sympathy.
28) In the result, this Criminal Appeal is dismissed by confirming the conviction and sentence passed by the trial Court in C.C.No.36 of 2000. Consequently, appellant/accused is directed to surrender before the trial Court on or before 30.11.2018 and on such surrender, the trial Court shall commit him to jail for serving the sentence.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_________________________ U. DURGA PRASAD RAO, J Date: 09.11.2018 Murthy/Scs