Andhra HC (Pre-Telangana)
M. China Gopalakrishna vs The State Of A.P. Rep. By Its Deputy ... on 30 July, 2004
Equivalent citations: 2003(2)ALD(CRI)795, 2004CRILJ3892
JUDGMENT G. Yethirajulu, J.
1. This is an appeal preferred by the sole appellant against the conviction and the sentence imposed, through the judgment dated 24-01-1997 in C.C. No. 13 of 1993, by the Special Judge for A.C.B. Cases, Visakhapatnam.
2. The appellant was charge sheeted for the offences under Section 7, 11 and 13 (2) read with 13 (1) (d) of Prevention of Corruption Act. The case of the prosecution is briefly as follows:
The appellant worked as a Mandal Revenue Officer, Mentada Mandal in Vizianagaram District. P.W.1 has got Ac.0.58 cents of land in his village. There were some trees in that land. In order to get permission to cut those trees, he made Ex.P-1 application to the Appellant/M.R.O., Mentada Mandal in October, 1992. He did not receive any communication from him. Therefore, he made Ex.P-3 second application in the same month along with Ex.P-2 certificate issued by the Village Administrative Officer to show that he is the owner of the land and the trees. Some time after the presentation of Ex.P-3 application, the Mandal Revenue Inspector and Mandal Surveyor came to the village and enquired about the ownership of the land and trees. Subsequently, he approached the appellant on 07-11-1992 Saturday at his house. When he ascertained from the appellant about his request for permission to cut the trees, the appellant demanded Rs.200/- towards bribe. He also informed P.W.1 that he should pay the amount either on Monday or Tuesday, at his office or at the residence, for the purpose of issuing cutting order. When P.W.1 pleaded his inability to pay the amount, the appellant bluntly stated that he will not issue the cutting order without money. P.W.1 approached P.W.2 and informed him about the demand made by the appellant and accordingly, P.W.2 met the appellant and requested him not to demand any money for issuing the order. But the appellant did not agree for it and P.W.2 informed P.W.1 about the reply given by the appellant. On the next day, P.W.2 prepared a report and P.W.1 went to the Deputy Superintendent of Police, A.C.B., Vizianagaram and presented Ex.P-4 complaint on the same day i.e., on 08-11-1992. As per the instructions of the Deputy Superintendent of Police, A.C.B. officials, P.W.1 reached the house of the appellant at about 11 AM on 9-11-1992. P.W.1 went into the house of the appellant with the tainted money given by A.C.B. Officials to pay to the appellant on demand. P.Ws.1 and 2 entered the house and immediately after the demand made by the appellant, P.W.1 handed over the tainted cash of Rs.200/- to the appellant. Thereafter, they demanded the appellant to give the cutting order. But the appellant did not say anything. Immediately, P.Ws.1 and 2 came out and gave signal to the constable of A.C.B. and the A.C.B. officials entered into the house of the appellant. The Deputy Superintendent of Police conducted a test on the hands of the appellant and the test yielded positive result. Immediately, the Deputy Superintendent of Police asked the appellant to produce the amount received by him. The appellant went inside and brought a shirt, which was hanging to the wall of bedroom and produced the tainted cash from the shirt pocket. The numbers of the tainted notes tallied with the numbers mentioned in the pre-trap panchanama. Thereafter the Deputy Superintendent of Police, A.C.B., conducted test over the shirt pocket, which also yielded positive result. After completing the remaining formalities, they proceeded to M.R.O's Office, Mentada and the Police seized the available relevant documents including the tour diary of the appellant. The Deputy Superintendent of Police, after conclusion of the investigation and after obtaining sanction order, laid the charge sheet under the provisions mentioned above.
3. During the trial the lower Court examined the appellant under Section 239 Cr.P.C. The appellant denied the allegations and claimed for trial.
4. The prosecution in order to prove its case examined P.Ws.1 to 6 and marked Exs.P-1 to P-22. On defence side no oral evidence was adduced but Exs.D-1 to D-5, were marked.
5. The lower Court, after considering the evidence available on record, found the appellant guilty of the charges convicted him for the offence under Section 7 of Prevention of Corruption Act, 1988 and sentenced him to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for a period of three months. The appellant was also convicted for the offences under section 13(1) (d) read with 13 (2) of Prevention of Corruption Act, 1988 and convicted and sentenced to suffer rigorous imprisonment for a period of one year and also to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for a period of three months. The Court further directed that the sentences of imprisonment imposed on the appellant shall run concurrently.
6. The learned counsel for the appellant submitted that the appellant worked as a Mandal Revenue Officer, Mentada, during the relevant period. He further submitted that the prosecution cannot sustain for the following reasons:
(1) The M.R.O is not the competent authority to accord permission to cut the trees situated in a private land, (2) No sanction order was obtained from the competent authority to prosecute the Appellant.
(3) The Inspector who investigated the case is not the competent authority to investigate as per the provisions of the Act.
(4) The prosecution failed to examine independent witnesses to prove the guilt of the appellant.
Therefore, the learned Counsel requested to allow the appeal by setting aside the convictions and the sentences imposed by the lower Court.
7. In the light of the contentions of the Appellant, the following are the points for consideration by this Court:
1) Whether any sanction is required to prosecute the Appellant under the Prevention of Corruption Act, 1988?
2) Whether the Inspector of Police is competent to investigate?
3) Whether the M.R.O. is required to issue any certificate for the purpose of cutting of trees in the private land?
4) Whether evidence placed by the prosecution cannot be accepted for want of independent witnesses?
5) Whether the prosecution failed to prove the guilt of the appellant beyond all reasonable doubt and whether the judgment of the lower Court is liable to be set aside?
POINT No: 1 :
8. The learned counsel for the appellant represented that there was no valid sanction order, therefore, the prosecution is not maintainable under law. He relied on the following judgments in support of his contention that the prosecution cannot be maintained in the absence of valid sanction order:
1) C.B.I/SPE, Hyderabad vs. P. Muthuraman, 1996 Cri.L.J. 3638 A.P.
2) Mohd. Iqbal Ahmed vs. State of Andhra Pradesh,
3) Anand Gopal Gurve vs. State of Maharashtra, 1992 Cri.L.J. 3064 (Bom)
4) Ayyasamy vs. State of Tamilnadu, 1996 Cri.L.J. 119 (Madras)
5) Rajendra Prasad vs. State of Madhya Pradesh, 1993 Cri.L.J. 750
9. There is no dispute regarding the principle laid down in the above judgments about the requirement of valid sanction order to prosecute a public servant while he is in service. But the position is different in respect of the accused officer, who retired from service long prior to the date of taking cognizance of the offence by the Court.
10. In S.A. Venkata Raman v. State, it was urged on behalf of the accused that on a proper interpretation of Section 6 of the Prevention of Corruption Act, the status of the accused at the time of the commission of the offence alleged against him was the essence of the matter and not his status at the time of the Court taking cognizance of the offence, in which case a sanction under Section 6 of the Act was necessary before a Court could take cognizance although at that stage the accused had ceased to be a public servant.
11. Answering the said question, the Supreme Court held that where the accused ceased to be public servants at the time of the Court takes cognizance of the offences alleged to have been committed by them as public servants, the provisions of Section 6 do not apply and the prosecution against them is not vitiated by the lack of a previous sanction by a competent authority. The Supreme Court further held that in giving effect to the ordinary meaning of the words used in Section 6 of the Act, the conclusion is inevitable that at the time a Court is asked to take cognizance not only the offence must have been committed by a public servant, but the person accused is still a public servant removable from his office by a competent authority, before the provisions of Section 6 can apply.
12. After a careful reading of Section 6 of the Act, it is clear that an officer cannot invoke the protection of the section unless two conditions are fulfilled. Firstly, that he was a public servant when the offence charged against him was committed; and secondly that on the date when he is prosecuted, there is some authority who could remove him from his office. If any one of these two conditions does not exist his case goes out of the ambit of Section 6. Section 6 of 1947 Act affords protection to those public servants who were in office both on the date of commission of the offence and the date when Court is asked to take cognizance.
13. Section 6 of the 1947 Act corresponds to Section 19 of the Act of 1988. Therefore, the principle laid down by the Supreme Court in the above decision is equally applicable to Section 19 of 1988 Act.
Section 19 of 1988 Act reads follows:
Previous sanction necessary for prosecution:-
(1) No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13, and 15 alleged to have been committed by a public servant, except with the previous sanction,-
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no Court shall stay the proceeding under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation:-For the purposes of this section,-
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.
14. The learned counsel for the appellant Sri P. Lakshman Rao could not lay his hands on any decision of the Supreme Court distinguishable from the above decision. The evidence available on record indicates that the appellant retired on 31-07-1993 and the Court took cognizance of the offence on 01-09-1993. Since the retirement of the appellant was much prior to the date of the Court taking cognizance of the offence, there is no necessity for any sanction to prosecute the officer. I therefore, do not find any force in the contention of the counsel for the appellant in this regard. This point is accordingly answered against the appellant.
POINT No:2 :
15. The learned counsel for the appellant submitted that under Section 17 of 1988 Act, the Deputy Superintendent of Police or a police officer of equivalent rank is authorized to investigate and as the investigation in this case was done by a police officer of the rank of Inspector, the investigation becomes invalid and requested to acquit the accused on that ground.
Section 17 of the 1988 Act reads as follows:
Persons authorized to investigate:-
Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974), no police officer below the rank,-
(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;
(b) in the metropolitan area of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of Section 8 of the Code of Criminal Procedure, 1973(2 of 1974), of an Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant:
Provided that if a police officer not below the rank of an Inspector of Police is authorized by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefore without a warrant:
Provided further that an offence referred to in clause (e) of sub-section (1) of Section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.
16. Under Clause (c) of the above Section the Deputy Superintendent of Police is authorized to investigate the case. But the first proviso to the above Section empowers the State Government to authorize a police officer not below the rank of an Inspector of Police, except the offence referred in Section 13(1) (e) to investigate any offence under this Act without the order of a Magistrate of First Class. In this case admittedly the Inspector of Police investigated the case. The Government of Andhra Pradesh issued a notification through G.O. Ms. No. 170 General Administration (SC.D) Department dated 20-03-1968 authorizing Inspectors of Police of Anti-Corruption Bureau to conduct investigation of offences under Prevention of Corruption Act, 1947. In 1988 the Amendment Act came into force. In 1999 the Government of Andhra Pradesh issued a notification through G.O. Ms. No. 10, General Administration (SC.E) Department authorizing the Inspectors of Police of Anti-Corruption Bureau to conduct investigation of offences under the Prevention of Corruption Act, 1988. The learned Public Prosecutor relied on these two notifications and submitted that in pursuance of the above notifications issued by virtue of proviso to Section 17 (c) it shall be treated that the Inspector is competent to investigate.
17. The learned counsel for the appellant relied on a judgment of the A.P. High Court in Viswanadhula Chittibabu v. State of Andhra Pradesh, 2002(2) ALD(Crl) 206. In the said judgment a Division Bench of this High Court while dealing with Section 23 of Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 and Rule 7 held that the above Section and the Rule contemplated investigation to be carried on by a Police officer not below the rank of Deputy Superintendent of Police with integrity and experience as nominated by appropriate Government and it has to be interpreted as mandatory in nature. Therefore, the investigation conducted by Sub-Inspector of Police suffers from inherent defect in complying with the mandatory procedural safeguard resulting in prejudice to accused. Therefore, the trial gets vitiated.
18. In SC & ST (Prevention of Corruption) Rules, 1995, Rule 7 contemplates investigation to be carried on by a Police officer not below the rank of Deputy Superintendent of Police nominated by the Government. There is no proviso in the said Rule empowering the Government to appoint the Police officers, who are below the rank of Deputy Superintendent of Police to investigate the case, whereas under Section 17 the proviso enables the Government to appoint the officers of the rank of Inspector of Police to investigate the case. Therefore, the above decision of the Division Bench of this High Court has no direct bearing on this case. Therefore, the said principle cannot be made applicable to the facts of this case.
19. On the other hand the learned Public Prosecutor cited a judgment of the Supreme Court of India in support of his contention that the Inspector of Police is also competent to investigate the case, on the basis of the notification of the Government of A.P. in G.O.Ms. No. 170 dated 20-03-1968. In State of Punjab vs. Harnek Singh, 2002(1) Supreme Today 642, the Supreme Court while dealing with Section 17 of 1988 Act held as follows:
"The notifications issued by the Government of Punjab, in exercise of the powers under Section 5-A of the 1947 Act, empowering and authorizing the Inspector of Police posted in Special Inquiry Agency of the Vigilance Department, Government of Punjab to investigate the cases registered under the said Act were saved under the saving provision of the re-enacted 1988. Such notifications are inconsistent with the provisions of re-enacted Act and are deemed to continue in force as having been issued under the re-enacted 1988 Act till the aforesaid notifications are specifically superseded or withdrawn or modified under the 1988 Act. The investigation conducted by the Inspector of Police authorized in that behalf under the 1947 Act are held to be proper, legal and valid investigation under the re-enacted Act and do not suffer from any vice of illegality or jurisdiction. The High Court committed a mistake of law in holding the aforesaid notifications as not saved under the re-enacted 1988 Act."
The Supreme Court further held:
"It has been conceded before us that there is no inconsistency between Section 5-A of the 1947 Act and Section 17 of the 1988 Act and provisions of General Clauses Act would be applicable and with the aid of Sub-Section (2) of Section 30 anything done or any action taken or purported to have been done or taken in pursuance of 1947 Act be deemed to have been done or taken under or in pursuance of the corresponding provision of 1988 Act. For that purpose, the 1988 Act, by fiction, shall be deemed to have been in force at the time when the aforesaid notifications were issued under the then prevalent corresponding law. Otherwise also there does not appear any inconsistency between the two enactments except that the scope and field covered by 1988 Act has been widened and enlarged. Both the enactments deal with the same subject matter, i.e., corruption amongst the public servants and make provision to deal with such a menace."
20. In the light of the above legal position, I am convinced that the Government is competent to authorize the Inspectors of Police of A.C.B. to conduct investigation by virtue of the notification issued under the old Act and the Inspector of Police is competent to do the investigation in this case. I therefore, do not find any force in the contention of the appellant, and this point is held against the appellant.
POINT No: 3:
21. The learned counsel for the appellant submitted that as per Rule 5(iii) of A.P. Forest Produce Transit Rules, 1970, the Divisional Forest Officer is competent to permit the forest produce to be removed from private land after ascertaining from the concerned Revenue Officer.
Rule 5(3) of A.P. Forest Produce Transit Rules, 1970 reads as follows:
5 (1) ...
(2) ...
(3) The Divisional Forest Officer may, for the purpose of issue of permits in Form-II for the forest produce to be removed from private lands, ascertain about the rights and titles over the forest produce from such Revenue Officer of the district, as may be specified by the Conservator of Forests.
Explanation:- A certificate issued by the Revenue Officer or other authorized person in the form prescribed by the concerned Conservator of Forests shall be considered as conclusive evidence of the rights and titles of individuals over the tree growth.
22. The above Rule makes it clear that the applicant has to enclose a certificate issued by the concerned Revenue Officer or other authorized person in the prescribed form, to prove that the applicant has title over the private land and over the forest produce. Since the M.R.O. is the competent authority to issue such certificate, P.W.1 approached the appellant for issuing the certificate. I therefore, hold that though the Divisional Forest Officer is the competent authority to issue permit to cut the trees, it will not be issued by him unless and until the applicant produces a certificate from the M.R.O. mentioning about his right over the property and the trees. This point is accordingly held against the appellant.
POINT No: 4:
23. The learned counsel for the appellant submitted that the prosecution failed to take any independent persons as mediators for the alleged trap, therefore, the evidence of the witnesses cannot be accepted. The prosecution, in order to prove the guilt of the appellant, examined six witnesses.
24. P.W.1 the complainant stated that he owns Ac.0-58 cents of land in Poram Lova village in Sy. No. 102/20 covered by patta No. 88. There is one mango tree, two neem trees and one pachi tree. He applied to the appellant in October, 1992 for permission to cut the trees, but no reply was received by him. He once again made Ex.P-3 second application along with Ex.P-2 certificate of Village Administrative Officer of his village. The Mandal Revenue Inspector and Mandal Surveyor conducted an enquiry, but the appellant did not give the cutting order. Therefore, he approached the said officer at his house at Gajapathinagaram on 07-11-1992, and enquired about the permission to be granted. The appellant demanded Rs.200/- for issuing the said order. He told the appellant that he is incapable of giving Rs.200/- and the appellant told him that he will issue the certificate, only after payment of amount. P.W.1 went to P.W.2 and informed him about the demand of money made by the appellant. P.W.2 told the appellant not to demand money, but the appellant did not agree to issue cutting order. In the next morning i.e., on 8-11-1992, P.W.1 got a report drafted through P.W.2 and presented the same to the Deputy Superintendent of Police, A.C.B., Vizianagaram. On 09-11-1992 after briefing by the Deputy Superintendent of Police, they proceeded to the house of the appellant, and on demand P.W.1 gave tainted notes to the appellant. Immediately the police laid the trap and after conducting phenolphthalein test, they found it positive. Subsequently, the mediators report was prepared narrating the sequence of events and recovery of tainted money.
25. In order to prove the trap the prosecution examined P.Ws.1 to 6. P.W.1 is the complainant. He deposed that the M.R.O. demanded Rs.200/- towards bribe for issuing the order and he would receive the said amount through P.W.2. The M.R.O. asked him to bring the money either on Monday or Tuesday. He pleaded inability to pay the amount, but the M.R.O. told him that unless he pays the amount, he will not get the cutting order. On the same day at about 12 Noon he approached P.W.2 and informed him about the demand made by the M.R.O. On the same day at about 4 PM., P.W.2 met him and told that he met the M.R.O. and requested not to demand money but the M.R.O. reiterated the demand. On the next morning, he met P.W.2 and requested to prepare a report against the M.R.O. to lodge it with A.C.B. P.W.2 drafted Ex.P-4 report to his narration and he signed the same. On the same day he met the Dy. S.P., A.C.B. at Vizianagaram and presented the report along with copies of Exs.P-1 to P-3. The Dy. S.P., instructed him to meet in the next morning along with P.W.2 and the proposed bribe amount of Rs.200/- in his office. On the same day, he met P.W.2 and informed him that he lodged the complaint with Dy. S.P., A.C.B. and the Dy. S.P. asked him to come in the next morning to his Office. Accordingly, at about 00:08 AM they met Dy. S.P. The Dy. S.P. introduced him to the mediators and they were also introduced to him. After verifying the correctness of the contents, he handed over one 100-rupee note and two 50-rupee notes to the Dy. S.P. before the mediators and P.W.2. One hour later, P.W.2 and himself were called. One of the constables checked his pockets and the pockets of P.W.2. On the instructions of the Dy. S.P., one constable kept the currency notes given by him in his shirt front left pocket. The police constable, who kept the tainted notes, rinsed his fingers in a prepared liquid. The colour of the solution turned into pink. The Dy. S.P. instructed him not to touch the currency notes until otherwise the M.R.O. demands for the same and asked P.W.2 give a signal to the ride party in case the M.R.O. demands and accepts the amounts by wiping his face with hand kerchief. One of the constables was asked to observe the signal and relay the same to the raid party. One of the mediators noted down the numbers of the currency notes produced by him in the panchanama. Afterwards, the two mediators, Dy. S.P., other staff members of A.C.B. and himself proceeded to the house of the M.R.O. and reached there at about 11 AM. The M.R.O. was available in his bedroom. On seeing them, the M.R.O. called P.W.2 to the bedroom. He remained in the room with grill, situated in front of the bedroom. When the appellant asked P.W.2 whether the money was brought, he asked him to handover the tainted cash of Rs.200/-. Immediately he handed over the same to P.W.2 by taking out from his shirt pocket. In his presence P.W.2 handed over the same to the accused. The appellant did not give the order, even after receiving the amount of Rs.200/-. Later P.W.2 came out of the bedroom and gave signal to the constable. He also came out of the house of the appellant. The raid party entered the bedroom of the appellant. Some time later, he was called inside the house and the Dy. S.P. recorded his statement. He denied a suggestion that the M.R.O. is not competent to issue the order and it is only the Forest Department, which will issue the cutting order for cutting the trees. He also denied a suggestion that he foisted the case against the appellant knowing fully well that there are no trees in his lands.
26. P.W.2 deposed that on 07-11-1992, P.W.1 informed him that the accused demanded Rs.200/- towards bribe for issuing cutting order of the trees in his land and asked P.W.1 to pay the amount through him. On the same day he met the accused at his house and requested him to issue the cutting order to P.W.1 as he cannot afford to pay the amount demanded by him. But the accused did not care his request and on the same day evening he informed P.W.1 about the same. On the next day i.e., on 08-01-1992, P.W.1 came to him and requested to draft a report against the accused to the Dy. S.P., A.C.B. Accordingly he prepared Ex.P-4 and gave it to P.W.1. In the evening, P.W.1 met him and told him that D.S.P. asked to bring him also on the next morning to his office. Accordingly he went along with P.W.1 to the office of D.S.P., A.C.B., Vizianagaram. The D.S.P., after ascertaining the necessary information, gave instructions to them regarding the trap and gave the tainted money to P.W.1. Later they proceeded to the house of the accused. The accused demanded for the money. The money taken from the pocket of P.W.1 was given to the accused. Later the trap was laid, and the police seized the amount from the accused. He further stated that the Police incorporated the happenings in the panchanama. In the cross-examination the accused could not elicit any information contradictory to the version given by this witness in the chief-examination.
27. P.W.3 Revenue Inspector, ROR, Mentada Mandal deposed that while he was working as Revenue Inspector for Mentada Mandal, on 13-10-1992, on instructions from the accused, he visited Poramlova village in connection with an enquiry on the application given by P.W.1 for cutting the trees situated in his land. He proceeded to the said village, as per the instructions of the accused inspected the land. He orally informed the accused about the existence of the trees and the possession of the land and due to pressure of work he could not submit a written report. In the meanwhile, he was transferred and relieved by a new M.R.I.
28. P.W.4, the Head Assistant, M.R.O. Office, deposed that he was in charge of the Section relating to the registration of applications received from different persons. He stated that Exs.P-1 and P-3 pertaining to P.W.1 are not entered in any of the registers.
29. P.W.5, a Sub-Registrar of Co-operative Department, deposed that on 09-11-1992 as per the instructions of his Project Director, D.R.D.A., he appeared before the D.S.P., A.C.B., Vizianagaram at about 9 AM. He was introduced to others and he was requested to act as a mediator for the trap proposed to be laid. After giving necessary instructions, the Dy. S.P. proceeded along with all of them to the house of the accused at about 11-15 AM. P.Ws.1 and 2 and one A.C.B. constable got down the vehicle and proceeded to the house of the accused. Some time later, on receiving signal, they proceeded to the house of the accused. He noticed the accused sitting in the front grill room of his house. The D.S.P. enquired his identity and introduced others to him. While entering inside the house of the accused, they found P.Ws.1 and 2 standing outside the grillroom. The D.S.P. subjected the hand fingers of the accused to Sodium Carbonate test. The solution, in which the accused rinsed his right hand fingers, turned into light pink colour and the solution, in which the accused rinsed his left hand fingers, turned into very light pink colour. The D.S.P. preserved both the resultant solution in separate bottles sealed and affixed labels signed by them. Later the D.S.P. subjected the inner flap of the shirt pocket of the accused in Sodium Carbonate solution, and the solution turned into pink colour. The D.S.P. preserved the solution in a separate bottle, sealed and affixed labels containing the signatures of them. The D.S.P. seized the shirt, from which the amount was recovered. The sequence of events was incorporated in the panchanama. Later the D.S.P. asked the accused whether he is in possession of any file relating to Exs.P-1 and P-3. The accused informed him that they are available at his office. The D.S.P. instructed the Inspector to go to M.R.O. office at Mentada and get the connected papers from that office. Thereafter P.W.1 was called in and was enquired by D.S.P. and what all stated by P.W.1 was incorporated in the panchanama. Thereafter, P.W.2 was called and his statement was also incorporated. The D.S.P. conducted chemical test on the fingers of P.Ws.1 and 2 separately. The colourless solution turned into light pink colour. Both the resultant solutions were preserved in two separate bottles by affixing the labels containing the signatures of himself, another mediator and the D.S.P. The D.S.P., after preparing the rough sketch of the scene and completing other formalities, arrested the accused and released him on bail. The D.S.P. seized the relevant records and enquired the staff of M.R.O's Office and recorded their statements. He further stated that on the same day, at about 8 PM, all of them along with the accused went to the Office of the M.R.O., Mentada and the D.S.P. seized Exs.P-1 to P-3 from P.W.3, on being produced by him. In the cross-examination he stated that he acted as a mediator for the first time to A.C.B and he denied a suggestion that the true version of happenings was not incorporated in the panchanama. He denied a further suggestion that being a State Government employee, he afraid of A.C.B and deposed falsely.
30. P.W.6, the D.S.P., narrated the events from the time of P.W.1 approaching him, till the time of completion of the investigation, about the information given by P.Ws.1 to 3 and others and his conducting investigation in the case. It was suggested to this witness that the trap against the accused was arranged as a trial case.
31. The above evidence, placed by the prosecution, clearly indicates that the accused, in order to do an official favour of issuing an order, demanded Rs.200/- towards illegal gratification and received the same through P.W.2. The procedure adopted by P.W.6 is not much in dispute and there is no procedural irregularity committed by P.W.6 in laying the trap.
32. The learned counsel for the appellant submitted that the evidence suffers from lack of independent witness as a mediator. On verification, it is noticed that P.W.5 is a Sub-Registrar of Co-operative Department, who has no nexus with the A.C.B. people and it is nothing strange that such officer come forward to stand as a surety for laying the trap. Since the prosecution did not take any local people as mediators, it cannot be said that it is fatal to the case of the prosecution. The appellant, while not disputing the trap laid on him, only contends that it was laid either as a test case or at the instance of P.W.2.
33. After carefully going through the above evidence both oral and documentary, the lower Court rightly came to a conclusion that the prosecution proved the guilt of the accused beyond all reasonable doubt. The lower Court, therefore, rightly convicted the accused and sentenced him.
34. In the light of the above circumstances, I hold that the evidence placed by the prosecution can be accepted without any hesitation. The conviction and the sentence imposed by the lower Court are accordingly confirmed.
POINT No: 5:
35. In the result the Criminal Appeal is dismissed, by holding that there are no grounds to set aside or alter the Judgment of the lower Court in C.C. NO. 13 of 1993.