C.R.Rajendran v. State rep. by the Inspector of Police, ACB, Tirupati Range, Tirupati

Judgment

These two criminal appeals are directed against the judgment dated 12.01.2005 passed in C.C.No.12 of 1995 on the file of the Special Judge for SPE & ACB Cases, Nellore, whereby and whereunder, the learned Special Judge found A-1-C.R.Rajendran guilty for the offences under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988( for brevity, `the P.C.Act’) and convicted him accordingly and sentenced him to suffer R.I for six months and fine of Rs.1,000/- in default simple imprisonment for one month for the offence under Section 7 of the P.C.Act and R.I for one year and fine of Rs.2,000/- for the offence under Section 13(1)(d) read with 13(2) of the P.C.Act. Both the substantive sentences were directed to run concurrently. The learned Special Judge found A-2- K.Giddaiah as not guilty for the offence under Section 12 of the P.C. Act and acquitted him accordingly.

#2. More precisely, Criminal Appeal No.50 of 2005 is filed by A-1 aggrieved by his conviction and sentence and whereas Criminal Appeal No.1423 of 2005 is filed by the State assailing the acquittal of A-2-K.Giddaiah.

#3. The prosecution case, in brief, is:- (a) Pw-4-P.Audemma is the Proprietor of Audisree Enterprises. She deals in printing wedding cards and stationery items. The Head office of her business is situated in Door No.10/401, Doddapuram Street, Tirupati whereas the Branch Office is situated in D.No.10/432-A of Baroda Street, Tirupati. Pw.1- P.Dwarakanath Reddy is her son and he has been attending to the business. The business of Pw.4 is registered with Sales Tax Department and the tax returns are being filed through the head office. A-1-C.R.Rajendran is the Assistant Commercial Tax Officer; Deputy Commercial Tax office, Tirupati Pw.3- C.Damodaram is Assistant Commercial Tax Officer-1 in the Deputy Commercial Tax office, Tirupati. The branch office of the business of Pw.4 comes within the jurisdiction of A-1 and whereas the main office of her business comes within the jurisdiction of Pw.3. (b) On 12.7.1994, at about 11 am., A-1 along with two or three persons of his office came to the shop of Pw.4 and informed her son- Pw.1 that the shop comes under his jurisdiction and that he is not getting anything from his shop and therefore, asked him to pay a bribe of Rs.2,000/- otherwise he would seal the shop. On 20.7.1994, Pw.1 met A-1 and explained him that there were no defects in the accounts submitted by him relating to Audisree Enterprises and that he could not pay so much amount demanded by him. Thereupon, A-1 asked him to pay at least Rs.1,000/- otherwise he would see the closure of the shop. He asked Pw.1 to pay the bribe amount within 2 or 3 days. Pw.1 made up his mind not to pay the bribe amount. He met Deputy Superintendent of Police, ACB on the next day at 12 noon and presented Ex.P-1 complaint. Pw-6-K.Kumar, Deputy Superintendent of Police, ACB, Tirupathi received Ex.P-1 complaint and instructed Pw.1 to come on the next day with the proposed bribe amount. He made necessary verification and registered a case in Crime No.10/ACB- TPT/1994 under Sections 7, 11, 13(2) read with 13(1)(d) of the P.C.Act against A-1 and A-2 and issued Ex.P-7 F.I.R. After registering the case, he addressed the Executive Engineer, Irrigation Division, Tirupati to send two officers of his office to act as mediators on

22.7.1994. Ex.P-8 is the office copy of the requisition sent by him to the Executive Engineer, Irrigation Division, Tirupati. Pw.2- P.Thangavelu, Superintendent, Office of the Executive Engineer and Lw.4-S.Muniramaiah, draughtman, office of the Executive Engineer appeared before Pw.6 on 22.6.1994. Pw.1 also appeared before Pw.6 with the proposed bribe amount. Pw.6 explained the intricacies of the phenolphthalein test. The proposed bribe amount was smeared with phenolphthalein powder. A pre-trap panchanama came to be drafted. Ex.P-4 is the pre-trap panchanama. Pw-1 was instructed by Pw-6 to handover the tainted money to the accused on demand. (C ) Pw.1 went to the office of the DCTO, Tirupati and met A-1 in his room. On seeing Pw.1, A-1 asked him as to whether he brought the amount of Rs.1,000/-. Pw.1 replied positively and thereupon, A-1 called A-2 to his room and asked Pw.1 to handover the amount to A-2. As instructed by A-1, Pw.1 handed over the tainted amount to A-2 and A-2 counted the tainted amount and put in his shirt pocket. Pw.1 came out from the office and passed on the pre-arranged signal by combing his hair. The trap party led by Pw.6 received the pre-arranged signal and entered the room of A-1. Pw-6 disclosed his identity to A-1 and A-

#2. He got the sodium carbonate solution prepared in a glass tumbler and asked A-1 to dip his fingers in the said solution. There was no change in the colour. Thereafter, he got prepared sodium carbonate solution in another glass tumbler and asked A-2 to rinse his hand- fingers. The test conducted on the hand fingers of A-2 proved to be positive. Pw-6 questioned A-1 and A-2 as to where the tainted amount has been kept. A-2 produced the tainted amount of Rs.1,000/- from his left hand inner pocket of the shirt. He got the numbers of tainted currency notes of tainted amount verified with the currency notes numbers mentioned in Ex.P-4-pre-trap panchanama. The mediators found that the currency notes of the tainted amount tallied with the number of currency notes mentioned in Ex.P-4 pre-trap panchanama. A post-trap panchanama came to be prepared, which has been exhibited as Ex.P-6. Pw-6 arrested A-1 and A-2 and released them on bail, on furnishing self-bonds. After completion of investigation, a charge sheet came to be submitted by Pw.8 Raghu Dalavai before the Special Judge for SPE & ACB Cases, Nellore. The learned Special Judge took the charge sheet on file as C.C.No.12 of 1995.

#3. After furnishing copies of the documents to the accused persons, charges were framed, for which the accused pleaded innocence and claimed to be tried. To bring home the guilty of the accused for the offences with which they stood charged, prosecution examined eight witnesses as Pws.1 to 8 and proved 10 documents as Exs.P-1 to P-10 and exhibited eight material objects as M.Os.1 to 8. The accused persons were examined under Section 313 of the code of Criminal Procedure putting the substance of incriminating circumstances appearing against them in the evidence of the prosecution witnesses. They denied of the demand and the acceptance of the bribe and took the stand that a false case had been foisted against them. A-2 got himself examined as Dw.4 on his behalf. Whereas A-1 examined three witnesses as Dws.1 to 3 on his behalf to probabilise his defence that he attended the office on 12.7.1994 and collected tax from one Yakub Saheb, Tirupati and others from 10.45 AM to 12.30 PM and therefore, the evidence of Pws. 1 to 6 that he visited the Branch office on 12.7.1994 is false. The stand of A-1 was that no money was recovered from his possession and whereas the stand of A-2 was that he received the tainted money on the date of the trap for remittance of the same to the Bank through challan on the instructions of A-1 and when he was about to remit the same to the Bank through challan, the ACB officials caught hold of him and seized the tainted amount.

#4. The trial Court, on considering the evidence brought on record and on hearing the prosecution and the accused found A-1 guilty for the offences under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C.Act and convicted him accordingly and sentenced him as stated supra while recording acquittal of A-2 for the offences under Sections 7 and 13(1)(d) read with 13(2) of the P.C.Act, by judgment dated 12.1.2005. Hence, these two appeals.

#5. Heard Sri C.Padmanabha Reddy, learned senior counsel appearing for the appellant (A-1) in Criminal Appeal No.50 of 2005 and learned Standing Counsel for ACB appearing for the appellant in Criminal Appeal No.1423 of 2005.

#6. Learned senior counsel submits that since the complainant himself did not support the prosecution version fully, it was not proper to place implicit reliance on his testimony to convict the appellant (A- 1). The statutory presumption available under Section 7 read with Section 20 of the P.C.Act was not to be utilized against the appellant/A-1 since there was no recovery from A-1 and there was no material to connect him with the tainted money and he should not have been held guilty. Learned senior counsel would further contend that the complainant-Pw-1 nourished grudge against A-1 since A-1 did not accept the greeting cards indented with him as they did not meet the specifications and to gratify his personal vendetta, he foisted the case against A-1. Learned senior counsel took me to the evidence of Pw.3 C.Damodaram, who admits of there being some argument between Pw.1 and A-1 about the greeting cards.

#7. It is nextly contended by the leaned senior counsel that A-1 was not competent to verify the tax returns of Pw.1 in which case, question of his demanding Pw.1 to pay the bribe amount did not arise. Learned counsel refers the evidence of Pw.5-T.Siva Rami Reddy, Commercial Tax Officer, Tirupati, who stated in chief- examination that A-1 had no power including collection of tax over Audisree Enterprises of Pw.1. He also stated in cross-examination that though the Branch Office of Pw-1 is located in the jurisdiction of A-1, he has no authority to enter into the premises of the branch office. I deem it appropriate to refer the evidence of Pw.5 at this juncture. He admits in cross-examination that A-1 can enter into the premises of Pw.1 in the Branch Office and ascertain certain facts relatable to the returns. For better appreciation, I may refer the relevant portion of the cross examination, which reads as hereunder:- “ The A.C.T.O., i.e., A.O.1 has got duty to enquire that the dealer has been registered within the department, submitting the returns and paying the taxes in order to verify these facts during his duties, the A.O.1 can enter into the premises of Pw.1 in the Branch Office and ascertain these facts”.

#8. A close reading of the evidence of Pw.5, I am in no doubt to conclude that Pw.1 is empowered to visit the Branch Office of Pw.1 for verification of certain returns. Therefore, the contention of the learned senior counsel that A-1 has no authority to inspect the Branch Office of Pws.1 and 6 has no merit.

#9. Learned Special Public Prosecutor while supporting the judgment of the trial Court with regard to conviction and sentence of A- 1-C.R.Rajendran criticized the judgment with regard to acquittal of A-2- K.Giddaiah for the offences with which he stood charged. It is contended by the learned Special Public Prosecutor that tainted amount came to be seized from the possession of A-2 in which case, a presumption as provided under section 20 has to be drawn that the same has been accepted by him as illegal gratification and there being no explanation from him, acquittal recorded by the trial Court is liable to be set aside and instead, he is to be convicted for the offences under Sections 7 and 13(1)(d) read with 13(2) of the P.C.Act.

#10. The issues that call for adjudication in these appeals are:- (1) Whether the conviction and sentence of A-1 for the offences under Sections 7 and 13(1)(d) read with 13(2) of the Act is legal and proper ? (2) Whether the acquittal of A-2 for the offences under Sections 7 and 13(1)(d) read with 13(2) of the Act is legal and proper ?

#11. POINT: Under Section 7 of the P.C.Act, a public servant taking gratification other than legal remuneration in respect of an official act is punishable with imprisonment which shall not be less than six months, but which may extend to five years and shall also be liable to fine. In order to establish an offence under this Section, it is necessary to prove that the public servant accepted or obtained or agreed to accept or attempted to obtain illegal gratification as a motive or reward for doing or for forbearing to do an official act or for showing any favour or disfavour to any person or for rendering any service or disservice to any person with a public servant, as such. The first question that requires consideration is, with what motive, or as reward for what act, was the sum paid as illegal gratification by the complainant and accepted by the accused. Where the evidence of eye witnesses was corroborated by the recovery of money from the accused and the phenolphthalein test also was positive and no explanation for recovery of money from his pocket was given by the accused at the time of recovery, the conviction would be proper. Demand by the accused for the bribe is an essential ingredient of the offence.

#12. Section 13 deals with criminal misconduct by a public servant. Under Sub-section (1)(d)(ii) if a public servant by abusing his position, obtains for himself or for any other person any valuable or pecuniary advantage shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to 7 years and shall also be liable to fine. The words `pecuniary advantage’ includes cases of cash payment. The words `abuse of his position’ mean that the officer does not act as a prudent man, discards all normal and statutory rules and is prepared to accommodate third party and obtain a benefit for him. In a case of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to commit the accused when the substantive evidence in the case is not reliable. The Supreme Court in T.Subramanian v. State of T.N[1] held that if the accused offers reasonable and probable explanation based on evidence that money was accepted by him other than as illegal gratification, the accused would be entitled to acquittal.

#13. It is well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution but can establish the same by preponderance of probability.

#14. In Chaturdas Bhagawandas Patel v. State of Gujarat[2], it was held that the burden which rests on an accused to displace the statutory presumption that is raised under Section 4(1) of Prevention of Corruption Act, 1947 is not as onerous as that cast on the prosecution to prove its case. But such burden has to be discharged by bringing on record evidence either direct or circumstantial to establish beyond reasonable probability that money was accepted by him other than as a motive or reward as is referred in Section 161 IPC.

#15. I may now briefly refer the evidence keeping in view the aforesaid principles:- Pw.1 P.Dwarakanadh Reddy is the witness to speak of demand and acceptance of bribe by A-1. In Ex.P-1 report presented by him before Pw.6, it is stated that A-2-K.Giddaiah accompanied A-1 to his Branch Office where A-1 demanded bribe of Rs.2,000/- so as to avoid riding of his shop and booking a case against him. But Pw.1 stated on oath before the Court that it is A-1 who came to his shop on

12.7.1994 and demanded bribe. He did not speak of A-2 accompanying A-1 to his shop on 12.7.1994. Therefore, the prosecution sought permission of the learned trial Judge to treat Pw.1 as hostile and the learned trial Judge granted permission as sought for and accordingly he was subjected to cross-examination by the prosecution. In the cross-examination, on behalf of A-2, Pw.1 stated that he saw A-2 for the first time on the date of trap. For better appreciation, I may refer the cross-examination of Pw.1 on behalf of A-

#2. “On the date of trap after I entered the room of AO1 he rang the bell and called A.O.2 by his name. After that A.O 2 came into A.O.1’s room. I saw AO.2 for the first time only on that day. A.O.1 directed me to hand over the amount to A.O.2.” A reading of the evidence of Pw.1 indicates that what he stated in Ex.P-1 report with regard to A-2 accompanying A-1 to his shop on

12.7.1994 proved to be false.

#16. The very fact that the prosecution sought permission of the trial Judge to declare Pw.1 hostile means that Pw.1 was not speaking the whole truth. It is no doubt true that conviction of an accused can be based solely on the testimony of a solitary witness. However, in such a case, the Court must be satisfied that the implicit reliance can be placed on the testimony of such witness and that his testimony is free from blames that it can be acted upon without insisting upon corroboration. The testimony of the witness must be one, which inspires confidence and leaves no doubt in the mind of the Court about the truthfulness of the witness. The statement of solitary witness on a particular fact, if convincing and true and is found to be trust worthy can be accepted in support of the prosecution case and against the accused. Only in suitable cases, due caution has to be exercised. It cannot as a matter of course be discarded, vide decision of the Supreme Court in Sadhuram and another v. State of Rajasthan[3]. It was held by the Supreme Court in Chacko v. State of Kerala[4] that corroboration may be necessary when the witness is partially reliable.

#17. Three relevant dates need to be noted before evaluating the evidence of Pw.1. The three dates are: - 12.7.1994, 20.7.1994 and

21.7.1994. On 12.7.1994, A-1 allegedly visited the shop of Pw.1 and made a demand of Rs.2,000/-. On 20.7.1994, Pw.1 allegedly met A-1 in his office and expressed his inability to pay Rs.2,000/- as bribe and thereupon, A-1 reduced the bribe amount from Rs.2,000/- to Rs.1,000/-. On 21.7.1994, Pw.1 after making up his mind not to pay the bribe amount, went to the office of the Deputy Superintendent of Police, ACB and presented Ex.P-1 complaint before him.

#18. It is the version of Pw.1 before the Court that he met A-1 in his house and informed him of his inability to pay the amount and thereupon, A-1 reduced his demand from Rs.2,000/- to Rs.1,000/-. For better appreciation, I may refer the evidence of Pw.1 in his own words:- “ On 12.7.1994 at 11.00 A.M., while I was in the shop along with my mother, the 1st accused came and told us that though our shop room is within his jurisdiction he was not getting anything from our shop and asked us to pay a bribe of Rs.2,000/- threatening to seal the shop otherwise. On 20.7.94 I went to the house of accused and informed me that there were no defects in the accounts of my business. At that time, both A1 and A2 were present. I told him that I cannot pay so much of amount as there was no defects in my business. A1 then said at least I have to pay Rs.1000/- otherwise he would see that my shop will be closed”.

#19. There is no ambiguity in the evidence of Pw.1 with regard to the place where Pw.1 met A-1 and thereupon, A-1 reduced his demand from Rs.2000/- to Rs.1,000/-. His version before the Court contradicts the version as reflected in Ex.P-1 complaint with regard to the place where A-1 allegedly reduced his demand from Rs.2,000/- to Rs.1,000/-. According to Ex.P-1 complaint, Pw.1 met A-1 at his office and expressed his inability and thereupon, A-1 reduced his demand from Rs.2,000/- to Rs.1,000/-. The relevant portion in Ex.P-1 complaint needs to be noted and it is thus:- “ ………….yesterday 20-7-94 at the time of morning 11 hours I went to the DCTO’s office at Korlagunta and met Sri Rajendra in his office and stated to him that I am not doing any illegal business and narrated about my business and requested that I am not in a position to pay bribe. He did not oblige for the same and stated that at least Rs.1,000/- may be paid within 2 or 3 days otherwise the shop will be raided and cases will be booked and he would see that my shop will be closed likewise he threatened. I agreed for the same as no other source. Then he instructed me that if I brought the bribe amount may be given to him if he stated so otherwise may be given to Giddaiah his Attender. He stated that if I did so I would not get any trouble, he threatened likewise. Giddaiah, Attender is also present when it was happened. I accepted for the same without other way. I have no interest to give bribe to ACTO Rajendra. But he would raid our shop and book cases against our shop. So I decided to give bribe on tomorrow, 22.7.1994. I pray that necessary action may be taken against Sri Rajendra, ACTO, Tirupathi”.

#20. The appellant/accused pointed out this contradiction before the learned trial Judge. The learned trial Judge brushed aside this contradiction on the ground of there being some mistake in typing. For better appreciation, I may refer the relevant portion of the judgment impugned in the appeal, which reads thus:- “17. About the subsequent demand on 20-7-94 counsel for AO.1 has argued that as per the complaint in Ex.P-1, as per Ex.P.2 the statement of Pw.1 under Sec.164 Cr.P.C, the alleged meeting of Pw.1 with AO.1 was in the office and not in the house, but the evidence of Pw.1 is contradictory since Pw.1 has stated that he met the AO at his house on 20-7- 1994. He has further argued that the question of reducing the bribe amount from Rs.2,000/- to Rs.1,000/- on 20-7-1994 does not arise since the said amount was reduced from Rs.2,000/- to Rs.1,000/- even on 12-7-94 as per the evidence of Pw.1 and therefore these events leads to an irresistible conclusion that the evidence of Pw.1 is totally false about the visit of AO-1 to the shop of Pw.1 on 20-7-94. Public Prosecutor has argued that Pw-1 has not deviated from the contents of Ex.P.1, P.2 and his 161 Cr.P.C statement and it is a typographical mistake that instead of office it is typed as house and in the next sentence Pw.1 has stated that he returned from the office which indicates that in the prior sentence it is mistakenly typed as `house’ instead of `office’. He further argued that this ambiguity was clarified by the Court itself in the cross examination of Dw.4 (AO2) who clearly admitted about the visit of Pw.1 to the office of AO.1 on 20-7-1994”. As could be seen from the above-referred extract from the trial Court judgment, the learned trial Judge assumed that the word ‘house’ mistakenly typed instead of ‘office’. The Judge, who recorded the deposition of PW.1, is not the same Judge, who passed the judgment. Therefore, it is impermissible for the Judge who passed the judgment to presume that the word ‘office’ has been mistakenly mentioned as ‘house’. If there is any ambiguity, the learned trial Judge ought to have recalled PW.1 for clarification. Without taking such recourse, it is impermissible for the learned trial Judge to assume that the word ‘office’ has been mistakenly typed as ‘house’.

#21. According to PW.1, the demand earlier made by A1 was reduced from Rs.2,000/- to Rs.1,000/- on 20.07.1994. Whereas, PW.4, who is no other than the mother of PW.1, stated that A1 reduced the demand from Rs.2,000/- to Rs.1,000/- on the first visit itself i.e., on

12.07.1994. There is apparent inconsistency between the evidence of PW.1 and PW.4 with regard to the date on which A1 reduced the demand from Rs.2,000/- to Rs.1,000/-. Had PW.1 reduced the demand from Rs.2,000/- to Rs.1,000/- on 12.07.1994 as per the evidence of PW.4, there was no need for PW.1 once again to go to the office or house of A1 on 20.07.1994 to explain A1 that there were no defects in the accounts of his business.

#22. DW.4 is A2. He testifies that he accepted the tainted amount of Rs.1,000/- on the direction of A1. His version is that he received the amount as directed by A1. The question is as to what extent the evidence of DW.4 can be used against A1. DW.4 is a co-accused. The statement made by him is exculpatory. It is no evidence under Section 30 of the Evidence Act, 1872. A Division Bench of this Court i n P.Yesubabu v. State[5] has considered the evidentiary value of exculpatory statement of co-accused and observed as hereunder: “17. What evidence we have is the evidence of P.Ws.10 and

#11. They have stated in their evidence that A-1 went to them and confessed that on the night of the incident, he along with A-2 were in search of illicit liquor. They were accosted by the deceased and there was a fight between the deceased and A- 2 in which A-2 throttled the neck of the deceased and pushed him into the canal causing his death.

#18. This part of the evidence of P.Ws.10 and 11 was taken to be substantive evidence by the learned Judge. The view expressed by the learned Judge is totally erroneous. As a matter of fact, A-1 alleged to have made a confession before P.Ws.10 and 11 stating that A-2 killed the deceased is no confession in law. The confession must contain the statement in which the maker involves himself in the commission of the offence. In other words, it must be inculpatory statement but the evidence of P.Ws.10 and 11 shows that A-1 has excluded himself in the commission of the offence but involved A-2 in the commission of the offence. In other words, the statement made by A-1 is exculpatory. It is no evidence under Section 30 of the Indian Evidence Act and that cannot form a basis for conviction. In many reported cases of the Apex Court as well as High Courts in the Country held that exculpatory statement of a co-accused cannot be taken into consideration against his co-accused.”

#23. In one of the cases reported in Haricharan Kurmi v. State of Bihar[6], their Lordships of the Supreme Court held as under: “As a result of the provisions contained in Section 30 Evidence Act, the confession of a co-accused has to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence, circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence.”

#24. Section 30 of the Evidence Act reads as hereunder: “30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.—When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. Explanation:- “Offence” as used in this section, includes the abetment of, or attempt to commit the offence. ILLUSTRATIONS: (a) A and B are jointly tried for the murder of C. It is proved that A said “B and I murdered C”. The court may consider the effect of this confession as against B. (b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said – “A and I murdered C”. This statement may not be taken into consideration by the Court against A, as B is not being jointly tried.”

#25. The requirement of Section 30 of the Evidence Act is that before it is made to operate against the co-accused the confession should be strictly established. In other words, what must be before the Court should be a confession proper and not a mere circumstance or an information which could be an incriminating one. Secondly, it being the confession of the maker, it is not to be treated as evidence within the meaning of Section 3 of the Evidence Act against the non-maker co-accused and lastly, its use depends on finding other evidence so as to connect the co-accused with the crime and that too as a corroborative piece. It is only when the other evidence tendered against the co-accused points to his guilt then the confession duly proved could be used against such co-accused if it appears to effect him as lending support or assurance to such other evidence. To attract the provisions of Section 30, it should for all purposes be a confession, that is a statement containing an admission of guilt and not merely a statement raising the inference with regard to such guilt. The evidence of co-accused cannot be considered under Section 30 of the Evidence Act, where he was not tried jointly with the accused and where he did not make a statement incriminating himself along with the accused.

#26. Since DW.4, who is A2, exculpates himself in his evidence, his evidence cannot be used for inferring the guilt of A1. The sole witness to speak of the demand and acceptance of the bribe is PW.1. His evidence is shaky and as the sodium carbonate solution test conducted on A1 proved to be negative, it is not safe to place reliance on his testimony without there being any corroborative evidence to support. The trial Court is not justified in recording conviction of the appellant/A-1 basing on the solitary testimony of Pw.1, who is found to be not wholly reliable witness. Therefore, the appellant/A-1 is entitled to benefit of doubt. Accordingly, the conviction of the appellant/A-1 for the offences under Sections 7 and 13(1)(d) r/w Sec.13(2) of the P.C.Act is set aside.

#27. A-2 has been charged for the offence under Section 12 of the P.C.Act. Section 12 of the P.C.Act reads as hereunder:- “12. Punishment for abetment of offences defined in Section 7 or 11:- Whoever abets any offence punishable under Section 7 or Section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and shall also be liable to fine”

#28. It is a matter of record that the trial Court acquitted A-1 for the offence under Section 11 of the P.C.Act. For better appreciation, I may refer the relevant portion of the judgment of the trial Court, which reads as hereunder:- “ The prosecution has established that A.O.1 demanded Pw.1 for an illegal gratification other than legal remuneration, the recovery of marked currency notes from the possession of A.O.2 is admitted by AO.1 also, the defence plea of AO.1 that the amount was handed over by Pw.1 to AO.2 outside his office room without his knowledge is rejected, the acceptance of gratification by AO.1 through AO.2 was thus proved by the evidence of Pw.1 which is corroborated by that A.O.1 had Pws.2 and 6, it should be presumed accepted the said amount as a reward for doing public duty attracting Section 7 of Prevention of Corruption Act, 1988. that AO.2 failed The prosecution intentionally aided AO.1 by his act to commit the offence. Therefore, AO.2 is entitled for an acquittal. Thus AO.1 is found guilty for the offence under Sections 7 and Sec.13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 but A.O 1 is charged under Sec. 11 of Prevention of Corruption Act also. It is not the case of the prosecution that AO.1 obtained a valuable thing directly or through AO.2 without consideration from Pw.1 and there is no evidence to that effect. This charge is unnecessarily framed and A.O1 is entitled for an acquittal on the said charge. Accordingly, AO.1 is convicted under Section 248(2) Cr.P.C for the charges under Sections 7, 13(2) r/w 13(1)(d) of P.C.Act, and A.O.2 is acquitted under Section 248(1) Cr.P.C for the charge U/Sec. 12 of Prevention of Corruption Act, 1988. “ to establish

#29. The prosecution has not challenged the acquittal of A-1 for the offence under Section 11 of the P.C.Act. It is A-1 who challenged his conviction for the offence under Sections 7 and 13(1)(d) r/w 13(2) of the P.C.Act and his conviction is being set aside as stated in para (26) supra. When once the principal offender, i.e., A-1 is acquitted for the offence under Section 7 of the Act, the question is whether the acquittal of A-2 recorded by the trial Court warrants interference ?

#30. It is well settled that where the abetment is by instigation or conspiracy the acquittal of the principal offender does not necessarily result in the acquittal of the abettor but in cases of abetment by aid, i.e., by facilitating the omission of the offence, where the principal offender is acquitted of the offence on the ground that he did not commit the offence no question of aiding commission of the offence would arise and there can be no conviction for abetment of the offence.

#31. According to Section 107 IPC, a person abets the doing of a thing when he instigates any person to do a thing or engages with one or more other person or persons in any conspiracy for the doing of that thing or intentionally aids, by any act or illegal omission, the doing of that thing. In either of the first two cases, it is immaterial for the conviction of the abettor whether the person instigated commits the offence or not or the persons conspiring together actually carry out the objects of conspiracy. In the case of abetment by aid, a person can be said to abet by aiding only when by the commission of an act, he intends to facilitate the commission of the offence and does facilitate the commission thereof. Therefore, where a person is charged with abetment by aid of an offence under S.161 of IPC and the person charged with the offence is acquitted on the ground that he had not committed the offence, no question of intentionally aiding by any act or omission the commission of that offence arises, vide decision of the Supreme Court in Faguna Kanta Nath v. The State of Assam[7].

#32. The only allegation against A-2 is that he received the tainted currency from Pw.1. It is not the case of Pw.1 that A-2 demanded bribe on behalf of A-1 or instigated A-1 to accept the bribe. He admitted in cross-examination that he had no prior acquaintance with A-2 and for the first time, he saw A-2 on the date of the trap. A-2 pleaded that he accepted the tainted money from Pw.1 on the direction of A-1 on the premise that the said amount was given to him for payment towards tax. He stated the same version in his 313 Cr.P.C examination. In the absence of any specific instance, which suggests that A-2 resorted to abet A-1 to demand bribe, the explanation offered by A-2 appears to be probable. The trial court, having considered the facts and circumstances, accepted the plea of A-2 and acquitted him for the offence under Section 12 of the P.C.Act.

#33. In an appeal against acquittal, the appellate Court is circumscribed by the limitation that no interference has to be made with the order unless the approach made by the trial Court to the consideration of evidence is vitiated by some manifest illegality or the conclusion recorded by it is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is liable and therefore to be characterized as perverse. In my considered view, appreciation of evidence by the trial Court in recording acquittal of A-2, cannot be said to be perverse. Hence, the appeal preferred by the State assailing the acquittal of A-2 is liable to be dismissed.

#34. In the result, Criminal Appeal No.50 of 2005 is allowed setting aside the conviction and sentence of the appellant/A-1-C.R.Rajendran for the offences under Sections 7 and 13(1)(d) read with Sec.13(2) of the P.C.Act and he is acquitted of the same. Fine amount, if any, paid by him is ordered to be refunded. Bail bonds furnished by him shall stand cancelled. Criminal Appeal No.1423 of 2005 preferred by the State is dismissed. Dt.03-03-2011 RAR/CS _____________________ B.SESHASAYANA REDDY, J THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Appeal Nos.50 & 1423 of 2005 (Dated : 03-03-2011) [1] (2006) 1 Supreme Court Cases 401 [2] 1976(3) Supreme Court Cases 46 [3] 2004 SCC (Crl.) 100 [4] AIR 2004 SUPREME COURT 2688 [5] 2001 (1) ALT (Crl.) 452 (A.P.) (D.B.) [6] AIR 1964 SC 1184 [7] AIR 1959 Supreme Court 673