Karnataka High Court
Somanath @ Somashekhar S/O Mahadevappa ... vs The State Of Karnataka on 13 August, 2020
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13th DAY OF AUGUST 2020
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL APPEAL No.3512/2012
C/W
CRIMINAL APPEAL No.3563/2012
IN CRL.APPEAL No.3512 /2012
BETWEEN:
Somanath @ Somashekhar
S/o Mahadevappa Gandge
Age: 45 years, Occ: Police Constable No.986
Of Gandhi Gunj Police Station,
Bidar Now at Janawada Police Station
Tq: Bidar R/o Morambi Tq: Bhalki
Dist: Bidar
(By Sri.Baburao Mangane Advocate
... Appellant
AND:
The State of Karnataka
through the Police Lokayukta
Bidar
... Respondent
(By Sri, Subhash Mallapur Spl. Public Prosecutor)
This Criminal Appeal is filed under Section 374 (2)
of Cr.P.C. praying to set aside the judgment and order
passed in Spl. Case (P.C Act) No.5/2007 dated: 30-11-
2011 passed by Special Judge & District & Sessions
Judge Bidar convicting the appellant for the offence
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U/Sec.7 and 13(1) (d) R/w 132 of Prevention of
Corruption Act and acquit the accused/appellant in the
interest of justice and equity.
IN CRL.APPEAL No.3563/2012
BETWEEN:
State of Karnataka
Represented by
Special Public Prosecutor (Lokayukta)
.....Appellant
(By Sri Subhash Mallapur Spl. Public Prosecutor)
AND:
Dayanand S/o Lingappa
Age: 40 years, Occ: :Police Constable,
P.C No.1353 of Gandhi Gunj Police Station
Bidar, now at Town Police Station,
Basavakalyan Dist; Bidar
R/o H.No.11-1-38 Mangalpet Bidar.
... Respondent
(By Sri, Anveer Swadi Advocate for
Sri.Chaitanyakumar C.M Advocate)
This Criminal Appeal is filed under Section 378 (1)
& (3) of Cr.P.C. praying to grant leave to appeal against
the judgment and order of acquittal dated: 30-11-2011
passed in Special Case No.5 of 2007, on the file of
learned Special Judge and Prl. District & Sessions
Judge Bidar thereby acquitting the respondent accused
of the offences punishable under sections 7 and 13(1)
(d) R/w sec.13(2) of Prevention of Corruption Act and
set aside the aforesaid judgment and order of acquittal
passed by the court below by allowing the criminal
appeal, convict the respondent/accused with which he
has been charged in accordance with law, in the interest
of justice and equity.
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These Criminal Appeals having been heard, reserved
for Judgment and coming on for pronouncement of
Judgment this day, the court delivered the following;
JUDGMENT
Criminal appeal No.3152/2012 is filed by the appellant/accused No.1 before the trial court against the Judgment of conviction and sentence passed by the learned Special Judge / Prl. District & Sessions Judge, Bidar in Special Case No.5 of 2007 dated: 30-11-2011 for the offences punishable under Sections 7 and 13(1)
(d) r/w sec.13(2) of Prevention of Corruption Act 1988 and sentenced him to undergo rigorous imprisonment for a period of two years and pay a fine of Rs.2,500/- for the offence punishable under section 7 of Prevention of Corruption Act, in default to pay fine, he shall undergo further imprisonment for a period of three months, further accused No.1 is sentenced to undergo rigorous imprisonment for a period of two years and pay a fine of Rs.5,000/- for the offence punishable under section 4 13(1) (d) r/w section 13(2) of Prevention of Corruption Act, 1988, in default to pay fine, he shall undergo further simple imprisonment for a period of three months. Both the substantive sentences shall run concurrently.
2. Criminal appeal No.3563/2012 is filed by the State for Lokayukta arising out of the same Judgment passed by learned Special Judge / Prl. District & Sessions Judge, Bidar acquitting the accused No.2 for the offences punishable under sections 7 and 13(1) (d) r/w section 13(2) of Prevention of Corruption Act 1988.
3. Since both these appeals arise out of the same Judgment as the parties are referred to the same ranks before the trial court for the sake of convenience and to avoid repetition of discussion of the evidence and facts it is proposed to club these two appeals and dispose of together by common Judgment. 5
4. It is evident that both these criminal appeals are clubbed together by order dated: 20-07-2012.
5. The brief case of the prosecution is that, accused No.1/appellant in Criminal Appeal No.3512/2012 and respondent in Criminal Appeal No.3563/2012 were working as police constables at Gandhi Gunj police station Bidar at the relevant time. If is further case of the prosecution that, these two accused are public servants. It is the case of the prosecution that, complainant Shivanand intend to open a cracker shop during Deepavali festival. So he applied for issuance of license on 18-08-2006 to Deputy Commissioner. His application was sent to different departments so as to obtain no objection certificate. Similarly the said requisition was sent for furnishing no objection from Gandhi Gunj police station Bidar. 6
It is further case of the prosecution that, about three days prior to lodging of the complaint police constable Somanath called the complainant Shivanand over mobile phone and informed him about receipt of the letter from Deputy Commissioner Bidar for issuance of no objection certificate and asked him to meet. Accordingly he met the said Somanath at Gandhi Gunj police station and enquired him. The said Somananth told him that if the no objection certificate is to be prepared and signature of his higher officers is to be obtained, complainant has to give Rs.500/- as a illegal gratification and he has also stated that, out of the said amount Rs.300/- is to be paid to the P.S.I, Rs.100/- himself and Rs.100/- to the writer of the police station i.e., accused No.2, otherwise he will not get the no objection certificate. So on 05-10-2006 he called Somanath over mobile phone and enquired him then he told him that, he is not able to come now and he will come in the evening and if he is not available in the 7 police station the said amount be given in the hand of police constable Dayanand.
In this regard, the complainant Shivanand went to Lokayukta police station and lodged complaint as per Ex.P-12(a). PW.6 Ramachandra Circle Police Inspector who was working in the Lokayukta office at Koppal received the said complaint on 05-10-2006 at 1.00 p.m., and registered the case in their Crime No.6/2006 for the offences under sections 7, 13(1) (d) r/w sec.13(2) of Prevention of Corruption Act 1988 and sent the F.I.R to the court. Then he secured two panchas one from water supply board and one from PWD and introduced those panchas to the complainant, they are one Mr.Suraj Prakash and Ramesh then he has readover the said complaint to those panchas and the complainant has produced Rs.500/- i.e. five notes Rs.100/- denomination. Then infront of the staff he got prepared sodium carbonate solution with pure water and 8 demonstrated the chemical reaction between the phenolphthalein powder and sodium carbonate solution with the instructions to the complainant and panchas as to the importance of demonstration held. Then they are separately put and sealed. Thereafter the phenolpthalien powder was pasted to the notes and then the pancha witness Ramesh counted the notes and kept it in the shirt of the complainant, then he dipped his fingers into the sodium carbonate solution, which also changed its colour, then informed them about the trap and one person who was made as a shadow witness, they will try to give signal when the amount was given, accordingly himself, staff, complainant and panchas went to the Gandhi Gunj police station at about 3.45 p.m., they stopped the vehicle near it. This complainant and shadow witness went to the police station they came out at about 6.00 p.m. and gave signal with a kerchief then they went inside the police station, then the complainant Shivanand shown this 9 accused No.2 Dayanand and told that, he is a person who demanded illegal gratification. Then the PW.6 Ramchandra introduced himself to accused No.2 and prepared sodium carbonate solution and dipped the hands of the accused No.2 in it and the said solution turned into pink colour, then the accused No.2 was asked to produce the amount received by the complainant. The said accused No.2 produced the amount from his left shirt pocket and put on the table. The panchas verified it and identified the same notes which they have seen at the time of entrustment panchnama and seized them and pocket portion of the shirt of accused No.2 was also dipped into the sodium carbonate solution which also turned into pink colour. He has identified those notes as M.O.5. Then they took explanation from accused No.2 and drawn panchnama and accused No.2 gave his statement as per Ex.P.4 and denied having demanded any illegal gratification. P.S.I has given his statement as per Ex.P.14. Then they 10 prepared rough sketch map of scene of offence as per Ex.P.13, then the photos were snapped at each panchnama they are at Ex.P.6 and seized the documents as per Ex.P.7 i.e., copy of outward register and prepared a sample of the seal as per Ex.P.8. Then he arrested accused No.2 and recorded the statement of the witnesses and handed over further investigation of this case to Police Inspector Chandrakant. The said Chandrakant after completion of the investigation has filed charge sheet against the accused for the above said offences.
6. Thereafter the learned Special Judge / Prl. District & Sessions Judge Bidar has framed the charge against the accused for the offences punishable under sections 7, 13(1) (d) r/w section 13(2) of Prevention of Corruption Act 1988. The accused have pleaded not guilty and claims to be tried. The accused were on bail during the trial.
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7. Thereafter words, prosecution examined eight witnesses as PW1 to PW8, got marked eighteen documents as Exs.P1 to Ex.P18 and got identified eight material object as M.Os.1 to 8 and closed its side evidence.
8. The statement of accused as required U/sec.313 of Code of Criminal Procedure was recorded. The accused have denied the incriminating circumstance appearing against them in the evidence of prosecution witnesses. They have not chosen to lead any defense evidence.
9. After hearing arguments, the learned Special Judge / Prl. Sessions Judge Bidar convicted the accused No.1 for the offences punishable under Sections 7 and 13(1) (d) r/w sec.13(2) of Prevention of Corruption Act 1988 and sentenced him as referred above. However acquitted accused No.2 for the offences 12 punishable under sections 7 and 13(1) (d) r/w section 13(2) of Prevention of Corruption Act 1988.
10. Aggrieved by the said conviction, the accused No.1/appellant in Criminal Appeal No.3512/2012 as preferred this appeal on the following grounds:-
That the Judgment and order passed by the trial court is illegal, perverse and against the records of the case. The trial court has not framed charges under sections 13(1) (d) r/w sec.13 (2) of P.C Act 1988 against this appellant, but convicted him for the same offence which is illegal. The trial court has framed the charge under section 13(1) (d) r/w section 13(2) of P.C Act, only against accused No.2, but he has been acquitted for the offences punishable under sections 7, 13(2) (d) r/w section 13(2) of Prevention of Corruption Act on the basis of the material on record by the prosecution.13
It is further contended that, informant /complainant was not examined by the prosecution on the ground that, his where-abouts were not known. It is CW.1 who has lodged the information with the respondent police alleging the demand of illegal gratification from CW.1 to show the official favour for issuance of no objection certificate, so the charge under section 7 or under section 13(1) (d) r/w section 13 (2) of Prevention of Corruption Act, 1988 is not proved. PW.3 one Kirti Raj is only hearsay witness, PW.1 Suraj Thakur, shadow witness has been treated as hostile by the prosecution. He has stated only against accused No.2, but not against this accused No.1/appellant.
There is no evidence of demanding illegal gratification by this appellant. The sanction Ex.P.11 is not in accordance with law. It is also admitted by PW.7 S.Manjunath that, there is one Somanath Head Constable in their police station and Somashekhar was police constable and both were writers in the police 14 station. The information lodged by CW.1 with Lokayukta police station he has stated the name as Somanath.
Already this no objection certificate was prepared and entered in dispatch register. So no work of complainant was pending with accused. The Investigating Officer who has filed the charge sheet was not examined.
There is no evidence to show that this appellant was competent person to show any official favour to CW.1, nor they have brought any material on record to prove the demand and acceptance of illegal gratification by the appellant. The order of conviction and sentence passed by the court below is opposed to law, facts and probabilities of the case. The trial court has not given valid and proper reasons for convicting this appellant/accused No.1. The sentence imposed by the trial court is exorbitant. With these main grounds the accused No.1/appellant prays to acquit him by setting aside the impugned judgment of conviction.15
11. The appellant/State in Criminal Appeal No.3563/2012 has contended that, the Judgment of acquittal passed against accused No.2 resulted in mis- carriage of justice. The reasons assigned by the Special Judge / Prl. District & Sessions Judge Bidar in passing the order of acquittal is not proper. The assessment of the evidence of prosecution by the trial court is contrary to the Indian Evidence Act and settled principle of Law. The trial court has not properly assessed the evidence on record. Through the trial court has held rightly that the tainted money was recovered from the shirt pocket of respondent, but the trial court has given finding in favour of this accused and acquitted him giving benefit of doubt. The accused No.1 was not present in the police station and it is respondent who accepted the bribe from the complainant by following the instructions of accused No.1 in this matter. So the prosecution has proved beyond reasonable doubt that this respondent accepted the bribe amount with full knowledge from the 16 complainant. The reasoning of the trial court that the respondent has no knowledge of demand of bribe is erroneous and contrary to the evidence as he has acted as per the instructions given to him by accused No.1 cannot be accepted. The money was received by the respondent with full knowledge and the complaint itself shows that the respondent was to get share of Rs.100/- from the tainted amount of Rs.500/-. This is a strong circumstance against the respondent, which goes to show that he is not an innocent person, but it is that of an accomplice who has also had his share in the bribe amount. There is evidence to show the direct involvement of this respondent also. So the prosecution has satisfactorily proved that money was received from the possession of this respondent. Therefore, the Judgment and order of acquittal is not only illegal, but also perverse and needs interference by this court. 17
12. I heard Sri.Babura Mangane learned counsel for the appellant/accused No.1 in Criminal Appeal No.3512/2012, Sri.Anveer Swadi learned counsel on behalf of Sri.ChaintanyaKumar C.M., for respondent in Criminal Appeal No.3563/2012 and the learned Special Public Prosecutor for the State/Lokayukta in both the appeals.
13. Sri. Baburao Mangane learned counsel for the appellant/accused No.1 in Criminal Appeal No.3512/2012 argued that, accused No.1 is police constable and it is stated in the complaint that, demand was made by one Somanath and the name of this appellant is not Somanath but Somashekhar. It is also evident that, there is another Somanath who is head constable working in same police station as admitted by PW.7 P.S.I. There is nothing to show that, the demand was made by the accused No.1 on 03-10-2006. Though the charge was not framed against this accused No.1 for 18 the offence under section 13(1)(d) r/w section 13(2) of Prevention of Corruption Act, but he was convicted. In fact as on 05-10-2006 no work of this complainant was pending with police station. The complainant was not examined and it is stated that, his where-abouts were not known, but all the efforts were not made. A fictitious person by name Shivanand is created just to victimize this appellant/accused No.1. There is nothing to show that, this appellant/accused No.1 has any power or authority to issue this no objection certificate. There is no question of he showing any favour or omitting to do any favour. The amount is not received by the appellant. Though it is stated that some conversation was made over mobile phone the number of said mobile phones were not given. No case diary is produced regarding recording of conversation. There is no evidence of demand of money on 03-10-2006. This appellant/accused No.1 was not present on 05-10- 2006. On the same evidence the trial court has 19 acquitted accused No.2. In fact according to prosecution amount was received by accused No.2 but the trial court has convicted the present appellant/accused No.1 who was not at all present. PW.1 has not fully supported the prosecution case. PW.2 is a shadow witness. In the cross-examination he has admitted that, he do not know the accused. So absolutely there is no evidence in regard to charge. Further the learned counsel for appellant/accused No.1 argued that, very strangely the trial court has invoked Section 33 of Evidence Act which is not at all applicable to this case. Even the complainant stated in complaint that, P.S.I share is Rs.300/-, accused No.1 share is Rs.100/- and share of accused No.2 is Rs.100/-. The P.S.I is not a witness to the incident. The accused No.2 is acquitted and this accused No.1/appellant who was not at all present, nor there is any evidence to show that he made demand, but still he was convicted. The presumption cannot be raised, when he has not accepted any 20 amount or any recovery is made from him. There is no charge of conspiracy is framed against P.S.I or accused Nos.1 & 2. With these main contentions the learned counsel for appellant/accused No.1 has prayed to acquit the accused in Criminal Appeal No.3512/2012 by setting aside the Judgment and order of sentence. In support of his argument the learned counsel for the appellant/accused No.1 has relied on the following citations.
1) Criminal Appeal No.1355 of 2015 (Arising out of SLP (Crl.) No.2958 of 2011) (N.Sunkanna Vs State of Andhra Pradesh)
2) Supreme Court of India Criminal Appeal No.1276 of 2010 dated: 09-10- 2018.
(Dashrath Singh Chauhan Vs Central Bureau of Investigation)
3) (2009) ACR 956 Criminal Appeal No.1350 of 2009 (Arising out of SLP (Crl.No.211 of 2006) (State of Maharashtra Vs Dnyaneshwar Laxman Rao Wankhede)
14. Sri.Anveer Swadi learned counsel on behalf of Sri.Chaitainyakumar C.M, counsel on record for 21 respondent in Criminal Appeal No.3563/2012 argued that the acquittal of respondent who is accused No.2 by the trial court is just and proper. In fact no amount was received by this respondent. There is no evidence to show that, this respondent has demanded any amount. Mere recovery of the amount without any connection or demand is not a ground to convict the accused. The reasons given by the trial court for acquitting this respondent are just and proper. The learned Spl.Judge / Prl. District & Sessions Judge Bidar has rightly come to the conclusion that, there is no involvement of this accused No.2. He has taken the signature of the complainant and handed over no objection certificate. The presence of the complainant was required in police station only to sign the undertaking and all his work is done i.e. no objection certificate was already signed by P.S.I and kept ready for dispatch. Somehow he has been falsely implicated 22 but rightly acquitted by the trial court. So he prayed to dismiss the appeal.
15. As against this, Sri.Subhash Mallapur learned Special Public Prosecutor has argued that, the accused No.1 has not lead any evidence to show that there are two persons, one by name Somanath and another Somshekhar were working. Ex.P.5 is the license which is to be required to be sent to the Deputy Commissioner office for starting cracker shop during Deepavali festival for that there was a demand. There is evidence of PW.3 and PW.4 which supports and corroborates the case of the prosecution. Further learned Spl. Public Prosecutor has argued that, all the panchas have supported the entrustment panchnama. The shadow witness and Investigating Officer have supported the prosecution case. The trial court though has held that, there is demand of money for issuance of no objection certificate and as it is mentioned that there is also share of this 23 accused No.2 who is respondent in Criminal Appeal No.3563/2012 and the amount is recovered from him and recovery is proved. The panchnama regarding seizure of amount and changing of phenolphthalein sodium carbonate solution into pink when the hands and pocket of accused No.2 is dipped in the solution is proved. So the presumption arises that these accused for issuance of no objection certificate have demanded illegal gratification which is proved beyond all reasonable doubt by the evidence of prosecution witnesses. Simply because the complainant is not examined is not a ground to acquit the accused No.2. With these main contentions the learned Spl. Public Prosecutor prays to dismiss the Criminal Appeal No.3512/2012 and convict the respondent in Criminal Appeal No.3563.2012.
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16. From the above materials, evidence and arguments the point that would arise for my consideration are as under:-
In Criminal Appeal No.3512/2012
01. "Whether prosecution proved its case beyond the reasonable doubt that on 05-10-2006 in the evening at 6.00 p.m., in the Gandhi Gunj police station Bidar, accused No.1/appellant being a public servant demanded and accepted illegal gratification of Rs.500/- from the complainant Shivanand for showing official favour to him i.e., to issue no objection certificate to establish cracker shop during Deepavali festival through accused No.2 and respondent in Criminal Appeal No.3563/2012 and thereby committed an offence punishable under section 7 of the Prevention of Corruption Act 1988?
02. "Whether prosecution proved its case beyond the reasonable doubt that accused No.1/appellant along with 25 accused No.2 /respondent in Criminal Appeal No.3563/2012 being public servants working as police constables committed the offence of criminal misconduct by corrupt or illegal means obtaining an illegal gratification of Rs.500/- from the complainant Shivanand to show official favour to him for issuing no objection certificate for establish cracker shop during Deepavali festival and thereby committed an offence punishable under section 13(1) (d) r/w sec.13(2) of the Prevention of Corruption Act 1988?
In Criminal Appeal No.3563/2012
03. "Whether the trial court was justified in acquitting the accused No.2/ respondent in this Appeal.
04. Whether the Judgment of conviction of learned Sessions Judge against accused No.1/appellant in Criminal Appeal No.3512/2012 is not based on sound principles regarding appreciation of 26 evidence in criminal cases and needs interference of this court?
17. Point Nos.1 & 2 in Criminal Appeal No.3512/2012 and Point Nos.3 & 4 in Criminal Appeal No.3563/2012. All these points are inter related with each other and as they are depending upon one another, as they arise out of one Judgment and in order to avoid repetition of discussion and evidence, I propose to answer these points together.
18. My answer to the above points are as under
for the reasons given below.
19. In order to prove its case, the prosecution examined in all eight witnesses.
20. The prosecution got identified materials objects M.O.s 1 to 10
21. Regarding obtaining the sanction, the appellants have not challenged the same in both the appeals.
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22. Complainant Shivanand is not examined in this case. It is reported that, CW.1 is unheard and he is not available for the last 3 -4 years because of several financial crises in his business which is evident from the order sheet dated: 24-06-2011. So he could not be secured as per the report of the police. The only witnesses now left are Investigating Officer and panchas. Ex.P.12(a) is the complaint which is the basis for investigating and filing of the charge sheet. In Ex.P.12(a) the complainant has stated that, he had applied to the Deputy Commissioner office for issuance of temporary license for the purpose of opening of fire cracker shop during the coming Deepavali festival. Accordingly his requisition was sent to the police station. So prior to 2-3 days one police constable by name Somananth called him over a mobile phone and informed him about the no objection certificate sought by him and asked him to come to the police station. Accordingly on 03-10-2006 he went to the Gandhi Gunj 28 police station there he enquired the police constable Somanath and he informed complainant Shivanand that, for preparing no objection certificate and getting the signature of his higher officer he is required to give Rs.500/- as illegal gratification and he has informed said Shivanand that, out of that amount Rs.300/- is to be given to P.S.I Manjunath, Rs.100/- to himself and Rs.100/- is to be given to police constable Dayanand. So on 05-10-2006 at 12.00 noon complainant Shivanand called Somananth over mobile phone and asked him that he will give the money and then Somanath informed that he is unable to come to the police station and he will come in the evening. So Somanath informed him that, if he is not available in the police station the amount be given to said Dayanand police constable. Accordingly the complainant Shivanand got typed a complaint and came to the Lokayukta police station and lodged complaint as per 29 Ex.P.12(a). The said complaint is registered at 1.00 p.m.
23. Based on that complaint PW.6 Ramchandra Police Inspector has secured the panchas and prepared panchnama regarding preparation of sodium carbonate solution and phenolphthalein powder. PW.1 Suraj Prakash was asked to act as a shadow witness and he was informed to give signal.
24. It is pertinent to note that, F.I.R Ex.P.12 came to be registered against one accused Somananth police constable of Gandhi Gunj police station for the offences 7, 13(1) (d) r/w sec.13(2) of Prevention of Corruption Act, 1988. No F.I.R or case is registered against either P.S.I or police constable Dayanand /accused No.2. The case is registered against only accused No.1 Somanath but no name is shown as Somashekhar.
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25. As per the evidence of PW.1 Suraj Prakash shadow witness, he has stated about Lokayukta police calling him at 2.00 p.m., and he was informed about the complainant Shivanand and Inspector told him that after preparing the sample, the complainant Shivanand should give the amount to the accused when he asked illegal gratification or they must do as directed by that accused and give a signal. Accordingly himself, complainant, PSI and staff went to the Gandhi Gunj police station it was 6.00 p.m. Police constable Dayanand was there and complainant Shivanand asked him about Somashekhar then Dayanand asked him what is the matter, then Shivanand told that, Somashekar asked him to give the amount for the license. Thereafter Dayanand took one paper and took signature of Shivanand and Shivanand took amount from his pant and gave it to Dayanand and he received the amount from his hand. Thereafter they came out of 31 office and gave signal. So this is the evidence of the shadow witness.
26. It is pertinent to note that, F.I.R is registered against accused Somashekhar and the police constable Dayanand is not an accused. The shadow witness has not stated that Dayanand has asked to give any amount, nor he demanded any amount. How he now this Dayanand is also not known. Whether the complainant Shivanand was knowing this Dayanand is also not forthcoming. In fact Dayanand has also not stated anything about Somanath asking him to give any amount or demanding any amount, when Investigating Officer and staff came there, complainant Shivanand pointed towards Dayanand stating that he has received the amount, accordingly his both hands were dipped in the sodium carbonate solution, then they turned into pink colour. Even this PW.1 has not stated how the accused No.2 received the amount where he kept that 32 amount is also not forth-coming. Complainant Shivanand has simply stated that, accused No.2 Dayannand received the amount by his hand. He has further stated that, when the Investigating Officer asked him, accused No.2 took out the amount from his shirt and kept it on a table, but he has not stated that accused has received or kept the amount in his shirt pocket. Then the shirt pocket was also dipped in sodium carbonate solution and it turned into pink colour and the panchanama was drawn till 10.00 p.m., Then they all returned to the police station.
27. On the next day again he went to the Lokayukta police station and gave statement. He has further stated that, when Investigating Officer asked accused No.2, he has stated that two persons have forcibly given amount to him and he has no role in it. But some how the prosecution has treated this witness as hostile witness. In the cross-examination he has 33 stated that, he cannot say whether the signature on the panchnama was taken in Lokayukta office or not because so many his signatures were taken by the police. It is suggested to him that, he is deposing falsely but he has stated that, he was in confusion because his so many signatures were taken by police.
28. In the cross-examination he has stated that, he do not know personally Shivanand. Further he has admitted that, at the time of entrustment panchnama accept demonstration, there is no discussion. He has not marked anything on the note. He has also stated that, they did not dip any of the note in the sodium carbonate solution at Gandhi Gunj police station to confirm whether those notes are the notes prepared at the Lokayukta office. He has also admitted that, when himself and Shivanand went to the police station he do not know where other persons were standing outside the police station. They went to the police station, there 34 are about 20 to 25 persons were present, the public were also present. The P.S.I was not present in the police station and he came at 7.30 p.m. There were no talks between P.S.I and complainant Shivanand. There is no talk infront of him between Lokayukta officer and P.S.I Manjunath. He has admitted that, in Ex.P.5 the date is mentioned as 03-10-2006. He has also admitted that, in Ex.P.7 dispatch register it was already entered before they seized it that the records pertaining to Shivanand and Sangmesh, the report to be sent to S.P. office already it was entered in the dispatch register. So, it is evident that before this witness enter the police station there already no objection report of complainant Shivanand and other person was prepared and it was given to dispatch. He do not know on which document the complainant Sivanand has signed at police station. How he know this Somashekhar, identifies him is also not forthcoming. He has also stated that, no petition in respect of Shivanand was pending either with 35 Somashekhar or Somanath. He has stated that, he do not know anything about it. He has stated that, Dayanand was not in uniform. Even he cannot say which type of shirt Dayanand was wearing. Complainant Shivanand's hand was not washed in the sodium carbonate solution. He has stated that, he has not seen CW.4 Keertiraj and CW.5 Sangmesh. So, the evidence of PW.1 Suraj Prakesh does not indicate whether there was any demand by any of the accused. Even he do not say whether accused No.2 Dayanand has demanded any money. As per the evidence of PW.1, no objection certificates of complainant Shivanand and other person were already kept for dispatching and the amount took by Dayanand police constable by hand and where he kept the said amount is not stated by him. Even he did not recollect how many signatures he signed on panchnamas and the police have taken number of panchnamas. This evidence will not prove the demand of money by accused.
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29. PW.2 Ramesh is another pancha for entrusment panchnama i.e. preparing of sodium carbonate solution. He has stated about the said panchnama and signature. He has stated that, the Investigating Officer asked Suraj Prakash to accompany the complainant and inform this witness to keep the amount in the pant pocket of complainant Shivanand. He also gave a small tape recorded and asked him to make tape recorder on before giving the amount. He has stated about going to the police station and complainant and PW.1 Suraj Prakash going inside the police. So this witness has not seen either demand or acceptance. Simply he has stated that, Shivanand shown accused No.2 stating that he has received the amount and he has stated that Shivanand told before him and asked him to enquire him about the no objection certificate, for that accused No.2 told why there was a late and asked him to give money and took his signature. Suraj Prakash was also informed about 37 this, then both hands of Dayanand were washed separately in sodium carbonate solution. But it is very pertinent to note that, this Suraj Prakash has not at all stated that accused No.2 Dayanand demanded him or there was any talk between accused No.2 and complainant Shivanand. PW.1 has never stated that Dayanand demanded him any amount. So this witness is stating what is not stated by PW.1 and not seen by him. So it appears that, he is over enthusiastic in giving the evidence. He has stated about the seizure of the documents at the police station and when the Investigating Officer enquired accused No.2 he has stated that, he is no way concerned with the amount and some two persons have come there and forcibly gave the amount. Then he stated about taking of photographs. So his evidence will not help the prosecution to prove either acceptance or demand made by accused No.2.
38
30. In the cross-examination he has stated that, his higher officers have informed him to go to the Lokayukta office when there was a trap. When his higher officer gave this instruction it may be around 12.30 or 1.00 p.m. It is very strange that this complaint itself was received and registered at 1.00 p.m. So before registering the complaint how this higher officer informed him is not forthcoming. Because according to Investigating Officer the complaint was received in the police station at 1.00 p.m. So this creates doubt about investigation done by the Investigating Officer also laying of trap at the instance of this complainant. He has stated that, when they went to the police station there were about 8 -10 persons were present and he did not read the complaint. He never talked either with PW.1 or complainant Shivanand and even in the Gandhi Gunj police station he did not talk to PW.1 or complainant Shivanand about the complaint. The investigating officer has not asked his opinion about 39 reading panchnama, nor they informed him what they are reading and the accused Somashekhar did not came there, even he has not seen Shivanand talking with accused No.1. He has stated that, accused No.2 was on computer, but none of the witnesses have stated that, accused No.2 was on computer. When they returned to Gandhi Gunj police station the tape recorder was on but he could not hear it properly. The conversation was not properly heard. Even he has not talked with Shivanand nor he has seen the Investigating Officer talking with complainant Shivanand, then Investigating Officer came there and Shivanand giving amount to accused No.2 is also not forthcoming. He has not at all talked with accused No.2, complainant Shivanand has not signed on any of the document at Ex.P.5. Even in Ex.P.7 the entries were already made. He has not seen accused No.1 and even Investigating Officer enquiring about accused No.1. He has also admitted that the document relating to Shivanand was not prepared after they went 40 to the police station, it was already prepared and entered in the out-ward register of the police station. So this itself indicates that, the accused were not at all pressuring the complainant Shivanand. They kept everything ready even it is mentioned in the dispatch register to be dispatched before any amount was given.
31. It is very pertinent to note that, in Ex.P.5 it is accompanied with Ex.P.5(a) & Ex.P.5(b) wherein the Superintendent of Police has issued the circular to the P.S.I of all the police station coming under his jurisdiction on 03-10-2006 to prepare the no objection certificate and submit them well in time. Ex.P.5(a) is the statement given by complainant Shivanand and Ex.P.5(b) is the instruction issued by Superintendent of Police Bidar to submit no objection otherwise the concerned P.S.I should be held responsible. So the evidence of this witness is not helpful to the prosecution 41 to prove the demand by the accused or illegal gratification.
32. PW.3 Kirtiraj is another witness. According to the accused it is the Kirtiraj who use to lodge the complaint against the police and use to harass the police. He has stated that, on 03-10-2006 he had been to Gandhi Gunj police station with complainant Shivanand to get no objection certificate. He has stated that, accused No.1 called them through mobile phone and enquired him about the issuing license of fire cracker shop and told him that they will send the no objection certificate. Accordingly he called Shivanand. On 03-10-2006 as requested by Shivanand, himself and Sangmesh all three persons went to the police station. At that time accused No.1 told him to give Mamul i.e., illegal gratification, so Shivanand told him that he is poor and he is not able to give the amount, but Somanath told him that, only if he gives the money then 42 only no objection certificate will be given. But in Ex.P.5 the complainant Shivanand has not at all mentioned this person accompanying him to the police station, nor he has stated that the accused No.1 has told that he has to give Rs.500/- as illegal gratification and out of that amount, Rs.300/- is to be given to P.S.I, Rs.100/- to accused No.1 and Rs.100/- to be given to accused No.2. No such thing is stated by him. If at all he has gone with this Shivanand he sould have mentioned it in Ex.P.1 and if at all this Kirtiraj has accompanied him he could have stated that this accused No.1 demanded Rs.500/- or how that amount is to be distributed. Nothing is stated by him, nor this other person Sangamesh is examined and there is nothing to show the involvement of this accused. In the cross- examination he has stated that, he can't say when the application of Shivanand went to the Gandhi Gunj police station. He has stated that, he has also given application and he has received the no objection 43 certificate earlier. So even he has already received the no objection certificate why he went to the police station is not forthcoming. He has not stated that no amount was demanded or paid by him for issuance of his no objection certificate by same police station. He has stated that, from the year 2005 he is running fire cracker shop and he has stated that, accused have not demanded any amount for issuance no objection certificate to him. He knows what is the procedure for taking license. So his contention that accused Somanath demanded them to give amount or illegal gratification to take no objection certificate is all created and false one. He has admitted that, for taking no objection certificate one undertaking is to be given and he do not know whether Shivanand has told that he has to give any such undertaking and thereafter he did not contact Shivanand about no objection certificate. On 07th Shivanand informed him about Lokayukta case, but Lokayukta police called him on 7th. He has also 44 admitted that, he has not lodged any complaint to the police stating that, first accused is demanding money from Shivanand. Even they have not made the P.S.I as accused, nor any complaint was given in this regard. It is suggested that, he use to give a false complaint against so many persons and there were so many cases pending against him. He has denied it. It is suggested that, he threatened the Government servants and files false cases. He has stated that, for departmental enquiry he was called. He also stated that, he has not asked accused No.1, when his no objection certificate was given and why Shivanand's no objection certificate was not given.
33. It is the contention of accused No.1 that, at the instance of this Kirtiraj this case was filed. It is very pertinent to note that, this Kirtiraj has stated that, after 03-10-2006 with this accused No.1 he has not met Shivanand any where and only on 7th he came to know 45 about lodging of complaint. It is the suggestion of the accused No.1 that at the instance of this Kirtiraj who is in the habit of lodging the complaint this false case came to be filed. It is pertinent to note that, PW.8 Suryakant, Asst. Sub Inspector who was working at Lokayukta office on 05-10-2006 he has stated that, he was present in the police station on 05-10-2006 and Shivanand appeared in their police station and lodged the complaint and in-charge Inspector Sri.R.S.Bentur received the said complaint as the regular officer Chandrakant was on leave. Then said Chandrakant returned from leave and took further investigation in the matter. He has stated that, he has recorded the voluntary statement of accused Somashekhar on 04-11- 2006, which is at Ex.P.17 and other investigation done by him. In the cross-examination by the accused he has stated that, when the complainant came to the police station to lodge the complaint along with him another person by name Kiritiraj was also present and 46 this person is knowing this PW.3 Kirtiraj. But this PW.3 Kirtiraj denies going to the police station to lodge the complaint and he has stated that, he has never met complainant Shivanand or heard anything about the complaint after 03-10-2006 but only on the 7th he came to know about it. So the evidence of this witness clearly indicates that, it is at the instance of this Kirtiraj complaint came to be filed. This Kirtiraj is suppressing truth from the court.
34. In the cross-examination he has stated that, they went to the Gandhi Gunj police station at 3.45 p.m. Again it is contrary to the evidence on record. He do not know what is the designation of this Dayanand, but the P.S.I came within half an hour and he do not know whether Enquiry Officer enquired Somashekhar. He has stated that, said no objection certificate was already kept ready and only signature of the applicant is to be taken. So the evidence of this PW.8 probablise 47 the defense of the statement of the accused No.1 that at the instance of Kirtiraj the complaint came to be filed.
35. PW.6 Ramchandra Police Inspector who received the complaint has stated that, complainant Shivanand appeared before him and gave a written complaint i.e. complaint which is prepared in computer, but it is evident that, the said complaint Ex.P.12(a) is typed one, it is not prepared on computer, the print out of the computer and the typing is totally different. The complaint Ex.P.12(a) is not at all computerized copy it is a typed copy. So whether this complaint given or received or not itself is doubtful. He has identified Ex.P.1. Then he stated about securing of panchas, preparing entrustment panchnama and he informed complainant to give the amount to accused Somanath if he demanded. Then Suraj Prakash has to act as shadow witness and they must record the conversation and all 48 of them went to Gandhi Gunj police station at about 3.45 p.m.
36. PW.1 has stated that, the trap was laid in the evening at about 5.00 to 5.30 p.m. and they went to the police station at 3.45 p.m., and stopped their vehicle and gave instruction to shadow witness then they went to the police station and returned at 6.00 p.m. So what did they do for such a long time outside police station is not forthcoming. PW.1 has stated that it was in fact 6.00 p.m., when they went to the police station along with complainant. The shadow witness has stated that, he also came out along with the complainant and gave signal, but this witness states that only complainant came out and gave signal and when they enquired, complainant showed accused Dayanand and told that, he demanded the illegal gratification and accepted it. But no such thing is stated by the shadow witness. Then he has stated about the conducting of 49 carbonate solution test and dipping the hands and shirt. Then they seized the amount and also his shirt and accused No.2 has given his explanation as per Ex.P.4 and stated that, he has never demanded any amount. On the other hand, he has given no objection certificate, the complainant himself has given the amount and this P.S.I has also given his statement as per Ex.P.14.
37. In the cross-examination some suggestions were made he has denied it. It is suggested that no work of this complainant was pending either with accused No.1 or accused No.2. He has denied the suggestion that, they have created panchnama and all the documents. He has also stated that, when Shivanand come to the police station no other person had come. But as already stated that Kirtiraj-PW.3 was present with him only after registering of the complaint he secured the staff and sent to the police station. Even 50 he did not notice when the P.S.I came or else informed the P.S.I about any trap, nor he informed P.S.I that they have made any trap or seized the amount. The P.S.I and other persons were in other part of the police station. Even he did not mention in the station diary about the arrest. He has stated that, Ex.P.7 was already there. He has admitted that, Ex.P.5 it is already prepared on 03-10-2006 and even there is a circular to prepare the no objection certificate on or before 03-10-2006. He has admitted even the P.S.I has attended it. He has admitted that in Ex.P.5 the signature of the complainant Shivanand. He has also admitted that, they have not mentioned anything in the station dairy about the trap of accused No.2. He has denied the suggestion about trap and conducting panchnama. He has admitted that, in P.S.I statement there is no mention that accused No.2 was on duty. Ex.P.5 was issued by P.S.I and even it is mentioned in it the outward number and there is also outward number in 51 Ex,P.7. So he has stated that Ex.P.5 was not either with accused No.1 or with accused No.2. But he has denied that it was dispatched. He has stated that, P.S.I Manjunath has given his statement before him as per Ex.P.14. He has stated that, he do not know whether accused No.1 was in the hospital. He has stated that, he do not know what is the mobile number of the complainant Shivanand. He has not telephoned accused infront of him. So his evidence will not help the prosecution case either to show demand or acceptance of illegal gratification by accused Nos.1 & 2.
38. PW.7 is the Manjunath P.S.I of Gandhi Gunj Police station. According to prosecution Shivanand has given complaint stating that the Somashekhar has told that he has to give Rs.300/- to this P.S.I also. But according to Lokayukta police this P.S.I was not at all present and in his evidence he has stated that, on 03- 10-2006 itself he has verified the application for 52 issuance of fire cracker shop license and got typed the requisition of Shivanand in no objection certificate and he signed it. On 03-10-2006 the said Shivanand has not come to the police station and he told his staff to take the signature of Shivanand on his statement i.e. undertaking and sent it to the S.P. office Bidar and inform the complainant in this regard. Then he went for lunch and in the evening he went towards Shivakumar Gumpa and it was 6.00 p.m., he received the information and went to the police station and came to know about Dayanand receiving Rs.500/- from the complainant Shivanand. But he is no way concerned to him. He do not know why the accused No.1 has stopped that no objection certificate. In fact on the same day morning he has signed all summons, records and covering letters. Shivanand has not met him nor he has asked any illegal gratification. All the papers pertaining to the complainant were with accused No.1 Somashekhar as the complainant has not come to the 53 police station to give undertaking till 05-10-2006 they have sent it on 05-10-2006 to the S.P. office, but Somashekhar was not present when there was a trap, accused No.2 was present and he has attested the documents seized by the police. But the Lokayukta police states that they do not know whether the P.S.I was present or not and they have not enquired him. In the cross-examination he has admitted that, one Somanath is the head constable and Somashekhar is the police constable, both of them are writers in the same police station. He has admitted that in the complaint it is mentioned as Somanath and he has not met the Somashekhar accused No.1 after he went to the court in the after noon. He has admitted that, as per station house dairy there is no mention that Dayanand was present in the police station. He has stated that, in the morning they will take the roll call at 8.00 a.m., both of them were present. But in the after-noon they will not take roll call but when they took roll call at 8.00 54 p.m., both accused were not present, it was informed that they have been trapped. So this is again strange answer. Accused No.1 was not at all trapped. He has stated that, himself has given dictation and prepared letter and covering letter about issuing no objection certificate and except obtaining undertaking of complainant all work was attended on 03-10-2006. He has stated that as the complainant has not signed the undertaking so it was not dispatched, if he could have signed it would have been dispatched. He has admitted the entry in the outward register Ex.P.5. He has admitted that, it is in the handwriting of Somsehkhar. He has stated that at the time of trap mahazar he was in the police station only, but none of the panch witnesses have stated about the presence of this P.S.I. Again he states that, after trap he came to the police station. He do not know whether accused No.1 has given requisition on 05-10-2006 stating that he is not feeling well on that day. He did not take any amount 55 from Dayanand, nor Shivanand has informed him about taking of any amount by Somshekhar or asking him to give it to the Dayanand. He has admitted that, it is only because of undertaking of Shivanand his application was lying in the police station, if he had come earlier he could have taken his no objection certificate. He has denied a suggestion that he is deposing falsely. So his evidence will not help in any way nor the prosecution has made him as accused. Even the complainant has never told that accused are demanding him any amount in his name nor he has made any demand.
39. So these are the witnesses for prosecution. In trap cases and also in this type of cases the prosecution has to prove the ingredients of offence under section 7 of Prevention of Corruption Act. The prosecution has to prove that, there was a demand and there was acceptance. Here as per the prosecution case, the complainant is not examined and it is reported 56 that, his where-abouts were not known, where he left is not known. According to the prosecution there are two persons. There is one Somashekhar working in the police station and another is this accused No.1 Somanath working in the police station. In the complaint it is mentioned as Somanth. But the name of the accused No.1 is Somashekhar. The complainant states that, said Somashekhar called him over phone and informed him about pendency of his license application, again the complainant Shivanand called to him on 5-10-2006. Neither phone number or mobile of this Shivanand, nor mobile number of accused No.1 were produced or stated before the court. There is no evidence to show that, there was any mobile number of accused No.1 through which any call has gone to the mobile number of complainant Shivanand. No investigation is done in this regard. So there is nothing to show about demand by mobile phone or any talk with accused No.1 and complainant as per prosecution case. 57 The demand was only through mobile phone and that mobile phones were not produced, nor the persons in whose presence the demand at the time of trap of Dayanand and even the shadow witness never stated that this accused No.2 has demanded any amount. Complainant Shivanand was not examined. The P.S.I has also denied demanding any amount by the accused. So absolutely there is no evidence about any demand. There is also no evidence to show that there was any such conspiracy between the P.S.I and the accused No.1 or accused No.2 Dayanand about taking money. No such charges are made. Even in F.I.R only accused No.1 is shown as accused. Then how they gave amount to accused No.2 is not forthcoming. Because accused No.2 is not an accused in the said crime number when F.IR was submitted to Special Judge. This creates doubt about investigation done by Investigating Officer thereby makes the prosecution case doubtful.
58
40. It is also evident that already no objection certificate of complainant Shivanand was prepared and signed by P.S.I and it was kept in dispatch register. Then why he has lodged the complaint is not forthcoming. No work of this Shivanand was pending with either accused No.1 or accused No.2. The Ex.P.4 explanation of accused No.2 Dayanand indicates that, he has stated that, on 05-10-2006 when he was sitting in computer room, two boys came and asked about their application and he told them that, it is there only and they can sign and take it. So he is no way concerned with the money. No tape recorder which is stated to have been given to shadow witness and complainant to record the conversation at the time of giving or demanding money is not produced. In fact one of the witness states that, the conversation cannot be audible. Even this shadow witness never stated that, accused No.2 Dayanand demanded any money, nor he has stated that where this Dayanand has kept that amount. 59 Therefore, recovery of that amount itself is doubtful. Even the demand is not proved. The P.S.I has also stated that, none of the work of complainant Shivanand was pending in their office. Ex.P.17(a) statement of accused No.1 indicates that, it is Kirtiraj was involved in some cases and whenever police have acted on them they use to misbehave and threatened them that they will teach a lesson. So why this Kirtiraj was made as a witness is not forthcoming. PW.3 Kirtiraj has stated that, his license was given by the same police and they have not demanded any amount, then why they demanded money from this complainant is not forthcoming. Absolutely there is no iota of evidence to show that there was any demand made by accused No.1 and there is no evidence to show that there was any agreement or conspiracy in between accused Nos.1 & 2 or P.S.I to demand any illegal gratification or money. 60
41. The learned Sessions Judge has acquitted accused No.2 on the same evidence but very strangely convicted accused No.1. When absolutely there is no evidence of any demand or illegal gratification is proved either directly or indirectly as the prosecution has miserably failed to prove any demand was made on 03- 10-2006 and on 05-10-2006, when the complaint was lodged no work was pending with them. Accused No.2 was not made as accused in F.I.R. No case was registered against accused No.2 or against P.S.I. Then why the money was given to accused No.2 is not forthcoming. There is no compact disk about recording conversation or mobile numbers either of the complainant or accused No.1 is produced. When no official work is pending with accused No.1 there is no question of he showing favour or omitting to show favour. So ingredients of offence under Section 7 of Prevention of Corruption Act are not proved. There is no charge of conspiracy against accused No.1, accused 61 No.2 or P.S.I. No such case is registered, nor any such case is filed or proved. There is no evidence to show that, accused No.1 informed the complainant to give the amount in the hand of accused No.2.
42. The leaned counsel for appellant in Criminal Appeal No.3512/2012 has relied on decision of Hon'ble Supreme Court of India in case of (N.Sunkanna Vs State of Andhra Pradesh) reported in Criminal Appeal No.1355 of 2015 (Arising out of SLP (Crl.) No.2958 of 2011) wherein the Hon'ble Supreme Court of India has held as under:
6. The prosecution examined the other fair price shop dealers in Kurnool as PWs 3, 4 and 6 to prove that the accused was receiving monthly mamools from them. PWs 4 and 6 did not state so and they were declared hostile. PW-3 though in the examination-in-chief stated so, in the cross-
examination turned round and stated that the accused never asked any monthly mamool and he did not pay Rs.50/- at any time. The prosecution has not examined any other witness present at the time when the money was demanded by the accused and also when the money was allegedly 62 handed-over to the accused by the complainant. The complainant himself had disowned his complaint and has turned hostile and there is no other evidence to prove that the accused had made any demand. In short there is no proof of the demand allegedly made by the accused. The only other material available is the recovery of the tainted currency notes from the possession of the accused. The possession is also admitted by the accused. It is settled law that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7, since demand of illegal gratification is sine-qua-non to constitute the said offence. The above also will be conclusive insofar as the offence under Section 13(1)(d) is concerned as in the absence of any proof of demand for illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. It is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Unless there is proof of demand of illegal gratification proof of acceptance will not follow. Reference may be made to the two decisions of three-Judge Bench of this Court in B. Jayaraj vs. State of Andhra Pradesh [(2014) 13 SCC 55] and P. Satyanarayna Murthy vs. The District Inspector of Police 63 and another [(2015 (9) SCALE 724]. In the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent. The judgments of the Courts below are, therefore, liable to be set aside. For the aforesaid reasons the appeal is allowed and the conviction of the appellant under Section 7 and under Section 13(1)(d) read with Section 13(2) of the Act and the sentences imposed are set aside and he is acquitted of the charges. The bail bond, if any, furnished by the appellant be released.
43. Further the leaned counsel for appellant in Criminal Appeal No.3512/2012 has relied on decision of Hon'ble Supreme Court of India in case (Dashrath Singh Chauhan Vs Central Bureau of Investigation) reported in Criminal Appeal No.1276 of 2010 dated: 09-10-2018 wherein the Hon'ble Supreme Court of India has held as under:
1) to 7) ....
8) By judgment dated 31.05.2001, the Trial Court (Special Judge) held that the prosecution failed to prove the case of any conspiracy between the appellant (A-1) and co-accused Rajinder Kumar (A-2) in relation to the offences in question and, therefore, the charge of conspiracy against them under Section 120-B IPC was 64 held as not made out. Both the accused were, therefore, acquitted of the charge of conspiracy under Section 120-B IPC.
9) The finding on this issue recorded by the Trial Court in Paras 14 and 16 reads as under:- "14. In the case before us, there is not even slightest evidence about the existence of a criminal conspiracy between A-1 and A-2. Once this had been established, only then we could have read the statement of both the accused, not only against each one of them, but against the other of them and also for proving the existence of criminal conspiracy as such.
16. There is no such situation before us. There are certain statements only. In any case, once conspiracy is not established, even the statement, made by A-1 against A-2 are vice-versa, cannot be read in evidence."
10) The Trial Court then disbelieved the evidence of the Investigating Officer-Mr. Kaul (PW-6) on the ground that he himself was of a doubtful integrity because the High Court, in one case, had directed registration of a bribe case against him and, therefore, his evidence in this case cannot be relied on (See Para 17 of the judgment of the Trial Court) but the Trial Court believed the evidence of shadow witness (PW-2 -Mahinder Lal) for holding the appellant guilty of the offences punishable under the PC Act.
11) to 17) .....
18) In the second place, the learned counsel contended that the appellant's conviction is based only on the evidence of a shadow witness (PW-2) whereas the evidence of the Investigation Officer, Mr. Kaul 65 (PW-6) was not believed due to his doubtful integrity.
19) It was his submission that the basic requirements in such a case, namely, proving of "demand of bribe and its acceptance by the appellant" was not proved much less beyond reasonable doubt. It was urged that at best what the prosecution was able to prove was the "demand" of bribe made by the appellant to the Complainant but not "its acceptance" because the evidence, in clear terms, established coupled with the findings of the Courts below that the appellant did not accept the money but it was accepted and recovered from the possession of Rajinder Kumar(A-1).
20) It was, therefore, urged that since the acceptance of bribe money was not proved qua the appellant and nor it was proved that Rajinder Kumar accepted it for and on behalf of the appellant, the appellant's conviction under any of the provisions of the PC Act much less under Sections 7, 13(2) read with Section 13(1)(d) was not legally sustainable and hence it deserves to be set aside.
21) .....
22) .......
23) It is not in dispute that the prosecution had framed three charges against the appellant and co-accused-Rajinder Kumar and two out of the three charges, namely, Charge Nos. 1 and 2 were based on the conspiracy. It is also not in dispute that the Trial Court, on appreciation of the evidence, held that the prosecution failed to prove the charge of conspiracy under Section 120-B IPC against the appellant and Rajinder Kumar (A-1) and accordingly acquitted both of them from the said charge. It is also not in dispute that so far as co-accused- Rajinder Kumar (A-1) is concerned, he was acquitted from all the charges framed under the PC Act. It is also not in dispute that the State neither challenged 66 the clean acquittal of Rajinder Kumar and nor challenged the part acquittal of the appellant in the High Court by filing any appeal. This, therefore, attained finality.
24) .......
25) In our considered opinion, when the charge against both th accused in relation to conspiracy was not held proved and both the accused were acquitted from the said charge which, in turn, resulted in clean acquittal of Rajinder Kumar from all the charges under the PC Act, a fortiori, the appellant too was entitled for his clean acquittal from the charges under the PC Act.
26) It is not the case of the prosecution that the appellant had conspired with another person and even though the identity of the other person was not established, yet the appellant held guilty for the offence under Section 120-B IPC. On the contrary, we find that the case of the prosecution was that the appellant conspired with one Rajinder Kumar to accept the sum of Rs.4000/- as illegal gratification from Arun Kumar-the complainant.
27) Once Rajinder Kumar so also the appellant stood acquitted in respect of the charge of conspiracy and further Rajinder Kumar- co-accused was also acquitted from the charges under the PC Act, the charges against the appellant must also necessarily fall on the ground. (See Para 15 Bhagat Ram vs. State of Rajasthan, (1972) 2 SCC
466).
28) ........
29) It is for the reason that in order to prove a case against the appellant, it was necessary for the prosecution to prove the twin requirement of "demand and the acceptance of the bribe amount by the appellant". As mentioned above, it was the case of the prosecution in the charge that the appellant did not accept the bribe money but 67 the money was accepted and recovered from the possession of Rajinder Kumar-co-accused (A-1).
30) .......
31) ........
32) Since in order to attract the rigors of Sections 7, 13(2) read 13(1)(d) of PC Act, the prosecution was under a legal obligation to prove the twin requirements of "demand and acceptance of bribe money by the accused", the proving of one alone but not the other was not sufficient. The appellant is, therefore, entitled for acquittal from the charges framed against him under the PC Act too. (See para 8 of M.K. Harshan vs. State of Kerala, (1996) 11 SCC 720)
44. Further the leaned counsel for appellant in Criminal Appeal No.3512/2012 has relied on decision of Hon'ble Supreme Court of India in case (State of Maharashtra Vs Dnyaneshwar Laxman Rao Wankhede) 2009) ACR 956 reported in Criminal Appeal No.1350 of 2009 (Arising out of SLP (Crl.No.211 of 2006) wherein the Hon'ble Supreme Court of India has held as under:
A...
B....
C. Prevention of Corruption Act, 1988 - Sections 7(1) and 20- Prosecution for demanding and accepting illegal gratification - Demand of illegal gratification is 68 a sine qua non for constitution of an offence under provisions of the Act - For arriving at conclusion as to whether all ingredients of an offence, demand, acceptance and recovery of amount of illegal gratification have been satisfied or not Court must take into consideration the facts and circumstances brought on record in their entirety- Presumptive evidence, as is laid down in Section 20 must also be taken into consideration - But, then in respect thereof, standard of burden of proof on accused vis- à-vis standard of burden of proof on prosecution would differ - Before, accused is called upon to explain as to how amount in question was found in his possession, foundational facts must be established by prosecution - Even while invoking provisions of section 20, court is required to consider the explanation offered by accused, only on touchstone of preponderance of probability and not on touchstone of proof beyond all reasonable doubts.
45. The Hon'ble Supreme Court of India in case of Bhagat Ram State of Rajasthan V/s State of Rajasthan Ram Swaroop (1972) 2 Supreme Court Cases 466 in Criminal Appeal Nos.36 of 1969 and 202 of 1970 wherein the Hon'ble Supreme Court of India has held as under:
Penal Code 1860 ( 45 of 1860) - Section 120 B - Scope - Two persons charged - One acquitted - whether basis of charge under section disappears :69
Supreme Court - Practice - Concurrent findings of Trial Court and High Court - Supreme Court - Not to assess the evidence afresh.
Bhagat Ram, a police Inspector of Ram Swaroop were tried by the Special Judge under Section 120-B, I.P.C for conspiring to extort bribe. Charges were also framed against Bhagat Ram for offences under sections 161, 218, 347 and 389 IPC, as also section 5(1) (a) read with Section 5(2) of Prevention of Corruption Act. Both the accused persons were acquitted of all the charges by the Special Judge. The Division Bench of the High Court dismissed the State's appeal against acquittal of Ram Swaroop. The appeal of State against Bhagat Ram in so far as it related to his acquittal for offences under sections 347, 218 389 and 120-B IPC was also dismissed. There was, however, difference of opinion between the two Judges of the Division Bench on the point as to whether the acquittal of Bhagat Ram for offences under sections 161, IPC and 5(1) (a) of the Prevention of Corruption Act should be maintained. The case was then placed before a Single Judge under Section 429 Cr.P.C. The Single Judge held that both the accused persons were guilty of offence under section 120-A punishable under section 120-B IPC. IN view of the decision of Division Bench, Ram Swaroop's acquittal was not set aside. But acquittal of Bhagat Ram for offences under sections 120-B, 218 and 347 IPC was set aside by him. Bhagat Ram having been found guilty for offences under sections 120-B, 161, 218 and 347 IPC filed an appeal before Supreme Court for his conviction and sentence given by the Single Judge. The State also filed an appeal against the acquittal of Ram Swaroop.
Held:
(i) It is not permissible for the third Judge to reopen the matter and pass a conviction order for offences under sections 347, 389 and 120-B IPC. The matter referred to the 70 third Judge was only for offences under section 161 IPC and section 5(1) (a) of Prevention of Corruption Act, and the third Judge could go only into that aspect of the matter and comes to conclusion.
Where an express order has been made by the Division Bench upholding the acquittal for offences under sections 120-B, 218, 347 and 389, IPC and the State appeal to that extent has been dismissed, the decision of the Division Bench was binding on the third Judge and it was not within his competence to reopen the matter and pass a conviction order.
The order of acquittal passed by the Division Bench, unless set aside in appeal to the Supreme Court was binding and conclusive in all subsequent proceedings between the parties.
(ii) The principle of res judicata is also applicable to criminal proceedings and it is not permissible in the subsequent stage of the same proceedings to convict a person for an offence in respect of which an order for his acquittal has already been recorded. The plea of autrefois acquit as a bar to prosecution embodied in section 403 of the Code of Criminal Procedure is based upon the same wholesome principle (para 12 13 and 14 Samba Sivam V Public Prosecutor, Federation of Malaya 1956, AC 458 approved. Pritam Singh V State of Punjab AIR 1956 SC 415 relied on.
(iii) The charge under section 120-B IPC relates to conspiracy of more than one person involved in the charge, Where only two persons are charged and one of them has been acquitted under the section, the basis 71 of the charge under section 120-B IPC, disappeared against the other person. It was not the case of the prosecution, that Bhagat Ram conspired with another person and even though the identity of the other person has not been established -
(a) Bhagat Ram would still be guilty for the offence under section 120-B IPC
(b) Once Ram Swaroop was acquitted in respect of the charge relating to conspiracy must necessarily fall to the ground.
(iv) Where there are concurrent findings of the Trial Court and the High Court and nothing has been brought to the notice of the Supreme Court to justify interference, no fresh appraisement of the evidence record would be under taken by the Supreme Court. Appeal allowed in Criminal Appeal No.36 of 1969 and dismissed in Criminal Appeal No.202 of 1970.
46. Further the Hon'ble Supreme Court of India in case of V. Venkata Subbarao Vs State, represented by Inspector of Police, A.P - AIR 2007 SC 489 in Criminal Appeal No.970 of 2000 dated: 12-12-2006 wherein the Hon'ble Supreme Court of India has considered the presumption under section 20 of Prevention of Corruption Act and held that in the absence of proof of demand the question of raising presumption under 72 section 20 of Prevention of Corruption Act would not arise. In paragaph No.12 it is held as under: -
12. Submission of learned counsel for the state that presumption has rightly been raised against the appellant, cannot be accepted as, inter alia, the demand itself had not been proved. In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved. It reads as under:
20. Presumption where public servant accepts gratification other than legal remuneration - (1) Where, in any trial of an offence punishable under section 7 or section 11 or Clause (a) or Clause (b) or Sub section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.73
47. Further the Hon'ble Supreme Court in case of M.R. Purushotham Vs State of Karnataka, represented by reported in 2014(6) Kar. L.J 32 (SC) in Criminal Appeal No.1578 of 2011 dated: 24-09-2014 wherein the Hon'ble Supreme Court of India has held that, mere possession and recovery of currency notes from accused without proof of demand will not bring home offence under section 13(1) (d) of Act.
48. The learned Sessions Judge has wrongly relied upon Section 33 of the Evidence Act and convicted accused No.1 and on the same evidence acquitted accused No.2.
49. The learned Special/Sessions Judge has referred section 33 of the Evidence Act, which reads as under:
33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated: -Evening given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of 74 the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found , or is incapable of giving evidence, or is kept out of the way by the adverse party, of if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable.
Provided -
That the proceeding was between the same parties or their representatives in interest;
That the adverse party in the first proceeding had the right and opportunity to cross-examine; That the questions in issue were substantially the same in the first as in the second proceeding. Explanation- A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section. On perusing section 33 of the Evidence Act, it is evident that, it applies to the statement given at judicial proceeding and the person should have authority to record the evidence and the other side had the right and opportunity to cross-examine that witness. Here in this case, where-about of the complainant is not known, or not traced, nor there is any statement received in any judicial record or proceedings. So such Ex.P.12(a) complaint does not come under the category of statement under section 33 of the Evidence Act. Even 75 the Investigating Officer has not stated what efforts they have made to search complainant Shivanand. No witnesses were examined on behalf of prosecution to show that they have searched for this complainant and he has no property and the proclamation was executed. No such witnesses on behalf of prosecution were examined to prove the proclamation.
50. In this regard it is necessary to refer the decision of Hon'ble Supreme Court in case of V.M.Mathew Vs V.S Sharma and others (1995) 6 Supreme Court Cases 122 in Civil Appeal No.7835 of 1995 dated:
29-08-1995 wherein the Hon'ble Supreme Court of India has held as under:
Evidence Act, 1872 - S. 33 second proviso - Reliance on previous testimony of witness now dead - Nature and applicability of the second proviso to S.33-It is an exception to the main part - Witness produced by a party in the previous proceeding should have been examined and only by that party but should also have been cross- examined by the adverse party against whom the evidence had been given - Only then statement of the 76 witness would be admissible in the subsequent proceeding - 'Adverse party' - Meaning - Person calling a witness not an adverse party - Second proviso protects rights and interest of the party against whom the witness is produced in previous proceeding - If that party had no right and opportunity to cross-examine the witness in the previous proceeding, such as in ex parte proceeding, the evidence of such witness cannot be used in the subsequent proceeding.
51. The learned counsel for the accused No.1/appellant in Criminal Appeal No.3512/2012 argued that, fictitious person was created as complainant at the instance of the persons who are on inimical terms with police this false complaint came to be filed and it came to be registered. So in the absence of legally admissible evidence to show that this complainant was not traced and could not be traced despite due diligence his where abouts were not known, the complaint Ex.P.12(a) cannot be acted upon. F.I.R is not a substantial evidence. Simply mentioning in the note of the summons and warrant that complainant is 77 not found will not help the prosecution to show that the said complainant was not available for production before court. Section 33 of the Evidence Act has no application to this type of complaint. The learned Special/Sessions Judge has totally misconstrued the provisions of law and misdirected about the evidentiary value of Section 33 of the Evidence Act, which has resulted in miscarriage of justice. Therefore, the Judgement passed by the trial court is illegal, perverse and not based on the sound principles regarding appreciation of evidence in Criminal Cases involved in Prevention of Corruption Act. The said Judgment is liable to be set aside.
52. If the entire evidence of the prosecution is considered, in the light of the principles stated by the Hon'ble Supreme Court of India in the decisions which are referred above then it is evident that there is no proof of demand or acceptance of any illegal gratification 78 as described under section 7 of Prevention of Corruption Act. In fact no charge was framed under section 13(1)
(d) of Prevention Corruption Act against accused No.1. But inspite of that, the learned Sessions Judge though acquitted accused No.2 on the same evidence, mis directed and convicted accused No.1 on the same evidence which is illegal, perverse and needs interference by this court. It is settled principle of law in criminal cases the prosecution has to prove its case beyond all reasonable doubt as alleged. In cases under Prevention of Corruption Act the essential ingredients of "demand" and acceptance is to be proved. Then only presumption can arise. Here neither there is evidence to show that either accused No.1 demanded money nor he accepted that money. Drawing inference that accused No.2 received money on behalf of accused No.1 has not iota of evidence. Such presumption is not based on any legally admissible evidence. There is lot of difference between may be true and must be true. On 79 appreciation of the entire evidence of prosecution it clearly indicates that, the prosecution has failed to prove the guilt of accused No.1 beyond all reasonable doubt. As the evidence of prosecution witnesses creates doubt about the prosecution case the benefit of doubt should go to accused No.1. If there are two views possible from evidence of prosecution witnesses then the court has to accept the view favourable to the accused. Therefore, accused No.1 in Criminal Appeal No.3512/2012 is entitled for benefit of doubt. Hence the Judgment of conviction passed by the learned Sessions Judge in Criminal Appeal No.3512/2012 against accused No.1, needs interference by this court and the same is liable to be set aside and accused No.1 to be acquitted.
53. The learned Sessions Judge has already acquitted accused No.2. In view of the discussion made above, no grounds are made out to reverse the finding of 80 acquittal against accused No.2/respondent in Criminal Appeal No.3563/2012. The said appeal deserves to be dismissed.
Therefore, I answer Point Nos.1 & 2 in the Negative and Point Nos.3 & 4 in the affirmative. Accordingly I pass the following:
ORDER Criminal Appeal No.3512/2012 is allowed.
The Judgment of conviction and sentence passed by Special Judge/Prl. Sessions Judge Bidar in Special Case (P.C Act) No.5 of 2007 dated: 30-11-2011 is hereby set aside. The accused No.1/appellant in Criminal Appeal No.3512/2012 by name Somnath @ Somashekhar S/o Mahadevappa Gandge is acquitted for the offences punishable under section 7, and 13(1)
(d) r/w section 13(2) of Prevention of Corruption Act 1988.81
The bail bond of the appellant/accused No.1 and the bond executed by the surety, if any, is hereby cancelled.
If the fine amount is already deposited, the same is ordered to be refunded to the appellant/accused No.1.
Criminal Appeal No.3563/2012 filed by the State/Lokayukta is dismissed.
The Judgment of acquittal passed by Special Judge/Prl. Sessions Judge Bidar in Special Case (P.C Act) No.5 of 2007 dated: 30-11-2011 against accused No.2 Dayanand S/o Lingappa is hereby affirmed.
Send back the records of the trial court forthwith.
Sd/-
JUDGE MNS.