Karnataka High Court
V Rajagopalaiah vs State Of Karnataka on 23 February, 2015
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2015
BEFORE
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL NO.133/2010
BETWEEN:
1. V Rajagopalaiah
S/o Late R Venkataramanaiah
Aged 52 years
No.848, Chowdeswari Road
Devanga Shettarpet
Kollegal Taluk
Chamarajanagar District.
2. H Ananthegowda
S/o M Honnegowda
No.589, Madigahalli Village
Bannur Hobli
T Narasipura Taluk
Mysore District. ...APPELLANTS
(By Sri. A H Bhagavan, Adv.)
AND:
State of Karnataka
By Lokayuktha Police
Mysore. .. RESPONDENT
(By Sri. Bahubali A Danawade, Spl. P P)
This criminal appeal is filed under Section 374(2)
CR.P.C praying to set aside the Judgment of conviction
and sentence passed by the Spl. Judge and III-Addl.
District and Sessions Judge, Mysore in Spl. Case
2
No.152/2001 dated 28.1.2010 convicting the
appellant/accused No.1 for the offence Punishable Under
Section 7, 13(1)(d) read with Section 13(2) of the
Prevention of the Corruption Act, 1988 and the
appellant/accused No.2 for the offence punishable under
Section 8 of the Prevention of the Corruption Act, 1988
and etc.
This appeal having been heard and reserved for
orders, coming on for pronouncement of judgment, this
day, the Court delivered the following:
JUDGMENT
This appeal is preferred by appellants/accused Nos.1 and 2 being aggrieved by the judgment and order dated 28.01.2010 passed by the Spl.Judge and III Addl. District and Sessions Judge Mysore in Spl. Case No.152/2001.
2. The appellants challenged legality and correctness of the judgment and order passed by the Trial Court on the grounds that it is opposed to law, facts and probabilities in the case. The Court below has wrongly relied on the evidence, which is unreliable and inadmissible. The Court below ought to have held that PW-1/Complainant is highly 3 interested and partisan witness. In the absence of testimony of shadow witness, who could have furnished corroboration, the conviction and sentence is bad in law. The Trial Court erred in holding that testimony of PW-1 has been corroborated by the evidence of PWs-2 and 3, who are not the independent witnesses and who have not spoken about demand or acceptance of bribe. The testimony of PW-1 with regard to alleged demand by accused No.1 is highly unreliable and unnatural. It is significant to note that, by the time alleged demand was made, registration of document has been done and another document of some other person has also been registered. In that view of the matter, it is impossible and unnatural that accused No.1 has made the demand after doing the work. It is equally unnatural that appellant No.1 would either enhance the quantum of the bribe amount or would direct the payment of bribe amount to accused No.2 infront of 4 the public. No amount was found in the person of accused No.1 or any amount was recovered from accused No.1. The Court ought to have held that non-examination of Madamma, who is the vendor, is fatal to prosecution case. The judgment of conviction is bad in law, as there is no valid sanction and the person, who issued the sanction has not been examined. The appellant/accused No.2 is not a public servant and it is not the prosecution case that money was collected by him to induce the public servant for an official act. The sentence imposed by the Trial Court is unduly severe. Hence, sought to allow the appeal and to set-aside the judgment and order under appeal.
3. Heard the arguments of the learned counsel appearing for the appellants/accused and also the learned Spl.PP for the respondent 5
4. Learned counsel for the appellants has submitted that the complaint is against Gopalaiah and name of accused No.1 is Rajagopalaiah. He has also submitted that accused Nos.1 and 2 have not given any explanation. Cw-3/Shadow witness has not been examined as he is dead. Looking to the evidence of PW-1, as there are number of infirmities, he not a reliable witness and the evidence of PW-1 is not corroborated by the independent witnesses. It is further submitted that Ex.P-12 Sanction Order, is not proved, as the person issued the sanction order was not examined before the Court. It is submitted that conduct of PW-1/Complainant is most unnatural to say that in the presence of everybody accused No.1 demanded bribe amount of Rs.1000/-, there is no corroborative evidence regarding demand and acceptance of bribe amount. PW-1 has not stated that he informed the scribe Venkatesh and said Venkatesh has not been examined. It is the 6 submission of the learned counsel that at least one vendor could have been examined.
5. Learned counsel for the appellants has further submitted that it is not made clear by the prosecution that whether the amount seized is Rs.1000/- or Rs.2000/- and there is no consistency in the evidence of PWs-1 to 3. It is submitted that the charge framed mislead the accused and there is no acceptable evidence that accused No.2 induced accused No.1 to commit the offence. Hence, submitted that prosecution has not proved its case beyond all reasonable doubt and the benefit of doubt may be given to the accused persons and they be acquitted.
6. In support of his arguments learned counsel has relied upon the following decisions produced along with the memo dated 20.01.2015: 7
1. AIR 1979 SC 1408 (Suraj Mal Vs. The State (Delhi Administration))
2. 2000 SCC (Cri) 21 (Meena (Smt) W/o Malwant Hemke Vs. State of Maharashtra)
3. AIR 1992 SC 644 (Ayyasami Vs. State of Tamil Nadu)
4. 1995 CRL J 3978 ( M K Harshan Vs. State of Kerala)
5. 2006 (3) KCCR (Kar) 1445 (State of Karnataka Vs. K T Hanumanthaiah)
6. 2006 (3) KCCR (Kar) 1422 (Manjunath Basappa Basavamurthy Vs. State of Karnataka)
7. 2004 (2) KCCR (Kar) 1233 (D Rajendran Vs. State by Police Inspector, B.O.I.)
8. 2008 (2) KCCR (Kar) 985 (State by Lokayuktha Police, Mandya Vs. K M Gangadhar) 8
9. 1980 SCC (Cri) 121 (Panalal Damodar Rathi Vs. State of Maharashtra)
7. Per contra, the learned Spl.PP has submitted that initially there was demand for Rs.1000/- and at the time of registration of the document accused demanded Rs.2000/-. He has also submitted that immediately after the trap, when the accused were asked to offer their explanation about the demand and acceptance of the bribe amount, they have not given any explanation. The evidence of PWs-1 and 2 satisfactorily establishes the demand and acceptance of the bribe amount. Hence, statutory presumption arises under Section 20(1) of Prevention of Corruption Act and the said presumption has not at all been rebutted by the accused. The Trial Court has taken into consideration the entire materials placed on record i.e., both oral and documentary evidence and as the prosecution proved its case to the satisfaction of the Court, the appellants/accused 9 were convicted. Hence, there is no merit in the appeal and same may be dismissed.
8. I have perused the oral evidence of P.Ws.1 to 3, documents Exs.P1 to P12 and Ex.D1, M.O. at Sl.No.1 to 11, the judgment and order passed by the trial Court, the grounds urged in the appeal memorandum and also the decisions relied upon by learned counsel appearing for the appellants.
9. P.W.1 who is the complainant in this case in his evidence has deposed that on 7.4.2000 he went to Lokayuktha office at Mysore and lodged the complaint. He has alleged that he had purchase talks in respect of 1 acre 1 gunta of land in Sy.No.105 with one Madamma. For execution of sale deed by Madamma in his favour, accused No.1 demanded Rs.1,000/- bribe amount on 6.4.2000. So he went to Lokayuktha office at Mysore on 7.4.2000 and lodged the complaint at 12.00 noon as per Ex.P1 and 10 Ex.P1(a) is his signature. In the examination-in-chief he has deposed in detail about he producing Rs.1,000/- before the Dy.S.P. and in the presence of witnesses the phenolphthalein powder was smeared to the currency notes i.e., to one currency note of Rs.500/- denomination and 5 currency notes of Rs.100/- denomination. The number of notes were taken down and he has also mentioned in the examination-in-chief about the lokayuktha police drawing the entrustment mahazar. Then Dy.S.P. told that witness Syed Muneer Ahmed has to accompany the complainant to the Sub-Registrar's office and another witness Srinivasgowda has to be with the Dy.S.P. and they left the Lokayuktha office at 1.50 p.m. and reached T.Narasipura Vidyodaya High School circle at 2.30 p.m. It was informed to the complainant and Syed Muneer Ahmed to go to the office of accused and in case the accused demanded and accepted the bribe amount, they have to give pre- 11 arranged signal. Accordingly, himself and Syed Muneer Ahmed went to the office of Sub-Registrar at 2.45 p.m. Then he handed over the sale deed which was with him and asked accused no.1 to register the same. Then accused No.1 seeing the sale deed said that the land measures 1 acre 1 gunta and in a hurry he told lesser bribe amount and that complainant has to pay Rs.2,000/- bribe amount for which complainant replied that accused no.1 on the previous day told only Rs.1,000/- and as such, he has brought only that much amount and he does not have more money with him, for which, accused told him that he will mention it as undervalue and thereafter he has to pay Rs.5,000-6,000 more. Complainant said that he is prepared to pay Rs.1,500/- but accused No.1 did not agree. Then he told he will give Rs.2,000/- and asked to register the sale deed. Apart from the tainted currency notes of Rs.1,000/-, while going to Lokayuktha office he had 12 also carried Rs.2,000/- extra money. Hence, he took Rs.1,000/- tainted currency notes and also another Rs.1,000/- and put together offered Rs.2,000/- to accused No.1. At that time, accused No.1 showed towards accused No.2 who was sitting in the corner and asked the complainant to give the money to accused No.2. Then accused No.2 received Rs.2,000/- from his right hand and counted the money with his left hand and told accused No.1 that amount is correct, for which, accused No.1 told accused No.2 to keep the amount and that he will collect later. Thereafter accused no.1 registered his deed. The complainant has deposed that when accused No.2 told that the amount of Rs.2,000/- is correct to accused No.1, then accused No.1 asked the complainant to wait for 5 minutes outside, thereafter complainant came out of the office and gave pre- arranged signal. During this time, witness Syed Muneer Ahmed was also with him. After giving the 13 signal immediately Dy.S.P. and his staff came inside the office of accused No.1. He introduced himself to accused No.1. When Dy.S.P. asked as to who has received the bribe amount, complainant told that as accused No.1 instructed him to pay the money into the hands of accused No.2 who was sitting in the corner, he paid the amount to accused No.2. Then Dy.S.P. introduced himself to accused No.2 then they caught hold the hands of accused nos.1 and 2. When accused No.1 was asked to dip his hands in the water, the colour of the water did not change. The said water was secured in the bottle and sealed. When the right handwash of the accused No.2 was taken, it turned into pink colour and it was secured in a bottle and sealed. Similarly in another glass of water his left hand fingers were washed. Same was also turned into pink colour which was also secured in a bottle and sealed. Then the Dy.S.P. asked accused no.2 as to where he has kept the amount 14 and accused No.2 told that it is in the right side pant pocket. Then through witness Srinivasgowda, the amount was taken out from the pant pocket of accused no.2 and when the number of notes were compared with the number of notes which were taken down by Syed Muneer Ahmed they were tallied in respect of Rs.1,000/-. Then the amount of Rs.2,000/- was put into the cover and sealed. Alternate pant was arranged to accused No.2. When the inner portion of right side pant pocket was washed in a glass of water it turned to pink colour. Same was also secured in a bottle and was sealed. The Dy.S.P. has seized the attendance register, register containing the registered deeds, receipts, and other documents. Then a detailed mahazar was drawn as per Ex.P2. He has also deposed that before they left to T.Narasipura, in the Lokayuktha office Ex.P3 was drawn and his signature is as per Ex.P3(a). In the cross-examination he has deposed 15 that when he has showed the sale deed to the sub- registrar, Venkatesh, Deed Writer has not at all accompanied him to the Registrar's office. The Sub- Registrar has told him that apart from registration fee, he has to pay Rs.1,000/- bribe amount and on that day he has not informed about the same to deed writer Venkatesh. Madamma, her son and her daughter-in-law have executed the sale deed. But on that day they have not come inside the Sub- Registrar's office. He purchased the stamps from the stamp vendor for the purpose of sale deed on 6.4.2000. When Ex.P1 was showed to him he has deposed that the village name of Madamma is mentioned as Bommenahalli and not as Bommanayakanahalli. It was suggested to P.W.1 that accused No.1 has not at all demanded and accepted the bribe amount and also not asked the complainant to pay the amount into the hands of accused o.2. The said suggestions were denied. He 16 has also deposed that he does not know that Syed Muneer Ahmed has expired. He has not stated before the Dy.S.P. that accused No.1 received the amount from him and then he gave it to accused No.2. He has also deposed that before the Lokayuktha police came to the Sub-Registrar's office receipt for Rs.700/- was already passed and his and vendors thumb impressions were obtained to the register. He denied the suggestion that at the instance of Deed Writer Venkatesh he has filed false complaint against the Sub-Registrar and he denied the further suggestion that as Venkatesh and Accused No.2 were not in good terms, at the instance of said Venkatesh, he has implicated accused No.2 also in the said case. He has also denied the suggestion that himself, Lokayuktha Dy.S.P., Syed Muneer Ahmed and Srinivasgowda went inside the Sub-registrar's office and thrusted the amount into the hands of accused 17 No.2 forcibly and then the handwash of accused No.2 was taken.
10. P.W.2 one Srinivasagowda who is another witness in the case has deposed in his evidence in examination-in-chief in consonance with the evidence of the complainant and he has also deposed about the complainant's presence in the Lokayuktha office at Mysore and complainant producing the bribe amount before Lokayuktha police. When himself and another witness enquired with the complainant about the complaint averments, complainant has said about lodging such complaint. He has also stated about smearing of phenolphthalein powder to the currency notes produced by complainant, taking down the numbers of currency notes on the paper by Syed Muneer Ahmed and also about comparing the numbers mentioned in paper and on the currency notes and that they both tallied. He has also stated that as per the instruction of Dy.S.P., he has kept the 18 currency notes into the pocket of the complainant and also deposed about the chemical test conducted in the Lokayuktha office and drawing the entrustment mahazar as per Ex.P3 and thereafter they left the Lokayuktha office at about 1.30 or 1.45 p.m. and went to T.Narasipura at 2.30 p.m. Himself and Dy.S.P. were waiting at a little distance from the Sub-Registrar's office. Complainant and Syed Muneer Ahmed were asked to go Sub-registrar's office and if accused received the bribe amount they should come out and give pre-arranged signal. Within half an hour complainant came outside the office and gave pre-arranged signal. Then himself and Dy.S.P. went inside the Sub-Registrar's office. Complainant has shown accused No.1 as Sub-Registrar. Dy.S.P. introduced himself to accused No.1 and when asked his name accused No.1 told his name as Rajagopalaiah. When complainant showed one person who was sitting in the corner of the sub- 19 registrar's office and told that he has given the bribe amount into the hands of said person as instructed by accused No.1, then Dy.S.P. asked the said person as to what is his name, he told his name as Ananthegowda, Deed Writer. Staff of Dy.S.P. caught hold the hands of accused nos.1 and 2 and then the right handwash of accused No.1 was taken in the solution and there was no change of colour and same was secured into the bottle and sealed and similarly when left handwash of accused no.1 was taken in the solution, there was no change in the colour of the solution. The same was secured into the bottle and sealed. The bottles are M.Os.4 and 5. In the similar way, right handwash of accused No.2 was taken in the solution and it turned into pink colour. Same was secured and sealed and it is M.O.6. Then the left handwash of accused No.2 was also taken in the solution. It has also turned into pink colour. It was also secured in a bottle and sealed as per M.O.7 and 20 the witness identified accused No.2 before the Court. The amount found in the pant pocket of accused No.2 was Rs.2,000/- and Krishnaswamy told that he brought additional amount with him and when Sub- Registrar told that the work will not be done for Rs.1,000/- and asked to pay Rs.2,000/-, he gave additional amount of Rs.1,000/- which was with him and totally, he gave Rs.2,000/- to accused.
11. In respect of the said proceedings trap mahazar was drawn as per Ex.P2 and his signature is Ex.P2(b). After seeing Ex.P1, witness identified that it is the complaint lodged by Krishnaswamy. When he was asked after showing Ex.P1 in respect of which survey number registration the complainant went to the sub-registrar's office, he has deposed that as per Ex.P1 it is mentioned as Sy.No.105 measuring 1 acre one gunta of Bommenahalli. He has denied the suggestion that Syed Muneer Ahmed and Krishnaswamy when went to sub-registrar's office, 21 they came back stating that the sub-registrar went for lunch. There was a board in front of the sub- registrar's office as Sub-registrar Rajagopalaiah. When he went inside Krishnaswamy told him that sub-registrar told him that Rs.1,000/- is not sufficient and asked for paying Rs.2,000/- and as per the instruction of the sub-registrar, he paid Rs.2,000/- into the hands of accused No.2 Ananthegowda.
12. PW-3/Investigating Officer has deposed in his evidence in the examination in chief that on 07.04.2000 at 12.00 noon when he was in the station, G.Krishnaswamy S/o Late Javaraiah came to the police station and gave the typed complaint as per Ex.P-1, on the basis of which he registered the case in Cr.No.3/2000 for the said offence and then sent the FIR to the Court as per Ex.P-8. Complainant brought Rs.1000/- bribe amount. He secured the witnesses Srinivasa Gowda and Muneer Ahmed as 22 panch witnesses, who came at 12.25 p.m. and reported. Then he introduced himself and then, introduced the complainant and gave the details about the complaint. He informed the witnesses that as the Sub-registrar is demanding the bribe amount he has to lay the trap and they have to act as panch witnesses. Then, he deposed in detail about the proceedings conducted as per entrustment mahazar Ex.P-3. He has also deposed that thereafter at about 1.50 p.m. himself, his staff, complainant and panchas left the Lokayukta Police Station and reached T.Narasipura at 2.30 p.m. and stopped the jeep at a little distance from the Sub-registrar's office. Then, he sent the complainant and second panch witness Muneer Ahmed to the office of the accused. Himself, his staff and another panch witness Srinivasa Gowda were waiting and informed them that after receiving the signal they will come. At 2.45 p.m. complainant and second pancha went inside the 23 office of accused and at 3.00 p.m. they came outside and complainant gave the pre-arranged signal. Thereafter, himself, panch witness and his staff went inside the office of the accused and complainant shown Rajagopalaiah i.e., accused No.1 and told that he is the Sub-registrar and also told that he has asked whether he has brought Rs.1000 and complainant informed in turn that he has brought the amount. Accused No.1 asked him to pay the amount into the hands of accused No.2 and accordingly, he gave the same into the hands of accused No.2 and also shown accused No.2. Then, with the help of his staff they held the hands of accused No.1 and 2. He has also deposed in detail about taking the hand wash in the sodium carbonate solution of both the hands separately of accused Nos.1 and 2. The Solution in respect of accused No.1 has not changed its colour, but the solution in respect of accused No.2 turned into pink colour. The 24 solution was secured in a bottle and sealed, they are as per M.Os-4, 5, 6 and 7. Then, he asked the accused No.2 that where he has kept Rs.1000/- bribe amount and the accused No.2 has told that he kept it in his right side pant pocket. He asked Muneer Ahmed pancha to take out the amount from the right side pant pocket of accused No.2 and the panch witness did so, and it was Rs.2000/-. In the said amount, the tainted currency notes of Rs.1000/- which was kept into the pocket of the complainant was also found in that amount of Rs.2000/-. Said amount was seized, put into the cover and it was sealed. The said amount is as per MO-1. Alternate pant was given to accused No.2. The inner portion of right side pant pocket of accused No.2 was washed in the solution and it turned to pink colour. Same was secured in a bottle and it was sealed as per MO-8 and pant of accused No.2 is MO-9. When he was asked accused Nos.1 and 2 that whether they wanted to 25 give their explanation about the amount, but they did not give the same.
13. In his cross examination PW-3 has deposed that, in the complaint it is mentioned that in relation to Bommenahalli land, sale deed is prepared. In the schedule to Ex.P-10 the name of village is mentioned as Bomanayakanahalli. Ex.P-10 was written by deed writer G.S.Venkatesh. In his investigation he has not enquired that on 06.04.2000, at what time the writing of sale deed was completed. He added that in Ex.P-2 panchanama, there are some over-writings with the pen. There was no difficulty for him to record the statement of deed writer Venkatesh. When he went to the Sub- registrar's office, apart from accused No.1 some other staff were also present and he has not recorded their statements. He has denied the suggestion that accused No.1 has not at all asked bribe amount to register the deed and he has not at all told the 26 complainant to give the bribe amount into the hands of accused No.2 and forcibly the amount was thrusted into the hand of accused No.2 and then his hand wash was taken. He has denied the further suggestion that in Ex.P-2 there were no mistakes, but even then according to their convenience they made the corrections and it was prepared in the Lokayukta office itself. He denied the further suggestion that he obtained the signature of the witness on the blank papers in the margin portion and then he prepared the contents of the same.
14. In the oral evidence of P.W.1, he consistently deposed about he getting the sale deed ready on 6.4.2000 and on 7.4.2000 when he had been to the Sub-registrar's office, accused No.1 asked him whether he has brought the amount as informed to him for which, P.W.1 gave tainted currency notes of Rs.1,000/- and also additional amount of Rs.1,000/-, as accused No.1 after seeing the sale 27 deed told that the land purchased is 1 acre 1 gunta, as such, complainant has to pay Rs.2,000/- and on the previous day since he was in a hurry he told only Rs.1,000/- as the bribe amount to be paid. His evidence also clearly show that when the complainant offered the amount of Rs.2,000/- to accused No.1, he showed accused No.2 and asked the complainant to give the amount to the hands of accused No.2 Ananthegowda and accordingly, he gave the amount to the hands of accused No.2. Materials placed on record also show that when Lokayuktha police along with the staff and another pancha P.W.2 rushed to the office of accused No.1 and caught hold the hands of accused Nos.1 and 2 and when the handwash of accused No.1 was taken, it did not turn into pink colour whereas, the handwash of accused no.2 turned to pink colour. This evidence of P.W.1 is also supported by the evidence of Investigating Officer P.W.3. The solution in which hand wash of both the 28 hands of accused No.2 was taken was separately secured and sealed in the bottles and was sent for chemical examination and report. As per the FSL report, presence of phenolphthalein is detected in the fingers of both the hands of AGO No.2. This document coupled with the oral evidence of P.Ws.1 to 3 supports the case of the prosecution that accused No.2 has received the tainted currency notes from the complainant. It is no doubt true that the shadow witness Syed Muneer Ahmed has not been examined in the case by the prosecution. But it has come on record during the course of trial that he has expired. Therefore, no adverse inference can be drawn to the case of the prosecution for non-examination of shadow witness in the case.
15. Perusing the cross-examination of P.Ws.1 to 3, it is seen that they have consistently deposed about the case of the prosecution and nothing has been elicited from the mouth of P.Ws.1 to 3 so as to 29 disbelieve the case of prosecution. It is no doubt true that the witnesses P.Ws.1 and 3 have admitted in their evidence that the name of the village is mentioned as Bommenahalli whereas, the land purchased by the complainant is Bommanayakanahalli. But this evidence of P.W.1 and P.W.3 will not damage or destroy the case of the prosecution merely on the ground that name of the village has been wrongly mentioned in their evidence. It was also elicited during the cross-examination that the vendor Madamma, her son and daughter-in-law had been to the sub-registrar's office for execution of sale deed and it is the contention of the accused that the Investigating Officer has not recorded their statements, for which, P.W.1 has made it clear in his evidence that they have not come inside the sub- registrar's office. Therefore, the trial Court has observed in the judgment that non-examination or non-recording of the statement of those witnesses is 30 not fatal to the case of prosecution. Even regarding the demand of bribe amount, evidence of P.W.1 is consistent and worth believable.
16. In respect of the contention of accused persons that the evidence of complainant is not corroborated by the evidence of independent witnesses regarding demand and acceptance of bribe amount, in this connection I have perused the decisions relied upon by learned counsel for the appellants-accused Nos.1 and 2.
In the decision reported in AIR 1979 SC 1408 in the case of Suraj Mal Vs. The State (Delhi Administration)) at synopsis B this Court has laid down the proposition that 'mere recovery of money from accused is not sufficient'.
In (2000)5 SCC 21 in the case of Meena, W/o Balwant Hemke Vs. State of Maharashtra their 31 Lordship's of the Hon'ble Supreme Court has laid down the proposition as under:
A. Prevention of Corruption Act, 1947 - Ss.5(1)(d) read with Section 5(2) - Penal Code, 1860 - S. 161 - Trap - evidence - Charge against appellant Revenue Record Keeper in Collectorate of demanding and accepting Rs 20 as illegal gratification for doing an official act of sending the relevant records to copying section - Currency note of Rs 20 denomination found to be lying on the pad of the table - Phenolphthalein test showing positive result - Defence version was that the currency note when attempted to be thrust into appellants hands by PW 1, appellant pushed it away and in the process the note fell on the pad of the table - One shadow witness in the trap party not examined and another shadow witness treated as hostile by prosecution - Other material witnesses not examined by prosecution - Corroboration of trap evidence wanting - Held, mere recovery of the currency note and positive result of the phenolphthalein test not enough in the peculiar circumstances of the case, to establish guilt of the appellant on the basis of perfunctory nature of materials and prevaricating type of evidence - Charge must be proved beyond reasonable doubt - Criminal Trial - Prosecution - Failure to examine or produce.32
In AIR 1992 SC 644 in the case of Ayyasami Vs. State of Tamil Nadu the Hon'ble Supreme Court has laid down the proposition as under:
Prevention of Corruption Act (1947), S.5(1)(d) - Penal Code (1860), S.161 - Demand of bribe - No independent evidence
- Evidence not proving guilt against accused beyond reasonable doubt - Conviction based merely on probabilities - Liable to be set aside.
In 1995 Crl.L.J. 3978 in the case of M K Harshan Vs. State of Kerala, it is held as under:
Penal Code (45 of 1860), S.161 -
Prevention of Corruption Act (2 of 1947), S.5(1)(d), sub-sec.(2) - Acceptance of illegal gratification - Proof - Trap Case - Recovery of tainted money from drawer of accused - Trap witness deposing that accused did not touch currency notes but told him to keep same in his drawer - His evidence not corroborated and suffering from infirmities - Plea of accused, on other hand, that tainted money were planted in his drawer without his knowledge appearing to be probable - Accused given benefit of doubt.
In 2006(3) KCCR 1445 in the case of State of Karnataka Vs. K T Hanumanthaiah this Court has 33 laid down the proposition that 'there should be independent corroboration for proving the case of demand and acceptance of bribe for the offence under Section 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act'.
In 2006(3) KCCR 1422 this Court has observed that 'conviction of trial Court only on the uncorroborated statement of complainant-High Court set aside the conviction under Sections 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 on the ground that it is not safe to base a conviction on the uncorroborated evidence of complainant'.
In other two decisions reported in 2004(2) KCCR 1233 in the case of D Rajendran Vs. State by Police Inspector, B.O.I. and 2008(2) KCCR 985 in the case of State by Lokayuktha Police, Mandya Vs. K M Gangadhar of this Court their Lordships' have ruled that corroboration from independent witness is 34 necessary and recovery of notes from the pocket of accused and his hands being tested positive itself is not sufficient to hold that accused demanded illegal gratification from the complainant and received the same.
17. Perused the evidence on record in this case about which I have already made reference in detail above and also perused paragraph No.25 of the judgment of the trial Court wherein the trial Court referring to the judgment of Hon'ble Supreme Court reported in AIR 1998 SC 1474 held that delinquent official caught red-handed in trap laid by trap officer and complainant's evidence corroborated by evidence of trap officer, cannot be rejected merely because he was aggrieved against the bribe taker.
18. In the case on hand, the notes coming to the hands of accused No.2 is not disputed by accused persons. But during the course of trial, the defense 35 set up was that the amount was forcibly thrusted into the hands of accused No.2 and then his hand wash was taken. But to prove this aspect the accused persons have not at all placed any material before the Court. Even they have not offered any explanation when asked by Lokayuktha police immediately after the trap. It has come in the evidence of P.W.3 that he has asked accused Nos.1 and 2 as to what is their explanation about the amount of Rs.2,000/-. Both the accused have not at all given any explanation. I have also perused the statement under Section 313 of Cr.P.C. of the accused persons and as per question No.32 when it was asked whether they want to examine any witnesses they said no and as per question No.33 when asked whether they want to say anything, they said no. If really the amount of Rs.2,000/- was thrusted into the hands of accused No.2 and then his hand wash was taken, nothing prevented the accused 36 persons to give their explanation narrating the same immediately after the trap or at least they could have stated about the said fact in their statement under Section 313 of Cr.P.C. when Court has given an opportunity to them. In view of this the contention of the accused that amount was thrusted into the hands of accused no.2 cannot be accepted at all as the evidence of P.W.1 regarding demand and acceptance of bribe amount is consistent and worth believable, which is corroborated by the evidence of Investigating Officer. The case of the prosecution cannot be rejected only on the ground that there is no corroboration from independent witnesses when the evidence of PW1 is consistent and worth believable and corroborated by evidence of PW2 and PW3.
19. In view of the facts and circumstances of the case and also the decisions relied upon by the learned counsel for the appellants-accused, I am of 37 the opinion that the said decisions cannot be made applicable to the case on hand. Looking to the judgment and order passed by the trial Court, it is seen that each and every aspect of the matter, both oral and documentary, have been properly considered and appreciated by the trial Court and has rightly convicted the accused persons. There is no illegality committed by the trial Court in coming to such conclusion and no interference is called for by this Court into the judgment and order of the trial Court.
Accordingly, appeal is dismissed.
Sd/-
JUDGE BKP/BSR