Basappa S/O Adivappaand Anr vs The State Of Karnataka on 8 September, 2020

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Karnataka High Court

Basappa S/O Adivappaand Anr vs The State Of Karnataka on 8 September, 2020

Bench: Hanchate Sanjeevkumar

        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

 DATED THIS THE 8TH DAY OF SEPTEMBER, 2020

                         BEFORE

THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR

            CRIMINAL APPEAL NO.3508/2013

Between:

1. Bassappa S/o Adivappa
   Age: 47 years
   Occ: Secretary, Gram Panchayat
   Sangapur Village
   Tq. Manvi, Dist. Raichur

2. Mallikarjun @ Mallayya S/o Adeppa
   Age: 36 years
   Occ: Bill Collector, Gram Panchayat
   Sangapur Village
   Tq. Manvi, Dist. Raichur
                                              ... Appellants

(By Sri Iswaraj S. Chowdarpur, Advocate)

And:

The State of Karnataka
(Lokayukta Police Raichur)
Represented by Spl. Public Prosecutor
High Court of Karnataka
Circuit Bench at Gulbarga
                                            ... Respondent

(By Sri Subhash Mallapur, Spl.PP for Lokayukta)
                              2


      This Criminal Appeal is filed under 374(2) of the Code
of Criminal Procedure, praying to set-aside the judgment of
conviction and order of sentence including fine dated
01.01.2013 passed by the Prl. Sessions Judge at Raichur in
Special Case No.05/2009 and acquit the appellants from all
charges.

      This appeal coming on for final hearing this day, the
Court delivered the following:

                       JUDGMENT

This appeal is filed by the appellants/accused Nos.1 and 2 calling in question the judgment of conviction and order on sentence dated 01.01.2013 passed by the Prl. Sessions Judge at Raichur in Special Case No.05/2009.

2. The appellants were facing charges under Sections 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'PC Act') and after trial, the Special Court had convicted the appellants for the offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the PC Act and sentenced them to undergo simple imprisonment for a 3 period of two years with fine of Rs.10,000/- each and with a default clause that in default of payment of fine, he shall further undergo simple imprisonment for six months for the offence punishable under Section 7 of the PC Act. Further, for the offence punishable under Section 13(1)(d) r/w Section 13(2) of the PC At, the appellants were sentenced to undergo simple imprisonment for a period of five years with fine of Rs.15,000/- and with a default clause that in default to payment of fine, they shall further undergo simple imprisonment for one year and it was ordered that both the sentences shall run concurrently.

3. Brief facts of the case of the prosecution are that, CW.4-the mother-in-law of the complainant namely, Durgamma owns the land in Sy.No.39/D of Naslapur village in Manvi Taluka. Under SGSY scheme, loan of Rs.1,55,000/- was sanctioned to his mother-in- law for lift irrigation and 50% of the loan amount was to be given as subsidy by the Panchayat. In that regard, 4 the complainant had requested accused No.1 - Secretary of Gram Panchayat to send the same to State Bank of Hyderabad (ADB) Manvi. Then accused No.1 demanded 10% of the cheque amount should be given to him as bribe and then only he would send the cheque. But, ultimately the bribe amount was negotiated for Rs.4,000/-. Then accused No.1 told that Rs.4,000/- should be given to accused No.2. Accordingly, the complainant being unhappy with the demand of bribe by accused No.1 has filed complaint before Lokayukta Police, who acted on the complaint and trapped accused No.2 on 17.01.2008 at about 4.15 p.m. near Municipal public garden at Manvi while receiving Rs.4,000/- from the complainant at the instance of accused No.1. Thus, a case was registered for the offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the PC Act against the appellants.

4. Thereafter, the Investigating Officer has taken up the investigation and after completion of investigation, charge sheet is filed against the appellants for the above said offences and then the Special Court has taken cognizance under Section 190 of Cr.P.C. and furnished the copy of the charge sheet to the accused/appellants as required under Section 207 of Cr.P.C. and proceeded with framing of charge and then trial. The Special Court had framed charge against the appellants for the offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the PC Act and read over and explained the charge to them, but the appellants did not plead guilty and claimed to be tried, accordingly proceeded with the trial.

5. During the course of trial, the prosecution got examined 8 witnesses as PWs.1 to 8 and got marked 25 documents as Exs.P1 to P25 and 8 material objects as MOs.1 to 8. After completion of prosecution side evidence, the appellants/accused were examined under 6 Section 313 of Cr.P.C. and they have denied all the offences and incriminating circumstances revealed against them during the evidences and the appellants have totally denied the prosecution case. But, the appellants have not lead any evidence and also have not produced any documents in their favour.

6. After evaluating and analyzing the evidence on record, the Special Court has convicted the appellants/accused and imposed the sentence as stated above. Being aggrieved by the said judgment of conviction and order on sentence, the appellants have preferred the present appeal.

7. The appellants have raised various grounds challenging the judgment of conviction and order on sentence which are canvassed by the learned counsel for the appellants.

8. Learned counsel for the appellants submitted that the crucial aspect of demand by the 7 appellants is not proved. Therefore, when the theory of demand is not proved by the prosecution by placing cogent evidence, then the conviction against the appellants is not correct. He further submitted that even though appellant No.2/accused No.2 had received the amount as per the prosecution case, but that does not constitute the offence against the appellants in the absence of pending work to be done in favour of the complainant. Therefore, he submitted that recording of conviction and imposition of sentence against the appellants/accused is bad in law. He further submitted that there is no conspiracy between the appellants to do the crime alleged. Therefore, in this regard, the prosecution has not proved any aspect of conspiracy of the appellants. Therefore, submitted that the appellants are liable to be acquitted. He further submitted that when it is the case of the prosecution that, accused No.1 had told the complainant that after receipt of the amount by accused No.2 only the cheque 8 would be given to the complainant, but the said cheque was not produced before the Court during the trial. Further he submitted that when it is case of the prosecution that for issuance of cheque accused No.1 had demanded the amount, then at that point of time the cheque was to be ready, but the cheque was not ready and for this issuance of cheque appellant No.1 is not responsible and also during the course of investigation the Investigating Officer has not seized the cheque. Therefore, he submitted that the entire prosecution case regarding issuance of cheque by accused No.1 itself is false. He further submitted that in the charge, the date when appellant No.1/accused No.1 had demanded the amount and the place and time are not at all mentioned. Therefore, the appellant/accused were unable to know the case against them that when, where and which time the offence was committed. Therefore, submitted that the charge is vague and defective charge which goes to the 9 very root of the prosecution case. Then it is amounting to violation of principles of natural justice and this defect in the charge is not trivial or minor in nature, but goes to the very root of the prosecution case vitiating the entire trial. Therefore, when the entire trial is vitiated by not properly framing the charge, then recording of conviction is illegal and unjustified. Further he submitted that the complainant in his complaint has stated that the cheque was to be given in favour of his mother-in-law namely, Smt. Durgamma, but the said Drugamma was not examined before the Court. Therefore, it is fatal to the prosecution case in proving the allegations made against the appellants. Further he submitted that the complaint-Ex.P1 is not contradicted to PW.1 during the course of trial when the complainant had turned hostile and therefore there was no suggestion put to the PW.1 by the Public Prosecutor suggesting whether appellant No.1 had demanded the money. Therefore submitted that the theory of demand 10 is not proved. He further submitted that appellant- accused No.1 was not present when the complainant gave amount of Rs.4,000/- to accused No.2. Therefore submitted that the appellant-accused No.1 is not liable to be held guilty of the charge under Section 7 as well as Section 13(1)(d) r/w Section 13(2) of the PC Act. He further submitted that in the present case, there is no proper sanction by the competent authority as per Section 19 of the PC Act, but the PW.4, who is the Deputy Secretary of the of the Zilla Pancyayat had given sanction. The Chief Executive Officer, Zilla Panchayat ought to have given sanction to prosecute the bills and the PW.4 is not a competent authority to give sanction. Therefore, it goes to the very core of the prosecution case for lack of sanction for prosecuting the accused. Therefore, submitted that as there was improper sanction, the entire trial vitiates.

9. Learned counsel further submitted that the manner of incident is not proved that when the 11 appellant-accused No.1 had demanded the bribe amount from the complainant-PW.1 and when & where both the appellants were conspired to each other for receiving the bribe amount and what was the work pending for issuance of the said cheque and where the offence was taken place are not at all proved. Therefore, the entire trial vitiates in this regard. Further he submitted that the offence of conspiracy as well as sharing of common intention between the appellants- accused are not proved and also before that charges were not framed. Therefore, the prosecution has failed to prove the guilt of the appellants-accused beyond reasonable doubt. But, the Special Court only on the basis of surmises and conjectures has proceeded to convict the appellants, which is unjustified, illegal and contrary to the evidence on record. On all these grounds, he prays to allow the appeal and to acquit the appellants for the charges leveled against them. 12

10. In support of his submissions, learned counsel for the appellants has placed reliance on the following judgments of the Hon'ble Apex Court as well as this Court:

1) 2018(4) Crimes 169 (SC) Paras-27 to 30 (Dashrath Singh Chauhan vs. Central Bureau of Investigation)

2) 2015 SAR (Criminal) 1142 paragraphs 18 to 26 (P. Satyanarayana Murthy vs. The District Inspector of Police and Anr.)

3) 2017(4) Crimes 64 (SC) paragraphs 15 & 25 Mukhtiar Singh (Since Deceased) Through His L.R. vs. State of Punjab)

4) [2016] ACR 98 paragraphs 28 to 36 Krishan Chander vs. State of Delhi

5) 2014(4) Crimes 398 (SC) Para 6 (M.R. Purushotham vs. State of Karnataka)

6) 2007(4) Crimes 102 (SC) (K. Subba Reddy vs. State of Andhra Pradesh)

7) (2014) 14 Supreme Court Cases 516 (Prabhat Kumar Gupta vs. State of Jharkhand and another)

8) 2012 (2) K.C.C.R 1157 (Hanmantappa vs. The State of Karnataka 13

11. Per contra, learned Special Public Prosecutor for Lokayukta appearing for the respondent-State submitted that the prosecution has placed cogent and reliable evidence against the appellants that the appellant-accused No.1 has demanded the bribe amount and had instigated the complainant to give the said amount to accused No.2 who is Bill Collector. Therefore, in this regard, before commission of crime both the accused have shared common intention and it was conspired between them in respect of the said bribe amount and in this regard the prosecution has placed cogent and reliable evidence. Further, he submitted that even though PW.1 has turned hostile to the prosecution case, whatever the portion of evidence given by PW.1 supporting the prosecution case can be made basis for convicting the appellants and it was done by the Special Court. Therefore, he submitted that even though PW.1 has turned hostile, the other reliable witnesses who are PWs.2, 3, 7 and 8 had proved that 14 appellant-accused No.1 had demanded the bribe amount and at the instigation of accused No.1, accused No.2 has received the amount which was demanded by accused No.1 towards the pending work of issuance of cheque. Therefore, placing reliance on the evidence he submitted that the appeal is found to be devoid of merits and is liable to be dismissed. He further submitted that in the complaint-Ex.P1, it is alleged that there was a prior meeting between appellants-accused Nos.1 and 2 and this constitutes sharing of common intention between them and also hatching a plan regarding commission of alleged offence of receiving the bribe amount. He further submitted that PW.1 in his evidence has admitted that he has given complaint as per Ex.P1 and also admits his signature on the complaint as Ex.P1(a). Therefore, when the PW.1 has admitted that he had lodged Ex.P1-complaint and also admits his signature on it, then every contents of the complaint are proved and it is also proved by the 15 evidence of other witnesses i.e., PWs.1 to 3, 7 & 8. Therefore, submitted that the Special Court has rightly convicted the appellants and accordingly imposed sentence.

12. Learned Special Public Prosecutor for Lokayukta further submitted that PW.4 is the sanctioning authority and accordingly after perusing all the materials placed before him and after evaluating the same has set his mind and accorded a sanction for prosecution of the accused. Therefore, the sanction order is proper and correct. Further he submitted that just because there are some defects in giving sanction for prosecution cannot be made ground to reject the entire prosecution case in toto as per Section 19(3)(a) of the PC Act. Therefore, he submitted that for all these reasons, the appeal is devoid of merits and hence liable to be dismissed.

13. Before going over to discuss the evidences rendered by the witnesses, it is appropriate to make glance over the role of each witnesses :-

PW.1 is the complainant, who has lodged complaint as per Ex.P1, but he has turned hostile; PW.2 is the shadow witness has witnessed the Ex.P8- Demonstration Panchanama and Ex.P9-Trap Panchanama; PW.3 is the witness for Demonstration Panchanama and Trap Panchanama; PW.4 is the sanctioning authority; PW.5 is the Engineer, who prepared sketch of the place of incident; PW.6 is the Taluka Executive Officer, Taluka Panchayat, Manvi who had given certificate as per Exs.P18 and P19 which show that accused No.1 was working as Secretary of the Gram Panchayat and accused No.2 was Bill Collector;

PW.7 is the Police Inspector and PW.8 is the Dy.S.P, who had conducted the investigation and filed charge sheet.

14. The learned counsel for the appellants has relied on the judgment of the Hon'ble Apex Court in the case of M.R.Purushotham v. State of Karnataka [2014 (4) Crimes 398 (SC)], which deals with the principle of law that mere possession and recovery of currency notes from accused without proof of demand will not bring home the guilt.

15. Further he relied on the judgment of the Hon'ble Apex Court in the case of Dashrath Singh Chauhan v. Central Bureau of Investigation [2018 (4) Crimes 169 (SC)], which is regarding the principle of law that if there is no conspiracy between the accused then holding guilty is not correct and also even failure to proof the demand and mere acceptance of the bribe amount then the prosecution does not withstand its case in proving the guilt against the accused.

16. Further the learned counsel for the appellants relied on the judgment of the Hon'ble Apex 18 Court in the case of Krishan Chander v. State of Delhi [(2016) ACR 98]. In this case the complainant has turned hostile on demand and acceptance of the bribe. Therefore, it was held in absence of same, the appellants/accused are entitled for acquittal. Further, it is on the principle of law that if demand and acceptance of bribe amount is not there for constituting the alleged offence, as it was absent in the said case, hence observed that the offences are not proved. Therefore, in that context, it was held that the prosecution was not able to prove the guilt against the accused.

17. Further the counsel for the appellants has relied on the judgment of the Hon'ble Apex Court in the case of Mukhtiar Singh (since deceased) through His L.R. v. State of Punjab [2017 (4) Crimes 64 (SC)], which is also on the principle of law that if failure to prove the demand and acceptance of bribe amount then offences are not constituted.

18. On the same line as above discussed, the learned counsel for the appellants has also relied on the judgments of the Hon'ble Apex Court which are extracted as below :

• P.Satyanarayana Murthy v. District Inspector of Police and another [2015 SAR (Criminal) 1142];

• Prabhat Kumar Gupta v. State of Jharkhand and another [(2014) 14 Supreme Court Cases 516];

• K.Subba Reddy v. State of Andhra Pradesh [2007 (4) Crimes 102 (SC)] and;

• Nanjappa v. State of Karnataka, [(2015) 14 Supreme Court Cases 186], which are also regarding the sanction of prosecution.

19. Therefore, the learned counsel for the appellants submitted that the theory of demand by the appellants and the receipt of bribe amount is not proved in the present case. Therefore, submitted that the above 20 cited judgments are applicable to the case on hand and thus relied on and prays for the acquittal of the appellants/accused in the present case.

20. On the other hand, the learned State Public Prosecutor appearing for respondent-Lokayukta has relied on the judgment of this court in Crl.A.No.100208/2014 dated 23.02.2014, between Hanamanthappa and another vs. The State of Karnataka. It is held that even if the PW.1-complainant had turned hostile but whatever the portion it supports the case of the prosecution that can be accepted and made base for convicting the accused and in the present case also the portion of lodging complaint as per Ex.P.1 and the theory of demand and acceptance is proved.

21. PW.1 is the complainant, has lodged complaint as per Ex.P.1 by stating that his mother-in- law who is the owner of the agricultural land and the Government has sanctioned an amount of 21 Rs.1,55,000/- under the SGSY scheme for the Scheduled Castes members and the Government was to give financial aid to the extent of 50% and accordingly the Gram Panchayat was to discharge the amount of Rs.77,500/- through cheque to his mother-in-law and accordingly the complainant-PW.1 had approached the appellant/accused No.1 for issuance of cheque but the appellant/accused No.1 had demanded 10% of the cheque amount as bribe amount then he would give the cheque and for this PW.1 stated that he is not ready to pay the said amount, therefore, it was negotiated and settled that initially the PW.1 would give a bribe amount of Rs.4,000/- before issuance of cheque and another sum of Rs.4,000/- to be given after furnishing cheque to the PW.1 and further it is averred in the complaint that the appellant/accused No.1 had shown the appellant/accused No.2 who is Bill Collector and the said bribe amount be given to the appellant/accused No.2. Therefore the PW.1 being reluctant to the bribe 22 amount had approached the respondent-Lokayukta police and lodged complaint before the Lokayukta police on 17.01.2008 and accordingly, crime is registered for the alleged offences as stated above.

22. The PW.1 had stated in his evidence and has partially supported the prosecution case and partially turned hostile. The partial supporting of the evidence of PW.1 is to the effect that appellant/accused No.1 was working as Secretary in the Gram Panchayat and the appellant/accused No.2 was working as Bill Collector and they were working from the year 2008 in Gram Panchayat. One Smt.Durgamma is the mother-in-law of PW.1 and she is the owner of agricultural land bearing Sy.No.36/D to the extent of 3 acre and coming within the small holding of the land and there was no irrigation facility to the said land and when application is filed for sanctioning of amount for getting irrigate the land under the scheme namely SGSY and upon the application filed, the Government had sanctioned a sum 23 of Rs.1,55,000/-, which was in the form of loan. Therefore, the said amount is credited in the State Bank of Hyderabad, Manvi Branch. As per SGSY scheme, the Government has to give subsidy to the extent of 50% and for this the Gram Panchayat was to give cheque for 50% of the amount as subsidy amount. Therefore, it is the evidence of PW.1 that he had approached the appellant/accused No.1 for several times but the appellant/accused No.1 had not issued subsidy cheque and therefore the PW.1 had approached Lokayukta police and he has made oral complaint and the Lokayukta police have registered the oral complaint into writing as per Ex.P.1 and he admitted in his evidence that it bears his signature as Ex.P.1(a).

23. Further PW.1 deposed that he had been to the Lokayukta police at the instruction with a sum of Rs.4,000/- of denomination of Rs.500/- totally 8 currency notes and there was an extra amount of Rs.300/- towards his personal expenses and Lokayukta 24 Inspector and other Lokayukta Police have summoned the two other panch witnesses and conducted demonstration panchanama after introducing the said panchas to PW.1.

24. Further PW.1 had stated that after demonstration panchanama he had kept the said amount in his shirt pocket and this panchanama was conducted in Lokayukta office at Raichur. Further PW.1 deposed that during this process, the Lokayukta police have taken the photographs they are six in number as per Exs.P.2 to P.7 and admitted that he is appearing in the said photographs. This examination-in-chief of PW.1 was recorded on 21.06.2010. After completion of half portion of deposition of PW.1 the Public Prosecutor requested for taking further examination-in-chief of PW.1 on the next day and on the next day 22.06.2010, recording of further examination-in-chief of PW.1 was deferred. When on 22.06.2010 the recording of examination-in-chief was commenced, PW.1 has turned 25 hostile by stating that when he had been to Manvi Bus Stand and approached the appellant/accused No.2 at the place called Government garden and the PW.1 has tried to give amount to appellant/accused No.2 but the appellant/accused No.2 had refused to receive the amount. Therefore, in this way, PW.1 had turned hostile. Further stated that he had been taken to Inspection Bungalow and appellant/accused No.2 alone was taken inside the Inspection Bungalow by the Lokayukta police and further submitted that the appellant/accused No.2 had not received any amount from him. In this way, PW.1 has turned hostile towards the prosecution case.

25. Then the Special Public Prosecutor had sought permission of the court to treat the PW.1 as hostile witness and PW.1 subjected to cross- examination and he denied the suggestion put by the Public Prosecutor regarding the appellant/accused No.2 had received the amount from PW.1 and the PW.1 had 26 acted as shadow witness and thereafter taken to the inspection bungalow of the Manvi therein trap panchanama was recorded as per Ex.P.9. For these suggestions the PW.1 denied the said suggestions. It is only cross-examination by the counsel for the appellant/accused during trial that the mother-in-law of PW.1 alone is looking after all the affairs of the house and during the course of cross-examination, PW.1 had stated that he had put signature in Lokayukta Office at Raichur.

26. Upon considering the evidence of PW.1 in this regard, the PW.1 had partially turned hostile towards the prosecution case. During the course of examination-in-chief the PW.1 had admitted that the appellants/accused No.1 was working as Secretary in Gram Panchayat and appellant/accused No.2 was working as a Bill Collector and both were working in Gram Panchayat. Further PW.1 had deposed that in respect of her mother-in-law an amount of 27 Rs.1,55,000/- was sanctioned and out of which 50% amount of subsidy cheque amount was given to the appellant/accused No.1 and PW.1 had approached several times but the appellant/accused No.1 did not give the cheque and therefore he had stated in his evidence that he has approached Lokayukta police and gave first information statement and it was reduced into writing as per Ex.P.1 and then he put his signature as per Ex.P1(a). Further also admitted regarding drawing- up of demonstration panchanama as per Ex.P.8 and also taking photographs. Till this event the PW.1 supported the prosecution case. The PW.1 had turned hostile on the next date of recording of his evidence on 22.06.2010 that the appellant/accused No.2 had not received amount as he has refused to receive the amount.

27. The learned counsel for the appellants submitted that when PW.1 had turned hostile then Public Prosecutor ought to have confronted Ex.P.1 to 28 the PW.1 and put specific suggestions/questions that the appellant/accused No.1 had demanded bribe amount and appellant/accused No.2 had received the bribe amount on behalf of appellant/accused No.1. But without putting those suggestions/questions to PW.1 and without confronting the complaint Ex.P.1 to the PW.1, then the theory of demand and acceptance of bribe amount is not proved. Considering this submission, it is pertinent to mention here that PW.1 even though had partially turned hostile but whatever the quantum of portion supported the prosecution case that can be relied and believable because there is no impeachment to that portion by the defence side.

28. PW.1 had stated that he has approached Lokayukta Police and gave first information statement and it was reduced into writing which is as per Ex.P.1 and also admitted its contents and his signature as per Ex.P1(a). Further the PW.1 had admitted in is evidence that for taking subsidy cheque of Rs.77,500/- the PW.1 29 had approached the appellant/accused No.1 for about one week but the appellant/accused No.1 did not give the subsidy cheque. Therefore, he has approached Lokayukta police and lodged complaint as per Ex.P.1. Even though PW.1 had not stated in his examination-in- chief that the appellant/accused No.1 had demanded money but upon considering the admission given by PW.1 that he has lodged complaint as per Ex.P.1 by specifically mentioning the allegations against the appellant/accused No.1 that he has approached the appellant/accused No.1 for several times for issuance of cheque and the appellant/accused No.1 had demanded bribe amount. Therefore, the contents of Ex.P.1 are proved for the reason that the PW.1 in his evidence has stated that he has lodged complaint as per Ex.P.1 and not only it is stated in the evidence inspite of he approached the appellant/accused No.1 for about one week but the appellant/accused No.1 did not give cheque. Therefore, in examination-in-chief itself the 30 PW.1 admitted that lodging of complaint Ex.P.1 and admitting his signature as per Ex.P1(a) and therefore, even after treating him as hostile and subjected him cross-examination by not showing the said complaint Ex.P.1 to the PW.1, it cannot be said that the theory of demand is not proved. Even Ex.P.1 complaint is not substantive evidence but which can be used for the purpose of corroboration or contradiction as per Section 145 of the Indian Evidence Act and Section 154 of the Evidence Act. Therefore, whatever the portion of evidence of PW.1 supports the prosecution case unless it is made impeached during the course of cross- examination by the defence side, then that supportive portion of the complainant can be accepted and relied by proving the facts in issue involved in the case as in the present case the theory of demand made by the appellant/accused No.1 is proved by the evidence of PW.1 and as per the complaint Ex.P.1 and the principle that "falsus in uno falsus in omnibus" is not applicable 31 in 'Bharat'. Therefore, whatever the part portion of the evidence of PW.1 supports the case of the prosecution case that can be relied and accepted for the purpose of proving the prosecution case as it is done in the present case.

29. Further the Public Prosecutor had put suggestion to PW.1 that, PW.1 had given amount to the appellant/accused No.2 but even though the PW.1 had denied the said suggestion but this suggestion proves the case of the prosecution and also PW.1 had admitted his signature on Ex.P.10, which is receipt of having received the amount and which contains the signature as per Ex.P.10(a). In this regard, I place reliance on the judgments of the Hon'ble Apex Court in the case of Sat Paul v. Delhi Administration [AIR 1976 SC 294], wherein, at paras 28 to 38, 45, 46, 48, 49, 50 and 51, Their Lordships were pleased to observe as follows ;-

28. Relying on Jagir Singh v. State (AIR 1975 SC 1400) ibid, Mr. Anthony submits that 32 when a prosecution witness, being hostile, is cross-examined by the Public Prosecutor with the leave of the Court, his entire evidence is to be discarded, as a matter of law.

29. Since this vexing question frequently arises, and the observations made by this Court in Jagir Singh's case (ibid) do not appear to have been properly understood, it will be appropriate to clarify the law on the point.

29A. The terms "hostile witness", "adverse witness", "unfavourable witness", "unwilling witness" are all terms of English Law. At Common Law, if a witness exhibited manifest antipathy, by his demeanour, answers and attitude, to the cause of the party calling him, the party was not, as a general rule, permitted to contradict him with his previous inconsistent statements, nor allowed to impeach his credit by general evidence of bad character. This rule had its foundation on the theory that by calling the witness, a party represents him to the Court as worthy of credit, and if he afterwards attacks his general character for veracity, this is not only mala fides towards the Court, but, it "would enable the party to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him with the means in his hand of destroying his credit if he spoke against him" (see Best on Evidence, p. 630, 11th Edn.). This theory or assumption gave rise to a considerable conflict of opinion as to whether it was competent for a party to show that his own witness had made statements out of Court inconsistent with the evidence given by him in court. The weight of the ancient authority was in the negative.

30. In support of the dominant view it was urged that to allow a party directly to discredit or contradict his own witness would tend to multiply 33 issues and enable the party to get the naked statement of a witness before the jury, operating in fact as substantive evidence, that this course would open the door wide open for collusion and dishonest contrivance.

31. As against this, the exponents of the rival view, that a party should be permitted to discredit or contradict his own witness who turns unfavourable to him argued that this course is necessary as a security against the contrivance of an artful witness, who otherwise might recommend himself to a party by the promise of favourable evidence and afterwards by hostile evidence ruin his cause. It was reasoned further "that this is a question in which not only the interests of litigating parties are involved, but also the more important general interests of truth, in criminal as well as in civil proceedings, that the ends of justice are best attained by allowing a free and ample scope for scrutinising evidence and estimating its real value, and that in the administration of criminal justice more especially, the exclusion of the proof of contrary statements might be attended with the worst consequences". Besides, it by no means follows that the object of a party in contradicting his own witness is to impeach his veracity, it may be to show the faultiness of his memory" (see Best, page 631, 11th Edn.).

32. The rigidity of the rule prohibiting a party to discredit or contradict its own witness was to an extent relaxed by evolving the terms "hostile witness" and "unfavourable witness" and by attempting to draw a distinction between the two categories. A "hostile witness" is described as one who is not desirous of telling the truth at the instance of the party calling him, and an 'unfavourable witness' is one called by a party to prove a particular fact in issue or relevant to the 34 issue who fails to prove such fact, or proves an opposite fact (see Cross on Evidence, p. 220, 4th Edn., citing Stephen's Digest of the Law of Evidence).

33. In the case of an 'unfavourable witness', the party calling him was allowed to contradict him by producing evidence aliunde but the prohibition against cross-examination by means of leading questions or by contradicting him with his previous inconsistent statements or by asking questions with regard to his discreditable past conduct or previous conviction, continued. But in the case of a 'hostile' witness, the Judge could permit his examination-in-chief to be conducted in the manner of cross-examination to the extent to which he considered necessary in the interests of justice. With the leave of the court, leading questions could be put to a hostile witness to test his memory and perception or his knowledge of the facts to which he was deposing. Even so, the party calling him, could not question him about his bad antecedents or previous convictions, nor could he produce evidence to show that the veracity of the witness was doubtful. But the position as to whether a previous inconsistent statement could be proved against a hostile witness, remained as murky as ever.

34. To settle the law with regard to this matter, Section 22 of the Common Law Procedure Act, 1854 was enacted. It was originally applicable to civil proceedings, but was since re- enacted in Section 3 of the Criminal Procedure Act, 1865 and extended in identical terms to proceedings in criminal courts as well.

35. Section 3 provides:

A party producing a witness shall not be allowed to impeach his credit by general evidence 35 of bad character, but he may, in case the witness shall, in the opinion of the Judge, prove adverse, contradict him by other evidence, or by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony but before such last-mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.

(Emphasis added)

36. The construction of these provisions, however, continued to cause difficulty, particularly in their application to 'unfavourable' witnesses. In Greenough v. Eccles (1859) 5 CBNS 786 these provisions were found so confusing that Cockburn C. J. said that "there has been a great blunder in the drawing of it, and on the part of those who adopted it.

37. To steer clear of the controversy over the meaning of the terms "hostile" witness, "adverse" witness, "unfavourable" witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross- examine his own witness by a party is not conditional on the witness being declared "adverse" or "hostile". Whether it be the grant of permission under Section 142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross-

examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath v.

Prasannamoyi AIR 1922 PC 409. The discretion conferred by Section 154 on the court is unqualified and untrammelled and is apart from any question of "hostility". It is to be liberally exercised whenever the court from the witnesse's demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as "declared hostile", "declared unfavourable", the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts.

38. It is important to note that the English statute differs materially from the law contained in the Indian Evidence Act in regard to cross- examination and contradiction of his own witness by a party. Under the English Law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous conviction. In India, this can be done with the consent of the court under Section 155. Under the English Act of 1865, a party calling the witness, can "cross- examine" and contradict a witness in respect of his previous inconsistent statements with the leave of the court, only when the court considers the witness to be 'adverse.' As already noticed, no such condition has been laid down in Sections 154 and 155 of the Indian Act and the grant of such leave has been left completely to the discretion of the Court, the exercise of which is not fettered by or dependent upon the "hostility" 37 or "adverseness" of the witness. In this respect, the Indian Evidence Act is in advance of the English law. The Criminal Law Revision Committee of England in its 11th Report, made recently, has recommended the adoption of a modernised version of Section 3 of the Criminal Procedure Act. 1865, allowing contradiction of both unfavourable and hostile witnesses by other evidence without leave of the court. The Report is, however, still in favour of retention of the prohibition on a party's impeaching his own witness by evidence of bad character."

xxxxxxx xxxxxxx "45. After answering in the negative, the three questions viz., whether the evidence of a witness treated as 'hostile' must be rejected in whole or in part, whether it must be rejected so far it is in favour of the party calling the witness, whether it must be rejected so far as it is in favour of the opposite party, the learned Chief Justice proceeded:

"...the whole of the evidence so far as it affects both parties favourably or unfavourably must go to the jury for what it is worth... ... ... If the previous statement is the deposition before the committing Magistrate and if it is put in under Section 288, Criminal Procedure Code, so as to become evidence for all purposes, the jury may in effect be directed to choose between the two statements because both statements are evidence of the facts stated therein. But in other cases the jury may not be so directed, because prima facie the previous statement of the witness is not evidence at all against the accused of the truth of the facts stated therein. The proper 38 direction to the jury is that before relying on the evidence given by the witness at the trial the jury should take into consideration the fact that he made the previous statement, but they must not treat the previous statement as being any evidence at all against the prisoner of the facta therein alleged.

... ... ... ... In a criminal case, however, the previous unsworn statement of a witness for the prosecution is not evidence against the accused of the truth of the facts stated therein save in very special circumstances, e. g., as corroboration under Section 157 of his testimony in the witness- box on the conditions therein laid down. If the case be put of the previous statement having been made in the presence and hearing of the accused, this fact might under Section 8 alter the position; but the true view even then is not that the statement is evidence of the truth of what it contains, but that if the jury think that the conduct, silence or answer of the prisoner at the time amounted to an acceptance of the statement or some part of it, the jury may consider that acceptance as an admission (The King v. Norton, Percy William Adams, (1910) 2 KB 496 and (1923) 17 Cri App Rep 77). But apart from such special cases, which attract special principles, the unsworn statement, so far as the maker in his evidence does not confirm and repeat it, cannot be used at all against the accused as proof of the truth of what it asserts."

46. We are in respectful agreement with this enunciation. It is a correct exposition of the law on the point."

"48. In the case of an unfavourable witness, even in England the better opinion is that where a party contradicts his own witness on one part of his evidence, he does not thereby throw over all the witness's evidence, though its value may be impaired in the eyes of the court. (Halsbury, 3rd Edn. Vol. 15, Para 805).

49. In Bradley v. Ricardo (1831) 8 Bing 57 when it was urged as an objection that this would be giving credit to the witness on one point after he has been discredited on another, Tindal C. J. brushed it aside with the observation that "difficulties of the same kind occur in every cause where a jury has to decide on conflicting testimony".

50. In Narayan Nathu Naik v. Maharashtra State the court actually used the evidence of the prosecution witnesses who had partly resiled from their previous statements, to the extent they supported the prosecution, for corroborating the other witnesses.

51. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as Washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy 40 and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.""

30. Further in the case of Bhagwan Singh v.

The State of Haryana [AIR 1976 Supreme Court 202], wherein at para 8, Their Lordships were pleased to observe as follows :-

"8. We have carefully perused the evidence of Jagat Singh, who was examined in the trial after more than a year of detection of the case. The prosecution could have even avoided requesting for permission to cross-examine the witness under Section 154 of the Evidence Act. But the fact that the court gave permission to the Prosecutor to cross examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. We are satisfied in this case that the evidence of Jagat Singh, but for whose prompt assistance the case would not have seen the light of day and whose statement had immediately been recorded by the D.S.P., is amply corroborated by other evidence mentioned above to inspire confidence in his testimony. Apart from that the fact of recovery of the gold coins in the pocket of the appellant gave a seal of finality to the truth of the charge against the appellant. If Jagat Singh had accepted the bribe he would have been guilty under Section 161 I.P.C. There is, therefore, clear abetment by the appellant of the offence under Section 161 I.P.C.

and the ingredients of Section 165-A I.P.C. are established against him."

31. Further, I place reliance on the judgment of the Hon'ble Apex Court in the case of Arjun and another v. State of Chhattisgarh [(2017) 3 Supreme Court Cases 247], wherein at para 16, Their Lordships were pleased to observe as follows :-

"16. In Paramjeet Singh alias Pamma vs. State of Uttarakhand [(2010) 10 SCC 439], it was held as under:-

"16. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness; normally, it should look for corroboration to his testimony. [Vide State of Rajasthan v. Bhawani [(2003) 7 SCC 291]]

17. This Court while deciding the issue in Radha Mohan Singh v. State of U.P. [(2006) 2 SCC 450] observed as under: (SCC p. 457, para 7) '7. ... It is well settled that the evidence of a prosecution witness cannot be rejected in toto 42 merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.'

18. In Mahesh v. State of Maharashtra [(2008) 13 SCC 271] this Court considered the value of the deposition of a hostile witness and held as under: (SCC p. 289, para 49) '49. ... If PW.1 the maker of the complaint has chosen not to corroborate his earlier statement made in the complaint and recorded during investigation, the conduct of such a witness for no plausible and tenable reasons pointed out on record, will give rise to doubt the testimony of the investigating officer who had sincerely and honestly conducted the entire investigation of the case. In these circumstances, we are of the view that PW.1 has tried to conceal the material truth from the Court with the sole purpose of shielding and protecting the appellant for reasons best known to the witness and therefore, no benefit could be given to the appellant for unfavourable conduct of this witness to the prosecution.'

19. In Rajendra v. State of U.P. [(2009) 13 SCC 480], this Court observed that merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. This Court reiterated a similar view in Govindappa v. State of Karnataka [(2010) 6 SCC 533] observing that the deposition of a hostile witness can be relied upon at least up to the extent he supported the case of the prosecution.

20. In view of the above, it is evident that the evidence of a person does not become effaced 43 from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution."

The same view is reiterated in Mrinal Das. vs. State of Tripura [(2011) 9 SCC 479] in para (67) and also in Khachar Dipu vs. State of Gujarat [(2013) 4 SCC 322] in para (17)."

32. Merely because the witnesses have turned hostile in part their evidence cannot be rejected in toto. The evidence of such witnesses cannot be treated as effaced altogether but the same can be accepted to the extent that their version is found to be believable and the court shall examine more cautiously to find out as to what extent he has supported the case of the prosecution.

33. Further the fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting the evidence of the witness en bloc. However, the court has to be very careful, as prima facie, a witness who makes different 44 statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it.

34. In the present case the PW.1 had not completely turned hostile so as to say that he has not at all supported the prosecution case. The PW.1 had supported the case of the prosecution till to the extent up to the stage of preparation of denomination panchanama and till to the stage that he has handed over the said eight currency notes to the Lokayukta Police and the said eight currency notes were put in his shirt pocket so as to give the same to the appellant/accused No.2. Till this stage the PW.1 has supported the prosecution case and this portion of the evidence given by PW.1, which supports the prosecution case, did not impeach in the course of cross- examination by the counsel for the appellant/accused. 45 Therefore, to this extent the evidence of PW.1 is liable to be accepted and found to be believable.

35. Therefore, when PW.1 has turned hostile to the prosecution case so far as stating in support of the complaint Ex.P.1 that the appellant/accused No.1 had demanded bribe amount and negotiated the bribe amount and then showed the appellant/accused No.2 to give the bribe amount to appellant/accused No.2 and which aspect even though has not been impeached in the course of cross-examination, but for the very fact that the admission of PW.1, he has approached lokayukta police and lodged complaint as per Ex.P.1 and bears his signature as per Ex.P1(a) making allegation against appellant/accused No.1 that he has demanded bribe amount which can be appreciated by referring to the evidences of other witnesses.

36. PW.2 is the pancha for demonstration/entrustment panchanama and also 46 shadow witness. PW.2 is working as FDA in the Agricultural Department, Raichur and he had stated that on 17.01.2008 he had been to the Lokayukta Police station at morning 11.45 am and there is another pancha PW.3 and the PW.1-complainant were also there and they were introduced each other. The PW.2 had stated that the PW.1 lodged complaint before Lokayukta stating that the appellant/accused No.1 had demanded bribe amount and wherein demonstration panchanama was conducted as per Ex.P.1. PW.2 had narrated the details of demonstration panchanama that the PWs.7 and 8 have taken out phenolphthalein powder and applied on the notes given by PW.1 and washed his hands in sodium carbonate solution then it turned into pink colour and then demonstration panchanama was written as Ex.P.8 and also taken the photographs as per Exs.P.2 to 7. All these have been deposed by PW.2.

37. Further PW.2 has given evidence that the PWs.7 and 8 have given direction to PW.2 that to follow 47 PW.1 and observe when the PW.1 would give amount to appellant/accused No.2 and then also instructed the PW.1 to give signal after handing over the said bribe amount and stated that all had been to the Garden of the City Municipal Council therein the PW.1 alighted from the vehicle of Lokayukta and he went ahead and PW.2 had followed him and therein after crossing some path a person came in a motorcycle and PW.1 had given the said amount to the person who was come on motorcycle and then PW.1 had given signal and then Lokayukta police have apprehended the appellant/accused No.2 and the PW.2 had identified the said person as accused No.2 who is before the court.

38. Further deposed that since there was no scope for drawing trap panchanam on the place, therefore have taken to the Inspection Bungalow at Manvi town therein the currency notes which were in the demonstration panchanama which were handed over by the PW.1 to accused No.2 were recovered and 48 the hands of the accused No.2 was washed in sodium carbonate solution it turned into pink colour and then drawn trap panchanama as per Ex.P.9 and also taken photographs as per Exs.P.12 to P.15. Further PW.2 had stated that the appellant/accused No.2 had submitted his explanation as per Ex.P.11.

39. Upon considering the evidence of PW.2 as discussed above along with cross-examination, but during the course of cross-examination nothing is revealed that PW.2 is telling lie before the court. Even PW.2 has been cross-examined at length but nothing worth is revealed to say that PW.2 is telling lie before the court.

40. The counsel for the appellants has submitted that this PW.2 had not heard what was the conversation took place between the appellant/accused No.2 and PW.1, therefore, submitted that the evidence of PW.2 does not prove the theory of demand and 49 acceptance of bribe. It is quite natural that the shadow witnesses always follow the complainant by maintaining some distance. Therefore, the shadow witness is not supposed to have closeness with the complainant when the complainant is giving money to the person who is receiver, therefore, quite natural there would not be chances for shadow witness to hear the conversation between the complainant and the receiver of the amount. Just because the PW.2 is unable to say what was the conversation between the PW.1 and the appellant/accused No.2, it cannot be rejected the evidence of PW.2. But the PW.2 had categorically stated in his evidence that the appellant/accused No.2 had received the amount from his right hand and was seeing the said amount holding the said amount by both the hands and at that time upon making signal by the PW.1 the Lokayukta police have conducted the raid and apprehended the appellant/ accused No.2. Therefore, the evidence of PW.2 is found to be trustworthy after 50 considering his evidence with reference to the cross- examination and the evidence of PW.2 inspires the confidence of the court.

41. PW.3 who is panch witness of entrustment panchanama as per Ex.P.8 and had stated that he has acted as pancha for drawing up of entrustment mahazar and stated that on 17.01.2008, Lokayukta police have summoned him and therein the PW.1 and PW.2 were there and they have been introduced to him and further deposed that PW.1 has lodged complaint and also stated that the accused No.1 was asking bribe amount for issuance of cheque. Therefore, being reluctant to the bribe amount the PW.1 had lodged complaint before the police and further the procedure were taken place regarding noting down the number of the currency notes in demonstration panchanama and applied phenolphthalein powder on the currency notes and prepared sodium carbonate solution and currency notes were handed over to PW.1 and he had kept in his shirt 51 pocket then the hands were washed which were turn into pink colour and in this regard a panchanama was recorded as per Ex.P.8 and he has identified his signatures as Ex.P.8(d) and (e) and further stated that photographs were taken as per Exs.P.2 to P.7.

42. Further PW.3 had deposed that the PWs.7 and 8 have told him whenever the accused demands the currency notes to be handed over to him and the PW.2 was acted as a shadow witness. Further PW.3 stated that they went to the Manvi and reached the place in the evening at 4.00 p.m. and jeep was parked behind the Garden of Municipality and then the PWs.1 and 2 were going towards the garden. Further PW.3 deposed that the PW.1 had handed over currency notes to accused No.2 and on giving signal, immediately PWs.7 and 8 have raided the place and apprehended the accused No.2 and PW.3 has identified accused No.2 who was present during trial.

43. Further stated that since there would be chances of gathering people on the place when the PW.1 had handed over currency notes to accused No.2, therefore all have been returned to the Inspection Bungalow where trap panchanama was conducted as per Ex.P.9 and followed the procedure washing the hands of the accused No.2 to the solution of sodium carbonate which turned into pink colour.

44. Further stated with regard to recovery of currency notes, panchanama was conducted as per Ex.P.10 and the currency notes stated in panchanama Ex.P.10 are tallied with the entrustment panchanama Ex.P.8. Further the accused No.2 had given his explanation as per Ex.P.11.

45. Upon considering the cross-examination of this witness, nothing is elicited that this witness is telling falsehoodness before the court. The counsel for the appellants/accused argued that there is a 53 contradiction between the evidences of PWs.2 and 3 that the PW.2 had stated that soon after coming over to the inspection bungalow of Manvi after apprehending accused No.2 with currency notes he had stated that the currency notes were put on the table but the PW.3 had stated that the currency notes were in the hands of accused No.2 then the Lokayukta police have taken said currency notes. Considering this line of argument this contradiction argued by the counsel for the appellants is minor contradiction which do not go to the core of the prosecution case. PW.2 had stated that the accused No.2 had put the currency notes on the table but the PW.3 had stated that Lokayukta police have taken out the said currency notes. Regarding this contradiction revealed between these two witnesses which is a minor and shabby one do not affect to the very core of the prosecution case. Therefore, the evidence of PWs.2 and 3 corroborates the evidence of PW.1. PW.1 had lodged complaint before the Lokayukta police as discussed 54 above, the evidence of PW.1 stated supra that portion of the evidence, which supports the case of the prosecution and can be believed as it is corroborated by the evidence of PWs.2 and 3. The PWs.2 and 3 have deposed that the PW.1 has stated that accused No.1 was asking bribe amount and then it was negotiated to pay in two installments a sum of Rs.4,000/- as first part to be handed over before the issuance of cheque and the remaining Rs.4,000/- is to be handed over after issuance of cheque. Therefore the prosecution has proved this aspect from the evidence of PWs.1, 2 and 3.

46. PW.8 is the Dy.S.P who was the Police Inspector working in Lokayukta police of Raichur District. PW.8 had stated that on 17.01.2008 in the morning at 10.30 am PW.1 had approached Lokayukta police station and stated that under the SGSY scheme there was a grant of Rs.1,50,000/- was sanctioned and the Gram Panchayat was to give half of the said amount as subsidy and for issuance of said cheque of the 55 sanctioned amount the accused No.1 demanded bribe amount but the PW.1 being reluctant, he approached the Lokayukta police station and lodged a complaint as per Ex.P.1 and identified his signature Ex.P.1(a). Further PW.8 had stated that he has identified the signature of PW.1 as per Ex.P1(b) and then on the basis of it he has registered the FIR as per Ex.P.20. Further stated that he had summoned two pancha witnesses who were PWs.2 and 3 and in presence of them after introducing each other, then have drawn entrustment panchanama as per Ex.P.8, which is as stated by PWs.2 and 3. Further deposed that after smearing phenolphthalein powder on the currency notes and he had handed over the same to PW.1 by giving instruction that whenever the accused No.2 asked the said amount to be given to him and accordingly went to Manvi Town and therein going near Garden of Municipality and PW.1 and shadow witness PW.2 went there and the PW.2 was following PW.1, there accused No.2 came in a 56 motorcycle and PW.1 had handed over the said currency notes to accused No.2 and after giving signal by PW.1, a raid was conducted and apprehended the accused No.2 and then came back to the Inspection bungalow of Manvi and recovery panchanama, trap panchanama and seizure panchaama were recorded as per Exs.P.9 and 10 and followed the procedure of preparation of sodium carbonate solution and then washed the hands of accused No.2 in sodium carbonate solution then the hands of accused No.2 were turned into pink colour.

47. He further stated that accused No.2 has given explanation as per Ex.P.11. Further submitted that the accused No.2 was apprehended with due procedure. Further submitted that on the same day evening at 7.00 pm the accused No.1 was arrested and in this regard the accused No.1 had submitted explanation as per Ex.P.21. Further the PW.8 had narrated sequence of events in investigation and thereafter he had requested PW.6 and accordingly, PW.6 57 had given reports and certificates that the accused No.1 was working as Secretary in Gram Panchayat and accused No.2 was working as Bill Collector in the Gram Panchayat as on the date and time of the alleged incident which are as per Exs.P.18 and P.19. Further narrated the sequence of events in the course of cross- examination that he had made arrangement for taking spot sketch of incident and accordingly the PW.5 has given sketch of place of incident as per Ex.P.17 and also recorded the statement of Smt.Durgamma, who is the mother-in-law of PW.1. Further collected the documents in respect of grant were made in the name of the mother-in-law of PW.1, which is granted under SGSY scheme. It is stated that he has been promoted to the next higher cadre therefore he has handed over the further investigation to PW.7. PW.7 had conducted next part of investigation and after obtaining the sanction from the competent authority who is PW.4 herein and then filed charge sheet before the Special Court as 58 against the appellants/accused No.1 and 2. Therefore, the role of PW.7 is that after obtaining sanction from PW.4, he has filed charge sheet.

48. Upon considering the cross-examination of PW.8 who conducted substantial part of investigation he has narrated the taking-up of investigation and nothing is revealed that the investigation conducted by PW.8 is unfair one. The investigation conducted by PW.8 is completely found to be fair and is in natural way that he had conducted investigation in a procedural way as per law vested in him. Therefore, I do not find any taintedness or unfairness in the investigation conducted by PW.8. Therefore, the evidence of PW.8 proves that the accused No.1 had demanded bribe amount from PW.1 for issuance of cheque to be payable to the mother-in- law of PW.1 and then the accused No.1 had told the PW.1 to hand over the said bribe amount to accused No.2 and in this regard this accused No.2 had received the said amount from PW.1 as discussed above. 59 Therefore in this way from the evidence of PW.8 as well as with reference to the above discussion, it is proved that both accused No.1 and 2 have shared common intention in furtherance of commission of offence of receiving the bribe amount and thus accused No.1 had shown the accused No.2 to PW.1 and instructed PW.1 to hand over the said bribe amount to accused No.2. Thus, in this way the prosecution is able to prove that both accused No.1 and 2 have shared their common intention attracting the provision under Section 34 of IPC. Even though the Special Court had not framed charge under Section 34 of IPC but the legal provision is that Section 34 of IPC itself is not substantive offence and just omission for mentioning Section 34 of IPC while framing charge does not affect the prosecution case and do not cause prejudice in any way to the prosecution in proving guilt of the appellants/accused Nos.1 and 2.

49. Therefore, upon considering the cumulative effect of the evidence of PW.1 as discussed above and whatever the portion of evidence, supports the prosecution case can be believed and accordingly believed as he has admitted that he has given complaint as per Ex.P.1 and admitted his signature as Ex.P.1(a) and the accused No.1 had demanded bribe amount and shown the accused No.2 to give the said amount to accused No.2 and all these things are proved from the evidence of PW.1. The PW.1 had not stated in his examination-in-chief that accused No.1 had demanded amount but this fact is proved by the evidence of PWs.2 and 3 and PW.8 as discussed above. Even though PW.1 had not stated that the accused No.1 had asked money in his examination-in-chief but for the admitted fact that it is proved in the complaint given by PW.1 that the accused No.1 had made demand of bribe amount and made arrangement to receive the same through the accused No.2.

50. Thus in this way the appellants/accused No.1 and 2 have shared their common intention in furtherance of commission of offence as alleged. Therefore, in this regard the evidence of PW.1 so far as theory of prosecution case can be made base for convicting the accused and in this regard the Special court has rightly appreciated the evidence and applied the position of law correctly.

51. Furthermore, upon considering the explanation offered by accused No.1 as per Ex.P.21 and the explanation offered by accused No.2 as per Ex.P.11, the counsel for the appellants submitted that these two explanation/voluntary statements stated to have been given by both the accused Nos.1 and 2, which are admittedly given before the Lokayukta police and they are amounting to confession of the accused, therefore, they are not admissible and thus, submitted that they cannot be relied holding appellants/accused No.1 and 2 are guilty of the alleged offences. I am unable to accept 62 the contention of the counsel for the appellants/accused that these explanations are confession made before the police.

52. Both accused Nos.1 and 2 have submitted their explanation under what circumstances they have received the amount. Therefore, in this regard, these voluntary statements submitted by accused Nos.1 and 2 not to be construed as confession statement made before the police so as to attract the provisions under Sections 25 and 26 of the Indian Evidence Act. These explanations cannot be construed as confession. These are the circumstances stated by accused Nos.1 and 2, why they were constrained to receive the amount. Therefore, these explanations Exs.P.11 and P.21 are not to be understood or construed as confession made by accused Nos.1 and 2, thus, making hit by the provisions of the Evidence Act stated supra. Therefore, with these explanations offered by accused Nos.1 and 2 which are not amounting to confession and just they are 63 explanations under what circumstances they have received the amount or making arrangement for receipt of the amount then these explanations are to be considered while appreciating the evidence on record.

53. Accused No.2 has given explanation as per Ex.P.11 stating that at the instance of the President and Secretary of Gram Panchayath, he had received the amount. Therefore, the accused No.2 is pointing guilt towards the President and Secretary of the Gram Panchayat and on their instruction he had received the amount. In the present case the Secretary of Gram Panchayat is accused No.1. Then upon considering Ex.P.21, which is explanation offered by the accused No.1 and he had stated that he has instructed the accused No.2 to credit the cheque to the bank and credit of it be handed over to PW.1 and for crediting the said cheque to the bank, the accused No.2 had received an amount of Rs.4,000/- from PW.1 and stated that he is not concerned to the said amount given by PW.1 to 64 the accused No.2. Therefore, it is an admitted fact that both accused Nos.1 and 2 offered explanation as per Ex.P.11 and Ex.P.21 respectively and cumulatively appreciated together which is not disputed by both the appellants/accused Nos.1 and 2, while considering these Ex.P.11 and Ex.P.21. The accused No.2 had stated in his explanation that at the instance of President and Secretary of Gram Panchayat, he had received the said amount and accused No.1 had stated that for issuance of cheque to PW.1 the accused No.2 had received the said amount but stated that he has not concerned to the said amount. Therefore, when these two explanations are considered together and appreciated with cumulatively one thing is proved that the said bribe amount is paid towards the issuance of cheque and accused No.2 had received the bribe amount in respect of the very same cheque, as the said amount was sanctioned from the Government to be payable to the mother-in-law of PW.1. Therefore, it is 65 proved that the said bribe amount involved is revolving around issuance of cheque. Admittedly, as per the evidence of PW.6 and Exs.P18 and P19, it is proved that at the time of alleged incident accused No.1 was working as Secretary of Gram Panchayat of Sangapur village and accused No.2 was working as Bill Collector in the said Gram Panchayat and being Secretary, it is the duty of accused No.1 to issue cheque to PW.1. But, as per the evidence of PW.1 which is corroborated by the evidence of PWs. 2, 3, 7 and 8 as discussed above, it is proved that accused No.1 had demanded the bribe amount from PW.1 and made harassment for the said amount through accused No.2 and then introduced accused No.2 to the PW.1 and asked to give the said bribe amount to accused No.2 and thus, it is proved that both accused Nos.1 and 2 have shared common intention for demand of bribe amount and accepted the said amount. Therefore, the prosecution is able to prove the theory of demand and acceptance of the bribe 66 amount towards the pending work of issuance of cheque to the mother-in-law of the PW.1. Therefore, the prosecution is able to prove the guilt of the appellants/accused as alleged by proving the theory of demand, acceptance and the said demand of bribe amount was towards the pending work of issuance of cheque.

54. Therefore, the rulings relied upon by the learned counsel for the appellants as stated supra of the Hon'ble Apex Court are that in the absence of proof of theory of demand and acceptance, what would be the fate of the case. Then the principles of law laid down by their Lordships are that if demand is not proved, then offences are not proved. But, in the instant case, as discussed above, the prosecution is able to prove the theory of demand of bribe amount and the said bribe amount was accepted by appellant No.2/accused No.2 at the instance of appellant No.1/accused No.1 and both the appellants by sharing common intention of 67 receiving the bribe amount from PW.1 made arrangement in what manner the said bribe amount to be received. Therefore, in all these way the prosecution is able to prove the theory of demand and acceptance and ultimately accused No.1 had made arrangement to receive the said amount through accused No.2 from PW.1 as discussed in detail above. Therefore, under these circumstances, the principles laid down by the Apex Court (supra) are applicable to the case on hand so far as proving the aspect of demand and acceptance of bribe amount and what would be the consequence of the acceptance.

55. Learned counsel for the appellants submitted that the mother-in-law of PW.1 namely, Durgamma Is not examined. PW.1 has lodged a complaint before the Lokayukta Police stating that on behalf of his mother-in-law he had approached accused No.1 for getting the loan amount which is sanctioned by the Government. Therefore, in this regard, the entire 68 role is of the PW.1. Therefore, just because Durgamma is not examined, that is not fatal to the prosecution case. Even if considering all the aspects, the non- examination of said Durgamma is also found to be not necessary. Hence, the prosecution has omitted to examine the Durgamma. Therefore, in this regard, I do not find any merit in the submission of the learned counsel for the appellants.

56. Further, attending the submission made by the learned counsel for the appellants that accused No.2 had stated in Ex.P11 that at the instance of the President and Secretary of the Gram Panchayat, he had received the amount, but the President of the Gram Panchayat is not arraigned as accused. Considering the entire prosecution case, it is the main allegation against accused No.1, who is the Secretary of the Gram Panchayat and it is not stated in the complaint-Ex.P1 that the President of Gram Panchayat has also demanded the bribe amount. It is accused No.1, who 69 had demanded the bribe amount. Therefore, only accused No.1 should be made as accused. Just because accused No.2 had stated that at the instance of the President and Secretary of Gram Panchayat he had received the amount, only on the say of accused No.2, the President cannot be arraigned as accused. It is not the allegation of PW. 1 against the President of Gram Panchayat that the President had also demanded the bribe amount. Therefore, only just because accused No.2 has stated the name of President of the Gram Panchayat, but not made the President of Gram Panchayat as accused fatal to the prosecution case cannot hold any water. If the PW.1 had made allegation against the President of Gram Panchayat that he has also demanded the amount, then the submission of the learned counsel for the appellant would have been accepted. The PW.1 has not made any allegation against the President of Gram Panchayat. From the case on record it is only accused No.1 who had put demand of 70 bribe amount and made arrangement for receiving the same through accused No.2. Therefore, arraigning accused Nos.1 and 2 as accused is correct.

57. Further, it is the submission made by the learned counsel for the appellants that appellant- accused No.1 was not present when accused No.2 had received the bribe amount from PW.1. Therefore, accused No.1 is not held responsible in the commission of offence. I am not convinced by the submission made by the learned counsel for the appellant for the reasons that just because accused No.1 was not physically present when the PW.1 had given bribe amount to accused No.2, but it is proved that accused No.1 had demanded the bribe amount from the PW.1 and hatched a plan to receive the said bribe amount through accused No.2 and in this way both accused Nos.1 and 2 have shared their common intention of receiving bribe amount from PW.1. Therefore, in this regard, conspiracy between the appellants-accused Nos.1 and 2 71 is proved regarding demand and receipt of the bribe amount. Therefore, just because accused No.1 was not physically present when PW.1 had given the amount to accused No.2 that cannot be made ground to acquit accused No.1 from the charges levelled against him.

58. Upon considering the role of the appellants as discussed above, the ingredients of Sections 7 and 13(1)(d) of the PC Act are very much attracted as they are proved in the present case. Even if the charge for conspiracy is not framed by the Special Court, that cannot fatal to the prosecution case in proving the guilt of both the appellants. Where these types of economic offences are occurred, mere flaw in technicality cannot be made acquitting the accused where otherwise the prosecution is able to prove the guilt of the accused. Furthermore, the investigation is conducted by PW.8 and what he has deposed and narrated in his evidence is found to be fair one and occurred in a natural way and therefore the investigation conducted by PW.8 is 72 not found to be tainted one to show that the appellants were falsely implicated into the crime. Since there is no allegation made as against the President of the Gram Panchayat, there is no question of conducting investigation against the President of the Gram Panchayat and accused No.1 alone had made demand of bribe amount from PW.1 and accused No.1 alone had made a conspiracy and shared common intention along with accused No.2 to make receipt of the bribe amount from PW.1. Therefore, in this regard, the investigation is found to be fair, proper and inspires confidence of the Court. Thus, in this way, the Special Court has appreciated the evidence on record.

59. Further, it is the argument canvassed by the learned counsel for the appellants that the PW.8, the Investigating Officer has not seized the cheque and therefore it is fatal to the prosecution case. Non seizing of the cheque in the present case is not found to be fatal to the prosecution case. It is always not necessary to 73 seize the said cheque in these type of cases. The question to be considered is, as on the date of making the demand for bribe amount, whether the work of PW.1 as stated in the complaint was pending or not. But, as discussed above, the work of issuance of cheque to PW.1 by accused No.1 was pending and therefore, for issuance of cheque to PW.1, accused No.1 had demanded the bribe amount. Therefore, under these circumstances, non seizure of cheque cannot be made ground for acquittal of the accused. Therefore, in this regard, I do not find any merit in the submission of the learned counsel for the appellants.

60. Further, the learned counsel for the appellants submitted that in the charge framed by the Special Court, the Special Court had not mentioned the place, date and time when accused No.1 had made demand for the bribe amount from PW.1. Therefore, he submitted that the charge is vague and it is defective and it is not in compliance of Section 212 of Cr.P.C. and 74 it goes to the very core of the prosecution case and it is amounting to deprive the knowing of proper charge framed against the accused and therefore submitted that this defect in the charge is not trivial in nature, but it is in nature of very violation of principles of natural justice. Considering the submission made by the learned counsel for the appellants, in these type of economic offences, mentioning of exact date, time and place need not be stated, as the offences in these types are having series of acts, as when demand is made for the first time the complainant would be reluctant to give the bribe amount, then once again making demand and it is a chain of circumstance. Therefore, where these types of economic offences are occurred, mentioning of exact date, time and place is not necessary and also if date, time and place of demand is not stated in the charge like in the present case, it is not fatal to the prosecution case and only on that basis it cannot make ground to acquit the accused-appellants. The overall 75 object and reason of framing charge against the accused is to make the accused to know what the substance of accusation is made against them and for which offences and the particulars therein so as to get prepare the accused to put defence effectively. Therefore, in this regard, the charge is framed against the appellant- accused by putting all the substances with specification of accusations. Therefore, in any way there is no prejudice is caused to the accused in not mentioning the date, time and place of the incident. Therefore, under this legal principle, the charge cannot be stated to be defective one. Furthermore, upon the said charge the accused pleaded not guilty and claims to be tried and participated in the trial completely and voluntarily and now at this stage, unless there is serious prejudice is shown, the said submission made by the learned counsel for the appellants cannot be accepted. Therefore, in this regard, the submission made by the 76 learned counsel for the appellants is liable to be rejected.

61. Further, the learned counsel for the appellants submitted that the sanction given by the PW.4 is improper and PW.4 is not a competent authority to give sanction. He further submitted that PW.4 is a Deputy Secretary of Zilla Panchayat and has no power and authority to remove the employees in the cadre of accused Nos.1 and 2. Therefore, submitted that PW.4 is not a competent authority and the Chief Executive Officer, Zilla Panchayat is the competent authority, but he has not given sanction. Therefore, there is defect in giving sanction, as it is by non-competent authority. Therefore, on these grounds, he prays for acquittal of the appellant.

62. Section 19(3)(a) of the PC Act stipulates as follows :-

"19(3)(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;"

63. Therefore, as per Section 19(3)(a) of the PC Act, the final order or sentence or order passed by the Special Judge cannot be altered or reversed just because there is any error or irregularity in giving sanction, unless in the opinion of the Court there is failure of justice is caused by such improper sanction. While considering this legal provision, even if the submission made by the learned counsel for the appellants is accepted for sake, this defect is a mere irregularity in giving sanction, if the Chief Executive Officer of Zilla Panchayat alone is the competent 78 authority for giving sanction to the cadre of Secretary of Gram Pancyat and Bill Collector of Gram panchayat. But, in the case on hand, PW.4 has categorically deposed that as per the Government's authority, the Deputy Secretary is also competent authority for giving sanction as he is vested with the power for removing the employees of the Gram Panchayat of the cadre of the accused. But for rebuttal this, upon perusing the materials placed by the accused during the trial to show that the sanction is by the incompetent authority there is no contra evidence. But, when PW.4 has categorically deposed that he is having power vested with him to remove the employees in the cadre of accused Nos.1 and 2 from the serve, the sanction accorded by the PW.4 is found to be by a competent authority.

64. Furthermore, a presumption as per Section 20 of the PC Act can be raised against the public servant who accepts any undue advantage. Section 20 reads as follows:

"20. Presumption where public servant accepts any undue advantage. - Where, in any trial of an offence punishable under section 7 or section 11, it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary to proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under section 11."

65. The frame used in Section 20 is, 'it shall be presumed'. It means, the Court is bound to take the fact as proved for such and such offence is committed under this Act until a particular evidence is adduced to disprove the same and the party interested in disproving the case of the prosecution, then the party disproving must produce such evidence to disprove the fact as 80 stated by the prosecution. Therefore, initially it is the burden on the prosecution to prove the theory of demand, acceptance and such demand and acceptance is in respect of the pending work of the complainant. When it is so established by the prosecution, then the onus shifts on the accused to disprove the same and in such event if the accused is able to disprove the same, then the benefit of presumption cannot be given in favour of the prosecution. This rebuttal of presumption can be made at any stage of the case even during the course of investigation and during the trial. During the course of investigation, accused Nos.1 and 2 have admitted by giving explanation as per Exs.P11 and P21, but it does not disprove the case of the prosecution rather than the said explanations fortify the case of the prosecution. Further, during the course of trial when incriminating circumstances put to accused Nos.1 and 2 after completion of evidence of the prosecution, but both the accused have not placed any documents 81 disproving the case of the prosecution and simply denied the prosecution case. Therefore, for rebutting said prosecution case the accused have not made any attempt to produce probable evidence before the Court. Therefore, rightly a presumption can be attributed in favour of the prosecution as per Section 20 of the PC Act.

66. Therefore, upon considering and analyzing the entire record as discussed above, even legal provisions stated supra and from the evidence of PWs.1 to 3 and 8 it is conclusively proved that appellant No.1/accused No.1 was Secretary of Gram Panchayat and appellant No.2/accused No.2 was Bill Collector of the said Gram Panchayat and there was work pending in respect of issuance of cheque to the mother-in-law of PW.1 and for issuance of cheque to PW.1, accused No.1 had made a demand of bribe amount and hatched a conspiracy with accused No.2 and both the accused have shared common intention in furtherance of 82 commission of offence of receiving the bribe amount and thus accused No.1 had made arrangement for receipt of the said amount through accused No.2 from PW.1 and thus, in this way the prosecution has proved all the ingredients of the offences alleged and thus, the appellants are found to be guilty of the offences alleged and in this regard the Special Court has rightly appreciated the evidence on record and convicted the appellants and accordingly imposed the sentence. Therefore, there is no reason to interfere with the judgment of conviction. Therefore, the judgment of conviction recorded by the Principal Sessions Judge, Raichur in Special Case No.5/2009 against the appellants for the offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the PC Act is liable to be confirmed and is accordingly confirmed.

67. So far as order on sentence is concerned, learned counsel for the appellants submitted that the Special Court has sentenced the appellants to undergo 83 imprisonment for five years for the offence punishable under Section 13(1)(d) r/w Section 13(2) of the PC Act and also sentenced them to undergo imprisonment for two years for the offence punishable under Section 7 of the PC Act, which is harsh one. Therefore, he requested to show some leniency while imposing sentence.

68. Considering the quantum of sentence imposed against the appellants-accused by the Special Court, I am of the opinion that if the appellants are made to suffer simple imprisonment for a period of four years for the offence punishable under Section 13(1)(d) r/w Section 13(2) of the PC Act instead of undergoing five years imprisonment, that would meet the ends of justice. Therefore, to this limited extent, the present appeal is liable to be allowed in part. Hence, I proceed to pass the following:

ORDER The appeal is allowed in part. The judgment of conviction recorded in Special Case No.05/2009 dated 01.01.2013 by the Principal Sessions Judge, Raichur, convicting the appellants-accused Nos.1 and 2 for the offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the PC Act is hereby confirmed.

The order of sentence imposed by the Special Court against the appellants-accused Nos.1 and 2 sentencing them to undergo simple imprisonment for a period of two years for the offence punishable under Section 7 of the PC Act is hereby confirmed.

The order of sentence imposed against the appellants-accused Nos.1 and 2 sentencing them to undergo simple imprisonment for a period of five years for the offence punishable under Section 13(1)(d) r/w Section 13(2) of the PC Act is hereby modified and it is ordered that the appellants-accused Nos.1 and 2 shall 85 undergo simple imprisonment for a period of four years for the offence punishable under Section 13(1)(d) r/w Section 13(2) of the PC Act.

The other terms of the judgment of the Special Court kept intact.

Office is directed to send the entire trial court records along with copy of this judgment summoning the appellants-accused so as to serve the sentence.

Sd/-

JUDGE LG/sn

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Karnataka High Court