Kerala High Court
Kerson.V.M vs State Of Kerala on 18 October, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 21ST DAY OF MARCH 2018 / 30TH PHALGUNA, 1939
CRL.A.No. 1848 of 2011
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JUDGMENT IN CC 39/2009 of ENQ.COMMR. & SPL.JUDGE, THIRUVANANTHAPURAM
DATED 18-10-2011
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APPELLANT(S)/3RD ACCUSED :-
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KERSON.V.M, S/O.MARKOSE,
VAVAKKATTU, NEAR HOLY FAMILY CHURCH, POLLATHAI,
KALAVOOR, ALAPPUZHA, (PRESENTLY WORKING AS THE
SUB INSPECTOR OF POLICE, ANGAMALY POLICE STATION).
BY ADVS.SRI.P.VIJAYA BHANU (SR.)
SRI.P.M.RAFIQ
SRI.V.C.SARATH
RESPONDENT(S)/COMPLAINANT :-
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STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.C.S.HRITHWIK
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 7.12.2017 ALONG
WITH Crl.A.No.1947/2011, THE COURT ON 21.3.2018 DELIVERED THE FOLLOWING:
P.UBAID, J.
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Crl.A. Nos.1848 & 1947 of 2011
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Dated this the 21st day of March 2018
JUDGMENT
The appellant in Crl.A.No.1848/2011 is the 3 rd accused in C.C.No.39/2009 of the Special Court (Vigilance), Thiruvananthapuram, and the appellants in Crl.A.No.1947/2011 are the accused Nos.1 and 2 in the said case. The accused Nos.1 and 3 were respectively a police constable and the Additional Sub Inspector of Police of the Ernakulam Central Police Station, and the 2nd accused was a police constable of the Mulavukadu Police Station, Ernakulam during January - February, 2007. They faced prosecution in the court below on the allegation that as part of a criminal design hatched by them to receive bribe from one Anzarudheen and one Nazarudheen, who are traders of mobile recharge coupons on a threat that they would be arraigned as accused in Crime No.53/2007 of the Ernakulam Central Police Station registered in connection with the theft of large quantity of mobile recharge coupons from a shop at Ernakulam, they received `15,000/- from the said Nazarudheen on 23.1.2007, and `15,000/- from the said Crl.A. Nos.1848 & 1947 of 2011 -: 2 :- Anzarudheen on 1.2.2007 as illegal gratification. The three accused were trapped by the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau (VACB), Kollam on a complaint made by the said Anzarudheen on 1.2.2007. His complaint is that bribe was first demanded by the 1 st accused on 23.1.2007, he repeated the demand on several occasions, and he was directed to pay the money on 1.2.2007, on a threat that in case he failed, he would be arraigned as accused in the said theft case. At about 4 p.m. on 1.2.2007 he made a complaint before the VACB. The Deputy Superintendent of Police registered a crime on the said complaint, he arranged a trap, and at about 7.30 p.m., the three accused were arrested by the Deputy Superintendent of Police. They were trapped with the tainted currency of `15,000/- paid by the complainant Anzarudheen, and the said tainted currency was seized from the possession of the 1st accused. After the trap procedure and the arrest of the accused, investigation was taken over by another Deputy Superintendent of Police, and he submitted final report in court.
2. The three accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against them Crl.A. Nos.1848 & 1947 of 2011 -: 3 :- under Section 120B IPC, and under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act (for short, 'the P.C. Act'), 1988.
3. The prosecution examined nine witnesses, and proved Exts.P1 to P16 documents in the trial court. The MO1 to MO21 properties, including the tainted currency notes, were also identified during trial. When examined under Section 313 Cr.P.C., all the accused denied the incriminating circumstances, and projected a defence that they had in fact come at the shop of PW1 to arrest him as an accused in Crime No.53/2007 of the Central Police Station, and fearing arrest, the de facto complainant made a false complaint, and they were viciously trapped on such a complaint. The accused examined three witnesses in defence, and proved Exts.D1 to D9 documents.
4. On an appreciation of the evidence, the learned trial Judge found all the accused guilty under Sections 7 and 13(2) read with Section 13(1)(d) of the P.C. Act, and also under Section 120B IPC read with Section 7 of the P.C. Act. On conviction, the three accused were sentenced to undergo rigorous imprisonment for six months each, and to pay a fine of `1,000/- each under Section 120B IPC read with Section 7 of the Crl.A. Nos.1848 & 1947 of 2011 -: 4 :- P.C. Act, to undergo rigorous imprisonment for one year each, and to pay a fine of `2,000/- each under Section 13(2) read with Section 13(1)(d) of the P.C.Act, and the accused Nos.1 and 2 were sentenced to undergo rigorous imprisonment for six months each, and to pay a fine of `1,000/- each under Section 7 of the P.C.Act, by judgment dated 18.10.2011. Aggrieved by the judgment of conviction, the three accused have come up in appeal.
5. When the appeals came up for hearing, the learned Senior Counsel for the appellants submitted that there is absolutely nothing against the appellants except the seizure of some tainted money by the Deputy Superintendent of Police as per a mahazar, and that demand, which is the most essential requirement for a prosecution under Sections 7 and 13(1)(d) of the P.C.Act, stands not proved by any direct evidence, or circumstantial evidence. The learned Senior Counsel also submitted that the defence case projected by the accused is probabilised by the evidence adduced by the accused, and also the materials brought out in the cross examination of the material witnesses. As regards the prosecution sanction proved in this case, nothing was argued by the learned counsel. Crl.A. Nos.1848 & 1947 of 2011 -: 5 :-
6. Of the nine witnesses examined in the trial court, PW1 is the de facto complainant Anzarudheen, who gave the Ext.P3 F.I.Statement, that led to the registration of the crime in this case, and PW8 is the Deputy Superintendent of Police, who laid the trap, and arrested the accused. PW2 is the public servant, who witnessed the pre-trap and post-trap procedures. PW3 is the person, from whom the accused had allegedly received an amount of `15,000/- on 23.1.2007, and PW4 is an advocate examined to prove the demand made by the accused for illegal gratification. PW5 is the Inspector General of Police examined to prove the Prosecution Sanction, PW6 is the Village Officer, who prepared the scene plan, PW7 is the Assistant Sub Inspector of Police, who produced some documents before the Investigating Officer at the Ernakulam Central Police Station, and PW9 is the Deputy Superintendent of Police, who investigated the case, and submitted final report. The main evidence in this case is that of PW1 and PW4 for proving the alleged demand, and the main evidence for proving acceptance of illegal gratification is that of PW2 and PW8, besides that of PW1. During trial, PW3 practically turned hostile. Of course, he stated that one police officer had received `15,000/- from him as Crl.A. Nos.1848 & 1947 of 2011 -: 6 :- bribe, but he does not remember, who the said police officer is. He did not identify any of the accused during trial as the police officer, who received money from him. Thus, his evidence is of no use for the prosecution.
7. PW5 has proved the Ext.P7 prosecution sanction granted by him. His evidence shows that the prosecution sanction was granted by him on a consideration of all the materials placed before him by the VACB, and also on an independent application of his mind. Nothing was elicited or brought out to prove otherwise in his cross examination. I find that the prosecution has well proved the prosecution sanction granted under Section 19 of the P.C.Act.
8. Ext.P3 is the F.I.Statement given by PW1 at about 4 p.m. on 1.2.2007. This was in fact preceded by the Ext.P1 complaint made on 30.1.2017. The marking of Ext.P3 complaint was objected during trial on the ground that it will have no value as F.I.Statement, in view of the Ext.P1 complaint. The F.I.Statement forming the basis of a prosecution, or the basis of an FIR under Section 154 Cr.P.C. must be a definite complaint or statement containing the necessary details of a cognizable offence. It is pertinent to note that Ext.P1 was casually given by Crl.A. Nos.1848 & 1947 of 2011 -: 7 :- PW1 to the VACB, probably without any definite object of the concerned police officers being prosecuted. Any way, according to him, when the accused persistently made the demand, and even threatened that he would be arrested if he did not pay the money, he gave a detailed statement to the VACB on 1.2.2007. That is Ext.P3, forming the basis of the FIR in this case. The Ext.P1 complaint casually given by him does not contain the necessary, or the required details to register a crime. It does not contain the identity of the police officer, who demanded money from him, or when, or how, or in what circumstance money was demanded by the police officer, or in what manner, or a what place, or at what time, or on what date specifically the demand was made. In fact the VACB could not have registered a definite crime on the basis of the Ext.P1 complaint, for want of the required details. When Ext.P1 complaint does not contain the required details to form the basis of a Crime Report under Section 154 Cr.P.C., it cannot be said to be a definite complaint, first in point of time, and so, I find that the Ext.P3 complaint would not lose its sanctity as F.I.Statement, just because it was preceded by the Ext.P1 complaint.
Crl.A. Nos.1848 & 1947 of 2011 -: 8 :-
9. PW1 has given clear and satisfactory evidence proving the alleged demand and acceptance, and he is well consistent with the statements in the Ext.P3 complaint, on material particulars. Of course, as regards the seizure of the tainted money of `15,000/- from the possession of the 1st accused, the defence does not practically have any dispute. Their contention is that such tainted money was given to the 1 st accused by PW1 with the vicious object of trapping the three accused maliciously for fear that they would arrest him in connection with the theft case registered at the Central Police Station. Thus, practically the defence would admit the seizure of the tainted money of `15,000/- from the possession of the 1 st accused, subject to their contention otherwise, explaining how the said currency happened to be seized. Any way, seizure of the tainted currency identified as MO1 series during trial from the possession of the 1st accused stands well proved by the evidence of PW8, PW1 and PW2.
10. PW8 is the Deputy Superintendent of Police, who laid the trap on the basis of the Ext.P3 complaint of PW1, and PW2 is the public servant who witnessed the trap procedure. PW1 and PW2 have given evidence regarding the pre-trap procedure at Crl.A. Nos.1848 & 1947 of 2011 -: 9 :- the office of PW8, where phenolphthalein test was demonstrated to them. Their evidence is that PW1 was instructed by PW8 to make payment of the tainted money to the accused on demand, and accordingly, PW1 and the vigilance team left the office of PW8 at 7 p.m. on 1.2.2007. At about 7.30 p.m. all the three accused were arrested by PW8. The evidence of PW1 is that, when he reached the shop after 7 p.m., from the office of the Deputy Superintendent of Police, he saw the 2nd accused at his shop. The 2nd accused ascertained his name and identity, and in turn informed the others. Within two minutes, the accused Nos.1 and 3 reached there, and the 1st accused asked him whether the money was ready. Just then, PW1 handed over the tainted money of `15,000/- to the 1st accused. In turn, the 1st accused handed it over to the 2nd accused for counting, and after counting it, the 2nd accused returned the money to the 1 st accused. It was at that time, the vigilance team led by PW8 reached there. On being satisfied of acceptance of illegal gratification, PW8 arrested the three accused on the spot, and the tainted money was seized as per a detection mahazar. This mahazar is proved by PW8, PW1 and PW2. The public servant who witnessed the trap procedure has no reason to give any Crl.A. Nos.1848 & 1947 of 2011 -: 10 :- false evidence against the accused. He has given clear evidence regarding the post trap procedure, including the phenolphthalein test. This is the clear evidence given by PW8 and PW1 also. The illegal gratification was received by the 1 st accused from the hands of the complainant at his shop at about 7.30 p.m. on 1.2.2007.
11. Demand of illegal gratification, and acceptance of illegal gratification are the two essential requirements for a prosecution under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C.Act. Though the defence would contend that money was not in fact accepted by the accused as meant under the law, or that the tainted money happened to be seized from their possession as part of a vicious trap arranged by PW8 and PW1, it stands well proved by evidence that the MO1 series tainted currency notes were in fact accepted by the 1 st accused from the hands of PW1 as bribe. The 1 st accused has no acceptable explanation, why, or for what purpose he accepted money from PW1. The defence case is that PW1 made a false complaint, on the apprehension of arrest in a theft case. There is no explanation, why the accused should accept or receive money from PW1, when they came there to arrest him in a theft Crl.A. Nos.1848 & 1947 of 2011 -: 11 :- case. Seizure of the tainted money from the hands of the 1 st accused is well proved in this case by the evidence of PW1, PW2 and PW8. The 1st accused has no explanation why, or for what purpose, he accepted `15,000/- from PW1, if at all his case could be accepted, that he came there to arrest PW1 in the theft case. There is clear evidence proving the post trap procedure in this case. The evidence given by PW1, PW2 and PW8 regarding the post trap procedure including the seizure of tainted currency from the hands of the 1 st accused and the phenolphthalein test that followed, stands not discredited or effectively challenged. I find that the prosecution has well proved the seizure of MO1 tainted currency from the hands of the 1 st accused at the shop of PW1. I also find that this amount was in fact accepted by the 1 st accused from PW1 as bribe.
12. Of course, it is true that in a prosecution like this, there must be evidence to prove demand of illegal gratification. The law under Section 20 of the P.C.Act is that once acceptance is proved, it shall be presumed, unless the contrary is proved, that the public servant accepted gratification as a motive or reward, as is mentioned under Section 7. In this case, acceptance of `15,000/- by the 1st accused from the hands of Crl.A. Nos.1848 & 1947 of 2011 -: 12 :- PW1 stands proved, and the money accepted was well identified during trial by all the witnesses. When there is clear evidence to prove acceptance, the court will have to presume, under Section 20 of the P.C.Act, that the MO1 series tainted currency of `15,000/- was accepted by the 1st accused as illegal gratification, or as a reward. Any way, let me see whether the first essential stands proved in this case.
13. In B. Jayaraj v. State of Andhra Pradesh [(2014) 13 SCC 55], the Hon'ble Supreme Court held that in the absence of evidence proving demand of illegal gratification, the public servant cannot be found guilty merely on the basis of recovery of tainted currency from his possession. The Hon'ble Supreme Court also held that the presumption under Section 20 of the P.C.Act can be applied only when acceptance of illegal gratification is proved. It is also explained that such presumption can be applied only in respect of the offence under Section 7 of the P.C.Act. In P.Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another [(2015) 10 SCC 152], the Hon'ble Supreme Court held that there must be clear evidence proving demand of illegal gratification for conviction under Sections 7 and 13(1)(d) of the Crl.A. Nos.1848 & 1947 of 2011 -: 13 :- P.C.Act, and that mere recovery of tainted money dehors the proof of demand, ipso facto, would not be sufficient to prove demand under Sections 7 and 13 of the P.C.Act. Following the decisions of the Hon'ble Supreme Court, this Court held in Prakash Pai v. State of Kerala [2015 (3) KLT 989] that on the basis of recovery of the phenolphthalein tainted currency, an accused cannot be found guilty, and that for such a conviction, there must be clear and satisfactory evidence proving demand of illegal gratification. Thus, it is the legal position consistently settled by various judicial pronouncements of this Court, and the Hon'ble Supreme Court, that for a conviction under Sections 7 and 13(2) read with Section 13(1)(d) of the P.C.Act, the prosecution must essentially prove demand of illegal gratification by the public servant.
14. In this case, the evidence relied on by the prosecution to prove illegal gratification is that of PW1 and PW4. Of course, PW1 has no case that money was directly demanded from him by any of the accused. His case in the Ext.P3 complaint, and also his evidence, is that money was demanded by the 1 st accused over telephone, first on 23.1.2007, and the 1 st accused repeated this demand till 1.2.2017. When the 1 st accused felt that he Crl.A. Nos.1848 & 1947 of 2011 -: 14 :- would not get money from PW1, he started changing the tone of his demand, and threatened that PW1 would be arrested if he did not make payment. It was in such a circumstance, PW1 made the Ext.P3 complaint on 1.2.2007, and a trap was arranged by PW8 on such a complaint. Of course, PW1 does not say on what date specifically demand was made by the 1 st accused over telephone or otherwise, after 23.1.2007. His evidence is specifically about the demand made by the 1 st accused on 23.1.2007. His direct evidence is only regarding the visit made by some police officers, including the 1st accused at his shop on 10.1.2007 in connection with a theft complaint received at the Central Police Station. The prosecution case is that one Mashraf had committed theft of some mobile recharge coupons from a shop at Ernakulam, and when interrogated on arrest, it was revealed that the said Mashraf had sold some recharge coupons to PW1. It was as part of the said investigation, some police officers came at the shop of PW1 at Kollam on 10.1.2007 and questioned him. The said police team included a sub inspector of Police from the Kollam Police Station, and also the 1st accused in this case. At that time, of course, no demand was made by the 1 st accused. They came Crl.A. Nos.1848 & 1947 of 2011 -: 15 :- there for an enquiry regarding the statements made by the said Mashraf. However, on 23.1.2007, the three accused came at his shop in the evening when he was at his residence, and the fact was reported to him by the salesgirl there. The 1 st accused called him over telephone, and told him about the theft case. During the conversation, the 1 st accused demanded an amount of `25,000/- for not arraigning him as accused in the theft case. Immediately, a reply was not given by PW1. He, in turn, called his relative, PW4, who is an advocate, and sought his help and advice. As asked by PW4, he went to the house of PW4, and there PW4 contacted the 1st accused over telephone. As Asked by the 1st accused, PW4 went to meet the accused, and they had a talk and discussion regarding the amount demanded by the accused.
15. The demand made by the 1st accused to PW1 is allegedly over telephone. PW1 has given evidence regarding the mobile number of the 1st accused. Exts.D4 and D5 are some telephone numbers, including that of the 1 st accused and PW4, proved by DW1. These telephone details would show that the 1 st accused and PW4 had contacted over telephone in the evening on 23.1.2007 many times. It is not known what is the telephone Crl.A. Nos.1848 & 1947 of 2011 -: 16 :- number of the complainant. PW1 has no case that the 1 st accused was familiar to him previously, or that he could identify the 1st accused by his voice. But, there is clear evidence by him that when he reached the shop at about 7.30 p.m. on 1.2.2007 as part of the trap, money was demanded by the 1 st accused. Though, the first demand allegedly made on 23.1.2007 by the 1 st accused to PW1 over telephone is not proved properly, there is his evidence proving demand, just prior to the trap at his shop. This particular evidence will have to be read along with the evidence of PW4.
16. In Rakesh Kapoor v. State of Himachal Pradesh [(2012) 13 SCC 552], the Hon'ble Supreme Court held that in a case where demand of illegal gratification over mobile phone is alleged, the prosecution will have to prove those call details, and prove such telephonic contacts between the accused and the complainant. In this case, there is no scientific evidence, or call details proving the telephone contacts between the 1 st accused and PW1 on 23.1.2007, or thereafter, but, there is the clear evidence given by PW4, proving the demand made by the 1 st accused.
Crl.A. Nos.1848 & 1947 of 2011 -: 17 :-
17. The evidence of PW4, a practising advocate is that he is a relative of PW1, and in the evening on 23.1.2007, PW1 had called him over telephone to say about the demand made by the police for bribe in connection with a theft case. As asked by him, PW1 came to his house, and in the presence of PW1 he called the 1st accused over telephone, in the number given by PW1. Though he said that he would discuss the matter over telephone, he was required by the 1st accused to meet him personally. Accordingly, he met the accused near the premises of the Kollam Police Station, and they had a talk and discussion regarding the demand made by the accused. His evidence is that though the three accused were there, demand was in fact made by the 1st accused that PW1 will have to pay `25,000/- for not arraigning him as accused in the theft case. Though PW4 resisted the demand on legal grounds, PW1 threatened that he knew how to arraign PW1 as accused even without materials like recovery. Thus, the evidence of PW4 is definite that the 1 st accused had demanded money, or specifically an amount of `25,000/- for not arraigning PW1 as accused in Crime No.53/2007 of the Central Police Station, Ernakulam. I find no reason to disbelieve PW4, or to reject his evidence. He is Crl.A. Nos.1848 & 1947 of 2011 -: 18 :- definite that the 1st accused demanded money not to arraign PW1 as accused in the theft case. I find that the first essential of the offence stands well proved by the evidence of PW4, read along with the other circumstances.
18. Now the question is who among the three accused can be held liable in this case. The court below found all the three accused guilty, on a finding regarding criminal conspiracy. To rope in persons on a charge of criminal conspiracy, there must be satisfactory and definite materials proving the criminal design hatched by the accused. In this case, there is clear evidence that illegal gratification was accepted by the 1 st accused from PW1. Phenolphthalein test on the spot turned negative in the case of the 3 rd accused. The prosecution has no material as against the 3rd accused, except that he was also a member of the police team that came at the shop of PW1 on 23.1.2007, and on 1.2.2007. That apart, there is no circumstance against the 3rd accused. Nobody has got a case that any demand was made by the 3 rd accused. There is no evidence to prove that any sort of demand was made by the 3 rd accused to anybody in this case. Just because, he also happened to be a member of the police team, the 3rd accused cannot be Crl.A. Nos.1848 & 1947 of 2011 -: 19 :- found guilty, and he cannot be made liable under the P.C.Act on a charge of criminal conspiracy. Demand is proved as against the 1st accused, and acceptance is also proved as against the 1 st accused. The evidence of PW1 is that money was accepted from him by the 1st accused, and the demand was also made by him. He has no case that any demand was made by the accused Nos.2 and 3. When the legal position is that even mere recovery of tainted money from the possession of a public servant is not sufficient for a conviction under the P.C.Act, the position of the 3rd accused is really safe because, even the phenolphthalein test in this case turned negative as against him. Thus, I find that there is no satisfactory material as against the 3rd accused to show that he had made any demand of illegal gratification, or that he had accepted illegal gratification for any purpose, and so, the 3rd accused is entitled for acquittal.
19. Now the question is whether there is satisfactory evidence as against the 2nd accused. As already found, the whole evidence is practically and mainly against the 1 st accused. It was he who made demand of illegal gratification, and it was he who accepted the MO1 tainted currency from the hands of PW1. The only piece of evidence against the 2nd accused is that after Crl.A. Nos.1848 & 1947 of 2011 -: 20 :- accepting the money from PW1, the 1 st accused handed it over to the 2nd accused for counting, and after counting the currency, the 2nd accused returned it to the 1 st accused. When the vigilance team came there, the tainted currency was in the possession of the 1st accused, and it was seized from his possession. Nothing was seized from the possession of the 2 nd accused. Of course, the phenolphthalein test in the case of the 2nd accused turned positive. This is because he had counted the tainted currency as requested by the 1st accused. Practically the only evidence or circumstance against the 2 nd accused is that the money accepted by the 1st accused was just counted by him. This may not by itself prove the involvement or participation of the 2nd accused as a conspirator or otherwise. This alone may not be sufficient to rope him under Section 120B IPC. There is nothing to show that the 2nd accused had any active involvement or complicity in the demand made by the 1 st accused. There is no definite material proving the participation, or complicity, or involvement of the 2nd accused in the demand made by the 1st accused. Thus, I find that the 2nd accused is also entitled for acquittal. The allegations as against the 2 nd accused are really suspicious. There is no clear and satisfactory circumstance Crl.A. Nos.1848 & 1947 of 2011 -: 21 :- against him. The conduct of the 2 nd accused that he just counted the currency handed over by the 1 st accused may raise some suspicion regarding his involvement, or complicity. What is required for conviction is not suspicion, but clear evidence. Merely on the basis of suspicion, an accused cannot be convicted. But the case against the 1st accused is entirely different. There is clear and convincing evidence as against him to prove the essentials beyond any reasonable doubt. Demand made by him stands well proved by the evidence of PW4, read along with the evidence proving demand just prior to the trap to PW1 at his shop. Acceptance of the MO1 tainted currency by the 1st accused stands well proved by the evidence of PW1, PW2 and PW8, including the evidence regarding the post-trap procedure. The 1st accused has no explanation for acceptance of `15,000/- from PW1. If at all his case is acceptable that he and his team came there to arrest PW1 as accused in the theft case, there is no explanation why he should accept `15,000/- from the accused in a criminal case, if not as bribe. This acceptance made by him invites the legal presumption under Section 20 of the P.C.Act, that the 1st accused accepted the amount as a Crl.A. Nos.1848 & 1947 of 2011 -: 22 :- reward for not arraigning PW1 as accused in Crime No.53/2007 of the Central Police Station.
In the result, Crl.A.No.1848/2011 is allowed. The appellant therein (3rd accused) is found not guilty of the offence under Section 120B IPC read with Section 7 of the P.C.Act, and under Section 13(2) read with Section 13(1)(d) of the P.C.Act, and he is acquitted of those offences in appeal under Section 386(b)(i) Cr.P.C. Accordingly, the conviction and sentence against him in C.C.No.39/2009 will stand set aside, and he will stand released from prosecution. The bail bond executed by him will stand discharged.
Crl.A.No.1947/2011 is allowed in part. The 2 nd appellant (2nd accused) is found not guilty of the offence under Section 120B IPC read with Section 7 of the P.C.Act, and under Section 13(2) read with Section 13(1)(d) of the P.C.Act, and he is acquitted of those offences in appeal under Section 386(b)(i) Cr.P.C. Accordingly, the conviction and sentence against him in C.C.No.39/2009 will stand set aside, and he will stand released from prosecution. The bail bond executed by him will stand discharged.
Crl.A. Nos.1848 & 1947 of 2011 -: 23 :- But, the conviction against the 1 st accused under Section 7 of the P.C.Act, and under Section 13(2) read with Section 13(1)(d) of the P.C.Act will stand confirmed in appeal. However, the jail sentence imposed by the court below under Section 13(2) read with Section 13(1)(d) of the P.C.Act will stand reduced to rigorous imprisonment for six months. The fine sentence, with the default sentence thereon is maintained. The substantive sentences in the case of the 1 st accused will run concurrently, and he will also get the benefit of set off. His conviction and sentence under Section 120B IPC read with Section 7 of the P.C.Act is set aside.
Sd/-
P.UBAID JUDGE //True copy// P.A. To Judge Jvt/30.12.2017