Karnataka High Court
State Of Karnataka vs Sudarshan Reddy S/O. Raghav Reddy on 5 January, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRL.A. NO.2922 OF 2012
BETWEEN
STATE OF KARNATAKA
THROUGH LOKAYUKTA POLICE, KOPPAL,
BY SPECIAL PUBLIC PROSECUTOR, DHARWAD
HIGH COURT OF KARNATAKA
CIRCUIT BENCH, DHARWAD
...APPELLANT
(BY SRI.ANIL KALE, ADV.,)
AND
SUDARSHAN REDDY S/O. RAGHAV REDDY
OCC: ASSISTANT ENGINEER, APMC NO.2,
SUB.DN. GANGAVATHI R/O. SIRGUPPA TOWN,
DIST: BELLARY
...RESPONDENT
(BY SMT.IRFANAA NAZEER, ADV.)
THIS CRIMINAL APPEAL IS FILED U/SEC. 378(1) & 378(3) OF
CR.P.C. SEEKING TO GRANT A LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL PASSED BY THE SESSIONS
AND SPECIAL JUDGE, KOPPAL ON 18.05.2012 IN SPL.CASE (P.C.)
13/2010, AGAINST THE RESPONDENT ACCUSED FOR THE OFFENCES
P/U/SEC. 7, 13(1)(D) R/W 13(2) OF PREVENTION OF CORRUPTION
ACT AND SET ASIDE THE JUDGMENT AND ORDER OF THE TRIAL
COURT IN 18.05.2012 PASSED BY THE SESSIONS AND SPECIAL
JUDGE, KOPPAL IN SPL. CASE (P.C.) 13/2010 AND CONVICT THE
RESPONDENT/ACCUSED.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
2
JUDGMENT
The appellant-Lokayukta is before this Court calling in question judgment dated 18/5/2012 passed in Special Case (PC) No.13/2010 acquitted the accused of the offences punishable under Sections 7, 13(1) (d) R/w. Section 13 (2) of P.C. Act, 1988 ( for Short the Act).
2. Heard Sri.Anil Kale, learned counsel for the appellant and Smt.Irfana Nazeer, learned counsel for respondent.
3. Brief facts leading to filing of the present appeal as borne out from the pleadings are as follows :
The respondent at the relevant point of time was working as a Assistant Engineer at APMC.No-2, Sub division Gangavathi. One Sri.Abdul Khadar registered a complaint before the Lokayuktha police, Raichur alleging that the payment to be made to the contractor was not released, for the reason that he did not fulfill the demands of the respondent. The demand according to complainant 3 was Rs.50,000/- out of which Rs.40,000/- had already been paid to the respondent and remaining amount of Rs.10,000/- was yet to be paid. The allegation is that the respondent insisted upon the payment of balance amount for issuance of completion certificate which would be necessary for releasing of amount from the hands of the competent authority. Based upon the said complaint a case was registered in Crime No.9/2008 for offences punishable under Sections 7, 13(1) (d) R/w. Section 13 (2) of the Act and FIR came to be registered against the accused for the aforesaid offences.
4. The trial was conducted for the aforesaid offences against the accused in Special Case No.13/2010.
The trial Court by its judgment dated 18/5/2012 acquitted the respondent of the aforesaid offences by giving benefit of doubt holding that the evidence let in, by the appellant would cast a doubt, as there was no direct evidence that would link the alleged act to the offences punishable under 4 the Act. It is this order of acquittal that is called in question by the Lokayuktha in the subject appeal.
5. Sri.Anil Kale, learned counsel appearing for the appellant-Lokayuktha would vehemently argue and contend that the Special Judge has erred in acquitting the accused by giving benefit of doubt. Demand and acceptance had been substantially proved before the trial Court by the appellant, in the light of the evidence that was let in by all the witnesses, merely because the complainant turned partly hostile, the Special Judge has erred in acquitting the accused. He would further submit that shadow witness-PW.1 supported the case of the Lokayuktha in its entirety and that would be enough evidence to convict the accused.
6. On the other hand, learned counsel Smt.Irfana Nazeer appearing for the respondent would take this Court to the finding of the special Judge and contends that there was no evidence that would link the act of the accused to 5 the offences alleged. Hence, she sought for dismissal of the appeal.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
8. The afore-narrated facts leading to the filing of the present appeal not being in dispute, are not reiterated.
Before embarking upon the consideration of the case on its merit, it is germane to notice the scope of interference by the Appellate Court in an appeal filed against an acquittal under Section 378 of the Cr.P.C. The Apex Court in the case of RAMESH BABULAL DOSHI V. STATE OF GUJARAT reported in (1996) 9 SCC 225, has held as follows:
"7. Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed 6 with the trial court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above-quoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then -- and then only -- reappraise the evidence to 7 arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial court are sustainable or not."
Later, the Apex Court in the case of CHANDRAPPA AND OTHERS VS. STATE OF KARNATAKA reported in (2007) 4 SCC 415, has held as follows:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.8
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty 9 by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
In its latest judgment, the Apex Court in the case of MOHAN ALIAS SRINIVAS ALIAS SEENA ALIAS TAILOR SEENA Vs. STATE OF KARNATAKA reported in 2021 SCC ONLINE SC 1233, has held as follows "23. This court, time and again has laid down the law on the scope of inquiry by an Appellate court while dealing with an appeal against acquittal under Section 378 CrPC. We do not wish to multiply the aforesaid principle except placing reliance on a recent decision of this court in Anwar Ali v. State of Himanchal Pradesh, (2020) 10 SCC 166:
10"14.2. When can the findings of fact recorded by a court be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under
: (Babu case [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179]) "20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material.
The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v.
Delhi Admn. [Rajinder Kumar Kindra v. Delhi Admn., (1984) 4 SCC 635 : 1985 SCC (L&S) 131], Excise & Taxation Officer-cum-
Assessing Authority v. Gopi Nath & Sons [Excise & Taxation Officer-
cum-Assessing Authority v. Gopi Nath & Sons, 1992 Supp (2) SCC 312], Triveni Rubber & Plastics v. CCE [Triveni Rubber & Plastics v.
CCE, 1994 Supp (3) SCC 665], Gaya Din v. Hanuman Prasad [Gaya Din v. Hanuman Prasad, (2001) 1 SCC 501], Aruvelu [Arulvelu v.
State, (2009) 10 SCC 206 : (2010) 11 1 SCC (Cri) 288] and Gamini Bala Koteswara Rao v. State of A.P. [Gamini Bala Koteswara Rao v.
State of A.P., (2009) 10 SCC 636 :
(2010) 1 SCC (Cri) 372] )"
It is further observed, after following the decision of this Court in Kuldeep Singh v. Commr. of Police [Kuldeep Singh v. Commr. of Police, (1999) 2 SCC 10 : 1999 SCC (L&S) 429], that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.
14.3. In the recent decision of Vijay Mohan Singh [Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 : (2019)
2 SCC (Cri) 586], this Court again had an occasion to consider the scope of Section 378 CrPC and the interference by the High Court [State of Karnataka v. Vijay Mohan Singh, 2013 SCC OnLine Kar 10732] in an appeal against acquittal. This Court considered a catena of decisions of this Court right from 1952 onwards. In para 31, it is observed and held as under:
"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai [Umedbhai 12 Jadavbhai v. State of Gujarat, (1978) 1 SCC 228 : 1978 SCC (Cri) 108]. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record.
However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under:
'10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence.
This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the 13 peculiar circumstances of the case.' 31.1. In Sambasivan [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320], the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under:
'8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court 14 has not strictly proceeded in the manner laid down by this Court in Doshi case [Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 : 1996 SCC (Cri) 972] viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non- compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether 15 the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case.' 31.2. In K. Ramakrishnan Unnithan [K. Ramakrishnan Unnithan v. State of Kerala, (1999) 3 SCC 309 : 1999 SCC (Cri) 410], after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not 16 adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.
31.3. In Atley [Atley v. State of U.P., AIR 1955 SC 807 : 1955 Cri LJ 1653], in para 5, this Court observed and held as under:17
'5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.
It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-
established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses 18 whose evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State [Surajpal Singh v. State, 1951 SCC 1207 : AIR 1952 SC 52]; Wilayat Khan v.
State of U.P. [Wilayat Khan v. State of U.P., 1951 SCC 898 : AIR 1953 SC 122]) In 19 our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.' 31.4. In K. Gopal Reddy [K. Gopal Reddy v. State of A.P., (1979) 1 SCC 355 : 1979 SCC (Cri) 305], this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."
Therefore, what would unmistakably emerge from a coalesce of the afore-extracted enunciation of law by the Apex Court is, merely because the Appellate Court has power to review, re-appreciate and reconsider the evidence, such power need not be exercised except for substantial and compelling reasons. The Appellate Court must bear in mind that in case of acquittal, there is double 20 presumption in favour of the accused. One that is available as a fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent, unless he is proved guilty except otherwise provided and the other is, that he wears the order of acquittal on his sleeve.
Therefore, the Appellate Court will have to reverse any such acquittal only if there are very strong reasons to do so. On the bedrock of the principles laid down by the Apex Court, the case at hand will have to be considered.
9. The allegation against the accused is of demand and acceptance. The allegation sprang from the complaint registered by the complainant-PW.2. The complaint is registered on the ground that the accused demanded bribe for issuance of a completion certificate without which the contractor/complainant would not get the amount spent on such work from the hands of the Government. The complainant during the trial turns hostile, though not completely, but to a large extent, the incident is admitted 21 by the complainant, however the contents of the complaint is denied, on the ground that the complainant did not scribe the complaint but it was laid at the behest of one Markhandappa who also had a grievance against the accused. Thus, the evidence of PW.2 would not come in aid to the case of the Lokayuktha-appellant.
10. The other material witness who is examined in the trial is PW.3-Maruti a co-pancha. He also does not support the prosecution/appellant. PW.3 in the cross examination has deposed that he did not hear the conversation between the accused and complainant and therefore the evidence of PW.3 also would not come to aid of the appellant. The other witness PW.4-Rachayya who was Assistant Executive Engineer, he deposes with regard to visiting of spot as per the communication sent by the Lokayuktha and of submission of a report of inspection and a sketch prepared, again in response a communication of the Lokayuktha.
2211. The other witnesses are not material witnesses to drive home the guilt against the accused though they are 12 in number. The material witnesses being PWs. 2, 3, 4, 5, 7 and 8, have all turned hostile or declined to support the prosecution. The trial Court after assessment of evidence has rendered cogent and coherent reasons to arrive at the conclusion that evidence let in by the Lokayuktha would cast a doubt about whether there was any demand and acceptance by the accused. It is germane to notice the reasons rendered by the Special Judge at para 27 of the judgment, it reads as follows:
27. This Court perused entire oral and documentary evidence and also followed the guidelines enunciated by their Lordship of the rulings relied by both the sides. In the case like this, it is for the prosecution to prove demand and acceptance. On coming to the evidence of PW-2 who is the complainant he has not supported to prosecution case. He has clearly deposed stating that he has entrusted 23 the work to sub-contractor Sri.Markhandeppa and This Markhandappa had taken him to Raichur Lokayukta. P.S and there it was made him to lodge the complaint as per Ex.P-25 and there was no demand and acceptance of the bribe amount by the accused. The another witness PW-3 who is co-pancha also not supported to prosecution case on material aspect.
The supported witness PW-1 who is the pancha-1 though deposed in his examination-in-chief. stating that there was demand and acceptance by the accused of bribe amount but in his cross-examination he deposed stating that he could not have hear the conversation what it had taken place between the accused and complainant since there was big noise from the outside. This relevant version which is in page-11 of his cross examination reads thus:
£ÁªÀÅ ¤AvÀ ¸ÀܼÀPÀÆÌ ºÁUÀÆ ¦AiÀiÁ𢠨ÁvÀgÀƪÀÄ¢AzÀ §gÀÄwÛzÀÝ DgÉÆæAiÀÄ£ÀÄß ºÉÆÃV ¨ÉnÖAiÀiÁzÀ ¸ÀܼÀPÀÆÌ ¸ÀĪÀiÁgÀÄ 15 ¥sÀÇl EvÀÄÛ DzÀgÉ 25 jAzÀ 30 ¥sÀÇl C®è. ºÉÆgÀUÉ §ºÀ¼ÀµÀÄÖ UÀ¯ÁmÉ E¢ÝzÀÝjAzÀ ¦AiÀiÁ𢠪ÀÄvÀÄÛ DgÉÆæ K£ÉãÀÄ ªÀiÁvÀ£ÁrzÀgÀÄ CAvÁ £À£ÀUÉ ¸ÀàµÀÖªÁV PÉý®è.24
He further deposed in his cross- examination stating that the shirt seized was of Checks half shirt, on the other hand the shirt before this Court is of full shirt. One more interesting point to mention that the FSL report is at Ex.P-36 in which in all articles Nos.1 to 11 have examined the article at SI.No.11 is cover with shirt shows test for phenolphthalein positive and test for sodium carbonate solution negative.
In case this shirt is at M.0.10 and its pocket portion dipped in sodium carbonate solution at the time of FSL examination it ought to have shown the positive result of sodium carbonate solution On the other hand the FSL report at Ex.P-36 for sodium carbonate solution is negative. Thus it is creating doubt regarding testing of this shirt by immersing shirt pocket portion in sodium carbonate solution. PW-2 and 3 have not supported to prosecution case and PW-1 deposed stating that he could not hear the conversation what it had taken place between the complainant and accused. Thus on the relevant 25 point of demanding and acceptance the evidence of PW-1 cannot be believed. Therefore it can be said that the prosecution failed to prove demand and acceptance. There are other materials regarding seizing of Rs.10,000/- of the alleged bribe amount from the accused etc.. and it is the argument of learned public prosecutor is that the presumption under Sec.20 of the Act can be drawn. On the other hand it is clear from the rulings relied by counsel for accused that such presumption can be drawn only if demand and acceptance is proved. In the instant case, the prosecution failed to prove demand and acceptance and thus the presumption under Sec.20 of the Act cannot be drawn. It is the argument of learned public prosecutor is that the supported version of PW.2 and 3 may be taken to the consideration. On taking to the consideration of the supported version it is no where stated by PW-2 that the accused demanded the bribe amount and he has paid it. PW-3 is co pancha who was standing 26 out side and his evidence does not carry much weight and even if taken to the consideration of supported version of PW-2 and 3 the same does not helpful to the prosecution case. Thus, the above three rulings relied by the learned special public prosecutor are not applicable to the case on hand. On the other hand, the rulings relied by the counsel for the accused are exactly applicable to the case on hand except the ruling relied on non-applying of the proper mind by the prosecution sanctioning authority. It is the arguments of counsel for the accused that prosecution sanction authority not applied the mind in proper manner and thus it can be said that there is no prosecution sanction. On careful perusal of evidence of PW-10 there is no reason to take doubt regarding giving of prosecution sanction as per Ex. P 33 thus the ruling relied by the counsel for the accused on this aspect is not tenable in law. The one more important aspect considered by this Court is that the work completion 27 certificate is at Ex.D-1, which is dtd. 12.9.2008. The complaint at Ex P-25 is dtd. 16.9.2008 and it indicates that the work completion certificate as per Ex.D-1 had already issued and thus there is no question of pending work with the accused of the complainant The ruling relied by the counsel for accused on this aspect is also exactly applicable to the case on hand. As the complainant himself turned hostile thus the accused can be acquitted and the prosecution has failed to prove the ingredients of demand and acceptance and the rulings relied by the counsel for the accused on this aspect also exactly applicable to the case on hand.
12. On the basis of the aforesaid reasons rendered, the trial Court has passed an order of acquittal by granting benefit of doubt. The reasons further assigned by the Special Judge reads as follows:
29. It is clear from the ruling of our own Hon'ble High Court which is reported in 2004 (2) KCCR 1233, in 28 which it is clear that it is not safe to convict the accused when evidence of the complainant and shadow witness is not corroborated each other. In the instant case, the complaint not supported to prosecution case and the evidence of the shadow witness is also doubtful as mentioned above. Thus. it is not safe to convict the accused. On careful assessing of entire oral and documentary evidence and also on perusal of rulings relied by both the sides it is clear that the prosecution has failed to bring home the guilt against the accused beyond reasonable doubt.
The accused is entitled for benefit of doubt and for acquittal. Thus, I answer these points in the negative.
13. It is also germane to notice an undisputed fact.
On the same set of facts the Government had entrusted a departmental inquiry against the respondent to the hands of the Lokayuktha in the said department inquiry the Lokayuktha had exnorated the respondent of the 29 allegations leveled on the departmental side. If nothing could be proved against the respondent on preponderance of probability even, it can hardly be imagined that such allegations could be proved, beyond all reasonable doubt in a criminal trail, this is another factor that is in aid in favour of acquittal of the respondent.
14. The subject appeal being considered on the touchstone of the law laid down by the Hon'ble Apex Court in the aforesaid cases, the same would not warrant any interference at the hands of this Court. The appeal lacks merit and is dismissed.
SD JUDGE Vb/-