Karnataka High Court
Mohammed Hussain S/O Khudabax Havaldar vs The State Of Karnataka on 26 June, 2008
Author: Jawad Rahim
Bench: Jawad Rahim
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 12 t h DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE JAWAD RAHIM
CRIMINAL APPEAL No.1276/2007 [C]
C/w.
CRIMINAL APPEAL No.1332/2007 [C]
IN CRL.A.1276/07:
BETWEEN:
SHRI BASAVARAJ SHANKARAYYA CHIKKODI
AGED ABOUT 69 YEARS
RTD., SUB REGISTRAR
R/O CHIKKODI
SINCE DECEASED REP: BY HIS LRS:
1. GIRIJA W/O LATE. BASAVARAJ CHIKKODI,
AGED ABOUT 55 YEARS, OCC: HOUSE HOLD
WORK, R/O CHIKKODI, DIST: BELGAUM.
2. SIDDALINGESHWAR
S/O LATE BASAVARAJ CHIKKODI
AGED ABOUT 32 YEARS, OCC: BUSINESS
R/O CHIKKODI, DIST: BELGAUM.
3. SAVITHA W/O SIDDALINGESHWAR VIRAKTAMATH
AGED ABOUT 35 YEARS, OCC: HOUSEHOLD WORK
R/O 21ST CROSS, ISHWAR TEMPLE ROAD,
VIDYAGIRI, BAGALKOT.
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4. SRIDEVI W/O MAHANTESH KUMBARGERIMATH,
AGED ABOUT 31 YEARS, OCC: HOUSEHOLD WORK
R/O KUMBAR ONI, AT RAMADURG, BELGAUM DIST.
5. ASHWINI W/O V. SHIVARAJ HIREMATH
AGED ABOUT 28 YEARS, OCC: HOUSEHOLD WORK
R/O KUMBAR ONI, AT RAMADURGA, BELGAUM DIST.
...APPELLANTS
(BY SRI. ASHOK R.KALYANASHETTY ADV. FOR
L.R's OF DECEASED APPELLANT)
AND:
THE STATE OF KARNATAKA
BY IT'S P.I LOKAYUKTA POLICE, BELGAUM
OFFICE OF KARNATAKA LOKAYUKTA,
M.S. BUILDING, BANGALORE.
... RESPONDENT
(BY SRI. M B GUNDAWADE ADV.)
THIS CRL. APPEAL IS FILED U/S.374(4) CR.P.C BY
THE ADVOCATE FOR THE APPELLANT AGAINST THE
JUDGEMNT DT.23.7.2007 PASSED BY THE SPL.JUDGE
(PRL.S.J.) BELGAUM IN S.C.48/2002 - CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCE P/U/S.7,
13(1)(d) R/W SEC.13(2) OF THE P.C.ACT,
1988,SENTENCING HIM TO UNDERGO R.I. FOR ONE YEAR
AND PAY FINE OF RS.10,000/- AND IN DEFAULT OF
PAYMENT OF FINE, TO FURTHER UNDERGO S.I. FOR
THREE MONTHS, FOR THE OFFENCE U/S.7 OF THE P.C.
ACT, 1988. FURTHER SENTENCED TO UNDERGO R.I. FOR
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ONE YEAR AND PAY FINE OF RS.10,000/- AND IN DEFAULT
OF PAYMENT OF FINE, TO FURTHER UNDERGO S.I. FOR
THREE MONTHS, FOR THE OFFENCE U/S. 13(2)(d) R/W
SEC.13(2) OF THE P.C.ACT, 1988. BOTH ABOVE
SUBSTANTIVE SENTENCES OF IMPRISONMENT SHALL RUN
CONCURRENTLY.
In Crl.A.1332/07:
BETWEEN:
MOHAMMED HUSSAIN
S/O KHUDABAX HAVALDAR
AGED ABOUT 60 YEARS,
OCC: BOND WRITER,
R/O.KHANAPUR,
BELGAUM DISTRICT.
...APPELLANT
(By Sri. R B DESHPANDE ADV.)
AND:
THE STATE OF KARNATAKA
LOKAYUKTA POLICE,
BELGAUM.
... RESPONDENT
(By Sri. M B GUNDAWADE ADV.)
THIS CRL. APPEAL IS FILED U/S.374(2) CR.P.C BY
THE ADVOCATE FOR THE APPELLANT AGAINST THE
JUDGMENT DT.23.7.2007 IN S.C.NO.48/2002 ON THE FILE
OF THE SPECIAL JUDGE (PRL.SESSIONS JUDGE),
BELGAUM, CONVICTING THE APPELLANT/ACCUSED NO.2
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FOR THE OFFENCE P/U/S.8 OF THE P.C.ACT,1988, AND
SENTENCING HIM TO UNDERGO R.I FOR SIX MONTHS
AND PAY FINE OF RS.1,000/-, AND IN DEFAULT OF
PAYMENT OF FINE, TO FURTHER UNDERGO S.I. FOR ONE
MONTH, FOR THE OFFENCE U/S.8 OF THE P.C.ACT.1988.
THESE APPEALS COMING ON FOR FINAL
DISPOSAL THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
J U D G M E N T
These two criminal appeals are directed against the judgment in the Spl.CaseNo.48/2002 dated 23.07.2007 convicting Basavaraj Shankarayya Chikkodi, the Sub-registrar of Khanapur Taluk and one Mohammed Hussain S/o. Khudabax Havaldar, document writer, a freelancer, working in the said Office, for offence punishable under Sections 7, 8, 13(1)(b) read with Section 13(2) of the Prevention of Corruption Act, 1988 [for short 'P.C.Act'].
2. As common grounds and facts and law are urged to assail the finding of the trial judge, these :5: appeals are clubbed and taken up for final disposal together.
3. Crl.A.1276/2007 is filed by Accused No.1 and is now continued by his legal heirs representatives Smt.Girija, wife and children Siddalingeshwar, Savitha, Sridevi, Ashwini upon his death during the pendency of this appeal and Crl.A. No.1322/2007 is by the Accused No.2/ Mohammed Hussain assailing the same judgment.
4. Heard the learned counsel. Perused the records, which reveals:-
Basavaraj Shankarayya Chikkodi was a permanent employee of the State Government working as a Sub-Registrar and was posted to Sub-Registrar's Office in Khanapur Taluk, Khanapur. In the said office, there were many private individuals doing odd jobs. One amongst whom was Mohammed Hussain S/o. Khudabax Havaldar, a document writer.:6:
5. It is alleged, on 31.03.2001, the complainant/Sambaji Nagappa Patil tendered two deeds of sale by which he purchased southern half portion of property bearing TMC No.1578/1.D, situate in R.S. No.49/1.B, Belgaum Road, Khanapur, and northern half portion was purchased by his wife Smt.Vaishali Patil paying sale consideration of Rs.3,40,000/- each in all Rs.6,80,000/-. One Vinayak @ Deepak Varde and Ramachandra @ Vikas Varde were the vendors. After he tendered the document for registration, Accused No.1/Basavaraj Shankarayya Chikkodi is alleged to have demanded Rs.11,200/- a s bribe for each of the sale deeds to be registered. He could not pay the amount and bargained, which resulted in the accused settling for Rs.10,000/- for each of the document. Then, the complainant approached the accused on 30.03.2001 and the deal was finalized and on 31.03.2001, at 5.00 p.m., the :7: documents were tendered. The accused demanded the complainant/Sambaji Patil to pay the amount through Accused No.2, who acted as an agent. The complainant was disgusted at the illegal demand and lodged a report at the Lokayukta Office, who registered it and arranged a trap.
6. The Inspector of Lokayukta/PW-5 [S.D.Bagawadmath] summoned PW-
1/Mahalingayya S.Baladimath and PW-2/Ravi Parashuram Gangoji to be the puncha-witnesses to the trap and prepared a Entrustment Mahazar treating hundred currency notes of Rs.100/- denomination and twenty notes of Rs.500/- denominations with Phenolphthalein and handed it over to PW-1 for counting. The notes were handed over to PW-4/Sambaji Patil with an instruction to give it to the accused on demand.
7. With this preparatory act, as a prelude to the trap, the Inspector took them in a jeep and :8: reached the Office of the Sub-Registrar at 5.00 p.m. He strictly instructed the complainant to give it to accused on demand. PW-2 is placed as a shadow witness. The others were in wait and watch.
8. As planned, a predetermined signal was given by the complainant/PW-4, to which the Inspector responded and rushed to the spot with Panchas. As he entered the office, he found Rs.20,000/- on the table. The accused was questioned, who revealed that the complaint had kept it on the table on his own without any demand. His statement was recorded and on further enquiry, it is found that the notes were received by the accused No.2/Mohammed Hussain.
9. The bait money was seized. Hand-wash of only the accused No.2 is collected, which showed colourisation after reacting with Sodium Carbonate solution. The Trap Mahazar was prepared of what :9: transpired, authenticated by the witnesses. They returned after arresting the accused who were released on bail in the subsequent action that followed.
10. After obtaining sanction from the Government to prosecute the first accused, a final report was filed directly to the Special Judge (Prl. Sessions Judge), who took cognizance and put both the accused to trial.
11. In the trial, that ensued, the prosecution has examined five witnesses and placed reliance on 18 documents and 9 material objects. The learned trial judge recorded specific finding that the prosecution had established charge against Accused No.1 for offence punishable under Sections 7, 13(1)(d), 13(2) of the P.C. Act and against accused No.2, under Section 7 read with Section 8 of the P.C. Act. He sentenced both of them to different period of imprisonment by the : 10 : impugned judgment, which is assailed in these appeals.
12. After filing of this appeal, Accused No.1/Basavaraj Shankarayya Chikkodi died, but his legal heirs pursued to seek total acquittal for him.
13. Sri.Ashok R.Kalyanashetty, learned counsel for the appellants in Crl.A.1276/07, was at his best in assailing the judgment on several grounds. On behalf of the appellant in Crl.A.1332/07, Sri.R.B.Deshpande had represented. Sri Gundwade, learned SPP, appears on behalf of the respondent/Lokayukta.
14. Keeping in mind what is urged by the learned counsel, I have re-appreciated the evidence on record. Before I advert to it, certain factual aspects which are not in dispute needs mention:
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(i) Accused No.1/Basavaraj Shankarayya Chikkodi was the Sub-Registrar of Taluk Khanapur. He was on duty on 31.03.2001 at 5.00 p.m. when the raid was conducted.
(ii) Cash of Rs.20,000/- in currency notes of various denominations was seized from the Office of the Sub-Registrar (Accused No.1) kept on his table;
(iii) The cash was not recovered from the possession of Accused No.1;
(iv) There was no sign of 1st accused / Basavaraj having handled the bait money of Rs.20,000/-;
(v) The process of registration of sale deed was already complete when the raid was conducted;
(vi) The notes were found on the table of Accused No.1 during the working hours and there was presence of several other persons in the office. Lastly,
(vii) Accused No.2 was neither employed temporarily or on permanent basis in the Office of Accused No.1. He was a freelancer document writer.
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15. The prosecution could not bring in any material to show that Accused No.2 was in any way under the domain and control of accused No.1, except that he was in the vicinity of the Sub-Registrar, eking out his livelihood as a document writer.
16. The facts in dispute are:
The alleged demand by Accused No.1/ Basavaraj Shankarayya Chikkodi asking the complainant/Sambaji Patil (PW-4) to give a sum of Rs.11,200/- as illegal gratification to register the deeds of sale in his favour and in favour of his wife Vaishali Patil. The accused seriously disputes that he had at 5.00 p.m. on 31.03.2001 demanded from the complainant Rs.10,000/- each and Rs.20,000/- received it as illegal gratification. The accused seriously disputes he had any interaction with the complainant at any time earlier to 31.03.2001.: 13 :
17. We are now to see whether the evidence supports the prosecution's version or the defence.
18. To begin with, we have the testimony of the Sambaji Patil who had whole-heartedly supported the version given by him in his report in the first instance. He had re-iterated in his evidence that he had approached accused No.1 about the registration of two sale deeds and accused demanded Rs.11,200/-. His version is, he had bargained with Accused No.1 and brought the amount to Rs.10,000/-. According to him, the accused was very clear that unless the amount is paid, he would not complete the registration. Whereas in the cross-examination, the accused has been successful in eliciting that the process of registration of both the sale deeds was complete much before 5.00 p.m. on 31.03.2001. It is also elicited that the complainant had not given the amount to the first accused (Sub-Registrar) : 14 : directly at any time. According to the complainant, Accused No.1 had asked Accused No.2 to receive the money for and on his behalf. But, to this extent, no independent witnesses has been examined to establish that the complainant had at any time interacted with accused No.2 who is spoke for and on behalf of Accused No.1. In fact, the investigating officer is silent and has not investigated as to whether there was interaction between the complainant and accused No.1 before the date of registration, on which this demand was made. Even if we accept his version, all that it shows is the complainant had interacted with Accused No.2, but there is no interaction between him and Accused No.1.
19. As regards the shadow witness is concerned, PW-1/Mahalingayya S.Babladimath was instructed by PW-5/S.D.Bagwadmath to accompany the complainant and watch all that : 15 : transpires. But, PW-1 in his evidence in unequivocal terms stated that he did not go along with the complainant into the Office of Accused No.1 and was not present when the complainant gave the money to Accused No.1.
20. This is totally against the version of PW- 5/S.D.Bagwadmath who states that he had sent PW-1/Mahalingayya S.Babladimath along with PW-
4. PW-1 has categorically declared that he had not gone into the Office of Accused No.1 along with PW-4. That means, the statement of PW-4, which the prosecution now translates into a legal, acceptable evidence on oath, finds no corroboration. We cannot ignore the fact that shadow witnesses play very important role in the trap proceedings. Undoubtedly, the complainant would be interested in prosecution of the person against whom he lodges a report. His version must be tested with the evidence of shadow : 16 : witness. It is for this very reason, we insist for corroboration to such testimony. One such mode of corroboration or allowing the version of complainant to be tested is by implanting a shadow witness, who will watch all that happens and reports it to the investigating officer solely as an independent witness. The role of shadow witness, therefore, is solemn and courts do attach credence to it. But for which, the testimony of the complainant could be taken as interested version and will not infuse confidence to accept it as sufficient evidence to convict the accused.
21. Keeping these principles in mind, when we examine the facts in this case, PW-1/ Mahalingayya S.Babladimath who should have played such an important role, has clearly stated that he has not gone along with complainant into the office of Sub-Registrar. This is enough to hold that prosecution had a greater onus to establish, : 17 : firstly the demand made by the accused and secondly that Rs.20,000/- was paid by the complainant in answer to that demand. The evidence on this aspect is only through PW-4 and from the investigating officer/PW-5 (S.D.Bagwadmath).
22. Except for the say of the complainant that accused demanded and thus he kept the money on his table and the version of the investigating officer that he has seized those notes on the table of the accused, there was independent witnesses to prove it. In the absence of the evidence from PW-1/shadow witness, testimony of PW-1 or PW-4 is not beyond shadow of doubt and it will be unsafe to act on it. If we eschew that part of the evidence, then the rest of the evidence lead by the prosecution is formal in nature, like production of Entrustment Mahazar, staining of notes of Rs.20,000/-, going out to the : 18 : place of occurrence, preparation of sketch of the place, arrest of the accused, etc.
23. Since we are dealing with the accused facing a charge for offence punishable under Section 7 of the P.C. Act, on proof of guilt, he, undoubtedly, has to be visited with sentence of imprisonment and as his future will be totally marred from such prosecution, we expect a convincing evidence which can be treated as clincher to establish the charges. Therefore, it is not necessary to refer to the evidence brought by other witnesses which does not establish the main ingredients of the offence.
24. Learned counsel for the accused relied on a decision of the Apex Court in the case of PANALAL DAMODAR RATHI Vs. STATE OF MAHARASHTRA reported in AIR 1979 SC 1191 :
1979 SCC (4) 256, wherein the Apex Court : 19 : taking note a similar fact situation has observed as under:-
"(9) It will be seen that the version of the complainant that the appellant asked the complainant whether he had brought the money and the complainant told him that he had and that the appellant asked him to pay the money to the second accused is not spoken to the Panch witness--Prosecution W itness 3. According to Panch witness, on the complainant asking the appellant whether his work will be achieved, the appellant answered in the affirmative and the appellant told the complainant what was to be given to the second accused. It is significant that Prosecution W itness 3 does not mention about the appellant asking the complainant whether he had brought the money and on the complainant replying in the affirmative asking the complainant to pay the money to the second accused. Omission by Prosecution W itness 3 to refer to any mention of money by the appellant would show that there is no corroboration of testimony of the complainant regarding the demand for the money by the appellant. On this crucial aspect, therefore, it has to be found that the : 20 : version of the complainant is not corroborated and, therefore, the evidence of the complainant on this aspect cannot be relied on."
25. In fact, it is seen, in the facts under consideration by the Apex Court shows that the shadow witness has not disputed his presence during demand. He has not disputed his presence when the complainant paid money to the accused. Despite which the Apex Court declined to accept his testimony as establishing the guilt of the accused, because there was no clear deposition in his evidence that accused has demanded 'money' to do the job.
26. In the present case, the prosecution case is worst. The shadow witness has totally recoiled from his earlier testimony. He has totally disclaimed being present with the complainant at the time when alleged demand of money was made. Therefore, for want of corroboration, the : 21 : only course was to record acquittal, which the trial court has not done.
27. I am satisfied that the appellants in both the appeals have made out a case for setting aside the finding of the trial court finding them guilty and absolved them of all charges.
28. The Accused No.1/Basavaraj Shankarayya Chikkodi unfortunately could not survive to see through being absolved of charges. His legal heirs have continued the legal pursuit and they succeed in their legal pursuit. In the result, the following order is passed:-
O R D E R (I) The appeals are allowed;
(II) The conviction of the appellants in both the appeals has been set aside.
All stigmas on the service of 1st accused are therefore, removed.
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(iii) The fine amount, if any, deposited by
the appellants, is ordered to be
refunded to one of the legal heirs of the appellant herein on proper authorization.
Sri M.B. Gundawade, learned counsel, is permitted to file memo of appearance for Respondent/Lokayukta.
Sd/-
JUDGE Rkk/-