Karnataka High Court
The State vs Dr G Mehar Kumar on 16 September, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF SEPTEMBER, 2013
BEFORE
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.2625/2009
BETWEEN:
The State
By the Inspector of Police,
Karnataka Lokayukta Police Station.
Bellary. ...APPELLANT
(By Shri Jagadish Patil, Advocate)
AND:
Dr.G.Mehar Kumar,
Son of G.Sudarshanam,
Aged 44 years,
Associate Professor,
Radiation Oncology Department,
VIMS Hospital,
Bellary. ...RESPONDENT
(By Shri.Shankar Hegde, Advocate)
---
This appeal is filed under Section 378(1) and (3) of the Code of
Criminal Procedure, 1973 praying to grant leave to the appellant to
appeal against the judgment and order of acquittal dated 30.1.2009
passed in Spl.Case No.72/2007 on the file of the Court of the
Principal Sessions (Special) Judge, Bellary, at Bellary and to allow
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the appeal and set aside the aforesaid judgment and order of acquittal
and convict the accused for the charged offences in accordance with
law.
This appeal coming on for Final Hearing this day, the Court
delivered the following:
JUDGEMENT
Heard the learned Counsel for the appellant. The present appeal is filed by the State questioning the acquittal of the accused for offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (Hereinafter referred to as the 'PC Act', for brevity) .
2. The points for determination by the court below were as follows:-
"1. Does prosecution prove beyond reasonable doubt that on 18.10.2006 and 25.10.2006 the accused being the Public Servant i.e., The Associate Professor, Radiation Oncology Department, VIMS, Bellary demanded illegal gratification of Rs.6,000/- from CW.1 Bisalahalli Thippeswamy for showing official favour viz., for giving radiation therapy to him for his cancer ailment and when he pleaded 3 inability to pay Rs.6,000/- demanded Rs.3,000/- and in furtherance of such demand on 26.10.2006 at 6.45 p.m. at St.Mary Hospital, Bellary, he further demanded illegal gratification of Rs.3,000/- to give radiation therapy to CW.1 and accepted the same and thereby committed an offence punishable under section 7 of the PC Act, 1988?
2. Does prosecution further prove beyond reasonable doubt that the accused being the Public Servant as aforesaid, on 26.10.2006 at 6.45p.m. in St.Mary Hospital Bellary, by corrupt means, obtained pecuniary advantage of Rs.3,000/- by accepting Rs.3,000/- from CW.1 Bisalahalli Thippe Swamy for giving radiation therapy treatment and thereby committed misconduct in discharge of his duty, an offence punishable under section 13(1)(d) read with 13(2) of the PC Act,1988?
3. If so, what order?"
3. In the background that the complainant had died during the pendency of the trial and there was no evidence tendered in support of the complaint, though it was canvassed by the learned Special Public Prosecutor that the complaint ought to be read as the dying 4 declaration in view of his death during the pendency of the trial, the court below after referring to Section 32 of the Indian Evidence Act, 1872, has highlighted the fact that the Section would not apply at all and that the complaint could not be read as the dying declaration. And further insofar as the corroboration by PW.4 as to the manner in which the offence had been committed is also discarded in view of the fact that the said witness was found to be carrying on his person the statement made by him in the first instance, recorded under Section 161 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'Cr.PC', for brevity) and also the copy of the panchnama which was submitted by the said witness at the time of his examination and the court has taken serious exception to the same with reference to the case law and has opined that such evidence ought to be negated as it was impermissible for the witness to prepare himself by reference to the statement made in the first instance and such evidence could not be accepted. It is against these findings, on the basis of which the accused was acquitted, that the present appeal is filed.
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4. Having regard to the above, it cannot be said that there is any ground made out for intervention of this court in appeal. It is also brought to the attention of this court by the learned counsel for the respondent that in the event of the death of the complainant especially, in a case where the offences under the provisions of the PC Act, are alleged and where it is crucial for the complaint to be supported by the complainant, the death of the complainant and the consequent non-prosecution of the complaint would be fatal to the case of the prosecution. Further, in the present case on hand, even the evidence of the shadow witness also having been found to be invalid, there is absolutely no case made out for intervention.
The appeal is consequently dismissed.
Sd/-
JUDGE nv