Karnataka High Court
Shri.K.H.Thimappa vs The Karnataka Lokayukta Police on 5 March, 2018
Equivalent citations: 2018 (2) AKR 660, (2018) 4 KCCR 2997 (2018) 3 ALLCRILR 313, (2018) 3 ALLCRILR 313
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
DATED THIS THE 5TH DAY OF MARCH 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL APPEAL NO.2511 OF 2010
BETWEEN:
SHRI.K.H.THIMMAPPA S/O LATE HIRIYAPPA
AGED ABOUT 59 YEARS,
OCC: FORMER DISTRICT MANAGER
KARNATAKA SC/ST DEVELOPMENT CORPORATION KOPPAL
R/AT: "DEVI KRUPA" 1ST MAIN, JAYANAGAR EAST,
TUMKUR-572 102.
(ACCUSED BEFORE TRIAL COURT)
.....APPELLANT
(BY SRI.ASHOK R. KALYANSHETTY, ADVOCATE)
A N D:
THE KARNATAKA LOKAYUKTA POLICE,
LOKAYUKTA OFFICE,
M.S.BUILDING, BANGALORE
(COMPLAINANT BEFORE TRIAL COURT)
......RESPONDENT
(BY SRI.MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CRIMINAL PROCEDURE CODE, PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 18.12.2009 PASSED BY THE SESSIONS JUDGE, KOPPAL
IN SPL.CASE (PC) NO.1 OF 2003 AND ACQUIT THE APPELLANT
OF ALL THE CHARGES.
THIS CRIMINAL APPEAL HAVING BEEN HEARD,
RESERVED FOR JUDGMENT ON 31.01.2018 AND COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal has been preferred by the accused challenging the judgment and order of conviction and sentence dated 18.12.2009 passed by Sessions Judge Koppal, in Spl.Case (P.C.)No.1 of 2003.
2. The brief facts of the case are that, complainant was having agricultural land bearing survey Nos.14,15 and 17(A), measuring about 16 acres 8 guntas, at Varanakheda, village and was intending to sell the said properties to SC/ST Corporation and he also gave an application for the purpose of expressing his willingness to sell the properties to the said corporation and thereafter he went to the office of SC/ST and requested them to purchase his lands. In that context, he met the accused-manager. He told that the said records have been sent to Bangalore Office and he has to give the consent and thereafter he will get the consent to purchase his lands. After the survey, he demanded for payment of the amount from the accused and in that context in order to help the complainant, accused demanded Rs.25,000/- as a bribe and told him to pay in advance Rs.5,000/- and after 3 receipt of the cheque, to pay remaining Rs.20,000/-. As the complainant was not intending to bribe the accused, he went and filed the complaint on 03.01.2002. Thereafter the case was registered and one Sharanappa and Subhaschandra were secured and an entrustment mahazar was drawn and the currency notes were smeared with phenolphthalein powder and the same were handed over to the complainant in the presence of panch witnesses, instructing the complainant that if accused accepts the bribe amount of Rs.5,000/- he has to come out of the office of the accused and give a signal by lifting his lungi. Instructions were also given to the shadow witnesses to observe the transactions between the accused and the complainant and report the same. Subsequently, all the witnesses and the investigating officer went to the office of the accused and asked him about the pendency of the work and at that time accused asked whether he has brought the bribe amount and the complainant told that he has brought and accused told him to keep the said bribe amount into a cover and the complainant took the cover and by removing the tainted 4 currency notes from his pocket, he put it into the cover and thereafter he handed over the same to the accused. Accused after receiving the cover verified whether the currency notes were there in the cover or not, by taking out currency notes from the cover, touched with the right hand and thereafter the complainant went out of the office and gave signal as per the instructions. Immediately police officers entered the office of the accused. On seeing them, the accused perturbed and after showing the identity, the police officer got prepared the solution and got washed the hands of the accused in the solution. The solution turned into light pink in colour and the same was preserved in a bottle and thereafter the left hand also got washed and it did not turn into any colour. Then the accused was asked to take out the currency notes which was kept into the drawer and after verifying the numbers with the numbers noted earlier in the office of the Lokayukta, the same were seized by drawing a mahazar. Thereafter, the accused also gave his explanation and after collecting the material records and after obtaining the sanction order to prosecute the accused and after completion 5 of the investigation the charge sheet was filed against the accused.
3. After filing the charge sheet, the special Court took the cognizance and secured the presence of the accused. After furnishing the copies of the charge sheet and after hearing the accused about the charge, the Trial Court framed the charge to which accused pleaded not guilty and claimed to be tried. Thereafter the prosecution examined PW's-1 to 11 and got marked Exs.P1 to P21 and also got marked MO's-1 to 9 and during the course of cross-examination, the accused got marked Ex.D1 and D1(a), however, accused has not led any evidence on his behalf. After closure of the evidence of the prosecution, the statement of accused was recorded under Section 313 of the Criminal Procedure Code.
4. After hearing the learned counsel for the accused as well as the learned Special Public Prosecutor, the impugned order came to be passed by the Trial Court against which the appellant is before this Court.
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5. I have heard Sri.Ashok R. Kalyanashetty the learned counsel for the appellant and Sri.Mallikarjunswamy B. Hiremath, the learned Special Public Prosecutor appearing on behalf of respondent-Lokayukta
6. It is the specific contention of the learned counsel for the appellant that the impugned judgment and order of conviction is erroneous and without proper appreciation of the evidence on record. Though there is no convincing evidence for having made demand of Rs.5,000/- and acceptance has not been proved, the Trial Court has wrongly convicted the accused. He further contended that the evidence of PWs-1 and 9 is not acceptable, since the complainant and another witness have not supported the case of the prosecution. He further contended that though PW-3, the shadow witness, has deposed with regard to the receipt and demand of money by the accused, as per the sketch, the shadow witness was standing within the hall and from such a distance, there is no possibility of he observing and hearing the transactions between the complainant and 7 the accused. He further contended that the sketch, which has been produced, clearly indicates the fact that the alleged offence has taken place inside the chamber of the accused and admittedly the shadow witness was standing in the hall, then under such circumstances, the evidence which has been led in this behalf by examining PW-3 is not acceptable and reliable. He further contended that there is inconsistency in filing of the complaint itself. PW-1, the complainant, has gone to the house of the police inspector and filed the complaint in the residence. To that effect there is an endorsement in this behalf, but as per the evidence of PW-5, the Head Constable, the complainant came to the office and filed the complainant and even PW-2, the writer of the complaint, has deposed that the said complaint was drafted at the dictation of the police in the Lokayukta Office. Though, there are inconsistencies in the evidence of these witnesses, the Trial Court relying upon such evidence, has wrongly come to the conclusion and has wrongly convicted the accused. He further contended that there is no substantive evidence to convict the accused. Though there is 8 no demand and acceptance and the phenolphthalein test has also not been proved in accordance with law, then under such circumstances, the Trial Court ought not to have convicted the accused. Even the evidence, which has been produced clearly indicates the fact that the complainant went and gave the cover by saying that he is giving the cover recommended by the M.L.A. and that fact has also been admitted by the complainant, then under such circumstances, the question of receiving the bribe amount which has been put into the cover is not acceptable in law. The Trial Court without any cogent evidence has wrongly convicted the accused. On these grounds he prayed for allowing the appeal by setting-aside the impugned order.
7. Per contra the learned Special Public Prosecutor- Sri.Mallikarjunswamy B.Hiremath vehemently argued by contending that in order to do official favour in furtherance of earlier demand, accused further demanded and has received the bribe amount which has been kept in the cover. PW-3 the shadow witness has categorically deposed regarding the receipt of the bribe amount. He further 9 contended that the said evidence of PW-3 has been corroborated with the phenolphthalein powder test, when the right hand of the accused was washed in phenolphthalein powder the same turned into pink in colour and the same has been substantiated by the evidence of PW-8, the chemical examiner. He has supported the said fact. He further contended that merely because the witnesses have turned hostile, their evidence cannot be totally discarded. If the material particulars are going to be corroborated with other evidence the Court can convict the accused. In order to substantiate his contention he relied upon the decision of the Hon'ble Apex Court in the case of Vinod Kumar v. State of Punjab reported in (2015) 3 SCC 220.
8. He further contended that the prosecution has fully proved the case of the prosecution and by considering the said aspects the Trial Court has rightly come to the conclusion and has convicted the accused. The appellant has not made out any good grounds so as to interfere with the judgment and order of conviction and sentence. On these 10 grounds he prayed for confirming the judgment and order by dismissing the appeal.
9. In order to prove its case, the prosecution has examined PW's 1 to 11. PW-1 is the complainant he has deposed that he was intending to sell the property to the SC/ST corporation and a notification has also been published in this behalf and he went to Koppal office and requested them to purchase his lands and in that context he also met the manager of the office and he told that the said records have been sent to Bangalore office and the Bangalore Office has to give the consent and the Bangalore Office has given the consent also. He further deposed that at the time of identifying the beneficiary and distributing the said plots his Senior-Father objected and because of that, the Koppal office has not taken any proceedings. He further deposed that the accused was working as a manager in the said office and after identifying the beneficiaries the said plots have been allotted and he was entitled to compensation. He further deposed that in respect of compensation he met the accused and he made him to run in the office many a times and he 11 also quarreled with him. He further deposed that the accused has not accepted any amount for having distributed the compensation. But he has admitted the fact that he has given a complaint as the accused delayed the payment of the compensation. He further deposed that the accused has not demanded, but that if the amount is paid to him he is going to do the work, in that guise he gave the complaint. This witness has been treated as hostile. Even during the course of cross-examination, nothing has been elicited so as to substantiate the case of the prosecution.
10. PW-2 is the writer of the complaint. He has also deposed that he has written the complaint Ex.P1 in the office of the Lokayukta and the Lokayukta police gave information to write the complaint and PW-1 has not given any information. He does not remember the contents of the complaint. He has further deposed that a bribe case has been registered for having paid the Rs.5,000/-. This witness has also been turned hostile and nothing has been elicited so as to substantiate the case of the prosecution. 12
11. PW-3 is the shadow witness. He has also deposed that on 03.01.2002 he appeared in the Lokayukta Office and PW-9 was also present and the Lokayukta Inspector informed him about the complaint and the complaint was read over to them and thereafter the entrustment mahazar was conducted. He has further deposed that he has been given instructions to observe the transactions between the accused and the complainant and thereafter to report. He has further deposed that thereafter they went to the office of SC/ST and he and PW- 1/Venkatesh went inside the office of the accused. He went and stood by the side of the door by observing the movements inside the room and accused was present in the room and demanded Rs.5,000/- to do his work and at that time, PW-1/Venkatesh removed the amount and tried to give it. At that time, the accused told to keep it in a cover and give it. PW-1 took the cover and put it into the cover and handed over to the accused. Accused by verifying whether the amount is there in the cover or not, keep it in a right side drawer. He has further deposed that at the time of 13 verification he was holding the cover in the left hand and by right hand he removed the notes little bit out of the cover, and after seeing the currency notes, put the cover into the drawer. Thereafter the complainant went out of the office and gave the signal as instructed by lifting his lungi. He has further deposed that thereafter the inspectors and the police officials came and they prepared the sodium carbonate solution and the right hand of the accused was washed and the same turned into pink colour and again sodium carbonate solution was prepared and left hand was also washed but it did not turn to any colour and the same have been seized by putting it into a bottle. He has further deposed that thereafter accused was asked to remove the cover and accused removed the cover and handed over the cover to the inspector and the said cover was handed over to him and therein he found 10 notes of Rs.500/- denomination which were verified in the office of the Lokayukta and the same were seized by drawing the mahazar. During the course of cross-examination he has deposed that one day earlier he was informed to go to 14 Lokayukta office. He has further deposed that the accused objected that in MO-1 there was no change of the colour and the same may be tested once again, he has also admitted that the accused told that there is no change in the colour and he has not touched the amount. He has further admitted that Ex.P6 is the sketch and in the said sketch the room of the accused has been shown on the left side and he was standing by the side of the door at the hall. Except that, nothing has been elicited from the mouth of this witness. PW-4 is the engineer, who has drawn the sketch as per Ex.P4. PW-5 is the Head Constable who received the complaint and after sealing the first information report he went and handed over the same to the jurisdictional magistrate. PW-6 is the Head Constable, who was participated in the trap proceedings. During the course of cross-examination, he has deposed that in phenolphthalein powder test, the solution was white and even the solution in MO's 3 to 7 are also white. PW-7 is the Managing Director of Karnataka Soaps and Detergent Ltd., Bengaluru, who has issued the sanction order as per Ex.P13. During the course 15 of cross-examination of this witness much has not been elicited. PW-8 is the chemical examiner he has deposed that he verified 8 articles and has issued the certificate as per Ex.P11 and findings given by him are as under:
Article No.1 Cover with powder - (Phenolophalin) Article No.2 Cover with powder - I detected the presence of Sodium Carbonate.
Article No.3 Colour less solution - I detected the presence of Sodium Carbonate.
Article No.4 Color less liquid - It was negative for both Penolphalien and Sodium Carbonate It was distill water.
Article No.5 In colour solution - I detected the presence of Penolphalien and sodium Carbonate. Article No.6 Pink colour solution - I detected the presence of Penolphalien and Sodium Carbonate. Article No.7 Colour less liquid left hand wash - I detected the presence of Sodium Carbonate. Article No.8 Cover with currency notes - I detected the presence of Penolphalien.
He has also deposed that after chemical examination he sent the materials to the Lokayukta Office. During the course of cross-examination he has admitted that as on today the solution contained in the bottles available in the Court are colourless. PW-9 is the another witness who accompanied in 16 the proceedings he has also deposed about the entrustment mahazar and he has not supported the case of the prosecution. He has been treated as hostile and even during the course of cross-examination nothing has been elicited so as to substantiate the case of the prosecution. PW-10 is the police inspector who received the sanction order and filed the charge sheet as against the accused. PW-11 is the police inspector who was the trapping party and who investigated the case.
12. I have carefully gone through the submissions and the original documents and the records. Before proceeding to consider the case of the prosecution on its merits, it is necessary to note that in order to attract the provisions of the Prevention of Corruption Act, 1988 ('Act' for short) the accused must be a public servant at the time of the alleged offence and he/she must be discharging the official duties. In this behalf, if the evidence of PW-7 is perused, he has produced the sanction order and even the evidence of PW-11 also clearly indicates that the accused was working in the SC/ST office as a manager. 17
13. On careful consideration of all the documents clearly it indicates that the accused was working as a manager in the said SC/ST office and even the said fact is not seriously disputed. Under such circumstances it can be safely held that the appellant/accused was a public servant at the time of the alleged offence.
14. At this stage it is just and necessary to discuss the question as to whether the sanction order obtained by the prosecution to prosecute the accused is in accordance with law, because of the reason that invalid and unlawful sanction the Court gets no jurisdiction. In order to prove it the prosecution has got examined PW-7 and also got marked Ex.P13. In his evidence he has deposed that after satisfying himself by going through the records he has issued the sanction order as per Ex.P13. Even during the course of cross-examination of this witness nothing has been elicited so as to discard his evidence and even during the course of argument, the learned counsel for the appellant submitted that he will not seriously dispute the sanction which has 18 been issued as per Ex.P13. In that light, it can be safely held that the sanction which has been issued is in accordance with law.
15. In order to prove the case of the prosecution, the prosecution has to establish four stages about the trap.
The first stage is pre-complaint stage to indicate that the accused demanded the bribe amount from the complainant and there was a mutual understanding between the accused and the complainant to that effect.
The second stage is the entrustment stage to indicate that the bribe amount was handed over to the complainant with an instruction to give it to the accused only on demand.
The third stage is the demand and acceptance stage when tainted currency notes were accepted and the same were recovered from the possession of the accused.
The fourth and last stage is that such amount has been received by the accused in order to do some official favour to the complainant or his relative.
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16. In order to establish the fact that earlier the accused has demanded the bribe from the complainant, in Ex.P1 complaint he has specifically stated that the SC/ST department was developing the land for the purpose of distribution amongst the Scheduled Caste and Schedule Tribe people under the scheme and the complainant was willing to give the property belonging to him. He has further stated in the complaint that he met the accused and asked about the said work and he also requested him to get his land registered and give the amount. So, in that context, the accused demanded an amount of Rs.25,000/- as a bribe and ask to pay an amount of Rs.5,000/- in advance and the remaining Rs.20,000/- has to be given after the issuance of the cheque. Though in the complaint it has been narrated like that, but in his evidence before the Court he has given gobye to the said contentions and in his evidence he has deposed that he went and met the manager and he told that the papers have been sent to Bangalore office and as he objected and no steps have been taken and as he was intending to take the compensation amount, he met the 20 accused and he made him to run over to the office and there was a quarrel between the accused and himself, and in that light he has given complaint. He has further deposed that in order to give the compensation amount, the accused has not demanded any bribe and he himself thought that if he gives the amount, the accused would do his work. This evidence of PW-1 is not corroborated by any evidence.
17. The next stage of the case of the prosecution is that the entrustment stage to indicate that the bribe amount was handed over to the complainant with an instruction to give it to the accused only on demand. In this behalf also PW-1 has not supported the case of the prosecution. He has been treated as hostile. But PW-3, the shadow witness has also supported the case of the prosecution and has deposed that what are all the transactions which have been taken place at the time of entrustment proceedings. He further deposed that the complainant gave Rs.5,000/- i.e. 10 notes of Rs.500/- denomination and one Constable by name of Sidramappa smeared the phenolphthalein powder on both sides of the notes and thereafter the same were given to the 21 complainant with an instruction that the said amount has to be transferred only on demand by the accused and in the event of receipt of the bribe amount, the complainant has to come out of the office and give the signal by lifting his lungi. In this behalf the mahazar was also drawn as per Ex.P2. Even during the course of cross-examination nothing has been elicited so as to discard this evidence. In order to substantiate the said fact, the prosecution has also got examined PW-9, another witness who was also present at the time of the entrustment mahazar. He has also deposed that in between 7.00 p.m and 7.15 p.m. they came to Lokayukta Office and therein what transaction has taken place has not been supported by this witness and this witness has been treated as hostile. But however the police officials who were present at the time of the entrustment mahazar have also supported the case of the prosecution in this behalf. Only on the basis of this evidence it cannot be held that the prosecution has proved the guilt of the accused beyond all reasonable doubt.
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18. The next stage is considered to be important i.e. demand and acceptance stage. In order to establish the said fact the prosecution has examined PW's 1, 3 and 11. At the first instance, if the complaint at Ex.P1 is seen, the complainant has given the complaint alleging that the accused demanded an amount of Rs.5,000/- in advance out of Rs.25,000/- and in order to take his property and to give the compensation and if the evidence of PW-1 is perused, the complainant in his evidence has not supported the case of the prosecution. Even during the course of cross-examination of this witness, he has not supported the case of the prosecution. But the prosecution has also relied upon the evidence of PW-3, the shadow witness. In his evidence, he has deposed that on the date of incident at about 10.30 a.m. they came to the SC/ST Development Office and himself and the complainant were asked to go inside the office. He was instructed to observe the transactions between the complainant and the accused and he went and stood by the side of the door and was observing the transactions between the complainant and the accused. 23 Accused was in his room and he demanded an amount of Rs.5,000/- to do the official favour and at that time complainant Venkatesh removed the amount from his pocket and try to give it to the accused. At that time, the accused asked the complainant, to put it into cover and give. The complainant took the cover and put the amount into the cover and gave it to the accused and accused verified whether the amount is there in the cover and put it into right side drawer. At the time of verifying, he was holding the cover in left hand and by right hand he pulled the notes little bit out of the cover and after verifying the same, he put the cover into the drawer and thereafter the accused told the complainant to come after 3 to 4 days. Then the complainant went out of the door and after giving the signal by lifting the lungi three times thereby he gave instructions and thereafter the Lokayukta Inspector went and caught hold of the wrist portion of the accused and the complainant showed that he is the person who has demanded the bribe. Thereafter they prepared the sodium carbonate solution and when the right hand of the accused was washed, it turned to pink in colour 24 and thereafter the left hand of the accused was also washed in the sodium carbonate solution but it did not turn into any colour and the same have been seized by putting into a bottle. He has further deposed that thereafter the police inspector asked about the amount and asked the accused to remove the amount and accordingly he removed and gave it to the inspector and the said notes were given to him and he verified and the said notes were tallying with the numbers with which it has been noted down in the office of the Lokayukta and the same were also seized by putting into a cover and there the trap mahazar was also drawn as per Ex.P3.
19. During the course of cross-examination, he has deposed that Venkatesh went inside the room and the said chamber is having door and he was standing by the side of the door, other suggestions have been denied. But he has also admitted the fact that the colour of the sodium carbonate has not turned to pink in colour and accused asked him to examine once again and he also told that he has not touched the tainted currency notes. Except that 25 nothing has been elicited in order to discard the evidence of this witness. PW-11 has also not reiterated the evidence of PW-3.
20. As could be seen from the evidence of PW's-1, 3 and 11, the evidence of PW-1 is not going to help the prosecution in any manner to substantiate his case. Merely because the witness has turned hostile and only on that ground, his evidence cannot be discarded. If the remaining evidence is admissible and if it is convincing and corroborated by other reliable evidence, then under such circumstances, Court can even take the evidence of hostile witness and convict the accused. This proposition of law has been laid down by the Hon'ble Apex Court in the case of 'Vinodkumar' (quoted supra).
21. I am not having any difference of opinion with regard to the principle laid down by the Hon'ble Apex Court in this behalf. But at the time of appreciation of the evidence, the entire evidence which has been led by the prosecution has to be looked into. In that background, if the 26 evidence is perused, though PW-3 in his evidence has deposed before the Court that he was observing the transactions between the accused and the complainant and complainant went and asked about his work and at that time accused demanded the amount and then thereafter the complainant tried to give it and at that time accused told to put it into the cover and give, accordingly the same was put into the cover and gave it to the accused and accused received the same and put it into a right side drawer. But during the course of cross-examination, this witness has admitted there is a hall and in the hall there is a room of the accused and that he was standing near the door of the hall. Even as could be seen from Ex.P6 it indicates that this witness was standing by the side of the door in the hall and the room in which the accused was standing is at a distance of about 10 to 12 feet or more than that. When the said witness is standing at a distance, then under such circumstances, he hearing the transactions between the complainant and the accused and accused telling the same to the complainant and demanding bribe does not appear to 27 be acceptable in law, that too, when the complainant himself has not supported the case of the prosecution.
22. Be that as it may. The prosecution can also establish its case by other evidence of sodium carbonate test. As could be seen from the evidence of PW-3 he has specifically deposed that when the right hand of the accused was washed in sodium carbonate solution, the same was turned to pink in colour and in order to substantiate the said fact, the chemical examiner PW-8 came to be examined. In his evidence, he has deposed that he examined the articles which have been sent by the police inspector and in article Nos.5 and 6 there was a presence of phenolphthalein and sodium carbonate. But during the course of cross- examination he has admitted that as on today the solution contains in the bottles available in the Court are colourless. This evidence has also been corroborated by the evidence of PW-3 who has also admitted the fact that the accused told that when his hands were washed the said solution is colourless and once again the same has to be done. Under the said facts and circumstances, even there arises a doubt 28 with regard to the sodium carbonate test, which has been made for the purpose of corroborating the evidence.
23. Leave apart this, when admittedly the tainted currency notes have been put into the cover and the cover has been handed over to the accused and accused received the cover and thereafter he put into the right side drawer and when no phenolphthalein powder has been smeared to the cover in which the notes have been kept, then under such circumstances, it creates a doubt regarding case of the prosecution when the accused received the cover how the hand wash of the accused turned to pink in colour.
24. Though the evidence of PW-3 has been led in this behalf to the effect that the accused in order to verify the notes in the cover, he took the cover into his left hand and pulled the notes and after verifying the same he put the cover on the right side drawer. The said theory itself appears to be not natural and probable. When the prosecution has made out a case that the complainant when went to the accused and accused demanded the amount and the 29 complainant tried to give it and at that time the accused told the complainant to put it into the cover and give the same, then all the transactions has been taken place infront of the accused himself, the notes have been put into the cover, then under such circumstances, again the accused taking the cover into his left hand and opening it and pulling it to verify whether the notes are there or not, also does not stand to any reason. It appears that only in order to suit the case of the prosecution, the case has been further developed in this behalf. When the phenolphthalein powder test has not been satisfactorily given its result, that too, when PW-11 has clearly admitted the fact that the solutions which have been kept in the Court hall or colourless and the said fact is also admitted by PW-3 and even the explanation given by the accused is also substantiates the said fact, then under such circumstances, it cannot be safely held that the hand wash of the accused turned to pink ink colour and thereby the prosecution has established the fact that the accused has received the bribe amount. In this behalf also the evidence is 30 not so satisfactory so as to come to the conclusion that the accused has demanded the bribe and accepted the same.
25. The last stage is some official favour must be pending with the accused. It is the case of the prosecution that the land of complainant were intended to be taken for the purpose distribution by the SC/ST Department in the scheme and in order to give the compensation amount the accused demanded Rs.25,000/- and in furtherance of the said demand as an advance he received Rs.5,000/-. But on going through the evidence of PW-1, the complainant, no such official favour is pending in this behalf. When the complainant himself has specifically made out a case that no such work was pending with the accused and he gave the complaint only with an impression that if the money is paid, then under such circumstances, he may get the cheque or compensation. In that light also, the evidence which has been produced is not trustworthy and reliable.
26. The learned Special Public Prosecutor by relying upon the evidence contended that when the demand and 31 acceptance of the bribe has been proved, the Court has to presume under Section 20 of the Act that there existed an official favour and in consideration of the same, the accused has received the said amount. But on going through the evidence which has been produced there is no corroboration with regard to the facts and circumstances of a case.
27. As could be seen from the evidence of PW-3 and PW-11, they have deposed that one day prior to the incident they have been informed to go to the Lokayukta Office and even if the evidence of PW-11, is perused, he has deposed that on 03.01.2002 at about 7.00 a.m. when he was in his house, at that time, PW-1 came and filed the written complaint as per Ex.P1. But if the evidence of PW-2 is perused, he has deposed that he wrote the complaint Ex.P1 in Lokayukta Office and the said complaint has been written as per the instructions of the Lokayukta Inspector. This evidence is also corroborated with the evidence of PW-5. He has also deposed that on 03.01.2002, at about 07.00 a.m., when he was in police station, PW-1 came and gave the complaint and there is inconsistency in the evidence at the 32 time of filing the complaint itself. If we go through the evidence of the witnesses, except the evidence of PW-3, there is no other corroboration to show that the accused demanded the bribe amount and received the same by asking to put it into cover and then he verified the same by holding the cover in left hand and touching the notes with right hand. Even the sodium carbonate test has also not satisfactorily proved in this behalf. The chemical examiner who came to be examined as PW-8 has admitted the fact that the solutions which have been sealed and were kept in the Court hall were colourless and the statement which has been given by the accused immediately after the trap is also inconsonance with the said fact.
28. It is well established principle of law that in order to convict the accused under the Prevention of Corruption Act, there must be demand and acceptance and thereafter some official favour must be pending in this behalf with the accused and the receipt of the said bribe has to be established by positive evidence coupled with 33 phenolphthalein powder test, then only the Court can accept the said evidence and convict the accused.
29. It is also well established principle of law that mere recovery of money from the accused in the absence of any evidence of demand and acceptance of money is not sufficient to record a conviction, unless there is evidence to the effect that the bribe was demanded or money was paid as a bribe. This proposition of law has been laid down by the Hon'ble Apex Court in the case of 'Vinodkumar' (quoted supra) at paragraph No.47, which is observed as under:
47. The submission of Mr.Jain is that PW 6 is merely a witness to recovery and solely on the basis of recovery no conviction can be recorded.
There can be no quarrel over the proposition that on the basis of mere recovery an accused cannot be found guilty. It is the settled principle of law there mere recovery of the tainted money is not sufficient to record a conviction unless there is evidence that bribe had been demanded or money was paid voluntarily as bribe. In the absence of any evidence of demand and acceptance of the amount as illegal gratification, recovery would not alone be a ground to convict the accuse. This has been so held in T.Subramanian v. State of T.N., Madhukar Bhaskarrao Joshi v. State of Maharashtra, Raj Rajendra Singh Seth v. State of Jharkhand, State of Maharashtra, v. Dnyaneshwar Laxman Rao Wankhede, C.M. Girish Babu v. CBI, K.S. Panduranga v. State of Karnataka and Satvir Singh V. State of Delhi.
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30. On going through the entire evidence on record there is no consistency in the testimony of the witnesses and the document produced by the prosecution. There were so many omissions and commissions and discrepancies in the case of prosecution. In that light, prosecution has not proved the case against the accused beyond all reasonable doubt. It is well established principle of law that if any doubt arises in the case of the prosecution, the benefit of doubt should go in favour of the accused.
31. Keeping in view the above said facts and circumstances, I am of the considered opinion that the appellant has proved that the Trial Court has not properly appreciated the evidence on record and has erroneously come to the wrong conclusion. The said judgment and order is not based upon any corroborative and trustworthy evidence. In that light the judgment and order of conviction passed by the Court below is hereby set-aside.
32. In the light of discussion held by me above, appeal is allowed and the judgment and order of 35 conviction and sentence passed in Spl.Case(P.C.)No.1/2003 dated 18.12.2009 is set-aside and appellant-accused is acquitted of the charges levelled against him.
The bonds executed by the appellant/accused stand and surety cancelled. The fine amount said to have been deposited by the appellant/accused shall be refunded to him on proper identification and acknowledgment.
The appellant herein shall be released forthwith by the prison authorities if he is in custody and he is not required in any other case.
Sd/-
JUDGE RHR/-