Bangalore District Court
The State Of Karnataka vs No.1 Hemantha Kumara on 27 March, 2018
IN THE COURT OF LXXVII ADDITIONAL CITY CIVIL AND
SESSIONS COURT AND SPECIAL COURT UNDER
PREVENTION OF CORRUPTION ACT, BENGALURU.
(CCH-78)
PRESENT: SRI MALLIKARJUNAGOUD,
B.A.L. LL.B.,
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
DATED: 27th MARCH, 2018
Spl. C.C.No. 425/2016
*****
COMPLAINANT: The State of Karnataka,
Rep by Inspector of Police,
Karnataka Lokayuktha Police,
Bengaluru City Wing, Bengaluru.
(Rep by Sri S.P.Hubballi, Public
Prosecutor)
V/s
ACCUSED: No.1 Hemantha Kumara, Police Constable-
13252, Major, HAL Police Station,
Bengaluru.
Residing at 7th Cross, Opposite to
Mavel House Apartment,
Basavanagara, Bengaluru.
Permanent resident of:
Maragowdanahally village & post,
Holenarasipura Taluk, Hassan District.
2 Spl. C.C. No.425/2016
A-No.2 S. Thimmapparaju, Son of
Shankarappa, aged 38 years, Police
Constable-8838, HAL Police Station,
Bengaluru.
Residing at: No.3, C-1 Block, Cement
line police quarters, Astin Town,
Bengaluru-47.
Permanent resident of: Balakara Bala
Mandira, Hosur road, Bengaluru.
(Rep by Sri. P.N. Hegde, Advocate for
Accused No.1)
(Rep by Sri. I.S.Pramod Chandra,
Advocate for accused-No.2)
1. Nature of Offence: Offences punishable under Sec.
7,13(1)(d)r/w Sec.13(2) of
Prevention of Corruption Act 1988.
2. Date of Commission 04-05-2015
of offence:
3. Date of First Information 04-05-2015
Report:
4. Date of Arrest: ----
5. Date of Commencement 13-10-2017
Of recording of evidence:
6. Date of Closing of evidence: 19-03-2018
7. Date of Pronouncement of 27-03-2018
Judgment.
8. Result of the case: Accused are acquitted
^^^^^
3 Spl. C.C. No.425/2016
JUDGMENT
In this case Police Inspector, Karnataka Lokayuktha, Bengaluru City Division, has filed charge sheet against the accused for the offences punishable under Sec.7 and 13(1)(d) r/w Sec.13(2) of the Prevention of Corruption Act, 1988.(In short PC.Act).
2. The charges leveled against the accused are that: on account of anonymous complaint filed against the complainant-CW.1- Sudhakar, he was called by HAL Police to their station along with his vehicle for enquiry. When he had been to that station, at that time, they detained his vehicle in the station. After sometime, accused No.1-Hemantha Kumara demanded a sum of Rs.50,000-00 from him for the release of his seized vehicle and for closing that anonymous complaint and received a sum of Rs.10,000-00. The said demand of the accused was recorded by the complainant in his mobile phone. On 04-05-2015 he had been to Lokayuktha Police Station and filed a complaint against accused No.1-Hemantha Kumara for demand of that illegal gratification. After registering the case, Lokayuktha Police secured the presence of two panch witnesses CW.2 and 3, conducted pre trap mahazar and went along with the complainant and panch witnesses to the HAL Police Station, they parked their vehicle in-front 4 Spl. C.C. No.425/2016 of the foot-path situated near HAL Police Station and contacted accused No.1 over phone. At that time, accused No.1 informed the complainant stating that, his friend accused No.2-Thimmapparaju is present near the tea-stall, so he asked him to pay that bribe amount in his hands. As per his instruction, the complainant and shadow witness went near that tea-stall, meet the accused No.2- Thimmapparaju and discussed with him about his case and on demand he paid the bribe amount of Rs.40,000-00 in his hands. After receiving the same, the complainant gave signal to the Lokayuktha Police as instructed by them. Thereafter, they trapped him and interrogated, at that time he told them that, at the instance of accused No.1, he has collected that amount from the complainant. Hence, the Lokayuktha Police have filed the charge sheet against the accused for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
3. After completion of entire investigation, Lokayuktha Police have submitted the charge sheet before the court, presence of accused was secured before the court by issuing summons. Accused appeared before the court through their counsel, copies of the charge sheet were 5 Spl. C.C. No.425/2016 supplied to them under Section 207 of Cr.P.C., and they were enlarged on bail.
4. Heard the arguments of both the sides on hearing before charge. After hearing on HBC, after perusal of the charge sheet and the documents placed before the court, this court held that, there is a prima facie case against the accused for prosecuting them for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
5. The charges against accused for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act are read over and explained to them in the language known to them, for that, they pleaded not guilty and claims to be tried.
6. In all the prosecution has cited as many as 19-witnesses in the charge sheet. Out of them, the prosecution has examined CW.1- Sudhakar-the complainant is examined as PW.2, CW.3-Siddalingappa- the panch witness is examined as PW.3, CW-4-Jayaprakash-the brother of the complainant and circumstantial witness is examined as PW.4, CW-9-Smt. C. Vidya-Assistant Director of FSL, Madivala, 6 Spl. C.C. No.425/2016 Bengaluru, is examined as PW.5, CW.13-Prakash-police constable and CW.14-S.P.Raghu-police constable, the police officials who assisted the I.O. at the time of investigation for video graphing and recoding sample speech of accused are examined as PW.9 and PW.6, CW-16- B.G.Kumar Swamy-Police Inspector, CW.17-T.V.Manjunah-Police Inspector and CW.19-N.V. Mahesh-Police Inspector, Karnataka Lokayuktha, Bengaluru City Division, the I.Os. are examined as PW.10, PW.7 and PW.8 respectively, CW-18-Dr. Boralingaiah M.B. D.C.P. Bengaluru South-East, who issued the sanction order is examined as PW.1 and got marked 29-documents as Ex.P.1 to P.29 and got marked 17 material objects as M.O.1 to 17. Learned Public Prosecutor submitted that, he has given up other witnesses and closed his side.
7. Statement of the accused Under Section 313 of Cr.P.C. is recorded and they deny the incriminating evidence against them. Enquired the accused about defence evidence for that, they have no defence evidence, so their defence evidence is taken as nil and recording of evidence is closed and case was posted for hearing arguments.
8. Heard the arguments of both the sides.
7 Spl. C.C. No.425/2016
9. After hearing the arguments, after perusal of the charge sheet and evidence of the prosecution witnesses along with the documents marked in their evidence, the following points arise for consideration of this court:-
1. Point No.1: Whether the prosecution proves that the sanction order issued by PW.1 for prosecuting the accused is valid?
2. Point No.2: Whether the prosecution proves its case against the accused beyond all reasonable doubt that, accused No.1 and 2 being the public servant working as police constables in HAL Police Station have called the complainant-CW.1-
Sudhakar to the station for enquiry with regard to anonymous complaint filed against him and seized his vehicle, at that time, accused No.1 has demanded illegal gratification of Rs.50,000-00 from the complainant for closing that anonymous complaint and to release his vehicle for doing some official favour and received Rs.10,000-00. Thereafter on 04-05-2015 at about 5 p.m. when the complainant came near HAL Police Station and gave call to accused No.1-Hemantha Kumara to know about his whereabouts to pay the demanded bribe amount, at that time, he told him to pay the said amount in the hands of accused No.2- Thimmapparaju-police constable and at his instance, accused No.2 has demanded and accepted the said illegal gratification of Rs.40,000-00 from the complainant thereby he has committed the offence punishable under Section 7 of the Prevention of Corruption Act, 1988?
3. Point No.3: Whether the prosecution proves its case against the accused beyond all reasonable 8 Spl. C.C. No.425/2016 doubt that, accused No.1 and 2 being the public servants working as police-constables in HAL Police Station, on 04-05-2015 when the complainant had been to HAL P.S. to pay the demanded bribe amount to accused No.1- Hemantha Kumara, at that time, accused No.1 directed the complainant to pay the said amount in the hands of accused No.2-Thimmapparaju, at the instance of accused No.1, accused No.2 being a public servant misusing his official position as a public servant has demanded and accepted the said illegal gratification of Rs.40,000-00 from the complainant on behalf of accused No.1 against the public interest and thereby they have committed criminal conduct which is punishable under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988?
4. Point No.4: What Order?
10. My findings on the above points are in the following because of my below discussed reasons.
POINT No.1: IN THE AFFIRMATIVE POINT No.2: IN THE NEGATIVE POINT No.3: IN THE NEGATIVE POINT No.4: AS PER FINAL ORDER.
REASONS
11. POINT No.1: Here after considering the evidence of PW.1 Dr.Boralingaiah, D.C.P. Bengaluru South East Division, along with the sanction order marked at Ex.P.1, now the point remains for 9 Spl. C.C. No.425/2016 consideration of this court is, whether the sanction order issued by PW.1 for prosecuting these two accused is valid or not is the fact to be decided by the court. As per Section 19 of the P.C.Act, previous sanction of the concerned Government or the competent authority is must for prosecuting a public servant. The very object of introducing that Section by the Legislatures is to see that a public servant shall not be falsified in any case while discharging his duty. In that Section, it is specifically stated as to who are the competent authorities to issue such sanction. As per Section 19(a) in case of employee of a Union Government, it is the Central Government (b) in case of a State Government concerned Government and in other cases, the authority competent to remove him from service. Here in this case, PW.1 being the removing authority of the accused from their services in case of any criminal misconduct, so he is the competent authority to issue sanction order.
12. Before issuing a sanction order, the sanctioning authority must satisfied with the materials placed before it stating that, there is a prima facie case against the accused for according sanction for prosecuting them for the offences alleged. For that, the sanctioning authority is not supposed to hold any pre trial. However, it can verify 10 Spl. C.C. No.425/2016 the documents placed before it. In the sanction order marked at Ex.P.1, PW.1-Dr. Boralingaiah, D.C.P. Bengaluru South-East Division, has specifically stated about the documents verified by him. By looking into the said documents, it indicates that, he has considered all the charge sheet papers including the complaint, pre trap, trap mahazar, statement of witnesses and the defence of the accused along with the conversation recorded in the CD. After verifying all the records, PW.1 satisfied that, there is a prima facie case against the accused for prosecuting them for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, so he accord sanction as per Ex.P.1. Nothing has been elicited by the counsel for the accused in the cross-examination of PW.1 to state as to why the sanction order issued by PW.1 for prosecuting the accused is not valid. By considering all these facts into consideration, this court held that, the sanction order issued by PW.1 marked at Ex.P.1 to prosecute these two accused for the offences alleged against them is valid. Hence, this court answered point No.1 in the Affirmative.
13. Point No.2 & 3: For giving findings of this court on point No.2 and 3, common discussion of the oral and documentary evidence placed by the prosecution before the court along with the submissions 11 Spl. C.C. No.425/2016 of both the sides on point No.2 and 3 are necessary, so both the points are taken up for common discussion.
It is the case of the prosecution that, on 29-04-2015 HAL police appeared in front of the house of the complainant-PW.2-Sudhakar and informed him that, his vehicle has been involved in some road accident, so for investigation in that case, he has to produce his vehicle before the station. On that day, PW.2 had been to HAL Police Station along with his vehicle. During the course of investigation, PSI of that station namely Guruprasad told him that, he involved in heinous crimes like rape and murder etc. On that day, HAL police have refused to release his vehicle, asked him to come on the next day. Again, on the next day morning around 9 a.m. he had been to the station and he was there till 4 p.m. During that time, these two accused demanded illegal gratification of Rs.50,000-00 for release of his vehicle and to close the case against him. On that day, these two accused have collected a sum of Rs.10,000-00 from him and asked him to pay the balance amount. Since he was not interested to pay that balance amount to the accused, so on 04-05-2015 he had been to the Lokayuktha Police Station and filed a complaint as per Ex.P.2. After registering the case, Lokayuktha Police secured the presence of panch witnesses CW-2-T. Prabhakar and PW.3-M. Siddalingappa. In 12 Spl. C.C. No.425/2016 their presence, they conducted pre trap mahazar, collected the bribe amount of Rs.40,000-00 from the complainant, note down its numbers in a sheet marked at Ex.P.6, smeared phenolphthalein powder on the same and asked CW.2-T.Prabhakar to verify and keep the said amount in the pocket of the complainant and directed the complainant to meet the accused, discuss about his pending work and to pay the bribe amount on demand by the accused and give signal to them by turning the key-chain by putting in his hand-finger. Thereafter, they drawn pre trap mahazar as per Ex.P.3 and obtained their signatures. Later they left that place went in their departmental jeep, stopped their vehicle at some distance from HAL Police Station, provided the digital voice recorder to the complainant with a direction to switch on the same before he meet and discuss with the accused. They sent PW.3 along with the complainant as a shadow witness with a direction to observe the conversation between the accused and the complainant and inform them at the time of enquiry. After they went there, accused No.1 was not present, so the complainant contacted accused No.1 over a phone. At that time, accused No.1 informed the complainant to pay the bribe amount in the hands of his friend accused No.2-Thimmapparaju. On his advise, he gave that amount to accused No.2, gave signal to the Lokayuktha Police as instructed by 13 Spl. C.C. No.425/2016 them and thereafter they trapped him and seized the bribe amount and drawn trap mahazar as per Ex.P.4, obtained his signature, recorded the explanation of accused No.2, returned to the station, recorded the statement of the witnesses, further statement of the complainant.
14. Again, on 08-07-2015 Lokayuktha Police secured the presence of PW.2 and CW.3 in their station, recorded the sample speech of the accused by giving a script to read it for six times and same was recorded in two separate CDs. The said sample speech of the accused are marked as per M.O.4 and 5. After recording the sample speech of accused, Lokayuktha Police sent the said CDs to PW.5 for FSL examination along with disputed speech of the accused. She examined the said CDS and issued her report as per Ex.P.14. After receiving the report, I.O. recorded the statements of his staff and other witnesses and submitted charge sheet. Now, the point remains for consideration of this court is, whether the accused No.1 and 2 being the public servants have demanded illegal gratification of Rs.40,000-00 from the complainant, on 04-05-2015 accused No.2 collected that amount from the complainant on demand and they received that amount for doing some official favour to complainant as 14 Spl. C.C. No.425/2016 alleged in the charge sheet or not are the facts to be considered by the court. When the accused are prosecuted for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, fulfillment of the ingredients of the said Sections are must.
15. Here in this case, learned Public Prosecutor submitted before the court stating that, though the complainant and his brother have not supported the prosecution case. By considering the evidence of shadow witness PW.3, evidence of expert PW.5 and the police officials examined as PW.6 to 10, the prosecution has proved its case against the accused beyond all reasonable doubt for the offences punishable under Section 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act with regard to demand and acceptance of bribe amount by the accused from the complainant for doing official favour and by misusing their position as public servants, so they have committed the criminal misconduct, hence he requested the court to convict the accused by awarding maximum sentence.
16. Contrary to this, learned counsel for the accused submitted before the court stating that, for convicting the accused for the 15 Spl. C.C. No.425/2016 offences punishable under Section 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, fulfillment of demand and acceptance of the bribe amount by the accused from the complainant is must. By looking into the evidence of complainant and shadow witness, there is no proof of demand of any bribe amount by the accused from the complainant and its acceptance. However, though receiving of the amount of Rs.40,000-00 from the complainant by accused No.2 is held to be proved, it is not a bribe amount as stated by the complainant- PW.2. In his examination in chief he has specifically stated that, he borrowed a loan of Rs.30,000-00 from the accused No.1-Hemantha Kumar, after three months he was called by accused No.1 to the station and warned him that, he will register a case if the loan amount is not paid. On account of the threat given by accused No.1, he went and meet his friend Alex residing at Marathahalli. At that time, he drafted the complaint as per Ex.P.2. He do not know the contents of the same and he has not filed any complaint against the accused as per Ex.P.2. PW.4-Jay Prakash, who is the brother of the complainant, he too also stated that, his brother has borrowed a loan of Rs.30,000- 00 from Hemantha Kumar and he was pressing for repayment of the same, but there was no any demand of bribe amount by the accused from his brother as alleged by him. Though, PW.3 has supported 16 Spl. C.C. No.425/2016 about his presence and receiving of amount of Rs.40,000-00 by accused No.2 from the complainant, he has stated that, he had not heard the conversation taken place between the accused and the complainant. When the fact of demand and acceptance is not proved by the prosecution with cogent evidence, the amount seized from the position of the accused No.2 by the Lokayuktha Police itself will not constitute offence under Section 7 and 13 (1)(d) r/w Sec. 13(2) of the P.C.Act., hence the prosecution has miserably failed to prove its case against the accused beyond all reasonable doubt. Hence, they requested the court to acquit the accused.
17. Here after considering the charge sheet, evidence of the prosecution witnesses along with the documents marked at the time of examination of the prosecution witnesses and submissions of both sides, now the point remains for consideration of this court is, whether the prosecution has proved its case against the accused beyond all reasonable doubt that, accused No.1 and 2 being the public servants working as police constables in HAL Police Station have demanded illegal gratification of Rs.50,000-00 for doing official favour to the complainant and received a sum of Rs.10,000-00 as advance and thereafter on 04-05-2015 at about 5 p.m. accused No.2 demanded 17 Spl. C.C. No.425/2016 and accepted illegal gratification of Rs.40,000-00 from the complainant on his behalf and on behalf of the accused No.1 and thereby they have misused their official position as a public servants, committed misconduct punishable under Section 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act or not are the fact to be considered by the court. For convicting the accused for the above said offences, the prosecution has to prove the fact of demand and acceptance of illegal gratification by the accused for doing official favour in favour of the complainant.
18. It is true that, by looking into the evidence of shadow witness PW.3-Siddalingappa and I.O.-PW.10-B.G.Kumara Swamy, the prosecution has proved the fact of registering a case, investigation undertaken by the I.O. and conducting of pre trap and trap proceedings in the presence of PW.3 and seizure of the articles mentioned at M.O.1 to 17. Whether that itself is sufficient to hold that, the prosecution has proved its case against the accused beyond all reasonable doubt or not are the facts to be decided by the court. In the following decisions:
18 Spl. C.C. No.425/2016
1. (2009) 3 SCC 779 = AIR 2009 Supreme Court 2022 in between (C.M. Girish Babu V.s CBI, Cochin),
2. AIR 1979 Supreme Court 1408 in between (Suraj Mal V/s State (Delhi Administration),
3. 2012 (1) KCCR 414 in between (R. Malini V/s State of Karnataka),
4. AIR 2010 Supreme Court 1589 in between (Banarasi Dass V/s State of Hariyana).
Their Lordships held that, 'mere recovery of money from the accused is not sufficient to hold the guilt'. Further in a decision reported in 1979 Supreme Court 1408 HN-A in between (Suraj Mal V/s State (Delhi Admn.) Their Lordships held that 'where two witnesses make two inconsistent statements in their evidence, either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses'.
19. Here the evidence of complainant-PW.2-Sudhakar is contrary to the case of the prosecution. Though, he admits the fact of approaching Lokayuktha Police and filing a complaint as per Ex.P.2, he denied the fact that, in that complaint he made allegations against the PSI and staff of HAL Police Station. With regard to his approach to the Lokayuktha Police he has stated that, about 4-years ago he borrowed 19 Spl. C.C. No.425/2016 a hand loan of Rs.30,000-00 from the accused No.1-Hemnatha Kumar. After three months said Hemantha Kumar called him to HAL Police Station and told him that, a rape case is registered against him. Thereafter he obtained his signature on some blank papers and sent back. Later, when he met his friend Alex, resident of Marathhalli, he is the brain beyond the contents of Ex.P.2 filed by the complainant against the accused and PSI. By looking into the complaint, it indicates that, when he was called by HAL Police to their station, Guruprasad interrogated him, assaulted him and demanded the illegal gratification, but Gujruprasad ia not impleaded as accused or prosecution witness in the charge sheet. When the allegations are made against that PSI and when his name is appearing in the FIR marked at Ex.P.15, why the I.O. did not registered a case against him or cited him as a witness is the fact to be disclosed by the I.O. He did not do so. Ex.P.22 is the explanation submitted by PSI-Guruprasad. In that report he has specifically stated about the involvement of vehicle of the complainant in their P.S. Crime number and about the interrogation of the accused by him. However, he denied the fact of demand of bribe amount from him. The evidence given by the complainant before the court on oath along with his complaint marked at Ex.P.2 and report of Guru Prasad marked at Ex.P.22, it contradicts 20 Spl. C.C. No.425/2016 to each other and creates doubt in the mind of the court about the very fact of any demand of illegal gratification by the accused from the complainant.
20. Here in this case, admittedly, accused No.1 and 2 are the police constables, they have no right to register any case or undertake any investigation. When they have no right to register a case or to undertake investigation, under such circumstances, they showing any official favour to the complainant in the matter of rape case registered in their station do not arise. This fact is admitted by the I.O. PW.10- B.G.Kumaraswamy in his cross-examination on page 15 para 8 and it reads as follows:
" ......It is true that the accused Hemantha Kumar and Thimmapparaju were not competent to show any official favour to the complainant Sudhakar with respect to a proceeding pending before HAL Police Station......"
As per the decisions reported in:
1. (2016)3 SCC (Cri) 316 = (2015) 15 SCC 629 in between (T.K. Ramesh Kumar V/s State through Police Inspector, Bengaluru),
2. 2016 SAR (Cri) 208 in between (N. Sunkanna V/s State of A.P.), 21 Spl. C.C. No.425/2016
3. 2015 SAR Cri. 1142 in between (P. Sathyanarayana Murthy V/s The District Inspector of Police and another).
Their Lordships have held that, for convicting a public servant for the offences punishable under Section 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, demand and acceptance of illegal gratification are essential ingredients. Mere recovery of bribe money from the accused not sufficient to prove the offence. In a decision reported in 2012 (1) KCCR 414 HN-B in between (R. Malini V/s State of Karnataka), Their Lordships held as follows:
"B. Prevention of Corruption Act, 1988- Sections 7,13(1)(d) r/w 13(2) of the (1)(d)-Therefore mere possession of the amount by the accused cannot be taken as receipt of the amount by the accused after demand made by him as the evidence of demand is totally lacking".
In HN-C their Lordships held as under:
"C. Prevention of Corruption Act, 1988-Sections 7,13(1)(d)-It is not the passing of the money alone that establishes a Corruption charge because the grave men of the offence lies in the fact that the money was paid for a corrupt purpose and it is that aspect which is paramount".22 Spl. C.C. No.425/2016
In HN-D their Lordships held as under:
D. Prevention of Corruption Act, 1988-Sections 7,13(1)(d)-In the absence of any evidence of demand and acceptance of the amount as illegal gratification- Mere acceptance of Money by the appellant will not be sufficient to fasten the guilt".
With these observations, it is clear that, the demand and acceptance of bribe amount by the accused from the complainant is most important ingredient to consider the prosecution case under Sections 7 and 13(1)(d) r/w Sec. 13(2) of the P.C. Act. For considering this fact, the evidence of complainant and shadow witness is must. In so many decisions of Apex Court and Hon'ble High Courts their Lordships held that "for accepting the case of the prosecution with regard to demand and acceptance of any illegal gratification by a public servant, the evidence of complainant has to be corroborated with the evidence of shadow witness". Here in this case the complainant has never stated before the court stating that, there was a demand for illegal gratification by the accused from him. As he has not supported the prosecution case, he was treated hostile and cross-examined by the Public Prosecutor at length. Nothing has been elicited in his cross-
examination about the prosecution case with regard to demand and 23 Spl. C.C. No.425/2016 acceptance of illegal gratification by the accused from the complainant.
That itself falsify the prosecution case against the accused with regard to demand and acceptance of illegal gratification by the accused from the complainant.
21. It is true that, PW.3 is a shadow witness and he has fully supported the prosecution case with regard to the pre trap proceedings and trap proceedings. Further he has stated about the fact of receiving of amount by the accused No.2 from the complainant. He pleaded his ignorance about any demand and acceptance of bribe amount by the accused No.2 from the complainant. Said statement is at para 3 page 4 of cross-examination of PW.3 and it reads as follows:
"...........Complainant Sudhakar was making conversation with somebody through his mobile, but I had not heard that conversation. At that time the accused No.3-Thimmapparaju who is present before the court has came near the complainant and started conversation with the complainant. Thereafter accused No.3 received amount from the complainant and started to count the same............".
Ex.P.7 is the explanation of accused No.2 submitted before the I.O. In that statement he has clearly stated that, on 04-05-2015 at about 5 24 Spl. C.C. No.425/2016 P.M. his friend accused No.1 gave a phone call and instructed him stating that, a person known to him by name Sudhakar has came near their station along with cash to pay him and he is nearby tea-stall, so he asked him to go and collect the same. At his instance, he went near that tea-stall, enquired with Sudhakar and collected the amount of Rs.40,000-00. At that time Lokayuktha Police came and surrounded him. This statement of accused No.2 falsifies the prosecution case with regard to demand and acceptance of bribe amount by these accused from the complainant for doing their official favour. By looking into the other documents marked at Ex.P.3 to Ex.P.6, Ex.P.8 to Ex.P.29, the prosecution has proved the investigation done by the I.O., that itself will not prove the prosecution case. PW.4-Jaya Prakash happens to be the brother of the complainant-Sudhakara has also stated in his evidence in examination in chief stating that, his brother has borrowed sum of Rs.30,000-00 from accused No.1- Hemanthakumar and about a year ago he and his brother had been to HAL Police Station to pay that loan amount, at that time, accused No.2 had trapped by Lokayuktha Police. If really accused No.1 and 2 have demanded any bribe amount for doing any official favour to PW.2 his brother ought to have support the prosecution case. 25 Spl. C.C. No.425/2016
22. PW.5-Smt. C. Vidya is expert who conducted the speech testing of accused appearing in the CDs marked at M.O.2 to 4. Her evidence is not conclusive proof for considering the guilt of the accused. However, her evidence can used for corroborating with the evidence of complainant, shadow witness and the I.O.
23. PW.6-S.P. Raghu is the constable who recorded the sample speech of Thimmapparaju. There is no explanation from the prosecution about recording of sample speech of accused No.1- Hemantha Kumar on that day.
24. PW.7-T.V.Manjunatha and PW.8-N.V.Mahesh are the Police Inspectors who succeeded PW.10-B.G.Kumaraswamy in investigating the matter, but by the time when they took further investigation of this case, the entire investigation was over, so they did not play any main role in the matter. PW.9-Prakash, Head Constable, he has video graphed the proceedings of recording of sample speech of accused. His evidence is of no much important for considering the guilt of the accused. However, by considering the evidence of complainant-PW.2, shadow witness-PW.3 and I.O.-PW.10, it contradicts to each other and creates doubt in the mind of the court about the prosecution case, 26 Spl. C.C. No.425/2016 about the demand and acceptance of any illegal gratification by the accused from the complainant as alleged against them. By considering the evidence of all the prosecution witnesses along with the ratio involved in the decisions stated above, this court held that, the prosecution has miserably failed to prove its case against the accused beyond all reasonable doubt for having committed the offences punishable under Section 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act. Hence, this court answered point No.2 and 3 answered in the Negative.
POINT No.4:
25. In view of all the reasons, this court proceeds to pass the following order:
ORDER Acting under Sec.235 (1) of Cr.P.C., accused are acquitted for the offences punishable under Sec.7 and 13(1)(d) r/w Sec.13(2) of the Prevention of Corruption Act,1988.
Their bail bonds stand cancelled after lapse of appeal period.
M.O.14 i.e., cash of Rs.40,000-00 (Rs. Forty- thousands only) is confiscated to the State and MO.1 27 Spl. C.C. No.425/2016 to 13 and 15 to 17 which are worthless are ordered to be destroyed after lapse of appeal period. (Dictated to the judgment-writer, after transcription, corrected by me and then pronounced by me in the open court on this the 27th day of March, 2018.) (MALLIKARJUNAGOUD) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
CCH-78 ()()()()() ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1: Dr. Boralingaiah M.B. PW.2: Sudhakar PW.3: M. Siddalingappa PW.4: Jayaprakash PW.5: Smt. C.Vidya PW.6: S.P.Raghu PW.7: T.V.Manjunath PW.8: N.V.Mahesh PW.9-Prakash PW.10-B.G.Kumaraswamy 28 Spl. C.C. No.425/2016 LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1: Sanction order Ex.P.1(a): Signature of PW.1 Ex.P.2: Complaint Ex.P.2(a): Signature of PW.2 Ex.P.3: Pre trap mahazar Ex.P.3(a to d): Signatures of PW.2, CW.2, PW.3 & PW.10. Ex.P.4: Trap mahazar Ex.P.4(a to d): Signatures of PW.2, CW.2, PW.3 & PW.10. Ex.P.5: 161 statement of CW.1/PW.2 Ex.P.6: Note sheet of currency notes Ex.P.6(a to c): Signatures of CW.2,PW.3 and PW.10 Ex.P.7: Explanation of accused No.2 Ex.P.7(a & b): Signatures of CW.2 & PW.3 Ex.P.8: CD transcription of accused No.1. Ex.P.8(a & b): Signatures of CW.2 & PW.3. Ex.P.9: CD transcription of accused No.2 Ex.P.9(a & b): Signatures of CW.4 & PW.3. Ex.P.10: Voice identification mahazar Ex.P.10(a to c): Signatures of CW.2,PW.3 & PW.10 Ex.P.10(d): Signature of accused No.1 Ex.P.10(e): Signature of accused No.2 Ex.P.11: Copies of seized documents Ex.P.12: 161 statement of CW.4/PW.4. Ex.P.13: Acknowledgment given by CW.2 (Acknowledgement of seal) Ex.P.14: FSL report 29 Spl. C.C. No.425/2016 Ex.P.14(a): Signature of PW.5 Ex.P.15: FIR Ex.P.15(a): Signature of PW.10 Ex.P.16: Requisition to depute officials Ex.P.16(a): Signature of PW.10 Ex.P.17: Letter to I.O. for depute officials Ex.P.18: CD conversation transcription Ex.P.18(a & b): Signatures of CW.2 & CW.3/PW.3 Ex.P.19: Rough sketch of spot Ex.P.19(a): Signature of PW.10 Ex.P.20: Digital voice recorder transcription Ex.P.20(a & b): Signature of CW.2 & CW.3/PW.3 Ex.P.21: Copy of station house dairy Ex.P.22: Report given by PSI Guruprasad Ex.P.23: Letter to FSL dt.07-05-2015 Ex.P.23(a): Signature of PW.10 Ex.P.24: Work allocation to accused Ex.P.24(a): Signature of PW.10 Ex.P.25: Chemical analysis report Ex.P.25(a): Signature of PW.10 Ex.P.26: Service particulars of accused Ex.P.27: Sec. 65-B of Indian Evidence Act certificate by I.O.
Ex.P.27(a): Signature of PW.10 Ex.P.28: Call details Ex.P.28(a): Signature of PW.10 Ex.P.29: Sec. 65-B of Indian Evidence Act certificate by PW.10 30 Spl. C.C. No.425/2016 LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1: Metal seal MO.2: CD containing voice of accused No.1-Hemantha Kumar MO.3: CD containing voice of accused No.2-Thimmapparaju MO.4: CD of accused No.1-Hemantha Kumar MO.5: CD of accused No.2-Thimmapparaju MO.6: Sample solution bottle MO.7: Hand wash solution of CW.3 MO.8: CD MO.9: Sample solution bottle MO.10 & 11: Right hand wash solution MO.12 & 13: Left hand wash solution MO.14: Currency notes M.O.15: Pant Ex.P.16 & 17: Two CDs LIST OF WITNESSES EXAMINED FOR ACCUSED:
NIL LIST OF DOCUMENTS MARKED FOR ACCUSED:
NIL (MALLIKARJUNAGOUD) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU (CCH-78) 31 Spl. C.C. No.425/2016 32 Spl. C.C. No.425/2016