Karnataka High Court
Krishnappa S/O Hanumanna vs State By Psi Of Lokayukta Police Station on 25 January, 2022
Author: V. Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL APPEAL NO.200116/2015
BETWEEN:
KRISHTAPPA
S/O. HANUMANNA
AGED ABOUT 50 YEARS,
OCC: FDA, DDPI OFFICE,
RAICHUR, R/O.RAICHUR,
RAICHUR DISTRICT.
... APPELLANT
(BY SRI B. SURYANARAYAN, ADVOCATE)
AND:
STATE BY PSI OF LOKAYUKTA
POLICE STATION, RAICHUR,
RAICHUR DISTRICT.
... RESPONDENT
(BY SRI SUBHASH MALLAPUR, SPL.PP.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CRPC PRAYING TO SET ASIDE THE ORDER DATED
30.09.2015 PASSED BY THE LEARNED II ADDL. DISTRICT
AND SESSIONS JUDGE, RAICHUR IN SPL.CASE NO.3/2013
BY ALLOWING THE ABOVE APPEAL IN THE INTEREST OF
JUSTICE.
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THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING :
JUDGMENT
The appeal is by the appellant/accused who suffered an order of conviction dated 30.09.2015 passed in Special Case No.3/2013 on the file of the II Addl. District and Sessions Judge, Raichur.
2. Brief facts of the case are as under:
A complaint came to be lodged by one Sudarshan through Lokayuktha Police contending that he is a social worker and Project Co-ordinator of UNICEF Child Project, D.C. Office, Sath Kacheri, Raichur, to the effect that Kum. Netrawati D/o. K. Veeresh, R/o. H. No.12-06-497, LBS Nagar, Raichur, studied upto 5 th standard in Kannada medium and thereafter, her father migrated to Karnool District of Andhrapradesh and residing at Aastari village of Andhrapradesh and pursuing her further education from 6 th to 8th Standard in Telugu medium at Z.P.H. School, Andhrapradesh. Again, the entire family was shifted back to Raichur and wanted to continue her education in 3 Kannada medium from 9th standard. In that regard, an application came to be filed through the DDPI, Raichur, for permitting her to continue her studies from Telugu medium to Kannada medium and for admission. In respect of the said application, he visited to DDPI office on 19.8.2012, application was made for grant of permission and met DDPI. In-turn, he was directed to meet Sri Krishtappa, FDC. It is further contended in the complaint that the said Krishtappa postponed granting of permission on one pretext or the other and ultimately, demanded a sum of Rs.3,000/- for the purpose of getting the work done, which he has not interested and therefore, he lodged a complaint to the Lokayuktha Police. After verifying about the genuineness of the complaint averments, the Lokayuktha Police registered a case in Crime No.2/2012 for the offence punishable under sections 7, 12(1)(d) read with Section 13(2) of the Prevention of Corruption Act and got three notes of Rs.1,000/- denomination and smeared phynopthelene powder and conducted experimental mahazar in the presence of two mahazar witnesses. 4 Thereafter, raid party visited on 24.8.2012 and proceeded to the office of the accused. Thereafter, the accused along with the complainant visited nearby hotel by name Vishnuprasad, and pre signal was given to the raid party immediately raid party appeared, after tainted money handed over in the hotel, accused returned to the office and the complainant gave a pre signal to the raid party. Immediately, the raid party visited the office of the accused and enquired the accused about the tainted money and recovered the tainted money and colour test was passed through. Thereafter, experimental trap mahazar was laid.
3. Trap mahazar was drafted and accused was arrested and Lokayuktha Police investigated the matter in detail and laid charge sheet against the accused for the aforesaid offences.
4. Learned Trial Judge secured the presence of the accused and framed charges for the aforesaid offences. Accused pleaded not guilty and therefore, trial was held. 5
5. In order to prove the case of the prosecution, in all eleven witnesses were examined on behalf of the prosecution and 36 documents were exhibited and marked as Exs.P-1 to P-36 on behalf of the prosecution along with 8 Material Object as Mos.1 to 8. On conclusion of the prosecution evidence, accused statement as contemplated under section 313 Cr.PC., was recorded wherein the accused denied all the incriminatory materials put to him. However, he did not place his version on record by placing necessary materials by examining himself as a witness nor filed any written submission as is contemplated under section 313(5) Cr.PC., Thereafter, the learned Trial Judge heard the parties in detail and after verifying the material evidence on record convicted the accused and passed an order of conviction and sentenced as under:
"The accused is hereby convicted for an offence punishable under Section 7 of Prevention of Corruption Act 1988 is hereby sentenced to undergo R.I. for a period of two years and also to pay fine of Rs.15,000/- and 6 in default to pay the fine to undergo R.I. for a further period of three months.
Further the accused is hereby convicted for an offence under Section 13 (1) (d) of Prevention of Corruption Act 1988 is hereby sentenced to undergo R.l. for a period of two years and also to pay fine of Rs.15,OOO/- and in default to pay the fine to undergo R.l. for a further period of three months.
Both the sentences run concurrently."
6. Being aggrieved by the same, the accused has preferred this appeal.
7. Learned counsel in the appeal memorandum has raised the following grounds:
¾ The order of conviction and sentence passed by the Learned ll-Add. Dist & Sessions Judge is illegal and same is liable to be set aside.
¾ Kum. Netramma is minor child and the complaint is not given by her parents. But one Sudarshan, who is not related to Kum. Netravati has made complainant on behalf of Kum. Netravati. The said Sudarshan is not competent to seek 7 permission of minor child Kum. Netravati regarding obtaining certificate.
¾ The accused is not competent to issue any certificate for change of medium from Telugu to Kannada. The DDPI is the only authority to issue such certificate. The complainant is well educated and he knows the law/procedure regarding obtaining certificate. The alleged incident occurred on 24-8-2012 and the concerned file was not with the accused on the said day and file was approved & signed by DDPI on 23-8-2012 itself.
¾ The I.0 has registered the complaint on 24-8-2012 at 10:30 am and same was reached to Learned Special Judge on 24-8-2012 at 1:20 pm. Hence it is clear that the procedure is not followed.
¾ PW-9 DDPI has stated that neither the applicant nor her parents submitted the application. He has further stated that the complainant (Sudarshan) is neither guardian nor parent of Kum. Netravati. He has further stated that the complainant is a social worker. Hence it all shows that to get publicity the complainant has created the story.
¾ PW-9 DDPI has stated that the file was put up on 21-8-2012. On 23-8-2012 it was approved and signed by DDPI. 8 But PW-11 I.O. has stated that DDPI has not approved the permission for change of medium on 23-8-2012. It shows that investigation is done properly.
¾ PW-9 DDPI has stated that he does not know who has brought the file and kept on his table.
¾ PW-10 has stated that building of DDPI office and Government High School are separate and description also separate and it may be wrong boundaries shown in the panchanama.
¾ The PW-11 I.0 has stated that parents of Kum. Netravati did not appear before our police station. Hence it is clear that they are not enquired though it was essential.
¾ The PW-11 1.0 has stated that he has taken the model voice of the accused, but it was not sent for scientific analysis along with CD.
¾ The sample phenolphthalein is not seized. The complainant's mobile is not seized and it's chip is not seized. The alleged kerchief is not seized. Shirt of complainant is not seized. It all shows that no material things are seized.
¾ The concerned file was approved and signed by DDPI on 23-8-2012 itself. Hence the question of demanding bribe and accepting bribe on 24-8-2012 does not arise. 9
¾ CW14 Kum. Netravati is the material witness, but she is not examined. Though the Hotel owner is material witness, he is not cited as witness and he is not examined. FSL report authority and head constable are also not examined though they are material witnesses. The non examination of material witnesses will draw adverse inference against the prosecution. But the Learned II-Addl. Dist & Sessions Judge has not considered this material aspect.
¾ No procedure is followed before calling panchas, who are official persons. There are lot discrepancies among the version of panchas. The I.O has not followed the legal procedure at the time of trap. The shadow witnesses are not enquired as per procedure.
¾ The PW1 has not given signal according to the instructions given by 1.0, after Coming outside the hotel, but he gave signal at DDPI office and same was not visible to the police, which is admitted by PW1 in his cross examination. The PW1 himself has admitted that shadow witness Veeresh, Salimuddin and Police staff were outside at the time of giving signal. Hence it is clear that said witnesses were not aware of what was going on.10
¾ In chief examination PW1 (complainant) has stated that on 09.08.2012 he made application seeking certificate. But the said application is Xerox copy. In cross examination PW1 has stated that in the said application it is written as 19.08.2012. In chief examination PW1 has stated that the accused had demanded bribe for issuance of certificate. PW1 has further stated that he had talked to DDPI directly and also in mobile phone regarding bribe demanded by the accused. But PW1 has not made any written complaint to DDPI against the accused.
¾ In chief examination PW1 has stated that he has recorded the dialogue made with the accused in his mobile. But, the said mobile is not seized. It is not sent to forensic lab to prove the voice of the accused.
¾ In cross examination PW1 has stated that Kum Netravati is not related to him. He has further started that neither Kum. Netravati nor her father has made any application to DDPI. He has further stated that the authenticated letter is required by concerned DDPl, Andrapradesh to show that the applicant has studied in Andrapradesh. But no such letter is produced In the application the PW1 has mentioned that he is guardian of applicant. But in cross examination PW1 has 11 admitted that he is not her guardian. The PW1 has no authority to make application on behalf of Kum. Netravati.
¾ In cross examination PW1 has stated that he is not aware that the file was not before the accused as the application was approved on 23-8.2012 itself by DDPI. PW1 has further stated that he has prepared the complaint in his house. PW1 has further stated that the distance between KSRTC Depot and DDPI office is one furlong. PW1 has further stated that the amount was given in hotel. But the hotel manager is not examined.
¾ PW1 has stated that the police staff is in the jeep and he has stated in his cross examination that he is not aware who has written the panchanama and he does not remember how many signature signed. There are lot of contradictions and discrepancies in the version of witnesses.
¾ PW2 shadow witness turned hostile. PW3, who is a gazetted officer in DDPI office has admitted in para No.5 of the cross examination that the file was on the table of DDPI. PW4 is hearsay witness and he has admitted that he, AGO and Malappa are working in room. The PW5 Malappa turned hostile. PW6 has admitted that l0 has not enquired him PW7 has stated that he prepared the rough sketch map at the place of 12 occurrence and stated that signatures of panchas were not taken at the place of occurrence.
¾ PW8, who is pancha accompanied with police has stated in his chief examination that the pant was removed by providing alternative pant. But PW1 has stated that l.0 had provided Lungi. PW8 has stated in cross examination that the jeep was not stopped near KSRTC Depot, but it was stopped near CMC. PW8 has stated the notes were kept in cover and handed over to Sudarshan (complainant) He has further stated that he has not seen the said cover at the time of conducting pancnanama. He has further stated that the panchanama has been computarised in Lokayukta office through lady constable and kerchief has not been seized. There are lot of contradictions and discrepancies among the version of the witnesses.
¾ The demand and acceptance is not proved. In a reported decision, this Hon'ble Court has held that 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.
¾ The version of one witness is supported by other Material witnesses are not examined Material things are not seized. The complaint is not given by concerned person The 13 concerned persons are not enquired. The file was approved signed and the application was disposed of on 23-8-2012 But the prosecution says that bribe was taken on 24-8-2012, which is not believable. On the said day the file was also not with the accused. No procedure is followed. The demand and acceptance is not proved. The complainant is neither a guardian nor parent nor a relative to the applicant. But he claims that he is a social worker. It all shows that the complainant along with some others, has created a story for publicity, for statistical purpose and to harass the accused. The accused is innocent and he has not committed any offence. The accused is not maintaining good health.
¾ Viewed from any angle the prosecution has failed to prove the case. But the Learned ll-Addl Dist. and Sessions Judge, without appreciating the law and evidence, without considering the material aspect and overlooking the contradictions and discrepancies, has wrongly passed the order. The principles laid down by this Hon'ble Court and Hon'ble Supreme Court are not followed."
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8. Reiterating the above grounds, learned counsel for the appellant Sri B. Suryanarayan vehemently contended that the Trial Judge has not properly appreciated the material evidence on record and sought for allowing the appeal.
9. He further pointed out that the complainant is no way connected to Kum.Netrawati. Neither inasmuch he is not the relative of the complainant nor care taker/ guardian and therefore, the entire case of the prosecution suffers for want of proper evidence.
10. He further pointed out that kum.Nethrawati is not made as a witness nor her parents are made as a witness in respect of grant of permission to study in Kannada medium as alleged in the application of Kum. Nethrawati pending with the accused. He also pointed out that the shadow witness has not seen the handing over of the tainted money nor demand made by the accused and therefore, important ingredient to attract the offences alleged against the accused is missing in the case of the 15 prosecution. Mere colour test, trap and seizure of the tainted money alone are not sufficient to record an order of conviction against the accused and sought for allowing the appeal.
11. Per contra, Sri Subash Mallapur, vehemently contended that when once the tainted money is recovered from the custody of the accused, it is for the accused to explain how he came in possession of the tainted money. Therefore, the Trial Judge is justified in resorting to the presumption available to the prosecution under section 20 of the Prevention of Corruption Act and sought for dismissal of the appeal.
12. He also pointed out that anybody can set criminal law into motion and the complainant being the Regional Co-ordinator of the UNICEF was entitled to protect the rights of Kum.Nethrawati and therefore, he was competent person to contact the accused in respect of change of Telugu medium to Kannada medium of Kum.Nethrawati and thus the conviction order passed by 16 the Trial Judge is perfectly valid and sought for dismissal of the appeal.
13. In view of the rival contentions, the following points would arise for consideration:
(i) Whether the prosecution is successful in establishing all ingredients to attract the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, beyond all reasonable doubt?
(ii) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?
(iii) Whether the sentence is excessive?
14. As could be seen from the above, the prosecution case mainly hinges on the testimony of the evidence of shadow witness. It is now well settled principles of law and requires no emphasis that in order to establish an offence under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act, prosecution has to establish the following ingredients:
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¾ Demand and acceptance of bribe money; ¾ Handling of tainted money by the accused on the day of trap (colour test);
¾ Work of the complainant must be pending as on the date of trap with the accused.
15. In the light of the above legal requirements, when the material on record is analyzed, it is seen that the complainant Sudarshan, who is the Regional Co-ordinator of UNICEF has supported the case of the prosecution in toto. He has deposed before the court supporting the case of the prosecution with graphic details as to what transpired before and after the trap and actual handing over of the tainted money in Vishnuprasad Hotel to the hands of the accused. In his cross examination, it has been elicited that he is not the relative of Kum. Netrawati and he is not a guardian. He also admits that Kum.Netrawati has got parents.
16. PW-2 Earesh is the shadow witness. According to the prosecution, he has supported the case of the 18 prosecution, but he has specifically answered that he has not gone inside the Vishnuprasad hotel and he has not seen accused demanding the tainted money and the complainant handing over the tainted money to the hands of the accused.
17. However, he has admitted that he can recognize the voice that was played before the court is that of the accused.
18. PW-3 Siddappa Naikodi has deposed before the court that on 24.8.2012 trap was conducted by Lokayuktha Police and accused was trapped and he was summoned to Lokayuktha office, wherein he has identified the voice of the accused. In his cross examination, he admits that CD was played and documents were prepared after 11.30 and the process was closed by 1.30 pm Lokayuktha Police conducted enquiry, but he does not know the name of the Lokayuktha Inspector. It is also elicited that he is not aware of the recitals of Ex.P-16. As he has confronted with the tippani notes dated 21.8.2012 wherein the 19 application of Kum.Netrawati was produced before him on 28.8.2012 and office tippani dated 21.8.2012 was marked as Ex.P-26. He has answered that on 28.8.2012 the file was on the table of DDPI and CD was played in a computer and he cannot say the total time of recording made in the compact disc. Channappa is examined as PW-4. He deposed that he was in-charge of duties of the office of public instructions Raichur and himself and Mallappa were working in a room and at that juncture, two unknown person entered into the office and took the accused outside the office and after lapse of 15 minutes they came back. His evidence is formal in nature.
19. Mallappa PW5 is the colleague of PW-4 Channappa who has deposed in line with the evidence of PW-4. His evidence is also formal in nature. Krishtappa is examined as PW-6. He deposed that on 8.8.2012 parents of a student namely Kum.Nethrawati brought her for permission to change of medium from telegu to kannada and seeking admission to 9th std. and he has received the 20 application through DDPI on 24.8.2012 and application was submitted by Sudarshan and he admitted the fresh students into school on 29.8.2012 and a report was filed in this regard to Lokayuktha. His evidence is also formal in nature. Sajeed Hussain is the Engineer who prepared the sketch of the place of incident and issued the same vide Ex.P-27 and his evidence is also formal in nature. Saleemuddin PW-8 is another panch witness who has participated in experimental trap mahazar. He has supported the case of the prosecution. In his cross examination, the suggestions made to him that no such trap has taken place and deposing falsely is denied by him.
20. Sri PS Paramesh is examined as PW-9, who work in the office of the DDPI, Raichur, from 26.5.2012 to 24.1.2013. He deposed about the acquaintance of the accused and also preparation of the draft with regard to the permission to be granted in respect of the application of Kum.Netrawathi. In his cross examination, it is elicited that he has met the complainant in his office only once and 21 he has not telephoned to him. He admits that the accused has put up the file before him on 21.8.2012 and the application was approved on 23.8.2012 itself and the file was returned to the concerned section.
21. PW-10 is Syed Abdul Rab. He deposed that he work as Additional Commissioner Public Instruction, Government and he has issued the sanction order to prosecute the accused. His evidence is formal in nature PW-11 Ningappa is the Police Inspector who laid the Trap and supported the case of the prosecution.
22. The above evidence on record is sought to be re-appreciated by the learned counsel for the appellant.
23. In the case on hand, the application of Kum.Netrawati is processed by the accused and it was put up before the DDPI on 21.8.2012. On 23.8.2012 itself, the draft of the permission was approved by the Deputy Commissioner. Actual trap was taken place on 24.8.2012 by the time, the alleged trap has taken place the work of Kum.Netrawati was already completed and only formality 22 was pending i.e., issue of the permission order. In otherwords, there was no demand made by the accused earlier to the completion of the work. Further, in order to prove the demand and acceptance, prosecution has relied on the evidence of the complainant as well as the shadow witness. The requirement of shadow witness assumes a great importance in a matter of this nature inasmuch as a third person who is neutral to the complainant and accused must have witnessed the actual demand and acceptance of the tainted money. The protocol in this regard is to be strictly followed as is held in catena of judicial pronouncements.
24. In the case on hand, in order to prove the said aspect of the matter, the prosecution has relied on the evidence of the complainant and the shadow witness; whereas the complainant has supported the case of the prosecution and shadow witness and clearly and categorically admitted before the court that he has not seen the demand made by the accused and the actual 23 handing over of the tainted money to the hands of the accused by the complainant. Mere seizure of the tainted money from the custody of the accused in such circumstances is not of much significance.
25. Further, in order to resort to the presumption available to the prosecution under section 20 Evidence Act, prosecution has to discharge its initial burden in its entirety. In the case on hand such a burden is not discharged by the prosecution in view of the specific admissions obtained in the cross examination of PW-2.
26. Further, as rightly contended by the learned counsel for the appellant, the prosecution failed to examine the parents of Kum.Nethrawati or Netrawati herself. It is pertinent to note that Kum.Nethrawati is not even cited as a witness. Further, the prosecution evidence is not sufficient to establish the fact that why the complainant was interested in the application of Kum.Nethrawati. In other words, how the complainant is related with the application of Kum.Nethrawati is not 24 established by the prosecution. Just because the complainant is a Regional Co-ordinator of the UNICEF, he would not get a right to approach the DDPI Office for and on behalf of Kum.Nethrawati to establish that Kum.Nethrawati or her parents have requested the complainant to get the permission from the DDPI office, there is no evidence on record. In the absence of any such connecting evidence, it is highly un-believable that the complainant on his own being the social worker, came in contact with the DDPI office and came to know that there is an application of Kum.Nethrawati pending with the DDPI office for which he has coordinated and liaisoned. Under such circumstances, the evidence of the complainant alone cannot be taken into account that there was a demand and acceptance of tainted money by the accused for and on behalf of Kum.Nethrawati for the application which was pending with accused No.1. Further, as could be seen from the evidence of PW-2, wherein he has admitted that draft was already approved on 23.8.2012 and trap was taken place on 24.8.2012, this court is of the considered 25 opinion that prosecution evidence is not sufficient enough to establish all ingredients of the offence against the accused. Accordingly, Point No.1 is answered in the negative and Point No.2 is answered in the affirmative.
27. In view of answer to the point Nos.1 & 2, Point No.3 does not arise for consideration. Accordingly following order is passed:
ORDER (1) Appeal is allowed;
(2) The impugned judgment and order of conviction dated 30.9.2015 passed in Special Case No.3/2013 by the learned II Additional District and Sessions Judge, Raichur, is hereby set aside;
(3) Bail bond of the appellant/accused stands discharged;26
(4) The fine amount if any deposited by the appellant/accused is ordered to be returned under due identification.
(5) Ordered accordingly.
Sd/-
JUDGE PL*