Supreme Court - Daily Orders
Tippeswamy vs State Of Karnataka Tr.Sub.Insp. on 10 December, 2014
Bench: Sudhansu Jyoti Mukhopadhaya, N.V. Ramana
ITEM NO.105 COURT NO.4 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 1950/2012
TIPPESWAMY Appellant(s)
VERSUS
STATE OF KARNATAKA TR.SUB.INSP. Respondent(s)
(With appln. (s) for bail and office report)
Date : 10/12/2014 This appeal was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE SUDHANSU JYOTI MUKHOPADHAYA
HON'BLE MR. JUSTICE N.V. RAMANA
For Appellant(s) Mrs. Vaijayanthi Girish,Adv.
For Respondent(s) Mr. V. N. Raghupathy,Adv.
Mr. Parikshit P. Angadi, Adv.
UPON hearing the counsel the Court made the following
O R D E R
The appeal is dismissed in terms of the signed order.
Bail bonds stand cancelled. Appellant to be taken in custody to undergo remainder period of sentence.
(MEENAKSHI KOHLI) (SUMAN JAIN)
COURT MASTER COURT MASTER
[Signed Order is placed on the file]
Signature Not Verified
Digitally signed by
Meenakshi Kohli
Date: 2015.01.07
05:39:46 IST
Reason:
1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1950 OF 2012
TIPPESWAMY APPELLANT
VERSUS
STATE OF KARNATAKA TR.SUB.INSP. RESPONDENT
O R D E R
The appellant, who is accused in Spl. (SVC) CC No.5 of 2002
for the offence punishable under Section 7 r/w Section 13(1)(d) and Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to ‘the PC Act’), was acquitted by Judgment dated 01.02.2006 passed by the court of Sessions Judge and Special Judge, Haveri.
The High Court of Karnataka Circuit Bench at Dharwad by impugned order dated 24.11.2011 set aside the judgment of acquittal passed by the court of Sessions Judge and Special Judge, Haveri and the accused – appellant is convicted for the offence punishable under Section 7 r/w Section 13(1)(d) and Section 13(2) of the PC Act. For the offence under Section 7 of the PC Act, the appellant is sentenced to undergo six months simple imprisonment and fine of Rs.5,000/- in default of payment of fine, to undergo simple imprisonment for one month. For the offence under Section 13(1)(d) r/w Section 13(2) of the PC Act the appellant is sentenced to undergo simple imprisonment for one year and to pay fine of Rs.5,000/- and in default of payment of fine to undergo simple 2 imprisonment for one month. Both sentences were directed to run concurrently. The said judgment of conviction is under challenge in this appeal.
The case of the prosecution is that the complainant – Ninganagouda (PW1) gave an application to the accused requesting for maintaining status quo of the entries in revenue records in respect of Survey No.63 of Siddapur village measuring 19 acres 2 guntas on the ground that the said land belonged to the complainant’s elder sister Sangavva. One Annappa gurushantappa Arali also had given an application to mutate the name of one Devendragouda. Therefore, the complainant requested the accused to maintain status quo in the entries and for that the accused who at the relevant time was the Tehsildar, demanded bribe of Rs.1,000/-. As the complainant was not willing to give the bribe amount, he approached the Lokayukta police and gave his complaint as per Ex.P1. The entrustment panchanama was conducted as per Ex.P5 and thereafter the complainant accompanied by panch witness (PW2) Aravind Koliwad went to the office of the accused. Further, the case of the prosecution is that the accused demanded the bribe amount and the same was given by the complainant. The accused kept the amount on the table. The complainant came and gave signal to the Lokayukta police, who came and immersed the hands of the accused in sodium carbonate solution. The solution turned into pink colour. The Lokayukta police asked the accused to give the amount and accused stated that he has not taken the amount and then it was noticed that the amount was lying in a cover by the side of the table of the accused. The amount was recovered and on completion of 3 the investigation, chargesheet was submitted.
Altogether 10 witnesses were examined and 24 documents were marked apart from 14 MOs to prove the guilt. On behalf of the accused Ex.D-1 was marked. Statement of the accused u/s 313 of Cr.P.C. was recorded and the accused pleaded not guilty.
The Sessions Judge on perusal of evidence acquitted the accused on two grounds viz. (i) the complainant was in the habit of giving complaints very often and hecannot be trusted, and (ii) the discrepancy in the manner of handing over the bribe amount to the accused, i.e. whether the amount was put in a cover or given to the accused directly, was not clearly established by the prosecution.
The High Court, on appreciation of evidence and other materials, came to a definite conclusion that the prosecution established that the accused demanded and accepted the bribe amount.
The High Court further held that in view of positive evidence placed by the prosecution on record, the trial court could not have acquitted the accused only on the ground that the complainant was in the habit of giving complaints against other officials. The judgment passed by the trial court was held totally perverse, finding being given against the positive evidence on record.
Learned counsel appearing on behalf of the appellant submitted that the High Court failed to note that there were serious discrepancies in the evidence of PW1 and PW2 regarding series of events right from Lokayukta office upto handing over Rs.1,000/- and also regarding preparation of trap mazhar. He further contended 4 that in the facts and circumstances of the case, the evidence of PW1 is not reliable. Further, according to the counsel of the appellant, the prosecution thoroughly failed to prove demand on the part of the accused and that when two opinions can be formed on the basis of same set of evidence it was not open to the High Court to reverse the order of acquittal on the basis of difference of opinion.
According to the counsel for the appellant, the High Court gravely erred in ignoring Ex.P9 which is the explanation given by the appellant on 22.02.2001 itself and in his Statement u/s 313, Cr.P.C., the appellant has clearly stated that his statement as per Ex.P9 may be considered. The Sessions and Special Judge after considering Ex.P9, rightly acquitted the appellant. Learned counsel for the respondent relying on the evidence of PW1 and PW2 submitted that there being evidence on record, it was not open for the Sessions and Special Judge to give a finding on the basis of surmises and conjectures and on the ground that PW1 is in the habit of giving complaints.
We have heard learned counsel for the parties and perused the record.
From the judgment dated 1.2.2006 passed by the court of Sessions Judge and Special Judge, Haveri, we find that one of the grounds taken to acquit the appellant is that PW1-the complainant, is in the habit of giving complaints very often. The Trial Court thereby doubted the statement of PW1. The judgment rendered in another case by Sessions and Special Judge, Dharwad in Spl. (SVC) 5 CC No.4/1998 on 19.07.2003 was relied upon for giving a finding of acquittal in favour of the accused – appellant which will be evident from the following observations made by the Sessions and Special Judge:
“16. Accused has produced a certified copy of judgment of learned PS1 Sessions and Special Judge, Dharwad in SPl. (SVC) CC No. 4/98 dated 19.7.2013. It was examined as an eyewitness to the trap. As per observation of that judgment this PW1 was claimed to have put his signature on Ex.P5 but learned Public Prosecutor fairly conceded Ex.P5, but learned Public Prosecutor fairly conceded Ex.P5(g) was not the signature of that witness. The learned Sessions Judge Dharwad has observed that “This only shows how anxious PW8 was to show that he was present at the time when accused demanded and accepted the bribe by claiming that Ex.5(g) is his signature, which is a total lie.
17. In that judgment it is also observed by learned Sessions Judge, Dharwad that: during my judgment I have pointed out that the evidence given by PW8 is a patient lie.
18. From such observation of learned Sessions Judge, Dharwad, it is clear that though PW1 was not an eyewitness to that trap case, even then he had given evidence falsely. It shows attitude of that person.” Ex.P9 is in the handwriting of the accused wherein he stated that the complainant had come with an application along with another person and they sat on two chairs in front of him on which he informed the complainant that application would be considered and on hearing the same they went away.
There is nothing in support of Ex.P9 to suggest that the complainant applied phenolphthalein powder on the said application. However, based on Ex.P9, the Sessions and Special Judge observed:
“At that time, the possibility of applying phenolphthalein powder on that application, may not be ruled out. If so, if hands of accused were washed in sodium carbonate solution. Naturally, it 6 might have turned into colour”.
The observation made by the Sessions and Special Judge is not based on any evidence and is contrary to the evidence brought out on record by the prosecution.
PW1 is the complainant. In his statement, he deposed that Survey No.63 of Siddapur village belongs to his sister Sangavva and he was cultivating it. One Mr. Annappa Gurushanthappa Arali has given an application for change of entries in favour of Mr. Devendra Gouda and on coming to know of this, PW1 went and approached the Tehsildar and gave an application in February 2001 and at that time, the accused demanded Rs.1,000/- as bribe amount. He further stated that in his evidence that he along with the shadow witness Aravind Koliwad (PW2) went to the office of the accused and the accused asked the complainant whether he had brought the amount. When PW1 answered in affirmative, the accused demanded the bribe amount. Accordingly, the complainant gave the amount and the accused took the same in his hands and counted the notes and kept it on the table. The accused told PW1 that work will be done and directed him to go to the revenue inspector to collect the number. PW1 came out and gave signal on which Lokayukta police went inside. Lokayukta Inspector washed the hands of the accused in the solution and solution turned into pink colour and it was taken in two bottles marked as MO Nos.3 to 6. The Lokayukta Police asked the accused to hand over the money and the accused said that he did not see the amount and on searching it was found near the right side of the table. The amount was recovered and in the entrustment mazhar, the complainant put his signature on the 7 cover and notes were again put into the cover and said cover is at MO No.7. In his cross examination, PW1 has been questioned with regard to the land dispute between the parties and suit being pending in OS No. 52/1976 filed in the court of Civil Judge, Haveri. As far as the trap is concerned, the witness has reiterated that the notes were put in a cover and given to him during entrustment mazhar. The witness has also denied the suggestion that the notes were thrown towards the right side of the table when the accused was attending to the application.
PW2 is a panch witness and this witness has fully corroborated the evidence of PW1 by deposing that he went along with PW1 in the office of Tehsildar and waited for the Tehsildar who came between 4.15pm and 4.20pm. The complainant asked the accused about the work and the accused in turn asked whether the amount has been brought and then PW1 gave the cover containing the notes. The accused took the cover and counted the notes and again put the notes in the cover and kept that cover by the side of his table. A signal was given to Lokayukta police, who came and then asked the accused to pick up the cover. The accused did not do so. One official of the Lokayukta took the cover. The fingers of both the hands of accused were immersed in the chemical solution and solution turned into pink colour and he further deposed that the amount was kept in the cover by the side of the table of the accused.
Taking into consideration the evidence brought on record by the prosecution, particularly, the material witnesses PW1, PW2 and PW9, the High Court held that the prosecution established the demand and acceptance of the bribe amount by the accused. The 8 evidence of the IO also confirms that hand wash of the accused was taken prior to the cover containing notes being taken from the place by the side of the accused table.
The High Court noticed the settled law that the appellate court would not interfere with the orders of acquittal if the view taken by the trial court is a possible view emerging from the evidence on record. The High Court observed that if the finding recorded by the courts below is perverse in nature and the view taken is unreasonable, the appellate court would be justified in interfering with the orders of the acquittal. Keeping in view the aforesaid principle, the High Court examined materials on record. Learned counsel for the appellant relied on the decision of this Court in Chandrappa and Others v. State of Karnataka (2007) 4 SCC 415. In the said case, this Court, while considering the principle of reversal of acquittal, observed as follows:
“From the above decision, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law.
(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes” etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.9
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” In Atley v. State of UP [AIR 1955 SC 807], this Court observed:
“5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In Our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417, Criminal P. C. came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order 10 of acquittal.
If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.” Therefore, it is evident that if the appellate court re-appreciate the evidence keeping in mind the principles and comes to a contrary conclusion, the judgment cannot be said to be vitiated only because a different conclusion has been arrived at.
In the present case no two views are possible in view of corroborating evidence of PW1, PW2 and PW9. The other exhibits show that the hands of the accused when immersed in the solution turned pink. In view of this specific evidence, it was not open for the Sessions and Special Judge, Haveri to doubt the statement of PW1 mainly because in another case his statement was doubted or was not accepted. It is settled that statement made by witnesses in a criminal prosecution cannot be taken into consideration in another criminal case for holding the accused guilty or to acquit the accused on that ground. Further, we find that there was substantial evidence on record to hold the accused guilty. In these circumstances, it was not open to the Sessions and Special Judge to doubt the evidence on the ground that there was a possibility of applying phenolphthalein powder on the application which was handed over by PW1. The finding of trial court being against the evidence on record and based on presumption and perverse, no ground is made out to interfere with the impugned judgment passed by the High 11 court.
We find no merit in this appeal, it is accordingly dismissed. Bail bonds stand cancelled. Appellant to be taken in custody to undergo remainder period of sentence.
...........................J. [SUDHANSU JYOTI MUKHOPADHAYA] ...........................J. [N.V. RAMANA] NEW DELHI DECEMBER 10, 2014 12