Karnataka High Court
The State Of Karnataka vs H R Noorullakhan on 12 November, 2010
Author: N.Ananda
Bench: N.Ananda
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OE NOVEMBER 2510
BEFORE it P V'
THE I-ION'BLE 1vIR.JUsT1cE N.A1\I2i;II_DAj it
CRIMINAL APPEAL /goiozif * '
BETWEEN: P P'
T he State of Karnataka _ «_ P'
By Lokayuktha, Tumkur. . ..'.29aPPELLANT
[By Smt .T. M. Gayathici, Advl. E}. V
AND:
I. H.R.Nooffiliai{3tI_aII'~:.Vj?-1-.,
S/'oi'H.-Réban*iTa'ii Khan I
Police SLib'4.I-:<1fsVpcc'tof'v»««._
Chi.ckI1aiis;ana.halli..Police Station
Chicknaikahahall-i,
2, ._Ra.II1aiah ~ V V
IIIII
A ' = .. _VChvic«kI}4aiis:anahalli Police Station.
'-.BaSaIfaraj V'
»._44__P.C..~No',j'a5£14
Czhicaknaikanahalli Police Station.
in » A4] " ..-Sidclaramaiah
* .P.C.No.774
Chicknaikanahalli Police Station.
it 5. Gangadharaiah
S / o Devi Kariyappa
Age 55 Years
Kurubar, Agriculturist
Chicknaikanahalli.
6. Ghani Sab
S/o Karim Sab
59 Years
Ex--Municipa1 President
Chicknaikanah alli _
Tumkur District. ...RESPONDENTS_
(By Sriyuths.S.G.Venkatareddy, Adv. B.M.Siddappa, Adv. for R2 -- R4, Gangadar'ai'ah-;:
served, Ghanisab -- R6 -- served} This Cr1.A is fiied under Section 9937911") Cr.P.C to grant leave to file an.__ appeal 'against-2. thpezx judgment and order of acquittal-.. dated 2;"-}..;1'..1_VO..'Z3OO2 _ v passed by the Principal Sessi'ons.Judge, "i'un.1ki:ir in Spl. Case No.5 / 1992, thereby ac_quit'i:ing the_respondent-- accused no.1 for offences punishable._unde1*°seVctions 7, 13{1](d) and 13(2) of" :,1988_ and respondents accused nos.2 to 6 for _ offences.' "pfunj.shab1e under sections 193 and .109:i'PC.* p' This on.' for hearing this day, the Court delivered vt1ie<.fo11o:WiIiVg:
r_i;Ui:) o M ENT R.e's~p:on"(1e_nts 1 to 6 were arrayed as accused i'\To.s".*1 Vipfiddspecial Case No.5/ 1992, on the file of Principai Sessions Judge at Tumkur. They were tried A foi'S"offences punishable under Sections 7 and 13(1}[d) 9' rp;/w 13(2) of the Prevention of Corruption Act, 1988 [for short, 'the Act') and aiso for offences punishable under Sections 193 and 109 of IPC. The learned Sessions Judge has acquitted them. Therefore, the State represented by Lokayukta has preferred this appeal.
2. I have heard S1nt.T.M.Gayathri, vlearned Counsel for appellant and Sri _ learned Counsel for respondent Noll / it
3. in brief, the case of proseoa,1ti'on is as folloxzvsf, During the year 199Q,_...'£5W2+~Q:Thontaradfhya was owning a shop in and he was dealing 'provisions also selling kerose_ne.__ .1l?'i!V;9__V:H.T..d'ayara1na is a native of Hirisave Village, 'Clhannaray.ap.at'nVa' laluk, Hassan District. At the rel,eT§(ant tin1e",~l_1VeV'wa:s using a diesel pump to lift water » cultiv.atel"~--h_is lands and he was running his diesel H kerosene. On 17.8.1990, he had corne Chikkanayakanahalli and purchased 70 liters it Aollfkerosene from PW--2. When he was transporting 70 litres of kerosene in a can in a private bus, some of l the police constables apprehended and arrested PW-9 and seized kerosene can, containing 70 liters of kerosene to the police station. At the relevant time, first accused was the Sub Inspector of Chikkanaikanahalli police station.
On 18.8.1990, accused No.1 secured police station and told him that he had sold__;"_7C) kerosene in black market to PWp--9h and 2. him to implicate in Crime No.l59/ to have sold kerosene threatened to book PW--2 inp.th;e._cas_ve relgistvegred against PW--9. When PW--2 accused No. 1 demanded illegaiv._gratificat:ion' -- as a motive or re\i{ard.t,o favour to PW~2 not to frame PW--2 in~__the 'cased .-registered against PW~9. PW--2 bargalined an'd_,flillepgal gratification was reduced to » On the same day, PW--2 borrowed a sum of if different persons and paid the same as illelgazlvlgratification to first accused and requested him to spare him from the criminal case. Accused No.1 accepted illegal gratification of Rs.600/-- from PW--2 and demanded PW-2 to pay remaining illegal gratification of RS400/~ within a short time. PW--2 assured that he , _r' would pay the remaining illegal gratification of Rs.400/-- and came out of the police station.
On 20.8.1990, PW.2 lodged first informatione'..:\:2'Vith the Deputy Superintendent of Lokayuktha H on the basis of which crime No.6"/91990 v offences punishable under Sections"? 13(2) of the Act, against accusetl No.) .3 sum of Rs.400/-, which comgprisedouf sift currency notes Rs.50/- denomination," of Rs.20/- denomination» tjwovl ' 7 notes of Rs.10/-- denorriinatio"nf.'._--vI "Superintendent of police since dead. not examined before" the tr1al__vCourt} secured witnessed namely, PW-l and" PW-3 K.G.Lakshman from their respeActi{f'e.,V_ofi7icés. On their arrival, CW--34 explained the contents. first information to PW1 <3: PW3. CW34 smeared phenolphthaiein powder on currency notes 'produced by PW2 and entrusted the same to PW--2 with it man instruction to give the same to first accused 1f the bribe is demanded by first accused. CW-34 demonstrated phenolphthalein test to P %.l, 2 and 3. The raiding party comprising of PWs.1 to 3 and other police officials led by CW--34 reached Chikkanaikanahalli in a jeep and jeep was parked near the police station. PW--2 was instructed to meet accused. PW3»~K.G.Laksh1nan was instructed V' shadow Witnesses to observe as towiiat would 'tr_anspiré--.g between accused and PW--2, police station at Chikkanaikan:aiia1li.Vh PW32. it to accused and it was-:"'acgcepte'd acec.used."P'vV -2 came out of the police station and lgavle 9-.re¥r;:1~eterrnined signal to CW"34'.l' Cl7§g?if8dZl::f:~§4and'otherlglnigernbers of raiding party rushedz't.o:'police: Ar-,-cused was apprehended. In the rneanwhile,Vaccusedllafter seeing CW--34 threw ' "«.,.,thé..._'tairit.edxgcurrericyl notes into a waste paper basket beneath the table. CW34 recovered tain__ted__v'currency notes and conducted phenolphthalein test bydipping the fingers of both hands of first accused bowl containing sodium carbonate solution, the ....,-ésultant Wash. turned into pink colour. The resultant wash was collected in a separate bottle and the same was sealed. 2.
4. It is the primary accusation against accused No.1 for offences punishable under Sections 7 & 13 (1)
(d) I'/W 13 (2) of the Act. The second part of the case of prosecution relates to fabrication of docurrien'tai*},( evidence in Crime No.164/90, which S' against P"W.2 -- Thontaradhya 'th.e_ 'lallegatirgn 'that3 PW.2 had attempted to bribe accusfedff afternoon of 20.8. 1990.
5. It is the case "off'proseeLf.tion':i accused No.1 by misusing lals __official" asS'ub--inspector of Chikkanayanal:ana1l.i"Pl_.TS..,_ by manipulating the entries in Station * House »-- had registered Crime No.,.]}bl3lf~l.99OV" PW.2 alleging that PW.2 had him a sum of Rs.400/--. It is the 'proslecution that accused No.2 to 6 by giving statenlentsfin support of the crime registered by first accused abetted commission of offence punishable ' under Section 109 I.P.C. Therefore, accused No.2 to 6 were also tried along with accused No.1 for offences punishable under Sections 109, 167, 19 and 218 1.P.C. 1'
2) ".r~,accused No.1 KO demand, first accused demanded and received remaining illegal gratification of Rs.400/- from PW.2 on 20.08.1990 irtthe Police Station at Chikkanayakanalialfi: as a motive or reward to show official"f_avo'ur__ _ to PW2 for not implicatirlgPVV2.ViriA--f.:CriIne" 0 No. 159/90 registereVd:' i 'againistffi' PW_{9'V*'VV -2 Jayaram'?
Whether the lhasffi proved accused bein'g._ « . Sub--inspector of Police [public serv?ico}_:f'infi'sused his official position to advantage of . a§f}.,i.ooo,(_}tp hiiiiselfruthereby committed ifVfofferices"i.punishable under Sections 7 & P 13 ill)' 13 [2] of the Prevention of c_:fCor.rup.tio'ri Act, 1988?
dfivwhether the prosecution has proved that fabricated records in 9' connivarice with accused No.2 to 6 in Crime No. 164/ 90 registered against PW.2 on the allegation that he had attempted to bribe accused No.1 by offering a sum of Rs.400/ -- the 20.08.1990 in Chikkanayakanahalli P.S., thereby during afternoon of accused No.2 gm.
committed offences punishable under Sections 193 r/W 109 I.P.C.'?
4) Whether the learned Trial Judge»-.__1_'1as properiy appreciated evidence on _
5) Whether the impugned judgment interference? d it it i
6) What Order?" _
9. The prosecution has___e§{aniined.'asiriany as 14 witnesses to prove charges fiagainst accused. PWs.1 to 9 were.__ V.'in.':'i..pro'offiof' demand and accepta_nc.e-- by the first accused. PW's 10 to ifidwere prove that accused No.2 to 6 had«§gfabricated._.V:evidence against PW.2 in 'Crime
-- P.B.Poovaiah has given evidence dreiatinxgdy to'."in'v=eVstigati0n of both cases. ..1'{).: It is seen from records that first accused had 'registered Crime No.i59/90 against PW.9 on the ~-aillegation that on 17.8.90, at about 5.45 p.1n., PW.9 -- H31' Jayaram was found transporting 70 liters of Kerosene, which he had purchased in black market W &Q,Wa,t_4,M from PW.2 -- Thontaradhya. This is the genesis of entire episode. PW.9 -- H.T.Jayaram has not disputed that he was brought to police station along with quantity of kerosene when he was _ same in a private bus at Chikkanayar1akanai1--a.Ijii.»
11. PW.2 has deposed;
summoned by first accused; the Sub--inspector told him*"that 'ilijters of kerosene in black mar'l--{et',:' wouid be booked in the.' against PW.9.
PW.2 has "Was demand for Rs. 1,500' it was reduced to Rs.1,000d/'~VVd'and "part of bribe on 18.8.1990 and paid theéddéieniaining arnount of bribe during trap in the p"o1€ice"ista't.ion 1990.
Vsdfivrst information lodged by PW.2 with ' 'LVokayi,1ktaA:_police at Tumkur is marked as Ex.P3. In ascertain the veracity of evidence of PW.2, it is .___'''necessary to state the contents of first information. In ."1A-lithe first information, PW.2 has stated e was /'--"'$"\-- 3 f\/.
"-chamber 12 running a petty shop in Shettikere Village. Chikkanayanakanalli Taluk and he had obtained license to sell kerosene from the Government. On 14.8.1990, a Police Constable by name Shivanna attac«hed"--«_lj'to Chikkanayakanahalli P.S., came to his V' demanded 10 liters of kerosene:-'f:6ee--.of refused. On 18.08.1990,' twol::pol_i;ee Chikkanayakanahalli 13.8., and 'toldthe 'V Sub-inspector of Poli.c"e..V_A[firstWaccusé:d) had"'su"rnmoned him. Therefore, PW.2 uncles nameljgf"l5W.5{5. 1Néég1a;anfaiahto'anld PW.8 ~ S.N.Shivappa Went to7the-- res-idenjce' accused at about 9.30 a.rn. The first aclctised. henlquired PW.2 if he had sold kerosene 'l it "in market" »~ H.T.Jayaram to which PW.2 PW.2 was taken to police station and on__e'person was shown in the police station. That perso.nV----l5W.9 -- Jayaram) told that he had purchased 'glrerosene from PW.2. The first accused took PW.2 to his and demanded illegal gratification of Rs. 1,500/-- as a motive or reward to spare him from the case registered against PW.9. PW.2 and his maternal .5 #'\1. . -x»«fi'\~ *1-'~54.
?' uncles pleaded their inability and bribe amount was reduced to Rs.1,000/-. On the same day, PW.2 borrowed a sum of Rs.200/~» from one Narayan Rao and RS200/-- from Anantha Shetty and PW2 had with him. In that way, PW2 had mobilised * and he paid first installment of» illegal at if 2.30 p.m. on the same day, in accused. The first accused received the_ same and 'asked "
PW.2 to pay remaining'amo'u11t_:'at"-»the earliest. PW.2 agreed to pay illegal -thereafter, he lodged," llfirlst. it on"'1"2O'.'V:()8. 1990 with Dy.S.P., Lokay1ii:ta«.Poiice PWJSLV A Neelakantaiah and PW.8 W are the maternal uncles of PW.2. They Ii,3i\.re'A that PW.2 had taken them to meet and that first accused had demanded if illegal 'gratification from PW.2. They have not deposed payment of illegal gratification. They were treated as hostile Witnesses.
During cross~examination also they have not given evidence against first accused. PWs.5 and 8 being the ;K\{ J ""}\.x lé "-
maternal uncles of PW.2 had no grievance or grudge against PW.2. In the normal course, one would expect them to support the evidence of PW.2, however,V_...they have not supported the evidence of regarding demand or acceptance of illegal V' by first accused. Therefore. the relied on the evidence of prove acceptance of bribe by first acetised on" it
14. PW.2 has depcsed§'.thai: §m[t2:O;s,199o when he was in his shop:at_ person came and asked' PW2 told that there was no stock ofdkerosenefon. next day morning, C.N.Ha1li Police "constal;5le_s::carr1.e to the shop of PW.2 and asked »h:im__to,: accompany them to police station stating that by first accused; on the next day rnorningi, TlW.2 along with PWs.5 and 8 went to it P.S., the first accused was not in the station and he was in his house; therefore, all the three persons went to the house of first accused; the first accused told these three persons [PWs.2, 5 and 8} to wait for him in the police station; therefore, PWs.2, 5 and 8 came to the 1/\_) I J police station; at about 10.30 a.m., the first accused came to police station and all the three personsl_Vl::vere called to the chambers of first accused; at . person was present in the police; .s.t.a_tion';" 'v. asked PW.2 if he had sold kerlosene license and PW2 denied first * if accused told PW.2 that he «vii-s----lg"oinggA_tohregisterl a case against PW.2 for selling market; first accused demanded Rs.l,500/-- as a motive or" a case against PVV.2; same, first accused repeatelcllv «told: would be booked in the case; .P_W.2l'carne.ccut'*iof°'the police station and borrowed iof Rsg.60tl¥?"and paid the same to first accused e-and pay the remaining amount of Rs.400/-- on '-the day; PW.2 has deposed that he had paid ll"4"-milrlegalz gratification of RS600/~to first accused in the police station; on the next day, he lodged a complaint
-~wl1'th Lokayukha Police as per E1x.P3.
15. At this juncture, it is relevant to state the evidence of PW.2 regarding demand and a(:eCtance of illegal gratification does not find support form the evidence of PWs.5 and 8. The evidence of PW2 does not finds support from the contents of first information.' As per the contents of first information marked as first accused had demanded and accepltiedéi V' gratification of Rs.600/«~ from PK/V.V2"<OI"1l1;lV~."'VV his residence. PW2 has given Contrary to this, PW.2 sjwas 0' summoned to the po1ice...stat.io'n on"20'.08.1990 and he paid the first of Rs.60Q/"L/ltor police station. Thus, these txwo'xrersions:_ij PW.2 regarding payment of iirstprinstallrnelntrof Ailleglal gratification of Rs.600/- to accused are "" 'lmutualiy contradictory and they his--.cai1not.T'l:-_e" re-coiiciled. Therefore, the prosecution has failed to ifarove demand and acceptance of illegal gratification of Rs.600/- by first accused. Now, what 0' 'rem-ains to be seen is, whether the prosecution has "proved that on 20.08.1990 during the afternoon, around 3.00 p.m., first accused has demanded and accepted illegal gratification of RS400/~ as a motive r reward, ""h4 IKL fxwafixaclg not to implicate PW.2 in a criminal case. CW.34 «- D.G.Sharanappa had made preparations to trap the accused and CW.34 had trapped the accused. As per the order sheet maintained by the Trial Court, Sharanappa was dead by the time ' issued to him. Therefore, eviden'ce~r)f .'_jno't, if available to the prosecution. In the prosecution has relied on the-v..:evigdence--. of in if regard to crucial aspect of."d'emnafp_d"e'and acceptance of bribe.
._P\?f/f1'.v--»:_:'VSariria,._"Obalaiah has deposed; that during the_yevar" Jwas working as FDA in the office."of~ DDI51;V--..'l'umgl;ur. At about 11.00 a.m., DDPI raskegd go to Lokayukta police office at Tumkur 'a.{id-.ihé' the office of the Lokayuktha police at Tum1;Li1*:. that time, the Inspector of Lokayuka and if of Lokayukta were present; PW.3 -- Ff..G.Lakshman was present and one person from Chikkanayakanahalli was also present. PW.2 --- Thontaradhya gave six currency notes each of Rs.50/-- denomination, 4 currency notes each of 18 denomination and two currency notes each of Rs.10/~ denomination, totally Rs.400/«-- to CW34 and he smeared phenolphthalein powder on these currency notes and handed over the same to PW.3 -- thereafter, some solution was prepared and ~ the fingers of PW.3 was washed inmthat ithe if resultant wash turned into pink were collected in M01 and CW__. the " it contents of first inforn1ation..tlodhgedlby thereafter, raiding party left reached ch:kk;3.;1é§ya1§}¢.nai}';g1ia:' at,j'i2.3o'iip'.fi1.; cw.34 asked PW.2 to meetthe first police station; PW.l stayed vvith_-CW34." that PW.1 had not accompanied *TOn"..the other hand, PW.3 ~ Lakshman had The evidence given by PW.l relates to post,;ft1'a,p" proceedings, which will be discussed later. l7. PW.2 -~ Thontaradhya has deposed; that after fist information was lodged, the police secured witnesses namely PWsl and 3 and made preparations to trap accused; PW.2 has not given the details of events which had happened in the office of Lokayukth apolice mi before the trap was laid. PW.2 has deposed; that he does not know the denominations of currency notes which were smeared with phenolphthalein powder. PW'.2 has deposed that he does not know who over currency notes and he does not know * contemporaneous document was prepparedl V' A it of Lokayuktha police; PW.2 A' Chikkanayakanahalli P.S., V ;, ff?«.'§'t.;vvaccused '' V was not in the police '4:-..tatioii'j" atfjaloout first accused came to the police ciuestioned PW2 whetherllhe' told first accused that and handed over Rs.400/--
to first accuS_ed;..first accused kept the money (tainted '~....,Cu"rrenLfy} in hiflswlvpocket; thereafter. PW.2 gave signal to Lokayuktha police and they reached' police station; the PSI and Dy.S.P. of Loltayuittha police introduced themselves to first l"'ac'cu;sed and questioned first accused whether he had it 'received illegal gratification from PW.2, the first accused denied; the first accused removed money [tainted currency] from his pocket and threw the same to waste J\i. .' paper basket; first accused removed the uniform after securing alternate clothes; thereafter, currency..V_note_s were removed from waste paper basket and-fweiiei. . seized and the hands of first acc_use.d4we-reldwashedin a "' bowl containing sodium ca.rbon'ate1'_Asolutio.n': _resu"1tai'it:
wash turned into pink colour:
18. From I find evidence of PWJZV regarding acceptance of bribe frorn. discrepancies.
PW.2 where the tainted currency over by PW2 to the PSI and he was 'noti vawarer. about denomination of the notes.
PW.52 not "-aware about the preparations made in ' l§o}:ay1,ikta«}office to trap first accused. PW.2 has was the shadow witness and he had accompanied PW.2 to police station, which is contrary A A.tol'"the evidence of PWs.1 and 3. PW.2 has deposed; when they reached Police Station at 1.30 p.m., the first accused was not in police station; at 2.45 p.m., first / accused came to the police station and asked whether ? N' ,/ '5 L4 I"/V remember the date on which he met first accused; time and place at which he handed over illegal gratification. PW.2 has not deposed that first accused had asked "him to come to the police station on the next day at p.m. PW.2 has reiterated that when he ' police station along with PW.3. thc"fi1'"st¢ vf.ras4.'n.ot'..c it there and had gone to his housle'.;__ asked Lokayuktha police as togilpxwhetherphe. 'V V first accused in his house. adrnittedvlthat he had not produced license 'was permitted to de8*1.'t'\'\ri'tl1"hwas"§adm1tted that he does not the Ex.P1 to P3. PW.2 has deposed that "rnernbers~.--"'lof raiding party were waiting ll't-v.outsideg_'-thegpolicevetation. PW2 has denied suggestion currency notes into the pocket of first'VacC?.1seu§;l;l:;in the process. currency notes fell into the V '-.waste" paper basket.
20. PW.3 -- Lakshman has deposed; on it W2O.08. 1990, as requested by Lokayukta police, he went to the office of Lokayukta police at about 10.15 a.:rr1.; PWs.l and 2 were present. Lokayukta Police Inspector ff ' in his right side pant pocket; Dy.S.P. showed his Identity Card to first accused; first accused_4.rerrioyed currency notes form his pant pocket dustbin; first accused started his cloths; Dy.S.P. asked him the hands of first accuSCd*§:v1f'""~..'5."'EEre"' ";soine'ii' solution and it turnedinto colour; 'tainted; currency notes were seized dédaitiereeproviding clothes, accused No'.v1-dwas trousers and right side; crashed in a solution and sample of resultant wash During-cross¥'e;$<aniinatior1, PW3 has made certain categorical adrh'ivs--s--ions, which would belie his Version "iniexarninatioirchief. PW3 has admitted that he ax' not.'ientered the chamber of first accused and he was staying near the door. There were half shutters in a.ddfition to ful1 shutters of door. PW.3 had not seen as K to What had transpired between PW2 and first accused. PW.3 has admitted that since there were half shutters, Lg the payment made by PW.2 to first accused Ks not M .......L visible to him. For the first time, he saw the first accused Where he was removing Rs/LOO/-- [tainted currency} from his pocket and throwing into a dustpin. He had heard the first accused asking had brought money.
21. At this juncture, it PW3 has not deposed thai".,"wzhether':
questioned PW.2 that he brought' --.t_he_.famount. PW.3 has made a that he had not actually seen '._'€:"'»'§.,7__.'2 first accused. Thus,:':__we_ _'Eli4?_3:l'f3 _ are material discrepancies in the evidence of' 3 relating to demand and acceptance of bribe by first accused. is a post trap witness. PW.l has dep4oseV_d;~ the members of raiding party entered the police 'station, he also followed them; when he entered .:police station, first accused. PWs.2 and 3 were ....present. The Dy.S.P. of Lokayuktha held the hands of first accused and tainted currency notes were found in a dustbin kept beneath the table; first accus _ was K?
-26 asked to collect the said tainted currency notes; after the currency notes were removed by first accused "from the dustbin, his hands were washed carbonate solution and resultant wash coiour; the process was done of the trousers of first accused;
pink colour. ' a V _ V if PW.1 was treated':.as resailing from the contents of jyrecorded under section 16; before leaving the ._ the Inspector had asked complainant money to first accused in casegif'c'~it wast-demanded. The fingers of PW.1 were __ sodium carbonate solution before he ifco1i'e-ctedu-"ther:=.tainted currency notes from the dustbin. hasvdenied suggestion that, after he entered the 'A ~ office, first accused took tainted currency notes from his pocket and threw the same into a dustbin. As already stated, CW.3-4 could not be examined as he was dead before the commencement of trial. t'\5 '''''p"'" :5: I _ _
23. Thus, we find the evidence of PW.2 does not find corroboration from the contents of first inforriéiation lodged by PW2. The evidence of PW.2 regarding_A»d:em;and and acceptance of illegal gratification --
first accused on 18.08.1990 incredible.
24. The evidence of to demand V and acceptance of illegal accused in the police station of is highly discrepant tl'he':--d'is.cr:epancies found in the 3 3 are highlighted in the discussion " made" This apart, I find certain maieriai discrepancies in the evidence of Investigating » :Office.r.'A.yi«n"'~the pre trap mahazar, denominations and 'numbers'?oftcurrency notes are not correctly mentioned. to have not deposed after the trap and recovery 2 iofltainted currency notes from dustbin they compared numbers of tainted currency notes with the numbers mentioned in the pre trap mahazar marked as per Ex.P2. The numbers and denominations of currency 28 --
to the trial court to ensure that the tainted currency notes recovered from the first accused were submitted to the court. As already stated, CW.34 examined however, PW.14 -- P.B.Poovai_al:_ has given' evidence relating to the rest of' the ~i'inivesVtig'ation including sanction accorded by .
Bharani. The defence has._llt'm_adel' runsuccessful attempt to establish;..4t"n.at .l3W..l1"2._V_was.pnot competent to accord sanction and_t.h:e_ 'orderaoi'f"'san}r:ti*on suffers from discrepancies. ----l was the Addl. Directolr"Gérreralfi-grof fPo;iice was the disciplinary authovritvandpl he~_wasl"-..competent to remove the first accused from se.rvice.""'T he facts and circumstances of and"l-reportsllllwlere made available to PW.12 before lt11elsa_lnctiorr_Vw.as accorded. also see from records that first accused had seizedvpkerosene which was transported by PW.2 much the accused was trapped. PW.9 who was _ responsible for the entire episode has not supported the case of the prosecution. PW.9 has deposed that on 17.8.90 he came to C.N.Halli for purchase of rosene )''\7 _c":: D\. 1., PW. 1 -f suLjh"aslh--wV _ fit I --29 and he had purchased 70 Litres of kerosene and when he was transporting the same, he was'VV.V'ca=L1ght red~handed by the police and he was station. He had come "D. Channarayapattana to purchase had purchased 70 litres 'Vkerosene:
the names of persons he purchased kerosene. PW.9 was released on 23.8.1990. V g J
26. first accused had registered- after he was trapped.
Thus, 'on "oVeV1"_'all»-appreciation of evidence, I find prosecution failed to bring home guilt of accused for » v:VOff€V1'1C:'€S.'plcfi'li_Sh8.bl€ under Sections 7 & 13 {1} (d) r/w if '*.1..l..'3'{§Z) Therefore, I answer points 1 and 2 in negative. V if 27. The next part of prosecution case relates to fabrication of evidence by first accused in Crime No.l64/90 which was registered against PW.2 -~ Thontaradhya on the allegation that he had erupted 30--
to bribe accused No.1 as a reward to spare him in the case registered against PW.9 »~ J ayarama. l l
28. As could be seen from the 1.
records, there are serious ll create a strong suspicion against ' accused. Nevertheless, welnpftice V in the case registeredin charge sheet was f/'_»T9.pj1.',"for an offence punishable "against PW.2 -
T hontarad'hva';'* . (5 / 9 1 was withdrawn on an'-,applicat'ion_»rnadelby the learned Additional Public Prosecutor lipursuant Government Order bearing No, 34 Mor1.1gB'A; 93 dated 15.11.1993. 'A if Ijnorder to constitute an offence under Section prosecution has to establish that the acE5use--¢111'éta fabricated evidence to make use of the same judicial proceedings. Section 193 reads thus:
193. Punishment for false evidence --
Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates 6-\}', ('":}{£,\/Lu' £3/\ i,/\ E 3l--
false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend seven years, and shall also be liable to finejf and whoever intentionally gives false evidence in any other" "casegp shai'll._'be--.i't~ Punished with irr1l3rison'me:1.'itlt"l of. description for a term_ '\v_hichV.rnay three years. and shall alslowbe 1iabl'e'ifine.V'§
30. Whether firstp-.accii§.s§3d"'-blindeonnivance with accused No.2_:to.__ 6 eyidence in Crime No.16l{}/98 was a matter to be decided by the Magistrate. As already stated, the learned~ Magistrate: had permitted to withdraw ' on an application filed by the Addl. Pt1bilic.vP'r'-ssecviitor under Section 321 Cr.P.C. Therefore, allelgedefabrication of evidence was not available for X1" judi.cia1 scrutiny.
31. I also find another serious infirmity with regard to charge sheet filed in C.C.No.30l§/91. An offence under Section 193 I.P.C. falls under Chapter XI Cr.P.C.
32. At this juncture, it is useful to to provisions of Section 195 Cr.P.C., reading as _ No court shall take cog§nilVzanc._e"*«Qf punishable under S€CtiOl1S"-1/19:3' to 200, 205 to 211 (both'-~._inc1usive)_ a;fid.jp1r228.i5 when such an offence to have lpeen committed in, proceeding in any Court, .9/pornplaint in writing of .§(§)'f[S€)_1'1'il(3 other Court to which [that _C'ou1't'is . subordinate. A of section 195 [1] {b} 4; 11) {as if stood then) _ 'eircept on the complaint in writing of the »V.scrvant concerned or of some other servant to Whom he is administratively subordinate;
of any offence punishable under nay of the following sections of the Indian Penal Code (45 of 1860}, namely Sections 193 to 196, 199, 200, 205 to 211 [both inclusive) and 228, when such an offence is alleged to hage been J 33 committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described 463, or punishable under Section V 475 or Section 476, of thaglléaia C"
such offfence is aiglégedg 2: '~ committed in respect document or given in evidence inv:4'l:'a,gp-roceedingItiniany Court, or _ p p
(iii) of any 'to commit, or attemptiipto_co§nmit,l,or: the.__abe.tment of, any offence _in_ sja'o} cause (i) or sub clau se .,[ii'}:. g V ' excepfon thecomplaint in writing of that Court, or of somefother Court to which that 5 Court is Vsulbordiviiate.
t.h"e..,_Vcase on hand, C.C.No.301/91 which was No.1, after fabrication of documents squarely attracts provisions of Section 195 Cr.P.C. The V Courtvvlbefore which C.C.301/91 was pending did not opportunity to examine Whether the documents if Wwhich had accompanied the charge sheet filed in C.C.No.30l/91 were fabricated to give false evidence in The investigation Eds case /' judicial proceedings.
3-'~1--
relating to fabrication of documents in C.C.No. 164/ 90 is without jurisdiction. Therefore, the prosecut.io_I'1.4'_:'has failed to prove point No.3.
33. The learned TrialJudge"on,'"~:p1'0}3er"" E appreciation of evidence has acquit'ied'i'acCuSed. I Eityfiot find any reasons to infterfere With» tiive "§._i'mpugned'~.i' judgment of acquittal. .
34.Therefore, I paeethee -.
' j=.Q_RDER"-, L = Sd/9]"
Iudge