Karnataka High Court
The State Of Karnataka vs C. Lasumanaik S/O Chandya Naik on 22 June, 2017
Author: R.B Budihal
Bench: R.B Budihal
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 22nd day of June 2017
Before
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
Criminal Appeal No.100230/2015
Between:
The State Of Karnataka
Lokayuktha Police,
Police Inspector,
Karnataka Lokayukta,
Police Wing, Haveri
Represented by
Special Public Prosecutor,
Karnataka Lokayukta ...Appellant
(By Sri. Mallikarjunswamy B. Hiremath, Special Public
Prosecutor)
And:
C.Lasumanaik, S/o Chandya Naik,
Aged 52 years,
Occ: Junior Project Engineer,
Office of Urban Development
Authority, Haveri. ...Respondent
(By Sri. Aravind D. Kulkarni, Advocate)
This Criminal Appeal is filed under Section 378(1)
& (3) of Cr.P.C., praying to grant leave to appeal and to
set aside the judgement and order of acquittal passed
:2:
by the Prl. District and Sessions and Spl. Judge, at
Haveri dated 18.06.2015 in Spl.(Lok)C.No.3/2008 and
to convict and sentence the respondent/accused person
for the offence punishable under Section 7.12,13(1),(d)
r/w Section 13(2) of Prevention of Corruption Act, 1988.
This appeal coming on for final hearing this day,
the Court, delivered the following:
JUDGMENT
This appeal is preferred by the appellant-State being aggrieved by the Judgment and Order, dated 18.06.2015, passed in Spl. (Lokayukta) Case No.3/2008, by the learned District & Sessions Judge and Special Judge (Lokayukta), Haveri, whereby the learned Special Judge has acquitted the accused - the respondent herein.
2. Respondent/accused herein was chargesheeted for the alleged offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The Trial Court framed the charge as against the respondent/accused for the said offences. The prosecution examined, in all, 11 witnesses :3: as P.Ws.1 to 11, produced the documents Exs.P.1 to P.45 and also got marked material objections M.Os.1 to 9 and closed its side. On the side of the defence, D.Ws.1 and 2 were examined and three documents were got marked as Exs.D.1 to D.3. After considering the materials placed on record, both oral and documentary, ultimately, the learned Special Judge acquitted the accused of the charges leveled against him. Being aggrieved by the said judgment and order of acquittal passed by the Trial Court, the State is before this Court in this appeal.
3. Brief facts of the case of the prosecution, as per the complaint averments, are that during the year 2007, the accused/respondent was working as Junior Project Officer in the Urban Development Authority, Haveri. The complainant, who is the owner of house bearing Plot No.3317/C/27 situated at Daneshwari Extension, Haveri, wanted to put up construction of first floor and, in this regard, he had made an application to the City :4: Municipal Council, Haveri. The CMC, Haveri, had forwarded the said application to the Urban Development Authority, Haveri, on 23.08.2007. The complainant, having realised that his application was not attended to by the Authority in spite of lapse of six months, met accused on 06.12.2007. On meeting the accused, he demanded Rs.2,000/- by way of illegal gratification from the complainant and asked the complainant to come few days later. The complainant approached the Lokayukta Police, Haveri, on 10.12.2007 and to ascertain the correctness of the allegation, a voice recorder was given to the complainant to record the conversation. Thereafter, the demand of illegal gratification was recorded in voice recorder and a complaint was lodged against the accused. On going to the office of the accused, the complainant and the shadow witness waited till evening. On contacting the accused over his mobile phone, they were asked to wait till evening near the office of the accused. On the :5: evening of 10.12.2007, the accused came on his motorcycle. P.W.1 followed the accused and told the accused that he waited for the accused till evening and at that time accused asked P.W.1 whether money was brought. P.W.1 told that he had brought Rs.1,500/-. The said money was received by accused, who kept the same in his pant pocket. The further story of the prosecution is that, after receipt of the said amount of Rs.1,500/-, the trap was conducted and the amount of Rs.1,500/- was recovered from the possession of the respondent/accused in the presence of panch witnesses, then phenolphthalein test was conducted by taking the hand wash of the respondent/accused and when the right hand washed in sodium carbonate solution, the solution turned into pink colour, whereas on the left hand wash, the solution did not turn into pink colour. A trap mahazar under Ex.P.3 was also drawn. The explanation of the respondent/accused was asked and he offered his explanation that the said :6: money was forcibly thrusted into his pocket by the complainant.
4. Heard the arguments of the learned Special Public Prosecutor representing the appellant and so also the arguments of the learned counsel appearing for the respondent/accused.
5. Learned Special Public Prosecutor for the appellant, during the course of his arguments, made the submission that the learned Sessions Judge has not at all examined and appreciated the oral evidence of the prosecution witnesses with regard to demand and acceptance of the bribe amount by the accused person. He made the submission that the learned Sessions Judge only discussed about some alterations in the date and the time in the panchnama and also in the arrest memo and non-production of the tape-recorder, and has come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. Learned :7: Special Public Prosecutor made the submission that sofar as the alleged offence under Section 7 of the Prevention of Corruption Act is concerned, demand of bribe amount is not at all necessary; if the amount is accepted, then that itself is an important material fact to be taken into consideration. It is his submission that sofar as the alleged offence under Section 13(1)(d) of the Act is concerned, demand for the bribe amount is necessary. He made the submission that sofar as the demand and acceptance of bribe amount is concerned, the complainant and the shadow witness, in their evidence before the Court, have consistently deposed that the respondent/accused demanded the bribe amount and also accepted the bribe amount from the complainant in the presence of the shadow witness. He also made the submission that while conducting trap proceedings, photographs of the same were also taken. He also relied upon the said photographs and submitted that the said photographs clearly go to show the :8: presence of the respondent/accused producing the money, taking his hand wash, preparing the panchanama etc. Hence, it is his contention that when such positive materials are placed before the Court, even if the tape-recorder was not produced before the Court, it is not fatal to the case of the prosecution. He made the submission that the tape-recorder, which was given to the complainant to record the conversation before the registration of the FIR, was produced before the Court, but the tape-recorder said to have been given, for the second time, to use it at the time of trap proceedings, was not at all available and hence, the same could not be produced before the Court. He submitted that sofar as the tape-recorder, which was already produced before the Court, it was referred to the expert to recognise the voice and also the conversation recorded in it, but the expert gave the opinion that it was not clearly audible and hence he was not in a position to give his opinion in that regard. Hence, the :9: learned Special Public Prosecutor made the submission that the prosecution has not suppressed any material, and in spite of taking all possible steps in the matter, they were not able to produce the tape-recorder and the conversation details. Hence, it is his contention that no adverse inference can be drawn in this regard. He has also referred to the oral evidence of the prosecution witnesses and made the submission that, as on the date of the alleged incident, the work of the complainant was pending with the respondent/accused. He refers to the oral evidence and the document in this regard and made the submission that even if the respondent/accused made an endorsement on the application that "permission can be given", which is dated 06.12.2007, but it has come on record during the course of the evidence of the prosecution witnesses that though it was ready, but the seal was not put on the same unless and until the seal is put, the same will not be processed. Hence, he made the submission that his : 10 : evidence on the part of the prosecution clearly goes to show that the matter was still pending with the respondent/accused and hence, the respondent demanded the bribe amount in order to show official favour in connection with grant of permission for construction. He also refers to the FSL report and made the submission that even the FSL report goes to establish that the respondent/accused received the bribe amount as the right hand wash of the respondent/accused turned into pink colour as per the expert's opinion. Hence, he submitted that about all these material aspects, the learned Sessions Judge has not at all discussed; there is a wrong reading of the evidence of the prosecution witnesses and so also wrong reading of the documents produced in the case. Sofar as the photographs are concerned, he made the submission that the learned Sessions Judge raised a doubt with regard to the photographs and the time of the trap proceedings and the arrest of the : 11 : respondent/accused. In this connection, learned Special Public Prosecutor made the submission that the trap party went to the spot at about 4.15 p.m. and till the arrival of the respondent/accused to his office some of the photographs were taken and other photographs were taken after 7.00 p.m. during the trap proceedings. Hence, he made the submission that only on this basis, the learned Sessions Judge disbelieved the entire case of the prosecution, which is not the correct approach in this case. Hence, he submitted that the judgment and order of acquittal passed by the learned Sessions Judge is illegal and that it is perverse and capricious. Therefore, learned Spl. Public Prosecutor prayed to allow the appeal, to set aside the judgment and order of acquittal and consequently to convict the respondent/accused for the aforesaid offences. In support of his contentions, learned Government Pleader relied upon the following decisions:
1) Vinod Kumar Vs. State of Punjab reported in (2015)3 SCC 220 : 12 :
2) State, Represented by Inspector of Police, Pudukottai, T.N. Vs. A. Parthiban reported in (2006)11 SCC 473
6. Per contra, learned counsel appearing for the respondent/accused during the course of his arguments, made the submission that the case of the prosecution is full of alterations of the documents produced in the case, which is not properly explained by the prosecution. He made the submission that when the case of the prosecution is that even before the registering of the FIR, the complainant was sent by the Lokayukta Police to the office of the accused person with the tape-recorder, this is nothing but collecting the evidence in the case even before the registration of a criminal case against the accused person. In this connection, the learned counsel drew the attention of this Court to the relevant portion in the evidence of P.W.1 and so also the Investigating Officer-P.W.11. Hence, he made the submission that the Investigating : 13 : Officer himself has admitted that he sent the complainant before registering the FIR in order to collect the evidence in the matter and also to verify the truth or otherwise of the case of the prosecution. Hence, he submitted that, this would clearly goes to show that it is with a mala fide intention the proceedings are initiated as against the respondent/accused. He further submitted that the tape-recorder handed over to the complainant to use it during the trap proceedings and when it is their case that while giving the tape-recorder it was in order, complainant was given clear instructions how to operate it and it is the case of the complainant that the conversation between him and the accused was recorded, the learned counsel submitted that production of the said tape-recorder before the Court is a must. He submitted that even it is necessary to prove the defence of the accused, because it is his consistent defence as per the explanation offered that he never demanded the money and even when he : 14 : objected, the complainant himself voluntarily and forcibly thrusted the money into his pocket. Counsel submitted that had the tape-recorder been produced before the Court, the truth would have come out, it could have supported the evidence of the accused. He made the submission that the accused, during the course of the trial proceedings, filed an application seeking a direction to the prosecution to produce the said tape-recorder for which the prosecution submitted before the Court that the tape-recorder was not in their custody or possession and hence, they were not in a position to produce the same. Counsel, with regard to the timing of the alleged incident and conducting the trap proceedings, made the submission that some of the photographs clearly goes to show that they were taken during the day time and some of the photographs were taken during the night. In this connection, he refers to the deposition of the panch witnesses wherein also they have deposed before the Court that when they signed : 15 : the panchanama, it might be 1.00 p.m. or 1.30 p.m. He made the submission that the prosecution witnesses also admitted during the course of cross-examination that the photographs also go to show that some of them were taken in the daylight and the shadow will be seen beneath the vehicles. Referring to these materials he submitted that this supports the defence of the accused that at such time, as alleged by the prosecution, no such trap proceedings were taken place. He also submitted regarding time of arrest is concerned, the arrest memo Ex.P.45, he drew the attention of this Court regarding the time of arrest and made the submission that is clearly visible to the naked eye that figure '9' is over-written and there is no initial of the person who corrected it and there is no explanation as to why it was done. It is also his submission that as against the column no.4 seeking the information about the time, date and place of arrest, regarding two aspects the date and place is concerned, there is no information : 16 : in the said arrest memo. Hence, he submitted that this itself raises a reasonable doubt in the mind of the Court where really trap proceedings had taken place in between 7.00 p.m. to 10.00 p.m. as alleged by the prosecution. He has also made the submission that the Trial Court taken all these aspects into consideration and extensively discussed in the judgment and ultimately, the Trial Court has come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. Hence, he submitted that no illegality has been committed by the Trial Court nor there is perverse or capricious view taken. Hence, he submitted that there is no merit in the appeal. Learned counsel also made the submission that this appeal is filed challenging the judgment and order of acquittal, therefore, normally in such cases, the Courts will have to be slow in reversing the findings of the Courts below and in support of his arguments, learned counsel : 17 : appearing for the respondent/accused also relied upon the following decisions:
1) Madathil Narayanan Vs. State of Kerala and another reported in 2017 CRI.L.J. 732
2) Harbeer Singh Vs. Sheeshpal and others reported in 2017 CRI.L.J. 169
3) C.B.I. Vs. Ashok Kumar Aggarwal reported in 2014 CRI.L.J. 930
4) Lalita Kumari Vs. Govt. of U.P. reported in (2014) 2 SCC 1
5) Judgment dated 15th December 2015 passed by this Court in Criminal Appeal No.100103/2014.
Hence, he made the submission that absolutely there are no grounds to interfere with the judgment and order of acquittal passed by the Courts below. Hence, he submitted to dismiss the appeal.
7. I have perused the grounds of the appeal memorandum, oral evidence of PW1 to 11, documents produced in the case before the trial court, decisions relied upon by the learned counsel on both sides so also : 18 : considered the arguments submitted by both the sides at the Bar.
8. The charges as against the respondent/ accused are under Section 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act. The case of the prosecution as per the complaint averments that the respondent/accused demanded and accepted bribe amount of Rs.1,500/- from the complainant on 10.12.2007, the date of the trap. Therefore, let me peruse the materials so far as the demand and acceptance of the bribe amount of Rs.1,500/- as contended by the prosecution. Ex.P1 is the complaint by the complainant one Basavanneppa Tirakappa Kemmannakeri, wherein he has stated he has filed an application before the C.M.C., Haveri seeking permission for the construction of first floor of his house. The same was sent to the Urban Development Authority, Haveri and the respondent/accused was working as a Junior Project Engineer in the said : 19 : authority for giving such permission he unnecessarily delay the matter and lastly when the complainant approached the said Engineer, he demanded Rs.1,500/- for the purpose of the said work as it is mentioned in Ex.P1. Hence, it is the case of the complainant that he was not willing to pay the bribe amount to the accused person, he approached the Lokayukta Police on 10.12.2007 in the morning at about 10.30. The Lokayukta Inspector give him the Tape Recorder asking him to go and had the talks with the respondent/accused in connection with the said amount and record the conversation between himself and the accused and to come back. Accordingly, he went to the office of the accused along with the tape recorder and when he approached the accused, the tape recorder was on. The accused demanded the amount which is recorded in the tape recorder. After that he come back to the Lokayukta Office and told the Lokayukta Inspector that he was asked to come to the : 20 : office of the accused at about 2.00 to 2.30 p.m. Then the entrustment mahazar proceedings were conducted as per Ex.P2 after completing the mahazar proceedings like smearing phenolpthalene powder to the currency notes they were kept in the pocket of the complainant with instruction that he has to go to the office of the accused in case if the accused is demanded the amount, he has to pay the same to the accused. PW2 the shadow witness who was also present during the entrustment mahazar proceedings was asked by the Lokayukta Inspector that he has to accompany the complainant to the office of the accused and he has to observe what is happening between the said two persons and he has to tell the same before the Lokayukta Inspector.
9. I have perused the contents of the entrustment mahazar proceedings/Ex.P2. The witnesses PW1 and PW2 have also spoken in their evidence in detail about the said proceedings conducted in the office of the Lokayukta Police. They have also deposed that they : 21 : have signed on the Ex.P2/mahazar. The further case of the prosecution that they left the Lokayukta Office towards the office of the accused at 4.15 p.m. When they came nearby the office of the accused, G.G.Megavi Chambers, the complainant and PW2 were asked by the Lokayukta Inspector to go to the chamber of the accused person along with tape recorder. The Lokayukta Inspector then another panch witness Rajendra and the staff of the Lokayukta, they were waiting nearby the office of the accused person for the pre-arranged signal to be given by the complainant.
10. Looking to the oral evidence of PW1 and PW2, PW1 deposed in his evidence that accused made a demand for Rs.2,000/- and when he told that Rs.2,000/- is on the higher side and he is not able to pay that much amount. Then the accused person told complainant to arrange for Rs.1,500/- towards the bribe amount. This is in examination-in-chief of PW1 on Page No.2 at Para No.2. But looking to the contents of the : 22 : complaint, there is no mention in the complaint/Ex.P1 that originally the demand by the accused person was for an amount of Rs.2,000/- and after discussion and deliberation, it was reduced to Rs.1,500/-. The complaint is silent about original demand amount of Rs.2,000/-, it is only mentioned by the complainant that accused demanded Rs.1,500/-. With regard to the said demand of the bribe amount is concerned apart from the oral evidence of PW1 and 2, it is the case of the prosecution that there is a conversation between the complainant and the accused person regarding the said demand of the bribe amount. It is no doubt true so far as the proof of the case of the prosecution is concerned, it can rely upon the oral evidence of PW1 and 2 and other witnesses also. But when it is the case of the prosecution that the tape recorder was given to the complainant even earlier to registration of the FIR asking him to go to the office of the accused, had the conversation and record the said conversation in the : 23 : tape recorder and it is the case that same has been done and it is recorded in the tape recorder. Not only that it is also the case of the prosecution even during the trap proceedings also the tape recorder was carried to record the proceedings and it is the consistent defence of an accused person that he never demanded the said amount, it is the complainant who forcefully gave the said amount into the hands of the accused person, it is necessary for the prosecution to produce the said tape recorder before the Court. So far as the said tape recorder are concerned, the first tape recorder which is said to have been carried by the complainant before registering the FIR, the prosecution kept the report of an expert stating that the said conversation was not properly audible and he was not able to identify the voice of the persons involved in said conversation. It is no doubt true in this regard the prosecution produced the certificate i.e. by way of report by the expert i.e. Ex.P40. But so far as the second tape recorder is : 24 : concerned, which is said to have carried even during the trap proceedings, it is mentioned in Ex.P3/the trap mahazar panchanama as it was not properly audible, he has not seized the said tape recorder. But looking to the oral evidence of PW1, 2 and 3, the complainant and two panch witnesses, their evidence is very clear that so far as the first tape recorder conversation is concerned, when they had been to the Lokayukta Office, they were made to know the conversation in the tape recorder and it was played before them. So also the complainant deposed that it was properly audible and they have heard it. It is the evidence of the Investigation Officer that regarding the said tape recorder, he also heard the conversation then he made known the conversation to the panch witnesses. If that is so then why it was not audible when it was examined by the expert, is the point for consideration. When all the witnesses have deposed that they have heard the conversation in the tape recorder that there is a demand made by the accused : 25 : person, then it is necessary on the part of the prosecution to produce the said tape recorder before the Court. In this regard, the evidence of PW2 is very very important and relevant, wherein PW2 deposed in the cross-examination at Page No.7 of his deposition that in this case tape recorder is very important document to know the truth in the matter. So even according to this witness, the tape recorder is the important material document in the case. The production of tape recorder and its conversation before the Court is also very much essential even to appreciate the defence of the accused person that it was thrusted into his hand forcefully even though he objected for the payment of the said amount. When such being the case non-production of the tape recorder speaks on the case of the prosecution, it is the contention of the defence during the course of cross- examination of the prosecution witnesses they have withheld the production of the tape recorder thinking that in case if it is produced before the Court, truth will : 26 : come out when such suggestion was made to the witnesses that with a purpose of suppressing what has recorded in the tape recorder, it was not produced before the Court then it was the bounden duty of the prosecution to produce the said tape recorder before the Court. Admittedly, according to even the Investigation Officer and the contents of the Ex.P3/mahazar, same was not seized by the Investigation Officer. He is the Investigation Officer, he is not final authority to take the decision in the matter. He ought to have seized it in whatever condition, it could have been produced before the trial court and it is for the trial court during the course of the trial of the proceedings to take a decision in respect of that particular tape recorder if the conversation in the tape recorder was not audible as deposed by the witnesses. Same thing might have been observed by the learned Sessions Judge while writing the judgment. But the court is not at all having an opportunity to see what is the conversation in the said : 27 : tape recorder. Under such circumstances and in view of the specific defence of the accused person, Court will have to draw the adverse inference as against the case of the prosecution under Section 114(g) of the Indian Evidence Act that had the tape recorder produced before the Court the conversation said to have been recorded would have gone against the case of the prosecution. Therefore, even if there is a oral evidence of PW1 and 2 regarding the demand made by the accused person and accepted the bribe amount even then the Tape Recorder contents and the conversation is very much essential to be produced before the Court, which was not done in this case. It is no doubt true learned Special Public Prosecutor during the course of argument made the submission even if there is no Tape Recorder case can be proved, on the oral evidence of prosecution witnesses, it is true that there is no necessity that in each and every case the demand and acceptance said to have been made by the accused person is also to be : 28 : proved by electronic methods. But having used such a Tape Recorder in this case then there is a bounden duty on the prosecution not to withheld it and to produce the same before the Court. Therefore, non-production of the Tape Recorder before the Court of law and even not seizing it during the course of trap mahazar proceedings, the prosecution is not fair enough in this case to withheld the said Tape Recorder.
11. The allegation as against the respondent/ accused in this case that though the application was filed by the complainant seeking the construction permission of his first floor, but which was delayed by the respondent/accused to give such permission only with an intention to get the bribe amount and then he has to clear about the permission. But this is falsified by the evidence of PW1 the very complainant himself, but in the cross-examination on Page No.9 of the deposition, wherein he has stated that as there were some defects in the application that he has filed only : 29 : after rectification of the said defects the work regarding the processing of his application was started. He has admitted the said suggestion that it is correct. Coming to the evidence of PW7 one Prakash Chandrappa Harakude is the Planning Officer, who deposed in his evidence on Page No.1 of his deposition that whenever such applications are received, the accused has to conduct the spot inspection and then he has to take a decision whether it is in accordance with the rules or not and thereafter it has to be placed before him. He further deposed that on 04.08.2007 and on 14.09.2007, two times the application was sent to him, they have verified it and as there are some defects in the said application, it was again sent back to the C.M.C. Office, Haveri. So the evidence of these two witnesses during the course of the evidence clearly goes to show that the delay in processing the application of the complainant is because of the defects in the said application and they have not stated that it is the accused person who : 30 : purposely and intentionally withheld the said application even though it was correct in all respects. Therefore, the allegation of the prosecution made in the complaint by the complainant/PW1 that the accused person withheld his application with an intention to get the bribe amount cannot be accepted at all. Now coming to the time regarding the trap proceedings and the arrest of the accused is concerned, it is the case of the prosecution that at 4.15 they left the Lokayukta Office proceeded towards the office of the accused and when the complainant and the shadow witnesses went to the office of the accused, he was not present in the office then they were told that he has gone to the Planning Office at Vidyanagar, they went there also he was not present and then they were told that he might have gone for spot inspection. Then it is the case of the prosecution that complainant/PW1 as per the instruction of the Police Inspector contacted the accused person over phone at 5.15 p.m. and in the : 31 : phone message the accused told to the complainant that they have to wait and definitely he will come to his office. If such phone call is there in between the complainant as well as the accused person with the definite information that it was at 5.15 p.m. nothing prevented the Investigation Officer to secure the call details in this regard, which is also not done in this case by the Investigation Officer. Regarding the arrest of the accused in the proceedings is concerned, it is seriously disputed by the defence as per the defence no such proceedings were taken place at 6.45 p.m. as alleged by the prosecution, there is a false implication of the accused person in the case. Not only that it is their case that there are allegations made in the arrest memo regarding the time of arrest, which is not properly explained by the prosecution. I have perused the arrest memo/Ex.P45 regarding the date, it is mentioned as 10.12.2007 and the information regarding time for arrest of the accused person, it is mentioned as 19 : 32 : hours, but it is visible that the figure '9' is overwritten below that some other time is mentioned in the arrest memo. It is no doubt true if 19 hours is taken it goes to show that the arrest is at 7.00 p.m. on that day. I have perused the Ex.P3/trap mahazar proceedings, wherein also it is mentioned that for the first time in the said proceedings the accused has been apprehended at 7.00 p.m. When in the trap mahazar the time is mentioned as 7.00 p.m. probably to make it appear even in the arrest memo as a 7.00 p.m. that might be the reason for the police authorities to make such alteration in order to show that the time of arrest mentioned in the arrest memo is tallying with what is mentioned in Ex.P3. But the evidence on record, it goes to show if we look into the evidence of PW1 and 2, there is a suggestion made by the defence counsel. On that day in the morning itself the Lokayukta Police arrested the accused person because of that reason there was a huge agitation by the public and because of this agitation the S.P. came to : 33 : the place and he has narrated the P.I. that if you do such things then they will bring bad name to the department. This is the suggestion made and looking to the evidence of PW1 and 2, they have admitted that the S.P. has come from Davanagere on that day to the place and if the S.P. has came in the daytime, it goes to show and probablise the defence of the accused that even before 7.00 p.m. that this accused person was arrested accordingly the time of arrest was mentioned in Ex.P45 and subsequently it has been changed to make it as 7.00 p.m. that it has go in consonance that the time mentioned in Ex.P3, but regarding this correction is concerned, it is an admitted fact that the figure '9' is a correct figure and who has done this under whose authority the said correction was made absolutely there is no explanation offered by the prosecution. Even there is no small initial by the person who made such corrections regarding the time of arrest of the accused. It was also suggested during the course of the cross- : 34 : examination of PW1, the complainant that regarding the time mentioned in the complaint as 10.30 the figure '10' has been changed to '11'. It is also argued by the learned counsel appearing for the defence that the material goes to show that almost all the documents there is a correction in the prosecution documents, which is not properly explained. I have perused the contents of the complaint/Ex.P1 and as submitted on the first page of the complaint regarding the time dated 10.12.2007 originally it is written as 10.30, but the figure '0' has been corrected as '1', which is clearly visible. Hence, the prosecution has not explained even with regard to the correction of the time in the complaint Ex.P1.
12. It is no doubt true, the learned Special Public Prosecutor argued that there is oral evidence of P.W.1 and 2 and there is a report of the chemical examiner, that when the right hand wash of the accused was taken, it turned into pink colour and when the left : 35 : hand wash was taken, it did not turn into pink colour and this process, conducted during the trap mahazar proceedings, is confirmed by the report of the FSL. It is also his submission that even the right side pant pocket of the accused was washed in the sodium carbonate solution, it also turned into pink colour which is evidenced by the expert's opinion and the contention of the learned Special Public Prosecutor regarding the seizure of the pant/M.O.No.6, there is a oral evidence that the lady staff who was working in the office of the accused was sent to his house to bring the alternate pant and after bringing the alternate pant, the pant of the accused was taken for the purpose of washing the right side pocket in the sodium carbonate solution. Hence, the learned Special Public Prosecutor contention when all these materials are there on the side of the prosecution and when the amount of Rs.1,500/- was seized from the possession of the accused, there arises the presumption as per Section 20 of the Prevention of : 36 : Corruption Act, that the accused has received the illegal gratification. Hence, he wanted to rely upon all these materials to prove the case of the prosecution.
13. Regarding all these contentions let me refer to the other evidence of the witnesses. It is no doubt true that photographs, as per Ex.P.4 to Ex.P.26, are produced to show that, apart from the oral evidence, photographs of the trap proceedings were also taken, on which the prosecution wanted to rely upon. The learned Special Judge has made the observation that some of the photographs are taken in daytime and some of the photographs during the night. For this, the learned Special Public Prosecutor tried to explain to this Court, that police proceeded to the spot at 4.15 p.m. itself and, immediately after going there, some photographs were taken. Sofar as the evidence of P.W.1, if it is looked into during the course of cross-examination, P.W.1 admitted that out of those exhibits in four photographs, he admitted that they were taken during daytime. But so : 37 : far as the argument of the learned Special Public Prosecutor, that some of the photographs were taken during the daytime, immediately after going to the office of the accused is concerned, there is no such case made out, either in the trap mahazar or through the mouth of the prosecution witnesses. But on the contrary, if we look into the contents of the Ex.P.3 the trap mahazar, so also the oral evidence of the prosecution witnesses, it is their consistent and definite case that the photographs were taken in between 7.00 p.m. and 10.00 p.m. i.e. during the process of conducting the trap proceedings. In view of such evidence by the prosecution witnesses themselves, the prosecution has to explain satisfactorily as to how the other photographs were taken during the daytime. Not only that, now the question is, if the prosecution wanted to assist the Court by producing the photographs, apart from the oral evidence, whether all the photographs that were taken were produced before the Court or some of them, : 38 : which were not convenient to the case of the prosecution, were withheld by the prosecution. In this regard, the evidence of the witness i.e., P.W.3 is helpful, looking to the evidence of P.W.1 and P.W.2, they have admitted in their evidence during the course of cross-examination that out of the photographs there is no photograph with regard to accused taking out the money from his pant pocket and producing before the Lokayukta Police and there are no photographs for putting the solution into the bottles and sealing those bottles. So this itself clearly goes to show that some of the photographs were withheld by the prosecution and not produced before the Court. Looking to the oral evidence of the Investigating Officer-P.W.11, probably after coming to know what was the evidence adduced before the Trial Court by P.W.1 and P.W.2 regarding this photograph, he tried to explain to the court during his examination before the court, that the photographs were taken only in respect of some of the important events. : 39 : But his evidence is falsified by the evidence of P.W.3. P.W.3 during the course of cross-examination, on page No.6, deposed that photographs were taken in his presence. He further deposed and it is most important aspect putting the solution into the bottles, putting the wax seal to the bottles, sealing the bottles, putting the labels on the bottles all this was taken in his presence and at that time also photographs were taken. If this is his evidence where are those photographs and why they were not produced before the Court. This raises a reasonable doubt in the mind of the Court, whether really this trap proceedings were taken place in the manner as projected by the prosecution. When some of the photographs were suppressed by the prosecution, then the story of the prosecution that the entire proceedings were photographed also cannot be accepted and more particularly in view of the fact that when it is the specific case that photographs were taken in between 7.00 p.m. and 10.00 p.m. and when some of : 40 : the photographs were showing that admittedly they are taken in a daytime. This fact is also admitted by the P.W.1 in the cross-examination. Hence, no importance can be given to these photographs produced by the prosecution.
14. Regarding the aspect of conducting chemical test taking the hand wash of the accused in the solution and it turning into pink colour, the experts evidence is more important in the case. The expert from the FSL has been examined as P.W.8 and he submitted his report as per Ex.P.33. Looking to his evidence during the course of cross-examination, he has admitted that he cannot say what is the method of test he has adopted to ascertain the things. He being an expert if he himself has deposed before the court, that he does not know the method used for conducting the test on the articles sent for examination, then his evidence is also not of any assistance to the Court. Not only that he further deposed that while conducting such examination from : 41 : stage to stage he used to prepare the notes and when asked whether he had brought the said notes before the Court, he deposed that he had not brought the said notes before the Court. In view of this evidence given by the expert, the chemical examination test said to have been conducted by the FSL cannot be relied upon by the Court. Therefore, looking to all these materials placed on record and looking to the oral evidence of P.W.1 and the investigation officer, the materials goes to show that even before registration of the FIR in the case, the investigating officer tried to collect the evidence in the case and he wanted to verify the truth or otherwise of the case which is not permissible under law.
15. Even looking to the judgment of the Hon'ble Apex Court in Lalitakumari's case, that preliminary enquiry in some of the cases like family matters, corruption cases and some other matters like that is permissible to know whether cognizable offence has been committed or not. But in the case on hand, it is : 42 : very clear from the evidence of the prosecution witnesses that the prosecution tried to collect the evidence even before registration of the FIR. Even on that ground also the material placed by the prosecution cannot be relied upon and it is not trustworthy. The defence of the accused, he never demanded the bribe amount and it was forcibly thrusted into his hand by the complainant himself and during the course of the proceedings it has come on record that the accused insisted the I.O. to seize/produce the tape recorder, which will go to prove his defence. It is his consistent case that had the prosecution produced the tape recorder before the court, it could have been established that he never demanded the bribe amount and therefore, non-production of the tape recorder also taken away the opportunity of the defence to prove his defence.
16. Looking to the judgment and order of the acquittal passed by the trial Judge, the Special Judge : 43 : has taken all these aspects into consideration and ultimately comes to the conclusion that prosecution utterly failed to prove its case. No illegality has been committed by the trial Court nor there is any perverse or capricious view taken by the trial court in coming to such conclusion. I do not find any merit in the case of the prosecution. Hence, appeal is dismissed and the judgment and order of acquittal passed by the trial Court is hereby confirmed.
Sd/-
JUDGE KMS/CLK/RHR/-