Karnataka High Court
H Suresh Babu vs The State By Police Inspector on 30 September, 2024
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CRL.A No. 1171 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 1171 OF 2013 (C)
BETWEEN:
H. SURESH BABU
S/O D. HANUMANTHAPPA,
WARDER, DISTRICT PRISON,
HIRIADKA, UDUPI DISTRICT,
UDUPI.
...APPELLANT
(BY SRI S.B. MUKKANNAPPA, ADVOCATE)
AND:
THE STATE BY POLICE INSPECTOR,
POLICE WING,
KARNATAKA LOKAYUKTHA,
UDUPI.
...RESPONDENT
Digitally signed by (BY SRI VENKATESH S. ARABATTI, ADOVCATE)
SHAKAMBARI
Location: HIGH
COURT OF THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
KARNATAKA
SET ASIDE THE CONVICTION AND SENTENCE PASSED BY THE
LEARNED SESSION/SPECIAL JUDGE, AT UDUPI IN SPECIAL
CASE NO.17/2011 DATED 16.11.2013 AND ACQUIT THE
APPELLANT FOR THE OFFENCES LEVELED AGAINST HIM, IN
THE INTEREST OF JUSTICE.
THIS CRIMINAL APPEAL HAVING BEEN RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT, DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
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CRL.A No. 1171 of 2013
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) This appeal arises out of the judgment and order of the Sessions Judge/Special Judge, Udupi District, Udupi dated 16th November 2013 whereby while, considering the evidence placed on record by the prosecution, the appellant was found guilty of committing the offences punishable under Section 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (in short `the PC Act').
2. The learned trial Court after finding him guilty, passed an order of sentence against the accused sentencing him "to undergo simple imprisonment for a period of one year and to pay fine of Rs.2,000/- and in default of fine, to undergo SI for further period of one month for the offence punishable under Section 7 of the PC Act. He is also sentenced to undergo SI for a period of two years and to pay a fine of Rs.2,000/- and in default of payment of fine, to undergo SI for further period of eight -3- NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 months for the offence punishable under Section 13(1)(d) read with Section 13(2) of PC Act with a direction to run the said sentences concurrently."
3. That the complainant arrayed as CW.1 by name Naveen Channayya is the resident of Maravanthe in Kundapura Taluk. He is a timber merchant and also owning a lorry. It is stated by him, that one Santhosh Poojary was working as cleaner on his lorry earlier. Since he was arrested by the police and was housed at Hiriadka Jail, the family members of Santhosh Poojary requested the complainant to get the said Santhosh released from the jail by applying bail. Therefore, this complainant contacted the Advocate and in turn the Advocate advised that the said Santhosh if admitted to the Hospital, then he can get a bail to get release him from the custody. It is specifically stated by the complainant, that on 25.03.2011 at about 6.45 p.m., he contacted the accused near the Hiriadka Sub-jail, and enquired about admitting Santhosh Poojary to the Hospital. At that time, accused demanded a -4- NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 bribe amount. It is the specific allegation of the complainant that as he was not inclined to pay the bribe amount therefore, he approached the Lokayukta Inspector, Udupi and expressed the intention of the accused about demanding the bribe amount. Then, the Police Inspector, Lokayukta gave him a voice recorder to record the conversation between himself and the accused. On 28.3.2011 itself, at 1.30 p.m., the complainant met accused near the Hiriadka Jail and again the accused demanded to pay Rs.5,000/- as bribe to make arrangement to admit the said Santhosh to the Hospital. It is specifically alleged by the complainant that, he recorded the said conversation between himself and the accused in the tape recorder given by the Lokayukta Inspector. He gave the complainant as per Ex.P16 to the Lokayukta. In turn he registered a crime in Crime No.6 of Lokayukta Police Station and set the criminal law in motion. He prepared the FIR as per Ex.P17.
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4. It is specifically alleged by the prosecution that, this Lokayukta Police Inspector by securing two panchas introduced the complainant to them and prepared the pre- trap proceedings in the presence of two panchas and the complainant by taking Rs.5,000/- from the complainant. The said currency notes were consisting of three notes of Rs.1,000/- each, four notes of 500 denomination. The currency notes numbers were written on a white piece of paper marked as Ex.D2. To the said currency notes, phenolphthalein powder was smeared and they were kept in the left packet of the complainant. It is further alleged that thereafter, the police officer prepared Sodium Carbonate solution and made the fingers of both the hands of second pancha to dip in the sodium carbonate solution which turned into pink colour. The said coloured solution was collected in a sample bottle and was seized by the Lokayukta Inspector. Thereafter, phenolphthalein powder was seized so also the complainant was asked to go to the place of accused along with panchna no.1 being a shadow witness.
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5. The Lokayukta Police Inspector also handed over the voice recorder to record the conversations between himself and the accused with regard to the demand of bribe. The Police inspector gave certain instructions to the complainant to give a signal on payment of the amount to the accused. It is further alleged by the prosecution that, as accused was not available in his residential quarters and got the information that, he has gone to Hiriadka junction, therefore, the complainant called the accused on telephone and it was told by him that he has gone to bring the vegetables and he is near the arch of temple. Therefore, complainant went to the said place, met the accused along with the pancha no.1. He handed over an amount of Rs.5,000/- as demanded by the accused. Thereafter, complainant gave signal to the Lokayukta Inspector and immediately all the police officials with police Inspector rushed to the spot, enquired with the complainant and pancha no.1. As there was no place for conducting further proceedings, all of them went to -7- NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 Hiriadka police station and with the permission of the SHO of police station sat in the police station and the amount was recovered from the accused. The trap panchanama was prepared in the police station itself. Thereafter, the accused gave his explanation stating that he has been falsely implicated by the complainant.
6. After completing further formalities, the accused was produced before the Police and was later enlarged on bail subsequently. The investigation officer after completion of the investigation, filed the charge sheet before the Special Sessions Court for the offences punishable under Section 7,13(1)(d) read with Section 13(2) of PC Act.
7. The learned Special Court framed the charges against the accused for which, the accused-appellant pleaded not guilty.
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8. To substantiate the case of the prosecution, in all it examined six witnesses and got marked Ex.P1 to P23 so also marked MO Nos. 1 to 20.
9. Thereafter, the accused was examined under Section 313 of Cr.PC so as to enable him to answer the incriminating circumstances appearing in the evidence of prosecution. Thereafter, accused himself entered the witness box to rebut the evidence of the prosecution and also examined two witnesses on his behalf and got marked Ex.D1. On closure of evidence of both the side, on hearing the arguments and on evaluation of the evidence, found the accused guilty for the aforesaid offences and he was sentenced as stated hereinabove. This is how, now the appellant-accused is before this Court challenging the said judgment of conviction and order of sentence.
10. The learned counsel for the appellant-accused with all vehemence submits that, the very ingredients of the offence so alleged against accused are not duly proved -9- NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 in accordance with law. Complainant is not examined and it is fatal to the case of the prosecution. PW.1 and PW.2 are the only witnesses and PW.3 is a Jail Warden. The amount was not seized in the manner stated by the prosecution. The complaint allegations have been remained as allegations without any proof as complainant was not examined. The seizure of the alleged tainted money is also not proved in accordance with law. He further submits that, the evidence through PWs. 1 and 2 do not inspire any confidence about the commission of offence by the accused. In support of his submission, the learned counsel for the appellant took this Court to the various documentary as well as oral evidence and pointed out so many contradictions and omissions elicited in the cross-examination. In support of his submission, he relied upon the following citations:
i. C.M. Girish Babu v. CBI, (2009) 3 SCC 779 ii. State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede, (2009) 15 SCC 200 iii. State of Punjab v. Madan Mohan Lal Verma, (2013) 14 SCC 153
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 iv. N. Vijayakumar v. State of T.N., (2021) 3 SCC 687 v. Sri. Hanumanthappa s/o Kariyappa v. State of Karnataka, Crl.A. No.1383 of 2007 vi. Neeraj Dutta v. State (Govt. of NCT of Delhi), Crl.A. No.1669 of 2009 DD 15.12.2022 vii. Neeraj Dutta v. State (Govt. of NCT of Delhi), Crl.A. No.1669 of 2009 DD 17.03.2023 viii. Thipperudrappa s/o Hanumanthappa v. State by Police Inspector Police wing Karnantaka Lokayukta Hospet, 2014 SCC OnLine Kar 6840
11. Relying upon the said citations, it is submitted that in view of the principles laid down in the said judgments, as the ingredients are not proved, the accused is entitled for acquittal. He prays to allow his appeal.
12. As against this submission, the learned Special Panel Counsel for respondent-Lokayukta Sri Venkatesh S.Arabatti submits that, PW.2 being the shadow witness, has supported the case of the prosecution. The ingredients of offence so alleged are proved in accordance with law. He submits that though certain contradictions and discrepancies are found in the evidence of witness but, they do not go to the root of matter. It is not a short-
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 coming of prosecution case. The main thing that has been to be seen in such case is that, defence may be justified in seeking advantage of contradictions appearing in the evidence. The accused is not entitled for benefit of doubt. So far as Sec.7 of the PC Act is concerned, on proof of the facts in issue, the Section 20 of the Act mandates the Court to raise a presumption that illegal gratification was for the purpose of motive or reward as mentioned in Section 7 of the PC Act. Therefore, as it is a rebuttable presumption, once the prosecution discharges the burden of proving the ingredients of the offences, then, the onus lies on the accused to rebut the said presumption. Accordingly, the accused has not rebutted the said presumption. He submits that, on reading the evidence of the prosecution in its entirety, such a evidence so adduced cannot be brushed aside. If there is a delay in cross- examination, it may result to pre-verification from examination-in-chief. But, important evidence has been spoken to by PWs. 1 and 2 and also the police officer who was very much present when the pre-trap and post-trap
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 proceedings were conducted. In support of his submission, Special Panel Counsel Sri Venkatesh S.Arabatti relied upon the following judgments:
i. P.Sarangapani (Dead) Through LR Paka Saroja v. State of Andhra Pradesh, Crl.A.No. 2173 of 2011 ii. Neeraj Dutta v. State (NCT of Delhi), (2023) 4 SCC 731 iii. M. Narsinga Rao v. State of A.P., (2001) 1 SCC 691 iv. Krishna Pillai Sree Kumar v. State of Kerala, 1981 Supp SCC 31 v. Hazari Lal v. State (Delhi Admn.), (1980) 2 SCC 390 vi. Vinod Kumar v. State of Punjab, (2015) 3 SCC 220
13. I have given my anxious consideration to the arguments of both side. Perused the records. The only point that would arise for my consideration is:
"Whether the learned trial Court is justified in finding the accused guilty of committing the aforesaid offences in the manner alleged by the prosecution or otherwise?"
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14. Before adverting to the other aspects of the case, let me analyze certain admitted facts between both the side. At the relevant time, this accused was working as a Warden at Hiriadka Sub-Jail and he is a public servant as defined under the provisions of Section 21 of Indian Penal Code. There was a complaint filed by the complainant- Naveen Channayya alleging that one Santhosh Poojary was a Cleaner with him on his Lorry. His relative informed the complainant that Santhosh Poojary was housed at Hiriadka jail. They requested him to get release the said Santhosh Poojary on bail. According to the allegations made by the complainant, the complainant met the Advocate and it was advised that if Santhosh Poojary is admitted in the Hospital, then, he can seek bail on that ground. That means, housing of Santhosh Poojary in Hiriadka jail is not disputed by the defence. There is no evidence of denial by the defence. Even preparation of pre-trial panchanama by the Police is also not disputed by the defence. The only defence of the accused is of a total
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 denial. According to him, he has been falsely implicated by the complainant.
15. So far offence of present nature is concerned; prosecution is under obligation to prove the ingredients of the said offence. So far as ingredients of offence so alleged under Section 7 and 13(2) read with Section 13(1)(d) of the PC Act, the prosecution has to prove the demand and acceptance of the bribe amount. They are sina qua non. The Hon'ble Apex Court in the case between State of Punjab v. Madan Mohan Lal Verma, reported 2013(14) SCC 153 have laid down certain guidelines. In para.11 of the said judgment, it is observed as under:
"11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person."
16. The law on the issue is well settled that the demand of illegal gratification is sina qua non for prosecuting an offence under the PC Act. It is also held that, mere recovery of tainted money is not sufficient to convict the accused when the substantive evidence is not reliable unless there is evidence to prove payment of bribe so that the money was taken voluntarily as a bribe. Mere receipt of amount by the accused is not sufficient to fasten guilt in the absence of any evidence with regard to
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 demand and acceptance of the amount as illegal gratification. Hence, the burden vests on the accused to rebut the statutory presumption raised under Section 20 of PC Act by bringing on record evidence by direct circumstances to establish with reasonable probability, that the money was accepted by him other than as a motive or reward as referred to in Section 7 of the PC Act. It is also observed by the Hon'ble Apex court that, while invoking the provisions of Section 20 of the Act, the Court is required to consider the explanation offered by the accused if any only on the touchstone of preponderance of probability and not on the touch stone of beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the Court may look for independent corroboration before
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 committing the accused to prison. This principle is laid down by the Apex Court with regard to the proof of the offence so alleged against the accused.
17. Keeping in the aforesaid principles in mind, let me examine the oral and documentary evidence lead by the prosecution.
18. So far as allegations made in the complaint are concerned, Ex.P16 has been marked through the IO. That means, complainant is not examined by the prosecution despite reference being made by the prosecution to secure his presence. It is reported by the Police that the complainant had gone to Dubai and there is no possibility of his return. Therefore, the prosecution was unable to examine the complainant. The said complainant marked Ex.P16 through the IO.
19. Ex.P22 is the proceedings of the Deputy Inspector General, Prisons dated 31.10.2011 wherein by virtue of this Ex.P22 sanction was issued to prosecute the accused after application of judicious mind by the
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 Sanctioning Authority as well as on going through the entire materials being submitted for getting sanction.
20. On scrupulous reading of Ex.P22, shows about issuance of the sanction after going through the materials placed on record by the IO. While marking this document, no objection was raised by the defence. The Sanctioning Authority was examined before the Court.
21. PW.6 V.S. Raj was the Inspector General of Police of the Prisons working at Bengaluru who had issued the sanction as per Ex.P22. On going through the materials placed before him by the IO, he had issued the sanction as per Ex.P22. No effective cross-examination is directed to him by the defence so as to disbelieve his version given the examination-in-chief. That means validity of the sanction is not questioned by the defence in proper manner. Therefore, it can be stated that, as per the provisions of Section 19 of the Prevention of Corruption of Act, 1988 by following all the procedures of
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 issuing sanction PW.6 had issued the sanction. Thus, it is a valid sanction issued by PW.6.
22. Ex.P3 is the Entrustment Mahazar prepared by the IO in the presence of two witnesses by name Sudhakara and Meer Mohammed Ghouse. According to the prosecution case, these two witnesses were also the witnesses coming from the Fire Department and as per the instructions and advises of their superiors, at the request of IO, these two persons acted as panchas to the pre-trap panchanama as well as post-trap panchanama. Ex.P8 is the seizure pancahnama prepared in the presence of aforesaid panchas on 28.3.2011 and it was prepared in the Hiriadka police station. To ascertain the real truth, we have to read the oral evidence also.
23. PW.1 being the shadow witness by name Sudhakara who was working as a Fireman at Udupi Fire Fighter Station for the last fifteen years prior to the giving of his evidence has come before the trial Court and has deposed, that on 28.3.2011, himself and PW.3 were called
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 by the Police when they were in the Fire Fighting Station. Accordingly, they went to the office of the Lokayukta at 5.55 p.m. and reported about their arrival. There the Lokayukta Police Inspector introduced his staff and also introduced one Naveen Channayya i.e. complainant. There it was informed to two panchas that there was a demand of money by the accused for the purpose of admitting Santhosh Poojary to the Hospital. As the complainant was not interested to pay the amount of bribe to the accused, therefore, he lodged complaint before the Police and they have to prepare the pre-trap proceedings. It is his evidence that, investigation officer has handed over the voice recorder to the complainant and asked him to go near the Hiriadka sub-jail and record his conversation with the accused by giving a voice recorder. When complainant went to the accused and requested to make arrangement to send Santosh Poojary to the Hospital, at that time, the accused demanded to pay Rs.5,000/-. The said conversation was recorded by the complainant in the voice recorder. It was played in the police station. Thus, it got
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 confirmed that, there was demand of bribe by the accused. The said C.D. is marked as MO No.1. It was marked subject to objection. The panchanama was prepared at Ex.P1.
24. When the complainant was directed to pay the said amount of bribe, he gave Rs.5,000/- to the IO containing Rs.1,000/- notes as well as 500 Rs. Notes. The said currency notes numbers were reduced into writing. It was signed by all on Ex.P2, the said record of currency note numbers. Thereafter, the IO handed over the said amount to the complainant after applying phenopthelene powder to the said notes. The complainant had kept in his left pocket. The IO has made the complainant to dip his fingers in sodium carbonate solution which turned into pink colour. Therefore, the IO has seized the said article No.1 as MO No.1 from PW.2 and got confirmed about the demand of money by the accused from the complainant. It is his further evidence that the seals were prepared. On the same day, at about 5.30 p.m to 7.30 p.m after
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 preparation of Mahazar a letter was written. Further, it is his evidence that on that day, at about 7.40 p.m. they went to Hiriadka jail and noticed the absence of accused in his residential quarters. It was told that he had gone towards Hiriadka bazaar. The complainant got the information by calling the accused on telephone. Therefore, all of them went in their vehicle near Hiriadka junction near Devadiga Sabha Bhavan and parked their vehicle. Once again the complainant called the accused on his mobile phone, at that time, the accused told he has gone to Veerabhadra Devasthana entrance arch and asked the complainant to come there. Accordingly, the IO along with PW.2 and complainant went to the said place and he was instructed to speak with the accused with regard to the shifting of the Santhosh Poojary to the Hospital and giving of money to the accused. When they went near the said Arch, accused was there and he counted the said amount and kept in his left shirt pocket. It was at 9.00 p.m. on that day. He states that, as it was a junction, there were street lights. The complainant gave a signal by
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 rubbing his face by kerchief. In the said street light itself, the PW.2 and Lokayukta Police witnessed the signal given by the complainant. The complainant identified the accused as the person who demanded the money.
25. As it was not a proper place for preparing the panchanama, all of them went to Hiriadka police station and there the post-trap panchanama was prepared as per Ex.P4 at 9.15 p.m. The Superintendent of Jail was informed over phone of the arrest of the accused. He identified the Sodium carbonate solution bottle at MO No.5. The IO has made the accused to dip his fingers in the sodium carbonate solution which was stored in a bottle MO NO.5. It was seized. The said sodium carbonate solution turned into pink colour. It is his further evidence that accused was arrested and produced before the Court after following all the procedures. The amount was seized from the possession of the accused. In addition to the amount so taken by the complainant, he was in possession of Rs.230/-. By that time, the Superintendent of Jail also
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 came there. When they enquired about the availability of Santhosh Poojary in the jail, he gave a positive answer. At that time, the complainant told that he could not record the conversation between himself and the accused in the voice recorder. They informed the Superintendent of Jail about the arrest of the accused.
26. It is his further evidence that, panchanama was written as per Ex.P8 in the Police Station itself in between 9.15 p.m. and 11.15 p.m. on that day. The Police have recorded his statement. It is his further evidence that, again on 11.4.2011, he went to the Lokayukta office and it was told by the Lokayukta Inspector to prepare the scene of offence sketch. Therefore, this PW.1 showed the scene of offence where the amount was being taken by the accused on demand was prepared by him. Even during the course of investigation, fourteen photographs were snapped. They are marked at Ex.No.9.
27. This PW.1 was cross-examined at length by the defence. According to him, before conducting the trap, he
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 did not speak to accused. Before trapping, he had heard the voice of the accused and again states that he had not heard the voice of the accused. But, once again he states that he had heard the voice of the accused. MO No.1 the CD was shown to him. He had not put the signature on the cover of MO No.1.
28. In his further cross-examination, it was elicited that, he came to know about the conversation between complainant and accused when the tape recorder was put on in the police station. But, the said tape recorder is not produced before the Court. He does not know who is Santhosh Poojary whether he was cleaner or not. He denied the suggestion that complainant was owning the lorry. He states that instead of writing three currency notes, it was written as four currency notes. He states that fire fighting office is situated near the Veerabhadra temple. The said Veerabhadra temple is about one and half kms. away from Lokayukta police station. Further, he states that, the Arch attached to the said Veerabhadra
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 temple is about 100 mtrs. and he has not the seen the same. He admits that in the Hiriadka bazaar there are so many shops. It was told by the IO that as there is no proper place, therefore, all of them went to the Hiriadka police station to write the post trap panchanama. Accused was arrested in the Hiriadka bazaar. Further, he states that he saw the accused for the first time at 9.45 p.m. but, the complaint shows at 9.00 p.m. They noticed the presence of accused near the arch of Veerabhadreshwar temple. Further he states that, before apprehending the accused by the Lokayukta police, no panchanama was prepared by the Police except the preparing pre-trap panchanama.
29. He further states that near the said arch of the Veerabhadra temple, there exists a road. Accused was seen by him near the said arch. They were following the accused at a distance of 2 ft. Accused was about 2 ft. away from the complainant and he was 2 ft. away from the complainant. He admits that Hiriadka junction is a
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 busy locality. According to him, accused was near the Devadiga Sabha Bhavana which is about half furlong away. In the shape of question and answers, questions are directed to PW.1. According to him when they went to Hiriadka police station it was about 9.15 p.m. He deposed ignorance about who admits the under-trial prisoners or convicts to the Hospital.
30. It is the defence of the accused that, there was a murder of a prisoner in the prison therefore, the accused was frustrated because of the same. Just to send away the accused from Udupi, the false trap was arranged by the police.
31. Evidently, in this case, the said Santhosh Poojary who was an inmate of the jail was not arrayed as witness who would have been best witness to say whether he knew the complainant and whether there are instructions from his family members to get him released on bail. Therefore, evidence of said Santhosh Poojary would have thrown some light in this case. In this case,
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 PW.1 has not seen the said person i.e. Santhosh Poojary just he went along with the police. More so, when the accused demanded and accepted the money near the said Arch of Veerabhadreshwar temple, IO has not prepared the seizure panchanama i.e. post trap panchanama. He took him to Hiriadka police and recovered the money from the accused. So what prevented the IO to prepare the panchanama at the scene of offence where exactly demand and acceptance of money by the accused is not properly explained either by PW.1 or by any other witnesses. Evidently, the complainant is not examined in this case.
32. PW.2 Mir Mohammed Ghouse was pancha to pre-trap and post-trap panchanama accompanied PW.1 and complainant at the time of conducting the raid. He speaks of preparing the panchanama as per Ex.P2. After conducting the pre-trap panchanama, it was instructed by the police officer to the complainant and PW.1 to meet the accused near the jail and asked the complainant to record
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 the conversation between himself and accused with regard to demand and acceptance of money by the accused. Accordingly, they went there. When they went to the jail, he was not there in the jail. Therefore, they went to residential quarters of accused. Complainant went and PW.1 went behind him. This PW.2 and others screened themselves and started watching the activities of complainant and PW.1. When complainant called the accused over phone, it was told by the accused that he is at Hiriadka junction and asked the complainant to come there. It was informed by the complainant to the Lokayukta Inspector when they went near the Sabha Bhavana, the accused was again called and he told that he is near the arch of Hiriadka temple. The accused asked the complainant to come there and give the money. Therefore, complainant went there in between 8 and 25 p.m., and within 5 to 10 minutes they gave money and gave signal to the police. Police came there, apprehended the accused etc., Thereafter, they all went to Hiriadka police and there, post-trap panchanama was prepared by the Police and
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 recovered the amount from the possession of the accused. According to him, the said post-trap panchanama was written in between 9.20 p.m and 11.30 p.m. which is not the evidence of PW.1. He has given different evidence regarding the time of post-trap panchanma. He identified 14 photographs snapped at the time of the raid. He has been thoroughly cross-examined by the defence. He has put the signature on Ex.P8 after understanding the same. He gave a statement to the police 29.3.2011 in between 10.00 and 11.00 a.m. He further states that, when they went to the said place where the offence took place after demand and acceptance it was about 9.20 p.m. He admits that the said Hiriadka temple arch is on the way to Karkala from Udupi. He further states that after understanding the contents of examination-in-chief he has put his signature. We find a quite inconsistent evidence spoken by this PW.2.
33. He deposed ignorance about murder of Vinod Shettigar on 15.01.2011. This PW.2 has not met the complainant after registering the crime. Even he had no
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 talks with the accused till he gave evidence before the Court. Even in the presence of others also, he had no talks with the accused. He states, accused had given his explanation why he had been brought to the police station.
34. The official of the Lokayukta knew about admitting of the prisoner to the Hospital. He states both the complainant and accused are known to each other. When Vinod Shettigar was killed. It was suspected that jail officials were involved in the said murder. For this, the PW.2 has deposed his ignorance. He states that the demo was done with regard to the preparation of the sodium carbonate solution at the Lokayukta police station by smearing Phenolphthalein powder. He admits that near the arch of the Veerabhadra temple, Hiriadka no money was seized from the accused. Even there is no recording of the conversation near the said arch by the complainant. So also he states that the police have recorded the statement. He admits that, no such talks in between himself and the accused have been recorded in the voice
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 recorder. Further he states that as per Ex.P5, it was written in the Lokayukta Police Station at 6.20 p.m. They are in his own handwriting. He states that in Ex.P2 the amount so mentioned is Rs.5,500/- which is quite against the contents of complainant and evidence. Thus, if the evidence of PW.1 and 2 is scrupulously perused and compared with other evidence placed on record by the prosecution, the very demand and acceptance of the money by the accused is missing. Except bald say that, accused demanded money and complainant handed over the money to the accused, there is no evidence.
35. It is argued by the counsel for the appellant, that, mere recovery of the tainted money from the accused when substantive evidence is not produced, such a submission cannot be maintainable. In support of this submission, he relied upon a judgment in C.M. Girish Babu v. CBI, reported in (2009) 3 SCC 779. Further, he also relied upon the judgment of Apex Court in State of Maharashtra v. Dnyaneshwar Laxman Rao
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 Wankhede, reported in (2009)15 SCC 200 wherein, these judgment also speaks with regard to the demand of illegal gratification which is sina qua non for prosecution of offence under the provisions of the Act. That means demand and acceptances have to be proved in accordance with law.
36. Indisputably in this case, the evidence of PW.1 and 2 is quite contrary with regard to demand and acceptance. Except the bald say of PW.1 and 2 in the absence of evidence of complainant CW.1, it can never be stated that, such an offence is committed by the accused in the manner alleged by it. He also relies upon the judgment of Apex Court in State of Punjab v. Madan Mohan Lal Verma, reported in (2013) 14 SCC 153. In this judgment, the Hon'ble Apex Court has categorically observed with regard to the law on the issue which is well settled with regard to demand of illegal gratification which is sina qua non for constituting an offence under the PC Act. With regard to the principles laid down, there is no
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 dispute as such raised by the defence. Yet in another judgment of Supreme Court in N. Vijayakumar v. State of T.N., reported in (2021) 3 SCC 687, it is observed with regard public accountability, vigilance and corruption etc,. In this case, of except self-serving testimony of PW.1 and PW.2, other evidence is not convincing one.
37. Though it is argued by the learned Public Prosecutor that the said post-trap panchanama was prepared in the Hiriadka police station but, what prevented the IO to prepare the panchanama at the scene of offence where there was demand and acceptance of bribe money by the accused is not explained. He being a person who knows the proceedings under the provisions of PC Act, he took all the persons to the police station and prepared the panchanama there.
38. In the judgment of a Co-ordinate Bench of this Court in Crl.Appeal No.1383/2007 decided on 20th March 2012 relied upon by the counsel for the appellant- accused was in between Sri Hanumanthappa vs.
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 Lokayukta Police Mysore. In this judgment, it is observed by the Co-ordinate Bench of this Court in para.13 as under:
"13. The trap mahazar was not drawn on the spot, but according to the Investigating Officer the trap mahazar, Ex.P.7 was draw in the office of the Lokayuktha. As the accused has denied having given the explanation as mentioned in the trap mahazar, the drawing up of the trap mahazar at the place far away from the place of incident also has given raise to doubt the prosecution case, more so, when no work was pending with the accused and record also not seized from the accused."
39. If the said observations are applied to the present facts of the case, the trap mahazar was not drawn at scene of offence where the accused found demanding and accepting the tainted money. It has come in the evidence of PW.2 that, the said post-trap was prepared in the police station. Accused has denied his explanation also. Therefore, it can be stated that, with regard to non- preparation of trap mahazar at the place which is far away from the place of incident i.e. in the Hiriadka police station, we have to raise a doubt with regard to the case
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 made out by the prosecution against the accused. It has come in the evidence of PW.2 that, accused is not a responsible person to permit the prisoner to admit in the hospital. There are doctors who can give medical advice to Superintendent of Jail. They are the best persons to tell about the health condition of the inmates of jail. This portion of the evidence of PW.2 is not properly tested in the cross-examination. In the absence of the evidence of said Santhosh Poojary and preparation of panchanama near the arch gives room to draw an adverse inference against the prosecution case and accordingly it is drawn.
40. The learned counsel for the appellant also relies upon the judgment of Apex Court in Crl.A.No.1669/2009 between Neeraj Dutta v. State (Govt, of NCT of Delhi wherein, the Apex Court has categorically held that, "in view of rival submissions, the point emerges or proof of demand and acceptance illegal gratification by a public servant as a fact in issue by the prosecution is a sina qua non in order to establish the guilt of the accused a public
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 servant under Section 7 and 13 (1)(d) and (3) of the Act. Therefore, in order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as the matter of fact. This fact in issue can be proved either by direct evidence or in the nature of oral evidence or documentary evidence."
41. But it can be stated that, the prosecution in this case is unable to prove the case against the accused. In my opinion, when complainant was competent to come and give evidence, he is absent. So also the evidence relied by the prosecution suffers from material particulars. There are discrepancies and inconsistencies in the evidence of PW.1 and PW.2. If such evidence is placed on record, it requires corroboration.
42. PW.3 Suresh Bandalgar is Warden at the relevant time with the accused. On 28.3.2011, he was working as a Warden in Hiriadka District Prison. At that time, one Sameeulla was the Chief Superintendent of Jail.
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 At 6.30 p.m. he had gone out and at 8.00 p.m. he was called by the Chief Superintendent of Jail to come to the District Prison immediately. He went to District Prison at 8.10 p.m. and noticed that he has to take charge from the Jail Warden. It was told that accused warden was already apprehended. He further states that after arrest of the accused, the voice recorder was put on. But, he has not identified the voice so recorded and unable to say that voice as that of accused or not. He has been declared hostile witness by the prosecution. But, nothing worth is elicited from him mouth. In the cross-examination directed by the defence, he states that whenever the officials of the jail go out and come inside, they have to put their signatures in the register. Further, he states that, if a person who is going outside also had to put the signature. He further states that, Ex.P8 and P11 were prepared at 8.30 p.m. and he has put the signature. According to him, at the instance of police and because of threat by the police, he had put the signature. Further, he states that he has no obligations with the accused. Except arresting the
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 accused, he does not know anything. So evidence of this witness can be accepted to the extent that he was called by the Superintendent of Jail to take charge accused's duty. To that extent, evidence of PW.3 is to be believed.
43. PW.4 S.S.Hegde was a Junior Engineer in the PWD and he prepared sketch as per Ex.P15 as shown by PW.1. To that extent, his evidence is to be accepted.
44. P.W.5 Sri Thimmaiah, was the IO in this case and also the person who received the complaint from the complainant. He speaks with regard to his role as IO in this case right from receiving the complaint.
45. This PW.4 though speaks with regard to his role as an investigation officer but, in the cross-examination he states that, accused had no power to admit any of the inmates of jail to the hospital. The said power vests with the Chief Superintendent of Jail. Further, volunteers and states that on giving information to the superior officer, he can admit the inmates of the jail. For that the written order of a Chief Superintendent of Jail is very much
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 necessary. When accused had no power to admit the inmate of the jail to the hospital, how can he demand the money is not explained by the prosecution. Though he states about demand of money by the accused who are all involved in the said offence is not properly explained by the IO. He is just a warden and evidently he has no power to admit any of the inmates of the jail to the hospital. When he has no power at all as per the Jail Manual, was there any arrangement made by the accused to send the said Santosh Poojari to the hospital is not explained. The evidence of Superintendent of Jail is very much silent to that effect. There was no information furnished to the Chief Superintendent of Jail that it was accused to who informed him to shift the Santosh Poojari to the hospital. Such evidence is not brought on record. So in the absence of the same, it is hard to believe the story that, really this complainant approached the accused and requested to him to shift Santosh Poojari to the hospital.
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46. DWs.1 to 3 being the witnesses examined on behalf of the defence though have come before the Court and stated that on that day DWs.1 and 2 were in the house of the accused and at that time accused had received the call and he went to the jail but, the whole story of the prosecution is quite different. Though DWs.1 and 2 being the relatives of the accused went to the house of the accused on that day and they were cross-examined by the prosecution, but, their evidence would not help the case of the defence. Even DW.3 the accused has entered the witness box and states that the complainant never called him on 28.03.2011 at 3.00 p.m by his mobile No.9964360436. He admits that in the month of March 2011 one Santosh Poojari was housed in the jail. He was involved in one cheating case according to his evidence and has obtained a bail from the trial Court. He denied the suggestion that, on 28.03.2011 between 8.00 p.m and 8.30 p.m, he was near the arch of the Veerabhadra Temple in the area Hiriadka bazaar. The whole case of the prosecution is denied by the defence but, nothing worth is
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 elicited in the cross-examination. But, however, the learned trial Court has observed in the course of the judgment that, the accused was not competent person who was authorized to admit as an inmate of the jail to the hospital. The learned trial Court observed that, this may be true. But, however, it is observed that it is the case of the prosecution that, the accused by informing his superior officers, could have admitted the inmate of the jail to the hospital. Complainant being a layman was not knowing about the duties and powers of the accused and therefore he approached the jail warden. At that time the accused has demanded bribe of Rs.5,000/-. This observation of the trial Court go to establish that, though it knew that accused was not a competent and authorized person to admit the inmate of jail to the hospital but, what are all the formalities to be followed and whether the accused has really made arrangements to send the inmate of the jail Santosh Poojari to the hospital or not is not properly explained either by the IO or by any of the witnesses. In the absence of the same, it can very well be
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 stated that the very story put-forth by the prosecution that, it was accused who demanded money falls to the ground. In view of the observations of the Co-ordinate Bench of this Court with regard to the non-preparation of the panchanama at the scene of offence where accused demanded, gives room for doubting the very trap conducted by the Lokayukta Police. Therefore, as submitted by the counsel for the accused, in a case of present nature the legal presumption could be raised under Section 20 of the Act which is in contradiction to a presumption that could be raised under Section 114 of the Indian Evidence Act. It can be stated that, if tainted currency notes are found in the possession of the public servant in a trap case, there can be presumption under Section 114 of the Indian Evidence Act that he might have received it, but, in view of the law laid down by the Apex Court in catena of judgments, this presumption is rebuttable presumption and accused can very well rebut the said presumption. The said presumption is a presumption of fact. However, there can be no
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 presumption of demand as such. The demand, as matter of fact, cannot be presumed under Section 114 of the Indian Evidence Act unless for such a presumption to be made, the foundational facts are proved and such foundational facts unerring point to the irresistible and only conclusion of the proof of the demand. This would imply that mere recovery tainted notes from the position of the accused would not give to raise the presumption of demand (K. Shanthamma v. State of Telangana, (2022) 4 SCC 574).
47. In this case, the evidence of DW.3 goes to establish that, he denied the whole case of the prosecution and he examined DWs.1 and 2. Even the complainant is also not examined by the prosecution. The prosecution ought to have taken proper steps to secure the presence of the complainant to give evidence in this case though he is residing at Dubai by some other device of using the technology. It is not done by the prosecution. As rightly argued by the counsel for the appellant-accused, if all the
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NC: 2024:KHC:41871 CRL.A No. 1171 of 2013 other factual aspects as discussed above are put together, there arises a doubt in the prosecution case. Though, the learned Special Public Prosecutor Sri. Venkatesh S. Arabatti submits that, the trial Court has not committed any mistake in coming to the conclusion that accused is guilty of the offence but, in view of the discussion made above, all is not well with the case of the prosecution. In view of the non - preparing the panchanama at the scene of the offence though street lights very much available their gives room to draw the adverse inference against the case of the prosecution. Except the evidence of the PW.2 being the shadow witness and the another panch PW.3, there is no proper linking evidence to connect the accused that he is the culprit demanding and accepting tainted bribe money in the manner alleged by the prosecution. Therefore, the prosecution has failed to prove the guilt of the accused. Only on assumptions and presumptions, the Trial Court has convicted the accused and sentenced him. In my opinion, the trial Court has committed error in coming to such conclusion.
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48. Thus, in view of my discussion made above, there arises doubt in the case of prosecution and that benefit of doubt has to be extended to the accused. Accordingly, the point raised supra is answered in favour of the appellant and against the prosecution. Accordingly, the appellant-accused is entitled for acquittal by giving benefit of the doubt. Resultantly, I pass the following:
ORDER
(i) Appeal is allowed.
(ii) The judgment of conviction and order of sentence dated 16.11.2013 in Special Case No.17/2011 passed by the Sessions/Special Judge, Udupi, is hereby set-aside.
(iii) Consequential accused is acquitted of the charges under Section 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
(iv) His bail bond stands cancelled by
seeking at liberty.
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CRL.A No. 1171 of 2013
(v) The fine amount if paid by the
accused be refunded to him digitally after collecting necessary documents.
(vi) Send back the trail Court records
along with the copy of this judgment
forthwith.
(vii) Send the operative portion of this
order to the trial Court forthwith by mail.
Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE SK List No.: 19 Sl No.: 6