Karnataka High Court
Sri Rayanna Bheemappa Antal vs State Of Karnataka on 26 May, 2022
Author: V.Srishananda
Bench: V.Srishananda
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CRL.A No. 1384 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF MAY, 2022
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL APPEAL NO. 1384 OF 2012 (C-)
BETWEEN:
SRI RAYANNA BHEEMAPPA ANTAL
S/O. BHEEMAPPA,
AGED ABOUT: 40 YEARS,
OCC: POLICE CONSTABLE,
(EARLIER AT TADAS POLICE
STATION O.O.D.HANGAL CIRCLE
INSPECTOR S OFFICE, HANGAL)
NOW KAGINERE POLICE QUARTERS,
TQ: BYADAGI, DIST: HAVERI - 581 110.
...APPELLANT
(BY SRI. K. L. PATIL & SRI.SRINIVAS B. NAIK, ADVOCATES)
AND:
STATE OF KARNATAKA,
REPRESENTED BY KARNATAKA,
LOKAYUKTA POLICE
POLICE INSPECTOR,
KARNATAKA LOKAYUKTA
MANJANNA POLICE WING, HAVERI - 581 110.
E
...RESPONDENT
Digitally (BY SRI. SANTOSH B MALAGOUDAR, ADVOCATE)
signed by
MANJANNA THIS CRIMINAL APPEAL IS FILED UNDER SECTION
E 374(2) OF THE CRIMINAL PROCEDURE CODE, PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED
10.12.2012 MADE IN SPL. (LOK).C.NO.7/2017 BY THE COURT
OF SPECIAL JUDGE, HAVERI AND ACQUIT HIM OF THE
OFFENCE FOR WHICH HE IS CONVICTED BY THE COURT
BELOW.
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CRL.A No. 1384 of 2012
THIS APPEAL COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri. K. L. Patil, learned counsel for the appellant and Sri. Santosh B. Malagoudar, learned counsel for the respondent-Lokayukta.
2. The present appeal is filed against the order of conviction passed in Spl.(Lok) Case No.7/2007 by the Special Judge, Haveri by the judgment dated 10/12/2012, whereby the appellant came to be convicted for the offence under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act (hereinafter referred to as 'the PC Act', for short) and ordered to undergo simple imprisonment for a period of 3 years with a fine of `10,000/- for the offence under Section 7 of the PC Act and to undergo simple imprisonment of 3 years with a fine of `15,000/- for the offence under Section 13(1)(d) read with Section 13(2) of the PC Act.
3. The brief facts of the case are as under:
Upon the complaint lodged by Prashantha Kumar T. G, S/o.Shivakumarswamy T.G., the Lokayukta Police registered a -3- CRL.A No. 1384 of 2012 case in Crime No.2/2007 for the offence punishable under Section 7 and Section 13(1)(d) read with Section 13(2) of the PC Act. The gist of the complaint averments reveal that, one Mr. Praveen is involved in possession of counterfeit currency and complainant had kept a motorcycle belonging to the said Praveen in his house.
Sri. R. B. Antal, who was working as a police constable in Tadas Police Station, who was in-charge of finding out the persons who are involved in such counterfeit currency case, started to demand illegal money from the complainant so as to not to involve the complainant in the case. The complainant being not interested in parting with the illegal gratification to the accused, approached the Lokayukta Police and lodged a complaint. The head of the raid party being convinced about truthfulness of the complaint averments, arranged a trap by securing two independent government servants as panchas and secured the complainant, and made the panchas to go through the averments of the complaint and explained the panchas about the chemical reaction of phenolphthalein powder and sodium carbonate solution and took the Illegal gratification amount of `10000 from the custody of the complainant and -4- CRL.A No. 1384 of 2012 smeared the phenolphthalein powder to the said currency notes and drafted experimental mahazar.
Thereafter the raid party comprising of the complainant, two mahazar witnesses, sub-staff of the head of the raid party and head of the raid party proceeded to a hotel near Nalkar cross. The complainant and shadow witness PW5 - Rajendra Kulkarni, went inside the hotel and they were waiting for the accused to arrive there. Soon after the accused arrived there, the conversation took place between the complainant and the accused and the complainant handed over tainted currency to the hands of the accused, who kept the same in his shirt pocket. Immediately, pre-designated signal was given to the rest of the raid party members and the raid party members entered the hotel and caught hold of the accused and thereafter the tainted currency was seized from the custody of the accused. Thereafter colour test was conducted and trap mahazar was drafted in the police station which is situated about 15 kms away from the spot of incident. The accused was arrested and produced before the Special Court and sent to judicial custody.-5- CRL.A No. 1384 of 2012
Thereafter the case was investigated and charge sheet came to be filed against the accused for the offence punishable under Section 7 and Sections 13(1)(d) read with Section 13(2) of the P.C. Act.
The presence of the accused was secured before the Sessions Court, who was enlarged on bail and thereafter charge was framed for the aforesaid offences.
The accused pleaded not guilty and therefore, trial was held. In order to prove the case of the prosecution, the prosecution examine 17 witnesses as PWs.1 to 17 and relied upon 75 documents which were marked as Exs. P1 to P75. The prosecution also relied upon 14 material objects which were marked as M.Os.1 to 14.
Thereafter the statement of the accused under Section 313 Cr.P.C. was recorded, wherein the accused had denied all the incriminating circumstances alleged against him. The accused did not choose to lead any defence evidence nor furnished any written submissions as is contemplated under Section 313 (5) Cr.P.C.
Thereafter the learned Special Judge heard the parties and after appreciating the material evidence on record, -6- CRL.A No. 1384 of 2012 convicted the accused and sentenced him as recorded supra. It is that judgment, which is under challenge in this appeal.
4. In the appeal memo the following grounds have been raised:
i. It is submitted that the impugned judgment and order of conviction and sentence passed by the Court below is highly illegal, unreasonable and arbitrary.
ii. It is submitted that the Court below has committed serious material irregularities and illegalities in appreciating the material evidence available on record and has erred in convicting the appellant.
iii. It is submitted that the testimony of the investigating officer and the trap witnesses who laid the trap cannot be accepted without corroboration from independent sources.
iv. It is submitted that P.W.4 and P.W.5 who are the panch witness and shadow witness are persons who are interested in the trap and therefore they are partisan witness and as such unless there is corroborative independent evidence supporting case of prosecution, the Court below ought not -7- CRL.A No. 1384 of 2012 have convicted the appellant on the basis of evidence of PWS 4 and 5.
v. It is submitted that the entire story of the prosecution falls to grounds having regard to the evidence of PWS 1, P.W.2 and P.W.3. However, the Court below has failed to properly appreciate this evidence.
vi. It is submitted that the evidence of P.W.4 and P.W.5 is full of contradictions. The entrustment Mahazar is not legally proved and it does not speak of hand signal by the complainant, while P.W.,5 speaks about hand signal given by complainant and thereafter arrest of accused. properly appreciate the The Court below has failed to contradictions, commissions and omissions and the improvements in the evidence of P.Ws. 4 and P.W.5.
vii. It is submitted from the reading of evidence of P.W.6, it is highly doubtful that P.W.5 alleged shadow witness and gone to the hotel and accompanied the complainant as alleged by the prosecution.
viii. It is submitted that the Court below has also failed to properly appreciate the evidence of P.W.6 to P.W.8 and P.W.11. None of the independent witnesses have supported the case of prosecution.-8- CRL.A No. 1384 of 2012
ix. It is submitted that the appellant was working as a constable. The appellant has been made a scape goat in order to save certain political personality to whom bribe was given by complainant P.W.1. The defence has not been properly appreciated by the trial Court.
x. The place of trap has not been proved by prosecution as required under law. Further, it is also not established by prosecution as to why trap was laid in the small hotel and as to how the police knew the accused would be coming there. Evidence of P.W.5 states that accused was not in the hotel and he came there only after complainant telephoned and requested him to come to the hotel.
xi. It is submitted that there is no proper sanction for prosecuting the appellant and the authority concerned without proper application of mind and without proper appreciation of the available material, has erroneously issued the sanction Ex.P.74.
xii. It is submitted that the complainant in his evidence has specifically deposed that he has not paid the amount to the hands of the accused and he has paid the bribe amount into the hands of one political person. Hence the main allegation of -9- CRL.A No. 1384 of 2012 the prosecution that the accused demanded and accepted the bribe amount from the complainant has not been proved by the prosecution.
xiii. It is submitted that the prosecution has utterly failed to prove the ingredients of section 7 and 13(1)(d) of Prevention of Corruption Act. In the present case, there is no demand or acceptance of bribe amount by the appellant. This important aspect has not been considered by the prosecution.
xiv. The appellant craves leave of this Hon'ble Court to urge additional grounds at the time of hearing the appeal.
5. Reiterating the above grounds, Sri. K. L. Patil, learned counsel for the appellant, vehemently contended that, in the case on hand, the prosecution is unable to establish the demand and acceptance, which is a sine-quo-non to record an order of conviction for the offence alleged against the accused. He further submitted that the complainant has not supported the case of the prosecution in toto, except the fact that he was present at the time of raid. He further contended that the shadow witness has also not properly supported the case of the prosecution and despite the same the learned Special Judge
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CRL.A No. 1384 of 2012 proceeded to convict the accused, which has resulted in miscarriage of justice and thus prays for allowing the appeal.
6. Per contra, learned counsel representing the Lokayukta Sri. Santosh Malagoudar, vehemently contended that the contradictions and lacunae in the case of the prosecution referred to by the learned counsel for the appellant are minor in nature and did not cause any serious dent to the case of the prosecution as a whole and the material contradictions pointed out by the counsel for the appellant is natural because the witnesses are not tutored witnesses and thus sought for dismissal of the appeal. He pointed out that there is no proper explanation forthcoming from the accused as to handling of the tainted money in view of the fact that the colour test stood positive. He also pointed out that the fact that the complainant retaining the motorcycle belonging to the main accused Praveen in a counterfeit currency case being not in dispute, the rest of the allegations made against the Investigating Agency is of no significance when the case is considered cumulatively. He also contended that non- explanation by the accused as to his presence in Nalkar cross in
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CRL.A No. 1384 of 2012 a hotel is also not a relevant factor while considering the case of the prosecution and thus, sought for dismissal of the appeal.
7. In the light of the above rival contentions, this Court meticulously perused the material on record. On such perusal of the material on record, the following points would arise for consideration:
1. Whether the prosecution is successful in establishing all the ingredients to attract the offences alleged under Sections 7 and 13(1)(d) read with section 13(2) of the P.C.Act?
2. Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference by this Court?
3. Whether the sentence is excessive?
8. In the case on hand, in order to establish its case, the prosecution has relied on the oral testimony of PWs.1 to 17. Among them, PW1 - Prashant Kumar P. J. is the complainant and PW5 - Rajendra Kulkarni is the shadow witness. Other witnesses are formal in nature. The prosecution relied on 75 documents, which are marked as Exhibits P1 to P75. Among them Ex.P1 is the complaint lodged by PW1, Ex.P2 is the
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CRL.A No. 1384 of 2012 Entrustment/Experimental mahazar, Ex.P3 is the Seizure Mahazar and Ex.P64 is the hand sketch showing the place of trap and Ex.P74 is the sanction order and Ex.P75 is the service particulars of the accused and Exs. P66 to P72 are the photographs at the time of trap.
9. The complainant in the case on hand did not support the case of the prosecution in toto. He has deposed before the Court about his acquaintance with one pancha and also lodging of the complaint with the Lokayukta Police. However, he deposed that "he does not know the contents of the complaint and Lokayukta Police had obtained his signature on the blank paper and he has subscribed his signature". Therefore, he has been treated as hostile witness by the prosecution and cross-examined by the special Public Prosecutor. In such cross-examination, the contents of the complaint, experimental mahazar and trap mahazar were confronted to PW1. However, PW1 has denied the suggestions made by the learned Special Public Prosecutor.
10. PWs. 2 and 3 are the persons who are present in the hotel, where the trap has taken place. Both of them have
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CRL.A No. 1384 of 2012 not supported the case of the prosecution. PW4 is a member of the trap party. He has subscribed his signature to the entrustment mahazar and subsequent to the trap, he has visited the hotel and seen what transpired there and he supported the case of the prosecution in toto. In his cross- examination, no useful material is elicited so as to doubt the veracity of the oral testimony made by him.
11. PW5 - Rajendra Kulkarni is the shadow witness. He has supported the case of the prosecution by deposing before the Court about the gist of entrustment mahazar Ex.P-2 and contents of trap mahazar Ex.P-3. In his cross-examination, however, he has admitted that "he was sitting in different bench in the hotel, other than the bench where the complainant and accused were sitting and he did not come to know about the conversation between the complainant and the accused before the trap took place". However, he specifically deposed before the Court about the payment of Rs.10,000/- tainted currency by the complainant to the accused and the accused keeping the same in his shirt pocket.
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CRL.A No. 1384 of 2012
12. PW6 - Virupaxappa Devihosur, is the Engineer who prepared the spot sketch. PW7 - B. T. Nagaraj, is the Mechanic, who is the circumstantial witness, but did not support the case of the prosecution. PW8 - Prasadaswami, also did not support the case of the prosecution. PW9 - Manjappa Durugappa is the PSI, who worked in Tadas Police Station, who contacted the accused for searching the persons involved in the counterfeit currency case. His evidence is formal in nature. PW10 - Aravind N. Kalagunjji is the Investigating Officer in the counterfeit case, who deposed about involvement of Praveen in the case and also the complainant keeping the motorcycle of Praveen in his house and seizure of the same. His evidence is also formal in nature.
13. PW11 - Mallikarjun C. Mahantanamath, is the independent witness, who is an advocate, who defended Praveen, who is an accused in the counterfeit currency case and he has supported the case of the prosecution in toto. The PSI, Hangal is examined as PW12. He has deposed about the investigation being carried out in Hangal region in respect of the counterfeit currency case. His evidence is also formal in nature. PW13 - G. Gurudatta, is head of the raid party. He
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CRL.A No. 1384 of 2012 has deposed before the Court about the receipt of the complaint by the complainant and he being confirmed about the contents of the complaint and forming the raid/trap party by securing PWs. 2 and 5 and explaining the contents of the complaint to them. He further deposed about the experimental mahazar and thereafter laying the trap. He further deposed about the trap being conducted, arrest of the accused, seizure of tainted currency and drawing of trap mahazar. He further deposed about the production of the accused before the Special Court, sending him to judicial custody, completing investigation and filing the charge sheet against the accused. In his cross- examination, he specifically admitted that the mahazar was drafted in Hangal Police Station, which is situated about 15 kms away from the place of trap. He further admitted that there were facilities to draft the trap mahazar in the place of incident itself. Further, there is discrepancy pointed out in his cross- examination regarding the nature and type of the hotel, where the trap took place.
14. PW14 - B. G. Sheshagiri, is the FSL Officer, who gave the FSL report vide Ex.P-73, after examining the seized material objects. His evidence is also formal in nature. PW15
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CRL.A No. 1384 of 2012
- D. F. Udakeri, is the circumstantial witness, who deposed about the accused being contacted for investigation in the counterfeit currency case. PW16 - Basavaraj B. Haveri, is the FIR carrier and also who drafted experimental mahazar and other mahazar at the instructions of the head of the raid party. PW17 - G. Ramesh is the person who issued sanction order to prosecute the accused in the case.
15. Learned counsel for the appellant sought to re- appreciate the above evidence and seeks for allowing the appeal.
16. This Court perused the material evidence on record meticulously in the light of the rival contentions.
17. As could be seen from the deposition of PW1, he has not supported the case of the prosecution except visiting the Lokayukta Police and the Lokayukta Police taking his signature on the blank paper. In the cross-examination of PW1, except confronting the contents of the complaint and contents of experimental mahazar and trap mahazar, no useful material is elicited by the prosecution, so as to establish that there was a demand made by the accused and he has paid the
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CRL.A No. 1384 of 2012 tainted currency in pursuance to the demand made by the accused. Having failed to establish the case of the prosecution through the oral testimony of PW1, the prosecution placed much reliance on the oral testimony of shadow witness who is examined as PW5 - Rajendra Kulkarni, who deposed before the Court that he was sitting in a different bench other than the bench where the complainant and accused were sitting at the time of trap. He admitted in his cross-examination that he did not come to know as to the actual conversation between the accused and the complainant at the time of handing over the tainted currency to the hands of the accused.
18. Sri. Santosh Malagoudar, learned counsel for the respondent Lokayukta vehemently contended that, when the prosecution is able to establish that the tainted currency is seized from the custody of the accused, it pre-supposes that there was an admission. However, such pre-supposition would be accepted only if the complainant has supported the case of the prosecution. In the case on hand, the complainant has not supported the case of the prosecution. Further, from the trap mahazar marked at Ex.P3, it could be seen that there is a different version from the complainant and shadow witness,
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CRL.A No. 1384 of 2012 while the complainant specifically stated in the trap mahazar that the complainant, shadow witness and accused sat on the same table. The complainant has also stated that there was delay in accused reaching to the hotel and on enquiry he told that the tier of his vehicle got punctured and therefore there is delay. He further answered that it is the accused who ordered for some snacks in the hotel and after taking the snacks, the conversation went on, wherein the accused has demanded for the money of Rs.10,000/- + Rs.1,000/- extra for himself and the complainant replied to the accused that the accused has to adjust everything with a sum of Rs.10,000/- only and thereafter he handed over the tainted currency to the hands of the accused, which he counted and kept in the shirt pocket. Whereas, the shadow witness in his examination-in-chief and cross-examination before the Court did not mention the said aspect of the matter and in the trap mahazar, though he has stated that he was present at the time of conversation of the complainant and accused, regarding the demand and acceptance, he did not support the case of the prosecution while deposing before the Court.
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CRL.A No. 1384 of 2012
19. Further, as could be seen from the contents of the trap mahazar, soon after the pre-designated signal was given, head of the raid party did not come to the spot immediately. It is the sub-staff who accompanied the raid party and held the hands of the accused and made him to sit in the place and thereafter the complainant telephones to the head of the raid party and subsequently the head constable appeared on the scene and lastly the head of the raid party, who is examined as PW13, appeared on the scene. Therefore, the very trap itself appears to be not properly made as per the protocol required in the matter of this nature. Further, the trap mahazar was not drafted on the spot, but it was drafted in the Hangal Police Station, which is 15 kms away from the spot.
20. Having regard to the contents of the trap mahazar and the reasonable time consumed for typing the contents of the trap mahazar, it would take minimum 2 to 3 hours and therefore, there is serious dispute as to the timings mentioned in the trap mahazar.
21. These aspects of the matter when viewed cumulatively, on re-appreciation of the material, this Court is of
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CRL.A No. 1384 of 2012 the considered opinion that the prosecution is not successful in establishing all ingredients to attract the offence under Section 7 and Section 13(1)(d) read with Section 13(2) of the P.C. Act, beyond reasonable doubt.
22. It is settled principle of law that, it is the prosecution, which has to prove the allegations levelled against the accused beyond all reasonable doubt in a given case. In the case on hand, the complainant having turned hostile to the case of the prosecution in toto and having regard to the discrepancies found in the trap mahazar and oral testimony of PW-5, who is a shadow witness to the case, this Court is of the considered opinion that the demand and acceptance is not properly proved. Thus, viewed from any angle, this Court is of the considered opinion that the prosecution is un-successful in establishing all ingredients to attract the offences alleged against the accused as is enunciated in the dictum of the Hon'ble Apex court in the case of A. Subair Vs. State of Kerala reported in (2009) 6 SCC 587. Hence, this court is of the considered opinion that the appellant has made out a case for an order of acquittal.
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CRL.A No. 1384 of 2012
23. In view of the foregoing discussions, point No.1 is answered in the negative. In view of answering point No.1 in the negative, the impugned judgment cannot be termed as sound and proper. Accordingly, point No.2 is answered in the affirmative and pass the following:
ORDER The appeal is allowed. The order of conviction dated 10.12.2012 passed by the Special Judge, Haveri in Spl.(Lok) C.No.7/2007 is set aside.
The fine amount is ordered to be returned to the appellant/accused after proper identity.
The bail bond if any executed by the appellant stands cancelled.
Sd/-
JUDGE gab