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2020 Supreme(Kar) 1803
IN THE HIGH COURT OF KARNATAKA
K. SOMASHEKAR, J.
T. Gopalaiah - Petitioner
Versus
State by Lokayukta Police, Represented by Standing Counsel and Spl. PP, Bangalore - Respondent
Criminal Appeal No. 754 of 2011
Decided on : 02-03-2020
Advocate Appeared:
For the Appellant :Pavana Chandra Shetty H., Advocate.
For the Respondent: Venkatesh S. Arbatti, SPL. P.P .
Point of law: The trial court cannot come to the conclusion that the accused had demanded and accepted bribe amount, unless it is established by the prosecution by putting forth cogent, corroborative and acceptable evidence.
Headnote:
Prevention of Corruption Act, 1988 - Sections 7, 13(l)(d) r/w 13(2) - Appeal against conviction - Demand of illegal gratification - Public servant Second Division Surveyor with a motive to favour in exercise of his official duty - Re-appreciation of evidence - Trap case
Finding of the Court:
There is no dispute that the accused was a Government Servant. The prosecution ought to have established the guilt of the accused beyond all reasonable doubts. When the matter of acceptance of the bribe has not been established properly by the prosecution, certainly it would cause greater injustice to the accused. The trial Court has not appreciated the evidence in a proper perspective on the part of the prosecution in respect of accused demanding and muchless accepting the illegal gratification - Mere recovery of currency notes from the possession of the accused by itself cannot be held to be proper or sufficient proof of the demand and acceptance of bribe, unless the same has been established by the prosecution beyond all reasonable doubt. The trial Court ought to have considered the evidence in respect of the explanatory statement given by the accused as per Ex.Dl. Therefore, in this appeal, the judgment of conviction and order of sentence rendered by the trial Court needs interference, if not, certainly it would lead to great injustice to the accused.
JUDGMENT :
K. Somashekar, J.
This appeal is directed against the judgment of conviction and order of sentence rendered by the II Addl.District and Sessions Judge, Tumkur in Spl.Case No.67/2004 dated 2.7.2011 convicting the appellant/accused for the offence punishable under Sections 7, 13(l)(d) r/w 13(2) of the Prevention of Corruption Act. The accused was sentenced to suffer RI for a period of six months and to pay fine of Rs.3,000/-, and RI for a period of one year and to pay of Rs.5,000/- and in default to pay the fine amount, to further undergo RI for three months and six months respectively for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the P.C.Act respectively.
2. The factual matrix of the case of the prosecution is that on 01.12.2003 at about 15.05 hrs in Gubbi, the accused being a public servant who was serving as Second Division Surveyor in the office of Taluk Surveyor, Gubbi is alleged to have demanded and accepted illegal gratification of Rs.300/- from CW. 1 with a motive to favour him in exercise of his official duty, thereby committing offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the P.C. Act.
3. Subsequent to registration of crime, PW.6 - J.B.Rangaswamy, the Police Inspector of Lokayukta, Tumkur secured P.W.5-Lakshminarasimharaju to act as panch witness. Accordingly, he drew the pre-trap mahazar as per Ex.P4 in the presence of panch witnesses and also in the presence of PW.3 -B.Shankaraiah based on a complaint as per Ex.P3 and so also, produced M.O.6 - 3 currency notes of Rs.100/- denomination. During the pre-trap mahazar, PW.6 held demonstration in the presence of PWs.4 and 5 that if the Government servant comes into contact with tainted currency notes which is applied with phenolphthalein powder, then his fingers will be dipped into sodium carbonate solution and the same shall turn pink into colour. This demonstration was done by PW.6 in front of the panch witnesses. During the pre-trap mahazar, PW.6 gave certain instructions to PWs.4 and 5 and also in the presence of PW.3 who is the author of the complaint at Ex.P3 and also facilitated with M.O.6 - currency notes. Subsequent to drawing the pre-trap mahazar, PW.6 led the team consisting the panch witnesses and also, PW.3 to the office of the accused where he was working as Second Division Surveyor. PW.3 tendered the tainted currency notes of Rs.300/- to the accused. Subsequently, PW.3 - Shankaraiah came out from the office of the accused and gave signal to PW.6 by wiping of his face with handkerchief. Subsequent to receipt of signal extended by PW.3, PW.6 rushed to the office of the accused where PW.3 had tendered the tainted money to accused and kept in his short pocket. M.O.6 was verified by PW.5 on which the phenolphthalein powder was applied and also noted the number of currency notes, which were tallied.
4. Subsequent to drawing of trap mahazar as per Ex.P5 in the presence of PWs.4 and 5 and so also, in the presence of PW.3 -Shankaraiah, M.O.6 was seized. Thereafter, PW.6 secured documents as per Ex.P7 - survey mahazar and application given to survey office as per Ex.P8 wherein the wife of PW.3 Shankaraiah has subscribed her signature. Ex.P9 is the attendance register and so also, programme register as per Ex.PlO. Ex.P12 is the chemical examiner's report. These are all the documents secured by PW.6 and laid the charge sheet against the accused before the Court below.
5. Subsequent to laying of charge sheet, the Court below framed charges against the accused for the offence punishable under Sections 7, 13(1)(d) r/w 13(2) of the P.C.Act, whereby the accused did not plead guilty but claimed to be tried. Subsequently, the prosecution in order to substantiate its case, examined in all PWs.l to 6 and got marked Exs.Pl to 14 and M.Os.l to 11. Subsequent to closure of evidence of the prosecution, the accused was examined as required under section 313 of Cr.P.C., 1973 to enable the incriminating statement appeared against
