Circumstantial evidence can be utilized to prove demand and acceptance of illegal gratification by a public servant when direct evidence is unavailable.

JUDGMENT :

This appeal has been preferred by the accused in CC No.22/2014 on the file of the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram (for short, 'the court below') challenging the judgment dated 28th February, 2019 convicting and sentencing him under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (for short, the PC Act).

2. The appellant/accused was working as Village Officer in Anavoor Village. The case of the prosecution in short is that on 7/12/2011, he obtained Rs.2,000/- as bribe from the defacto complainant/decoy at the Village Office, Anavoor towards consideration for mutation of pokkuvaravu.

3. After trial, the appellant was found guilty and he was convicted and sentenced to undergo simple imprisonment for three years, to pay a fine of Rs.25,000/- in default to undergo simple imprisonment for 90 days for the offence under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act vide the impugned judgment. Challenging the said conviction and sentence, the appellant preferred this appeal.

4. I have heard Sri. Sasthamangalam S. Ajith Kumar, the learned counsel for the appellant and Sri. A. Rajesh, the learned Special Public Prosecutor (VACB).

5. To prove the incident and to fix the culpability on the accused, the prosecution examined PWs1 to 7 and Exts.P1 to P20 were marked. MO1 to 17 were identified. Ext.C1 was marked as court exhibit. The decoy died before the trial.

6. The prosecution evidence reveals as follows: The decoy witness approached the accused for the purpose of processing the application for pokkuvaravu of his land. The accused demanded Rs.5,000/- as bribe. On negotiation, it was reduced to Rs.3,000/-. Advance of Rs.1,000/- was paid on 26/11/2011. The accused told him that he should pay the balance amount of Rs.2,000/- within two weeks and the mutation will be effected thereafter. The decoy immediately reported the matter to the Dy. S.P. attached to VACB, Thiruvananthapuram who was examined as PW6. The statement of decoy was reduced into writing which was marked as Ext.P11(a). Based on it, PW6 registered crime as VC No.1/2011. Ext.P11 is the FIR. PW6 then narrated the trap. Ext.P1 pre trap mahazar was prepared on 7/12/2011. The decoy was given a pen camera attached to his shirt pocket. Thereafter, as instructed by PW6, decoy went to the office of the accused and on demand gave the trap money. The accused opened the right side of the drawer of his table and on his direction, the decoy put the trap money inside it. The decoy came out and gave signal to PW6 and his team. Meanwhile, the accused sensed the trap and initially he took the trap money and put it in the left-hand drawer and then asked PW3 viz., Reji who was waiting outside the office to take the money. When PW6 and party came inside, they could not find the money. It was found from the pocket of PW3. Phenolphthalein test was positive on the left hand of the accused, the right and left drawer of the table and the shirt pocket of PW3. Ext.P2 recovery mahazar was prepared. The accused as well as PW3 were arrested and produced before the court. Later, PW3 was given pardon and made as an approver.

7. MO10 is the memory card installed in the button camera fixed on the shirt pocket of the decoy. The visuals in MO10 were copied by the expert on a request made by the investigating officer in a DVD. MO10 was forwarded to the State Forensic Science Laboratory through court and Ext.P19 report was obtained. The DVD containing the visuals was played in the court. Relying on the visuals in the DVD as well as the oral evidence of PW1 to PW7 tendered by the prosecution as well as Exts.P1 to P20, the court below found that the prosecution has succeeded in proving the demand and acceptance of bribe by the accused by abusing his official position as public servant.

8. The learned counsel appearing for the appellant impeached the findings of the court below on appreciation of evidence and the resultant finding as to the guilt. T