The evidence of a deceased witness cannot be disregarded solely due to their unavailability for cross-examination; demand for illegal gratification must be proven, which can be inferred from circumstantial evidence.

ORDER :

M.NIRMAL KUMAR, J.

The petitioner/accused in C.C.No.33 of 2021 on the file of Special Court for the Cases under Prevention of Corruption Act, Chennai filed a petition to erase and eschew the evidence of P.W.3/Abineshbabu/defacto complainant. The learned Special Judge by order dated 12.02.2025 dismissed the petition. Against which, the present petition is filed.

2.The contention of the learned counsel for the petitioner is that the petitioner stands prosecuted for the offence under Sections 7 and 13(2) r/w. 13(1)(d) of Prevention of Corruption Act [PC Act]. The case projected against the petitioner is that when the petitioner was working as Inspector of Police, CCB, Team-18, Chennai, P.W.3 was an accused in CCB Crime Nos.341 of 2005 and 765 of 2008 for the offence under Sections 465, 467, 468 r/w. 471, 420 and 120B of IPC. On 16.12.2008, the petitioner is said to have demanded a bribe amount of Rs.2,00,000/- as illegal gratification from the defacto complainant for dropping further action and close the case against the defacto complainant as civil in nature. On 17.12.2008, the petitioner is said to have reiterated the demand and through Mohan/A2, Head Constable, received the trap amount of Rs.2,00,000/-. To prove this charge, the prosecution examined P.W.3/decoy, P.W.4/Karthikeyan, who is the accompanying official witness and Mr.Paramasami/Trap Laying Officer (TLO) along with another official witness Mr.Haribhaskar. P.W.3/decoy was examined-in-chief on 20.09.2011 and on the same day, a defer cross petition under Section 243(2) Cr.P.C. in Crl.M.P.No.10572 of 2011 filed stating that the decoy, accompanying witness and TLO speak to the identical facts and if PW3 was cross examined without examining the accompanying witness and TLO, great prejudice would be caused and the defence would get exposed. Considering the same, the Trial Court allowed the petition on 20.09.2011 deferring the cross examination of P.W.3. On 28.08.2012, the petitioner filed a petition under Section 91 Cr.P.C. seeking for summoning certain documents to prove his case. Thereafter, the petitioner filed Crl.M.P.Nos.1492 and 1493 of 2012 to recall the complainant whose cross examination was earlier deferred and others. The Trial Court allowed the same on 27.10.2015 on payment of batta to the witnesses. The prosecution produced the witnesses except P.W.3 and later on 05.08.2016, the death certificate of P.W.3 informing that he died on 30.07.2015. Hence, the petitioner lost the valuable right of cross examining P.W.3. The evidence is complete only after chief examination and cross examination and the evidence of witnesses are tested by touch tone of cross examination. In this case, due to the death of P.W.3 he was unable to be cross examined. Hence, the petitioner filed the present petition seeking to eschew the evidence of P.W.3 recorded in chief.

3.In support of his contentions, the learned counsel for the petitioner relied upon the Division Bench judgment of this Court in the case of Dharmarajan and others vs. The State rep. by the Inspector of Police, Ammapettai Police Station, Thanjavur District [ Crl.A.(MD).Nos.277 and 132 of 2017 dated 04.07.2019], wherein this Court held that after the chief examination of P.W.2 therein was over and her cross examination was deferred, it was the duty of the prosecution to secure the presence of P.W.2 before the Court for the purpose of cross examination. But since P.W.2 therein did not offer herself for cross examination, the testimony in chief would not come in aid of the prosecution to sustain their case.

4.The learned counsel for the petitioner further relied upon the order of this Court in the case of Dr.Sunder vs. State of Tamil Nadu, rep. By the Inspector of Police, K-4 Anna Nagar Police Station, Law and Order, Chennai [Crl.O.P.Nos.21519 & 21520 of 2017 dated 18.06.2019], wherein this Court held that the evidence of a witness who could not be subjected to cross examination due to his death or his non-availability, b