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IN THE HIGH COURT OF KERALA
P.S. Gopinathan, J.
Parameswaran Pillai R. (Dr) - Appellant
Versus
State of Kerala - Respondent
Cri. A. No. 223 of 2004(B)
Decided On : 15-06-2011
Prevention of Corruption Act 1988 - Sections. 7, 13( 2) and 13( 1)(d) - Public servant taking gratification other than legal remuneration in respect of an official act - Criminal misconduct by a public servant - Phenolphthalein test - Appeal against conviction - Whether failure of the prosecution for sending the solution for chemical examination and to bring on record that there is traces of phenolphthalein powder is not reason to draw a conclusion against the prosecution - Whether appellant retired from service and that the award of rigorous imprisonment is very harsh whether that would meet the ends of justice - When court can interference - Whether conviction justifies - Held, there is no much challenge against the evidence of PWs.1 and 4 that when the hands of the appellant were subjected to phenolphthalein test, the solution and hands turned pink. As against that, as argued by the learned counsel for the appellant, now M.O.4 and M.O.5 solutions remain colourless. A copy of the Internet Journal of Forensic Science was made available to me by the learned counsel for the appellant. It would suggest that 'phenolphthalein is a weak acid and is almost unionized. Its unionized molecules are colourless whilst on ionization give colourless (H+) and pink coloured phenolphthalein ions. In the presence of acid due to increase in the concentration of common ions (H+), the dissociation of phenolphthalein is suppressed and thus the solution becomes colourless.' So, the possibility of phenolphthalein solution turning colourless by course of time due to slow chemical changes cannot be ruled out. For that reason, it is not at all possible to come to a conclusion that the evidence of PWs 1, 4 and 6 is not believable. I find that the failure of the prosecution for not sending the phenolphthalein solution for chemical examination and to bring on record that there is trace of phenolphthalein powder is also not at all a reason to arrive at a conclusion against the prosecution - Appellant retired from service on 31.1.2002 and that the award of rigorous imprisonment is very harsh. Taking note that the appellant is a hexagenerian Court find that simple imprisonment would meet the ends of justice. The term of imprisonment calls for no interference and while confirming the conviction, the sentence of rigorous imprisonment is modified to a sentence of simple imprisonment. In all other respects, the conviction and sentence under challenge are confirmed.
P.S. Gopinathan, J.
The accused in CC 4 of 2002 on the file of the Enquiry Commissioner & Special Judge, Thiruvananthapuram, is the appellant. He was working as a Civil Surgeon in the Primary Health Centre, Pulluvila, in January and February, 2001. PW 5 Suganthy, wife of PW4 was admitted in the Primary Health Centre on 27/01/2001 with viral fever. According to the prosecution, at the time of admission, the appellant asked whether they had brought the fees. Responding to the query Rs. 50/- was paid by PW 4. PW 5 was admitted in the Primary Health Centre; but there was no improvement. The other patients in the hospital stated that unless the doctor was paid well, they won't get proper treatment. On 30/01/2001, PW 4 met the appellant in his consulting room near the Primary Health Centre and paid Rs. 50/-. Thereafter, medicine was changed. Since the temperature remained steady PW 4 again met the appellant on 01/02/2001. According to the prosecution, the appellant demanded Rs. 2501/- as bribe. Being got aggrieved, PW 4 made a complaint to the Superintendent of Police, Vigilance &Anti Corruption Bureau, Thiruvananthapuram. On advice, PW 4 went to PW 6, the Deputy Superintendent of Police on 03/02/2001 at 10 a.m. and gave Ext. P8 First Information Statement PW 6 recorded Ext. P8 and registered a case as Crime No. VC. 4/2001 against the appellant for offence under Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act (for short, "PC" Act). Ext. P10 is the First Information Report. PW 6 made arrangements for trapping the appellant. He procured two independent witnesses of whom one was examined as PW 1, an Assistant Director of Industries and Commerce. The independent witnesses were appraised of the nature of the complaint and phenolphthalein test was demonstrated in the presence of PW 1, PW 4 and other independent witnesses. PW 4 had brought a 100 Rupee note which was marked as MO 1. PW 6 got the same, smeared phenolphthalein powder and entrusted back to PW 4 to keep in safe custody with instruction to give to the appellant in the event of repetition of demand. A mahazar was prepared regarding the demonstration of phenolphthalein test and entrusting of MO 1 to PW4. PW6 took PW 1,4 and other independent witnesses along with the raid party and proceeded to the Primary Health Centre. They took positions and sent PW 4 to the appellant with direction to give signal in the event of acceptance of bribe by the appellant. The appellant was on leave. PW 4 came to understand that the appellant would be available only on 5th, the following Monday. The matter was in formed to PW 6. Accordingly, PW 6 returned with instruction to PW 4 to report on 5th. On 05/02/2001, PW 4 reported before PW 6. Phenolphthalein powder was again smeared over MO 1 and handed over to PW 4 again with instruction to pay it to the appellant only on repetition of demand. Ext. P2 mahazar was prepared. PW 6 along with the officials and the independent witnesses including PW 4 proceeded to the Primary Health Centre. PW 6 and the party took positions at different places near the Health Centre. PW 4 went to the appellant. According to PW 4, the appellant repeated demand. MO 1 was handed over to the appellant. The appellant: accepted the same and put it in the drawer of the table. PW4 came out and conveyed signal,; responding to which PW 6 along with PW 4 and other officials rushed to the appellant. PW61 disclosed his identity and introduced PWs 1, 4 and other independent witnesses to the appellant PW 6 subjected himself to phenolphthalein test. Thereafter the hands of the appellant were subjected to separate phenolphthalein test which turned positive. When asked, the appellant stated that PW 4 had deliberately thrust the currency note into the drawer of the table. The, drawer of the table was got opened. MO 1 was found lying inside the drawer. It was ceased and subjected to phenolphthalein test which also turned positive. A ball pen and a cove
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