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S.M. Vijayakumar and Another Vs. The State Of Karnataka, By PoliceInspector and Another

LegalCrystal Citation : legalcrystal.com/1173182

Court : Karnataka

Decided On : Feb-19-2015

Judge : R.B. BUDIHAL

Appeal No. : Criminal Appeal Nos. 764 of 2009 & 284 of 2010

Appellant : S.M. Vijayakumar and Another

Respondent : The State Of Karnataka, By Police Inspector and Another

Judgement :

(Prayer: This Crl.A Is Filed U/S 374(2) Cr.P.C Praying To Set Aside The JudgmentAnd Order Of Conviction Of Sentence Imposed On The Appellant In Special CaseNo.63/04 Dated 8.9.2009 On The File Of The Principal Sessions Judge, BangaloreRural District, Bangalore And Etc.

This Crl.A. Is Filed U/S.377 Cr.P.C Praying To Grant Leave To File An AppealAgainst The Judgement Dt.8/9/2009 Passed By The Learned Prl. S.J. BangaloreRural Dist., Bangalore, In Spl.Case No.63/2004 Thereby Imposing InadequateSentence For The Offences P/U/S 7 R/W 13(2) Of The P.C. Act.)

1. Since these two appeals are arising out of the common judgment and sincecommon questions of law and facts are involved in both the appeals, they havebeen taken up together to dispose of them by common judgment.

2. Crl.Appeal No.764/2009 is preferred by the appellant/accused being aggrievedby the judgment of conviction passed by the Prl.District and Sessions Judge,Bangalore Rural District in Spl.Case No.63/2004 dated 08.09.2009.

3. Crl.Appeal No.284/2010 is preferred by the appellant/complainant beingaggrieved by the judgment and order of inadequate sentence dated 08.09.2009passed by the Prl.District and Sessions Judge, Bangalore Rural District in Spl.CaseNo.63/2004.

4. The case of the prosecution in brief is that one Shamanna is the complainant inthis case. It is alleged that complainant is a resident of Vijayapura Village ofDevanahalli Taluk. Smt.M.Nagarathnamma is his elder sister. In Sy.No.287 ofVijayapura, property measuring 35X35 feet (site) stands in the name of his eldersister's husband's father viz., Chikkaveerappa. The said site is in possession ofM.Nagrathnamma, her husband had died. She sought for change of katha in theyear 2000. In this regard, an application was submitted to Tahsildar, Devanahalli.Thereafter, a surveyor has come from the office of the Tahsildar, prepared thesketch after inspecting the property. Then, for change of the katha, records weresent to the Revenue Inspector, Vijaykumar i.e., the accused. But the accused hasnot transferred the katha and he was postponing the same. In this regard,

complainant's elder sister has contacted the accused, even then her work was notdone. So complainant's elder sister has given the GPA in favour of complainant. Sohe contacted the accused, requested to do the work of his sister. Then, the accusedhas demanded Rs.5,000/- for transfer of katha. But complainant explained thatthey are poor, they cannot pay Rs.5000/-. Finally, the accused has asked atleast topay Rs.4000/- and to pay the said amount on 01.08.2002 at the residence or at theoffice of the accused and promised to change the katha. As the complainant wasnot interested to pay the bribe amount to the accused, he approached theLokayukta Police and lodged the complaint dated 31.07.2002 as per Ex.P-1.

5. It is also the case of the prosecution that, on the basis of the said complaint, FIRwas registered as per Ex.P-10. Thereafter, the entrustment mahazar was preparedin the office of Lokayukta as per Ex.P-

2. Trap was laid against the accused as per mahazar Ex.P-3. Thereafter, theInvestigating Officer, after completing the investigation, filed the charge sheetagainst the accused for the offences punishable under Sections 7, 13(1)d read withSection 13(2) of Prevention of Corruption Act, 1988.

6. Then, the Trial Court, after framing the charge, conducted the trial against theaccused and ultimately considering the oral and documentary evidence so also thematerial objects, convicted the accused for the said offences and sentenced toundergo Simple imprisonment for six months and also to pay a fine of Rs.500/-.

7. Being aggrieved by the said judgment and order of the Trial Court,appellant/accused has challenged the legality and correctness of the saidjudgment; and the appellant-State in another appeal challenged the sentenceimposed on the accused that it is inadequate and hence, sought for enhancementof sentence.

8. The appellants in respective appeals have challenged the judgment and order ofthe Trial Court on the grounds urged in their respective appeal memorandums.

9. Heard the arguments of the learned counsel appearing for appellant/accused inCrl.A.No.764/2009, who was also the counsel for the respondent inCrl.A.No.284/2010 so also heard the arguments of the learned Spl.P.P for therespondent- in Crl.A.No.764/2009, who was also the appellant inCrl.A.No.284/2010.

10. Learned counsel for the accused during the course of his arguments submittedthat the Police Inspector, who received the complaint has not been examined in thecase. He has also submitted that in the complaint there is no allegation thataccused demanded one acre of landed property as bribe. Prosecution has notproved that there was demand and acceptance of bribe amount by the accused.There is no specific mention in the complaint about the day or date on which thedemand for bribe was made. As per the materials on record, there was noapplication made either by PW-1 or by PW-7 for the change of katha. He has alsosubmitted that no work of complainant or his sister was pending with the accused.Therefore, the question of accused showing official favour to the complainant anddemanding and accepting the bribe amount does not arise at all. No sketch wasdrawn in respect of the place where the alleged offence said to have been takenplace. Ex.P-5, the explanation of the accused, was not at all put to him during thecourse of his examination under Section 313 of Cr.P.C. Hence, when there is noacceptable evidence regarding the demand and acceptance of bribe amount,question of raising presumption under section 20(1) of Prevention of CorruptionAct, does not arise at all. These aspects were not at all properly appreciated by the

Trial Court and the accused has been wrongly convicted. Hence, submitted toallow the appeal and to set-aside the judgment and order of conviction.

11. In support of his contention learned counsel for the appellant/accused hasrelied upon the following decisions filed along with memo dated 14.01.2015:

i. 2006 (3) KCCR 1445

ii. 2004 (2) KCCR 1233

iii. (2007) 3 SCC (Cri) 175

iv. 2002 Cri.L.J 2787

v. 1995 SCC (Cri) 509

vi. 1976 Cri.L.J 346

vii. AIR 1979 SC 1408

viii. (2009) 3 SCC 779

ix. (2011) 6 SCC 450

x. 2006 (3) KCCR 1422

xi. Crl.A.No.1339/2003

12. Per contra, the learned Spl.P.P appearing for the respondent-State, during thecourse of his arguments submitted that PW-1 has clearly deposed on oath beforethe Court that the accused demanded and accepted the bribe amount. The TrialCourt has properly appreciated the oral and documentary evidence and rightlyconvicted the accused person. No illegality has been committed nor there is anyperverse or capricious view taken by the Trial Court. Hence, submitted to dismissthe appeal preferred by the accused.

13. With regard to the State appeal is concerned, the learned Spl.P.P has submittedthat minimum sentence for the said offence is one year. Therefore, the Trial Courtimposed inadequate sentence as against the accused. Hence, the same is to beenhanced by allowing the appeal preferred by the State.

14. Learned Spl.P.P for the respondent- Lokayukta, in support of his argumentsrelied upon the following decisions filed along with memo dated 20.01.2015:

i. AIR 2011 SC 608

ii. Crl.A.2271/2011

iii. AIR 2012 SC 3359.

15. I have perused the oral evidence of PWs-1 to 7, documents Ex.P-1 to P-10 andEx.D-1 to D-1(a), Material objects M.O.s-1 to 7. I have also perused the groundsurged in the appeal memorandum, judgment and order passed by the Trial Courtand also the decision relied upon by the learned counsel for the accused and thelearned Spl.P.P for the respondent-State.

16. One Shamanna, filed the complaint on behalf of his elder sisterNagarathnamma. Perusing his oral evidence, who has been examined as PW-1, it isstated that on 31.07.2002 Vijay Kumar has asked him to give one gunta of land orto pay Rs.5000/- for change of katha into the name of his elder sister. Regardingthis demand of one gunta of land, it is for the first time that he has stated in hisdeposition and looking to the complaint Ex.P-1 there is no mention about thedemand for one guntas of land. In para 2 of his deposition, PW-1 has furtherdeposed that on 30.07.2002 being not satisfied to pay a sum of Rs.5000/-, he tookhis sister to Lokayukta office and consulted SP and other officer, produced therecord and SP said that the documents are in order and asked him to getRs.4000/-, which he has agreed to pay, and to come on the next day, that he willarrange for panchas. On 31.07.2002 they went to the Lokayukta office. Butperusing the entrustment mahazar and also the oral evidence of InvestigatingOfficer/PW-6, on 31.07.2002 at 4.30 p.m. complainant appeared before him andfiled typed complaint. He has also produced affidavit and produced some documentalong with the complaint. So it clearly shows that on 30.07.2002 PW-1 had not atall been to the Lokayukta office, the materials show that as per entrustmentmahazar Ex.P-2 and also the evidence of PW-6 and other witnesses, PW-1 had beento the office of the accused to enquire about the change of katha and as hedemanded the bribe amount then he went to the Lokayukta office on 31.07.2002 atabout 6.00 pm as per evidence of PW- 1. Therefore, these materials create doubton which day and at what time the appellant/accused demanded the bribe amountfrom the complainant/PW-1. If the evidence of PW-1 is taken into consideration, thedemand was on 30.07.2002, whereas the averments in the complaint, entrustmentmahazar and the evidence of PW-6/Investigating Officer, they shows that thedemand was on 31.07.2002. Therefore, there is inconsistency and contradictoryversion on the side of prosecution with regards to the date, time and place ofdemand of bribe amount is concerned.

17. In his oral evidence PW-1 has deposed that thereafter they proceeded in a car,left Bangalore by 8.00 a.m and reached Devanahalli by 9.00 a.m. Out of the twowitnesses, one was coming behind him and he does not remember his name. Thisevidence shows that even the complainant was not knowing the name of theshadow witness, who was asked to accompany the complainant to the residence orthe office of the accused person. To observe what is happening between thecomplainant and accused person, witness No.1/S.C.Basavaraj was asked toaccompany the complainant to the office of the accused. The averments of theentrustment mahazar Ex.P-2 also shows that on 31.07.2002 itself when thecomplainant had been to office of Lokayukta the witness Basavaraj andSidrajegowda also came to office of the Lokayukta office and they were introducedto the complainant and they have also enquired with the complainant about thecontents of the complaint. When that being the case of the prosecution as perEx.P2 entrustment mahazar, the evidence of PW-1 that one witness was comingbehind him and he does not remember his name, is difficult to accept.

18. With regard to demand and acceptance of bribe amount is concerned, PW-2Basavaraju deposed in his examination in chief that on 01.08.2002 they went againto the Lokayukta office and before they went, proceedings were recorded and hehas signed it as per Ex.P-2b. He has stated that they went to Devanahalli and hewas asked to accompany the complainant so he went along with complainant. Theywere instructed to give signal after payment of money by Shamanna. He did notaccompany into the house of AGO. Shamanna alone went and came out after 5minutes. Thereafter, he gave the signal. This witness was treated as hostile as perthe request of learned PP and when cross examined by PP it was not specificallysuggested to him that he was asked to accompany the complainant to theresidence/office of the accused to observe what is happening between the

complainant and accused and accordingly, he accompanied the complainant to theresidence of AGO. In view of this evidence of PW-2 the shadow witness so far asdemand of bribe amount is concerned, the only evidence is of PW-1/complainant. Ihave already observed that even with regard to the evidence of PW- 1 there is noconsistency. Because in the evidence of PW-1 it is deposed that on 31.07.2002accused Vijaykumar asked him to give one gunta of land to him or pay Rs.5000/- tohim.

19. Regarding the trap mahazar Ex.P-3 is concerned it is true, the evidence of PW-6 the Investigating Officer shows that on 01.08.2002 they all went to Devanahalliand reached Devanahalli by 9.00 a.m. by then the office of AGO was not yet openedas the AGO's house is opposite to Tahasildar's office, he sent the complainant andshadow witness to the house of AGO. After 25 minutes of such sending,complainant, shadow witness gave signal as the one suggested. So, himself and hisstaff and other panchas entered the house of AGO. He identified the accused alongwith his staff, informed him about the purpose of his visit to AGO. He tookassistance of his staff and got prepared sodium carbonate solution, a sample wassegregated on both the bowls, it was sealed in two empty bottles. Thereafter, theright and left hand wash of AGO was taken in remaining two separate blows ofsodium carbonate solution and the solution turned into pink colour. The saidsolutions were separately seized, sealed and labeled. He asked the AGO as towhere is the money given by the complainant, he identified the same, which wason the table. Second panch was directed to verify the note numbers, he verifiedfrom entrustment mahazar and said that it tallies. The said notes were seizedseparately. Thereafter, preparing one more bowl of sodium carbonate solution, thecomplainant's right hand was dipped and it also changed to pink colour. So hedeposed in detail about seizure of the amount by conducting the trap mahazar atthe said place.

20. During the course of cross-examination, he deposed that prior to 31.07.2002complainant has not come to his office. In the affidavit Nagarathnamma has saidthat she is aged and she cannot move personally on account of her age. He did notinstruct the complainant to get the affidavit. He admitted it as true that for changeof katha and preparing of sketch an application has to be filed. He further admittedas true that even before complainant reaching him the sketch was drawn. Hefurther deposed and admitted as true as per the deposition before the Courtcomplainant has said to the AGO at para 3, of bringing the money asked by theAGO. No such statement is found in the panchanama. He has further deposed,complainant has also not said of going into the house and bringing money from boxby the accused.

21. Looking to the document Ex.P-8 chemical examination report, that the handwash of the accused in the sodium carbonate solution of the right and left hand,presence of phenolphthalein was detected. The evidence of PW-6 no doubt showsthe seizure of tainted currency notes. But perusing the evidence of prosecutionwitness it has come on record that the amount was seized from the teapai anotherversion that amount has been seized from the box in the house of accused. Thethird version is that the amount was seized, which was kept on the table in thehouse of the accused. So there are three inconsistent version as per the case of theprosecution regarding the place from where the amount is said to have beenseized. PW-1 in his evidence in examination in chief has deposed that then policecaught hold of two hands of Vijaykumar, thereafter asked to him sit at the place,where he was sitting. Then he was asked to say about the money, where he haskept the money. The money was kept in a box, he went and brought the moneyfrom the box.

22. PW-2/Basavaraj, who is shadow witness according to prosecution case, deposedin his evidence in the examination in chief that he did not accompany Shamanna tothe house of AGO. Shamanna alone went and came out after 5 minutes thereafterhe gave signal, he also gave signal. Thereafter, staff came and they went jointly.Then Shamanna identified a person as Vijaykumar and said he has received money.Thereafter sodium carbonate solution was prepared in 2 bowls and sample wassegregated and both the hands of AGO were dipped separately and the wash of theAGO turned into pink colour. Thereafter, he was asked about the money and it waslying on teapai. Money was taken by them. He has not seen of Vijaykumar keepingthe money on the teapai.

23. PW-4/Siddrajegowda in his evidence in examination in chief deposed they werewaiting near the quarters at Devanahalli, an aged man went into the quarters andhe came out and gave the signal. He was asked to follow them. InvestigatingOfficer and his staff entered first, so he followed them. He found the money on thetable. The said person said that there is nothing pending with him. He was askedto take the cover and thereafter his hands were washed. The colour of the solutionchanged.

24. During the course of cross examination of PW-4, PW-4 has deposed that afterthe AGO removed the money, which was on the table and then gave it to theInvestigating Officer, the hands of the AGO were washed. So this material onrecord, also shows that the raiding party asked the accused to take out the moneyfrom the teapai or the table, accused took out the same, he gave it to theInvestigating Officer then the hand wash of accused was taken, which turned intopink colour. This material on record also raises reasonable doubt as to the case ofthe prosecution that the accused demanded the bribe amount and receivedRs.4,000/- bribe amount smeared with phenolphthalein powder and thereby theprosecution proved the case that there was demand and acceptance of bribeamount.

25. PW-5/Police Inspector deposed in his evidence that on 18.11.2002 he took upinvestigation from CW-13 and on 27.11.2002 received the FSL Report of this caseas per Ex.P-8. On 18.12.2002 prepared the final report and submitted to SP foraccording prosecution sanction and received the prosecution sanction as per Ex.P-7. In the cross- examination he deposed that the complainant or his sister has notfiled any application for change of katha, according to the records certified by him.

26. PW-6/CPI-Lokayukta Tumkur, deposed in his evidence that on 31.07.2002 at4.30 p.m. complainant appeared before him and filed typed complaint andproduced the affidavit and some documents along with the complaint and heregistered the case in Crime No.8/02. He has also deposed in detail about theentrustment mahazar as per Ex.P-2 and his signature is P-2d and further deposedas it was 7.30 by the time the entrustment mahaza was complete as the office ofAGO will be closed, asked the witnesses, complainant to come on the next day. On01.08.2002 all of them reported at 8.00a.m. the notes in the said pocket of thecomplainant were very same and they tallied with the entrustment mahazar. Hehas also deposed in detail about they proceeding to Devanhalli and laying the trapand drawing the trap mahazar as per Ex.P-3. He asked the AGO as to where is themoney given by the complainant. He identified the same, which was on the table.He has also deposed taking the hand wash of the accused in two separate bowls ofleft and right hand wash and the solution turning into pink colour, which wassecured separately, sealed and labeled. Thereafter, the notes were seizedseparately and sodium carbonate solution prepared in bowl, complainant's righthand was dipped and it also changed to pink colour.

27. In the cross examination, he deposed prior to 31.07.2002 complainant has notcome to his office. Complainant has also not said of going into the house andbrining the money from the box by the accused. After entering the house, he didnot observe whether the money was on the table or not. After entering the househe did not questioned the complainant or shadow witness as to where the moneyis?

28. Looking to the evidence of the prosecution witnesses, which is referred above,prosecution was also not able to prove exactly from which place the taintedcurrency notes were seized. In this regard evidence of prosecution witness is notconsistent and not worth believable.

29. It has come on record through the mouth of PW-5/Police Inspector, that noapplication for change of katha was found in the records certified by him. EvenPW-1 during the course of cross examination also admitted as true that himself orhis elder sister has not given any application for change of katha. This evidence ofprosecution makes it clear that there was no application given by the complainantor his sister seeking change of katha. Therefore, the accused person showing theofficial favour to the complainant and receiving the bribe amount does not arise atall.

30. Perusing the evidence of PW- 1/complainant, the examination in chief showsthat on 30.07.2002 being not satisfied to pay the sum of rs.5000 asked he broughthis sister to Lokayukta office. Whereas the Lokayukta police i.e., pw-6 clearlydeposed prior to 31.07.2002 complainant has not come to his office.

31. So according to the complainant the demand of bribe amount by the accusedwas on 30.07.2002 itself, if that is so, in the document Ex.D- 1, which is admittedlyexecuted by Nagrathnamma in favour of the complainant on 30.07.2002 the fact ofaccused demanding Rs.5000/- bribe amount could have been mentioned in Ex.D-1affidavit. But contents of Ex.D-1 shows that as she was old aged and cannot moveand to get the kahta transferred to her name, she is executing the power ofattorney in favour of M.Shammana the complainant.

32. So the contents of the Ex.D-1 also probablises the defence of accused that hehas not demanded nor accepted the bribe amount. It is true that as per the case ofprosecution the currency notes were seized from the teapai/table and hand wash ofaccused was taken in two separate bowls and the solution turns into pink colour.Prosecution has also produced the FSL Report as per Ex.P-8, which shows thatpresence of phenolphthalein was detected in the solution containing hand wash ofthe accused. Mere recovery of amount is not sufficient unless there is asatisfactory proof of demand and acceptance of bribe amount by the accusedperson.

33. Looking to the materials about which I have already discussed, this aspect isnot at all proved by the prosecution beyond reasonable doubt. About the evidencethat the hand wash of accused turned into pink colour which is also supported bythe oral evidence of PW-1 and PW-6 so also Ex.P-8 but there is also the evidencefrom the mouth of prosecution witnesses that the amount was on the teapai theraiding party asked the accused take out that money and to give it to theInvestigating Officer and thereafter his hand wash was taken. In view of thismaterial on record, no importance can be attached to the document Ex.P-8 so alsothe evidence of PW-1 and PW-6.

34. Perusing the entire materials on record and cumulative effect is appreciated itclearly shows that prosecution failed to prove that there was a demand and

acceptance of bribe amount by the accused. The Trial Court ignored all thesematerials, factual as well as the legal aspect and wrongly convicted the accused,the judgment and order of Trial Court is illegal and not sustainable in law. I haveperused the decisions relied upon by the learned Spl.P.P appearing for respondent-Lokayukta. In view of my above discussion, the decisions will not come to theassistance of respondent/complainant's case.

35. Hence, Crl.Appeal No.764/2009 is allowed. The judgment and order passed bythe Trial Court challenged in the said appeal is hereby set aside, theappellant/accused is acquitted of the charges leveled against him and he is set atliberty.

36. Consequently, Crl.Appeal No.284/2010 preferred by the State seekingenhancement of sentence is hereby dismissed.

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