Thursday, 24 December 2015

How to appreciate evidence of Govt panch witnesses in Trap case under prevention of corruption of Act?

Thus, the important witnesses are PW-1-the complainant, PWs-2 and 3 panchas and PW-5 Investigation Officer. Sofar as evidence of PW-1 complainant is concerned, he is treated as hostile witness since he has not supported his own case. Though he has spoken about the contents of the complaint to some extent here and there, that will take us nowhere near the charges levelled against the accused.
Of-course, PWs-2 and 3 have supported the case of the prosecution in its entirety. But the fact remains that both of them were Government servants working in the Department of Minor Irrigation. On the requisition of PW-5 Police Inspector, Lokayukta police station, they were deputed by the Executive Engineer to go to the police station and co-operate. Since they were Government Servants, they will have to support the case of the prosecution. If, for any reason, they turn hostile, they will have to face the consequences by way of disciplinary proceedings against them. Therefore, their evidence has to be considered and appreciated with reference to the evidence given by the complainant PW-1 and in the light of the fact that the panchas were the Government Servants. When the complainant went to the extent of deposing that he has not at all lodged the complaint and that the accused neither demanded nor accepted bribe money from him nor the accused was trapped, it is rather difficult to believe the evidence of PWs-2 and 3 to come to the conclusion that the accused demanded and accepted bribe money from the complainant.
Equivalent Citation: 2015(5)KarLJ435,2015(4) crimes 376 Karnat
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Crl. A. No. 165 of 2010
Decided On: 09.07.2015
Appellants: S.R. Chowdaiah
Vs.
Respondent: The State of Karnataka
Hon'ble Judges/Coram:P.D. Waingankar, J.


1. This appeal is directed against the judgment of conviction and order of sentence dated 11.1.2010 in Spl. Case No. 53/2002 on the file Special Judge, Mysore, whereby the appellant/accused has been convicted for the offences punishable under sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988(for short 'the Act') and has been sentenced to undergo one year imprisonment for the offence punishable under Section 7 and 2 years imprisonment for the offence punishable under Section 13(2) of the Act and to pay fine of Rs. 5,000/-.
2. The case of the prosecution is that the appellant (hereinafter called as 'accused') was working as Medical Officer at K.R. Nagar General Hospital in Mysore District. The cousin brother of the complainant(PW-1) by name Lakaiah and his wife Rajamma had consumed poison on 5.3.1999. The complainant brought and admitted them in K.R. Nagar General Hospital at about 11.00 p.m.The accused was the duty Doctor. He demanded a bribe amount of Rs. 500/- from the complainant for their treatment. He also informed the complainant that if the amount of Rs. 500/- is not paid, he would refer the patients to Government Hospital at Mysore. The complainant was not interested to give the bribe to the accused. So he lodged a complaint as per Ex-P1 before the Lokayukta police station, Mysore. On the basis of the complaint, PW-5-Santosh Kumar-Police Inspector Lokayukta police station, Mysore registered Crime No. 3/1999 for the offences punishable under Sections 7 and 13(2) of the Act and forwarded the FIR in a sealed cover to the Special Judge, Mysore. Thereafter, PW-5 arranged for trap. He secured the presence of the complainant in the police station and two panchas viz., PW-2- V. Kantharaju, Second Division Assistant working in Minor Irrigation Department, Mysore and PW-3 Seetharama Sharma working in the very same department. The complainant handed over three notes of Rs. 100/- denomination and four notes of Rs. 50/-denomination amounting to Rs. 500/- to PW-5. The notes were handed over to PW-2 to read the number of the notes. PW-3 another pancha noted down the number of all the notes. All the notes were smeared with phenolphthalein powder. The notes were entrusted to the complainant, who kept the same in his pocket. The importance of phenolphthalein test was demonstrated. A panchanama was drawn for having entrusted the notes smeared with phenolphthalein powder to the complainant PW-1 known as 'Entrusted panchanama' as per Ex-P2. Instructions were given to the complainant to go to K.R. Nagar hospital and approach the accused and if he again demands bribe amount, to hand over the tainted currency notes to the accused. PW-2 was instructed to accompany the complainant to the hospital and observe what transpires between the complainant and the accused and thereafter narrate the same to PW-5- Inspector. Thereafter, the police Inspector PW-5, the complainant PW-1, two panchas viz., PWs-2 and 3 went towards K.R. Nagar hospital in a jeep. The jeep was stopped at a little distance from the hospital, where all of them got down. PW-5 instructed the complainant and PW-2 to go to the hospital and approach the accused and if the accused still demands bribe amount, to hand over the tainted currency notes and if he accepts the notes to come out and give a signal by rolling the sleeves of his shirt. PWs-1 and 2 went to the hospital. PW-1 approached the accused, who in turn demanded the bribe amount of Rs. 500/-. The complainant handed over the tainted currency notes to the accused, who accepted the same by his right hand and kept in pant pocket. PW-1 came out from the chambers of the accused and gave a pre-arranged signal by rolling his sleeves to PW-5-Inspector and thereby PW-5 alongwith PW-3 another pancha and his staff rushed to the hospital and caught hold of the accused. They recovered tainted three currency notes of Rs. 100/-and four tainted currency notes of Rs. 50/- each from the pant pocket of the accused. On enquiry with PW-2 -a shadow pancha as to what transpired between the complainant and the accused, PW-2 narrated that the complainant approached the accused and enquired about the condition of the patients and at that time, accused again demanded bribe amount of Rs. 500/-. Then the complainant handed over the tainted currency notes to the accused, who in-turn accepted the notes through his right hand and kept in his pocket. The accused was asked to give his explanation. The accused in turn gave his explanation Ex. P5 in his hand writing stating that the said tainted currency notes have been thrusted in his pocket without demand for the same. When the contents of the statement Ex. P5 were read over to the complainant, he denied its correctness. The pant of the accused was seized by providing him an alternative pant. When the pant pocket of the accused was dipped in Sodium Carbonate solution, the solution turned into pink colour. A detailed trap panchanama was drawn as per Ex-P3, the accused was brought to the police station where he was arrested and produced before the Special Judge. The statements of the witnesses were recorded. The necessary case papers pertaining to the patients were secured from the hospital. The statement of the Pharmacist working in the hospital was recorded and after completion of the investigation, entire investigation papers were placed before PW-6- S.K. Thegginamani, Deputy Secretary, Minority Department to accord sanction to prosecute the accused. PW-6 upon going through the investigation papers, being satisfied that prima-facie case has been made out against the accused, accorded sanction to prosecute the accused for the offences punishable under sections 7 and 13(2) of the Act by issuance of a sanction order Ex-P14. After obtaining the sanction order, a charge-sheet came to be filed before the Special Judge, who in-turn took cognizance and issued process.
3. The accused appeared. He denied all the charges levelled against him. He was put on trial. The prosecution in order to prove the charges examined as many as seven witnesses as PW-1 to PW-7, marked Exs-P1 to P12 apart from M.Os.1 to 9. On behalf of the accused, certified copy of the Inpatients Register was marked as Ex-D1. The Special Judge upon hearing the submission made by both the learned counsel and on appreciation of evidence convicted the accused for the offences punishable under sections 7 and 13(2) of the Act and sentenced him to undergo simple imprisonment for one year for the offence punishable under section 7 and two years for the offence punishable under section 13(2) of the Act, apart from imposing fine amount of Rs. 5,000/- by judgment dated 11.1.2010.
Questioning the legality and correctness of the judgement of conviction and sentence, this appeal is preferred by the accused.
I have heard the learned counsel for the appellant-accused and the respondent-Lokayukta. Perused the records.
4. The learned counsel for the appellant-accused would submit that the prosecution has failed to prove the demand and voluntary acceptance of bribe money by the accused by cogent and convincing evidence; that the complainant, who has been examined as PW-1 has turned hostile to the prosecution case; the evidence of PWs-2 and 3 the so-called panchas cannot be believed for the reason that both of them are Government Servants and therefore, it cannot be ruled out that out of fear of disciplinary proceedings, they have deposed against the accused and above all, the accused has been exonerated in disciplinary proceedings initiated against him for the very same charge; their evidence is also not free from contradictions; the trial Court without proper appreciation of evidence passed an order of conviction which has led to miscarriage of justice. Hence, the learned counsel sought to set-aside the judgment of conviction and sentence and to acquit the accused of all the charges levelled against him. The learned counsel relied upon the decision of the Supreme Court reported in MANU/SC/0230/2010 : 2010 (4) SCC 450 in a case of Banarssi Das v. State of Haryana, wherein it is held that mere recovery of money from the accused by itself is not enough in the absence of substantive evidence of demand and acceptance.
5. Per-contra, the learned counsel for the respondent-Lokayukta would submit that though the complainant has turned hostile to the prosecution, the prosecution has proved demand and voluntary acceptance of bribe money by the accused by cogent evidence of PW.2 and PW.3 the panchas. Even otherwise, recovery of tainted currency notes from the pocket of the accused is proved by the Ex. P5 the statement of the accused given immediately after the trap, wherein he has stated that the money was thrusted upon him. The learned counsel relied upon the 5 Judge bench decision of the Supreme Court reported in MANU/SC/0704/2012 : 2012 AIR SCW 4815 in the case of State of N.C.T of Delhi v. Ajay Kumar Tyagi, wherein it is held that exoneration in Departmental proceedings ipso facto would not lead to exoneration or acquittal in a criminal case.
6. In order to bring home the guilt of the accused, the prosecution examined seven witnesses. PW-1- S.M. Nagaraju is the complainant, who has turned hostile to the prosecution case. PW.1 went to the extent of deposing that he has not lodged any complaint against the accused with regard to demand and acceptance of bribe by the accused or for that matter recovery of tainted currency notes. He was treated as hostile witness by the prosecution and a detailed cross-examination was made. All the suggestions made in the cross-examination have been denied. The suggestion made to him that he went to the hospital, enquired to the accused about the health of the patient, the accused told him that he has given medicine worth Rs. 500/- to the patients which he has to repay the accused. He has also denied the suggestion as false that he decided not to give bribe amount of Rs. 500/- to the accused, lodged the typed complaint at about 3.30 p.m., on that day as per Ex-P1. Though he has admitted his signature at Ex-P1 complaint, in para 3 of his evidence, he has admitted as true that the police secured two panchas after Ex-P1 was lodged; that they were introduced to him; that he gave Rs. 500/- i.e., three notes of Rs. 100/-denomination and four notes of Rs. 50/- denomination and one of the panchas counted the notes and disclosed the notes to another pancha who noted the same. He also admits that phenolphthalein powder was applied to those notes. He has pleaded complete ignorance as to whether the very same powdered coated notes were counted and verified by the panchas. Though he admits that the notes were kept in the shirt pocket of the complainant, he has admitted for having put his signature at Ex-P2 entrustment panchanama. But he pleaded ignorance that whether it was signed by panchas. Further, he admits in para 4 of his evidence that he went and approached the accused and requested the accused not to discharge the patients, since he paid Rs. 500/- and accused accepted those notes by his right hand and kept on the table. He has denied the suggestion that the accused had kept those notes in his pant pocket. Further, he stated that he does not know whether the police came after he gave the signal, identified the accused for demand and acceptance of bribe from him and that the accused was apprehended. Further, he has deposed that he does not know whether hand wash of the accused was taken in a Sodium Carbonate solution, which turned into pink colour, since he was outside the hospital. He has further deposed that he does not know whether the police seized the powdered coated notes from the pant pocket of the accused and as to whether the pant of the accused was seized and the pocket was washed in the Sodium Carbonate solution. He has categorically deposed as false that the accused demanded and accepted bribe amount of Rs. 500/- and he lodged the complaint against him. He has also deposed as false that the proceedings under Ex-P2 entrustment panchanama and Ex-P3 trap panchanama were conducted at his instance in pursuance of his complaint. He has also denied the suggestion that the accused demanded and received bribe amount of Rs. 500/- from him and he was trapped.
7. In his cross-examination by the counsel of the accused, a futile attempt has been made to show that one Shashi, Lab Technician and one Lokesh, who were working in a private hospital opposite to Government hospital, took the complainant to the Lokayukta office, where the complainant gave Rs. 500/- to Shashi in the Lokayukta office. In the cross-examination, PW-1 stated that he does not know what was done in the office, though he admits his signature having taken in some of the papers. Thus, upon closer scrutiny of the evidence of PW-1-a hostile witness, the only conclusion that can be reached is that the complainant is not a reliable witness. He has given complete go-bye to the contents of his complaint. His evidence is of no assistance to the prosecution either to prove the demand of bribe amount or to acceptance of bribe amount by the accused.
PW-2 V. Kantharaju is examined as Shadow witness. His evidence is that he has been working as Second Division Assistant in the office of Minor Irrigation in 1999. On 6.3.1999, he was directed to go to Lokayukta police station by the Executive Engineer alongwith PW-3 Seetha Rama Sharma- another official working in the same department. When PWs-2 and 3 had been to Lokayukta office, the complainant was very much present. The contents of the complaint were read over to the complainant in the presence of PW-3, thereafter, entrustment panchanama was drawn followed by trap panchanama for having trapped the accused while accepting the bribe amount of Rs. 500/-from the complainant. If we read the evidence of PWs-2 and 3, both of them have by and large supported the case of the prosecution in its entirety. But the fact remains that the complainant, who lodged the complaint has turned hostile to the prosecution case. Moreover, both the panchas are Government Servants and being Government servants, there is likelihood that they would support the prosecution against the accused because of fear of initiation of disciplinary proceedings, if they do not support the prosecution case. Be that as it may, the evidence of PWs.2 and 3 pancha to entrustment panchanama and trap panchanama respectively has to be appreciated with reference to the evidence of PW. 1 the complainant and not in isolation. Further, the accused has been exonerated in disciplinary proceedings initiated against him for the very same charges where the standard of proofs is lower than that of criminal prosecution.
PW-4 S. Swamy, was working as Senior Pharmacist in K.R. Government Hospital. He admits that the accused is known to him. He was working as District Health Officer. He has admitted the trap of the accused, but he has deposed that he was not present at the time of trap. Further, he has admitted that when the relatives of the complainant were admitted on account of consumption of poison, the injection required for the same were stocked in the hospital and that there was documentary evidence for having administered five such injections to the patients who were the relatives of the complainant by the incharge duty Doctor.
PW-5 Santosh Kumar is the police inspector, Lokayukta police station. He has spoken about the detailed proceedings conducted by him in his office which culminated into an entrustment proceedings Ex-P2. He has also spoken in detail as to how the accused was trapped while accepting bribe from the complainant in the presence of panchas, recovery of notes from the pant pocket of the accused, statement given by the accused by way of explanation as per Ex. P5 as to how he came in possession of notes, the trap panchanama that was drawn as per Ex-P3 and filing of the charge-sheet after obtaining sanction from the competent authority.
PW-6 S.K. Thegginamani is the Sanctioning Authority, who has spoken about the grant of sanction to prosecute the accused under the provisions of the Prevention of Corruption Act. There is no challenge to the sanction order Ex. P14.
PW-7 M. Krishnappa, Incharge Police Inspector in Lokayukta police station, who took up further investigation from PW-5 and upon securing the sanction order from the competent authority filed charge-sheet against the accused person for the aforesaid offences.
8. Thus, the important witnesses are PW-1-the complainant, PWs-2 and 3 panchas and PW-5 Investigation Officer. Sofar as evidence of PW-1 complainant is concerned, he is treated as hostile witness since he has not supported his own case. Though he has spoken about the contents of the complaint to some extent here and there, that will take us nowhere near the charges levelled against the accused.
9. Of-course, PWs-2 and 3 have supported the case of the prosecution in its entirety. But the fact remains that both of them were Government servants working in the Department of Minor Irrigation. On the requisition of PW-5 Police Inspector, Lokayukta police station, they were deputed by the Executive Engineer to go to the police station and co-operate. Since they were Government Servants, they will have to support the case of the prosecution. If, for any reason, they turn hostile, they will have to face the consequences by way of disciplinary proceedings against them. Therefore, their evidence has to be considered and appreciated with reference to the evidence given by the complainant PW-1 and in the light of the fact that the panchas were the Government Servants. When the complainant went to the extent of deposing that he has not at all lodged the complaint and that the accused neither demanded nor accepted bribe money from him nor the accused was trapped, it is rather difficult to believe the evidence of PWs-2 and 3 to come to the conclusion that the accused demanded and accepted bribe money from the complainant. Moreover, it is submitted that in the Departmental proceedings initiated against the accused in respect of very same charges, he has been exonerated, meaning thereby, the charges levelled against the accused proved to be false. Of-course in a decision of the Supreme Court relied upon by the learned counsel for the respondent-Lokayukta reported in MANU/SC/0704/2012 : 2012 AIR SCW 4815, it has been held that exoneration in Disciplinary proceedings ipso-facto would not lead to exoneration or acquittal in a criminal case. The accused in this case is seeking his acquittal not only on the ground that he has been exonerated in Departmental proceedings, but he seeks his acquittal having regard to the evidence placed on record by the prosecution especially that of complainant PW. 1 apart from his exoneration in Departmental proceedings. The decision relied by the learned counsel for the respondent-Lokayukta reported MANU/SC/0704/2012 : 2012 AIR SCW 4815 cannot be made applicable to the facts of this case. The facts of the case involved in the said decision are that one Ajay Kumar Tyagi who was workings as Junior Engineer with the Delhi Jal Board demanded bribe amount from one Surinder Singh, a police constable with the Delhi Police for water connection in the name of his wife. He lodged a report with Anti-Corruption Branch, thereby a trap was laid, the accused demanded and accepted bribe of Rs. 1,000/-. A case was registered under Sections 7 and 13(2) of Prevention of Corruption Act. Investigation was completed, sanction obtained and charge-sheet was filed. Against the very same charges, Departmental Proceedings were initiated against the accused, an enquiry was held and the report was submitted by the Enquiry Officer to Disciplinary Authority to the effect that charge is not proved. But, the Disciplinary Authority did not act upon the Enquiry Report for a quite long period of time probably for the reason that criminal case was pending before the Special Judge. The accused filed writ petition to direct Disciplinary Authority to act on the report submitted by the Enquiry Officer. A mandamus was given, whereby the report of the Enquiry Officer was accepted by Disciplinary Authority and exonerated the accused in the Departmental Proceedings. Accused filed a petition under Section 482 of Cr.P.C. before the High Court to quash criminal proceedings before Special Judge on the ground that he has been exonerated in respect of the very same charge in the Departmental Proceedings. The High Court allowed the petition under Section 482 of Cr.P.C. and quashed the criminal proceedings pending before the Special Judge. It is this order passed by the High Court is challenged before the 5 Judge bench of the Supreme Court. The Supreme Court upon referring to all the earlier decisions held that exoneration in Departmental Proceedings ipso facto would not lead to exoneration or acquittal in a criminal case.
10. The decision of the Supreme Court cannot be made applicable to the facts of this case for the reason that we are dealing with a criminal appeal against a conviction of the accused in a trap case. We are not dealing with an application under Section 482 of Cr.P.C. to quash the proceedings before the Sessions Judge at the threshold. But, the fact remains that criminal cases have to be decided on the basis of the evidence adduced therein. The exoneration of the accused in Departmental Proceedings is one of the circumstances in favour of the accused to seek an order of acquittal. Thus, from the nature and quality of evidence placed on record by the prosecution and in view of exoneration of the accused in Departmental Proceedings initiated in respect of the very same charge where the burden to prove is rather less, it is difficult to hold that the prosecution has been able to prove the demand and acceptance of bribe and recovery of tainted currency notes from the accused. Moreover, the prosecution has not made an attempt to involve independent witnesses. Under such circumstances, the learned Special Judge ought to have acquitted the accused by giving benefit of doubt. On re-appreciation of evidence, I am of the considered view that the case as made out by the prosecution is shrouded with doubt and the benefit of doubt should go to the accused.
11. Accordingly, I pass the following:-
ORDER
The appeal is allowed. The judgment dated 11.1.2010 in Special Case No. 53/2002 on the file Special Judge, Mysore convicting the accused and sentencing him for the offence punishable under sections 7 and 13(2) of the Act is hereby set-aside. The appellant-accused is acquitted of all the charges levelled against him.
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