Akilesh Kumar vs CBI and Another

P.S. Gopinathan, J.—The appellant, a former telephone mechanic in the office of the Junior Telecom Officer, Bharat Sanchar Nigam Ltd. (BSNL), Ichilamkode Telephone Exchange, Kasaragod was found guilty by the Special Judge (SPE/CBI)-II, Ernakulam, for offences u/s 7 and 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act (hereinafter referred to as PC Act''). Consequently, he was convicted and sentenced to rigorous imprisonment for six months and a fine of Rs. 3,000/- u/s 7; and rigorous imprisonment for one year and a fine of Rs. 5,000/- u/s 13(2). Assailing the above conviction and sentence, this appeal was filed. The facts leading to the case is that PW 3, a resident of Kasaragod District, was doing business at Sullia in Kamataka. His cousin, who was examined as PW 1, then a painter, was managing the affairs at Kasaragod. PW 3 applied for a telephone connection under the OYT scheme. Pursuant to that application, he was served with Ext. P 7 demand notice to deposit Rs. 10,000/-. Accordingly, deposit was made. Thereafter, he got Ext. P1 intimation which was entrusted to PW 1 for further follow up action. On 12.5.2001, PW 1 met the appellant at his office. He verified the records and replied that connection would be given on that day itself. The appellant asked to fetch a taxi jeep. PW 1 readily obeyed. The appellant took a phone set and required cables, and proceeded to the house of PW 3. The appellant inspected the house and went out stating that he had to call his officer. He went to the neighbour''s house to telephone the officer. After call, the appellant demanded a sum of Rs. 1,500/- as illegal gratification. When PW 1 stated that he could reply only after contacting PW 3, the appellant stated that atleast Rs. 1,000/- should be paid. The appellant returned with the telephone set and the connected equipments stating that connection would be given as and when the money was paid. When intimated, PW 1 was told by PW 3 that connection need not be obtained after giving bribe and PW 1 was asked to take appropriate steps. He went to the State Vigilance Office at Kasaragod They directed to complain before the CBI. Telephone number was also provided to PW 1. PW 1 telephoned to the CBI Office a Kochi, which was attended by PW 6, an Inspector. PW 1 only complained that an officer in the Telephone Exchange was demanding bribe. He did not disclose the name of the officer and stated that he would disclose the name only after somebody was sent. PW 3 deputed the Assistant Sub Inspector (ASI) one Radhakrishnan who contacted PW 1 at his residence and ascertained that it was a genuine complaint. The matter was intimated to PW 6. PW 6 rushed to Kasaragod with other officials. AST was asked to find out PW 1. PW 1 by the time contacted the appellant who replied that since it was raining on that day, the connection would be given on the next day. The appellant repeated his demand. PW 6 was informed about the message from the appellant. PW 1 was asked to meet PW 6 at Enay tourist home in room No. 208 where PW 6 was camping. On 22.5.2001, PW 1 went to PW 6 and submitted a written complaint, which was marked as Ext. P2. PW 6 took a photocopy of the same and forwarded Ext. P2 through a messenger to Cochin to register a case. By the time, PW 6 had made arrangements to trap the appellant. He secured the presence of two independent witnesses of whom one was examined as PW 2. PW 6 demonstrated Phenolphthalein test. PW 1 had brought Rs. 1,000/-, namely one 500 rupee note and five 100 rupee notes which were marked as Mo 1 series. Notes were smeared with phenolphthalein powder and put it in the pocket of PW 1, through one Sivadasan, an officer of the Canara Bank, who was summoned along with PW 2 to witness the trap, with instruction to PW 1 to pay it only if demanded. Ext. P3 entrustment mahazar was prepared. PW 6 along with PW 1 and independent witnesses proceeded to the house of PW 3. They took position in the neighbourhood. PW 1 was sent along with PW 2 with instruction to shadow PW 1. Accordingly, PW s 1 and 2 waited for the appellant at the house of PW 3. Since the appellant didn''t turn up, PW 1 telephoned the appellant The appellant replied that since it was raining, he was late and that would be reaching soon. The appellant enquired whether there was any person along with PW 1, to which, PW 1 replied that his friend was there. The appellant asked PW 1 to send the friend away. Accordingly as instructed by PW 6, PW 2 joined the trap party. A little later, the appellant along with a worker arrived and connection was given. After giving connection, the appellant called PW 1 to a side room and repeated the demand for bribe. PW 1 took out MO 1 series and handed over. The appellant accepted the same with his right hand, put it in the back side pocket of the pants and requested PW 1 to fetch an autorickshaw to return. PW 1 came out and conveyed signal by combing hair as instructed by PW 6. Getting signal, PW 6 along with PW 2 and others rushed to the house. Seeing PW 6, the appellant took out MO 1 series and threw away to the side of the window. PW 6 disclosed his identity by showing the identity card. PW 2 and others were also introduced and asked whether the appellant had accepted bribe from PW 1, to which the appellant answered negatively. PW 6 took Sodium Carbonate solution and the hands of the appellant were subjected to Phenolphthalein test. Right hand responded to test. The appellant was arrested. The currency notes thrown away by the appellant were seized, for which Ext. P4 recovery mahazar was prepared. The identity of the currency notes were verified with reference to Ext. P3 entrustment mahazar and satisfied that the currency notes seized from the spot are the same that was entrusted to PW 1 as per Ext. P3. Ext. P5 rough sketch was prepared. The investigation was taken over by PW 8, who after completing the investigation submitted the charge sheet alleging the earlier mentioned offences.

The appellant, who was later released on bail, responding to the process issued by the learned Special Judge after taking cognizance, entered appearance. Copy of the final report and the connected documents were furnished. Either side was heard. Finding that there are materials to send the appellant for trial, charge for the said offences was framed. The appellant pleaded not guilty when the particulars of the charge sheet was read and explained. Therefore, the appellant was sent for trial. On the side of the prosecution, PW s 1 to 9 were examined. Exts. P1 to P21 and material objects MOs 1 to 7 were marked After closing the evidence for the prosecution, the statement of the appellant was recorded u/s 313(1)(b) of the Code of Criminal Procedure. He denied the incriminating evidence. But, he admitted his official status. In a separate written statement, the appellant stated that he saw PW 1 on 15.5.2001. When PW T requested to provide the connection at the earliest, PW T was told that the cable laying work was over by 13.5.2001 and in the event the Junior Telecom Officer (JTO) was contacted PW T would get the connection. On 22.5.2001, the JTO called on the appellant and asked to give connection. Since there was tool down strike on that day, the appellant stated that the connection would be given on the next day. But JTO insisted the appellant to give connection on the same day itself. Obeying the instruction given by the JTO, the appellant proceeded to the house of the subscriber along with helper Rajasekharan and connection was given. After giving connection, while he was sipping a cup of tea PW 1 thrust some money into the pocket of the pants. The appellant took out the same and returned. PW 1 stated that if he didn''t want the money, let it be given to the helper. Stating that it was not possible the appellant put down the money at the floor. While the appellant was preparing to return, the CBI officers, rushed and asked whether the appellant had accepted any money from PW 1. The appellant stated that he had not accepted any amount and that the money was on the floor. The appellant was asked to point out the money and he was pulled inside the house. By the time somehow or other the money was flown beneath a table. Since the notes were not found, the appellant was beaten by the CBI officer. By the time PW 1 took out the tainted notes from the bottom of the table and handed over to PW 6. Responding to the call to enter his defence, the JTO and a telephone mechanic were examined as DWs 1 and 2. The learned Special Judge on appraisal of the evidence arrived at a conclusion of guilt, consequent to which the impugned conviction and sentence were imposed.

I have heard Sri.-Salish, Aravindakshan, the learned counsel appearing for the appellant and Sri. P. Chandrasekharan Pillai, the learned standing counsel for the CBI.

The fact that the appellant was a telephone mechanic in the office of the JTO, BSNL, Ichilamkode Telephone Exchange, Kasaragod was not only not disputed but admitted. It was brought out by the evidence of PW 5 that the appellant was working as a telephone mechanic under him. The finding of the lower court that the appellant was working as a telephone mechanic and in that capacity he would be a public servant as defined u/s 2(c) of the PC Act was not assailed before me in this appeal In the above circumstance, I concur with the trial court and find that the appellant was a telephone mechanic as alleged by the prosecution and as such he was a public servant coming u/s 2(c) of the PC Act.

The evidence of PW 7, Assistant General Manager (Administration) BSNL would show, that he was the authority competent to appoint and remove the appellant from office and that he got the copy of the final report along with the connected documents and after verifying the records he issued Ext. P16 order according sanction to prosecute the appellant The evidence of PW 7 and Ext. P16 was also not assailed by the learned counsel for the appellant Having gone through Ext. P16 and the evidence of PW 7, I find no reason to reject the evidence of PW 7 or Ext. P16. Therefore, I concur with the trial court and find that the appellant was prosecuted with due sanction as contemplated u/s 19 of the PC Act.

In support of the charge, the prosecution would rely upon the testimony of PW s 1, 2 and 6 coupled with Exts. P3 and P4 Mahazar. PW 1 would depose that his cousin PW 3 had applied for a telephone connection under the OYT scheme, for which he had deposited Rs. 10,000/- and that on deposit, Ext. P1 intimation was given to PW 3. Since PW 3 was doing business at Sullia, PW 1 was looking after the affairs of the house of PW 3 at Heroor in Kasargod District. PW 3 entrusted Ext. P 1 to PW 1 with request to take necessary steps for getting the connection. PW 1 would further depose that on 12.5.2001 he went to the telephone exchange and met the appellant with Ext. P1. The appellant got Ext. 1 from PW 1. After verifying the registers, the appellant offerred to give connection on the same day. As requested by the appellant a taxi jeep was called by PW 1. The appellant with a telephone set and cables accompanied PW 1 to the house of PW 3. After inspecting the house, he went out stating that the he wanted to contact the officer. PW 1 followed the appellant. The appellant, while returning to the house of PW 3, after telephoning demanded Rs. 1500''- as illegal gratification. PW 1 stated that he could not give without contacting PW 3. Hearing that, the appellant left the scene with telephone set and cables. When contacted. PW 3 told that PW 3 didn''t want connection by paying bribe and PW 1 was requested to take appropriate steps. Further evidence of PW 1 is that he went to the local vigilance office, from where it was told that PW 1 had to contact CBI at Cochin for which telephone number was provided. PW 1 contacted the CBI office at Cochin. Responding to the call PW 6, the Inspector, enquired about to which PW 1 stated that an employee in the telephone exchange had been demanding bribe. Though PW 6 asked to disclose the name of the officer demanding bribe, PW 1 told that he would disclose only if somebody was sent to him. Thereafter, one Radhakrishnan, a subordinate of PW 6, met PW 1 and ascertained the facts. After ascertaining the facts, Radhakrishnan told PW 1 that he would further contact him after discussing the matter with the superior officers. On 21.5.2001, PW 1 was again contacted and asked to meet PW 6 who was camping in room No. 208 of Enay tourist home, Kasargod. PW 1 met the appellant at about 4.30 p.m. PW 1 was told that since it was heavily raining, the connection could be given on the following day. The appellant repeated his demand for bribe and stated that connection would be provided only on payment of the money. On the following day at about 8 a.m., PW 1 went to Enay Tourist Home, met PW 6 and gave Ext. P2 written complaint. PW 1 would further depose that after taking a copy, Ext. P2 complaint was sent to the office. PW 6 had arranged PW 2 and one Sivadasan as witnesses. In their presence Phenolphthalein test was demonstrated. PW 6 took MO 1 series from PW 1, smeared with some powder and returned with instruction to hand over the same to the appellant only on repetition of demand. One of the witness who handled MO 1 was asked to dip his hands in a solution taken in a glass. The colour of the solution turned pink. Ext. P3 mahazar was prepared by PW 6 in which PW 1 had attested. Thereafter, PW 1 along with PW 6 and other witnesses proceeded to the house of PW 3. PW 2 was asked to shadow PW 1. PW 1 was instructed to introduce PW 2 to the appellant as a friend. PW 6 and party took position in and around the neighbourhood. Though they waited till noon, the appellant didn''t turn up. When informed to PW 6, PW 1 was advised to contact the appellant over phone. Accordingly, PW 1 contacted the appellant over phone and came to understand that the appellant would be reaching soon. The appellant enquired whether there was any other person in the house. When PW 1 mentioned about PW 2, the appellant asked PW 1 to send him away. When this message was informed to PW 6, PW 6 called back PW 2 to the team. The appellant along with one helper reached there and connection was given. After giving connection, the appellant demanded bribe. Then PW 1 took out MO 1 series and gave it to the appellant which he accepted with his right hand, kept inside the back pocket of the pants and requested PW 1 to fetch an autorickshaw to return. PW 1 came out and conveyed the signal. PW 6 along with PW s 1, 2 and others rushed to the house. Seeing PW 6 and the party, the appellant took out the currency notes from his pocket and threw away to the side of the window. PW 6 introduced him and others to the appellant When asked whether the appellant had received any money from PW 1, the appellant answered negatively. the hands of the appellant were subjected to Phenolphthalein test to which the right hand responded Both the solutions were sealed in separate bottles. When asked about the money, the appellant pointed out the currency notes to the CBI officers. As asked by PW 6, one of the witnesses took MO 1 series, the identity was verified with reference to Ext. P3 and satisfied that the currency notes were the same mentioned in Ext. P3. After providing a Dothi to the appellant, the investigating officer got the pants of the appellant and the pocket of the pants was tested with the liquid. The pocket side of the pants became pink. The solution was taken in a bottle and sealed. A mahazar was prepared in which he had affixed his signature. Ext. P4 was identified as the mahazar.

PW 2 is an Assistant Administrative Officer employed in New India Assurance Company, Kasaragod Branch. He would depose that as asked by the Branch Manger he had been to the office of PW 6. One Sivadasan from Canara Bank was also there. They were appraised about the complaint of PW 1. MO 1 currency notes were obtained from PW 1 and phenolphthalein test was demonstrated. PW 2 would further depose that after smearing phenolphthalein powder over MO 1 series it was put inside the pocket of PW 1 through Sivadasan with instruction that PW 1 should not touch it except for giving to the appellant Ext. P 3 mahazar was prepared wherein he is an attester. PW 2 was requested to shadow PW 1 and to witness the transaction between PW 1 and the apellant Thereafter they proceeded to the spot PW 6 and party took positions. PW 2 was sent to the house of PW 3 along with PW 1. Though they waited till noon the appellant didn''t turn up. As instructed by PW 6, PW 1 telephoned the appellant After telephoning, PW 1 stated that the appellant would reach within half an hour, PW 6 instructed PW 2 to leave the house and to join them. He would further depose that by about 3 p.m. the appellant reached there in an autorickshaw along with a helper and connection was given. By about 4.30 p.m. PW 1 came out and conveyed the signal as instructed by PW 6. Getting signal PW 6 along with PW 1 and PW 2 rushed to the house. Seeing PW 6 and others the appellant took out currency notes from the pocket of the pants and threw away to the side of window. Thereafter, the hands of the appellant were subjected to Phenolphthalein test. Test on the right hand responded and that M03 is the solution used for phenolphthalein test M04 is the solution used for phenolphthalein test on the left hand. The appellant was provided a dothi and got the punts. Pocket of the pants was subjected to phenolphthalein test which also responded and that M05 is the solution. M06 is the pants. PW 2 would further depose that the currency notes thrown by the appellant was taken by Sivadasan as instructed by PW 6 and the identity was verified with reference to Ext. P 3. The appellant was arrested and Ext. P4 mahazar, wherein PW 2 is an attestor, was prepared. A search of the house was also-made by PW 6. M07 was identified as the clothes used for sealing M03 and M04 bottles.

PW 3 would depose that he is a cousin of PW 1 and that he who was having business at Sullia in Karnataka had applied for a telephone connection and that Ext. P 6 is the application form and responding to Ext. P7 demand notice, Rs. 10,000/- was deposited and that in the absence of PW 3, PW 1 was looking after the affairs and that Ext. P1 is a communication received from the telephone department and that it was entrusted to PW 1 for follow up action and that on 15.5.2001, PW 1 informed over phone that the lineman was demanding Rs. 1,000/ as bribe. PW 3 instructed PW 1 not to pay bribe, but to take appropriate steps for getting the connection.

PW 4, the Assistant Director in the office of the Chief General Manager, Telecom would prove Ext. P6 application and Ext. P7 memo. He would depose that Ext. P7 is the memo issued to the customer and that copy was forwarded to the JTO for providing connection and that Ext. P8 is an advice memo issued and that the department was bound to give connection within six months.

PW 5 would depose that he was Junior Telecom Officer (JTO) having charge over the Ichilamkode Exchange during the year 2001 and that upon receipt of Ext. P 8 it was noted in the advice note book, which was marked as Ext. P9 and that Ext. P9(a) (serial No. 4) is the entry relating to Ext. P8, and that on getting advice, connection should be given to the party subject to the feasibility and that the appellant was instructed to give connection. He would further prove Ext. P10 attendance register and Ext. P 11 stores register. He would also depose that PW 3 was entitled to get telephone connection in accordance with the seniority and that the appellant had not informed PW 5 regarding any non-feasibility.

PW 6 had given evidence corroborating with the evidence of PW s 1 and 2 regarding the trap.

PW 8, the Inspector, CBI, had investigated the case and submitted the chargesheet Ext. P17 was proved as the FIR registered on the basis of Ext. P 2. PW 9 was the night watchman who was accompanying the appellant as a helper for providing the connection. He would depose that he was along with the appellant for providing connection to PW 3 and that after providing connection the appellant was apprehended by the CBI.

The evidence of PW 1 which I mentioned earlier would show that the appellant demanded Rs. 1,000/- as illegal gratification for providing telephone connection to PW 3. The demand was on 12.5.2001. Initially the demand was for Rs 1500/-. When PW 1 stated that it was for PW 3 to decide, the appellant reduced his demand to Rs. 1000/-. PW 3 had deposed that on 15.5.2001, PW T had telephoned him and reported that the lineman was demanding Rs. 1,000/- as bribe. Evidence of PW 3 is relevant u/s 6 of the Evidence Act. In Ext. P2, PW 1 had stated in unambiguous terms that the appellant demanded Rs. 1,500/- for providing connection and later it was reduced to Rs. 1,000/-. Regarding the demand, there is only the evidence of PW s 1, 3 and Ext. P 2. The further evidence of PW 1 would show that on 22.5.2001 after providing telephone connection the appellant repeated the demand and it was then MO 1 series were handed over to the appellant which he accepted with his right hand and kept inside the pocket of the pants. Though PW 2 was sent along with PW 1 to oversee and overhear the transaction between the appellant and PW 1, later PW 2 was withdrawn by PW 6 when PW 1 stated that the appellant asked to sent out the person who was along with PW 1. So, regarding the acceptance by the appellant, there is no direct evidence other than that of the evidence of PW 1. The evidence of PW 1 would further show after the appellant accepting the tainted currencies, PW 1 came out and conveyed signal. The evidence of PW s 2 and 6 would show that on getting signal they rushed to the house of PW 3 along with Sivadasan and PW 1. PW s 1, 2 and 6 are harmonious that seeing them the appellant took away the tainted notes from the pocket of pants and threw to the side of the window. Carefully going through that much evidence, I find no reason to disbelieve. It instil confidence. That evidence would show that till PW 6 and party rushing to, the appellant was keeping that amount in his pocket It is an indication that the appellant voluntarily accepted the same. It was thrown only when PW 6 and party rushed to on apprehending that he would be caught redhanded. the evidence of PW s 1, 2 and 6 would further show that when the hands of the appellant was subjected to phenolphthalein test the right hand responded and the solution turned pink. Regarding the entrustment of MO 1 series to PW 1 for giving as bribe on demand, the evidence of PW 1, 2 and 6 is corroborated by Ext. P3. Ext. P3 contains the description of the tainted currency notes. After phenolphthalein test on the hands of the appellant, when PW 6 asked the appellant as to where was the money received from PW 1. the appellant pointed out MO 1 series lying near the window. The evidence of PW s, 1,2 and 6 would show that PW 6 asked Sivadasan, an officer of the Canara Bank, to take it, it was taken out verified and satisfied that the currency notes are the same entrusted to PW 1 as per Ext. P3. The evidence of PW s 1, 2 and 6 also would show that the pocket of the pants of the appellant was subjected to phenolphthalein test which also responded and the pocket of the pants turned pink. The evidence of PW s 1, 2 and 3 on that aspect was corroborated by Ext. P4 recovery mahazar. By the above evidence recovery is established beyond doubt The question then remains is whether the above evidence is believable to come to a conclusion of the guilt of the appellant.

The defence that PW 1 deliberately thrust MO 1 series into the pocket of the appellant despite his resistance and that the appellant soon threw away MO 1 series from his pocket is belied by the evidence of PW s 1, 2 and 6 that seeing PW 6 and party the appellant took out MO 1, series from the pocket and threw away. That defence would show that in fact the appellant did concede that he had touched MO 1 currency notes. Therefore, the evidence of PW s 1, 2 end 6 that the right hand of the appellant and the pocket of the pants of the appellant responded to phenolphthalein test is believable. Referring to the evidence of PW 5, it was argued by the learned counsel that on 12.5.2001 the appellant was on field duty from the early office hours; and that he had taken two telephone sets and equipments for providing connection to OYT 84 and 85 and according to PW 5 it would take about 9 hours for providing connection. Basing upon that evidence, the learned counsel would submit that there was little chance for PW 1 meeting the appellant on 12.5.2001 to make a demand for bribe. I have carefully gone through the evidence of PW s 1 and 5. The consistent evidence of PW 1 is that he contacted the appellant on 12.512001. In cross examination, it was stated that to his memory it was by about 11.30 a.m. - 12''o clock. In Ext. P 2 it is slated that it was at 10 a.m. PW 1 met the appellant first time. Whatever may the time, the evidence of PW 5 is not at all convincing to come to a conclusion that the appellant had never come to the office on 12.5.2001. Probably, PW 5 might not have seen the appellant on that day. That does not mean that the appellant was not available in the office, or that PW T had not met the appellant on 12.5.2001. At this juncture it is crucial to note that PW s 4 and 5 had deposed that PW 3 was entitled to get the telephone connection on seniority basis. Ext. P9(a) would show that the application of PW 3 was registered as Serial No. 4. Ext. P 9 would further show that to Serial Nos. 5, 8 and 17, connection was given on 11.5.2001. To Serial Nos. 6, 7, 11 and 12, connection was given on 12.5.2001. To Serial No. 9, connection was given on 14.5.2001. To Serial No. 15, connection was given on 15.5.2001 and to serial No. 10, connection was given on 17.5.2001. Ext. P9 would show that the above connections were given out of priority. PW 3 was entitled to get connection before giving connection to Sl. No. 5. The learned counsel for the appellant would submit that the right to get connection on seniority basis is, subject to the feasibility and that the cable was drawn only on 13.5.2001 to give connection to PW 3 and it was for that reason the telephone connection to PW 3 was delayed. As against that argument, the learned standing counsel for the prosecution would submit that PW 5 had in unambiguous terms stated that the appellant had not reported any non-feasibility for providing connection to PW 3 on seniority basis. Neither Ext. P9 nor Ext. P11 would contain any material to come to a conclusion that to give connection to PW 3 on seniority basis there was any sort of impediment. Having due regard to Exts. P9 and P11 and the evidence of PW s 4 and 5, 1 am persuaded to come to a conclusion that PW 3 was denied connection on seniority basis for reason best known to the appellant That means there was attempt to delay the connection and to persuade to grease the palms. In this view of the matter, I find little reason to disbelieve the evidence of PW 1 regarding the demand made by the appellant.

The learned counsel for the appellant relying upon the decision reported in Panalal v. State of Maharashtra, 1979 SC 1191 submitted that the bribe giver is in the position of accomplice and unless there is corroboration it is not safe to rely upon the evidence of the bribe giver. According to the learned counsel, giving bribe to a public servant is abetment punishable u/s 12 of PC Act and 109 of the IPC. To have a correct appraisal of the argument of the defence counsel I find that it would be appropriate to read Section 107 of IPC which defines abetment.

Section 107. Abetment of a thing:-A person abets the doing of a thing, who -

First-Instigates any person to do that thing; or Secondly-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy,'' and in order to the doing of that thing; or Thirdly-Intentionally aids, by any act or illegal omission, the doing of that thing.

To constitute an abetment of a crime if reliance is given to Section 107 IPC, firstly there shall be instigation. Secondly there shall be an engagement with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to that doing of that thing and thirdly there shall be intentional aids by an act or illegal omission, by doing of that thing.

A careful reading of he evidence of PW 1 and 3 would show that PW 1 and PW 3 were not amenable to pay bribe and to get connection. PW 3 had infect advised PW 1 not to get the connection after giving bribe. Therefore, the evidence of PW s 1 and 3 would show that they had no intention to give bribe and to get the connection. Instead of getting connection after giving bribe PW 1 first went to the State Vigilance Cell and made complaint. Advised by the State Vigilance Cell he had contacted PW 6 and in pursuance to that, the trap was arranged. Ext. P2 complaint also would show that PW 1 was not at all willing to pay bribe or to instigate or to persuade the appellant to accept bribe as a motive or reward to provide connection. The evidence on record would show that MO 1 series was provided to PW 6 by PW 1 only to trap the appellant and to establish that the appellant had demanded bribe. Such giving of MO 1 series to trap the appellant at the advice of PW 6, who is an officer authorised to investigate a crime like this and then given to bribe taker would not amount to any of the three ingredients coming u/s 107 to constitute an abetment On an anxious consideration of the evidence of PW s 1 and 3, I find that there was no intention on the side of PW s 1 or 3 to abet the appellant to accept the bribe. It is also pertinent to note that the request of PW s 1 and 3 was not for doing anything out of order but their demand was to get a telephone connection in the order of seniority to which PW 3 was entitled. In the above circumstance, I find, no merit in the submission made by the learned counsel for the appellant that PW 1 is an accomplice and his evidence cannot be relied upon unless it is corroborated by independent evidence.

In P. Krishna Pillai v. State of Kerala, 1989(1) Crime, 700, referring to various decisions of the Apex Court including the one in State of U.P. Vs. Dr. G.K. Ghosh, it was observed by the learned Judge in paragraph 7 that

A person like P.W. 1 who does not yield to the demand of a public servant for bribe, but informs the concerned police officers and cooperates with them for offering bribe on demand in order to book the culprit and Crl. A. No. 1497/2004 thereby eradicate a social evil by becoming a party, to a legitimate trap cannot be condemned as an abetor and disbelieved. Such a person has not been dubbed by the Supreme Court as an abetor and relegated to the position of an accomplice.

Having due regard to the evidence of PW 1 and 3 I find no reason to arrive at a divergent conclusion. The learned counsel for the appellant advanced a contention that there was failure on the side of PW 6 to register the crime as soon as Ext. P2 was obtained, that Ext. P2 was sent to the office for registering the crime and that before registering the crime the investigation was started. Referring to Section 154(1) of the Code of Criminal Procedure and Section 5(3) of the Delhi Special Police Establishment Act, 1946, the learned counsel would submit that PW 6 being an officer in the rank of the Inspector, he would come within the category of the officers entitled to hold the post of Station House Officer. Therefore, he would have registered the crime as soon as Ext. P2 was obtained. Referring to a decision reported in H.N. Rishbud v. State, of Delhi, 1955 SC 196 it was argued that the failure to register the crime as soon as Ext. P2 was obtained is violation of the mandate of law and it can no way be cured by registering the crime subsequently after proceeding with the investigation. According to the learned standing counsel, the CBI unit was having headquarters at Cochin and PW 6 received the complaint at Kasaragod and that soon it was sent to Cochin to register the crime because there was no facility available at Kasaragod to register the crime and that the Superintendent of Police was in charge of the headquarters and since the Superintendent of Police was in the Station, the conduct of PW 6 in forwarding Ext. P2 to register the crime was in accordance with the Criminal Procedure Code, Rules and the standing instructions and that there was, no violation at all. The tact that PW 6 was competent to hold the post of a Station House Officer is not disputed-But, according to the learned standing counsel, since Superintendent of Police was the Station House Officer and was available in the headquarters, PW 6, who was a subordinate of the Superintendent of Police, was not in a position to register the crime. In support of his argument that PW 6 was a subordinate of the Superintendent of Police, who was a Station House Officer, the learned counsel would rely upon the decision reported in State v. A.N. Dhyaneswaran, 2004 Crl. LJ 2802. For a correct appraisal of the argument advanced by the learned counsel for the appellant, I find that a reading of Section 154(1) of the Code of Criminal Procedure would be appropriate. Section 154(1) reads as follows:

Information in cognizable cases:-

(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State government may prescribe in this behalf.

Section 154(1) would mandate that as soon an information relating to the commission of a cognizable offence is received to an officer in charge of a police station, it shall be reduced to writing or cause to be written; and be read over to the informant; and every such information, whether given in writing, or reduced to writing, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. No doubt, the Station House officer is bound to maintain such a register in the police station. Admittedly, it is being maintained in the police station. But, no police officer is expected to carry the same on tour. Therefore PW 6 was not in a position to record Ext. P2 in the register maintained for that purpose. Since Ext. P2 was obtained to PW 6 while on tour, the only course open to PW 6 was to forward Ext. P2 to the head office with request to register a crime. The evidence of PW 6 would show that as soon as the complaint was received the matter was conveyed to the Superintendent of Police, and he proceeded with the trap on instruction from the Superintendent of Police. That evidence of PW 6 was not at all assailed. So there is nothing on record to show that there was any violation of Section 154(1) of the Cr. P.C. In the event, PW 6 waited till Ext. P2 was sent to Cochin and to register a crime that would only pave a room for the appellant escaping from the clutches of law. The intermittent delay would no way affect the action of PW 6. In this view of the matter, I find that the trap arranged by PW 6 was no way illegal or irregular.

The evidence of PW s 1, 2 and 6, which I mentioned earlier, would show that the right hand of the appellant was subjected to phenolphthalein test, the sodium carbonate solution turned pink. Even by the defence version, it is revealed that the appellant had handled MO 1, of course, to throw it away from the pocket in which it was allegedly thrust by PW 1. The question then remains is whether the prosecution story is believable or the defence story is believable. I have a critical analysis of the evidence of PW s 1, 2, 3 and 6. PW s 1, 2, 3 and 6 were subjected to searching and lengthy cross examination. There is nothing suggested to PW s 1, 3 or 6 to suggest that they had got any animosity against the appellant to implicate him with an offence like the one on hand. The appellant has no case that PW s 2 or 6 was any way motivated against him. There is also nothing on record to suggest that PW 6 was anyway susceptible to the influence by PW 1, even if, PW 1 had any such ulterior motive to implicate the appellant. In this view of the matter, I find that the evidence of PW s 1, 2 and 6 instil confidence. The story that PW 1 thrust MO 1 series into the pocket of the appellant does not appear to be probable. As I mentioned earlier that defence is belied by the evidence of PW s 1, 2 and 6 that seeing PW 6 and party the appellant took MO 1 series from his pocket and threw to the side of the window. As I mentioned earlier, Ext. P9 would show that PW 3 was denied connection in the order of priority. The delay to give connection is an indication regarding the motive of the appellant. That is also a circumstance against the appellant In short, on a critical reappraisal of the evidence, I find little reason to diverge with the conclusion arrived at by the learned Special Judge. I find that the conviction under challenge is based upon cogent evidence. There is no reason for interference. The sentence awarded is only the minimum prescribed by the statute and it is no way illegal or harsh. So, the sentence also requires no interference.

In the result, the appeal fails. Accordingly, it is dismissed.