K.N. Ramachandra Rao vs State of Karnataka

V. Jagannathan

This appeal is by the accused who has been convicted by the learned Special Judge, D.K., Mangalore, in Spl.C.No.20/96 for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 and being sentenced to undergo S.I. for a period of one year and to pay a fine of Rs. 1,000/-, in default to undergo S.I. for one month,

The case of the prosecution in short is that, fee complainant Valerian Fernandes (PW-3) approached the accused in connection with issuance of RTC and in order to effect the name of the complainant in the RTC, the accused, who at the relevant time was working as Village Accountant of Kolambe village said to have demanded Rs. 500/- as illegal gratification and out of that, Rs. 200/- was paid to him and the balance amount of Rs. 300/- was demanded and accepted by the accused on 26.07.1994 at Kolambe village Panchayath office from the complainant. The complaint given by PW-3 led to the entrustment mahazar being conducted followed by the complainant accompanied by shadow witness PW-4, going to the office of the accused and the accused accepting the bribe amount and thereafter, the Lokayuktha police coming to the place and hand wash of the accused being collected which had turned the solution into pink colour and after ''completing the investigation, charge sheet was filed.

On accused pleading not guilty, the prosecution examined five witnesses and produced 21 documents and 7 M.Os. The defence of the accused both in 313 statement and during trap mahazar was that, he did not demand the bribe amount but the complainant has forcibly thrust the cover containing Rs. 300/- into his pocket. Therefore, the accused did not lead any defence evidence apart from the above stand taken by him except marking three documents Exs.D1 to 03.

Learned trial Judge alter appreciating the evidence on record, accepted the case of the prosecution as presented through PWs 1 to 5. Conviction and sentence was the result of the said findings of the trial Court.

Learned Counsel for the appellant challenging the conviction, at the outset argued that, out of the five witnesses examined by the prosecution, PW-1 has turned hostile and PW-3 the complainant was also declared hostile in part and PW-4 Manjunath given evidence which is contrary to PW-3 with regard to the place where the incident occurred. Therefore, the over all evidence could not have been accepted by the trial Court to convict the appellant.

Elaborating the aforesaid submissions, it is argued by learned Counsel for the appellant that the case of the prosecution is that the bribe amount of Rs. 300/- was given to the accused by the complainant in a cover. PW-4 the shadow witness does not support this stand of the complainant Secondly, where the incident occurred is not clearly established by the prosecution, because according to the version of PW-3 the complainant, the incident happened on the way to the office of the accused, whereas PW-4 has deposed that accused accepted the bribe amount in his office and this witness does not speak about the amount being given in a cover. Apart from this, PW-3 the complainant has not supported the prosecution case with regard to hand wash of the accused, Another defect in the prosecution ease is that the amount was recovered from the pocket of the accused by PW-1 but the said witness Paramesh Chandra Jain did not support the prosecution case in this regard by deposing that he did not take out the bribe amount from the packet of the accused.

In addition to all these infirmities in the prosecution case, it is also pointed out from the evidence of PW-2 the retired Revenue Inspector that the work of mutation change had already been completed by PW-2 and he had sent the file to the accused and the RTC could have been issued only after 10.06.94 and for issuing the RTC, the party concerned will have to file an application and without the application, RTC cannot be issued. Therefore, the evidence of PW-2 also goes to show that no work was pending with the accused and no application was given by the complainant. On the strength of the aforesaid submissions, learned Counsel sought for appeal being allowed by setting aside the judgment of conviction passed by the trial Court

On the other hand, submission of learned Counsel for respendent-Lokayuktha is that, PW-3 the complainant has deposed in his evidence about the accused having accepted the bribe amount from him and even though the shadow witness has not supported the prosecution with regard to place of incident, yet the accused himself has accepted in his 313 statement and also in the explanation given during the trap mahazar that the money was put into the socket of the accused, Thus, the acceptance of the amount by the accused and recovery of the amount from the possession of the accused has been established and as such, nothing more was required to be proved by the prosecution. Conviction of the appellant therefore calls for no interference.

Having thus heard both sides and after going through the evidence on record, the following picture emerges.

It is the prosecution case against the accused that the accused accepted the bribe amount in his office. The charge framed against the accused also mentions that the bribe amount was accepted by the accused in his Gram Panchayath office at Kolambe village, but the evidence of PW-3 the complainant is otherwise. This witness has stated that on the way from the bus stand to the office of the accused, the accused accepted the bribe amount, which was given by him in a cover. PW-3 does not speak to the presence of the shadow witness PW-4 at that point of time. But the evidence of PW-4 is that the incident occurred in the office of the accused and it was around 10 a.m. that the complainant and shadow witness entered the office of the village accountant and there, the complainant handed over 3 notes of Rs. 100/- each, Thus, this witness does not support PW-3 with regard to the place where the incident occurred and also with regard to the manner in which the amount was given. PW-4 does not say that the complainant gave the amount in a cover to the accused.

PW-3 the complainant has also deposed in his evidence that the notes were recovered from the pocket of the accused by Paramesh Chandra Jain (PW-1). This statement of PW-3 do not supported by PW-1 who in his evidence has stated that he did not remove the cover from the pocket of the accused. Thus here again there is no corroboration between. PW-3 and PW-1. Another important aspect is, PW-3 was declared hostile by the prosecution, because this witness has not supported the case of the prosecution insofar as the hands of the accused being tested positive when immersed in chemical solution Sodium Carbonate. Apart from all these defects PW-2 In the course of his evidence has also stated that he had passed the order effecting change of mutation and has sent the file to the accused and therefore, the RTC could have been issued by the accused only after 10.06.1994. Whether any application was given by the complainant for issuance of RTC is also not stated clearly by PW-2. Although, learned Counsel for the respondent-Lokayuktha pointed out from Ex.P11 that there was also a request made for issuance of RTC is the said application, it was for change of mutation and no separate application as mentioned by PW-2 was also given by the complainant to the accused.

In the light of the aforesaid nature of evidence on record, and PW-1 having not supported the prosecution case and PW-3 the complainant also being declared hostile by the prosecution and PW-4 not supported PW-3 with regard to place where the incident occurred, the evidence on the whole therefore cannot be said to be of such a nature to tales a view that the prosecution has proved its case beyond all reasonable doubt. No doubt, in the explanation given during trap mahazar as well as in his reply to 313 statement, the accused has taken a stand that the money was forcibly thrust into the pocket. Therefore even if the money was recovered from the possession of the accused, still the prosecution has to prove that the accused demanded the bribe amount and thereafter accepted the same.

In the light of the aforesaid examination of the evidence on record, in my view, the trial Court ought to have given the benefit of doubt to the accused instead of convicting him. The finding recorded by the Court below are perverse in nature and the view taken is also an unreasonable one.

For the above reasons, appeal is allowed and judgment of conviction and sentence passed is set aside and appellant is acquitted of the offence wife which he stood charged. His bail bonds shall stand cancelled.