Sri GK Rajanna vs The State. of Karnataka

V. Jagannathan

This criminal appeal is by the accused who has been convicted by the Court below in respect of 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 1 year imprisonment and payment of Rs. 5,000/- fine in respect of the offence u/s 7 of the P.C.Act and 3 years imprisonment and payment of Rs. 10,000/- fine in respect of the latter offences with default sentence. The case of the prosecution in short is that, the appellant visited the shop (Lakshmi Auto Gas Fitting) ran by the complainant and told the complainant that the complainant had taken the permission for retrofitting and also said that as there was a case already registered against the complainant, in order to help the complainant, a bribe of Rs. 10,000/-was demanded by the accused and at the relevant time, the accused was working as the Dy. Director of food and Civil Supply and Consumer Business Department at Mysore. It is also the case of the prosecution that the complainant wanted to know as to from which authority he has to obtain necessary permission for conversion into commercial purpose and for this, the complainant gave applications, but the accused did not give the necessary information to the complainant nor the applications filed were considered: As the accused made the complainant to come to the office of the accused number of times and also threatened that, if Rs. 10,000/- is not paid, one more case would be registered against the complainant, the complainant therefore approached the Lokayukta police and lodged the complainant on 24.3.06 (Ex.P1). The said complaint led to the Lokayukta officials conducting the entrustment mahazar Ex.P2 and thereafter the complaint accompanied by the shadow witness (PW-4) and also the panch witness (PW-2) went to the office of the accused and it is the further case of the prosecution that the complainant paid Rs. 10,000/- to the accused and the accused after receiving the same, put it into his pant hip pocket and thereafter signal was given by the complainant and the Lokayukta officials came and caught hold of the accused and recovered the amount from the accused possession.

It is also the case of the prosecution that, the right hand wash of the accused as well as the hip pocket wash of the accused turned the chemical solution into pink colour. After obtaining the FSL report Ex.P11 and the sanction order as per Ex.P9 and on completion of the investigation, charge sheet was submitted.

The defence of the accused was that, he had gone to the toilet to attend to nature''s call and while removing the hand kerchief from his pocket, few currency notes of the accused fell down and at that time, the complainant who was there, picked up the notes and gave it to the accused and the accused after putting the notes into his pocket, felt that the notes were little heavy and at that time, he took out the amount from his pocket, at that time the Lokayukta police came and caught hold of him.

Following the accused pleading not guilty to the charge, the prosecution examined as many as 7 witnesses and produced several documents which have been marked as Ex.P1 to P12 and M.Os. 1 to 8 were also produced and marked during the evidence. After recording of the accused statement, on behalf of the accused, no defence was placed. However, documents Ex.D1 to D6 were marked.

Learned trial Judge after appreciating the evidence on record, accepted the case of the prosecution as having been proved beyond all reasonable doubt and in coming to this conclusion, the trial court relied on the testimony of the complainant PW-1 and the shadow witness PW-4 as well as the other materials placed on record. It is this conclusion that led the trial court to convict the appellant and sentenced him as mentioned earlier.

I have heard the learned senior counsel Sri. Ravi B. Naik for the appellant and the learned counsel Sri. S.G. Rajendra Reddy for the respondent Lokayukta and perused the records of this case.

Learned senior counsel for the accused appellant at the outset submitted that the question of the accused having any role to play in the matter of either giving permission or conversion into commercial purpose in respect of gas stoves does not arise and the complainant was already facing a case in respect of the alleged misuse of the licence and a charge sheet was also filed against the complainant, as such, the question of the accused having any role to play either in suppressing the case against the complainant or granting permission does not arise.

Coming to the merits of the case, learned senior counsel argued that, this is a case where two sets of evidence are on record, one is through the testimony of PW-1 and PW-4 which gives the indication that the accused accepted the bribe amount and the hand wash of the accused turned the chemical solution into pink colour. At the same time, the prosecution has also placed on record the photographs pertaining to the entire incident of trap and a plain look at the photographs produced by the prosecution itself (though not marked) will go to show that the hand wash and the hip pocket wash of the accused did not turn the chemical solution into pink colour. Therefore, it is argued that the very photographs produced by the prosecution rendered the testimony of PW-1 and PW-4 not reliable and therefore the trial court ought to have acquitted the accused instead of convicting him.

Further contention put forward is that, the investigation has not been conducted properly and this also would go to show that the photographs which were produced by the prosecution itself actually supports the case of the accused rather than that of the prosecution. In this connection, referring to the FSL report which has been marked as Ex.P11, it is contended that the said letter addressed to the Superintendent of Police, Lokayukta is dated 25.9.06 and the reference letter received from the Lokayukta is dated 31.8.06 and the signature of the police inspector of Lokayukta is dated 8.11.96. This therefore goes to show that the report was received by the Lokayukta only on 8.11.06. On the other hand, the very evidence of the prosecution witness viz.. PW-3 the sanctioning authority, is to the effect that the sanctioning authority received all the papers from the Lokayukta office including the FSL report on 31.8.06 and therefore it is highly impossible to believe the prosecution case that the FSL report reached the sanctioning authority much before the actual receipt of the FSL report by the Lokayukta police. This also gives rise to doubt the prosecution case. In this connection it is argued that the FSL expert could have been examined before the trial court and mere production of the information at Ex.P11 will not be sufficient.

As far as the photographs are concerned, the contention put forward by the learned senior counsel for the appellant is that, though the photographs were not actually marked as exhibits, the very evidence of the investigating officer who was examined as PW-5 would go to show that the investigating officer has admitted the photographs which were shown to him and he has further admitted in the cross examination that the hand wash does not appear to have changed the colour. It is therefore argued that, mere lapse on the part of the trial court in not marking the photographs would not render the said photographs inadmissible in evidence when the said photographs were actually confronted to PW-5. Moreover, the photographs are part of the record is not disputed by the prosecution. As such, when the photographs render a different story about the hand wash of the accused, the testimony of PWs 1 and 4 therefore could not have been banked upon by the trial court to hold that the case against the accused has been proved beyond all reasonable doubt.

In the light of the aforesaid submissions and relying on the Apex Court decisions reported in State of Maharashtra Vs. Damu Shinde and Others, and 2010(9) SCC 286, learned senior counsel sought for the appeal being allowed by setting aside the judgment of the court below.

Learned counsel Sri. S.G.Rajendra Reddy for the Lokayukta on the other hand argued that the evidence of the complainant and several witnesses goes to show that the hand wash of the accused led to solution turning into pink colour and this is further supported by the FSL report Ex.P11 which also mentions that the right hand wash and the hip pant pocket of the accused turning the solution into pink colour. Therefore, the trial court committed no error in convicting the appellant. It is also argued that examination of the expert is not necessary and in this connection the provision contained in section 293 of Cr.P.C. was brought to the attention of the court. As far as the photographs are concerned, submission made is that, as the photographs were not marked as exhibits, they cannot be looked into.

Apart from the above submission, it is also argued by the learned counsel for the Lokayukta that, the photographs may not actually reveal the true story and even if the solution is light pink in colour, that may not be reflected in the photographs and therefore no reliance can be placed on the photographs to take the view that the hand wash of the accused did not turn the solution into pink colour. In view of the evidence of PW 1 and PW-4 coupled with the FSL report Ex.P11, the trial court has rightly convicted the appellant is the submission put forward and as such, the question of interfering with the judgment of the trial court is not called for and the appeal therefore be dismissed.

In the light of the aforesaid submissions put forward, whether the conviction of the appellant by the court below in the light of the evidence on record could be sustained in law?

The prosecution has relied mainly on the testimony of PW-1 the complainant and PW-4 the shadow witness to prove its case coupled with the FSL report Ex.P11.

PW-1 who is the complainant has deposed in his evidence about the accused coming to his shop and demanding bribe amount of Rs. 10,000/- and the complainant not willing to pay the said amount and thereafter going before the Lokayukta police and lodging the complaint as per Ex.P1. As far as the trap is concerned, it is deposed to by PW-1 that, he along with the panchas went towards Hotel Ramya and shadow witness PW-4 was with him. At that time, the accused was standing in front of the hotel. The complainant was called by the accused towards the toilet and the accused asked whether the amount has been brought and asked for it and PW-1 took out the currency notes which were smeared with the phenolphthalein powder from the shirt pocket and gave it to the accused and the accused received the same in his right hand and kept it in the pant hip pocket.

It is also the evidence of PW-1 that, after the arrival of the Lokayukta police, they caught hold of the accused and all of them went to the Lokayukta office and there the hand wash of the accused was collected and the fight hand wash of the accused turned the solution into light pink colour and so was the case in respect of the left hand fingers. Thereafter the hip pocket portion of the accused was also immersed in the solution and the solution turned into light pink colour.

PW-1 has also deposed in his evidence that, the accused gave the explanation before the Lokayukta police that, while removing the kerchief from his pocket, the currency notes of the accused fell down and while he was trying to take out that, the complainant helped the accused in taking out the amount and then the amount was kept in the hip pocket of the accused.

PW-1 has also deposed in the course of his cross examination that the conversation between him and the accused was also recorded, but as there was sound, conversation recorded was not clear.

PW-4 is the shadow witness and he has also corroborated the aforesaid testimony of PW-1. This witness has also stated that the right hand wash of the accused turned the chemical solution into light pink colour, but the left hand wash did not turn the solution into pink colour. The hip pocket wash of the accused however turned the solution into light pink colour. PW-4 has also stated that the accused gave his explanation by stating that, while trying to pick up the kerchief which had fallen, as some amount was found lying, one person came and picked it up and gave it to the accused.

The FSL report has been marked in the evidence at Ex.P11 and it is dated 25.9.06 and the letter of the Lokayukta under reference has been mentioned as 31.8.06. The very said document also bears the signature of the police inspector of Lokayukta and the date is mentioned as 8.11.06. No doubt, the FSL report mentions at page.3 that the right hand wash as well as the left hand wash tested positive and so was the case in respect of the hip pocket wash.

If one considers the aforesaid evidence of PW-1 and 4 and the FSL report, the inference that can be drawn will be that the accused accepted the bribe amount and the hand wash of the accused tested positive and so was the hip pocket wash of the accused. As against the aforesaid view that is possible from the evidence of the complainant and the shadow witness, there is also another view that emerges from the evidence placed on record.

PW-5 Krishnamurthy, C.P.C. of Lokayukta in the course of his cross examination has admitted that, he remembers having taken the photographs and on locking at the photographs which were shown to him, PW-5 has stated that the hand wash does not indicate the solution having changed the colour. This admission of PW-5 has to be considered along with the photographs produced. No doubt, the photographs which have been produced numbering 10 are the photographs which formed part and parcel of the investigation as could be seen from the record. The photographs were also shown to the investigating officer and he admits that they do not indicate change in the colour after the hand wash. The court below did not mark the said photographs, neither the defence took any care to ensure that the photographs are marked on behalf of the accused.

Whether mere non-marking of the photographs could be a reason to refuse to look into the photographs is the question that arises for consideration at this juncture. The prosecution has not denied the photographs produced by it nor has taken any objections when the photographs were confronted to PW-5 during the cross examination. Therefore, non marking'' of the photographs by the trial court could be due to inadvertence or oversight. Therefore, a mere lapse on the part of the trial court in not marking the photographs cannot be a reason not to look into the photographs when the defence has relied on the very photographs produced by the prosecution and the prosecution witness namely the investigating officer also has not disputed the photographs which were shown to him.

It is also a well settled law that technicalities should not be allowed to defeat the ends of justice. The prosecution is required to prove its case beyond all reasonable doubt and at the same time, as has been held by the Apex Court in the case of State of Punjab Vs. Karnail Singh (2004 SCC (Cri) 135, the prosecution is not required to meet any and every hypothesis put forward by the accused and a reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense and it must grow out of the evidence in the case.

Applying the aforesaid principles laid down by the Apex Court, in the instant case, the doubt that has arisen is based on the very photographs produced by the prosecution itself and the picture seen in the photographs has clearly given rise to doubt the testimony of PW-1 and PW-4 that the hand wash of the accused and the hip pocket wash of the accused turned the solution into pink colour. If the evidence on record which is not disputed by either side, gives rise to doubt the case of the prosecution, then the position in law is that the benefit of the said doubt would go to the accused.

Apart from the aforesaid factors, another aspect of the prosecution case also gives rise to doubt the veracity of the contents of the FSL report Ex.P11. The said document is dated 25.9.06 and it bears the signature of the police inspector of Lokayukta and the date mentioned is 8.11.06. Therefore, the submission of learned senior counsel for the appellant is that, the Lokayukta police received the FSL report only after 25.9.06 has to be accepted as the date of the letter addressed to the Lokayukta is dated 25.9.06.

PW-3 the sanctioning authority viz., Vishveshwaraiah has deposed in his evidence that, on 21.8.06 he received a letter from the ADGP, Lokayukta and in the said letter, sanction order to prosecute the accused was sought and along with the said letter, the FIR, entrustment mahazar, trap mahazar and the FSL report as well as the sketch map and witnesses statement had been enclosed. Though learned counsel for the Lokayukta pointed out that the date mentioned as 21.8.06 is a typographical error and it ought 10 have been 31.8.06, even accepting the said submission, it is clear from the evidence of this witness PW-3, that he received the documents including the FSL report on 31.8.06, if that were to be the case, the question of the FSL sending its report to the Lokayukta police long after that on 25.9.06 cannot be accepted. If the sanctioning authority had received the FSL report much before on 25.9.06, then the question of the FSL addressing a letter to the Lokayukta on 29.5.06 enclosing its opinion also cannot be a possibility.

Apart from this, the trial court in the course of recording the statements of the accused has also taken note of the aforesaid aspect and had questioned the accused by specifically pointing out to him in question No. 8 that, on 31.8.06 PW-3 received the FIR, entrustment mahazar, trap mahazar and the FSL report and based on that, the sanction was accorded on 20.2.07 as per Ex.P9.

Thus, it is clear from the aforesaid material on record that the FSL report was received by the sanctioning authority on 31.8.06 itself. If that is the conclusion to be drawn, then no importance can be attached to the FSL report Ex.P11 which is dated 25.9.06. It is therefore clear that the investigation was also not free from defect and in the instant case, a view of the photographs produced giving a different picture of the incident, the aforesaid defect in the prosecution case therefore cannot be termed as minor one as it gives rise to doubt the manner of conducting the investigation and its authenticity.

The photographs which have been confronted to PW-5 and admitted by him, though have not been marked as mentioned earlier, are now marked as Ex.C1 to C10.

If the photographs are considered in the light of the evidence of PW-1 and PW-4, two versions clearly emerge from the totality of the evidence on record. The version spoken to by PW-1 and PW-4 is that the hand wash and hip pocket wash of the accused turned the solution into pink colour. The other version that is also clear from the photographs produced is neither his right hand and left hand wash nor hip pocket wash of the accused turned the solution into pink colour.

Though it is argued by the learned counsel for the Lokayukta that the photographs may not actually reflect, the colour of the solution, his submission also cannot be accepted because in the photographs produced at Ex.C6, the hand wash is in pink colour (Photo.6). Therefore, when the hand wash of photograph 6 is in pink colour, obviously the hand wash of the accused and the pocket wash of the accused also ought to have been in pink colour, but that is not the case.

The explanation given by the accused also lends support to the defence version. PW-1 and PW-4 have deposed in their evidence that the accused gave his explanation during the course of trap mahazar Ex.P3 that the amount which he was having with him fell down while he was taking out the kerchief and the complainant picked up the currency notes and gave it to the accused. While the accused kept the amount in the hip pocket, he felt that the notes were little heavy, immediately he was about to take out the amount from the hip pocket, at that time, the Lokayukta officials came and caught hold of his shoulders. This defence version of the accused is probabalised with the aid of the photographs which have been produced by the prosecution itself.

Therefore, this is a case where it can be said without any second thought that the evidence on record gives rise to two views and both the views are possible views. In such situation, in view of the settled position in law, the view in favour of the accused has to be accepted. In this case also, the photographs produced and now marked indicating the hand wash and hip pocket wash of the accused not turning the chemical solution into pink colour, the accused therefore will have to be given the benefit of doubt.

Although learned senior counsel for the appellant referred to two decisions and learned counsel for the Lokayukta also referred to decision reported in 1998 SCC (Cri) 456, in the light of the aforesaid materials and the evidence on record when two distinct views are possible, the trial court ought to have accepted the view in favour of the accused. One other defect in the evidence appreciation by the trial court is that, the learned trial judge did not make even a remote mention in the course of his judgment to the photographs which were produced and confronted to PW-5. Therefore, for this reason also, the judgment of the court below cannot be sustained as the evidence appreciation is not in accordance with the principles laid down by the Apex Court. In the result, the appeal is allowed and the judgment of conviction and sentence passed by the court below is set aside. The appellant is acquitted by giving him the benefit of doubt. His bail bond shall stand cancelled. Fine amount, if any, deposited, shall be refunded to the accused.