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2002 DIGILAW 551 (MAD)

State of Kerala v. Ramachandran

2002-07-02

M.R.HARIHARAN NAIR

body2002
Judgment The State is aggrieved that the Special Court for trial of cases under the Prevention of Corruption Act, Kozhikode, has acquitted the respondent of the charge under Sec. 5(2) read with Sec. 5(1)(c) and (d) of the Prevention of Corruption Act as also the offence under Secs. 403 and 409 of the I.P.C. 2. The prosecution alleged that the accused, while working as Headmaster in the Tharakan High School, Angadippuram, during the period 27.5.1983 and 26.6.1984 and as such being a public servant, committed criminal misconduct and abused his official position as public servant and obtained undue pecuniary advantage by misappropriating an amount of Rs. 2, 876.16 from the Special Fee Account of the aforesaid school by withdrawing a sum of Rs. 17, 050 between the period 22.6.1983 to 31.3.1984 and by spending only a sum of Rs. 14, 173.84 between the period from6.10.1983 to 31.2.1984. 3. The learned Public Prosecutor submits that the trial Court took a perverse decision in accepting the evidence of D.W. 5 and that the finding that his evidence is believable in the absence of an effort on the part of the Prosecutor to confront him with the case diary statement is absolutely unjustified. It is also pointed out that D.W.5 is an unworthy witness and that no reliance could have been placed on his evidence. 4. On the arguments advanced in the case the points that arise for decision are: (1) Whether the evidence of D.W.5 was improperly received by the trial Court? and (2) Whether the acquittal passed in favour of the respondent deserves to be reversed? 5. Point No.1: D.W. 5 deposed that towards model questions supplied for the purpose of the school amounts were received from the accused, for which receipts had been passed on. According to him, Ex.D-8, which is for Rs. 1, 020 is one such receipt. He also stated that a further sum of Rs.972 was received for supplying question papers for the second quarterly examination of 1983-84, besides another Rs.992 received for supplying question papers for the annual examination of 1983-84. If the said payments are taken into account, it could be seen that there was no money kept in the possession of the accused in an unaccounted manner. The basic question is therefore one of veracity of D.W.5. If the said payments are taken into account, it could be seen that there was no money kept in the possession of the accused in an unaccounted manner. The basic question is therefore one of veracity of D.W.5. The trial Court, which had the benefit of seeing his performance in the box, has chosen to accept his evidence. 6. The learned Public Prosecutor finds fault with the observation contained in the judgment of the trial Court, which proceeds as follows: “This witness was not confronted with the statement given before the Deputy Superintendent of Police by the Public Prosecutor. Therefore, it has to be taken for granted that he has stated all these facts that he has stated before the Court before the Deputy Superintendent of Police. If otherwise the Public Prosecutor could have confronted him with his statements before the Vigilance Police during investigation”. According to the learned Public Prosecutor, there is no question of confronting the case diary statement to a defence witness and hence the above approach of the learned trial Judge is absolutely incorrect. 7. There does not appear to be any doubt with regard to the above principle canvassed by the learned Public Prosecutor. According to the learned Public Prosecutor, there is no question of confronting the case diary statement to a defence witness and hence the above approach of the learned trial Judge is absolutely incorrect. 7. There does not appear to be any doubt with regard to the above principle canvassed by the learned Public Prosecutor. Sec. 162 of the Crl.P.C. reads as follows: “Sec. 162: Statements to police not to be signed: Use of statements in evidence:(1) No statement made by any person to a police officer in the course of an investigation under this Chapter shall if reduced to writing, be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution to contradict such witness in the manner provided by Sec. 145 of the Indian Evidence Act, 1872 (1 of 1872) and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross examination”. (Sub-sec. (2) and explanation omitted) What is obvious from the proviso is that the statement recorded under Sec. 161 can be confronted only to a witness called for the prosecution. There is no mention in the proviso of any such confrontation being possible to a defence witness. Actually it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided under Sec. 145 of the Evidence Act by drawing his attention to parts of the statements intended for contradiction. It cannot certainly be used for corroboration of a prosecution or a defence witness or even in the matter of Court witness. It cannot be used for contradicting a defence or a Court witness. It cannot certainly be used for corroboration of a prosecution or a defence witness or even in the matter of Court witness. It cannot be used for contradicting a defence or a Court witness. The bar contemplated in Sec. 162(1) is of general application and the limited exception is the confrontation to the witness for the prosecution in the interest of the accused. The statement of the witness under Sec. 161 cannot also be used as substantive evidence and can only be used to contradict the witness within the limitation specified in the proviso. The veracity of the defence witness, therefore, has to be assessed independent of any such statement and based on his performance in the box as also corroboration, if any, forthcoming thereto. It is clear that neither the prosecution nor the defence can contradict or corroborate the version of a defence witness with the aid of a statement recorded under Sec. 161 of the Crl.P.C. 8. Notwithstanding my findings as above, I do not think that quashing the incorrect observation of the trial Judge on the above aspect would in any way enable the State to get the ultimate finding of the learned Sessions Judge reversed and to get a conviction against the respondent. The person who was examined as D.W. 5 has been cited as a prosecution witness as C.W. 20. However, no attempt was made to examine him as a witness for the prosecution. The cross examination of D.W.5 has not brought out anything to suspect the veracity of his statement. The learned Public Prosecutor points out that the payments for the question papers supplied during one year could normally be made only in the next academic year. Even after a careful perusal of the evidence of D.W.5 I do not find any such admission in his evidence. No other provision of law or contract has also been brought to my notice, whereby the remuneration to the question supplied by the organisation of D.W.5 will be paid only in the next academic year. What D.W.5 spoke on the point was that if the payment for the questions supplied in one quarter was not forthcoming, request for supply of questions for the next term would not be entertained and that the respondent herein has not made any such default. 9. It is true that. What D.W.5 spoke on the point was that if the payment for the questions supplied in one quarter was not forthcoming, request for supply of questions for the next term would not be entertained and that the respondent herein has not made any such default. 9. It is true that. Ex.D-8 payment made on 22.6.1983 represents the cost of model questions supplied during the year 1982-83. But then, it has to be remembered that the questions concerned relate to the S.S.L.C. model examination, which is due for the last lap of academic year 1982-83, for which the payment due will have to be paid in the next quarter viz. in the first lap of the academic year 1983-84. Hence, the mere fact that Ex.D-8 represents the payment for the previous academic year does not assume any importance. The fact is that the payment is made for the questions supplied during the previous quarter, though that fell within the period of previous academic year. It may be that the respondent failed to produce before P.W.3 the original of these receipts earlier. That does not mean that he is estopped from adducing secondary evidence with regard to the receipts when he is faced with a prosecution. The principles governing appreciation of evidence in an appeal against acquittal also stand on a different footing when compared to the appreciation in a case of appeal from conviction. It is well settled that if two views of the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, the appellate Court should prefer the former view. This is due to various reasons, including the fact that there is a presumption of innocence in favour of the accused, which is confounded by the findings of the Court which had the benefit of assessing the performance of the witness that the accused is innocent. 10. In Kalyan v. State of U.P. (2001)3 K.L.T. (S.N.) 96, the Apex Courthas held that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by is acquittal by the trial Court. It was also held that normally the views of the trial Court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial Court is supposed to have watched the demeanor and conduct of the witness and as such in a better position to appreciate his testimony. The High Court, it was held, should be slow in disturbing a finding of fact arrived at by the trial Court. In view of the above position of law, I find absolutely no illegality, irregularity or impropriety in the finding of the trial Court that the accusation imposed against the respondent remains unproved. 11. It is to be remembered here that in the answers given by the accused to the questions under Sec. 313 of the Crl.P.C. he had stated that the real reason for setting up such a case was the ill-feeling that the son of the Manager of the School had towards the Headmaster arising from the latter's refusal to accept the unjustified intervention into school administration by the Manager's son, who was actually only a Clerk of the School. 12. Point No. 2: The trial Court has appreciated the evidence form the proper perspective and has found the accused not guilty. I do not think that this Court will be justified in upsetting the said finding, which was properly arrived at based on the oral evidence of D.W.5. 13. The appeal, in the circumstances, is without merit and it is accordingly dismissed. V.K.-----Appeal dismissed.