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2010 DIGILAW 1256 (KAR)

State By Lokayuktha Police v. K. P. Raju

2010-12-09

N.ANANDA

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JUDGMENT N. ANANDA, J.—The State by Lokayukta Police has filed this appeal against acquittal of accused 1 to 3 for offences punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short, ‘the Act’). On 25.11.2010, this Court, accepting the memo reporting the death of accused No. 3 and on perusal of death certificate of accused No. 3, confirmed by the learned counsel for appellant/Lokayukta has recorded abatement of appeal as it relates to accused No. 3. Therefore, this appeal as it relates to accused 1 and 2 survives for consideration. 2. In brief, the case of prosecution is as follows: During the year 1997, accused No. 1-Dr. K.P. Raju was in-charge of District Tuberculosis centre, S.N.R. Hospital at Kolar. Accused No. 2-T.R. Gopinath was working as a laboratory (x-ray) technician. On 1.1.1997, C.W. 1-Munivenkatappa (since deceased), who was suffering from tuberculosis, approached accused No. 1 for treatment. Accused No. 1 demanded illegal gratification of Rs. 350/- from C.W. 1 to give proper treatment to him. In furtherance of such demand, accused 2 and 3 accepted illegal gratification of Rs. 350/- from C.W. 1 not only on behalf of accused No. 1 but also on their behalf. 3. The learned trial Judge has acquitted accused 1 to 3 by recording following findings: There is not an iota of evidence against accused 1 regarding demand and acceptance of illegal gratification. There is no documentary evidence to prove that C.W. 1 was suffering from tuberculosis and he had visited T.B. Centre in S.N.R. Hospital at Kolar on 1.1.1997. There is no evidence relating to demand and acceptance of bribe by accused No. 2. The sanction accorded by the Government of Karnataka to prosecute accused 2 and 3 is invalid. 4. I have heard Sri S.G. Rajendra Reddy, learned counsel appearing for appellant/Lokayukta and Sri S.R. Krishnakumar, learned counsel for accused No. 1 and I have been taken through evidence and the impugned judgment. 5. It is not in dispute and it cannot be disputed that accused No. 2 was working as a Laboratory Technician and he was a group ‘C’ employee. According to Rule 7 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, all first appointments to the State Civil Services Groups ‘C’ and ‘D’ shall be made by the authorities mentioned in column (2) of Schedules II and III of said Rules. According to Rule 7 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, all first appointments to the State Civil Services Groups ‘C’ and ‘D’ shall be made by the authorities mentioned in column (2) of Schedules II and III of said Rules. 6. On perusal of column (2) of Schedules II and III of the said Rules, I find that Head of the Institution is the appointing authority for technical course in Group ‘C’ services. In the case on hand, Head of the Institution is the District Medical Officer of S.N.R. Hospital at Kolar. The District Medical Officer of the said hospital has not accorded sanction to prosecute accused No. 2. Therefore, sanction accorded by the Under Secretary to the Government, Health Department, by order and in the name of Governor of Karnataka cannot be termed as valid sanction to prosecute accused No. 2. 7. On perusal of evidence of P.W. 1 to P.W. 6, I find that none of them had whispered about presence of accused No. 1 when they trapped accused No. 2 in Tuberculosis Centre attached to S.N.R. Hospital at Kolar. Therefore, there is not an iota of evidence against accused No. 1. In the circumstances, the finding of learned trial Judge that prosecution has not adduced any evidence against accused No. 1 does not call for interference. 8. The prosecution in order to prove its case against accused No. 2 has relied on the evidence of P.W. 1 to P.W. 6. The first informant, namely, G. Munivenkatappa, from whom accused 1 to 3 are alleged to have demanded and accepted bribe died during pendency of case before trial Court. Therefore, first informant could not be examined before trial Court. 9. The evidence of P.W. 1-Dr.Krishnamurthy and documents produced by him do not reveal that C.W. 1 had visited tuberculosis centre of S.N.R. Hospital at Kolar either on 31.5.1996 or on 1.1.1997. 10. The evidence of P.W. 2-Basavaraju K.N., relates to preparations made by P.W. 5-A.N.Swamy, Inspector of Lokayukta Police to trap accused. P.W. 2 was also one of the members of raiding party. 10. The evidence of P.W. 2-Basavaraju K.N., relates to preparations made by P.W. 5-A.N.Swamy, Inspector of Lokayukta Police to trap accused. P.W. 2 was also one of the members of raiding party. P.W. 2 has deposed; after necessary preparations were made in the office of Lokayukta Police; between 1.30 p.m. and 2.30 p.m., on 1.1.1997, raiding party led by P.W. 5 entered the premises of S.N.R. Hospital at Kolar; C.W. 1 was instructed to meet accused and handover bribe, if it is demanded by accused; P.W. 5 instructed P.W. 3 to accompany C.W. 1 to observe as to what would transpire between C.W. 1 and accused; P.W. 2, P.W. 3, P.W. 5 and other members of raiding party took positions in the premises of S.N.R. Hospital at Kolar; C.W. 1 entered the premises of S.N.R. Hospital; after some time, C.W. 1 came out and flashed pre-determined signal to P.W. 5; thereafter, raiding party led by P.W. 5 entered the hospital and found accused 2 and 3 holding currency notes in their hands; P.W. 5 seized tainted currency notes from their hands and conducted phenolphthalein test by dipping both the hands of accused 2 and 3 in separate bowls containing sodium carbonate solution. The resultant wash turned into pink colour. The resultant wash was collected in separate bottles and the same was sealed. At this juncture, it is relevant to state that P.W. 2 has not deposed about presence of accused No. 1 at the time and place of trap. P.W. 2 has not deposed about seizure of tainted currency notes from accused 2 and 3. P.W. 2 has not deposed about place at which accused 2 and 3 were arrested. P.W. 2 has not deposed that currency notes seized from possession of accused 2 and 3 were tainted currency notes. P.W. 2 has not deposed that the Investigating Officer (P.W. 5) had noted numbers found on tainted currency notes in pre-trap mahazar prepared in the Office of Lokayukta Police. P.W. 2 has not deposed; after seizure of tainted currency notes, numbers found on those notes were verified and confirmed with the numbers found on tainted currency notes mentioned in pre-trap mahazar. 11. P.W. 2 has not deposed; after seizure of tainted currency notes, numbers found on those notes were verified and confirmed with the numbers found on tainted currency notes mentioned in pre-trap mahazar. 11. P.W. 3-S.N. Krishnamurthy, who had accompanied C.W. 1 during trap has deposed; after they reached S.N.R. Hospital at Kolar, they entered the hospital; accused No. 2 was in x-ray room; C.W. 1 gave money to accused No. 2; immediately, police came there and took accused No. 2 to adjacent room; at that time, accused 1 and 3 were in separate rooms; hands of accused 2 and 3 were washed in two separate bowls containing sodium carbonate solution; the resultant wash turned into pink colour; the resultant wash was collected in two separate bottles and the same was sealed. P.W. 3 has not deposed that accused No. 2 had demanded and accepted bribe from C.W. 1. P.W. 3 has not deposed about presence of accused No. 1. P.W. 3 has not deposed that C.W. 1 gave bribe to accused No. 3 also. P.W. 3 has not deposed about bribe, which C.W. 1 gave to accused No. 2, so also to accused No. 3. 12. The evidence of P.W. 4-Shankarappa B. suffers from material discrepancies. 13. P.W. 5-A.N. Swamy (Investigating Officer) has deposed; on 1.1.1997 at 1.30 p.m. (afternoon), C.W. 1 came to the Office of Lokayukta Police at Kolar and lodged first information. During cross-examination, P.W. 5 has admitted that on 1.1.1997 at 10 a.m., he had sent a memo to secure P.W. 2 and P.W. 3 as witnesses. 14. Thus, we find evidence of P.W. 5 is not consistent. The first information was lodged at 1.30 p.m., on 1.1.1997. It is not understandable as to how P.W. 5 had sent a memo to secure witnesses P.W. 2 and P.W. 3 at 10 a.m., on 1.1.1997. P.W. 5 has deposed; after making necessary preparations to trap the accused, they reached the hospital; C.W. 1 and P.W. 3 were sent to meet accused; after some time, C.W. 1 came out and gave pre-determined signal to P.W. 5; when P.W. 5 and other members of raiding party entered the hospital, C.W. 1 told P.W. 5 that accused No. 2 had received illegal gratification of Rs. 50/- from him; at that time, accused No. 3 was in the company of accused No. 2; C.W. 1 has told that accused No. 3 had received illegal gratification of Rs. 300/- from him; when P.W. 5 enquired about accused No. 1, accused No. 3 informed P.W. 5 that accused No. 1 had left the hospital with some body on a scooter and he was not in the hospital. P.W. 5 has deposed about phenolphthalein test conducted by him by dipping the hands and cloths of accused No. 2 in separate bowls containing sodium carbonate solution. 15. As already stated, C.W. 1 died during pendency of trial and he could not be examined. Even first information does not inspire confidence. In the first information, it is stated that on 31.5.1996, C.W. 1 had visited Tuberculosis Centre in S.N.R. Hospital at Kolar. After taking x-ray, it was confirmed that he was suffering from tuberculosis. At that time, accused No. 1 demanded illegal gratification of Rs. 200/- to give medical treatment to C.W. 1. In the first information it is stated that on 1.1.1997, i.e., after a period of seven months, again C.W. 1 visited S.N.R. Hospital. C.W. 1 met accused No. 3, who took him to accused No. 1. Again, accused No. 1 demanded C.W. 1 to give illegal gratification of Rs. 200/- for himself, illegal gratification of Rs. 50/- to accused No. 2 and illegal gratification of Rs. 100/- to accused No. 3. 16. As already stated, documents filed by the prosecution do not establish that C.W. 1 had visited S.N.R. Hospital either on 31.5.1996 or on 1.1.1997. If C.W. 1 was suffering from tuberculosis on 31.5.1996, it is not made clear as to where he was taking treatment for tuberculosis during period between 31.5.1996 and 1.1.1997. 17. In view of highly discrepant evidence adduced by prosecution, it is hardly possible to hold that accused Nos. 1 and 2 had demanded and accepted illegal gratification of Rs. 350/- from C.W. 1 to give medical treatment to him. The learned trial Judge on proper appreciation of evidence has acquitted accused 1 to 3. I do not find any grounds to interfere with the impugned judgment. 18. Accordingly, the appeal is dismissed.