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Karnataka High Court · body

2011 DIGILAW 803 (KAR)

State By Lokayuktha Police Hassan v. A. Shekharan

2011-08-10

A.S.PACHHAPURE

body2011
JUDGMENT A.S. PACHHAPURE, J.—The appellant State through the Lokayuktha Police has filed this appeal challenging the acquittal of the respondent for the charge under Sections 7, 13(1)(d) read with 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter called as ‘the P.C. Act for short). 2. The facts relevant for the purpose of tills appeal are as under: P.W. 1 Rajamma had approached the first appellant, a Surgeon working in the Government Hospital at Holenarasipur with a request to conduct surgery for Hernia disease suffered by her brother-in-law’s son by name Karigowda. It is alleged that Respondent No. 1. demanded an amount of Rs. 4,000/- to perform surgery and as P.W. 1 Rajamma was not willing to pay the amount, she approached the Lokayuktha Police on 3.11.2001 and submitted her complaint Ex. P1. and produced 20 notes of Rs. 100 denomination. Thereafter, an Entrustment Mahazar was held as per Ex.P2 in the presence of P.Ws. 2 and 4, the witnesses and the tainted notes were given to the complainant with instructions to pay the same to Accused No. 1 on demand and accordingly, they went to the Government Hospital and at about 12.25 p.m. on the request of appellant No. 1 (Accused No. 1) to pay the amount in the hands of Accused No. 2 P.W. 1 accompanied by P.W. 2 Manjunath approached appellant No. 2 (Accused No. 2) and on demand paid an amount of Rs. 2,000/- and thereafter, a signal was given by P.W. 1. to Lokayuktha Police who trapped Accused No. 2. The hand wash of Accused No. 2 was taken, and the Sodium Carbonate liquid turned to pink colour. The Accused No. 2 had kept the amount in his pant pocket, and after following the procedure, they sought, the explanation of Accused No. 2. He told, that the money was given by the complainant Rajamma for the purpose of purchasing the medicine. Accordingly, the trap mahazar Ex. P3 was drawn. It is thereafter that the statements of the witnesses were recorded and after obtaining the sanction from P.Ws. 3 and 6, as per Exs. P11 and 15, the charge-sheet was laid against the appellants for the aforesaid offences. During the trial, the prosecution examined six witnesses P.Ws. 1 to 6 and in their evidence, the documents Exs. P1 to P. 11 and MOs. 1 to 12 were marked. 3 and 6, as per Exs. P11 and 15, the charge-sheet was laid against the appellants for the aforesaid offences. During the trial, the prosecution examined six witnesses P.Ws. 1 to 6 and in their evidence, the documents Exs. P1 to P. 11 and MOs. 1 to 12 were marked. The statement of the accused were recorded under Section 313 Cr.P.C. They took the defense of total denial. They did not lead any defense evidence. The Trial Court after hearing the Prosecutor and also the learned counsel for the accused and on. appreciation, of the material on record acquitted the accused appellants for the charges stated supra and aggrieved by the acquittal, the present appeal has been filed. 3. I have heard the learned counsel for both the parties, The points that arise for my consideration are: 1. Whether the prosecution is able to establish that Accused No. 2 on behalf of Accused No. 1 received the illegal, gratification of Rs. 2,000/- for doing an official favour, i.e., to conduct the surgery for Hernia disease on Karigowda the son of brother in law of the complainant and thereby committed an. offence punishable under Section 7 of the Act? 2. Whether Accused No. 1 a Surgeon of the Government Hospital and Accused No. 2 the Attender in the Government Hospital by use of corrupt and illegal means and by abusing their position as public servants obtained illegal gratification of Rs. 2,000/- from P.W. 1 Rajarnma and whether they committed the offence punishable tinder Sections 13(1)(d) read with 13(2) of the Act? 3. Whether the appellant; has made out any grounds to warrant: interference in the order of acquittal? 4. In so far as an appeal against acquittal is concerned, it is well established principle of law that the Appellate Court has to be slow in interfering with the orders of acquittal and even if a second view is possible, the one accepted by the Trial Court cannot be disturbed. On this aspect, of the matter, the learned counsel for the respondent has placed reliance on the decision of the Apex Court reported in (2010) 1 SCC (Crl.) 607 (State of Rajasthan vs. Mohan Lal). So, it is in the context of the principle laid down, the evidence of the prosecution has to be considered. 5. On this aspect, of the matter, the learned counsel for the respondent has placed reliance on the decision of the Apex Court reported in (2010) 1 SCC (Crl.) 607 (State of Rajasthan vs. Mohan Lal). So, it is in the context of the principle laid down, the evidence of the prosecution has to be considered. 5. So far as the sanction is concerned, there is no serious dispute and P.W. 3 is the Doctor who had the authority to remove Accused No. 2 from the post and the prosecution has examined him to prove the grant of sanction to prosecute Accused No. 2 and the same has been produced at Ex. P5. P.W. 3 has stated that he perused all the records sent, by the prosecuting agency inclusive of the first information report., statement of the witnesses, FSL report, mahazars etc., and as there was prima facie material, he granted the sanction and I do not think that there is any error or illegality in the sanction order. 6. So far as the first accused is concerned, the prosecution examined P.W. 6 the Under Secretary, Health and Family Welfare Department, who was an authority to remove the first accused from the post of Surgeon in the Government Hospital and he in his evidence has stated having perused the records pertaining to the trap of the accused and as there was prima facie material, he granted the sanction as per Ex. P11, So the perusal of the evidence of P.W. 6 and Ex. P11. reveals that there is no error or illegality so far as the sanction, against the first accused is concerned. 7. It is the contention of the learned counsel for the appellant that the Trial Court committed an error in. rejecting the evidence of the complainant, the shadow witness, and attesting witness despite the ample material on record and acceptance of the bribe amount by Accused No. 2 on behalf of Accused No. 1 and merely because that, there were some discrepancies, he contends that, the substratum of the prosecution case has been proved and the discrepancies are due to the lack of memory as the evidence was recorded after live years of the trap. Therefore, It is his contention that the Trial Court had given much importance to the discrepancies that would generally occur when the witnesses are from a village and who are rustic people. 8. Therefore, It is his contention that the Trial Court had given much importance to the discrepancies that would generally occur when the witnesses are from a village and who are rustic people. 8. Per contra, the learned counsel for the respondents submitted that there are material discrepancies in the evidence of the witnesses and the Trial Court was justified in granting an acquittal. 9. Now, the perusal of the entrustment mahazar Ex.P.2 reveals that the mahazar was drawn on 3.11.2001 in between 7.00 a.m. to 8.30 a.m. in the presence of the attesting witnesses, the complainant and the other police officials. A discrepancy is found in the evidence of P.W. 1 wherein she states that she had been to the Lokayuktha Police on 2.11.2001 at about 9.00 a.m. and after the mahazar, they left the Police Station at about 1.00 p.m. and proceeded to Holeiiarasipur for the purpose of trap. So P.W. 1 instead of mentioning the date as 3.11.2001 has said that it is 2.11.2001 and the time of her arrival to the Police Station is about 9.00 a.m. As could be seen from the deposition of P.W. 1 it appears that she is a semi-literate and a village rustic woman and her evidence was recorded on 1.8.2006, i.e., after about five years of the incident. Generally, whenever a witness who hails from a village background enters a witness box, they are not with free mind and in these circumstances, the possibility of making such mistakes is natural. It is not that the evidence of P.W. 1 alone has to be looked into for the purpose of considering the discrepancy as to whether it is material or otherwise and the evidence of other witnesses also is necessary to he looked into. 10. P.W. 2 who is a shadow witness states in his evidence that as per the instructions given to him on 2.11.2001. he appeared before the Lokayuktha Police on 3.11.2001 at 7.30 a.m. and that another witness P.W. 3 was also present at that time and even as could be seen front the evidence of P.W. 3, she also states that she was present in the office of the Lokayuktha on 3.11.2001 at. about 7.00 a.m. So, the scrutiny of the evidence of P.Ws. about 7.00 a.m. So, the scrutiny of the evidence of P.Ws. 2 and 3 reveal, that they went to the office of the Lokayuktha Police in the morning in between 7.00 a.m. and 7.30 a.m., they are literate and they are working as a Second Division Assistant in their respective offices and it is because of this reason, that they were able to recollect and state before the Court regarding the date of the incident and also the time of arrival to the Police Station. In the context of the evidence of these two witnesses, if the evidence of P.W. 1 the complainant is perused, it appears that, the discrepancy that has been indicated, is not a material discrepancy and she states that after coming to the office, she submitted her complaint Ex. P1. She also produced an amount of Rs. 2000 by selling her she buffaloe and she gave 20 notes of Rs. 100 denomination. She states that the notes were treated with phenolphthalein powder and there was a test with regard to the hand wash and the Sodium Carbonate liquid having turned to pink colour. So when she states all these incidents that took place on the date when she filed a complaint, it could be inferred that it might have been even complete within 1 or ½ hours and therefore, the mention of the timing in the mahazar Ex.P2 is 7.00 to 8.30 a.m. appears to be reasonable and no importance could be given to the discrepancies in the evidence of P.W. 1 as regards the tinting. 11. So far as Ex. P3 is concerned, the trap mahazar was prepared in the chamber of Accused No. 1 in between 12.40 and 6.00 p.m. on 12.11.2001. But if the evidence of P.W. 1 in this regard is perused, she states in her evidence that she was in the hospital for about one hour at the time of the trap and returned to the village. So this discrepancy in the evidence of P.W. 1 is again canvassed as a material discrepancy to disbelieve the evidence of P.W. 1, but it is relevant to note that as to what happened in the chambers of Accused No. 1. on that, day during the trap has been stated by P.W. 1 in detail. So this discrepancy in the evidence of P.W. 1 is again canvassed as a material discrepancy to disbelieve the evidence of P.W. 1, but it is relevant to note that as to what happened in the chambers of Accused No. 1. on that, day during the trap has been stated by P.W. 1 in detail. She states that she went to the chambers of Accused No. 1 with P.W. 4 and Karigowda her relative and she waited, for the arrival of the Doctor and the Doctor came at, 10.00 a.m. and asked her as to whether she has brought, the money and she said that she has brought an amount of Rs. 2,000/-. Accused No. 1 told her to give the money in the hands of Accused No. 2 and accordingly, she went to the first floor and gave the amount in the hands of Accused No. 2 on his demand and gave a signal and furthermore, she also states that as to what happened subsequent to the trap, i.e., the conversion of Sodium Carbonate liquid turned into pink colour after taking the hand wash of Accused No. 2 including the pant pocket wash M.O.8. So as could be seen from the evidence of P.W. 1, she has narrated as to what happened on that day, but so far as the timing is concerned, she is incorrect. Though she states it as 10.00 a.m. in the morning, intact the evidence of other witnesses, i.e., P.Ws. 2 and 4 are concerned, they are definite about the timing of her arrival, the timing of trap, the drawing up of panchanama and the complaint of the proceedings and when the evidence of these two witnesses P.Ws. 2 and 4 is consistent, the discrepancy in the evidence of P.W. 1 cannot be said to be a material discrepancy in view of the reasons stated supra as P.W. 1 is a village rustic woman. 12. Furthermore, P.Ws. 2 and 4 have stated in their evidence that they left to Holeriarasipur at 9.45 a.m. and that the trap was held at about 12.45 p.m. on that day and in the circumstances, the version of P.W. 1 about she having went to the hospital at 10.00 a.m. is substantiated by the evidence of P.Ws. 2 and 3. 13. If the evidence of these witnesses P.Ws. 2 and 3. 13. If the evidence of these witnesses P.Ws. 1, 2 and 4 is considered with the evidence of the Investigating Officer P.W. 5, he also states the manner in which the entrustment mahazar was done and treating the notes with phenolphthalein powder and giving the same to P.W. 1 for payment to Accused No. 2 on demand and the version of P.W. 1 reveals that at the first instance, she approached Accused No. 1 requesting for Surgery of Hernia, on Karigwoda and she states that Accused No. 1 demanded an amount of Rs. 4,000/-. Furthermore, on the date when the trap was to be held and when they went to the hospital, Accused No. 1. asked as to how much money she has brought and she said that she has brought Rs. 2,000/-. The accused No. 1 advised P.W. 1. to go to Accused No. 2 and pay the money and she also states that when she went to Accused No. 2. he asked as to whether she has brought the money as instructed by the Doctor Accused No. 1 and she paid the amount of Rs. 2,000/-, the tainted notes in the hands of Accused No. 2. So far as the demand and acceptance is concerned, the Trial Court holds that there is no demand or acceptance. But as could be seen from the evidence of P.Ws. 1 and 2, there is a specific demand wherein Accused No. 1 asked as to how much money she has brought and accused No. 2 before receiving the money asked as to whether she has brought the money as indicated by the Doctor and then the payment was made. So this much of evidence is sufficient to conclude that there is demand and acceptance. There would be some minor discrepancies as to the place where actual payment is made and there Is some inconsistency in the evidence of P.W. 1 wherein once she states that Accused No. 2 came to the chambers of Accused No. 1 and the amount was paid after he went to file first floor and at the same time she states that Accused No. 2 was in the first floor and on instruction of Accused No. 1, she went, to the first floor and made the payment. This discrepancy in my considered opinion is minor which do not dislodge the substratum of the case. 14. This discrepancy in my considered opinion is minor which do not dislodge the substratum of the case. 14. The learned counsel for the respondents contended that it is common in every hospital that whenever any medicine is to be purchased and it is not available in the hospital generally the patients make the payment of the amount to the officials of the hospital and it may be such an incident of paying the money for purchasing the medicines as the said Karigowda was to undergo Surgery for Hernia disease and it may be that the medicine worth Rs. 2,000/- were necessary for such a major surgery and in view of the explanation offered by Accused No. 2 that he received the money from the complainant for purchasing the medicine, the counsel submits that there is no payment of bribe or unlawful remuneration and it was not. within the knowledge of the accused that. Accused No. 2 is receiving the money as bribe amount. On this aspect of the matter, it is relevant to note that P.Ws 1, 2 and 4 have been cross-examined at length. In the cross examination, there is no suggestion to any of the witnesses about the acceptance of the amount of Rs. 2,000/- for the purpose of purchasing the medicine. Furthermore, the evidence of P.W. 1 is clear wherein she states that at the first instance when she had been to the Doctor for the performance of the surgery, the Doctor had demanded Rs. 4,000/- and on the date of the trap, she brought Rs. 2,000/- and when she went to Accused No. 1, he asked to pay the amount to Accused No. 2. So, if it was for purchasing the medicine, at least there could have been some suggestion in the cross examination. Even as could be seen from the statement of Accused Nos. 1 and 2. nothing has been said by either Accused No. 1 or Accused No. 2 for having taken the money for the purpose of purchasing the medicine, In. this context, the submission made by the learned counsel for the respondents having received the tainted notes for purchasing the medicine by Accused No. 2 cannot be accepted. 15. Furthermore, if is relevant to note that no mala fides have been attributed against P.W. 1 for lodging a false complaint against both the accused. this context, the submission made by the learned counsel for the respondents having received the tainted notes for purchasing the medicine by Accused No. 2 cannot be accepted. 15. Furthermore, if is relevant to note that no mala fides have been attributed against P.W. 1 for lodging a false complaint against both the accused. She is a rustic woman of a village and she went to the hospital at the first instance with her brother-in-law’s son Karl Gowda for getting a Surgery performed and at that time, the Doctor Accused No. 1 demanded an amount, of Rs. 4,000/- and she expressed her inability and thereafter, she went to the Lokayuktha Police and submitted a complaint. Admittedly, she is a village woman and there is no reason for her to implicate the accused unnecessarily and except, putting forth a plea that a false complaint has been filed at the instance of Dr. Mahadev. In the statement recorded under Section 313 Cr.P.C. of Accused No. 1, the evidence of P.Ws. 1, 2 and 4 is sufficient to come to the conclusion with all certainty that on the dale of trap Accused No. 2 received the money as instructed by Accused No. 1. Apart from the ample material placed on record, there is a presumption even under Section 20 of the P.C. Act and from the clinching material available on record, the only inference of the guilt can be drawn and not of the innocence of the accused. 16. Though the learned counsel contended that Accused No. 2 is an agent, at the most has received the money on behalf of Accused No. 1 and therefore, he claims that Accused No. 2 cannot he held responsible for the bribe amount, it is relevant to note that on the date when the trap was to be done, Accused No. 1 called Accused No. 2 and asked to receive the money from the complainant. It is at the instruction of Accused No. 1 that Accused No. 2 received the money. Accused No. 2 was very much aware that the amount which was payable was unlawful remuneration. So in this context, if the facts are looked into, a conspiracy amongst the accused can be presumed. It is at the instruction of Accused No. 1 that Accused No. 2 received the money. Accused No. 2 was very much aware that the amount which was payable was unlawful remuneration. So in this context, if the facts are looked into, a conspiracy amongst the accused can be presumed. So when once the substratum of the prosecution case has been strongly proved, the minor discrepancies that have been brought, on record are insufficient to brush aside the clinching material brought on record by the prosecution and therefore, I am of the opinion that the Trial Court committed an error In granting an order of acquittal. The Trial Court has given much importance to the discrepancies referred to supra, it has forgotten to note that the discrepancies are common particularly in the evidence of a rustic women of the village. In that view of the matter, I am of the opinion that interference in the judgment and order of acquittal is necessary by this Court in this appeal. Hence. I answer the points I to 3 in affirmative and proceed to pass the following order: ORDER The appeal is allowed setting aside the judgment and order of acquittal. The respondents 1 and 2 (Accused Nos. 1 and 2) are convicted for the offence punishable under Sections 7 and 13(1)(d) read with 13(2) of the Act. For the offence under Section 7 of the Act, they are ordered to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 5,000/-, in default, to undergo simple imprisonment for three months. For the offence under Section 13(1)(d) read with 13(2) of the Act, they are ordered to undergo simple imprisonment for one year and Respondent No. 1 (Accused No. 1) is ordered to pay a fine of Rs. 25,000/-. in default, to undergo simple imprisonment for six months and Respondent No. 2 (Accused No. 2) is ordered to pay a fine of Rs. 5,000/-. in default to undergo simple imprisonment for six months. Both the sentences shall run concurrently. The Trial Court is directed to secure the presence of the respondents (accused) to undergo the sentence.