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2018 DIGILAW 3990 (MAD)

RAMACHANDRAN v. STATE

2018-10-29

G.JAYACHANDRAN

body2018
JUDGMENT G. Jayachandran, J. The Judgment of conviction and sentence dated 19.11.2010 passed in Special Case No.1 of 2005 by the learned Special Judge cum Chief Judicial Magistrate, Dindigul is being challenged in the present Criminal Appeal. 2. The appellant herein was found guilty for the offence under Sections 7 and 13(2) read with 13(1)(d) of P.C. Act. The case against him is that while he was working as Head Constable in Dindigul Taluk Police Station, one Dharmaraj along with his father, mother and wife came to the Police Station on 13.09.2003 and gave a complaint that Selvaraj, Mallika, Kaliammal, Amaravathy and Pitchai assaulted his father, mother and wife and caused injury. For the injuries sustained by them, they have been admitted in the Government Hospital, Dindigul. On receiving the complaint, Ramachandran has registered C.S.R.No.535 of 2003 against Selvaraj, Mallika, Kaliammal, Amaravathy and Pitchai for assaulting and causing injury to Chinnadurai, Rajammal and Subbammal. 3. Selvaraj in turn has given complaint against Dharmaraj, Chinnadurai, Raj and Subbammal. This complaint was also registered by the appellant in C.S.R.No.534 of 2003. On receipt of the complaint and counter complaint from Dharmaraj party and Selvaraj party, the appellant has registered a case in Crime No.892 of 2003 on the file of the Dindigul Taluk Police Station under Section 160 IPC at 09.00 p.m. on 13.09.2003. 4. The injured persons who were admitted in the Government Hospital, Dindigul got discharged on 17.09.2003. When Dharmaraj, went to the Police Station on 20.09.2003 to enquire about his complaint against Selvaraj party, for causing injury to his father, mother and wife, the accused has demanded Rs. 1,500/- as gratification to minimise the case against Dharmaraj and his family members lodged by Selvaraj. 5. Taking advantage of the counter complaint given by Selvaraj, the appellant herein has demanded bribe from Dharmaraj, who in fact, the party more aggrieved in the affray. While so, when Dharmaraj though left the matter as it is, in view of the illegal demand made by the appellant, the appellant was not ready to leave the matter as such. So on 27.09.2003, at about 11.00 p.m., he has gone to the house of Dharmaraj, disturbed him while sleeping and asked why he did not turn up to the Police Station and give the bribe amount of Rs. 1,500/-. So on 27.09.2003, at about 11.00 p.m., he has gone to the house of Dharmaraj, disturbed him while sleeping and asked why he did not turn up to the Police Station and give the bribe amount of Rs. 1,500/-. Further, he has threatened Dharmaraj that he will foist case against him, if he does not bribe him. 6. On 13.09.2003, Dharmaraj went to the Police Station and met the accused and expressed his difficulty to pay bribe. The appellant reduced the bribe amount from Rs. 1,500/- to Rs. 1,000/- and instructed Dharmaraj to pay the money on the next day. This harassment and illegal demand of gratification has prompted Dharmaraj to lodge a complaint with Inspector of Police, Vigilance and Anti Corruption Department, on 01.10.2003. 7. Based on the complaint given by Dharmaraj, Mr.Arul Amaran, Inspector of Police, Vigilance and Anti Corruption Department, registered a case in Crime No.8 of 2003 and organized trap. 8. Pursuant to the request made by the trap laying officer, two independent witnesses namely Subramanian and Ramakrishnan were present in the office of the Vigilance and Anti Corruption Department. In their presence, phenolphthalein test was demonstrated. Ten 100 rupee notes were smeared with phenolphthalein powder and entrusted to the complainant Dharmaraj. The de facto complainant Dharmaraj was instructed to proceeded to the Dindigul Taluk Police Station and met Ramachandran, Head Constable. If he demands money, he should give tainted currency to Ramachandran and after he accepts the money, he should come and give the prearranged signal. 9. Accordingly, Dharmaraj accompanied by Subramanian and Ramakrishnan along with the trap team went to the Dindigul Taluk Police Station. Near the Police Station, they stopped their vehicle and the de facto complainant along with Subramaniam were asked to go and meet Ramachandran, Head Constable. Accordingly, when Dharmaraj met Ramachandran/the appellant herein, he enquired whether the bribe money has been brought. In response, Dharmaraj took out the tainted currency notes Rs. 1,000/- from his shirt pocket and gave it to the appellant. On receiving the money, the appellant counted it and kept it in his shirt pocket. 10. The de facto complainant Dharmaraj and the shadow witness Subramaniam, came out from the Police Station and gave the pre-arranged signal to the trap team, who were waiting near the Police Station. On receipt of the signal, the trap team rushed to the Police Station and disclosed the identity to Ramachandran. 10. The de facto complainant Dharmaraj and the shadow witness Subramaniam, came out from the Police Station and gave the pre-arranged signal to the trap team, who were waiting near the Police Station. On receipt of the signal, the trap team rushed to the Police Station and disclosed the identity to Ramachandran. 11. Sodium carbonate solution was prepared and the appellant was asked to dip his hands in it. The colour of the solution turned pink indicating presence of phenolphthalein. Therefore, samples were drawn from the hand wash in two separate bottles, which were sealed and labelled. When the trap laying officer questioned Ramachandran about the receipt of money, he took out Rs. 1,000/- kept in his shirt pocket. 12. The numbers found in the currency notes were compared with the numbers recorded in the entrustment mahazar and they were found tallied. Ramachandran was asked to remove his shirt and his shirt pocket portion where he kept the currency, was subjected to sodium carbonate-phenolphthalein test. The test proved positive for the presence of phenolphthalein and therefore samples were drawn from that solution and sealed. Recovery mahazar was drawn in respect of seizure of tainted currency and shirt narrating the entire trap proceedings. The residence of Ramachandran was searched, but no incriminating document was recovered. 13. The further investigation of the case was taken up by Mr.Raja Mohammed (P.W.10), Inspector of Police, Vigilance and Anti Corruption Department. After examining the witnesses and collecting the chemical analysis report, the sanction to prosecute the appellant was obtained from the Superintendent of Police, who is the competent authority to remove a Head Constable. The final report was filed before the Special Judge cum Chief judicial Magistrate's Court, Dindigul. 14. The Trial Court after framing charges under Sections 7 and 13(1)(d) read with 13(2) of P.C. Act against Ramachandran, has conducted trial. 15. To prove the charges, the prosecution has examined 11 witnesses. 20 exhibits and 5 material objects were marked on the side of the prosecution. On the side of the defence, 6 witnesses were examined and 2 exhibits were marked. 16. The Trial Court on considering the evidence let in by the prosecution has held the accused guilty, though the de facto complainant has turned hostile and did not support the case of the prosecution. On the side of the defence, 6 witnesses were examined and 2 exhibits were marked. 16. The Trial Court on considering the evidence let in by the prosecution has held the accused guilty, though the de facto complainant has turned hostile and did not support the case of the prosecution. The Trial Court has taken note of the evidence let in by the prosecution in respect of the complaint given by Dharmaraj against Selvaraj and Others and the counter complaint given by Selvaraj against Dharmaraj and Others, the records prepared by the accused in respect of those complaints and the evidence regarding the recovery of tainted money from the possession of the accused, held the accused guilty and sentenced him to undergo 2 years rigorous imprisonment and to pay fine of Rs. 1,000/- in default to undergo 3 months simple imprisonment for offence under Section 7 of P.C. Act and sentenced him to undergo 2 years rigorous imprisonment and to pay fine of Rs. 1,000/- in default to undergo 3 months simple imprisonment for offence under Section 13(1)(d) read with 13(2) of P.C. Act. The period of sentence were ordered to run concurrently. 17. Aggrieved by the conviction and sentence, the accused has preferred the appeal on the ground that the prosecution has miserably failed to prove the case against the appellant and the Trial Court had gone beyond the scope of evidence before it, without considering the fact that the de facto complainant failed to support his own complaint and the case of the prosecution. Further the evidence let in by the defence and the documents would clearly show that the appellant was not investigating the complaints of Dharmaraj or Selvaraj and he had no occasion to visit the house of the de facto complainant at 11.00 p.m. on any day to enquire or demand illegal gratification. The contradiction between the prosecution witnesses and vagueness in the charge framed should have been taken note by the Trial Court and the benefit of doubt should have been extended to the accused. 18. The learned counsel appearing for the appellant/accused would submit that the Trial Court considering the submissions and evidence recorded in the departmental proceedings, has held the accused guilty de hors of the lapse in the prosecution by not placing the relevant material documents like observation mahazar, sketch and statement of the accused made immediately after the trap. 18. The learned counsel appearing for the appellant/accused would submit that the Trial Court considering the submissions and evidence recorded in the departmental proceedings, has held the accused guilty de hors of the lapse in the prosecution by not placing the relevant material documents like observation mahazar, sketch and statement of the accused made immediately after the trap. For the said reasons, the learned counsel would contend that mere recovery of tainted money from the possession of the accused is not a proof for demand and acceptance of illegal gratification. When the de facto complainant has turned hostile and the prosecution has failed to prove demand of illegal gratification at any point of time prior to the trap, the conviction solely based on the recovery, is not proper. The reverse burden casted upon the accused has been properly discharged by examining 6 witnesses and 2 documents. While so, the Trial Court Judgment is liable to be set aside. 19. Per contra, the learned Additional Public Prosecutor would submit that though the de facto complainant who has given the complaint and set the law in motion, was treated hostile, it does not cause any prejudice to the prosecution case in view of the other evidence which would show that this witness has been won over by the accused during the trial. 20. The learned Additional Public Prosecutor would further submit that P.W.10 had registered the case pursuant to the complaint given by P.W.2. The signature found in the complaint is marked as Ex.P.2. P.W.2 admits that there was a quarrel between his daughter and daughter of Selvaraj. In the quarrel, his mother, father and wife got injured. He admits that he went to the Police Station and met the accused and informed about the incident and gave complaint against Selvaraj and Others. P.W.2 also admits that his wife, mother and father were admitted in the hospital. Ex.P.11 is the file and Case Diary pertaining to the complaint given by Chinnadurai party and Selvaraj party regarding the occurrence happened on 13.09.2003. The accused Ramachandran has received the complaint and case has been registered by Pandiselvam, Sub Inspector of Police. P.W.3, the shadow witness has deposed that on 01.10.2003 at about 08.30 p.m., he along with P.W.2 went to Dindigul Taluk Police Station as per the trap proceedings and the instruction given by P.W.10. The accused Ramachandran has received the complaint and case has been registered by Pandiselvam, Sub Inspector of Police. P.W.3, the shadow witness has deposed that on 01.10.2003 at about 08.30 p.m., he along with P.W.2 went to Dindigul Taluk Police Station as per the trap proceedings and the instruction given by P.W.10. He deposed that the accused asked P.W.2 whether he has brought the money. In response to that, P.W.2 answered yes and gave the currency tainted with phenolphthalein and entrusted to P.W.2 earlier under the entrustment mahazar. Later that money has been recovered by the trap laying officer. The accused has not discharged the burden of explaining how he came in possession of the tainted money. The possession and recovery of tainted money from the accused and the evidence of P.W.3, who heard the accused demanding money and saw the accused receiving the money coupled with the fact that the case registered against the de facto complainant by the accused herein, based on the specific complaint of demand of illegal gratification, would prove the fact that the money received by the accused is nothing, but illegal gratification, even though the de facto complainant turned hostile. 21. The learned Additional Public Prosecutor citing the recent Judgment of the Hon'ble Supreme Court rendered in Criminal Appeal No.913 of 2016 in the case of Hemudan Nanba Gadhvi v. State of Gujarat, would submit that dispensation of justice in a criminal trial is a serious matter and cannot be allowed to become a mockery by simply allowing prime prosecution witnesses to turn hostile as a ground for acquittal. Hence, submitted that the Judgment of the Trial Court has to be confirmed. 22. Point for consideration: "Whether the Trial Court has appreciated the evidence of prosecution and the defence in proper manner to arrive at the decision of guilty?" 23. The records relied by the prosecution as well as the defence without any doubt proves that there was fight between the family of Selvaraj and family of Dharmaraj on 13.09.2003. This has culminated in petition and counter petition received under C.S.R.534 of 2003 and 535 of 2003 by the appellant herein, who was the Head Constable of Dindigul Taluk Police Station at that time. The copy of the complaint, CSR receipts and FIR registered pursuant to the complaints, all form part of Ex.P.7 and Ex.P.12. This has culminated in petition and counter petition received under C.S.R.534 of 2003 and 535 of 2003 by the appellant herein, who was the Head Constable of Dindigul Taluk Police Station at that time. The copy of the complaint, CSR receipts and FIR registered pursuant to the complaints, all form part of Ex.P.7 and Ex.P.12. This case registered in Crime No.892 of 2003 for offence under Section 160 IPC as against both the parties has been closed after payment of fine. In the said circumstances, P.W.2 admits about the incident which happened on 13.09.2003 but disown his own complaint dated 01.10.2003. Hostility of this witness for the best reason known, the Court cannot just throw away the case of the prosecution as observed by the Hon'ble Supreme Court in the Judgment cited by the learned Additional Public Prosecutor. 24. The two incriminating materials which were pitted against the accused not been properly explained by the accused/appellant herein. First, the manner in which the appellant had dealt the incident which happened on 13.09.2003. In this case, both the parties have made serious allegation of hurt and injury and being admitted in the hospital. He has not done the investigation properly even after lapse of 17 days from the incident till the date of trap. The allegation against him made by the de facto complainant is that expecting bribe money and promising to book him under the lesser offence, the accused/appellant initially demanded Rs. 1,500/- and later reduced it to Rs. 1,000/-. The reading of the complaint and the nature of the injury sustained, but the Section under which the accused has registered the complaint, clearly indicates that he has kept the decision open so that if Dharmaraj pays bribe, he can file the final report for the lesser offence or else for an aggravated offence. Therefore, there is every circumstance to infer that the accused should have demanded bribe from P.W.2. Just because P.W.2 has been won over by the accused and turned hostile, the other evidence which has followed based on the complaint given by P.W.2, cannot be washed away. 25. In this case, the evidence of P.W.3 stands unimpeached. He is a respectable officer in the Government office and he has participated in the trap proceedings on the request of the trap laying officer. He has no animosity with the accused. 25. In this case, the evidence of P.W.3 stands unimpeached. He is a respectable officer in the Government office and he has participated in the trap proceedings on the request of the trap laying officer. He has no animosity with the accused. He has categorically stated that when he and the de facto complainant met the accused at Dindigul Taluk Police Station, the accused asked the de facto complainant whether he has brought the money demanded and thereafter received the same and kept it in his pocket. There is no necessity for P.W.2 to give a complaint against the accused falsely alleging that he demanded money and there is no necessity for P.W.2 to visit Dindigul Taluk Police Station on 01.10.2003 except for giving bribe to the accused. 26. Under Section 20 of P.C. Act, the presumption against the accused, who has received the tainted money can be discharged by preponderance of probability. But mere denial will not amount to discharge of burden. It is also to be made clear that the contention of the learned counsel that mere recovery of tainted money will not lead to presumption, is also wrong. Recovery of tainted money will necessarily lead to presumption against the recipient and such presumption can be rebutted by the preponderance of probability. Neither hostility of complainant nor mere denial of demand of bribe, can be rebuttal of presumption. The accused appellant has failed to explain how the tainted money came to his shirt pocket, without he demanding and obtaining the same. 27. Therefore, this Court finds that the Trial Court has gone at length and had correctly appreciated the evidence for prosecution, the hostile witness, defence witness and the documents relied by the defence and had arrived at a right conclusion that the prosecution has proved the guilt of the accused accepting gratification other than legal remuneration as motive, to close the investigation against the de facto complainant and his family members for lesser offence. 28. In the light of the above discussion, this Court holds that there is no merit in the appeal and therefore, the appeal is liable to be dismissed. 29. In the result, this Criminal Appeal is dismissed. The Judgment of conviction and sentence dated 19.11.2010 passed in Special Case No.1 of 2005 by the learned Special Judge cum Chief Judicial Magistrate, Dindigul is confirmed. 29. In the result, this Criminal Appeal is dismissed. The Judgment of conviction and sentence dated 19.11.2010 passed in Special Case No.1 of 2005 by the learned Special Judge cum Chief Judicial Magistrate, Dindigul is confirmed. The Trial Court is directed to secure the appellant/accused and commit him to prison to undergo the remaining period of sentence. The bail bond if any executed by the appellant/accused shall stand cancelled.