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2020 DIGILAW 445 (KAR)

Ravi Bhimappa Avaradi v. State Of Karnataka

2020-02-14

K.N.PHANEENDRA

body2020
JUDGMENT 1. The appellant is arraigned as accused in Spl. C.C. No. 34/2006. The learned IV Addl. Dist. Judge & Special Judge, Belgaum has convicted the accused No.1-appellant herein for the offences punishable u/S 7 and 13(1)(d) of Prevention of Corruption act, 1988 (for short P.C. Act) and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.25,000/-, in default, to undergo simple imprisonment for three months for the aforesaid offences and further sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/-, in default, to undergo simple imprisonment for three months for the offence punishable u/S 13(2) of the P.C. Act. 2. I have heard arguments of the learned counsel for the appellant, learned special counsel for the Lokayuktha and I have carefully perused the entire materials on record. 3. The brief facts that emanate from the records are that, the accused No.1-Ravi Bhimappa Avaradi was working as Village Accountant of Mahishwadgi village in Athani taluk, Belgaum district. It is alleged that the land bearing No. 296/5 and 257/1 were standing in the name of the father of the complainant Shrenik Chandappa Upadaya and there was a dispute between the complainants father and one Shripal Parish Upadaya of the same village. The said dispute was decided in favour of the complainant by the Civil court, Athani. After disposal of the said case the complainants father had given application to the Tahasildar for making diary entries as per the order of the Court. The said application was forwarded to the appellant being the concerned Village Accountant for further work. In this context it is alleged that the complainants father met the appellant many times requesting for the said work. It is the specific case of the prosecution that on 05.10.2005 the complainant met the appellant in his private office at Athani. It is alleged that the accused No.1 demanded a sum of Rs.4,000/- for to do the favourable work to the complainant. The complainant, in fact expressed his inability to pay such a huge amount and on bargaining, the same was reduced to Rs.2,500/-. It is the further case of the complainant that he gave Rs.500/- as advance and told that the balance amount will be paid within 4 or 5 days. The complainant, in fact expressed his inability to pay such a huge amount and on bargaining, the same was reduced to Rs.2,500/-. It is the further case of the complainant that he gave Rs.500/- as advance and told that the balance amount will be paid within 4 or 5 days. As the complainant did not wish to pay any bribe to the accused, he lodged a complaint before the Lokayuktha Police, who have laid the trap against the accused. 4. It is alleged that on 11.10.2005 the complainant and other shadow witness went to the office of the accused (private office) at Athani and it is alleged that the accused No.1 has demanded a bribe of Rs.2,000/- for the purpose of doing official favour to the complainant and insisted to give the same to accused No.2- Bhimappa Mallappa Janwad who was sitting there in the office. Accordingly, in the presence of appellant-accused No.1 himself the complainant gave the said amount to the hands of accused No.2 on the direction issued by accused No.1. Therefore, it is alleged that the accused has demanded and accepted the said bribe amount as illegal gratification for the purpose of showing official favour in favour of the complainant by abusing his position as a public servant and thereby committed the above said offence. The accused No.2 was also charged for the offence of receiving the said bribe amount at the instance of accused No.1 a sum of Rs.2,000/- and he has also committed the offence u/S 8 of the P.C. Act. 5. During the pendency of the case before the trial Court, the accused No.2 died and the proceedings against him was abated. Accused No.1 (appellant herein) was found guilty for the above said sections and the trial Court has recorded the judgment of conviction and sentenced the accused for the above said offences, against which, the present appeal is preferred. 6. Learned counsel for the appellant strenuously argued before this Court that though there was some evidence placed before the Court by the prosecution with regard to the demand and acceptance of the money through accused No.2 but the surrounding circumstances clearly disclose that due to vengeance, the accused No.2 was planted for the purpose of trapping the appellant. 6. Learned counsel for the appellant strenuously argued before this Court that though there was some evidence placed before the Court by the prosecution with regard to the demand and acceptance of the money through accused No.2 but the surrounding circumstances clearly disclose that due to vengeance, the accused No.2 was planted for the purpose of trapping the appellant. There was no relationship between the accused No.1 and the accused No.2 established and in fact, the accused No.1 does not know anything about accused No.2. 7. It is further contended that though the amount was recovered at the instance of the accused, but admittedly there was no work pending with the accused. The prosecution has also suppressed material evidence before the Court in not producing the tape recorded conversation between the accused and the complainant at the time of the alleged trap. It is submitted that almost all the witnesses have invariably stated that there was no work pending with the accused. Therefore, in the absence of any work being pending with the accused, there was no occasion for the accused to demand for any money or accept any money through accused No.2. Therefore, the learned counsel strenuously contended that the prosecution has not at all proved the case beyond reasonable doubt. 8. The learned counsel also contended that there was no recovery of any tainted currency notes from the appellant, there was no previous conversation between the accused no.1-appellant and the complainant-PW5, that the PW5 was called upon to Athani to pay the remaining amount as alleged. It is contended that the accused was not the competent authority to record the entries in the RTC, he is only a person who can submit a report to the Revenue Inspector for to record the entries. Therefore, when there was no authority to the accused nor any material to show that any work was pending with accused, there was no occasion for the accused to demand any money from the complainant. Therefore, the trial Court has not properly appreciated the oral and documentary evidence on record in its proper perspective. Therefore, the said judgment is liable to be set aside and consequently the accused no.1-appellant is entitled for acquittal. 9. Therefore, the trial Court has not properly appreciated the oral and documentary evidence on record in its proper perspective. Therefore, the said judgment is liable to be set aside and consequently the accused no.1-appellant is entitled for acquittal. 9. Per contra learned Special PP Sri Mallikarjunswamy B. Hiremath, appearing for the Lokayuktha Police submitted that the complaint averments disclose that on 05.10.2005 the complainant met the accused at Athani in his private office only. Therefore, there is material to show that there was conversation between the accused no.1-appellant and the PW5 and in pursuance of the same only the complainant and the Police had been to the private office of the accused no.1 at Athani. The evidence of some of the witnesses, particularly the Investigating Officer-PW6 that he has recovered the documents from the office of the accused which show that some work was pending with the accused. Moreover, at the time of the complainant met the accused, the accused actually pretended and met the accused-complainant to believe that he was the competent authority to do favour to him and also the work was pending with him. 10. It is further contended that once the demand and acceptance is proved beyond reasonable doubt, the court has to presume that the accused has to presume that the accused has received the said amount as illegal gratification for the purpose of showing some official favour unless the same is rebutted by any strong congent and convincing evidence. The accused has also given explanation as per Ex.P.5 in which he has not denied the existence of his office at Athani. The accused was also examined as Pw1 and he has admitted the signature in ex.P.5 and there was no coercion to him in any manner. Accused No.2 has also given his explanation as per Ex.P.6 in which he has admitted the receipt of the amount paid by the complainant on the directions given by accused No.1. 11. It is further contended that there is no suggestion to any of the witnesses as to why the accused was falsely implicated. Therefore, in view of the presumption and proof of demand and acceptance, the trial Court after appreciating the entire oral and documentary evidence on record, rightly convicted the accused for the above said offence and sentenced him. 11. It is further contended that there is no suggestion to any of the witnesses as to why the accused was falsely implicated. Therefore, in view of the presumption and proof of demand and acceptance, the trial Court after appreciating the entire oral and documentary evidence on record, rightly convicted the accused for the above said offence and sentenced him. There is no reason for the court to interfere with the judgment of conviction and sentence passed by the trial Court. Therefore, it is contended that the appeal deserves to be dismissed. 12. Before adverting to the above said grounds urged before this court, it is just and necessary for this court to briefly go through the evidence recorded by the trial Court. The prosecution has examined as many as six witnesses, PWs1 to 6 and got marked Exs.P1 to 25 and material objects MOs 1 to 12 were also marked. The accused was also examined u/S 313 of Cr.P.C. The accused No.1-appellant herein also examined himself as DW1. 13. PW1 is the shadow witness and he accompanied the complainant-PW5 to the office of the accused and deposed as to what happened in the Lokayuktha office as well as in the office of the accused. PW2-Ramachandra is the Junior Engineer attached to PWD who drawn sketch of the office of the accused as per the report of the Lokayuktha Police. PW3-Vijaykumar Patil who was working as SDA in PWD, Belgaum, who acted as another panch witness who accompanied Lokayuktha Police to the office of the accused and he also spoken about as to what happened in the office of the accused on that particular day during the course of trap. PW4 is the sanctioning authority-Smt.Shalini Rajaneesh who was working as Deputy Commissioner of Belgaum during the relevant period. She has deposed that she has given sanction order to prosecute the appellant-accused No.1 as per Ex.P.21. PW5 is the complainant who has in detail stated about the entire case. PW6 is the Investigating Officer. DW1 is the accused No.1- appellant examined himself before the Court. The material witnesses in this case are, PW5-complainant, PW1-shadow witness and another panch witness and IO. There is no dispute and neither argued before this Court with regard to the sanction to prosecute granted by the PW4. PW6 is the Investigating Officer. DW1 is the accused No.1- appellant examined himself before the Court. The material witnesses in this case are, PW5-complainant, PW1-shadow witness and another panch witness and IO. There is no dispute and neither argued before this Court with regard to the sanction to prosecute granted by the PW4. Even otherwise, PW4 has categorically deposed that on 18.05.2006 she has received a letter from the Director General of Police, Lokayuktha along with the complaint, FIR, pre-trap and post trap mahazar, FSL report and statements of the witnesses and all the documents along with the entire charge sheet and after going through all the documents she was convinced prima facie that the accused has committed the offences under the provisions of the P.C. Act. Therefore, she has granted sanction order as per Ex.P.21. Nothing worth has been elicited in the course of cross-examination in order to demolish the said evidence of the witness in the examination-in-chief. It is also worth to be noted here that the said sanction order was not called in question at the earliest point of time before any authority. The suggestions made to this witness that she has not gone through in detail the contents of the documents but mechanically signed the report prepared by the case worker in her office but the said suggestion was denied. 14. Lot of questions have been put with regard to the contents of the documents sent to her but she has successfully answered the above said questions. Therefore, in my opinion, the sanction order granted by PW4 is valid and in accordance with law. Therefore, the trial court has properly appreciated and accepted Ex.P.21 as a valid sanctioned order to prosecute the accused No.1-appellant herein. 15. It is just and necessary before adverting to the material evidence on record to have the brief note of the provisions under which the accused has been charged and what the prosecution has to prove legally in order to bring home guilt of the accused. 15. It is just and necessary before adverting to the material evidence on record to have the brief note of the provisions under which the accused has been charged and what the prosecution has to prove legally in order to bring home guilt of the accused. In order to prove the guilt u/S 7 of the P.C. Act, the prosecution has to prove that the accused was a public servant on the date of the alleged offence and he has accepted or agreed to accept or obtain from any person for himself or to any person any gratification other than the legal remuneration as a motive or reward for doing or forbearing to do any official act in his official functions. 16. The word gratification used in the provision is not restricted to pecuniary gratification or to gratification in money. Even other nature of gratification is also covered. The words Legal remuneration used in the Section also should be understood that the public servant can lawfully demand and include all the remuneration which is permitted by the Government or organization to which he serves. The wordings motive or reward is also to be understood that the public servant receives gratification must be as a motive for the purpose of doing that he was not supposed to do while exercising his duty as a public servant. The motive also should be understood in such a manner based on the facts and circumstances of the entire case in order to arrive at a conclusion that there existed a motive behind the act of the accused that he wanted to do some official favour or disfavour to a person for the purpose of reward for him by way of illegal gratification. 17. In order to prove the second provision invoked in this case, i.e., Sec. 13(1)(d) of the P.C. Act, specifically which states that, if a public servant (i) by corrupt or illegal means obtains for himself or for any other person any valuable thing or pecuniary advantage, or (ii) by abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage, (iii) while holding office as a public servant obtains for any person any valuable thing or pecuniary advantage without any public interest then he is said to have committed the offence under the above said provision. Therefore, in order to prove the above said provision, the prosecution has to establish that the accused has received any valuable thing by corrupt or illegal means or he has abused his position as a public servant obtained some valuable thing or pecuniary advantage or he obtains from any person a pecuniary advantage without there being any public interest. If any one of the above said ingredient is available, then it can be safely stated that the accused has committed such an offence. 18. So far as the Section 7 is concerned, the motive or reward, the words used should follow with other words of demand and acceptance, accept or obtains the words used therein presupposes that it should be followed by a demand and acceptance of any pecuniary advantage. Then only it amounts to illegal gratification. The court can also presume existence of such motive or reward if the demand and acceptance is proved beyond reasonable doubt. Therefore, Section 20 of the P.C. Act will also come to the aid of the Courts to presume existence of motive on the part of the accused, if the demand and acceptance is proved. Section 20 says that in trial of an offence u/S 7 or 11 or clause (a)(b) of sub clause 1 of Sec. 13 of the P.C. Act, if the prosecution is able to prove that an accused person has accepted or obtains or has agreed to accept or attempt to obtain for himself any gratification other than the legal remuneration, then the Court shall presume, unless the contrary is proved that he accepted or obtained that gratification as a motive or reward as mentioned in Section 7. Therefore, if once the demand and acceptance is proved, then automatically presumption arises in favour of the prosecution that the said demand and acceptance of a gratification was received as a motive or reward for the purpose of doing some official favour to some other person. 19. Bearing in mind the above said legal principles as per the provisions of the P.C. Act, the court has to examine in this case whether the demand and acceptance has been proved in view of the said amount was received by the accused no.1-appellant as a reward or motive for to do any official favour. 19. Bearing in mind the above said legal principles as per the provisions of the P.C. Act, the court has to examine in this case whether the demand and acceptance has been proved in view of the said amount was received by the accused no.1-appellant as a reward or motive for to do any official favour. Once the presumption is raised that a demand and acceptance was existed, a motive to do some official act to favour the complainant, in such an eventuality the accused has to rebut the said presumption by establishing before the Court that he has not received the said amount to show any official favour or he has received the said gratification as a legal remuneration, which was due from the complainant or he was legally bound to pay that remuneration to the accused. This rebuttal evidence need not be proved beyond reasonable doubt on the basis of preponderance of probabilities the Court can also infer the same on the basis of legal evidence on record. 20. In the above said backdrop as I have already narrated that, there is no much dispute with regard to the demand and accepting some money by the accused no.1-appellant. However, he contended various aspects as noted above that has to be tested from the evidence on record. 21. PW1 is the shadow witness, PW5 is the complainant and PW3 another witness, their chief examination coupled with the evidence of PW6, they have invariably and persistently stated as to how the investigation went on. They have categorically stated that, before the Lokayuktha Police after lodgment of complaint by PW5, PW5 has produced an amount of Rs.2,000/- which was to be given to the accused, i.e., Rs.500/- x 2 and Rs.100/- x 10 notes,. In the Lokayuktha office those notes were smeared with phenoplthene powder by one of the witnesses and afterwards both the hands of the said witnesses were washed, i.e., the hands of Pw1 who kept the tainted currency notes after counting the same into the pocket of PW5. His hands were washed by sodium carbonate solution and the resultant solution turned into pink colour. It is instructed to the witnesses that whoever touches the said currency notes, if that portion of the body is washed with sodium carbonate solution, the same would turn into pink in colour, which indicates receipt of such currency notes by the said persons. His hands were washed by sodium carbonate solution and the resultant solution turned into pink colour. It is instructed to the witnesses that whoever touches the said currency notes, if that portion of the body is washed with sodium carbonate solution, the same would turn into pink in colour, which indicates receipt of such currency notes by the said persons. All these witnesses have also stated that PWs1 and 5 were instructed to go to the office of the accused, enquire about the work of PW5 and only if the accused demands money (bribe), then only the tainted currency notes should be handed over to the accused. If the accused receives the said amount, then the complainant-PW5 has to give a pre-instructed signal by waiving his hand to the officials of the Lokayuktha Police. 22. All these witnesses have also reiterated in their examination in chief that PWs1 and 5 had been to the office of the accused at Athani which was a private office and the accused No.1 was present and some 4-5 persons were also inside the office. After the said 4-5 persons left the office of the appellant, PW5 and PW1 went inside and then Pw5 asked the accused about his work, then the accused asked PW5 as to whether he has brought the money and then only PW5 told that he has brought money and handed over to the hands of accused No.1 on the instructions given by accused. No.1. Accused No.2 was also sitting in the same office in front of accused, at that time. Accused No.2 received the said amount and counted the same and kept the same inside his shirt pocket. 23. It is also stated by all these witnesses that after getting the pre-instructed signal from PW5, the Lokayuktha Police rushed to the office of the accused and then PW5 and PW1 have disclosed as to the demand made by accused No.1 and as per his direction amount was paid to accused No.2. The Lokayuktha Police have immediately washed hands of accused Nos.1 and 2 with sodium carbonate solution. The hand wash of accused No.2 turned to pink colour and they were separately preserved. The hand wash of accused No.1 did not turn to any colour has in fact he has not received any money. The Lokayuktha Police have immediately washed hands of accused Nos.1 and 2 with sodium carbonate solution. The hand wash of accused No.2 turned to pink colour and they were separately preserved. The hand wash of accused No.1 did not turn to any colour has in fact he has not received any money. On the report of the Police Inspector, the accused No.2 has produced the amount of Rs.2,000/- and in fact, PW1 counted the same and examined the same with the serial number of the notes noted by him at the time of entrustment mahazar drawn in the office of the Lokayuktha and found them correct. The said amount was also seized by the Police and they were all identified these documents. The witnesses have also identified all the material objects marked before the Court. They have also stated that shirt of accused No.2 was also washed with the sodium carbonate solution, the pocket portion also the solution also turned to pink colour. All of them have also stated that the IO has provided an opportunity to accused Nos.1 and 2, the accused No.1-appellant that he does not know anything and he has been falsely implicated with the help of accused No.2. The accused No.2, however, gave his voluntary statement stating that the accused No.2 has received the money on the direction issued by accused No.1. 24. In the course of cross-examination nothing worth has been elicited so far as these aspects are concerned, except suggesting whole case of the prosecution as false and taking denial and suggestion that whatever written in the mahazar Exs.P1 and P2 are all false and the witnesses does not know anything about the same. But, all those suggestions have been denied by these witnesses. 25. The main concentration was made in the course of cross-examination that the accused persons had no office at Athani at all and in fact a false case has been foisted against him. The main contention of the appellant counsel is that, in the course of cross-examination these witnesses including the I.O. have stated that the accused had already sent report to the Revenue Inspector pertaining to the work of PW5. The main contention of the appellant counsel is that, in the course of cross-examination these witnesses including the I.O. have stated that the accused had already sent report to the Revenue Inspector pertaining to the work of PW5. Of course, all the witnesses have admitted that after the trap proceedings, the IO has secured documents from the office of the Tahasildar and all the witnesses have also admitted that the accused was working as Village Accountant at Maheshwarwadi. It is suggested that there is no office of the accused at Athani but the same has been denied. But, the fact remains that the Police have secured the documents from the office of the Tahasildar, is even admitted by the IO. But, merely because the documents were recovered from the office of the Tahasildar, it does not mean to say that the accused had no role to play in connection with the case. The accused no.1- appellant who is examined before the Court, in fact, has stated that he is not having any office at athani. He has also stated that the accused has sent all the documents pertaining to the complainant to the Revenue Inspector on 16.09.2005 itself along with the objections filed by one Shripal Upadhaya on 02.09.2005 and the said case was pending with the Revenue Inspector. In fact, on 08.10.2005 the Revenue Inspector has also rejected the application of the complainant. The same was noted in the records of the office of the Tahasildar. It is further stated by him that on the date of incident, on 11.10.2005 the accused had been to Athani and her Advocate by name Dhanpal Harogeri has persuaded the accused to go to his house and in the house of the accused, the trap proceedings were conducted with the help of accused No.2. 26. It is also stated that the Police thereafter secured the records from the office of the Tahasildar but the evidence of the IO also show that some register and other documents were also taken from the office of the accused at Athani. It is not only a register seized as noted in the trap panchanama. It is to be noted that the accused was having some role to receive the application and the objections and put up the note to the Revenue Inspector for further orders. It is not only a register seized as noted in the trap panchanama. It is to be noted that the accused was having some role to receive the application and the objections and put up the note to the Revenue Inspector for further orders. Whether the order of the Revenue Inspector dated 08.10.2005 was communicated to the complainant-PW5 is not stated by the accused in his evidence. 27. In the course of cross-examination the accused No.1- appellant has admitted that the documents Ex.P.16 and as well the application and objections were attested by him pertaining to the case of PW5. Therefore, he has to explain if there was no work why he has to direct the PW5 to hand over the money to accused No.2. there is no suggestion made to the witnesses as or to the IO in what manner they were enemically disposed of against the accused No.1 and why, particularly PW5 has to lodge a false complaint against him. In the absence of such elucidation of facts in the evidence, the Court cannot hold that the IO and the witnesses have got any enemical disposition against accused No.1. 28. Exs.P4 and P5-statemenets of accused Nos.1 and 2 clearly disclose that the accused No.2 has admitted that he has received the amount on the directions of accused No.1. There is no reason as to why accused No.2 has to give such a false statement before the IO immediately after the trap proceedings. Therefore, it also creates a serious doubt with regard to the defence taken by the accused. Therefore, it cannot be with all certainty stated that the accused has proved that there was no existence of any work with him pertaining to PW5 and that a false case has been foisted against him and he was trapped by the Police with the active assistance of accused No.2. 29. When the prosecution has proved the demand and acceptance beyond reasonable doubt the presumption under Section 20 of the P.C. Act arises in favour of the prosecution to the effect that, the appellant has received the said amount with the help of accused No.2 as a motive or reward for the purpose of showing official favour to the complainant. As this Court has come to the conclusion that the rebuttal evidence adduced by the accused cannot be said to have been proved even by means of preponderance of probabilities. As this Court has come to the conclusion that the rebuttal evidence adduced by the accused cannot be said to have been proved even by means of preponderance of probabilities. Further added to the above, the accused has not even stated that the said amount was paid towards any legal remuneration. Therefore, in the absence of existence of any work with the accused the presumption that there was no work, the accused is also caught u/S 7 and 13(1)(d) of the P.C. Act if that amount was proved to be received by the accused without any public interest. Therefore, once the demand and acceptance is proved, the accused has to explain as to why he received that amount. There is no material to show that the accused sending all the records pertaining to PW5 to the Revenue Inspector after performing his duty, the matter was exclusively pending with the Revenue Inspector and the same was intimated to PW5 or the said fact was within the knowledge of PW5. There is no suggestion made to PW5 that these facts were well within the knowledge of PW5 and inspite of that, in order to falsely implicate the accused the said amount was paid to accused No.2 though not demanded by the appellant. In the absence of such materials elicited in the evidence of PW5 it is very difficult to draw an inference that the accused has not at all received the said amount as a motive or reward for the purpose of showing official favour to the complainant. Therefore, I am of the opinion that the prosecution has proved the guilt of the accused for the above said offences. 30. Last but not the least, some lapse on the part of the IO is also brought to the notice of this Court that the IO and the witnesses have stated that PW5 was provided with a tape recorder and he has recorded the conversation between himself and the accused but the same was not produced before the Court. When the evidence of PWs 1 to 3 and 5 is available which fully corroborates the evidence of the IO, mere non production of the said tape recorder is not fatal to the prosecution as it is evident from the records that the IO has not taken the voice sample of the accused before the jurisdictional Court. When the evidence of PWs 1 to 3 and 5 is available which fully corroborates the evidence of the IO, mere non production of the said tape recorder is not fatal to the prosecution as it is evident from the records that the IO has not taken the voice sample of the accused before the jurisdictional Court. Therefore, he might have felt that there is a procedural irregularity committed by him, as such, he might not have produced the said tape recorder before the Court. Even otherwise, the prosecution case cannot be negated only on the ground that some lapses was there on the part of the IO. Therefore, even if there is any lapse on the part of the IO. Considering such lapses also it cannot be called as deliberate or intentional and particularly when the other materials on record are sufficient to come to a definite conclusion with regard to the guilt of the accused. In such an eventuality much importance need not be given to such lapses. 31. In this regard it is worth to refer a decision of the apex Court reported in (2010) 9 SCC 567 between Muniyappan v. State of Tamil Nadu wherein the apex court at paragraph No. 55 has observed as under: '55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.' - - - 32. Applying the above said principles to the case, in my opinion, the said lapse is not fatal to the prosecution case as the conversation between accused and PW5 has been proved. Hence, for the above said reasons I am of the opinion the prosecution has proved the case beyond reasonable doubt. The trial Court has also by taking into consideration all the surrounding circumstances commensurately sentenced the accused with appropriate punishment. Hence, the judgment of the trial Court does not require any interference, as such, the appeal is devoid of merits and the same is liable to be dismissed. Accordingly, the appeal is dismissed.