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2021 DIGILAW 873 (KAR)

STATE OF KARNATAKA v. JAYAMKUMARI W/O SHIVANAND

2021-09-20

RAJENDRA BADAMIKAR

body2021
JUDGMENT : Rajendra Badamikar, J. 1. This appeal is filed by the State/Lokayukta under Sections 378(1) and 378(3) of Cr.P.C. against the judgment and order of acquittal passed by the Sessions and Special Judge, Koppal in Spl.Case (PC) No. 2/2008 dated 31.10.2011 whereby the sessions judge has acquitted the accused/respondent for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 2. For the sake of convenience parties herein are referred to their original ranks occupied by them before the trial Court. 3. The brief factual matrix leading to the case are that the complainant is permanent resident of Kushtagi and he is doing the business of bricks furnace by the side of NH-13 Kushtagi and he is using the coolies to prepare the bricks. It is alleged that on 22.11.2007 at about 11.30 a.m., the Labour Inspector of Kushtagi i.e., accused has visited his bricks manufacturing furnace and one Hanumavva was working as a coolie and her sister 's daughter aged about 8-9 years was brought a child for breast feeding of Hanumavva. When the accused found the child, he has recorded the statement of the child on the ground that she is being used as a child labour in violation of the provisions of Child Labour (Prohibition and Regulation) Act, 1986 and went away by reporting that she is going to book a case against the complainant. Then the complainant went to the office of the accused in Kushtagi and requested the accused not to register a case under the Provisions of Child Labour (Prohibition and Regulation) Act, 1986 and it is alleged that at that time, accused has demanded bribe of Rs.5,000/-. It is alleged that the accused was not willing to pay the bribe and therefore, he went to Lokayuktha, Koppal and there police have handed over him a tape recorder and again he went to the office of the accused and expressed his inability to pay Rs.5,000/- and lastly she demanded bribe of Rs.2,000/- and she has received Rs.500/- on the same day itself. Then she also assured that if the balance of Rs.1500/- is paid she is not going to register a case against him and thus again on 26.11.2007, the complainant had been to Lokayuktha police station and he lodged a complaint as per Ex.P1. Then she also assured that if the balance of Rs.1500/- is paid she is not going to register a case against him and thus again on 26.11.2007, the complainant had been to Lokayuktha police station and he lodged a complaint as per Ex.P1. Thus on the basis of the complaint, crime was registered in Lokayuktha Police Station in crime No. 5/2007 for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 and FIR came to be submitted to the Spl. Court. Then the Investigating Officer has secured two Panchas CWs.2 and 3 and in their presence the complainant has produced the bribe amount of Rs.1,500/- and the same was smeared with Phenolphthalein powder and the complainant was demonstrated how it is going to change its colour when the hands dealt with phenolphthalein powder dipped in sodium carbonate solution by drawing a entrustment mahazar. 4. Then the complainant along with Pancha No. 1 went to the office of the accused situated in Kushtagi while the raiding party followed them and there, complainant went inside the chamber of the accused and it is alleged there she demanded and accepted bribe of Rs.1,500/- and on the basis of the signal passed by the complainant, she was trapped and her hand wash was taken which has shown positive to Phenolphthalein test and also the bribe amount of Rs.1,500/- was also seized by drawing a seizure mahazar as per Ex.P3. Then the Investigating Officer has also recorded the statement of all the material witnesses and also after obtaining sanction, he has submitted the charge sheet against the accused. In the meanwhile, accused was produced before the learned special judge and was remanded to judicial custody and later on enlarged on bail. 5. After submission of the charge sheet as there are sufficient grounds to proceed against the accused the special judge has taken cognizance and he secured the presence of the accused. The charge was framed against the accused and same was read over and explained and accused pleaded not guilty. To prove the guilt of the accused the prosecution has examined in all 13 witnesses as Pws-1 to 13 and also got marked 23 documents as Ex.P-1 to Ex.P-23. Ex.D-1 was marked during the cross examination and M.Os-1 to 13 were also marked on behalf of the prosecution. To prove the guilt of the accused the prosecution has examined in all 13 witnesses as Pws-1 to 13 and also got marked 23 documents as Ex.P-1 to Ex.P-23. Ex.D-1 was marked during the cross examination and M.Os-1 to 13 were also marked on behalf of the prosecution. After conclusion of evidence of prosecution, the statement of accused under Section 313 of Cr.P.C is recorded to enable the accused to explain the incriminating evidence appearing against her in the case of the prosecution and the case of the accused is of total denial. The accused has also submitted a written say stating that the complainant has approached her to pay the bribe amount but she refused it and in the said process he came in contact with her hands and further he placed the amount on her table and meanwhile the raid was held. She denied demand and acceptance and further specifically asserted that it is not possible for 2nd Pancha who was standing outside the window to hear conversation of demand and acceptance. After hearing the arguments and perusing the material evidence on record, the learned Spl. Judge by his judgment dated 31.10.2011 acquitted the accused by giving the benefit of doubt on the ground that demand and acceptance is not established. 6. Being aggrieved by this judgment of acquittal the State through Lokayuktha has preferred this appeal. 7. Heard the arguments advanced by learned counsel appearing for the State/Lokayuktha and the learned counsel for the respondent. Perused the records of the trial Court. 8. Learned counsel for the appellant would contend that the judgment of acquittal of the trial Court is contrary to the facts and probabilities of the case and evidence on record. He would further contend that though PW.1 who is the complainant has turned hostile regarding demand and acceptance, but he argued that his evidence does establish that there was demand of Rs.1,500/- and evidence of PWs.3 and 4 clearly establish demand and acceptance on the part of the accused- respondent. He would further invite the attention of the Court towards the evidence of shadow witness PW.3 who has fully supported and his evidence is also supported by the Co-Pancha as well as the Investigating Officer and hence, he would contend that recovery is established from the custody of the accused and her hand wash was shown positive to the Phenolphthalein test. Hence, he would contend that the trial Court has erred in acquitting the accused. As such he would seek for setting aside the impugned judgment and prayed for convicting the accused. 9. Per contra the learned counsel for the respondent would contend that the evidence of shadow witness is not trustworthy as the engineer has admitted that he has not shown the situation of Almirah near the windows and when there is Almirah covering the window, it is hard to accept the version of Pancha witness that he could see and hear the conversation of demand and acceptance. He would also contend that the complainant himself has turned hostile and there is no other material to show that there is any demand by the accused and as such he would further contend that when there are two views possible, the view favouring the accused shall prevail and the same shall not be disturbed by the Appellate Court. Hence, he would seek for rejection of the appeal. 10. Having heard the arguments and perusing the records, now the following point would arise for my consideration: "Whether the trial Court has erred in acquitting the accused and the judgment of the trial Court is erroneous, capricious and illegal so as to call for any interference by this Court?" 11. The complainant in the instant case is examined as PW.1 and he has not at all supported the case of the prosecution. He has turned hostile and he denied that the accused has demanded bribe amount and he has paid the bribe amount. Pw.3 is the shadow witness and in his evidence, though he claims that he was inside the office of the accused No. 1 but the cross examination reveals that he was standing outside the office and was standing near the window. The evidence of Pw.4 who is the Co-pancha is not relevant to prove regarding demand and acceptance. Pw.3 claims that he was standing at a distance of 2 meter from the window and he had heard the conversation and seen the accused demanding the bribe amount and receiving the same. The evidence of Pw.4 who is the Co-pancha is not relevant to prove regarding demand and acceptance. Pw.3 claims that he was standing at a distance of 2 meter from the window and he had heard the conversation and seen the accused demanding the bribe amount and receiving the same. In the cross examination Pw.3 specifically admitted that he had not went inside the office of the accused and he claims that he was standing at 2 meter from the window on the left side but the mahazar and the sketch drawn as per Ex.P.17 disclose that Pancha No. 1 i.e., Pw.3 was standing at a distance of 1.8 meter from the accused. Very interestingly the evidence of Pw.6 is also relevant who is an engineer and who has drawn Ex.P.17. In his cross examination he has specifically admitted that near the window shown by letter 'W ' in Ex.P17 there was a Godrej Almirah and the place shown by letter 'V', there was a steel rack. When at these two places at 'V' and 'W' there were a Almirah and rack, it is hard to accept the contention of Pw.3, that he could see and over hear the conversation between the accused and the complainant. Even Pw.6 in his cross examination specifically stated that as he was not directed by Lokayuktha office to show the Almirah and steel rack, he did not show the same in his sketch. That itself disclose that Ex.P17 sketch is not in accordance with existing facts and the Investigating Officer for the best reasons known to him does not want to show the existing aspects. Pw.3 claims that he was standing on the left side of the window and if there is a Almirah, it is practically impossible for him to see what is happening inside the room. Hence, the evidence of Pw.3 does not support the case of the prosecution and it does not inspire the confidence of the Court regarding demand and acceptance. 12. Apart from that Pw.4 is another Co-Pancha and she claims that she was standing at a distance of 50 feet from the place where the accused was sitting and the distance between herself and 1st Pancha is about 15 feet. 12. Apart from that Pw.4 is another Co-Pancha and she claims that she was standing at a distance of 50 feet from the place where the accused was sitting and the distance between herself and 1st Pancha is about 15 feet. If this version of the 2nd Pancha is taken in to consideration then Pw.3 was standing at a distance of 35 feet from the accused and not at a distance of 2 meters as claimed by him. Hence, the evidence lead clearly establishes that it does not inspire the confidence of the Court and the Investigating Officer has prevailed over the engineer to get the sketch prepared as per his convenience. Apart from that Pw.5 who is a labour officer has also admitted in his evidence that Godrej Almirah and Steel rack have been kept along window in the office. When there is a Almirah covering the window question of Pw.3 standing outside the window, hearing the conversation and seeing the transaction becomes very very remote. Hence, it is evident that Pw.3 shadow witness is unable to see the things what is going on inside the chamber of accused that too when he was standing at a distance of 35 feet from the accused and that too through window when there is a Almirah. 13. The other ground made by the prosecution is regarding the hand wash of accused being tested positive. But mere testing of hand wash to positive is not a ground and admittedly the accused has claimed that the complainant tried to put the amount in her hand and she refused it. Further there is no evidence that after drawing entrustment mahazar, they have washed their hands cleanly. Further when complainant had handled the notes smeared with Phenolphthalein powder, quite naturally when he touches the hands of the accused, hand wash of accused is bound to be tested positive. Hence, merely on testing positive for phenolphthalein test, it cannot be inferred that she has touched the amount. Admittedly, the amount was not recovered from the custody of the accused, but, it was lying on the table and the immediate statement of the accused also supports this case and that statement was instantly given by the accused. Apart from that the complainant himself has denied the demand and acceptance by the accused and he claimed that the accused has asked him to pay the fees. Apart from that the complainant himself has denied the demand and acceptance by the accused and he claimed that the accused has asked him to pay the fees. His evidence clearly disclose that he was asked to pay fees of Rs.1,500/- and he claimed that he has placed it on the table and did not handed over to the accused. Hence, there is no evidence regarding demand and acceptance. Further complainant employing the child labour is not proved as Pw.2 has specifically stated that there was no employment of the child labour who is the mother of the child. 14. It is for the prosecution to establish demand and acceptance of bribe and in the instant case, demand itself is not proved as complainant has turned hostile and the evidence of Pw.3 does not inspire the confidence of the Court. The recovery of amount is not from the custody of the accused as the amount was found on the table and admittedly the complainant himself has turned hostile and denied the demand and acceptance. Admittedly she touched the hands of the complainant. Hence, mere testing positive to the Phenolphthalein test does not amount the proof of the case of the prosecution. The accused has given written explanation as per Ex.P9, wherein she has specifically stated that the complainant has offered bribe, but, she returned the same to the complainant immediately at the spot and when he kept the amount on the table the raid was conducted. Hence, the evidence of the prosecution in this context does not inspire the confidence of the Court. Apart from that a voice recorder was also given to record the conversation and a mahazar was drawn. But both the mahazar witnesses regarding this aspect have turned hostile. There is no identification of the voice of the accused to prove regarding demand and acceptance. No experts opinion is also obtained in this regard to show that the voice found in the recorder version was that of the accused. The mahazar in this regard is also not established. 15. Considering all these lacunas, the trial Court has acquitted the accused by relying on various decisions in respect of demand and acceptance. The said view cannot be said to be impossible and the view taken by the trial Court is also possible in the given circumstances. 16. The mahazar in this regard is also not established. 15. Considering all these lacunas, the trial Court has acquitted the accused by relying on various decisions in respect of demand and acceptance. The said view cannot be said to be impossible and the view taken by the trial Court is also possible in the given circumstances. 16. Learned counsel for the respondent in this context has placed reliance on the decision reported in (2017) 5 SCC 719 in the case of Hakeem Khan and others vs. State of Madhya Pradesh, wherein it is held as under: "Penal Code, 1860-Ss.302/149-Murder trial-Reversal of acquittal by High Court-High Court substituting its view for that of trial Court-When permissible-Principles summarised-Not when it is based on a possible view, which appellate Court may very well disagree with, but which view of trial Court is not incorrect- "Possible view " of trial Court which appellate Court may very well disagree with but which cannot be interdicted, distinguished from "incorrect view" of trial Court which must be interdicted by appellate Court-Held, so long as view of trial Court can be reasonably formed, regardless of whether High Court agrees with the same or not, verdict of trial Court cannot be interdicted and view of High Court supplanted over and above the view of trial Court." 17. In the said decision, the Hon 'ble Apex Court has clearly held that the High Court cannot substitute its view over that of the trial Court when the view taken by the trial Court is also possible. It is further held that the appellate Court may very well disagree with the view taken. But if the view taken by the trial Court is also possible, it is clearly held that so long as the view of the trial Court can be reasonably formed regardless of the another view whether the High Court agrees with the same or not, verdict of the trial Court cannot be interdicted and view of the High Court cannot be supplemented over the view of the trial Court. In the instant case, considering the evidence of the complainant, the shadow witnesses Pws.5 and 6, it is evident that the view taken by the trial Court is also a possible view. In the instant case, considering the evidence of the complainant, the shadow witnesses Pws.5 and 6, it is evident that the view taken by the trial Court is also a possible view. It cannot be said that view taken by the trial Court is incorrect view and in view of the evidence on record, that view is possible view and in view of the fact that the said view is possible, the trial Court granted the benefit to the accused and as such in view of the principles enunciated by the apex Court in the above referred decision, question of this Court supplementing the said view does not arise at all. 18. Under these circumstances, looking to the facts and circumstances of the case in hand, the appeal is devoid of any merits and needs to be rejected. The trial Court is justified in acquitting the accused and the judgment of acquittal passed by the trial Court cannot be said to be erroneous, illegal or capricious so as to call for any interference by this Court. Hence, the point under consideration is answered in negative. 19. Accordingly, I proceed to pass the following: ORDER: The appeal is rejected.