Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 311 (KAR)

State of Karnataka v. Sharanappa

2023-02-22

RAJENDRA BADAMIKAR

body2023
JUDGMENT/ORDER 1. This appeal is filed by the State through Lokayukta challenging the judgment of acquittal dtd. 7/11/2014, passed by the Prl. Sessions Judge and Special Court, Koppal, in Special C.C. (P.C.) No.45/2011, whereby the learned Sessions Judge has acquitted the accused/respondents herein for the offences punishable under Sec. 7, 13(1)(d) read with Sec. 13(2) as well as Sec. 8 of the Prevention of Corruption Act, 1988. 2. For the sake of convenience, the parties herein are referred with the original rankings occupied by them before the Trial Court. 3. The brief factual matrix leading to the case are as under: a) That the accused No.1 Sharanappa was a Village Accountant of Juratagi village in Gangavati Taluk. The complainant claims that the land bearing Sy.No.27 situated at Juratagi was standing in the name of Yamanamma as a minor guardian of complainant and his brother and after attaining majority they have moved an application to the Special Tahasildar, for mutating their names by deleting the name of minor guardian. b) It is further alleged that accused is said to have demanded Rs.8, 000.00 to do official favour and in this regard the complainant has lodged a complaint. On the basis of the complaint, a crime was registered and trap was laid down after drawing entrustment mahazar. But however the trap was unsuccessful on 20/10/2010 and 21/10/2010 but it is alleged that on 3/11/2010 trap was successful and the tainted amount was said to have been recovered from the custody of accused No.2 who alleged to have received it on behalf of accused No.1. Then the Investigating Officer has drawn trap mahazar and he has also recorded the statement of witnesses and then submitted the charge sheet against the accused persons. The accused were arrested by the Investigating Officer and were produced before the Special Judge and they were enlarged on bail. c) Subsequently the learned Special Judge has furnished the copies of the prosecution papers and he has framed the charge against the accused. The accused pleaded not guilty and claimed to be tried. d) The prosecution has examined in all 12 witnesses and also placed reliance on 38 documents and 11 material objects. During the cross-examination of prosecution witnesses, Ex.D.1 was got marked. The accused pleaded not guilty and claimed to be tried. d) The prosecution has examined in all 12 witnesses and also placed reliance on 38 documents and 11 material objects. During the cross-examination of prosecution witnesses, Ex.D.1 was got marked. e) After conclusion of the evidence of prosecution, the statement of accused under Sec. 313 of Cr.P.C. was recorded to enable them to explain the incriminating evidence appearing against them in the case of prosecution. The case of accused is of total denial and they did not choose to lead any oral or documentary evidence in support of their evidence. However, accused Nos.1 and 2 have submitted their detail written say denying the case of the prosecution and thrusting the amount in the hands of accused No.2 who was not a public servant who attended the office pertaining to his work. f) After hearing the arguments advanced by both the parties, learned Sessions Judge by impugned judgment has acquitted both the accused. Being aggrieved by this judgment of acquittal, this appeal is being filed. 4. Heard the arguments advanced by the learned Special Public Prosecutor for Lokayukta and learned counsel appearing for respondent. Perused the records. 5. The learned Special Public Prosecutor would contend that the judgment of acquittal is erroneous and it is contended that the learned Special Judge has failed to appreciate the documentary evidence in this regard. He would also contend that the work was pending and initial demand was for Rs.10, 000.00 which was reduced to Rs.8, 000.00 and the demand and acceptance conversation was recorded in voice recorder. He would also contend that accused No.2 was independent person engaged by accused No.1 and though the complainant has turned hostile, the other material witnesses examined by the prosecution in the form of shadow witness and second pancha as well as Investigating Officer clearly supports the case of the prosecution. He would also contend that the statement obtained immediately clearly establish the case of the prosecution and further the hand wash and pant pocket wash of accused No.2 tested positive and evidence of PWs.2 and 3 is not properly appreciated by the learned Special Judge. He would further contend that tainted amount was recovered from the custody of accused and hence the presumption under Sec. 20 is required to be drawn. He would further contend that tainted amount was recovered from the custody of accused and hence the presumption under Sec. 20 is required to be drawn. Hence, he would contend that judgment of acquittal is erroneous and arbitrary as such he would seek for allowing the appeal by setting aside the impugned judgment of acquittal by convicting the accused. 6. Per contra, the learned counsel appearing for respondent would contend that two raids were unsuccessful and it is evident that the prosecution is bent upon to fix the accused and it is alleged that third raid was alleged to be successful on 3/11/2010. He would also contend that PW.1 complainant has turned hostile and his evidence was not seriously challenged. He would also invite attention of the Court that as per the case of the prosecution, the amount was kept in the pant pocket and pant pocket wash of accused No.2 is obtained, but the same is tested negative and there is no material evidence to show that accused No.2 is employed by accused No.1. He would also contend that admittedly there is no oral demand as alleged and the amount was demanded by way of signs. But the shadow witness was not able to see as to what was happening as he was outside as admitted by the other witnesses. Hence, he would contend that the entire story of prosecution is not trustworthy and as such he would seek for rejection of the appeal by confirming the judgment of acquittal. 7. Having heard the arguments and perusing the records, now the following point would arise for my consideration. "Whether the prosecution proves that the judgment of acquittal passed by the Special Judge is arbitrary, erroneous and suffers from infirmity so as to call for any interference by this Court?" 8. The contention of the prosecution that the complainant and his brother were owners of 1 acre 5 guntas of land in Sy.No.27 in Juratagi village and during their minority, the property was acquired and since they were minors, the name of their aunt Yamanamma was mutated as minor guardian. It is alleged that on 13/10/2010 the complainant and his brother moved an application for deleting the name of Yamanamma in order to mutate their names. It is alleged that on 13/10/2010 the complainant and his brother moved an application for deleting the name of Yamanamma in order to mutate their names. According to prosecution, on 14/10/2010 the complainant approached the accused and there was a demand for illegal gratification of Rs.10, 000.00 which was settled for Rs.8, 000.00. It is also alleged that on 18/10/2010 an oral complaint was made and on 18/10/2010 voice recorder was provided and then the conversation of demand was recorded. According to the prosecution, the complaint came to be lodged on 20/10/2010. 9. It is admitted that attempt of trap on 20/10/2010 and 21/10/2010 were unsuccessful and according to the prosecution, third trap was successful, which was held on 3/11/2010. According to the prosecution, on 20/10/2010 and 21/10/2010 there was inspection in the office, as a result the accused was not available. 10. The complainant is examined as PW.1 and he has turned hostile and denied the case of the prosecution. PW.10 Somappa is the brother of the complainant and he has also turned hostile, while PW.4 Ramesh is an advocate for complainant and he has also turned hostile. The prosecution is mainly relying on the evidence of shadow witness, second pancha and the Investigating Officer. 11. PW.3 Ashok Radder who is a shadow pancha in his evidence asserted that on 20/10/2010 he had been to Lokayukta office at 11.15 a.m., wherein the complainant and other pancha were present and the complainant has produced 16 notes of 500 denomination and the same was smeared with phenolphthalein powder. He has also deposed that sodium carbonate liquid was prepared and smeared notes were counted and their serial numbers were recorded and there was demonstration regarding reaction between the phenolphthalein powder and sodium carbonate liquid turning into pink. He has also deposed regarding said amount being handed over to the complainant and they proceeding for raid after drawing entrustment panchanama, but as accused was not there, the raid could not take place and they returned and the amount being returned to the complainant by cleaning phenolphthalein powder by drawing a mahazar in this regard. 12. He has also deposed that on the next day again they had been to Lokayukta office and again the earlier procedure is being conducted and again raid being unsuccessful, the amount being returned. 12. He has also deposed that on the next day again they had been to Lokayukta office and again the earlier procedure is being conducted and again raid being unsuccessful, the amount being returned. It is interesting to note hear that when the first raid was unsuccessful, the amount was returned though the raid was scheduled on the next day. Interestingly, it is alleged that the amount was cleared from phenolphthalein powder. But what is the process for clearing phenolphthalein powder is not disclosed by neither the complainant nor the Investigating Officer and in the mahazar Ex.P.4 it is simply asserted that the amount was returned after clearing the phenolphthalein powder. For the first two entrustment panchanama, the same notes were used. But however during the third entrustment mahazar, some of the notes were same and some of the notes were different. 13. PW.3 further deposed in his examination-inchief that again trap was held on 3/11/2010 and he has also deposed regarding preparing entrustment mahazar and he along with complainant approaching accused No.1 and as per his instruction amount being paid to accused No.2 and raid is being held including the recovery of amount. He has also deposed that accused No.2 received the amount and counted it and then kept it in his right side pant pocket. His evidence further disclose that hand wash has turned positive to phenolphthalein test and pant pocket wash was also taken, which has also tested positive and voice recorder was played and the demand and acceptance conversation was recorded and same was scribed in the mahazar. 14. It is important to note here that the evidence of PW.3 disclose that on 3/11/2010 at 2.00 p.m. when they had been to Juratagi, they were informed that the accused No.1 was not present and they returned. Interestingly the Investigating Officer sent them to Special Tahasildar Office. Why the Investigating Officer again insisted and sent them for Special Tahasildar Office is not at all forthcoming. Further, his evidence discloses that as per instructions he had paid the amount to accused No.2. He claims that demand was by way of signs, but the sketch and the evidence of other witnesses disclose that the place wherein the shadow witness was standing, from the said place, the place wherein accused No.1 was sitting was not visible. Further, his evidence discloses that as per instructions he had paid the amount to accused No.2. He claims that demand was by way of signs, but the sketch and the evidence of other witnesses disclose that the place wherein the shadow witness was standing, from the said place, the place wherein accused No.1 was sitting was not visible. In that event the question will arise as to how PW.3 shadow witness could see the demand which was through signal is not at all forthcoming. 15. PW.2 Srinivas Kulkarni is second pancha and he has also deposed in consonance with the evidence of PW.3. However in his cross-examination he admitted that since accused No.1 did not receive the amount, it is reported to the Investigating Officer that the amount was paid to a person who was standing by the side of the complainant. If the version of this PW.2 is taken into consideration, then it is evident that accused No.1 did not accept the tainted amount and for that reason it was paid to accused No.2. 16. PW.8 Srinivas Murthy is another witness. He is Sheristedar. He was examined to prove that the has identified the voice of accused No.1. But his evidence disclose that he is not able to identify the voice of accused No.1 and he is not certain in this regard. As such the evidence of PW.8 regarding identification of voice of accused No.1 cannot be accepted. Even the prosecution has not treated this witness as a hostile witness. 17. PW.12 is the Investigating Officer and he has deposed regarding investigation done by him, while PW.9 is the sanctioning authority. In the instant case the complainant has turned hostile and hence there is no material evidence regarding demand and acceptance. As such, the prosecution is required to prove demand and acceptance by other circumstantial evidence. In this regard the prosecution has relied on the evidence of PW.2 and PW.3. But as observed above, the evidence of PW.3 regarding he seeing the demand by way of sign cannot be accepted, as from the spot where he was standing, he was not able to see the accused. 18. Apart from that, it is also important to note that initially the witnesses claimed that two traps were unsuccessful as initially there was inspection going on. But PW.8 stated that no inspection was held in the office. 18. Apart from that, it is also important to note that initially the witnesses claimed that two traps were unsuccessful as initially there was inspection going on. But PW.8 stated that no inspection was held in the office. Apart from that, admittedly the application is filed on 13/10/2010. Further as per the KLR Rules, for mutating the names, minimum 30 days notice is mandatory. The Investigating Officer claims that he was not having knowledge of this aspect. But since he is the Investigating Officer, it was his duty to ascertain what was the period for mutating and immediately on the next day the allegations of demand were made. Even the voice recorder was not played before the Court and certificate of Sec. 65B of Indian Evidence Act is also not placed. Further, the Investigating Officer admitted that he did not take sample voice of complainant as well as accused and sent it to FSL. 19. Further, all along it is asserted that the amount was found in the custody of accused No.2. But there is no evidence to show that accused No.1 has employed accused No.2. This material link is also missing. Further PW.2 himself has admitted that the complainant has said that though accused no.1 did not receive the amount, he handed over the amount to accused No.2. This admission speaks a different version of the prosecution case. 20. As per the case of prosecution, the pant pocket wash was taken and it is tested positive to phenolphthalein test. According to the defence, the Investigating Officer has put phenolphthalein powder and sent it for FSL. On a perusal of Ex.P.38, it is evident that the pant pocket wash was tested positive to phenolphthalein test. But it is tested negative to sodium carbonate liquid. According to the case of prosecution, the pant pocket was dipped in sodium carbonate liquid. In that event it could have tested positive to phenolphthalein test, but that is not forthcoming in the instant case. Further, there is a gap of nearly 12 days between the complaint and their trap. Why there is such delay is not at all forthcoming from the prosecution. 21. Further, as per the prosecution, initially accused has alleged that signature of the brother of complainant was required and asked him to get it. Further, there is a gap of nearly 12 days between the complaint and their trap. Why there is such delay is not at all forthcoming from the prosecution. 21. Further, as per the prosecution, initially accused has alleged that signature of the brother of complainant was required and asked him to get it. But it is evident that signature of brother of complainant was already there and question of insisting for signature does not arise at all. The complainant has completely turned hostile and his brother has also not supported the case of the prosecution. No doubt the prosecution can prove the demand and acceptance by circumstantial evidence. But the circumstances in the instant case does not support the case of the prosecution. Admittedly the amount was not recovered from the custody of accused No.1. It was alleged to have been recovered from the custody of accused No.2. No evidence is forthcoming to show that accused No.2 is under the employment of accused No.1. 22. Apart from that, regarding pendency of work no material evidence is placed and trap is held within 20 days as within 20 days accused would not be in a position to mutate the name of complainant and his brother, as minimum 30 days notice period is required to be observed. 23. Considering these facts and circumstances, only on the testimony of PW.2 and PW.3, the prosecution cannot prove the guilt of the accused beyond all reasonable doubt. The material witness did not support the case of the prosecution and as observed above, genuineness of the voice recorder is also not established. Even the face of accused No.1 is not identified by any witness. Looking to these facts and circumstances, the learned Special Judge has acquitted the accused by extending the benefit of doubt. No illegality or irregularity is found with the judgment of acquittal as the said view taken by the learned Special Judge is also possible in the given facts and circumstances of the case in hand. 24. Under such circumstances, when the view taken by the learned Special Judge is also possible, the question of taking inconsistent view does not arise at all only in order to convict the accused that too in the absence of any cogent material evidence. The learned Sessions Judge has appreciated the facts and circumstances in a proper perspective and arrived at a just decision. The learned Sessions Judge has appreciated the facts and circumstances in a proper perspective and arrived at a just decision. The judgment of acquittal does not suffer from any illegality or irregularity so as to call for interference by this Court. Hence, the point under consideration is answered in the negative and as such the appeal being devoid of merit does not survive for consideration. Accordingly, I proceed to pass the following: ORDER The appeal is dismissed, by confirming the judgment of acquittal dtd. 7/11/2014, passed by the Prl. Sessions Judge and Special Court, Koppal, in Special C.C. (P.C.) No.45/2011. ii) Send back the records to the Trial Court along with a copy of this judgment.