A. Soman v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.UBAID** **MONDAY, THE 14TH DAY OF MARCH 2016/24TH PHALGUNA, 1937** **CRL.A.No. 104 of 2008 ( ) --------------------------** **C.C.NO.14/2004 OF THE ENQUIRY COMMISSIONER AND SPECIAL COURT, THIRUVANANTHAPURAM** **--------------** **APPELLANT(S)/ACCUSED::** **---------------------** **A.SOMAN, HCQ 3565 (RTD) PATHANAPURAM POLICE STATION.** **BY ADV. SRI.V.PREMCHAND** **RESPONDENT(S)/COMPLAINANT::** **---------------------------** **THE STATE OF KERALA REPRESENTED BY** **THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE, AND ANTI CORRUPTION BUREAU, KOLLAM, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.S.HYMA** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. P. UBAID, J. --------------------------------------Crl.Appeal No.104 of 2008 --------------------------------------Dated this the 14[th] day of March, 2016 ## JUDGMENT The appellant herein was a police Head Constable at the Pathanapuram Police Station in August, 2002. He faced prosecution before the Enquiry Commissioner and Special Judge, Thiruvananthapuram, on a complaint made by one Nazeema. One Kuttan Pillai had made a criminal complaint against the said Nazeema and her paternal uncle, before the Judicial First Class Magistrate Court, Punalur, and the said complaint was forwarded to the police under Section 156(3) Cr.P.C. The complaint of Nazeema is that in connection with the said case, the appellant met her at her residence and demanded an amount of Rs.500/-, and later, he again came to her house on 06.08.2002, and demanded an amount of Rs.1,000/- as illegal gratification for absolving her from the criminal liability. On 06.08.2002, her son was also there at her house when demand was made by the Head Constable. As she was not inclined to make payment of illegal gratification, she approached the Dy.S.P., VACB, Kollam, and made a complaint on 10.08.2002. On the said complaint, the **2** _Crl.Appeal No.104/2008_ VACB arranged a trap. Accordingly, Nazeema and her son, along with the trap witness, approached the accused at the Police Station on 10.08.2002 at about 12.40 PM. The Head Constable accepted Rs.1,000/- from Nazeema in the presence of her son and the other trap witness. Within no time, on getting signal from the complainant, the Vigilance team reached there, seized the phenolphthalein tainted currency from his possession, and arrested him on the spot. After investigation, the police submitted final report in court. 2. The accused appeared before the trial court and pleaded not guilty to the charge framed against him under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act (for short, 'the P.C.Act'). The prosecution examined seven witnesses including the defacto complainant, and proved Exts.P1 to P17 documents including Nazeema's complaint, and the prosecution sanction obtained under Section 19 of the P.C.Act. The material objects including the phenolphthalein tainted currency seized from the possession of the accused were also identified during trial as MO1 to MO7 series. During trial, the accused projected a defence of total denial and submitted that he was viciously trapped due to previous enmity. The accused examined one witness as DW1. On an appreciation of the evidence, the trial court found the accused guilty. **3** _Crl.Appeal No.104/2008_ On conviction he was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/- under Section 13(2) read with Section 13(1)(d) of the P.C.Act, and to undergo another term of rigorous imprisonment for two years under Section 7 of the P.C.Act, by judgment dated 31.12.2007 in C.C.No.14/2004. Aggrieved by the said judgment of conviction, the accused has come up in appeal. 3. When this appeal came up for hearing, the learned counsel for the appellant submitted that the whole prosecution case is suspicious, that the evidence given by the complainant and the others is not believable or acceptable, and that the Head Constable was in fact viciously trapped due to some previous enmity. On the other hand, the learned Public Prosecutor submitted that there is absolutely no reason or ground to suspect the evidence given by the complainant and others, and that nobody had any reason to make any false complaint, or to adduce false evidence against the Head Constable. 4. Of the seven witnesses examined by the prosecution, PW1 is the complainant Nazeema, PW2 is her son, who had witnessed the alleged demand and acceptance, PW3 is the trap witness, who witnessed the acceptance of illegal gratification by the accused, PW4 is the other trap witness, who witnessed the seizure of tainted money and arrest of the accused, PW5 is the District Superintendent of Police, **4** _Crl.Appeal No.104/2008_ who proved Ext.P10 prosecution sanction granted under Section 19 of the P.C.Act, PW6 is the Dy.S.P., VACB, who laidthe trap and detected the offence, and PW7 is the officer, who investigated the case and laid charge. 5. Ext.P10 prosecution sanction stands well proved by PW5. His evidence shows that he granted sanction on a consideration of all the relevant aspects and materials, and on an independent application of his mind to the process. He was the officer competent to remove the accused from service as on the date of sanction. In fact the accused has no case that Ext.P10 prosecution sanction is not acceptable under the law. I find that Ext.P10 is a proper and legal sanction, and it stands well proved by PW5. 6. To prove the essentials, the prosecution relies on PW1 to PW3. The complainant has proved Ext.P1 complaint made by her on 10.08.2002, and she is definite that demand for illegal gratification was made by the accused on an offer that he would see that she is absolved from the criminal prosecution brought by Kuttan Pillai. She is definite in evidence that on 06.08.2002, which was a harthal day, the accused came at her house in a taxi jeep, and the accused demanded Rs.1,000/- as illegal gratification. She is well corroborated by PW2, her son. The alleged demand is well proved by these two witnesses. **5** _Crl.Appeal No.104/2008_ Acceptance of Rs.1,000/- by the accused is proved by PW1 to PW3. The evidence of the complainant is that she approached the Vigilance with complaint on 10.08.2002, the trap money produced by her was seized as per mahazar, and after demonstrating phenolphthalein test, she was instructed to meet the accused and make payment. PW3 and PW4 were also arranged by the Dy.S.P. as trap witnesses. PW3 accompanied PW1 and her son to the police station, and at about 12.40 P.M., the trap money was given to the accused on demand. Quite cunningly, he did not receive it in his hands. He directed the complainant to put the amount in the table drawer. This is the evidence given by PW2 and PW3 also. All are consistent that PW3 accompanied PW1 and PW2 under the pretext that he was sent by Kuttan Pillai, and he also handed over a letter to the Head Constable, proved as Ext.P6(a). The Head Constable believed that PW3 was sent by Kuttan Pillai to report settlement. So, in his presence, he accepted Rs.1,000/- from PW1 at the Police Station. On the material aspects, PW1 to PW3 are quite consistent. The trap witness is definite that Rs.1,000/- was paid by PW1 to the Head Constable when he made demand at the police station. The amount was not received by him in his hands, and as directed by him the complainant put the amount in the table drawer. Immediately, the Head Constable locked the table **6** _Crl.Appeal No.104/2008_ drawer, and within no time, the Vigilance team reached there, seized the phenolphthalein tainted currency as per mahazar, and arrested the Head Constable on the spot. I find no reason or ground to disbelieve the evidence given by PW1 to PW5. 7. The learned counsel submitted that PW1 and PW2 are interested witnesses. It is not known why it is submitted that they are interested witnesses. Just because a person made a complaint, he cannot be branded as an interested witness. He can be treated as interested witness, only if he has any special reason to see that the accused is prosecuted or punished. I find that the complaint made by PW1 is quite genuine, and during trial, she gave consistent evidence proving her complaint. She is well supported and corroborated by PW2 and PW3. On demand, she is corroborated by PW2, and on acceptance, there is corroborating evidence by PW3, the trap witness. 8. In so many decisions, the Honourable Supreme Court has held that merely on the basis of recovery of tainted money from the possession of the accused, he cannot be convicted by the court. But here, there is clear and convincing evidence to prove the essentials. This is not a case where the prosecution merely relies on recovery of tainted money. The learned counsel cited a decision of the Honourable Supreme Court in **State of Punjab v. Madan Mohan Lal Verma** **7** _Crl.Appeal No.104/2008_ **[(2013)14 SCC 153]** . In fact, in so many decisions like **Selvaraj v. State of Karnataka [2015(10)SCC 230], and Sathyanarayanamoorthy's case [2015(10)SCC 152]** , the Honourable Supreme Court has held that without evidence convincingly proving the essentials (demand and acceptance) an accused cannot be punished under the P.C.Act. The Honourable Supreme Court held in all these cases that merely on the basis of recovery of tainted money, an accused cannot be convicted under the P.C.Act. But here, the position is that there is clear and convincing evidence to prove the essentials. Demand is well proved by the complainant and her son. Acceptance of illegal gratification is well proved by the complainant, her son, and also the trap witness examined as PW3. PW3 is definite that as directed by the Dy.S.P., he obtained the key of the drawer from the accused, he opened the table drawer, and the tainted money was seen inside the table drawer. Thus, recovery of the tainted money from the possession of the accused stands well proved. PW3, the trap witness, has no special reason or interest to give any false evidence against the Head Constable. 9. The process of recovery including the pre-trial and post trap steps is well proved by PW2 to PW4, and the detecting officer. PW3 **8** _Crl.Appeal No.104/2008_ and PW4 are the trap witnesses. Of them, one witnessed the acceptance of illegal gratification, and the other witnessed the recovery of tainted money and the arrest of the accused. Thus, I find that the evidence given by the material witnesses is quite convincing. I find no reason to disbelieve or reject their evidence. I find that the accused was rightly found guilty by the trial court on the basis of clear and convincing evidence proving the guilt beyond reasonable doubt. 10. Now, let me see whether the sentence requires interference. The sentence imposed by the trial court under Section 13(2) of the P.C.Act is rigorous imprisonment for three years, and the sentence under Section 7 of the P.C.Act is rigorous imprisonment for two years. As on the date of commission of the offence on 10.08.2002, the minimum sentence prescribed under Section 7 of the P.C.Act was imprisonment for six months, and the minimum sentence under Section 13(2) of the P.C.Act was imprisonment for one year. Now, after the 2014 amendment to the P.C.Act, the minimum sentence is imprisonment for three years and 4 years respectively. In the particular facts and circumstances, I feel it appropriate to reduce the jail sentence to the minimum possible under the law as on the date of commission of the offence. It is submitted by the learned counsel for the appellant that the appellant is practically bed ridden **9** _Crl.Appeal No.104/2008_ due to some stroke. However, when the law prescribes a minimum sentence, and when there is no other material or reason to deviate from the rule of minimum sentence, the court will have to impose the minimum possible under the law. Subject to this modification, the conviction can be confirmed in appeal. In the result, this appeal is allowed to the very limited extent of modifying and reducing the substantive sentence. The conviction made by the court below against the appellant under Sections 7 and 13(2) of the P.C.Act is confirmed. However, the substantive sentence imposed by the court below under Section 7 of the P.C.Act will stand modified and reduced to simple imprisonment for six months, and the substantive sentence under Section 13(2)of the P.C.Act will stand modified and reduced to simple imprisonment for one year. The fine sentence is maintained, with a modification that the default sentence also will stand modified and reduced to simple imprisonment for three months. **==> picture [30 x 13] intentionally omitted <==** P. UBAID, JUDGE sd // True Copy // P.A. to Judge