J. Babu v. State

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **FRIDAY, THE 2ND DAY OF MARCH 2018 / 11TH PHALGUNA, 1939** **CRL.A.No. 1662 of 2008 CC 39/2004 of ENQ.COMMR. & SPL.JUDGE,TRIVANDRUM DATED 18-07-2008** ## **APPELLANT(S)/ACCUSED** **J. BABU, HC QNO. 3229, PARIPPALLY POLICE STATION,, RESIDING AT SREE VISAKH,, GANDHIPURAM, SREEKARYAM.** **BY ADV.SRI.PIRAPPANCODE V.S.SUDHIR** ## **RESPONDENT(S)/COMPLAINANT:** **STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT OF KERALA., (DY. S.P VIGILANCE AND ANTI CORRUPTION, BUREAU, KOLLAM UNIT)** **BY SRI. E.C. BINEESH FOR VACB** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **B. SUDHEENDRA KUMAR, J.** ------------------------------------------------- **Crl.Appeal No. 1662 of 2008** ------------------------------------------------Dated this the 2[nd] day of March, 2018 ## **JUDGMENT** The appellant is the accused in C.C. No. 39 of 2004 on the files of the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram. 2. The prosecution allegation is that on 22-2-2002 at about 10 a.m., the appellant demanded and accepted Rs. 500/- as bribe from the de facto complainant (CW1 not examined) as a motive for settling a petition matter pending against the de facto complainant before the Paripally Police Station. The appellant was working as a Headconstable in Parippally -2Crl.Appeal No. 1662 of 2008 Police Station during the relevant period. 3. On the basis of Ext. P5 statement given by the de facto complainant, PW6 registered Ext. P6 FIR. Thereafter, a successful trap was arranged by PW6. The appellant was arrested from the spot and tainted MO1 series of currency notes were seized from the appellant. The investigation was conducted by PW6. After completing the investigation, PW6 laid the charge before the Court. 4. In the trial, PW1 to PW6 were examined and Exts. P1 to P23 were marked for the prosecution, besides identifying MO1 series to MO6. Exts. D1 and D2 -3Crl.Appeal No. 1662 of 2008 were marked on the side of the appellant. 5. After evaluating the evidence, the trial court found the appellant guilty under Sections 7 and 13 (1)(d) read with Section 13 (2) of the P.C. Act and convicted him thereunder and sentenced him to rigorous imprisonment for two years and a fine of Rs. 5000/- and in default to simple imprisonment for three months under Section 7 of the P.C. Act and rigorous imprisonment for three years and a fine of Rs. 5000/- and in default to simple imprisonment for three months under Section 13 (1) (d) read with Section 13 (2) of the P.C. Act 6. Heard the learned counsel for the appellant -4Crl.Appeal No. 1662 of 2008 and the learned Public Prosecutor. 7. The defacto complainant was not examined before the court below as his whereabouts were not known. Therefore, the only evidence available to support the prosecution case is the evidence of PW1 and PW6. 8. PW1 stated that he accompanied the de facto complainant to the police station on 22-2-2002. He waited outside the police station. The de facto complainant went inside the police station and after some time, he came out and stated that the appellant was not in the police station. The matter was conveyed to -5Crl.Appeal No. 1662 of 2008 PW6. The de facto complainant was informed from the police station that the appellant would reach there at about 9.30 a.m. Therefore, they waited at the entrance near to the Primary Health Centre. At about 9.45 a.m., the appellant came to the premises of the police station. At that time, the de facto complainant went near to him and handed over MO1 series to the left hand of the appellant. Thereafter, signal was given to PW6. Accordingly, PW6 and party reached there. 9. The learned counsel for the appellant has argued that the evidence of PW1 with regard to the occurrence is totally contradictory to the prosecution case and the evidence of PW6 and hence, his evidence cannot be -6Crl.Appeal No. 1662 of 2008 believed. I have gone through the evidence of PW1. PW1 stated that immediately after handing over of MO1 series to the appellant, the de facto complainant had given signal. Immediately, two police constables rushed near to the appellant and caught hold of him. Within two minutes, PW6 reached there. PW1 stated that no recovery was effected from the appellant at the place. No phenolphthalene test was also conducted. No mahazar was also prepared at the spot. PW1 stated that the mahazar was drawn inside the room of the doctor of the Primary Health Centre. The phenolphthalene test was also conducted at that place. The recovery was also effected after taking the accused to that room. However, the prosecution case is that the seizure was effected from -7Crl.Appeal No. 1662 of 2008 the spot. The phenolphthalene test was also conducted at the spot. Thereafter, the major portion of the mahazar was also prepared at the spot. PW6 was the Deputy Superintendent of Police, who arranged the trap, PW6 fully supported the prosecution case. Thus, the evidence of PW1 is inconsistent and contrary to the evidence of PW6, so far as the recovery is concerned. PW1 admitted that he was having shortage of memory, hearing and eye-sight during the relevant period. 10. Eventhough PW1 stated that when PW6 came to the spot, the accused was found held by two police constables. However, PW6 stated that the accused was not caught hold of by the police constables. The -8Crl.Appeal No. 1662 of 2008 prosecution also does not have a case that the accused was caught hold of by the police constables immediately after the alleged acceptance of MO1 series of notes by the appellant. During the exaimination-in-chief, PW1 could not state as to whether his fingers were dipped in lime water or not. In the said circumstances, the learned Public Prosecutor has sought for permission to crossexamine PW1. Accordingly, PW1 was cross-examined and the further evidence of PW1 was recorded by way of cross-examination. PW1 categorically stated that no currency note was recovered from the appellant at the spot. 11. PW1 could not hear anything about the -9Crl.Appeal No. 1662 of 2008 conversation which had taken place between the appellant and the defacto complainant. This would show that there is absolutely no evidence with regard to the demand made by the appellant on 22-2-2002. Having gone through the evidence of PW1, I am of the view that the evidence of PW1 cannot be accepted as the said evidence is contradictory to the prosecution case and the evidence of PW6, who is the Trapping Officer in this case. That apart, all the relevant inputs were brought in evidence by way of cross-examination of PW1. Even then, PW1 could not withstand the cross-examination. His evidence was shattered in cross-examination. If the evidence of PW1 is eschewed, there is absolutely no other evidence to prove the acceptance of MO1 series by the -10Crl.Appeal No. 1662 of 2008 appellant. 12. The three Judge Bench of the Apex Court in B. Jayaraj v. State of Andhra Pradesh [2014 KHC 4199 = (2014) 13 SCC 55] held that the mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as 13 (1)(d) of the P.C. Act read with Section 13 (2) of the P.C. Act. The Apex Court further held in Jayaraj (supra) that if the proof of demand and acceptance of illegal gratification is absent, no presumption under Section 20 can be drawn. Another three Judge Bench of the Apex Court in Sathyanarayana Murthy .P. v. District Inspector of Police and Another -11Crl.Appeal No. 1662 of 2008 [2015 KHC 4615 = AIR 2015 SC 3549] endorsed the view in Jayaraj (supra) and held that the proof of demand of illegal gratification is the gravamen of the offence under Section 7 and Section 13 (1)(d) read with Section 13 (2) of the P.C. Act and in the absence thereof, unmistakably the charge therefor, would fail. 13. Even if the evidence of PW1 is accepted, there is absolutely no evidence in this case to prove the demand made by the appellant as the de facto complainant was not examined. That apart, the evidence of PW1 does not inspire confidence for the reasons already stated above. It is true that the evidence of PW6 would prove the recovery of tainted MO1 series from the left hand of the -12Crl.Appeal No. 1662 of 2008 appellant. However, the mere recovery of the tainted amount is not a sine qua non for holding a person guilty under Sections 7 and 13 of the P.C. Act. There has to be evidence from the side of the prosecution that the bribe was demanded and accepted by the appellant with the knowledge that it is bribe. The proof of demand and acceptance of the amount as illegal gratification is sine qua non for constituting the offences under Sections 7 and 13 (1)(d) of the P.C. Act. The prosecution is duty bound to establish that there was illegal demand of bribe and acceptance thereof and it has to be founded on facts. 14. In view of the above reasons, it has to be held that the prosecution failed to establish that the appellant -13Crl.Appeal No. 1662 of 2008 committed the offences under Sections 7 and 13 (1)(d) read with Section 13 (2) of the Act and consequently, the conviction and sentence passed by the court below cannot be sustained. In the result, this appeal stands allowed, setting aside the conviction and sentence passed by the court below and the appellant stands acquitted for the offence under Sections 7 and 13 (1)(d) read with Section 13 (2) of the Act. The bail bond of the appellant stands discharged. **Sd/-B. SUDHEENDRA KUMAR, JUDGE** . ani/ /true copy/ P.S. to Judge