M. Karunakaran v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **THURSDAY, THE 22ND DAY OF FEBRUARY 2018 / 3RD PHALGUNA, 1939** **CRL.A.No. 915 of 2008** **CC 38/2002 of ENQUIRY COMR.& SPL.JUDGE, KOZHIKODE** **------------------** ## **APPELLANT(S)/ACCUSED** **M.KARUNAKARAN, AGED 54 YEARS, S/O AMBADI, MALLUKKARAN HOUSE, KAROL, PAYYANNUR, KANNUR DISTRICT.** **BY ADVS.SRI.M.SASINDRAN** **SRI.K.P.HARISH** ## **RESPONDENT(S)/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SPECIAL PUBLIC PROSECUTOR SRI.A.RAJESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-02-2018, ALONG WITH CRL.APPEAL NO.1021/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **STK** ## **B. SUDHEENDRA KUMAR, J.** **-------------------------------Crl. Appeal Nos.915 and 1021 of 2008** **----------------------------------** Dated this the 22[nd] day of February, 2018 ## **JUDGMENT** The appellants are the accused in C.C.No.38/2002 on the files of the Court of the Enquiry Commissioner and Special Judge, Kozhikode. 2. The prosecution allegation can be briefly stated as follows: On 21.3.2001, at about 7.30 p.m., the appellants went to the shop of PW1 situated at Ambalathara and demanded an amount of Rs.2,000/- and directed PW1 to come to the Excise Range Office on 24.3.2001 at 4.00 p.m. with the money. 3. PW1 had given Ext.P1 statement to PW8 on 24.3.2001. Pursuant to Ext.P1 statement given by PW1, PW8 registered Ext.P1(a) FIR. Thereafter, a successful trap was arranged and MO1 series of notes were recovered. Thereafter, the appellants were arrested from ## **Crl. Appeal Nos.915 and 1021 of 2008** ## **-: 2 :-** the spot. After the legal formalities, the appellants were produced before the court below. Thereafter, the investigation was taken over by PW9. The investigation was completed and the final report was filed by CW33 (not examined). 4. Before the trial court, PW1 to PW9 were examined and Exts.P1 to P24 were marked for the prosecution besides identifying MO1 to MO7. DW1 was examined on behalf of the defence. After evaluating the evidence, the court below found both the appellants guilty under Sections 7 and 13(1)(d) r/w Section 13(2) of the P.C. Act and convicted them there under and sentenced the first accused to rigorous imprisonment for two years each and a fine of Rs.2,000/- each with a default clause for rigorous Imprisonment for six months each for the offence under Sections 7 and 13(1)(d) r/w Section 13(2) of the P.C. Act. The second accused was sentenced to Rigorous Imprisonment for one year each and a fine of Rs.1,000/- ## **Crl. Appeal Nos.915 and 1021 of 2008** ## **-: 3 :-** each with a default clause for simple imprisonment for three months each under Sections 7 and 13(1)(d) r/w Section 13(2) of the P.C. Act. 5. Heard. 6. The learned Advocates for the appellants have argued that there is absolutely no evidence apart from the evidence of PW1 to prove the demand and acceptance of the bribe and in the said circumstances, the conviction and sentence cannot be sustained, particularly when the evidence of PW1 is not reliable. Per contra, the learned Special Public Prosecutor has argued that the evidence of PW1 would prove the demand and acceptance of bribe by the accused and in the said circumstances, the conviction and sentence passed by the court below are justified, particularly when there was recovery of tainted notes from the appellants. 7. PW1 is the de facto complainant in this case. PW1 stated that, on 21.3.2001, at about 7.30 p.m., the ## **Crl. Appeal Nos.915 and 1021 of 2008** **-: 4 :-** appellants came to the shop of PW1 and demanded monthly contribution of bribe amounting to Rs.2,000/from PW1. The appellants also directed PW1 to come to the office of the appellants on 24.3.2001 at 4.00 p.m. PW1 is the salesman of the toddy shop in question. The owner of the said shop is DW1. The evidence of PW1 would show that PW1 had informed PW8 about the demand of the bribe by the appellants on 24.3.2001. Thereafter, he had given Ext.P1 statement before the police. After demonstration, MO1 series of notes sprinkled with phenolphthalein powder were entrusted with PW1 by the police. PW1 stated that, it was only when he was sitting in the jeep that it was decided to divide the money into two. They reached near to the office of the appellants. Thereafter, PW1 and a police constable went to the up-stair of the building where the office of the appellants was situated. Others remained near to the jeep vehicle. PW1 entered into the room when he saw ## **Crl. Appeal Nos.915 and 1021 of 2008** ## **-: 5 :-** both the accused there. He handed over Rs.1,000/- to the first accused and Rs.500/- to the second accused. Thereafter, he came out from the room and gave signal to the police. Within five minutes, the police party headed by PW8 reached the office of the appellants. Thereafter, the recovery of MO1 series was effected. 8. PW2 is another witness examined by the prosecution to prove the handing over of money by PW1 to the appellants. However, PW2 did not accompany PW1 to the office of the appellants. PW2 just remained near to the jeep vehicle. A police constable was sent along with PW1. The evidence of PW2 would show that PW2 did not witness the handing over of MO1 series by PW1 to the appellants. The police constable who accompanied PW1 to witness the handing over of MO1 series to the appellants was not examined. Therefore, there is absolutely no evidence, apart from the evidence of PW1, with regard to the demand and acceptance of bribe by the ## **Crl. Appeal Nos.915 and 1021 of 2008** ## **-: 6 :-** appellants. 9. It is true that there is evidence with regard to the recovery of tainted MO1 series. However, MO1 series were not recovered from the possession of the appellants. Out of MO1 series, an amount of Rs.1,000/- was found beneath the tray kept on the rack and an amount of Rs.500/- was recovered from the pocket of the uniform shirt found hung in the adjacent room. 10. If the recovery is from the possession of the accused, the burden of the prosecution to prove further aspect will be lesser. However, in this case, the recovery was not effected from the possession of the appellants. Therefore, the question to be considered is as to whether the prosecution could establish that MO1 series of notes were accepted by the appellants from PW1 as bribe. 11. In order to find out as to whether the prosecution could succeed in establishing its case, it is necessary to evaluate the evidence of PW1 carefully, as ## **Crl. Appeal Nos.915 and 1021 of 2008** ## **-: 7 :-** there is no other evidence before the court to prove the demand and acceptance of bribe by the appellants. 12. PW1 was admittedly the salesman of toddy shop No.36 of Ambalathara in Hosdurg Taluk. DW1 was the owner and the licensee of the said shop. Even though it was alleged that the appellants came to the above toddy shop on 21.03.2001 at 7.30 pm and demanded bribe, PW1 remained dormant till 24.03.2001. It was only on 24.03.2001 at 12 noon that PW1 approached PW8 with the above complaint. PW1 himself admitted that he did not state about the demand made by the appellants to any person till that time. PW1 admitted that he did not inform the matter even to DW1, who was the owner and licensee of the said shop. It is not discernible as to why PW1 did not inform about the demand of bribe made by the appellants even to DW1. The said conduct of PW1 is not a normal human conduct. Normally, in Vigilance cases, after getting information from the aggrieved party, ## **Crl. Appeal Nos.915 and 1021 of 2008** ## **-: 8 :-** the investigating officer used to conduct an enquiry with regard to the veracity of the allegations. However, in this case, PW8 did not even get that opportunity. 13. It is also to be noted that even as per the evidence of PW1, the amount demanded by the appellants was Rs.2,000/-. However, PW1 had given only Rs.1,000/to the first appellant and Rs.500/- to the second appellant. PW1 did not state that the appellants demanded the balance amount. PW1 also did not have any contention that PW1 told the appellants that he would give the balance amount later. If the appellants had made a demand for Rs.2,000/-, they would have naturally asked PW1 as to why the said amount was not given by PW1. However, the appellants did not even talk anything to PW1 with regard to the shortage of Rs.500/- out of the demanded amount. This also gives suspicion with regard to the evidence of PW1. 14. PW1 stated that Rs.500/- was recovered from ## **Crl. Appeal Nos.915 and 1021 of 2008** ## **-: 9 :-** the shirt hung in the adjacent room. According to PW1, apart from the said shirt, there was no other cloth in the said room. On the other hand, PW2 stated that several dresses were seen hung in the said room. Therefore, it has to be inferred that PW1 did not state the truth. Even though a Police Constable allegedly witnessed the incident, he was not examined to prove the demand and acceptance of money by the appellants. No reason has been stated by the prosecution as to why the said Police Constable was not examined. In the context of this case, the examination of the said Police Constable was very much material. The absence of non-examination of that Police Constable is also fatal to the prosecution case. 15. The evidence of PW1, PW2 and PW8 would clearly show that when PW8 asked the appellants about money, the appellants stated that they did not receive any money. Thus, the first statement of the appellants ## **Crl. Appeal Nos.915 and 1021 of 2008** ## **-: 10 :-** was that they did not receive any money. PW8 clearly stated that immediately when the appellants stated that they did not receive the money, PW8 directly inspected the rack and recovered an amount of Rs.1000/- from there. This would show that no other place was searched by PW8. It is not discernible as to why PW8 did not search the person of the appellants before searching the rack for the money. PW8 did not state that the person of the appellants had been searched before searching the rack. This would give an indication that PW8 had received information that MO1 series could be found at such and such places. It is also not discernible as to why PW1 waited from 21.03.2001 to 24.03.2001 to inform the matter to the Deputy Superintendent of Police concerned. 16. On the side of the appellants, DW1 was examined. DW1 stated that DW1 was the owner and licensee of the above said toddy shop during the relevant period. He was not informed by PW1, who was his ## **Crl. Appeal Nos.915 and 1021 of 2008** ## **-: 11 :-** employee, about the visit of the appellants to his toddy shop and the demand of Rs.2000/- made by the appellants from PW1. It is further in the evidence of DW1 that there was complaint against PW1 that PW1 used to take toddy to his house for distilling arrack. The learned counsel for the appellants has submitted that in view of the above complaint against PW1, there was vigil over the shop by the Exercise Officers and hence, PW1 was having enmity towards all the excise officers. PW1 was also aware that the Government had taken a policy not to allot any toddy shop to any individual from 01.04.2001 on wards. Therefore, PW1 was aware that if at all PW1 would make any complaint against the Excise Officers, they could hardly do anything against PW1. According to the learned Advocates for the appellants, this was the reason for PW1 in lodging false complaint against the appellants even though PW1 was not even having acquaintance with the appellants. ## **Crl. Appeal Nos.915 and 1021 of 2008** ## **-: 12 :-** 17. In view of the evidence of DW1 that there was allegation against PW1 that PW1 used to manufacture arrack using toddy at his house, and the further facts and circumstances of the case, as discussed above, this Court is of the view that it is not safe to rely on the evidence of PW1 alone to prove the demand and acceptance of bribe by the appellants. It is true that there is no rule of law or precedent which mandates that the evidence of a solitary witness cannot be accepted. It is settled law that evidence of a solitary witness can be accepted and acted upon to form the basis of conviction if the evidence is reliable and creditworthy. In this case, having gone through the evidence of PW1 as discussed above, it appears that the evidence of PW1 does not inspire confidence. It is settled law 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) r/w Section 13(2)of the P.C. Act. If ## **Crl. Appeal Nos.915 and 1021 of 2008** ## **-: 13 :-** the evidence of PW1 is eschewed, there is no evidence with regard to the demand and acceptance of illegal gratification by the appellants. 18. The Apex Court in Mukhtiar Singh v. State of Punjab [AIR 2017 SC 3382] held that twin requirements of demand and acceptance of illegal gratification had to be proved to attract the offence under Section 7 and Section 13(1)(d) r/w Section 13(2)of the P.C. Act. Three Judge Bench of the Apex Court in Jayaraj B. v. State of Andhra Pradesh [2014 KHC 4199 : 2014 (13) SCC 55] held that the proof of acceptance of illegal gratification can follow only if there is proof of demand. Since the proof of demand and acceptance of illegal gratification is absent in this case, no presumption under Section 20 of the P.C. Act can also be attracted. 19. If the appellants had received MO1 series as bribe, they would have naturally kept them in the pocket of their shirts, which they were wearing at the relevant ## **Crl. Appeal Nos.915 and 1021 of 2008** ## **-: 14 :-** time. If the evidence of PW1, that the first appellant had kept the money beneath the tray from his pocket on getting the sound of the Police jeep was correct, his pocket would have answered positive for the test of phenolphthalein. 20. The appellants had a contention that PW1 had shaken the hands of the appellants. In the said circumstances, there was nothing unnatural if the figures of the appellants had answered affirmatively in the phenolphthalein test, when the fingers of the appellants were dipped in the water containing sodium carbonate. 21. Having gone through the relevant inputs, I am of the view that even though there was recovery of tainted notes from the office of the appellants, there is absolutely no convincing evidence before the court to prove the demand and acceptance of M.O.1 series as bribe by the appellants. In the said circumstances, it cannot be said that the prosecution could establish that ## **Crl. Appeal Nos.915 and 1021 of 2008** ## **-: 15 :-** the appellants committed the offence under Sections 7 and 13(1)(d) r/w Section 13(2)of the P.C. Act. Consequently the conviction and sentence passed by the court below cannot be sustained. In the result, these appeals stand allowed, setting aside the conviction and sentence passed by the court below under Section 7 as well as 13(1)(d) r/w Section 13(2)of the P.C. Act and the appellants stand acquitted for the said offences. The bail bond of the appellants stand discharged. STK Sd/- **B. SUDHEENDRA KUMAR, JUDGE** //TRUE COPY// //P.A. TO JUDGE//