P. Krishnankutty v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.UBAID** **WEDNESDAY, THE 22ND DAY OF MAY 2019 / 1ST JYAISHTA, 1941** **CRL.A.No.1093 of 2008** **AGAINST THE JUDGMENT IN CC 61/2004 of ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM DATED 25-04-2008** **---------------** **- APPELLANT/ACCUSED :** **P. KRISHNANKUTTY, AGED 56, S/O.PARAMESWARAN PILLAI, FORMERLY JAIL WARDER, DISTRICT JAIL, THIRUVANANTHAPURAM, AND NOW RESIDING AT "SUGARTHAM" T.C.17/476 (1), CHADIYARA, POOJAPURA, THIRUVANANTHAPURAM.** **BY ADVS. SRI.M.RAMASWAMY PILLAI SRI.P.M.JOSEPH** **- RESPONDENT/STATE & COMPLAINANT :** **STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI.A. RAJESH, SPL PUBLIC PROSECUTOR, VACB** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.3.2019, THE COURT ON 22.5.2019 PASSED THE FOLLOWING:** CRL.A.No.1093/2008 -: 2 :- ## **JUDGMENT** The appellant herein challenges the conviction and sentence against him under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (P.C.Act) in C.C.No.61 of 2004 of the Special Court(Vigilance), Thiruvananthapuram. He faced trial on the allegation that while working as a Warder of the Attakulangara Sub Jail, he demanded and accepted an amount of Rs.1,000/- as bribe from one Lawrence for permitting him to visit his co-accused who had been in judicial custody in a crime of the Thiruvananthapuram Fort Police Station. The special Investigation Unit of the Thiruvananthapuram Vigilance and Anti Corruption Bureau (VACB) registered the crime on the complaint made by the said Lawrence. He and the co-accused had been in judicial custody in connection with a theft case of the Fort Police Station, Thiruvananthapuram. After a short period of custody, Lawrence was released on bail. The other accused continued in custody, and Lawrence used to CRL.A.No.1093/2008 -: 3 :- visit his co-accused in jail after he was released on bail. His complaint is that the different Warders of the Attakulangara Sub Jail including the accused herein had accepted money from him on many occasions for permitting him to visit his co-accused, that even his wife had to pay bribe to the Warders for permission to visit him when he was in jail, and that when he came to the jail on 18.11.1998 for visiting his co-accused, this accused and the other Warders Madhu, Gopan and Subramanian accepted Rs.100/- each from him, and on that day this accused even demanded an amount of Rs.1,000/- secretly. Accepting the demand, he offered payment and agreed to come back on 20.11.1998. On 19.11.1998, Lawrence approached the Deputy Superintendent of Police, VACB, Thiruvananthapuram Unit. He was asked to come on the next day with the required trap money. Accordingly, he approached the Deputy Superintendent of Police on 20.11.1998 and made a complaint. On the said complaint, the VACB registered a crime and received the trap money as per a mahazar. After demonstrating phenolphthalein test, Lawrence was instructed by the CRL.A.No.1093/2008 -: 4 :- Deputy Superintendent of Police to meet the accused at the Sub Jail, and make payment of bribe, if demanded. Accordingly, Lawrence went to the jail, followed by the Deputy Superintendent of Police and the others including a public servant arranged as trap witness. The Dy.S.P. and others remained outside at a distance, and Lawrence went to the Sub Jail to meet the accused. On seeing Lawrence, the accused came outside and met Lawrence at a shed in front of the Sub Jail. At the said shed, Lawrence made payment of the phenolphthalein tainted money when demanded by the accused, and Lawrence conveyed the pre-arranged signal. On getting the signal, the Vigilance team led by the Dy.S.P. reached the spot, seized the tainted money from the possession of the accused, and arrested the accused on the spot. 2. The accused appeared before the learned trial Judge, and pleaded not guilty to the charge framed against him. The prosecution examined fifteen witnesses, and proved Exts.P1 to P19 documents in the trial court. The MO1 to MO7 properties were also identified during trial. The accused denied the CRL.A.No.1093/2008 -: 5 :- incriminating circumstances, when examined under Section 313 Cr.P.C., and projected a defence that he was viciously trapped by the complainant with the help of the Vigilance Officers. The accused did not adduce any oral evidence, but, Ext.D1 was marked on his side. 3. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for two years under Section 7 of the P.C.Act, and to undergo another term of rigorous imprisonment for three years, and also to pay a fine of Rs.5,000/- under Section 13(1)(d) read with Section 13(2) of the P.C.Act. Aggrieved by the judgment of conviction dated 25.4.2008, the accused has come up in appeal. 4. When the appeal came up for hearing, the learned counsel for the appellant reiterated the defence projected by the accused, that he was viciously trapped. As an explanation for the recovery of tainted money from the possession of the accused, the defence version is that with the object of viciously trapping the accused the complainant Lawrence thrust the tainted money into the pants' CRL.A.No.1093/2008 -: 6 :- pocket of the accused without his consent, and within no time, he was caught by the Vigilance team. 5. Before going to the evidence on factual aspects, and also the probability of the defence urged by the accused, let me see whether there is a proper prosecution sanction in this case under Section 19 of the P.C.Act. Ext.P16 is the prosecution sanction proved by PW11. As regards the official status of the accused, the defence does not have any dispute. Ext.P13 order shows that the accused was posted as Warder at the Attakulangara Sub Jail. When examined under Section 313 Cr.P.C., the accused practically admitted that he was a warder, and submitted that he was viciously trapped by the accused. PW11 has given evidence that he granted the Ext.P16 sanction in his capacity as Deputy Inspector General of Police, and that he was the authority competent to remove the accused from service. His evidence shows that he granted the sanction after examining the prosecution records and also after applying his mind to the facts of the case. PW11 was not cross-examined by the defence. Thus, it stands proved by Ext.P16 and the CRL.A.No.1093/2008 -: 7 :- evidence of PW11 that Ext.P16 is a valid and proper prosecution sanction granted under Section 19 of the P.C.Act, and it was issued by PW11 after applying his mind to the facts of the case, as the authority competent to remove the accused from service. 6. The defence projected by the accused is that he was viciously trapped for the reason that the complainant was, on many occasions, denied permission to visit his co-accused in the jail. The defence version is that the tainted money was thrust into the pants' pocket of the accused without his knowledge or consent. Of course, such a version is really unbelievable, that a person could thrust some money into the pocket of the accused. The tainted money continued in the pocket of the accused or in his hands for some time till the Vigilance team reached the spot. The accused has no explanation why he kept the tainted money for a few minutes, if it were thrust into his pocket by the complainant. Curiously enough such a suggestion was not put to PW1 during crossexamination. The learned counsel cited the decision of this Court in **Prakash Pai v. State of Kerala** [2015 (3) CRL.A.No.1093/2008 -: 8 :- KLT 989] wherein this Court held that when the prosecution is based on a trap, it must be the concern of the Court to examine the whole materials, and find whether the trap is a genuine trap made on a genuine complaint, or whether it is a vicious trap arranged on a mischievous complaint by somebody to trap the public servant. In this case, on an examination of the evidence given by the complainant, and on an analysis of the various aspects of the defence projected by the accused, I find nothing to come to the conclusion, or even to suspect that the trap in this case is a vicious trap. I find nothing to probabilise the defence case that the tainted money was thrust into the pants' pocket of the accused by the complainant. 7. Now let me see whether the case on facts stands well proved beyond reasonable doubt. PW1 is the de facto complainant, and PW8 is the public servant arranged by the VACB to witness the trap. PW15 is the Deputy Superintendent of Police who received the complaint, registered the crime, and arranged the trap. The detection was made by him in the presence of the complainant and others. On getting the pre- CRL.A.No.1093/2008 -: 9 :- arranged signal from the complainant, he reached the spot, recovered the tainted money from the possession of the accused, and arrested him on the spot. As regards the process of detection, or the recovery of tainted money, the accused cannot have any dispute in view of the defence projected by him, that the tainted money was thrust into his pants' pocket by the complainant. Of course, it is true that recovery of tainted money alone cannot be a ground to find the accused guilty. We have decisions of this Court and also the Honourable Supreme Court that to convict a public servant on the allegation of acceptance of illegal gratification, there must be evidence to prove the essential elements. One is demand, and the other is acceptance of illegal gratification. The presumption under Section 20 of the P.C.Act also cannot be applied merely on the basis of recovery of tainted money. To apply the said presumption, there must be evidence otherwise to prove acceptance by the public servant. Once the prosecution has proved acceptance of money by the public servant otherwise than as legal remuneration or legal fee, or when the CRL.A.No.1093/2008 -: 10 :- public servant does not have any explanation for the unauthorised acceptance of money, the Court will have to apply the presumption under Section 20 of the P.C.Act, that the money was accepted as a reward for abuse of power or for some unauthorised act or illegal favour. Of course, in this case, there is only the evidence of the complainant to prove the essentials. PW8, the public servant arranged by the VACB to witness the trap, does not have a case that he had seen the accused accepting money from the complainant. As instructed by the Dy.S.P., PW8 stood at a distance and the complainant went to the gate of the Sub Jail. However, PW8 has stated that he had seen the complainant going upto the gate of the Sub Jail, and also a person in uniform coming out and meeting the complainant at the shed near the gate. He could not specifically identify the person in uniform. However, he has given clear evidence proving the recovery of tainted money from the possession of the accused. 8. PW15 has also given clear and convincing evidence proving the recovery of tainted money from the possession of the accused. Investigation was made CRL.A.No.1093/2008 -: 11 :- by PW13 and PW14. There is nothing to show that there was any flaw or irregularity in the investigation conducted by them. The accused also could not point out anything vitiating or affecting the investigation conducted by PW13 and PW14. Thus, I find that the case was properly investigated by PW13 and PW14. As regards the process of detection, or the process of recovery of tainted money by PW15 from the possession of the accused, much discussion need not be made because, these factual aspects are practically admitted by the accused, subject to the defence of vicious trap projected by him. Still let me see whether the evidence given by the complainant would convincingly prove demand and acceptance beyond reasonable doubt. 9. This is a case where the complainant has fully supported the prosecution. This is not a case where any material witness deviated from the prosecution story and gave evidence against the prosecution. To prove demand, we cannot expect any other independent evidence because, demand of illegal gratification is very often made secretly by public servants. The question is whether the solitary CRL.A.No.1093/2008 -: 12 :- evidence of the complainant is acceptable without independent corroboration. 10. PW3 is the wife of the complainant. She has not given any direct evidence regarding payment of bribe to the accused, or any other warders. Her evidence is only regarding some statements given to her by her husband regarding acceptance of bribe by the accused and the other warders of the Attakulangara Sub Jail. So, her evidence need not be discussed much. PW2 is the Jail Superintendent, who produced some documents and registers during investigation. He proved the gate register, Register of under trial prisoners, staff register, etc. The witness specifically proved the entries in the registers showing that PW1 was an under trial prisoner in jail, and he also proved the register showing the names of persons, who visited the prisoners at the Jail. Of course, it is not material whether the name of PW1 would find a place in the visitors' register. His evidence is that he was unauthorisedly permitted by the warders to visit the co-accused by accepting bribe, and so, his name would not be entered in the CRL.A.No.1093/2008 -: 13 :- Register of visitors. PW4 was a warder of the Sub Jail, Attakulangara at the relevant time. He had gate duty on the date of detection. His evidence is that the accused had duty of jail blocks on 20.11.1993 when he was the gate keeper. He has also given evidence that PW1 had come at the Jail on 20.11.1993. His evidence will have to be read along with the evidence of PW1 regarding the visit made by him at the Jail on 20.11.1993. PW5 was the Head Warder of the Jail at the relevant time. His evidence also shows that PW4 was on gate duty on 20.11.1993 at the Sub Jail, and that the accused had block duty on that day. PW6 was another warder of the Jail. He proved the entries in Ext.P3 at sheet No.48 regarding the duties allotted to different persons at the Jail on 20.11.1998. His evidence is that the accused had block duty in the afternoon on 20.11.1993 at the Sub Jail. Thus the evidence given by the jail officials including the Jail Superintendent would show that PW1 was an under trial prisoner at the Sub Jail, Attakulangara during the relevant time, that he was released on bail prior to 20.11.1998, that PW1 had visited the jail on CRL.A.No.1093/2008 -: 14 :- 20.11.1998, and that on that day, PW4 had gate duty and the accused had block duty at the Jail. The presence of PW4 at the jail gate is relevant because the evidence of PW1 is that after accepting `1,000/as bribe, the accused returned `100/- (tainted currency) with instruction to hand it over to the gate keeper (PW4). PW4 has no case that he was tendered or offered any money by PW1. Any way, the fact that he was on gate duty corroborates the other version that after accepting `1,000/- as bribe, `100/- was given back by the accused to PW1 with instruction to give it to PW4. 11. The complainant examined as PW1 has given definite and consistent evidence proving the factual aspects of demand and acceptance. There is nothing to show that he had any special reason or grudge to make or foist a complaint against the jail warders. I find nothing to probabilise the defence case that he was viciously trapped by PW1, or that PW1 had any reason to trap him viciously. Of course, on the material aspects of demand and acceptance, there is only the evidence of the complainant. CRL.A.No.1093/2008 -: 15 :- 12. PW1 has given evidence regarding the acceptance of money by the different jail warders, including the accused on many occasions. He has affirmed that on 13.11.1998, when he came to visit his co-accused, four warders, including the accused had accepted `100/- each as bribe. On 18.11.1998, when he again came to visit his co-accused, the warders accepted money from him, and on that day, the accused herein demanded `1,000/- as bribe, and he was also directed to bring it in lump on the next day. Though PW1 has given evidence regarding acceptance of money by the different jail warders on different occasions, the prosecution case is on a single instance of acceptance of `1,000/- by the accused on 20.11.1998. Demand was made on 18.11.1998, but this demand was not heard by anybody else. PW1 agreed and offered to come with money next time, and instead of making payment of bribe, he chose to approach the DySP, Vigilance on 19.11.1998. On that day, PW1 was instructed to come on the next day with the trap money. The evidence of PW1 is that as instructed by PW15, he reached the office of PW15 with the trap money, it was received by CRL.A.No.1093/2008 -: 16 :- PW15 as per a mahazar, the phenolphthalein test was demonstrated to him and the other public servants brought by the Dy.S.P as trap witnesses. PW1, the other trap witness (PW8), and also the Dy.S.P have very well proved the detection mahazar, and also the entrustment mahazar, as per which the trap money was entrusted by PW1 to PW15. The complainant was thoroughly cross-examined by the defence, but PW1 stood firm, and affirmed in evidence that on 20.11.1998, the accused had accepted ten phenolphthalein tainted currency of `100/- from him, he received the amount in his hands and put it in his pants' pocket. One 100/- rupee currency was returned by the accused with instruction to hand it over to the gate keeper, Stephen (PW4). The complainant immediately gave signal as pre-arranged, and within no time, the Vigilance team led by PW15 reached there, questioned the accused, recovered the tainted money and arrested the accused on the spot. I find no reason to disbelieve PW1 or to suspect his evidence or to reject his evidence. The fact of acceptance is well corroborated by the fact of recovery of tainted CRL.A.No.1093/2008 -: 17 :- money from the possession of the accused. This recovery is well proved by PW8, and also the complainant. The fact of recovery is proved by the jail officials also. The fact of recovery proved by PW15, PW8 and the complainant very well supports the case of acceptance of bribe. 13. When the case of acceptance is very well acceptable, and rather proved beyond reasonable doubt, the court need not insist on corroboration on the aspect of demand. The demand made by the accused on 18.11.1998 is well proved by PW1 convincingly and beyond reasonable doubt. The court cannot expect and insist on independent corroboration to prove demand. If the evidence given by the complainant on demand is acceptable, and if the fact of acceptance is also convincingly proved, the court need not doubt or suspect the evidence regarding demand. In this case, on an appreciation of the evidence, I find that the evidence given by the complainant on demand is well acceptable without corroboration, and there is absolutely no reason for the complainant to foist a false case against the accused. Though the evidence CRL.A.No.1093/2008 -: 18 :- is regarding acceptance of money on differenct occasions, the definite evidence is only regarding acceptance of money on 20.11.1998. The money accepted on the said date was recovered by the detecting officer on the spot. The phenolphthalein test made by the detecting officer on the spot turned positive. Of course, it is true that recovery of tainted money alone cannot be a ground to punish a public servant. In this case, what is available is not merely the recovery of tainted money. 14. PW8 is the public servant brought by PW15 to witness the trap. Of course, the trap was witnessed by him, and he has given evidence regarding the pretrap and the post-trap procedures. His evidence shows that he could not have actually seen the accused accepting money from PW1. He saw the accused approaching the gate, and he also saw a person in uniform coming out of the jail, and going to the shed in front of the gate. The prosecution case is that money was accepted by the accused at this shed. The definite evidence of PW1 is also that at the shed the accused met him as pre-planned, and when the accused CRL.A.No.1093/2008 -: 19 :- demanded the money, he handed over the tainted currency of `1,000/- (10 x `100/-) to the accused. A 100/- rupee note was returned by the accused, directing PW1 to give to the gate keeper, but before it could be handed over, the entire money was recovered by the vigilance team. The said single currency was taken by the Dy.S.P from the possession of the complainant. This single currency was separately identified during trial as MO2. The MO1 series was identified as the other nine tainted currency of `100/-. 15. The accused has no explanation for the recovery of the tainted money of `900/- from his possession by the Vigilance team. As already stated, the accused would practically accept or admit the fact of recovery of tainted money subject to the defence projected by him. But, this defence stands not in any manner proved or probabilised. The accused has no explanation for accepting an amount of `1,000/- from PW1 at the jail premises. The evidence given by PW1 that the accused and other jail warders had accepted bribe from him on different occasions stands not CRL.A.No.1093/2008 -: 20 :- effectively discredited. Of course, it is true that there is evidence against some other jail warders also. That the prosecution did not think of proceeding against the others, or to prosecute the others would not absolve the accused from his criminal liability, once the demand made by him for bribe, and also acceptance of bribe by him, are very well proved. He cannot seek acquittal, or he cannot claim acquittal on the ground that the other jail warders, who had accepted bribe from PW1 on some other occasions are not being prosecuted. I find that the prosecution case stands very well proved beyond reasonable doubt. 16. Now, the question of sentence. Though what is alleged and proved is acceptance of bribe on one occasion, the complainant has given evidence regarding the acceptance of money by the accused on some prior occasions also. But, such instances are not the subject matter of this prosecution. The detection in this case was made in November, 1998. 20 years have elapsed since the date of detection. As on the date of initiation of prosecution, the accused was aged 55 or 56 years. He must have now crossed 75 years. The CRL.A.No.1093/2008 -: 21 :- amount involved is only `1,000/-. The sentence imposed by the trial court under Section 13(1)(d) read with 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. On a consideration of the various aspects, including the long lapse of 20 years since the initiation of prosecution, and also the present age of the accused, I find that a term of one year in jail will be the adequate sentence. In the result, the conviction against the appellant under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C.Act in C.C.No.61/2004 of the trial court is confirmed, and the appeal is disposed of accordingly. However, the jail sentence imposed by the trial court under the two Sections will stand modified and reduced to rigorous imprisonment for one year each. The fine sentence imposed by the trial court under Section 13(1)(d) read with Section 13(2) of the P.C.Act is maintained, subject to the modification that the default sentence shall be rigorous imprisonment for four months. The accused CRL.A.No.1093/2008 -: 22 :- will get the benefit of set off as already ordered by the trial court. The two substantive sentences will run concurrently. The appellant will surrender before the trial court within four weeks from this date to serve out the modified sentence, and make payment of the amount of fine voluntarily, on failure of which, steps shall be taken by the trial court to enforce the modified sentence, and realise the amount of fine, or enforce the default sentence. **Sd/P.UBAID JUDGE** _//True copy//_ _P.A. To Judge_ rkj/Jvt/18.5.2019