Raghavan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID FRIDAY, THE 23RD DAY OF JUNE 2017/2ND ASHADHA, 1939 CRL.A.No. 263 of 2011 ( ) -------------------------AGAINST THE JUDGMENT IN CC 38/2008 of ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM DATED 03-02-2011 APPELLANT(S)/ACCUSED: --------------------------- RAGHAVAN, (FORMER SUB INSPECTOR, VALLIKUNNAM POLICE, STATION), S/O.KRISHNAN, USHAS, MUTTOM,, HARIPPAD. BY ADV. SRI.B.PRAMOD RESPONDENT(S)/COMPLAINANT: ------------------------------------ THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05.06.2017, THE COURT ON 23.06.2017, DELIVERED THE FOLLOWING: ## **P.UBAID, J.** ## **~~~~~~~~~~ Crl.A No.263 of 2011 ~~~~~~~~~~~ Dated this the 23[rd ] June, 2017** ## **J U D G M E N T** The appellant herein was a Police Sub Inspector. He faced prosecution in the Court of the Special Judge (Vigilance), Kottayam in C.C 38/2008, on the allegation that while working as Sub Inspector of Police, Vallikunnam, he accepted an amount of 1000/-, and also a liquor bottle₹ from one Mathew Varghese as illegal gratification for settling a criminal case against him. The said Mathew Varghese had assaulted one Mohanan on 7.11.2002. 2. The prosecution case is that, at about 4 p.m on 8.11.2002, when Mathew Varghese and his friend Rajan approached the Sub Inspector, he asked Sri.Mathew Varghese to settle the case for fear of the consequences when the victim is a member of scheduled caste, and for compelling the said Mohanan to settle the matter, the Sub Inspector demanded an amount of 1000/-, and a liquor₹ bottle, and also another amount of 10,000 to be paid to₹ Mohanan as compensation for settling the case. As Mathew Varghese was not inclined to make payment of **Crl.A No.263 of 2011** **2** bribe, he approached the Alappuzha unit of the Vigilance and Anti-Corruption Bureau (VACB). and made a complaint at about 10.30 a.m on 12.11.2002. On his complaint, the Deputy Superintendent of Police, VACB, Alappuzha registered a crime under Sections 7 & 13 (1) (d) r/w Section 13 (2) of the Prevention of Corruption Act (for short “the P.C Act) and arranged a trap. Two public servants were sent to witness the trap on his requisition by the District Collector. The liquor bottle and the amount of 1000/- brought by₹ Mathew Varghese was received as per an entrustment mahazar, and after demonstrating phenolphthalein test to the complainant and the witnesses, the vigilance team led by the Deputy Superintendent of Police, proceeded to the house of the Sub Inspector along with the complainant. The trap witnesses and the vigilance team remained outside and the complainant entered the house of the accused with the amount and the liquor bottle. One Police constable remained at the gate to convey the pre-arranged signal to the Dy.S.P. The accused approached the accused, and when the accused made the demand again, the complainant made **Crl.A No.263 of 2011** **3** payment of the money and the liquor bottle, which the Sub Inspector accepted and placed inside a shelf. The complainant came out and conveyed the signal. By the time the vigilance team reached there to trap the Sub Inspector, he had washed his hands and face at the porch attached to the house. However, the vigilance team led by the Dy.S.P, interrogated the accused and asked whether he had received anything illegally from the complainant. The Sub Inspector then explained that one person had approached him in connection with a case, and he was directed to meet him at the Police station. When he went inside to change the dress, that man, without his knowledge or consent entered the sitting room and placed something stealthily in a shelf. However, the amount of 1000/- and₹ the liquor bottle shown by the Sub Inspector were seized by the Dy.S.P as per a mahazar, and the accused was arrested on the spot. This is the prosecution case revealed by the F.I.R, the final report, and other prosecution records. Investigation was also done by the Deputy Superintendent of Police (Vigilance), who detected the offence, and another **Crl.A No.263 of 2011** **4** Deputy Superintendent of the VACB submitted final report in court. 3. The accused appeared before the trial court, and pleaded not guilty to the charge framed against him under Sections 7 & 13 (1) (d) r/w Section 13 (2) of the P.C Act. The prosecution examined 9 witnesses in the trial court, and also proved Exts.P1 to P10 documents. When examined under Section 313 Cr.P.C, the accused denied the incriminating circumstances and projected a defence that the amount and the liquor bottle seized by the vigilance were placed inside the shelf by the complainant, without his knowledge and consent, and that he had not accepted anything as illegal gratification. The accused did not adduce any evidence in defence. 4. On an appreciation of the evidence, the trial court found the accused guilty. On conviction he was sentenced to undergo rigorous imprisonment for three years each and to pay a fine of 20,000/- each under Sections 7 and 13 (1)₹ (d) read with Section 13 (2) of the P.C Act, by judgment dated 3.2.2011. Aggrieved by the judgment of conviction **Crl.A No.263 of 2011** **5** the accused has come up in appeal. 5. When this appeal came up for hearing, the learned counsel for the appellant submitted that the evidence regarding trap in this case is not acceptable or believable because a very material point projected as the reason for the negative result of the phenolphthalein test was not stated anywhere by PW1 at the initial stage of investigation, and such an explanation was subsequently introduced as a new case. This is a case where the phenolphthalein test at the spot of detection turned negative. When the hands of the accused were dipped in the phenolphthalein solution at the time of arrest, it did not turn pink in colour. After investigation at the first round, the VACB decided not to prosecute the accused. But such a report was not acceptable to the trial court. As directed by the trial court, the VACB conducted investigation again, and submitted final report in court against the accused . 6. Of the nine witnesses examined in the trial court, PW1 is the complainant and PW7 is the Dy.S.P, who registered the crime, laid the trap and made investigation. **Crl.A No.263 of 2011** **6** After investigation, the final report was submitted by PW8. PW2 is the person,who had accompanied the complainant to the Police station on 8.11.2002, and PW3 is the trap witness. PW5 is the person whom the accused had assaulted on 7.11.2002. PW4 was examined to prove the case sheet relating to PW5. PW9 is the vigilance constable, who had accompanied the Dy.S.P for trap, and PW6 is the head constable, who recorded the first information statement of PW5 in the assault case, and submitted a report to the Sub Inspector that the parties have settled the assault case. 7. PW1 has given definite and consistent evidence substantiating the allegations in the complaint. He and PW7 have given consistent evidence proving the trap procedure including the arrest of the accused and seizure of the phenolphthalein tainted currency from his house, kept inside a wall shelf at the sitting room. 8. The evidence PW1 is that on 7.11.2002 he had assaulted PW5 in connection with some other dispute, but it was amicably settled. On 8.11.2002, he came to know that PW5 had gone to the hospital for treatment. Finding that a **Crl.A No.263 of 2011** **7** case would come, he sent PW2 to the police station to meet the Sub Inspector. PW2 was told by the Sub Inspector that it would be risky, if PW5 proceeded with the case, and so he advised to settle the matter. Accordingly, the complainant went to the Police Station along with PW2 in the afternoon on 8.11.2002. At the police station, the accused asked him to settle the matter with PW5, and for settling the dispute, the Sub Inspector demanded an amount of 1000/-, and₹ also a liquor bottle. Another amount of 10,000/- was also₹ demanded as the money to be paid to PW5 as compensation. As PW1 was not inclined to make such payment, he approached the vigilance with a complaint. For the purpose of making complaint, he also borrowed an amount of 1500/- from PW2. At about 10.30 a.m on₹ 12.11.2002, he approached the VACB and made the Ext.P1 complaint. The amount of 1000/- and a liquor bottle₹ produced by him were received as per a mahazar by the Dy.S.P and after demonstrating phenolphthalein test to him and the witnesses, he was instructed to meet the accused at his residence. He was also instructed to hand over the **Crl.A No.263 of 2011** **8** money and the liquor bottle only if demanded by the accused. Accordingly, he, PW3 and PW9 proceeded to the house of the accused along with the vigilance team led by the Dy.S.P. PW9 and PW3 remained outside at the gate. The vigilance team led by PW7 also remained outside at a distance. When he knocked on the door, the Sub Inspector came, and asked him whether he had brought the money and liquor bottle. On such demand, he handed over the liquor bottle and the money to the Sub Inspector. The Sub Inspector accepted the money in his left hand and accepted the liquor bottle in his right hand. He then placed the bottle and money in a wall shelf at the sitting room. When Sub Inspector went to the bed room, he came outside and conveyed the pre-arranged signal. By the time the vigilance team reached there, the Sub Inspector came out and washed his hands and face at the car porch. Immediately, the vigilance team led by PW7 reached there, interrogated the Sub Inspector, and as at his instance, seized the liquor bottle and the amount of ₹1000/tainted with phenolphthalein. He and the other witnesses identified the **Crl.A No.263 of 2011** **9** currency notes, and the liquor bottle. 9. The cross-examination PW1 was mainly on one aspect that immediately after accepting the money and the liquor bottle, the accused had come out and washed his hands and face before the vigilance team reached there. Of course it is true that such a fact is not seen described in the detection mahazar. When cross-examined on this aspect, PW1 maintained a definite stand that he omitted to give such a statement to the Police because he was in a tense situation due to the unhappy seen created there by the wife of the accused who happened to faint when the vigilance team reached there. The evidence given PW1 stands not discredited. 10. PW7 has given evidence regarding the registration of crime on the complaint made by PW1, and also the trap laid by him. His evidence is that the amount of 1000/- and the liquor bottle produced by PW1 were₹ received as per a mahazar and were given some identification marks. Two public servants were also arranged to witness the trap. PW3 is one of the public **Crl.A No.263 of 2011** **10** servants who witnessed the trap. There is nothing to show that PW3 had any special interest to witness the trap or to help the VACB. He came to witness the trap only as directed by the District Collector. The trap witnesses were not chosen by the Dy.S.P. Anyway, the evidence of PW7 and PW3 is that after the demonstration of phenolphthalein test, they all proceeded to the house of the accused. He and the complainant went to the house of the accused when the others waited outside at a distance. After making payment of the money and liquor bottle, the complainant came outside and passed the pre-arranged signal. Accordingly, the vigilance team led by PW7 rushed to the house of the accused and seized the properties. The phenolphthalein test on the hands of the accused turned negative, but phenolphthalein was detected on the currency notes, and the liquor bottle handed over by the complainant to the accused. All the witnesses identified the currency notes and liquor bottle seized from the house of the accused. 11. The trap in this case including the arrest of the accused and the seizure of phenolphthalein tainted currency **Crl.A No.263 of 2011** **11** and liquor bottle stands well proved by the evidence of PW1, PW3, PW9 and PW7. 12. PW5 has given evidence that on 7.11.2002, he was assaulted by PW1, but on the next day itself, he gave a statement to the Police that he has no complaint. Ext.P6 is the F.I statement given by him to the Police, and this was recorded by PW6. The Ext.P6 F.I. Statement was recorded on 8.11.2002, and the very same Head Constable submitted the Ext.P7 report to the Sub Inspector on 9.11.2002. There is reason to believe that the Ext.P7 report, that PW1 has no complaint in the assault matter, was procured by the Sub Inspector through PW6 on 9.11.2002 with the object of settling the matter. That PW5 had sustained injuries in the incident of assault made by PW1 on the previous day, is proved by PW4 and Ext.P5 case sheet. 13. It is a fact that PW1 had assaulted PW5 on 7.11.2002. PW5 stated that though he went for treatment at the hospital, he had given a statement that he had no complaint in the matter. The complainant and PW2 met the Sub Inspector at the police station at about 4 p.m on **Crl.A No.263 of 2011** **12** 8.11.2002. Both the witnesses are definite that they were asked by the Sub Inspector to settle the assault case, and PW1 was threatened that he would be in trouble if PW5 proceeded with the case, because he is a member of scheduled caste. In the presence of PW2, the Sub Inspector demanded money and a liquor bottle to prevail upon PW5 to settle the dispute. It was accordingly the Ext.P7 report came on the next day. 14. The demand in this case stands proved by the evidence of PW1 and PW2. Their evidence will satisfy the court that the accused had demanded 1000/- and a liquor₹ bottle , at the Police Station at about 4 p.m on 8.11.2002 for settling the assault case between the complainant and PW5. The complainant also stated that when he met the accused at his residence, at about 4 p.m on 12.11.2002 as part of the trap, the Sub Inspector repeated the demand. It was accordingly, he handed over the the MO1 liquor bottle and also the MO2 series tainted currency notes to the accused at his residence. The Ext.P4 detection mahazar contains all the details of the trap procedure including the arrest of the **Crl.A No.263 of 2011** **13** accused, and the seizure of MO2 series tainted currency notes and the MO1 liquor bottle from the possession of the accused. Acceptance of the said money and liquor bottle also stands well proved by the evidence of PW1, and also the trap evidence given by PW7, PW3 and PW9. 15. It is pertinent to note that the accused does not have any dispute practically regarding the seizure of the phenolphthalein tainted currency, and the MO1 liquor bottle from his house. The question is whether PW1 brought the money and the liquor bottle there as demanded by the accused. and he paid it to the accused as demanded by him as bribe, or whether the said amount and the liquor bottle were stealthily placed by PW1 in the wall shelf without the knowledge of the accused, with the object of trapping him viciously. 16. One important aspect is whether the story of the accused having washed his hands and face at the car porch before the vigilance team reached there is a newly introduced story, or whether the negative result of phenolphthalein test on the hands of the accused would **Crl.A No.263 of 2011** **14** improbabilise the prosecution case of acceptance of illegal gratification. 17. Of course, it is true that when the hands of the accused were dipped in phenolphthalein solution at the spot of detection, the result was negative. Initially the VACB decided not to proceed with the prosecution. The defence case is that in view of the court's direction to make proper investigation, the Investigating Officer manipulated things and got a statement recorded that the accused had washed his hands and face before the vigilance team reached his house, and on the basis of such a statement subsequently introduced, the VACB brought a prosecution to satisfy the court. I find no substance in this contention raised by the defence. Even without manipulating things, the prosecution could have submitted final report in court for a prosecution under Sections 7 and 13 (1) (d) of the P.C Act, because positive result of phenolphthalein test is not always conclusive, and it is not the sole evidence to prove the trap. Such result, is only one piece of evidence. If the prosecution can prove acceptance of illegal gratification even otherwise, **Crl.A No.263 of 2011** **15** it is of little consequence that the phenolphthalein test turned negative. In every case of acceptance of tainted money, we cannot expect positive result of phenolphthalein test. It does not matter whether the result was positive or negative, or whether the negative result is explained. This is a case where the tainted money and also the liquor bottle accepted by the accused from the hands of the complainant, were seized from his possession. Once acceptance is proved, the court will have to apply the presumption under Sec.20 of the P.C Act, that such acceptance was made as illegal gratification, or as a reward for doing some favour. 18. In so many decisions, the Hon'ble Supreme Court has held that merely on the basis of the recovery of tainted money, the public servant cannot be convicted under Section 7 or 13 (1) (d) of the P.C Act. In **B.Jayaraj v. State of Andhra Pradesh [2014 (1) KLT 608],** the Hon'ble Supreme Court held that the demand of illegal gratification and acceptance of it, is the _sine quo non_ for proving the offence under Section 7 of the P.C Act, and mere recovery **Crl.A No.263 of 2011** **16** of tainted money will not prove such an offence. unless it is proved beyond reasonable doubt that the public servant voluntarily accepted the money knowing it to be bribe. The court must require clear and satisfactory evidence proving demand and acceptance. If such necessary elements are proved, and if the court is well satisfied by evidence beyond any reasonable doubt that the money seized from his possession was accepted by him as illegal gratification with the knowledge that it is a bribe, it is of little consequence that the phenolphthalein test turned negative. Anyway in this case, there is an explanation given by the complainant, though not seen recorded in the detection mahazar, that by the time the vigilance team led by PW7 reached the house of the accused, the Sub Inspector had washed his hands and face at the car porch. Just because such a statement by way of explanation for the negative result, was not stated at the spot of detection by the complainant, the case of acceptance cannot be suspected or rejected. The complainant in this case is a common man. He may not be knowing the consequence when the Sub Inspector washed **Crl.A No.263 of 2011** **17** his hands and face. If he were a man having knowledge of the technicalities and implications of trap procedure, he would have definitely thought of the consequences of the acts of the accused, and would have given a statement then and there. PW1 has given an explanation that there was an unpleasant situation when the wife of the accused fainted when her husband was arrested by the Dy.S.P. Anyway, in the present circumstances where recovery of the tainted money and the liquor bottle, specifically marked as the money and property for trap, were seized from the house of the accused at his instance, or as pointed out by him, I find that the other aspect, that the phenolphthalein test turned negative, will have no consequence, and it can be ignored. All the material witnesses well identified the phenolphthalein tainted currency and liquor bottle during trial. The defence projected by the accused that the currency notes and liquor bottle were placed inside the shelf by the complainant without his knowledge or consent when he went to the bed room, is quite unacceptable, and it stands not probabilised in any manner. It is quite a shabby defence that the **Crl.A No.263 of 2011** **18** complainant entered the house of a Sub Inspector of police, and stealthily placed something inside a shelf without the knowledge or consent of the Sub Inspector. 19. As discussed above, I find on an examination of the entire evidence in this case that the prosecution case stands well proved. Seizure of the tainted money and the liquor bottle stands well proved, thereby proving acceptance. The prosecution has proved the essential elements of the offences alleged. I find no reason to disbelieve the material witnesses including the complainant, or to reject their evidence. The post-trap and pre-trap procedures are well proved by the Dy.S.P examined as PW7. There is absolutely nothing to show that PW1 had any reason or grudge to make a false complaint against the Sub Inspector. I find no reason for interference in appeal. The conviction is only to be confirmed in appeal 20. Now the question of sentence. The accused retired from service long back, and he must be now aged more than 70 years. The offence was detected in January, 2002, and now were in June, 2017. On a consideration of **Crl.A No.263 of 2011** **19** all the relevant aspects including the present age of the accused, the long lapse of years since the date of detection and also the amount involved, I feel that the minimum sentence prescribed under the law as on the date of detection will be the adequate sentence in this case, and the nature of the sentence also can be altered as simple. As on the date of detection in this case, the minimum sentence prescribed under Sec.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. The fine sentence imposed by the court below also can be reasonably reduced with a proportionate reduction in the default sentence In the result, the conviction against the appellant in C.C 38/2008 made by the court below under Sections 7 and 13 ( 1) (d) read with Section 13 (2) of the P.C Act is confirmed, and the appeal is disposed of accordingly. However, the jail sentence imposed by the court below under Sec.7 of the P.C Act will stand reduced and modified to simple imprisonment for six months, and the jail sentence **20** ## **Crl.A No.263 of 2011** imposed under Section 13 (1) (d) read with 13 (2) of the P.C Act will stand reduced and modified to simple imprisonment for one year. The fine sentence imposed by the court below under two sections will stand reduced to an amount of ₹ 5000/- each, and the default sentence also will stand reduced to simple imprisonment for one month each. The appellant will get the benefit of set off as already ordered by the trial court. Sd/- **P.UBAID JUDGE** ma /True copy/ P.S to Judge