State of Kerala v. Rajappan Pillai

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 10[TH] DAY OF AUGUST 2023 / 19TH SRAVANA, 1945 CRL.A NO. 1727 OF 2010 AGAINST JUDGMENT DATED 16.3.2009 IN CC 54/2005 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM APPELLANT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY THE DY.S.P., VACB, THIRUVANANTHAPURAM UNIT. BY SRI. A. RAJESH, SPL. PUBLIC PROSECUTOR VACB SMT S REKHA SR PP ## **RESPONDENT/ACCUSED:** SRI.RAJAPPAN PILLAI FORMERLY VILLAGE OFFICER, VANCHIYOOR VILLAGE OFFICE, THIRUVANANTHAPURAM. BY ADV SRI.M.RAJAGOPALAN NAIR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A.No.1727/2010 ## -:2:- ## **J U D G M E N T** Dated this the 10[th] day of August, 2023 This is an appeal against acquittal filed by the State challenging the judgment dated 16.3.2009 in C.C.No.54/2005 on the files of the Enquiry Commissioner and Special Judge, Thiruvananthapuram (for short 'the court below'). 2. The accused was prosecuted for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the PC Act'). The prosecution case in short is that, the accused while working as Village Officer, Vanchiyoor Village, during the period from October, 2001 to January, 2003, abused his official position and demanded and accepted gratification other than legal remuneration, as motive or reward for forbearing from taking possession of the RAAZ Tourist Home belonging to the father of PW1. 3. After trial, the court below found that the prosecution has failed to prove its case beyond reasonable doubt and Crl.A.No.1727/2010 -:3:- accordingly, acquitted the accused as per the impugned judgment. Challenging the said judgment of acquittal, the State preferred this appeal. 4. I have heard Sri. A. Rajesh, the learned Special Public Prosecutor for the appellant/State and Sri. M. Rajagopalan Nair, the learned counsel for the respondent/accused. 5. The learned Special Public Prosecutor submitted that the prosecution has adduced sufficient evidence to prove the demand and acceptance of bribe by the accused and the said evidence was discarded by the court below without assigning cogent reasons. The learned Prosecutor further submitted that the court below failed to appreciate the evidence on record in the correct perspective. On the other hand, the learned counsel for the respondent submitted that there is absolutely no evidence to prove the demand and acceptance of illegal gratification by the accused and the court below rightly acquitted the accused. 6. It is not in dispute that the accused was working as Village Officer, Vanchiyoor Village during the relevant period. The prosecution alleged three instances of demand and Crl.A.No.1727/2010 ## -:4:- acceptance of illegal gratification by the accused from the decoy witness examined as PW1. The first one was on 23.12.2002 at 6 pm. According to the prosecution, on that day, the accused demanded and accepted a sum of ₹900/- from PW1. The second demand and acceptance was on 24.12.2002 at 7 pm. The sum demanded and accepted was ₹500/-. It is alleged that the above said amount was claimed as a motive or reward for forbearing from taking possession of the RAAZ Tourist Home belonging to the father of PW1. The third demand alleged by the prosecution was on 2.1.2003 at 7 pm and its acceptance was on 4.1.2003 at 7 pm. The amount was ₹1,000/-. According to the prosecution, after the accused demanded ₹1,000/- more on the third occasion on 2.1.2003, PW1 informed the matter to PW5, Dy.S.P VACB, Thiruvananthapuram and the trap was laid. 7. To prove the first two transactions, the prosecution relied on the evidence of PW1 and also PW3, who was the receptionist at the guest house. The court below after evaluating the evidence of PW1 and PW3 meticulously found that their evidence is not at all convincing to prove that the accused Crl.A.No.1727/2010 -:5:- received ₹900/- and ₹500/- from PW1 on 23.12.2002 and 24.12.2002 as alleged by the prosecution. I went through the evidence of PW1 and PW3. I too could not find any reason to take a different stand in this regard. 8. In order to prove the 3[rd] demand and also the trap laid by the VACB, the prosecution relied on the evidence of PW1, PW2 and PW5. PW1 is the decoy witness, PW2 is an independent witness and PW5 is the Dy.S.P who laid the trap. The defence set up by the accused is that, PW1 fabricated this case to escape from the attachment of lodge belonging to his father. It has come out in evidence that the attachment proceedings were initiated in respect of the lodge mentioned above. It is evident from Ext.P6(a). It has also come out in evidence that, long before 4.1.2003, the date of trap, the accused had taken all steps to complete the attachment. Even though PW1 requested the accused several times to adjourn the attachment stating that there was a stay from the High Court, PW1 could not produce the stay order. It has also come out in evidence that the accused has even sought the assistance of police party and the Deputy Crl.A.No.1727/2010 ## -:6:- Tahsildar in order to effect the attachment. From Ext.P6(a), it is evident that though the prosecution alleged that the accused received bribe on 23.12.2002, 24.12.2002 and again demanded bribe on 2.1.2003, he was vigilantly prosecuting the case against PW1 and his father and issued a notice to the father to surrender the possession of the building within three days. It was on 3.1.2003. According to the defence, the accused went to the tourist home on 4.1.2003 only for the purpose of serving notice on the father of PW1. The circumstances mentioned above probalises the said defence. 9. Though it is the contention of PW1 that on 23.12.2002, the accused received ₹900/- from him, during cross examination he admitted that he was not present in the said place. PW1 stated that on 3.1.2003 he went to the office of the accused and requested him to come to his tourist home in the evening. If he had gone to the office of the accused on that day, it is difficult to believe that he had gone there to request the accused to come there to receive the bribe money. In other words, it is highly improbable that the accused would promise Crl.A.No.1727/2010 -:7:- PW1 to come to the lodge and receive the bribe money at the time and place specified by PW1. The only independent witness to prove the acceptance of bribe amount and its recovery was PW2, who was the Technical Assistant in the Animal Husbandary Directorate. According to the prosecution, PW2 entered into the bath room and waited inside the bathroom from 5.30 pm till arrival of the accused at 7 pm. It is quite improbable that an officer like PW2 would wait inside the bathroom for 1 ½ hours. There is also no clear evidence to show that PW2 standing inside the bathroom could see the entire incident. Considering all these evidence, the court below found that the case put forth by the defence is more probable and the benefit of doubt should go to the accused. 10. In the case of acquittal, there is double presumption in favour of the accused. An order of acquittal cannot be interfered with as a matter of course. An order of acquittal can only be interfered with when there are compelling and substantial reasons for doing so. Only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to Crl.A.No.1727/2010 -:8:- be perverse, the appellate court can interfere with the order of acquittal. The Apex Court in _**K.Prakashan v. P.K.Surenderan**_ [(2008) 1 SCC 258] has held that if two views are possible, the appellate court shall not reverse a judgment of acquittal only because another view is possible to be taken. Applying the above principle, I find no reason to hold that the judgment in appeal is perverse warranting interference by this Court. The appeal fails and is only to be dismissed. In the result, the appeal is dismissed. sd/- ## **DR. KAUSER EDAPPAGATH** **JUDGE** **kp**