Yesudasan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 CRL.A NO. 376 OF 2019** **AGAINST THE JUDGMENT IN CC 22/2014 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,THIRUVANANTHAPURAM** ## **APPELLANT/ACCUSED:** YESUDASAN, AGED 55 YEARS S/O.KARUNAKARAN, VILLAGE OFFICER, ANAVOOR VILLAGE OFFICE, THIRUVANANTHAPURAM. BY ADV SASTHAMANGALAM S. AJITHKUMAR ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, THROUGH THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM UNIT. ## **OTHER PRESENT:** SRI.A.RAJESH SPL PP(VACB) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 31.01.2023, THE COURT ON 08.02.2023 DELIVERED THE FOLLOWING: Crl.Appeal No.376/2019 ## -:2:- J U D G M E N T Dated this the 8[th ] day of February, 2023 This appeal has been preferred by the accused in CC No.22/2014 on the file of the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram (for short, 'the court below') challenging the judgment dated 28[th] February, 2019 convicting and sentencing him under sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act,1988 (for short, the PC Act). 2. The appellant/accused was working as Village Officer in Anavoor Village. The case of the prosecution in short is that on 7/12/2011, he obtained `2,000/- as bribe from the defacto complainant/decoy at the Village Office, Anavoor towards consideration for mutation of pokkuvaravu. 3. After trial, the appellant was found guilty and he was convicted and sentenced to undergo simple imprisonment for three years, to pay a fine of `25,000/- in default to undergo simple imprisonment for 90 days for the offence under sections 7 and 13(1)(d) r/w 13(2) of the PC Act vide the impugned judgment. Crl.Appeal No.376/2019 -:3:- Challenging the said conviction and sentence, the appellant preferred this appeal. 4. I have heard Sri.Sasthamangalam S.Ajith Kumar, the learned counsel for the appellant and Sri.A.Rajesh, the learned Special Public Prosecutor (VACB). 5. To prove the incident and to fix the culpability on the accused, the prosecution examined PWs1 to 7 and Exts.P1 to P20 were marked. MO1 to 17 were identified. Ext.C1 was marked as court exhibit. The decoy died before the trial. 6. The prosecution evidence reveals as follows: The decoy witness approached the accused for the purpose of processing the application for pokkuvaravu of his land. The accused demanded `5,000/- as bribe. On negotiation, it was reduced to `3,000/-. Advance of `1,000/- was paid on 26/11/2011. The accused told him that he should pay the balance amount of `2,000/- within two weeks and the mutation will be effected thereafter. The decoy immediately reported the matter to the Dy.S.P attached to VACB, Thiruvananthapuram who was examined as PW6. The statement of decoy was reduced into writing which was marked as Ext.P11(a). Based on it, PW6 Crl.Appeal No.376/2019 -:4:- registered crime as VC No.1/2011. Ext.P11 is the FIR. PW6 then narrated the trap. Ext.P1 pre trap mahazar was prepared on 7/12/2011. The decoy was given a pen camera attached to his shirt pocket. Thereafter, as instructed by PW6, decoy went to the office of the accused and on demand gave the trap money. The accused opened the right side of the drawer of his table and on his direction, the decoy put the trap money inside it. The decoy came out and gave signal to PW6 and his team. Meanwhile, the accused sensed the trap and initially he took the trap money and put it in the left-hand drawer and then asked PW3 viz., Reji who was waiting outside the office to take the money. When PW6 and party came inside, they could not find the money. It was found from the pocket of PW3. Phenolphthalein test was positive on the left hand of the accused, the right and left drawer of the table and the shirt pocket of PW3. Ext.P2 recovery mahazar was prepared. The accused as well as PW3 were arrested and produced before the court. Later, PW3 was given pardon and made as an approver. 7. MO10 is the memory card installed in the button camera fixed on the shirt pocket of the decoy. The visuals in Crl.Appeal No.376/2019 -:5:- MO10 were copied by the expert on a request made by the investigating officer in a DVD. MO10 was forwarded to the State Forensic Science Laboratory through court and Ext.P19 report was obtained. The DVD containing the visuals was played in the court. Relying on the visuals in the DVD as well as the oral evidence of PW1 to PW7 tendered by the prosecution as well as Exts.P1 to P20, the court below found that the prosecution has succeeded in proving the demand and acceptance of bribe by the accused by abusing his official position as public servant. 8. The learned counsel appearing for the appellant impeached the findings of the court below on appreciation of evidence and the resultant finding as to the guilt. The learned counsel submitted that the decoy died before the trial and there was absolutely no evidence of demand and acceptance. The counsel further submitted that the pokkuvaravu order was passed on 1/12/2011 and as such, the decoy has no reason to give the accused any bribe much thereafter on 7/12/2011. The learned counsel further submitted that the voice sample of the accused and the decoy were not taken and without voice identification, the contents in MO17 could not have been relied on by the court Crl.Appeal No.376/2019 -:6:- below. The learned counsel also submitted that the evidence of the approver was totally against the prosecution case which was not properly appreciated by the court below. At any rate, the sentence passed by the court below is excessive and has no rational nexus to the gravity of offence, submitted the counsel. On the other hand, the learned Special Public Prosecutor for VACB supported the findings and verdict of the court below and submitted that the prosecution has succeeded in proving the case beyond reasonable doubt. 9. It is not in dispute that the appellant was working as Village Officer, Anavoor Village at the alleged time of the incident. In fact, the arrest of the appellant on 7/12/2011 also is not seriously disputed. As stated already, the decoy witness expired prior to the commencement of trial. PW6, the Dy.S.P attached to VACB, Thiruvananthapuram arranged the trap. PW1 accompanied PW6 at the time of the alleged trap. 10. PW6 deposed that on 6/12/2011 at about 6.30 p.m., decoy witness came to his office and complained that the appellant had demanded from him `5,000/- as bribe to effect mutation in respect of his property. He further deposed that after Crl.Appeal No.376/2019 -:7:- negotiation, the appellant reduced the demand to `3,000/- and on 26/11/2011, the decoy witness gave `1 ,000/- to the appellant who told him that on payment of the balance amount of `2,000/within two weeks, the mutation of the land would be effected. Since the decoy witness was aggrieved by the said demand, he reported the matter to PW6. PW6 directed the decoy witness to appear before him on 7/12/2011. On that day, he recorded the statement of the decoy witness and Ext.P11 crime was registered. The statement is Ext.P11(a). The decoy witness as instructed by PW6 produced four currency notes with denomination of `500/- which were marked as MO2 series. PW6 further deposed that then he applied phenolphthalein powder on MO2 series and the mahazar was prepared. Thereafter he kept MO2 series notes in the pocket of the decoy witness and specific instruction was given to him that the tainted notes should be paid to the appellant on demand. He further deposed that thereafter a button camera was fixed on the button of the shirt worn by the decoy witness to record the trap. Thereafter PW1, PW6 and another witness along with the decoy witness went to the village office to meet the appellant. They reached the village office by Crl.Appeal No.376/2019 -:8:- 3.00 p.m. The decoy witness went inside the village office and after giving MO2 series to the appellant, he came out of the village office and gave signal. Immediately PW6 and others rushed to the village office and after disclosing their identity, they sought for the tainted notes received by the appellant from the decoy witness. But the appellant replied that he did not receive any money from the decoy witness. Immediately PW6 called the decoy witness and made enquiry in the presence of the appellant who stated that the tainted notes were kept in the drawer of the official table of the appellant as demanded. Thereafter PW6 opened the drawer of the office table and made a search, but notes could not be found out. Though the appellant maintained the stand that he did not receive any money from the decoy witness, the decoy witness was definite that he had kept the tainted notes in the right drawer of the office table kept in the office. Thereafter, at the instance of PW6 and PW1, the right hand of the appellant was dipped in the anhydrous sodium carbonate solution stored in MO2 bottle, but no colour change was seen. But when his left hand was dipped into the anhydrous solution, slight colour change was noticed. Then anhydrous sodium carbonate Crl.Appeal No.376/2019 -:9:- solution was applied to the right drawer of the office table. At that time also, the colour change was noticed. PW6 further deposed that when the colour change was noticed on the left hand of the appellant and also on the right drawer of the table, the appellant was perplexed and was found staring at a person standing near to the door of his room. Immediately, PW6 went to that person and asked his name and his purpose of visit. He replied that his name is Reji and he came to the village office for effecting mutation. He told PW6 that the appellant asked him to take the currency notes from the drawer and retain with him and accordingly he took the tainted notes and kept in his pocket. Thereafter the vigilance party conducted phenolphthalein test by dipping both the hands of Sri.Reji. The test was found to be positive. MO2 series tainted notes were found in the pocket of Sri.Reji. Those notes were also subjected to phenolphthalein test and the result was positive. Anhydrous sodium carbonate solution when applied to the pocket of the shirt worn by Sri.Reji showed a pink colour which was also an indication that the tainted notes were retained by Sri.Reji. The shirt worn by Sri.Reji was seized and marked as MO9. He was carrying a Kerala Kaumudi Crl.Appeal No.376/2019 -:10:- newspaper. Anhydrous sodium carbonate solution was also applied to the newspaper and colour change was found. Newspaper was seized and marked as MO11. The appellant was arrayed as the first accused and Sri.Reji was arrayed as the second accused. Subsequently, on the basis of Ext.P16 report filed by the VACB before the court below, Ext.C1 order was passed and pardon was tendered to the second accused under section 306 of Cr.P.C. He was examined as PW3, but he did not support the prosecution case. 11. PW1 tendered evidence in tune with the evidence given by PW6 as narrated above. PW1 and PW6 had identified the accused. The evidence of PW2 and PW4 proves the presence of Sri.Reji in the village office at the time of the incident. PW2 was running a scribe's office at Kunnathukal village. He gave evidence that Sri.Reji was working with him as a scribe. He further deposed that, Sri.Reji used to visit the village office for remitting the tax. PW5 deposed that he deputed Sri.Reji to effect mutation and to remit tax pertaining to the property of one Smt.Palnagammal and others. Ext.P8 would prove that an application was filed by Smt.Palnagammal at the village office to effect mutation of the Crl.Appeal No.376/2019 -:11:- property. 12. The evidence of PW1 and PW6 would further show that the button camera was detached from the shirt worn by the decoy witness and the memory card used for recording was taken and sent for chemical analysis to FSL, Thiruvananthapuram. The memory card has been marked as MO10 which has been identified by PWs1 and 6. Their evidence would show that the visuals in MO10 was copied by the Scientific Expert in a DVD. During trial, DVD was played in the open court while conducting the examination of PW1 and PW6 with the aid of laptop, speaker, projector, and a screen. The DVD contained four files. In one of the files, visuals of PW3 and the appellant could be seen. The appellant was sitting in his office chair and PW3 was standing inside the same room holding a paper. The conversation between PW3 and the appellant was also there in the said file. In another file, the visuals containing the conversation between the decoy witness and the accused could be found. On two occasions, the decoy witness was specifically making a request to the appellant to decrease the demand of money to `3,000/-. To the said request, the appellant was giving answer as to “what to say”. The Crl.Appeal No.376/2019 -:12:- above conversation follows that “two has been kept”. Immediately, the appellant was seen facing towards the right drawer of the office table and the right arm was also seen introducing the downward direction. MO10 was examined by the scientific expert and Ext.P19 report was given. In Ext.P19, the forensic expert certified that he examined the visuals and found that no editing was effected. It is also reported that the folder in MO10 was copied to the DVD shown as Annexure 1 in the FSL report. 13. It is true that since the decoy witness was no more, there is no direct evidence to prove the demand. It is also true that MO2 series tainted notes were seized from the possession of PW3. The learned counsel for the appellant vehemently argued that, thus, there is no concrete evidence to prove the demand and acceptance. It is not necessary that there should be direct evidence in all cases to prove demand and acceptance. It can be proved by acceptable circumstantial evidence as well. Recently, the Constitutional Bench of the Apex Court in _**Neeraj Dutta v. State (Govt of NCT of Delhi)**_ [2023 (1) KLT SN 28 (C.No.28)] has held that the proof of demand and acceptance of illegal Crl.Appeal No.376/2019 -:13:- gratification by a public servant can also be proved by circumstantial evidence in the absence of direct, oral, and documentary evidence. The evidence of PW1 and PW6 would prove that the decoy witness approached PW6 and made a complaint that the appellant had demanded bribe from him to effect mutation of his land and the said complaint has been reduced into writing in Ext.P11(a) and thereafter they arranged trap and they along with decoy witness and another witness went to the village office and the decoy witness gave MO2 series notes to the appellant who accepted it and later on doubting that there was some trap, handed it over to PW3 and they were seized from the possession of PW3. The conversation between the appellant and the decoy witness in the DVD proves that there was specific statement from the part of the decoy witness to reduce the bribe amount. The visuals in the DVD further prove the presence of PW1, the appellant and PW3 in the office room of the appellant and handing over of the currency notes **.** Though tainted notes were not seized from the possession of the appellant, there is clinching circumstantial evidence to prove that the appellant accepted MO2 series tainted notes which were kept by the decoy Crl.Appeal No.376/2019 -:14:- witness in the drawer of his office table. The evidence such as the positive result of the phenolphthalein test on the left hand of the appellant and the colour change occurred to the right drawer of his office table are circumstances to suggest that the appellant had accepted and handled the tainted notes. 14. The sequence of events and circumstances narrated above clearly proves that the appellant has accepted `2,000/- as illegal gratification from the decoy witness by abusing his official position as public servant and availed pecuniary advantage by adopting corrupt and illegal means. Thus, the court below was absolutely justified in convicting the accused for the offence under sections 7 and 13(1)(d) r/w 13(2) of the PC Act. 15. What remains is the sentence. The court below sentenced the accused to undergo simple imprisonment for three years, to pay a fine of `25,000/-, in default to suffer simple imprisonment for 90 days for the offence under sections 7 and 13(1)(d) r/w 13(2) of the PC Act. The learned counsel for the appellant submitted that the appellant has no criminal antecedents and the substantive sentence passed by the court below is excessive. Considering the entire facts and Crl.Appeal No.376/2019 -:15:- circumstances of the case, I am of the view that the substantive sentence of three years imposed by the court below can be reduced to one year. Accordingly, the substantive sentence imposed by the court below is reduced to one year retaining the fine and the default sentence. The appeal is allowed in part as above. Sd/- **DR. KAUSER EDAPPAGATH JUDGE** **Rp**