IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1295 of 2004(A)
1. DR.N.ANANTHA NARAYANAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.G.JANARDHANA KURUP (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.THANKAPPAN
Dated :02/03/2007
O R D E R
K.THANKAPPAN, J.
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CRL. APPEAL NO. 1295 OF 2004
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Dated this the 2nd day of March, 2007
JUDGMENT
This appeal is filed against the judgment in C.C.No.15 of 2001 on
the file of the Enquiry Commissioner and Special Judge, Thrissur. The
appellant faced trial for the offences punishable under Sections 7 and 13(1)
(d) read with Section 13(2) of the Prevention of Corruption Act, 1988
(hereinafter referred to as “the P.C. Act”).
2. The prosecution case against the appellant was that while the
appellant was working as Anaesthesiologist at Taluk Headquarters
Hospital, Muvattupuzha, he demanded a sum of Rs.300/- from PW.2 for
giving anaesthesia to his sister, one Nabeeza (CW.5) who was admitted in
the said hospital for undergoing Thyroidectomy surgery. The further case
of the prosecution was that the demand was made at about 7 p.m. on
19.3.1999 at his residence in the Housing Board Colony, Muvattupuzha
and that PW.2, who was not willing to give bribe, approached PW.12, the
Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau,
CRL.APPEAL NO.1295/2004 2
Ernakulam and gave Ext.P2 first information statement. It is the further
case of the prosecution that on the basis of Ext.P2, PW.12 laid a trap
against the appellant and when the appellant came to his official
consultation room at the hospital at 11 a.m. on 24.3.1999, PW.2 went
inside the room along with his brother and PW.3, the official witness and
in furtherance of the demand made by the appellant PW.2 gave him three
currency notes of hundred rupee denomination which were smeared with
phenolphthalein powder at the office of PW.12. The said currency notes
were recovered from the appellant and the appellant was arrested at 12.10
p.m. on 24.3.1999 from his official consultation room. To prove the case
against the appellant, the prosecution examined PWs.1 to 12 and produced
Exts.P1 to P17 as well as MOs.1 to 9. No oral or documentary evidence
was adduced on the side of the defence. On closing the prosecution
evidence, the appellant was questioned under Section 313 Cr.P.C.. He
denied the allegations levelled against him and stated that the case was
foisted against him on the advise of the Vigilance Officer, one George and
some persons of the D.Y.F.I who had demanded Rs.1000/- from him
towards certain fund and he had given only Rs.300/-. The appellant
further stated that the surgery of the sister of PW.2 was provisionally
posted to 24.3.1999 on the advise of Dr.Nathaniel Thomas and that on
examination, the pulse rate of the patient was found to be very high and
CRL.APPEAL NO.1295/2004 3
since it was risky to administer anaesthesia at that stage, he had prescribed
tablets to reduce the pulse rate. He further stated that on 24.3.1999 while
he was in the consultation room at the hospital and examining patients,
three persons entered the room and enquired about the surgery of the sister
of PW.2 and immediately PW.12 entered the room and asked him to
remove his brief case from the table and that when he did so, he found
some currency notes kept under the brief case. The appellant further
stated that the said currency notes when subjected to phenolphthalein test
gave positive result. However, relying on the evidence adduced by the
prosecution, the trial court found the appellant guilty of the offence
punishable under Section 7 of the P.C. Act, convicted him thereunder and
sentenced him to undergo rigorous imprisonment for a period of one year
and to pay a fine of Rs.10,000/- and in default of payment of fine to
undergo simple imprisonment for a further period of two months. The
appellant was found not guilty of the offence punishable under Section 13
(1)(d) read with Section 13(2) of the P.C. Act. The appellant was also
given the benefit of Section 428 Cr.P.C. The above conviction and
sentence are challenged in this appeal.
3. This Court heard Sri. G.Janardana Kurup, learned senior counsel
appearing for the appellant as well as the learned Public Prosecutor.
CRL.APPEAL NO.1295/2004 4
Learned senior counsel appearing for the appellant raised three contentions
before this Court: (i) the trial court went wrong in accepting Ext.P2 first
information statement as PW.2 who was alleged to have given the bribe
had not supported the prosecution case, (ii) the trial court ought not to
have acted upon the evidence given by PWs.3 and 12 with regard to
recovery of the amount from the appellant as their evidence is not
corroborated by any other piece of evidence and (iii) even if the recovery
of the tainted currency notes is accepted, mere recovery of the said
currency notes is not sufficient to prove that the appellant committed the
offence punishable under Section 7 of the P.C. Act as the prosecution
failed to prove demand or acceptance of the amount by the appellant.
4. The prosecution examined PW.1 who was the Additional
Secretary of the Health Department to prove Ext.P1 sanction order to
prosecute the appellant under the P.C. Act. This witness had given
evidence to the effect that Ext.P1 sanction order was issued after
considering the facts and circumstances of the case and the materials
collected by the Vigilance Department and after satisfying that the charges
levelled against the appellant requires to be tried under the provisions of
the P.C. Act. Though Ext.P1 sanction order was challenged by the
defence, the trial court correctly accepted Ext.P1 as having been properly
CRL.APPEAL NO.1295/2004 5
issued as per the provisions of the P.C. Act.
5. PW.2, the brother of CW.5 Nabeeza who was admitted in Taluk
Headquarters Hospital, Muvattupuzha for Thyroidectomy surgery, was
examined to prove that the appellant demanded and accepted bribe. He
deposed before the court below that the operation of his sister was fixed
provisionally on 24.3.1999 and that she was advised to seek the opinion of
the Anaesthesiologist. This witness further stated that the appellant
demanded a bribe of Rs.300/- on 19.3.1999 and since he was not willing to
pay the amount, he preferred a complaint against the appellant before
PW.12. He admitted his signature in Ext.P2 first information statement.
He also stated that he produced three currency notes of hundred rupee
denomination before PW.12 who after smearing the said currency notes
with phenolphthalein powder returned the same to him as per Ext.P4
entrustment mahazar for giving to the appellant. PW.2 further stated that
he placed the tainted currency notes under the brief case which was seen
on the table of the appellant. This witness did not support the
prosecution case that the appellant accepted the currency notes with his
left hand. The trial court analysed the evidence of this witness and found
that though PW.2 did not support the prosecution case with regard to
acceptance of the amount by the appellant, Ext.P2 first information
CRL.APPEAL NO.1295/2004 6
statement given by him before PW.12 can be taken as true as PWs.3 and 12
had given evidence before the court below that PW.2 had given Ext.P2
first information statement before PW.12.
6. PW.3 who was a trap witness deposed that on the basis of the
instruction received by him from A.D.M., Ernakulam, he went to the office
of PW.12 along with the Additional Tahsildar on 24.3.1999. He further
stated that PW.2 who was present in the office produced three currency
notes of hundred rupee denomination before PW.12 who smeared the said
currency notes with phenolphthalein powder and the currency notes were
then put into the pocket of PW.2 on preparing Ext.P4 mahazar with
instruction to give the same to the appellant on demand. This witness
further stated that he accompanied PW.2 and his brother Moidheen to the
hospital and on entering the consultation room of the appellant and after
getting a signal from the said Moidheen, PW.2 gave the tainted currency
notes to the appellant who accepted the currency noes with his left hand
and after counting the currency notes, the appellant placed the same
under the brief case kept on the table. PW.3 further stated that as soon as
PW.2 gave the signal, PW.12 and other members of the trap team entered
the consultation room of the appellant and found the currency notes kept
under the brief case and that the currency notes when subjected to
CRL.APPEAL NO.1295/2004 7
phenolphthalein test were found to be the same currency notes which were
entrusted with PW.2 as per Ext.P4 entrustment mahazar as the test gave
positive result.
7. PWs.4 to 9 were examined to prove the admission of Nabeeza,
sister of PW.2 at Taluk Headquarters Hospital, Muvattupuzha. PW.10
was the Village Officer who prepared Ext.P12 scene plan.
8. PW.11 was the General Surgeon of Taluk Headquarters Hospital,
Muvattupuzha. He stated before the court below that he had issued
Ext.P13 prescription in the name of the patient, Nabeeza, and had advised
her to undergo a surgery and also anaesthesia check up. In cross-
examination, he deposed that the patient was posted for surgery subject to
the approval of the Anaesthesiologist. The evidence of this witness is
relevant only to show that Nabeeza was provisionally posted for surgery
on 24.3.1999 prior to which date the appellant had examined her.
9. PW.12 was the Deputy Superintendent of Police, Vigilance and
Anti-corruption Bureau, Ernakulam. He deposed that he had recorded
Ext.P2 complaint preferred by PW.2 and lodged Ext.P2(a) First
Information Report. This witness spoke about preparation of Ext.P4
CRL.APPEAL NO.1295/2004 8
mahazar after demonstration of the phenolphthalein test in the presence of
PWs.2 and 3, about laying the trap against the appellant and the recovery
of the tainted currency notes placed under the brief case on the table in the
official consultation room of the appellant on preparing Ext.P5 recovery
mahazar. The evidence of this witness corroborates with the version
given by PW.3 who had accompanied PW.2 on the date of the incident.
10. The learned senior counsel appearing for the appellant
submitted that since PW.2 who is alleged to have given the bribe to the
appellant had himself turned hostile to the prosecution, Ext.P2 first
information statement given by PW.2 cannot be taken as a substantive
piece of evidence against the appellant without any other evidence to
corroborate the fact that the appellant had demanded and accepted bribe
from PW.2. Learned senior counsel submitted that the case set up by the
appellant when he was questioned under Section 313 Cr.P.C. was not
considered by the trial court properly.
11. Admittedly, Nabeeza, the sister of PW.2 was admitted in the
hospital for Thyroidectomy surgery and the surgery was provisionally
fixed on 24.3.1999. This is evident from the evidence of PW.11.
Further, it has come out in evidence that the appellant had examined
CRL.APPEAL NO.1295/2004 9
Nabeeza and had prescribed tablets for bringing down her pulse rate. In
the above circumstances, it has to be inferred that there existed a
circumstance for the appellant to do some favour in the exercise of his
official functions for which he wanted a reward. This fact was spoken to
by both PWs.2 and 3. That apart, while the complaint was filed before the
Deputy Superintendent of Police, PW.2 had specifically stated that he and
his brother Moidheen had met the appellant on 19.3.1999 and that on that
day, the appellant had demanded the bribe. Relying on the above
evidence, the trial court correctly accepted Ext.P2 and found that the
appellant accepted the bribe money as per the demand made by him on
19.3.1999.
12. The next contention of the learned senior counsel appearing for
the appellant is that the evidence of PW.3, the trap witness, cannot be
accepted without any other evidence to corroborate the same, as PW.2
himself turned hostile to the prosecution and he had stated he had placed
the currency notes under the brief case kept on the table. In this context,
learned senior counsel placed reliance on the decisions of the Apex Court
reported in Major E.G. Barsay v. State of Bombay, A.I.R. 1961 S.C.
1762 I and Ram Prakash Arora v. State of Punjab (1972) 3 S.C.C.
652. It is seen that even though PW.2 turned hostile to the prosecution, he
CRL.APPEAL NO.1295/2004 10
had admitted having filed Ext.P2 complaint before PW.12 and having
produced three currency notes of hundred rupee denomination as
instructed by PW.12. PW.2 was declared hostile by the prosecution at the
stage at which he deviated from the case with regard to payment of bribe to
the appellant. According to PW.2 he had placed the tainted currency notes
under the brief case kept on the table. In this aspect, the evidence of
PW.3 is that the appellant accepted the amount from PW2 with his left
hand and placed the currency notes under the brief case. The facts
considered by the Apex Court in the above two decisions relied on by the
learned senior counsel are entirely different from the facts of the case in
hand. In this context, learned senior counsel also relied on the decision of
the Apex Court reported in Darshan Lal v. Delhi Administration (1974)
3 S.C.C. 595. In the above judgment, the Apex Court had taken the view
that to accept the evidence of a trap witness, there should be independent
and reliable corroborative evidence. The facts considered by the Apex
Court were relating to charges under Section 5(2) of the P.C. Act and
Section 161 I.P.C. and there was no evidence that the accused had
accepted bribe or that the bribe money was recovered from the body of the
person. In the case in hand, even though PW.2 had stated that he had
placed the currency notes on the table and not paid the same directly to the
appellant, PW.3, the trap witness who had accompanied PW.2 had given
CRL.APPEAL NO.1295/2004 11
evidence to the effect that PW.2 gave the currency notes to the appellant
on demand and the appellant had accepted the same with his left hand and
then placed the currency notes under the brief case kept on the table. The
evidence of PW.3 is supported by the recovery made by PW.12 who had
given evidence to the effect that MO.1 series of currency notes recovered
as per Ext.P5 mahazar were the same currency notes which were brought
to his office by PW.2 and which he had entrusted with PW.2 as per Ext.P4
mahazar. Hence, the contention of the learned senior counsel that there
was no independent evidence to corroborate the evidence of PW.2 cannot
be accepted.
13. A reading of the evidence of PW.12 coupled with the recovery
of the currency notes as per Ext.P5 mahazar would clearly prove that the
appellant had demanded and accepted bribe . It has also come out in
evidence that the currency notes recovered by PW.12 as per Ext.P5
mahazar were the same currency notes entrusted with PW.2 as per Ext.P4
mahazar. The fact that the brother of PW.2 who had accompanied him on
19.3.1999 and on the day of the incident is now working in Saudi Arabia
and that CW.5 left the hospital after recovery of the currency notes from
the possession of the appellant cannot be taken as a ground to discard the
prosecution case. In other words, the prosecution has succeeded in
CRL.APPEAL NO.1295/2004 12
proving the case against the appellant as alleged and the trial court was
fully justified in finding that the appellant had committed the offence
punishable under Section 7 of the P.C. Act .
The Crl. Appeal is accordingly dismissed, confirming the judgment
of the trial court.
(K.THANKAPPAN, JUDGE)
sp/
CRL.APPEAL NO.1295/2004 13