High Court Kerala High Court

G. Jabal vs State on 21 March, 2007

Kerala High Court
G. Jabal vs State on 21 March, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 656 of 2001(C)



1. G. JABAL
                      ...  Petitioner

                        Vs

1. STATE
                       ...       Respondent

                For Petitioner  :SRI.T.RAVIKUMAR

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice K.THANKAPPAN

 Dated :21/03/2007

 O R D E R
                               K. THANKAPPAN,  J.

                           --------------------------------------

                          CRL.A.NO.656  OF 2001

                          ---------------------------

                   Dated this the  21st  day of March,  2007.


                                      JUDGMENT

The appellant, who is the sole accused in C.C.No.56/1999,

faced trial for the offence punishable under Sections 7 and 13(1)

(d) read with Section 13(2) of the Prevention of Corruption Act,

1988.

2. The prosecution case against the appellant in brief is as

follows:

While the appellant was working as the Circle Inspector of

Police, Neyyattinkara, Crime No.181/1998 of Vellarada Police

Station has been registered against one Vijayan, brother of PW4-

Latha and eight others alleging the commission of offences

punishable under Sections 344, 366, 368, 378 and 506 (1) read

with Section 34 of the I.P.C. The appellant took up charge of the

investigation of that case on 1.10.1998. In connection with the

above case, PW1 was arrested and he was in remand for some

days and thereafter the appellant had gone to the house of PW4

and told her that if he has seen properly, he would help them.

The said massage was passed on to PW1 by PW4 and thereby

CRL.A.NO.656/2001 2

PW1 went to the quarters of the appellant and he met him. The

driver of the appellant, one Radhakrishnan, had talked to PW1 that

the appellant should be given bribe and the driver also should be

given a share of the same. Thereafter when PW1 contacted the

appellant, he told him that PW1 should pay Rs.5,000/= for deleting

two women accused from the array of the accused in Crime

No.181/1998 of Vellarada Police Station, for which PW1 agreed.

Further, it is alleged by the prosecution that, on the next day PW1

went to the office of the Vigilance Dy.S.P- PW8, and gave Ext.P1

First Information Statement and on the basis of the above

statement, PW8 – the Dy.S.P, procured the presence of two

independent witnesses namely PW2 and CW3, from the office of the

Superintending Engineer and directed PW1 to bring the bribe money

of Rs.3,000/= to be paid to the appellant. On the next day, that is

on 10.11.1998, PW1 produced the bribe money of Rs.3,000/= (30

numbers of hundred rupee notes) before PW8 and at that time

both PW2 and CW3 were also present and that amount was

entrusted by PW1 to PW8 and the amount was received by PW8

on preparing a mahazar and thereafter explaining the result of

phenolphthalein powder test the bribe money was returned back to

PW1 by PW8. PW2, CW3 and other police officials accompanied

CRL.A.NO.656/2001 3

PW1 to the quarters of the appellant at about 4.15 p.m and PW1

alone was sent to the quarters. PW8 and the other witnesses

waited near the quarters but, since the appellant was not available

in the quarters on that day, PW1 could not pay the amount to the

appellant. Hence, PW1, PW8 and other witnesses gone back to the

office of PW8 and the bribe money was entrusted by PW1 to PW8,

who kept the same in safe custody and on the next day, namely on

11.11.1998, PW1 again went to the quarters of the appellant and

PW8 and other witnesses accompanied him and PW1 alone went to

the quarters and he knocked the door of the quarters and the

appellant opened the door and PW1 entered into the quarters and

the appellant directed to place tainted currency notes on the table

and immediately thereafter PW1 came out of the room and signaled

to PW8 and other witnesses, who were waiting near the quarters.

Suddenly PW8 – the Dy.S.P, and other witnesses entered into the

quarters and enquired with appellant about the money given by

PW1. Further case of the prosecution is that the appellant

himself had told to PW8 that the amount given by PW1 was kept in

an almirah in the bed room. Thereafter the amount was

recovered and the appellant was arrested after having conducted a

phenolphthalein test on the notes recovered and thereafter the

CRL.A.NO.656/2001 4

investigation was continued and a final charge has been filed

against the appellant. To prove the charge against the appellant,

prosecution examined Pws 1 to 8 and produced Exts.P1 to P14. On

closing the prosecution evidence, the appellant was questioned

under 313 of the Code of Criminal Procedure. Denying the

prosecution allegations the appellant had stated that he is innocent

and the case was foisted against him and no amount has been

recovered from the possession of the appellant as alleged by the

prosecution. The appellant, further, had stated that when PW8 –

the Dy.S.P opened the door and asked about the bribe money, the

appellant told him that he had not received any amount as alleged.

The appellant had further stated that the amount alleged to have

been recovered might have been thrown in the drawing room or

into the bed room by PW1. The appellant had further stated that

PW8 and the other police officials wrongfully restrained him at the

bed room lying east of the drawing room and he was guarded by

two Circle Inspectors and the notes alleged to have been recovered

from the almirah was without his knowledge. The appellant had

further stated that PW1 had not met him either on 9.11.1998 at 9

p.m at the quarters or on any other day. On 9.11.1998 he was

attending the official functions from 5 p.m to 7 p.m and thereafter

CRL.A.NO.656/2001 5

was on patrol duty till 12 O’ Clock in the night. To prove his case,

the appellant had examined Dws 1 to 3 and relied on Exts.D1 to

D2(a). However, after analysing the evidence, the trial court

found the appellant guilty of the charges and he was convicted

under Sections 7 and 13(2) read with Section 13(1)(d) of the P.C

Act and he was sentenced to undergo R.I for four years and to pay

a fine of Rs.20,000/= under Section 7 of the P.C. Act and also

sentenced to undergo R.I for three years under Section 13(2) read

with Section 13(1)(d) of the P.C. Act. The trial court also ordered

that in default of the payment of fine, the appellant shall undergo

R.I for a further period of one year more. The trial court further

ordered to run the substantive sentences concurrently. The

judgment of the trial court is assailed in this appeal.

3. This Court heard Sri. T. Ravikumar, the learned counsel

appearing for the appellant and the learned Public Prosecutor.

The learned counsel Sri.T.Ravikumar had taken the following

contentions:

Firstly it is contended that the trial court committed serious

error in placing reliance on the evidence of Pws 1 to 4 and 8 as the

evidence of these witnesses is sufficient to prove the case against

CRL.A.NO.656/2001 6

the appellant beyond reasonable doubt. Secondly, it is contended

that the trial court had committed serious error in believing PW1

with regard to the alleged demand made by the appellant without

having any independent corroboration as the evidence of PW4

contradicts the material particulars of the alleged demand made

by the appellant. The evidence of PW1 would not show that there

was any demand made by the appellant either through the driver

Sri.Radhkrishnan or through anybody else especially the

prosecution had no case before the court against Sri.Radhkrishnan,

the driver of the appellant regarding any demand made for and on

behalf of the appellant or for himself. Thirdly, it is contended that

the evidence of Pws 2 and 8, the trap witnesses, should not have

been accepted by the trial court without corroboration of the

independent witnesses as these witnesses are interested to find

that the appellant be convicted. Fourthly, it is contended that the

evidence of Pws 1 to 4 should not have been accepted as against

these witnesses a crime has already been registered alleging the

commission of serious offences including rape, kidnapping and

criminal intimidation and as these witnesses are interested to

speak against the appellant.

CRL.A.NO.656/2001 7

4. The question to be decided in this appeal in the light of the

contentions raised by Sr.T.Ravikumar is that whether the findings

entered and the conclusions arrived at by the trial court are

sustainable in law or not.

5. The prosecution case against the appellant is that the

appellant took charge of the investigation of Crime No.181/1998 of

Vellarada Poalice Station and in connection with the investigation

of the above crime, being the Circle Inspector of Police,

Neyyattinkara, the appellant had started his investigation. PW1

and some other accused in the crime were arrested and remanded

to judicial custody. As part of the investigation of the above crime,

the appellant and DW3- a Police Constable of the Neyyattinkara

Police Station went to the house of Pw1 on 2.10.1998 and mahazar

of his wife – PW4 has been prepared by the said police constable

and during that time, the appellant told to PW4 that if the appellant

was seen properly, he would delete two women accused from the

array of the accused in Crime No.181/1998 and this demand of the

appellant was conveyed to PW1 and thereafter PW1 met the

appellant at the quarters on 9.11.1998 and at that time the

appellant demanded Rs.5,000/= as bribe for the deletion of two

CRL.A.NO.656/2001 8

women accused from the array of Crime No.181/1998 of Vellarada

Police Station. Though PW1 had agreed to pay the amount

demanded by the appellant, he was not willing to pay the bribe to

the appellant. On the next day namely on 10.11.1998 PW1 went to

the office of PW8- the Vigilance Dy.S.P, Trivandrum and filed Ext.P1

complaint and he also brought an amount of Rs.3,000/= before the

Dy.S.P and thereafter PW8 procured the presence of PW2 and CW3,

the two officers from the Superintending Engineer and after having

prepared the mahazar and marking the currency notes brought by

PW1 directed PW1 to hand over the amount to the appellant, if he

asks for bribe. On the direction of PW8, PW1 went to the quarters

of the appellant on 10.11.1998 itself accompanied by Pws 8,PW2,

CW3 and other police. But as the appellant was not available,

PW1 could not give the bribe amount to the appellant. PW1 and

the police party went back to the office of PW8 and marked notes

were entrusted back to PW8 and kept the same in safe custody.

On the next day namely on 11.11.1998, PW8 again directed PW1

to go the quarters of the appellant and to give the amount to the

appellant. So directing, PW1, PW8, PW2, CW3 and other police

officials waited outside the quarters and as agreed early on giving

the marked notes to the appellant, PW1 signaled to PW8 and other

CRL.A.NO.656/2001 9

officials and immediately PW8, two Circle Inspectors, PW2 and other

witnesses entered into the quarters and PW8 asked the appellant

where he kept the amount which he received from PW1. It is the

further case of the prosecution that the appellant himself had stated

that PW1 placed the tainted notes on the table from which the

appellant took and kept the same in the almirah inside the bed

room. As the appellant himself pointed out the almirah, PW8

directed PW2 to take out the currency notes from the almirah and

thereafter PW2 took out the marked currency notes which was kept

in the second birth of the left side of the almirah and thereafter

prepared Ext.P3 mahazar, marked currency notes were recovered

and in the presence of PW2 and CW3 a phenolphthalein powder

test was conducted on the currency notes and the hands of the

appellant. The result of the test was found affirmative and

thereafter the appellant was arrested and a crime was registered

against the appellant under Section 7 and 13(2) read with Section

13(1)(d) of the P.C.Act. To prove this case, prosecution placed

reliance on the evidence of PW1, who is one of the accused in Crime

No.181/1998 of Vellarada Police Station. This witness has stated

before the court that he was an accused in Crime No.181/1998 and

the appellant went to the house of PW4, who is the sister of Vijayan

CRL.A.NO.656/2001 10

– the main accused in Crime No.181/1998 and the appellant told

PW4 that if the appellant was met properly, he would help them to

deletie two women accused from the party array of Crime

No.181/1998 and this information was passed on to PW3 by PW4

and PW3 had again informed about this to PW1. He went to the

quarters of the appellant and met Sri.Radhakrishnan, the official

jeep driver of the appellant. This witness has further stated that

the said Radhakrishnan had told him that if the appellant had paid

an amount of Rs.5,000/= and Rs.3,000/= for the staff of the

appellant and said Radhakrishnan, the appellant would help them

in the case. On receiving this information or rather getting the

demand made by the said Radhakrishnan, this witness met the

appellant on 9.11.1998 at 9 p.m. As this witness was not

interested in to pay the bribe to the appellant, he had reported the

matter to the office of PW8 – the Dy.S.P of Vigilance on the next

day and he filed Ext.P1 complaint before PW8. When he went to

the office of PW8, this witness had also brought an amount of

Rs.3,000/= and PW8 had procured the presence of two witnesses

from the Superintending Engineer namely PW2 and CW3. This

witness has further stated that as directed by PW8, he again went

to the quarters of the appellant on the same day and PW8 and other

CRL.A.NO.656/2001 11

police officials had waited outside the quarters, but as the

appellant was not available on that day, PW8 and other witnesses

went back to the office of PW8 and the tainted currency notes were

entrusted back to PW8, who kept the same in safe custody. This

witness has further stated that on the next day, namely, on

11.11.1998 as directed by PW8, he again went to the quarters of

the appellant and PW8 and other witnesses, who accompanied him,

were waiting outside and this witness has further stated that

when he went to the quarters, he switched the calling bell at that

time the appellant came out of the bed room and opened the door of

the sit out. This witness has further stated that the appellant

asked whether he had brought the money as asked. Then he said

that he brought the amount as demanded by the appellant.

Further this witness has stated that as the appellant asked him to

place the amount on the table, he did so and immediately

thereafter he had signaled PW8 and other officials, who entered

into the quarters. PW2 is the trap witness, whose presence was

procured by PW8 along with CW3 and another officer from the

office. This witness has further stated that PW8 had explained the

purpose and the nature of phenolphthalein test in the presence of

this witness. PW8 had prepared Ext.P2 mahazar and he directed

CRL.A.NO.656/2001 12

PW1, PW2, CW 3 and other officials to accompany him to the

quarters of the appellant. This witness has further stated that even

though PW1 and other officials went to the quarters on 10.11.1998,

as the appellant was not available, they returned back to the office

of PW8 and the currency notes brought by PW1 were entrusted to

PW8. This witness has further stated that on the next day he also

accompanied PW1 along with PW8 and other police officials and

went to the quarters and as agreed early, on payment of the

amount to the appellant, PW1 signaled to the Dy.S.P and other

witnesses. Immediately PW8, CW3 and other officials entered into

the quarters and PW8 asked the appellant where the amount

which he received was kept. According to this witness, the

appellant had stated that the amount was kept in the almirah inside

the bed room and on the direction given by PW8, he himself took

the bundle of currency notes from the 2nd berth of the almirah

inside the bed room and in the presence of him, PW8 had framed

Ext.P3 mahazar and found that the currency notes recovered from

the almirah, which was marked as MO1 series, are the same notes

which were brought by PW1 at the time of preparation of Ext.P1

before the office of PW8. This witness has further stated that PW8

had conducted a phenolphthalein test on MO1 series currency notes

CRL.A.NO.656/2001 13

and on the right hand of the appellant and both the currency notes

and the right hand of the appellant turned to pink. Further this

witness has stated that PW8 also seized MO4 piece of Hindu daily

paper , on which the notes were placed by PW1 and that MO4 was

also subjected to phenolphthalein test. This witness has further

stated that he had also taken another bundle of Rs.5,000/=all of

fifty denominations stapled from the 2nd berth of the almirah which

were marked as Ext.P6 series. PW3 is the husband of PW4, who

was also an accused in Crime No.181/1998 of Vellarada Police

Station. This witness has stated before the court that his wife PW4

had told him that the appellant came to his house and had given

Ext.P4 notice requesting him to appear before the appellant and he

has further stated that he himself had handed over Ext.P4 to the

investigating officer. PW4 is the sister of the main accused

Vijayan in Crime No.181/1998. This witness has stated that his

brother Vijayan had married one Mini and in connection with the

above marriage, there was a case against herself, Pws 1 and 3 and

the said Vijayan and some others. This witness has further stated

that the appellant came to the house of her on 2.10.1998 and

demanded an amount of Rs.25,000/= for settling the case

registered against her husband and others. Further this witness

CRL.A.NO.656/2001 14

has stated that the appellant told her that the appellant would

come again if the amount so demanded is not paid. PW5 was the

Dy.S.P of Neyyattinkara, the superior officer of the appellant, who

took in custody of Exts.P6 and P7, the note book kept by the

appellant and the C.D file of Crime No.181/1998 of Vellarada Police

Station. This witness has also stated that he had seized Ext.P4 as

produced by PW1. PW6 is the I.G. Of Police, who issued Ext.P10

sanction order to prosecute the appellant. PW7 is the Dy.S.P, who

had conducted part of the investigation of the case and had seized

certain documents in connection with the crime. PW8 is the

Dy.S.P, who had recorded Ext.P1 statement from PW1 and had

conducted the trap. This witness has stated before the court that

PW1 came to his office on 10.11.1998 and had filed Ext.P1

complaint. This witness has further stated that as PW1 had brought

the amount of Rs.3,000/= to be paid to the appellant as bribe, on

recording Ext.P1, presence of PW2 and CW3 were requested

through the officer and thereafter he had explained to them that

they have to accompany them to the quarters of the appellant. As

the appellant was not available on 10.11.1998, PW1 and the police

officials came back to his office and the currency notes were kept in

safe custody. On the next day PW1 was again directed to go to the

CRL.A.NO.656/2001 15

quarters of the appellant and himself, PW2, CW3 and other police

officials were waited outside the quarters and receipt of the signal

from PW1 that he had paid amount to the appellant, PW8 and

other witnesses entered into the quarters and PW8 asked the

appellant where the amount which he received from PW1 was

kept. To this question the appellant had replied that PW1 placed

the notes on the table and the appellant took the same and kept in

the almirah inside the bed room and on pointing out the almirah by

the appellant, PW2 was directed to take out the currency notes

from the almirah. This witness has further stated that as directed

by him, PW2 had taken MO1 series from the 2nd berth of the

almirah and the currency notes were tallied with the marking made

by him as entered in Ext.P2 mahazar. Further this witness has

stated that another bundle of fifty rupees denomination of an

amount of Rs.5,000/= was also seen kept in the same berth of the

almirah and the same was also recovered as per Ext.P3 mahazar

and the above notes were produced before the court and marked as

MO6 series. This witness has stated that the appellant had told

him that the above currency notes of Rs.5,000/= belong to the

appellant. However, that bundle of notes was also taken into

custody. This witness has further stated that in the presence of PW2

CRL.A.NO.656/2001 16

and other police officials, phenolphthalein test was conducted on

the currency notes – MO1 series, MO4 piece of the Hindu daily

paper on which PW1 alleged to have been placed the currency notes

which was also subjected to phenolphthalein test. This witness has

stated that the test conducted on the right hand of the appellant was

shown positive result and thereafter on preparing the arrest

memo, the appellant was arrested and investigation of the case was

continued and PW7 filed final charge before the court. The above

evidence of these witnesses has been considered by the trial court

for finding the appellant guilty of the charges. The contention of

Sri.T.Ravikumar , the learned counsel for the appellant is that since

Pws 1,3 and 4 are the accused in Crime No.181/1998, their

evidence has to be accepted only with due care and caution as

witnesses have got interest to give false evidence against the

appellant. Admittedly Crime No.181/1998 of Vellarada Police

Station was registered on the direction issued by this Court in

connection with a writ petition regarding the kidnapping, rape and

criminal intimidation of one Mini by Vijayan, the brother of PW4

and other eight accused. PW1 had a specific case in Ext.P1 that

the appellant came to the house of PW4 in connection with

investigation of Crime No.181/1998 on 2.10.1998 and had told to

CRL.A.NO.656/2001 17

PW4 that he will help them in the case if he is met properly. It

was the further case of PW1 that when the appellant went to the

house of PW4, the appellant had given Ext.P4 notice informing the

husband of PW4 to meet the appellant for the purpose of Crime

No.181/19998 and this information passed on to PW3 and

thereafter PW3 had informed the direction given by the appellant

and therefore PW1 went to the quarters of the appellant and met

Sri.Radhakrishnan, the jeep driver of the appellant. That is why

PW1 went to the quarters of the appellant. In Ext.P1 the specific

case of PW1 was that as the appellant directed PW4 that the

appellant would help them if PW1 and others meet him properly

and further the appellant had given his phone number to PW4.

Hence PW1 went to the quarters on 4.11.1998 at about 10.30 a.m

and he met Sri. Sreekuma, the driver of the appellant and at that

time Sri.Sreekumar told him that Rs.5,000/= should be given to

the C.I of Police – the appellant. Then PW1 told to Sreekumar that

he will come with money on the next day and the said driver had

not allowed him to see the appellant. So, on 9.11.1998 PW1 to

the quarters of the appellant at about 9 p.m and he met the

appellant and the appellant asked him whether the amount has

been paid or not. This witness has stated that he would give the

CRL.A.NO.656/2001 18

money on the next day and this witness has further stated that the

appellant had demanded an amount of Rs.5,000/= otherwise they

will suffer consequences. Because of the demand made by the

appellant, PW1 went to the office of PW8- the Dy.S.P of Police, and

filed a complaint. But when this witness was examined before the

court, he had stated that he met the appellant at 9 p.m but, he

was not remembering the date and on that date the appellant had

told him that if Rs.5,000/= is paid, two women accused would be

deleted from the array of the accused. But, this witness has

further stated in the chief examination that on 11.11.1998, that is

on the day of the trap, when he went to the quarters and switched

the calling bell, the appellant opened the door and the appellant

could not identify him. But, when he told his name and stated

that he is coming from Ottasekaharamangalam, then only the

appellant recognized him. Further this witness has stated that he

told the appellant that he brought the amount and at that time the

appellant told him to place the amount on the table. PW1 placed

the amount on the table placed on the next room where the

appellant was seen. But the date and time mentioned by PW1 in

the cross examination are different and he had stated that he was

not remembering whether on the first day he met the driver

CRL.A.NO.656/2001 19

Sreekumar or not. Then he had asserted that the demand was

made by the driver and that was on two days prior to

10.11.1998. He had further stated that the driver had stated to

him that the appellant should be paid Rs.5,000/= and Rs.2,000/= to

the office staff of the appellant and a further sum of Rs.1,000/= be

paid to the driver. It is also admitted by him in the cross

examination that the appellant demanded Rs.5,000/= as bribe but

that was not spoken to by him while he was questioned by the

investigating officer. Further, this witness has put a definite case

that he met the appellant on 9.11.1998 at noon and hence this

witness has no consistent case with the demand made by the

appellant. That apart, he had a case before the court that on the

first day he met the driver Radhakrishnan who had demanded

bribe to be paid to the appellant and it has also come out in

evidence the said driver Radhakrishnan was the 2nd accused in the

F.I.R whose name was deleted subsequently by the investigating

agency as per Ext.P14 report filed before the court and no

explanation is also forthcoming for the deletion of the name of

said Radhakrishnan from the array of the accused. It has also

come out in evidence that the said Radhakrishnan was

subsequently shown as a charge witness but he was not examined

CRL.A.NO.656/2001 20

by the prosecution. Apart from the discrepancies of demand made

by the appellant as spoken to by PW1, he had no consistent case

that when he actually met the appellant and on what time or what

day the appellant demanded the bribe. In this context, the

evidence of DW1 is relevant as he had stated that on 9.11.1998

between 5 p.m and 7 p.m the appellant had attended an official

function at Neyyattinkara in which the Superintendent of Police was

also a participant. This witness has further stated that the

appellant was on petrol duty up to 12 O’Clock at night on

9.11.1998. This evidence creates doubt on the veracity of the

evidence of PW1 regarding the demand made by the appellant on

9.11.1998. Further as per Ext.P6 note book seized by PW7, the

Dy.S.P, also showed that the appellant was on petrol duty

between 7 p.m and 12 night on 9.11.1998 and this particular

portion was marked as Ext.P6(a). With regard to the alleged

demand made by the appellant the evidence of Pws 3 and 4 also to

be considered. According to PW3 on 2.10.1998, the appellant

came to his house and had given Ext.P4 notice requesting him to

meet the appellant in connection with Crime No.181/1998 and PW4

had handed over Ext.P4 notice to PW3. In this context, PW3 was

cross examined by the defence and he had admitted that on

CRL.A.NO.656/2001 21

receipt of Ext.P4 notice, he met his lawyer and handed over Ext.P4

also. He had further admitted that he himself had produced Ext.P4

before the investigating officer which was seized by the

investigating officer as per Ext.P5 mahazar dated 9.4.1999 and

there was no explanation coming from PW3 where Ext.P4 was kept.

Hence issuance of Ext.P4 on 2.10.1998 by the appellant itself was

doubtful as alleged by the prosecution. That apart when PW4 was

examined before the court, he had a definite case that the appellant

came to her house along with DW1 and other police officers. This

witness has stated that the appellant had told her that he should

be properly met and the appellant had demanded an amount of

Rs.25,000/= as bribe for settling Crime No.181/1998 and deletion

of two women accused from the array of accused. But this witness

has no case that the demand made by the appellant has been

conveyed either to PW1 or any other witness. What PW4 had

stated was that she had handed over Ext.P4 to PW3 and thereafter

she was not aware of anything about Ext.P4. She had

specifically stated that receipt of Ext.P4 or demand so made by

the appellant was not conveyed to PW1. This witness also has

admitted that the appellant tried to arrest her husband – PW3 in

connection with the crime registered against him and PW4.

CRL.A.NO.656/2001 22

Hence, the evidence of Pws 1, 3 and 4 with regard to the demand

made by the appellant for any bribe cannot be accepted without

corroboration of other evidence. In this context, the specific case

set up by PW1 in Ext.P1 was that the appellant had demanded

Rs.5,000/= to be paid as bribe. This Court has already found

that the 1st demand, according to PW1, was made by the driver

Radhakrishnan and not by the appellant. In the above

circumstances, the evidence of Pws 1, 3 and 4 regarding the

alleged demand made by the appellant cannot be accepted. In this

context, the judgment of the Apex Court reported in Major E.G.

Barsay v. State of Bombay ( AIR 1961 SC 1762) is relevant .

In the above judgment the Apex Court held that the evidence of a

trap witness should be corroborated by the independent evidence.

Further an early judgment of the Apex Court reported in Sat

Paul v. Delhi Administration (AIR 1976 SC 294) is also can be

advantageously referred. In the above case, the Apex Court had

taken the view that where the witness have poor moral fiber and

have to their discredit a load of bad antecedents which indicates

their having a possible motive to harm the accused who was an

obstacle in their immoral activities, it would be hazardous to

accept the testimonies of such witnesses without corroboration on

CRL.A.NO.656/2001 23

crucial points from independent sources. Admittedly Pws 1, 3 and

4 are accused in Crime No.181/1998 involving the offences like

rape, kidnapping and criminal intimidation and so on. Hence, Pws

1 to 4 have got their own interest to speak against the appellant

and they were in the zest of a remedy for escaping from the

clutches of the crime registered against them. It has also come

out in evidence that as per Ext.P7 C.D file a case was registered

against Pws 1, 3 and 4 and her brother Vijayan and four others for

committing heinous crime like rape, kidnapping and criminal

intimidation. Hence, the evidence of these witnesses is not

sufficient to prove that the appellant had made demand for any

bribe as alleged by the prosecution. Hence, benefit of doubt

regarding demand shall be construed in favour of the appellant.

In this contest, the learned Public Prosecutor contends that as per

Ext.P3 recovery mahazar, MO1 series of marked currency notes

were recovered from the almirah in the bed room of the

appellant and it was proved by the evidence of PW2 and PW8 that

MO1 series were the same currency notes marked and described in

Ext.P2 entrustment mahazar. Hence the recovery itself is only

to prove that the appellant had demanded bribe and received the

same as per the presumption available to the prosecution as per

CRL.A.NO.656/2001 24

Section 20 of the P.C.Act.

6. To this argument, Sri.T.Ravikumar, the learned counsel

appearing for the appellant had contended that even though PW1

had stated before the court that he had placed the marked

currency notes on the table which was placed in the bed room of the

appellant as asked by the appellant, MO4 piece of Hindu paper

was found on the table seen in the sit out or in the next room of

the bed room. Hence, it is doubtful whether the marked notes

were placed by PW1 on the table as alleged by the prosecution and

that apart PW1 had categorically stated before the court that he

had placed the currency notes on the table seen inside the bed

room close to the sit out in which the appellant came on switching

the caling bell by PW1. That apart, according to PW8, when PW1

had given signal showing the acceptance of the amount by the

appellant, PW2 and other police officials entered into the quarters of

the appellant and PW8 asked the appellant where the amount

which he received from PW1 was kept. To this question, the

appellant himself has answered that he had taken the currency

notes from the table and put the same in the almirah and

thereupon PW2 was directed by PW8 to take out the currency

CRL.A.NO.656/2001 25

notes from the almirah and PW2 had taken out the currency notes.

In this context, discription of the almirah from which MO1 series

were seized was there in Ext.P3. It is stated in Ext.P3 mahazar

that the almirah is inside the bed room and which had four

berths and in the 2nd berth from top, MO1 series notes were seen

found. Further it is stated that this almirah had shutters and that

shutters were not fully closed but ”chariyirunnu”. Further, it is

stated in Ext.P3 that there was another bundle notes of

Rs.5,000/= of fifty denomination stapled and also seen kept on

the same berth of the almirah and in the next berth of the almirah

there were books and dresses. But it is not recorded in Ext.P3

that the almirah had got any lock or not. That apart, it has

come out in evidence that some coins were also found on the 2nd

berth of the almirah and that coins were not seized. Further as per

the evidence given by PW2 and PW8, it could be seen that Mo1

series notes were subjected to phenolphthalein test, whereas Mo6

series notes- the 2nd bundle was not subjected to any

phenolphthalein test. If such a test has also been conducted on

MO6 series, it would have been proved that the same amount was

received by the appellant as stated by PW1 as bribe for himself.

That apart, PW2 has stated before the court that he himself had

CRL.A.NO.656/2001 26

took out MO1 series notes, but the hands of PW2 were not

subjected to any phenolphthalein test which would also proved that

he had taken out the notes from the almirah. That apart, a

portion of the almirah from which the alleged notes were kept was

not subjected to any phenolphthalein test. In this context, the

evidence of PW1 and PW8 was also very crucial with regard to the

handing over of MO1 series notes to PW1 that the trap was made.

PW1 had a definite case before the court that on 11.11.1998 when

they went to the quarters of the appellant MO1 currency notes

were handed over by PW8 on the road near the quarters of the

appellant, whereas PW8 had got a case that the notes were kept

by him in the safe custody in his office and were handed over to

PW1 at the office of PW8 itself. The contradiction in this aspect

was that if PW8 had given the currency notes to PW1 on touching

the same the hands of PW8 could also have been contact with

the currency notes should also be subjected to phenolphthalein

test. If the hands of PW8 were also subjected to phenolphthalein

test it would guarantee that the currency notes recovered from

the almirah of the appellant is in accordance with the prosecution

case, whereas PW1 had a doubt regarding the bundle of notes

i.e., whether the same was kept on the table seen inside the

CRL.A.NO.656/2001 27

sit out or inside the bed room. In this context, in Ext.P3 it is

recorded that piece of Hindu daily paper which was seen on the

table kept in the sit out was also subjected to phenolphthalein

test which had shown a positive result. In this context, the case set

up by the appellant in his Section 313 statement requires

attention of this Court. According to the appellant, when PW8 and

other police officials entered into the quarters, he was asked to

sit down on the cot and the police officers including PW8 made a

search inside the house and the appellant was kept in restraint

by two C.I of Police so that he could not move. Further the

appellant had a case that the currency notes which alleged to have

been recovered from the quarters of the appellant might have

been thrown out by PW1 through the window without his

knowledge or consent. In this context, in Ext.P3 it is specifically

recorded that the windows of the sit out as well as the bed room

were opened. Hence, the case set up by the appellant that he

had not received any amount from PW1 should have special

attention in the light of the evidence adduced by the prosecution.

With regard to this aspect, the learned trial judge had found the

appellant alone was residing in the quarters and hence he is in

exclusive possession of the quarters and he had no explanation for

CRL.A.NO.656/2001 28

the recovery made by the police. But, it has come out in evidence

that when the appellant was arrested, an arrest memo was

prepared and handed over to the brother of the appellant at the

spot. There was no evidence to prove that the appellant alone was

in the quarters. Hence, the conclusion arrived at by the trial court

that the appellant alone was residing in the quarters is not correct.

In this context, the prosecution is relying on Ext.P3 mahazar in

which PW8 had recorded that when himself and other officials

entered into the quarters, he asked about the currency notes

which he had received from PW1. It is recorded in Ext.P3 that

the appellant had stated to PW8 that the amount received by him

from PW1 was kept in the almirah and he himself has pointed out

the almirah from which recovery has been made. In this context,

the finding of the trial court that the statement given by the

appellant to PW8 can be taken as a substantive piece of evidence

against the appellant and the statement led to the recovery of

MO1 series. But, even as per Section 8 of the Evidence Act the

conduct of any party or any agent to any party or any suit or

proceedings in reference to such suit or proceedings is relevant,

but explanation to that section it is clearly stated that the conduct

in this section does not include the statement unless those

CRL.A.NO.656/2001 29

statement acts other than statements. In this context, the

statement alleged to have been made by the appellant to PW8

cannot be accepted as a statement which led to the recovery of

Mo1 series. That apart, even if such a statement is recorded by

PW8 in the course of the investigation, that statement is hit by

Section 162 of the Code of Criminal Procedure. Hence, the

recording made by PW8 in Ext.P3 that the appellant had stated

that he kept the amount inside the almirah and he had pointed

out the almirah from which the recovery has been made cannot

have any bearing to find that the recovery was made by the

police and on the basis of the recovery it is proved that the

appellant had received any amount as alleged by the prosecution.

Hence, the presumption under Section 20 could not also be drawn

in favour of the prosecution. In this context, the judgment of the

Apex Court reported in Suraj Mal v. The State ( Delhi

Administration) [AIR 1979 SC 1408] is also to be referred. In

the above case, the Apex Court had categorically held that mere

recovery of money divorced from the circumstances under which

it is paid is not sufficient to convict the accused when substantive

evidence in the case is not reliable. In this context, another

contention was raised with regard to the phenolphthalein test

CRL.A.NO.656/2001 30

conducted on the hands of the appellant. PW8 had stated before

the court that when MO1 currency notes were recovered from the

almirah, the notes were subjected to phenolphthalein test and

thereafter left hand of the appellant was also subjected to

phenolphthalein test, but the result was negative. Subsequently,

the right hand of the appellant was subjected to phenolphthalein test

and thereafter in MO3- is the bottle in which the lime water was

kept. After the dipping of the right hand of the appellant it was

turned to pink as per Ext.P3 mahazar. But when the same was

produced before the trial court it was pointed out that there was

no colour change in Mo3 bottle. But the trial court had accepted

the explanation given by PW2 in this aspect as PW2 had stated that

fading of the colour may be due to lapse of years. But this

Court is not in a position to accept the explanation given by PW2 as

PW2 is not an expert in this aspect. That apart, purpose of the

phenolphthalein test is to show that hands of the appellant had

contacted the currency notes prior to its recovery. But it is seen

from the evidence now adduced before the court that MO3 had not

changed any colour. Hence, recording of Ext.P3 that the right

hand of the appellant turned pink is also doubtful. In the light of

the above fact also the case set up by the appellant is more

CRL.A.NO.656/2001 31

probable regarding the alleged recovery made by PW8.

8. In the light of the discussions made and the reasoning

adopted in the judgment, the appellant is entitled for the benefit of

doubt and hence this Court is of the view that the judgment of the

trial court is not sustainable in law and hence it is set aside and

the appellant is not guilty of the offence as charged against him.

Hence, he is acquitted. The bail bonds of the appellant stand

canceled.

Before this Court parts with the judgment, it has to be

noted that the prosecution had a case that MO6 series notes

belong to the appellant. But this Court had already found that

MO6 notes were not subjected to any phenolphthalein test,

whereas the appellant had a case that MO6 series did not belong

to him. Hence, the order of the trial court that MO6 series notes

shall be adjusted as part of the fine is not legal. Hence, MO6

series shall be confiscated to the Government as per law.

K. THANKAPPAN, JUDGE.

cl

CRL.A.NO.656/2001 32

K. THANKAPPAN, J.

CRL.A.NO.656 OF 2001C

JUDGMENT

21st March, 2007.

CRL.A.NO.656/2001 33