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.
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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