{"id":214798,"date":"2007-03-21T00:00:00","date_gmt":"2007-03-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/g-jabal-vs-state-on-21-march-2007"},"modified":"2018-03-04T15:49:40","modified_gmt":"2018-03-04T10:19:40","slug":"g-jabal-vs-state-on-21-march-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/g-jabal-vs-state-on-21-march-2007","title":{"rendered":"G. Jabal vs State on 21 March, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
G. Jabal vs State on 21 March, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL A No. 656 of 2001(C)\n\n\n\n1. G. JABAL\n                      ...  Petitioner\n\n                        Vs\n\n1. STATE\n                       ...       Respondent\n\n                For Petitioner  :SRI.T.RAVIKUMAR\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice K.THANKAPPAN\n\n Dated :21\/03\/2007\n\n O R D E R\n                               K. THANKAPPAN,  J.\n\n                           --------------------------------------\n\n                          CRL.A.NO.656  OF 2001\n\n                          ---------------------------\n\n                   Dated this the  21st  day of March,  2007.\n\n\n                                      JUDGMENT\n<\/pre>\n
       The   appellant,   who   is   the   sole   accused   in   C.C.No.56\/1999,<\/p>\n
faced   trial for the offence punishable under Sections 7 and   13(1)<\/p>\n
(d)   read   with   Section   13(2)   of   the   Prevention   of     Corruption   Act,<\/p>\n
1988.\n<\/p>\n<\/p>\n
2.       The   prosecution   case   against   the   appellant   in   brief   is   as<\/p>\n
follows:\n<\/p>\n<\/p>\n
       While   the   appellant   was   working     as   the     Circle   Inspector   of<\/p>\n
Police,   Neyyattinkara,       Crime   No.181\/1998   of     Vellarada   Police<\/p>\n
Station  has  been   registered    against  one   Vijayan,  brother  of  PW4-<\/p>\n
Latha     and   eight   others   alleging   the       commission   of       offences<\/p>\n
punishable   under   Sections   344,   366,   368,   378   and   506   (1)     read<\/p>\n
with Section 34 of   the I.P.C.   The appellant took up charge of the<\/p>\n
investigation   of  that   case  on   1.10.1998.         In  connection  with   the<\/p>\n
above case, PW1  was arrested  and he   was in remand   for   some<\/p>\n
days  and thereafter  the  appellant had  gone to the house of  PW4<\/p>\n
and   told   her   that     if   he   has   seen   properly,   he     would   help   them.<\/p>\n
The   said     massage   was   passed   on   to   PW1   by   PW4   and     thereby<\/p>\n
CRL.A.NO.656\/2001                         2<\/span><\/p>\n
  PW1 went to the   quarters of the appellant and he met him.     The<\/p>\n
  driver of the appellant,  one Radhakrishnan,  had talked to PW1 that<\/p>\n
  the appellant   should be given bribe and the   driver also should be<\/p>\n
  given   a   share   of   the   same.       Thereafter   when   PW1   contacted   the<\/p>\n
  appellant,  he told him that PW1 should pay Rs.5,000\/= for deleting<\/p>\n
  two     women   accused   from   the   array   of   the   accused   in   Crime<\/p>\n
  No.181\/1998  of   Vellarada Police  Station,    for  which   PW1 agreed.<\/p>\n
  Further,  it is alleged by the prosecution that,  on the next day PW1<\/p>\n
  went   to  the     office  of   the   Vigilance  Dy.S.P-  PW8,  and  gave   Ext.P1<\/p>\n
  First   Information   Statement   and   on   the   basis   of   the   above<\/p>\n
  statement,   PW8   –   the   Dy.S.P,   procured     the   presence   of     two<\/p>\n
  independent witnesses namely PW2 and CW3, from the office of the<\/p>\n
  Superintending Engineer and directed PW1 to bring the  bribe money<\/p>\n
  of  Rs.3,000\/= to be paid to the appellant.  On the next day,  that is<\/p>\n
  on 10.11.1998,  PW1 produced the  bribe money of Rs.3,000\/= (30<\/p>\n
  numbers   of     hundred   rupee   notes)   before     PW8   and   at   that   time<\/p>\n
  both   PW2   and   CW3   were   also   present   and   that     amount   was<\/p>\n
  entrusted   by PW1 to PW8 and the amount was   received   by PW8<\/p>\n
  on   preparing     a   mahazar   and   thereafter     explaining   the     result   of<\/p>\n
  phenolphthalein powder test the bribe money was returned  back to<\/p>\n
  PW1   by   PW8.     PW2,   CW3   and   other   police   officials     accompanied<\/p>\n
CRL.A.NO.656\/2001                          3<\/span><\/p>\n
  PW1 to the quarters   of the appellant at about 4.15  p.m and PW1<\/p>\n
  alone   was     sent     to   the     quarters.     PW8   and   the   other   witnesses<\/p>\n
  waited near the quarters but,  since the appellant was not available<\/p>\n
  in the quarters on that day, PW1 could not pay the  amount to  the<\/p>\n
  appellant.   Hence, PW1, PW8 and other witnesses gone back to the<\/p>\n
  office of PW8 and the bribe money was entrusted by  PW1 to  PW8,<\/p>\n
  who kept the same in safe custody and on the next day,  namely on<\/p>\n
  11.11.1998,   PW1 again went to the quarters of   the appellant and<\/p>\n
  PW8 and other witnesses  accompanied him and PW1 alone went to<\/p>\n
  the   quarters     and   he     knocked   the   door   of   the   quarters   and   the<\/p>\n
  appellant opened the  door and PW1 entered into  the  quarters and<\/p>\n
  the appellant directed to place   tainted currency notes on the table<\/p>\n
  and immediately thereafter PW1 came out of the room and  signaled<\/p>\n
  to PW8 and other witnesses, who  were  waiting  near   the quarters.<\/p>\n
  Suddenly PW8 –  the Dy.S.P,  and other witnesses  entered into   the<\/p>\n
  quarters   and     enquired   with   appellant   about   the   money   given   by<\/p>\n
  PW1.     Further   case     of     the     prosecution     is   that   the     appellant<\/p>\n
  himself had told to PW8 that the amount  given by PW1 was kept in<\/p>\n
  an     almirah   in   the     bed   room.       Thereafter   the   amount   was<\/p>\n
  recovered and the appellant was arrested after having   conducted a<\/p>\n
  phenolphthalein   test   on   the   notes   recovered     and   thereafter   the<\/p>\n
CRL.A.NO.656\/2001                          4<\/span><\/p>\n
  investigation   was     continued   and     a     final     charge   has   been   filed<\/p>\n
  against the appellant.     To prove   the charge against the appellant,<\/p>\n
  prosecution examined Pws 1 to 8 and produced Exts.P1 to P14.   On<\/p>\n
  closing     the   prosecution   evidence,   the   appellant   was   questioned<\/p>\n
  under   313   of   the   Code   of   Criminal   Procedure.     Denying   the<\/p>\n
  prosecution allegations  the appellant had stated that  he is innocent<\/p>\n
  and   the   case   was   foisted   against   him   and   no   amount   has   been<\/p>\n
  recovered  from     the   possession  of  the   appellant   as   alleged   by  the<\/p>\n
  prosecution.   The appellant,   further,  had stated that when PW8 –<\/p>\n
  the Dy.S.P  opened the door and asked about the bribe money,  the<\/p>\n
  appellant told him that he had not received any amount as alleged.<\/p>\n
  The appellant had further   stated   that the amount alleged to have<\/p>\n
  been   recovered   might   have   been   thrown   in   the   drawing   room   or<\/p>\n
  into the bed room by PW1.   The appellant had   further   stated that<\/p>\n
  PW8 and the other police officials wrongfully restrained   him at the<\/p>\n
  bed room lying   east of the drawing room and he was guarded by<\/p>\n
  two Circle Inspectors and the  notes alleged to have been recovered<\/p>\n
  from the almirah was without his knowledge.       The appellant had<\/p>\n
  further stated that PW1 had not   met him either on 9.11.1998 at 9<\/p>\n
  p.m at the   quarters or   on any other   day.   On 9.11.1998   he was<\/p>\n
  attending the official functions from 5 p.m to 7 p.m and thereafter<\/p>\n
CRL.A.NO.656\/2001                          5<\/span><\/p>\n
  was on patrol duty till 12 O’ Clock in the night.   To prove his case,<\/p>\n
  the appellant had examined     Dws 1 to 3 and   relied on Exts.D1 to<\/p>\n
  D2(a).     However,   after     analysing     the   evidence,     the   trial   court<\/p>\n
  found   the appellant   guilty of the charges   and he was   convicted<\/p>\n
  under Sections 7 and   13(2)   read with Section 13(1)(d) of the P.C<\/p>\n
  Act and he was  sentenced to undergo  R.I for  four years and to pay<\/p>\n
  a   fine   of   Rs.20,000\/=   under   Section   7   of   the     P.C.   Act   and   also<\/p>\n
  sentenced to undergo R.I for three years under Section 13(2) read<\/p>\n
  with Section 13(1)(d)  of the P.C. Act.  The trial court  also ordered<\/p>\n
  that  in default of the payment of  fine, the appellant  shall undergo<\/p>\n
  R.I for  a further period of one year more.    The  trial court further<\/p>\n
  ordered   to   run   the   substantive   sentences     concurrently.       The<\/p>\n
  judgment of the trial court is assailed in this appeal.<\/p>\n
  3.     This   Court   heard     Sri.   T.   Ravikumar,     the   learned   counsel<\/p>\n
  appearing   for   the   appellant   and     the   learned   Public   Prosecutor.<\/p>\n
  The   learned   counsel   Sri.T.Ravikumar   had   taken   the     following<\/p>\n
  contentions:\n<\/p>\n<\/p>\n
         Firstly it is contended that   the trial court committed   serious<\/p>\n
  error in placing reliance on the evidence of Pws 1 to 4 and 8 as the<\/p>\n
  evidence of these witnesses is sufficient   to  prove the case against<\/p>\n
CRL.A.NO.656\/2001                         6<\/span><\/p>\n
  the appellant beyond  reasonable doubt.   Secondly, it is contended<\/p>\n
  that   the trial court had committed   serious error in believing PW1<\/p>\n
  with  regard   to   the   alleged   demand   made   by  the   appellant   without<\/p>\n
  having   any   independent   corroboration   as   the     evidence   of   PW4<\/p>\n
  contradicts   the material   particulars   of the alleged demand made<\/p>\n
  by the appellant.     The evidence of PW1 would not show that there<\/p>\n
  was any   demand made  by the appellant either  through the driver<\/p>\n
  Sri.Radhkrishnan   or     through   anybody     else   especially   the<\/p>\n
  prosecution had no case before the court against Sri.Radhkrishnan,<\/p>\n
  the driver of the appellant regarding any demand made for and on<\/p>\n
  behalf of the appellant or for himself.     Thirdly, it is contended that<\/p>\n
  the evidence of Pws 2 and 8, the trap witnesses,   should not have<\/p>\n
  been     accepted   by   the   trial   court   without     corroboration   of     the<\/p>\n
  independent   witnesses   as     these   witnesses   are   interested     to   find<\/p>\n
  that the  appellant  be  convicted.   Fourthly, it is contended that the<\/p>\n
  evidence of Pws 1 to 4  should not have been accepted   as  against<\/p>\n
  these witnesses a crime has already been registered     alleging   the<\/p>\n
  commission   of   serious   offences   including   rape,     kidnapping   and<\/p>\n
  criminal   intimidation   and     as   these     witnesses   are     interested   to<\/p>\n
  speak  against the appellant.\n<\/p>\n
CRL.A.NO.656\/2001                         7<\/span><\/p>\n
  4.       The  question to be decided in this appeal in the light of the<\/p>\n
  contentions   raised   by   Sr.T.Ravikumar   is   that   whether   the   findings<\/p>\n
  entered   and   the   conclusions   arrived     at   by   the   trial   court     are<\/p>\n
  sustainable  in law or not.\n<\/p>\n<\/p>\n
  5.     The   prosecution   case   against   the   appellant   is   that   the<\/p>\n
  appellant took charge of the investigation of Crime No.181\/1998 of<\/p>\n
  Vellarada Poalice Station   and   in connection with the   investigation<\/p>\n
  of   the   above   crime,     being   the   Circle   Inspector   of   Police,<\/p>\n
  Neyyattinkara,     the   appellant     had   started   his   investigation.     PW1<\/p>\n
  and some other accused in the crime were arrested and  remanded<\/p>\n
  to judicial  custody.  As part of the investigation of the above crime,<\/p>\n
  the appellant and     DW3- a Police Constable   of   the Neyyattinkara<\/p>\n
  Police Station went to the house of Pw1 on 2.10.1998  and  mahazar<\/p>\n
  of   his   wife –   PW4 has been prepared by the said police constable<\/p>\n
  and during that time, the appellant told to PW4 that if the appellant<\/p>\n
  was seen properly,  he  would delete  two  women  accused from the<\/p>\n
  array of the accused in Crime No.181\/1998 and this demand of the<\/p>\n
  appellant   was     conveyed     to   PW1   and   thereafter   PW1   met     the<\/p>\n
  appellant     at   the   quarters   on   9.11.1998   and   at   that   time   the<\/p>\n
  appellant   demanded   Rs.5,000\/=   as   bribe   for   the   deletion   of     two<\/p>\n
CRL.A.NO.656\/2001                          8<\/span><\/p>\n
  women  accused  from the array of Crime No.181\/1998 of  Vellarada<\/p>\n
  Police   Station.     Though   PW1   had   agreed   to   pay   the   amount<\/p>\n
  demanded by the appellant,   he was not willing to pay the bribe to<\/p>\n
  the appellant.  On the next day namely on 10.11.1998 PW1 went to<\/p>\n
  the office of PW8- the Vigilance Dy.S.P, Trivandrum and filed Ext.P1<\/p>\n
  complaint and he also brought an amount of Rs.3,000\/=  before the<\/p>\n
  Dy.S.P and thereafter PW8 procured  the presence of PW2 and CW3,<\/p>\n
  the two officers from the  Superintending Engineer and after having<\/p>\n
  prepared  the mahazar and marking  the currency notes brought by<\/p>\n
  PW1 directed PW1 to hand over  the amount to the appellant,   if he<\/p>\n
  asks for bribe.   On the  direction of PW8, PW1 went to the quarters<\/p>\n
  of the appellant on 10.11.1998 itself accompanied   by   Pws 8,PW2,<\/p>\n
  CW3   and   other     police.       But   as   the   appellant   was   not   available,<\/p>\n
  PW1 could not   give the bribe amount to   the appellant.     PW1 and<\/p>\n
  the police party went back to the office of PW8 and marked   notes<\/p>\n
  were  entrusted   back to PW8 and kept the same   in safe custody.<\/p>\n
  On the next day namely   on 11.11.1998,   PW8 again directed PW1<\/p>\n
  to  go the  quarters  of  the  appellant  and  to  give   the  amount  to  the<\/p>\n
  appellant.       So   directing,     PW1,   PW8,   PW2,   CW3   and   other   police<\/p>\n
  officials  waited outside the quarters  and  as agreed early on  giving<\/p>\n
  the marked  notes to the appellant, PW1 signaled to PW8 and other<\/p>\n
CRL.A.NO.656\/2001                          9<\/span><\/p>\n
  officials and immediately PW8, two Circle Inspectors, PW2 and other<\/p>\n
  witnesses entered into the   quarters and PW8 asked   the appellant<\/p>\n
  where he kept  the amount which he received from PW1.  It is  the<\/p>\n
  further case of the prosecution that the appellant himself  had stated<\/p>\n
  that   PW1   placed     the   tainted   notes   on   the   table   from     which   the<\/p>\n
  appellant   took   and   kept   the   same   in   the   almirah   inside   the   bed<\/p>\n
  room.     As   the   appellant     himself     pointed   out   the   almirah,     PW8<\/p>\n
  directed PW2 to take out the currency notes from the almirah   and<\/p>\n
  thereafter PW2 took out the marked currency notes which was kept<\/p>\n
  in the   second birth of the   left side  of the almirah  and thereafter<\/p>\n
  prepared    Ext.P3  mahazar, marked  currency  notes  were  recovered<\/p>\n
  and     in  the   presence   of     PW2   and   CW3   a   phenolphthalein   powder<\/p>\n
  test   was   conducted   on   the   currency   notes     and   the   hands   of   the<\/p>\n
  appellant.       The   result   of   the   test   was     found     affirmative   and<\/p>\n
  thereafter the appellant was arrested and   a crime   was   registered<\/p>\n
  against the appellant under Section 7 and 13(2)   read with Section<\/p>\n
  13(1)(d)   of   the   P.C.Act.     To   prove     this   case,   prosecution   placed<\/p>\n
  reliance on the evidence of PW1, who is one of the accused in Crime<\/p>\n
  No.181\/1998   of Vellarada  Police   Station.      This  witness   has   stated<\/p>\n
  before the court that  he was an accused in Crime No.181\/1998 and<\/p>\n
  the appellant went to the house of PW4, who is the sister of  Vijayan<\/p>\n
CRL.A.NO.656\/2001                          10<\/span><\/p>\n
  –   the   main   accused   in     Crime   No.181\/1998   and   the   appellant   told<\/p>\n
  PW4 that if the appellant was met properly,  he would help them to<\/p>\n
  deletie   two   women   accused   from   the   party   array   of   Crime<\/p>\n
  No.181\/1998  and   this information  was passed on to PW3 by PW4<\/p>\n
  and PW3  had   again informed about this to PW1.   He went  to the<\/p>\n
  quarters   of   the   appellant   and     met   Sri.Radhakrishnan,   the   official<\/p>\n
  jeep  driver   of  the  appellant.      This  witness  has  further  stated  that<\/p>\n
  the   said Radhakrishnan had told him that if the appellant had paid<\/p>\n
  an   amount   of   Rs.5,000\/=     and   Rs.3,000\/=   for   the   staff   of   the<\/p>\n
  appellant and     said Radhakrishnan, the appellant would help them<\/p>\n
  in   the   case.     On   receiving     this   information   or     rather   getting  the<\/p>\n
  demand   made   by   the   said   Radhakrishnan,   this   witness     met   the<\/p>\n
  appellant   on     9.11.1998   at     9   p.m.     As     this   witness   was   not<\/p>\n
  interested in to pay the bribe  to the appellant,  he had  reported the<\/p>\n
  matter  to the office  of  PW8  – the  Dy.S.P  of   Vigilance on the next<\/p>\n
  day and he  filed Ext.P1 complaint before  PW8.     When he went to<\/p>\n
  the   office   of   PW8,     this   witness   had   also   brought   an   amount   of<\/p>\n
  Rs.3,000\/= and PW8   had procured the presence of   two witnesses<\/p>\n
  from   the   Superintending   Engineer     namely   PW2   and   CW3.     This<\/p>\n
  witness has further stated that as directed by PW8,   he again went<\/p>\n
  to the quarters of the appellant on the same day and PW8 and other<\/p>\n
CRL.A.NO.656\/2001                          11<\/span><\/p>\n
  police   officials     had   waited     outside   the   quarters,       but   as   the<\/p>\n
  appellant was not available  on that day, PW8 and other   witnesses<\/p>\n
  went back to the office of PW8 and the  tainted currency notes were<\/p>\n
  entrusted back to PW8,   who kept the same in safe custody.     This<\/p>\n
  witness   has   further   stated   that   on   the   next   day,     namely,     on<\/p>\n
  11.11.1998  as directed by PW8, he again went to the   quarters of<\/p>\n
  the appellant and PW8 and other witnesses,  who accompanied him,<\/p>\n
  were   waiting     outside     and     this   witness   has   further   stated   that<\/p>\n
  when he went to the  quarters,   he switched the calling  bell at that<\/p>\n
  time the appellant came out of the bed room and opened the door of<\/p>\n
  the   sit   out.       This   witness   has     further   stated   that   the   appellant<\/p>\n
  asked whether he had brought   the money as asked.   Then he said<\/p>\n
  that   he     brought   the   amount   as   demanded   by   the   appellant.<\/p>\n
  Further this witness has stated that as the appellant asked   him to<\/p>\n
  place   the   amount   on   the   table,     he   did   so   and   immediately<\/p>\n
  thereafter   he   had   signaled   PW8   and   other     officials,     who   entered<\/p>\n
  into   the   quarters.     PW2   is   the   trap   witness,   whose   presence   was<\/p>\n
  procured     by   PW8   along   with   CW3   and     another   officer   from   the<\/p>\n
  office. This witness has further  stated that  PW8 had explained  the<\/p>\n
  purpose and the  nature of phenolphthalein   test in the presence of<\/p>\n
  this  witness.     PW8   had prepared   Ext.P2  mahazar   and he    directed<\/p>\n
CRL.A.NO.656\/2001                          12<\/span><\/p>\n
  PW1,   PW2,   CW   3   and   other   officials   to   accompany   him   to   the<\/p>\n
  quarters of the appellant.   This witness has further stated that even<\/p>\n
  though PW1 and other  officials went to the quarters on 10.11.1998,<\/p>\n
  as the appellant was not available,  they returned back to the office<\/p>\n
  of PW8  and the currency notes brought by PW1 were  entrusted to<\/p>\n
  PW8.   This witness has further stated that on the next day he also<\/p>\n
  accompanied   PW1   along   with   PW8   and   other   police     officials   and<\/p>\n
  went to the   quarters   and as   agreed   early,     on payment of the<\/p>\n
  amount   to the  appellant,    PW1   signaled    to  the  Dy.S.P and  other<\/p>\n
  witnesses.   Immediately PW8, CW3 and other officials entered into<\/p>\n
  the   quarters   and   PW8   asked   the     appellant     where   the   amount<\/p>\n
  which   he   received   was   kept.     According   to   this   witness,     the<\/p>\n
  appellant had stated that the amount was kept in the almirah inside<\/p>\n
  the bed room and on the direction given by PW8,  he himself   took<\/p>\n
  the     bundle   of   currency   notes     from     the   2nd  berth   of   the   almirah<\/p>\n
  inside  the bed room and in the presence of him,  PW8  had  framed<\/p>\n
  Ext.P3 mahazar and  found that the  currency notes recovered from<\/p>\n
  the almirah,  which was marked as MO1 series,  are the same notes<\/p>\n
  which   were   brought   by   PW1   at   the   time   of     preparation   of   Ext.P1<\/p>\n
  before the office of PW8.  This witness has  further stated that  PW8<\/p>\n
  had conducted a phenolphthalein test on MO1 series currency notes<\/p>\n
CRL.A.NO.656\/2001                         13<\/span><\/p>\n
  and on the right hand of the appellant and both the currency notes<\/p>\n
  and  the  right  hand  of  the  appellant      turned  to pink.    Further  this<\/p>\n
  witness has   stated that PW8 also seized MO4 piece of Hindu daily<\/p>\n
  paper ,  on which the notes were placed by PW1 and that MO4 was<\/p>\n
  also subjected to phenolphthalein   test.       This   witness has further<\/p>\n
  stated   that   he   had  also  taken   another    bundle   of   Rs.5,000\/=all   of<\/p>\n
  fifty denominations stapled from the 2nd  berth of the almirah which<\/p>\n
  were  marked as  Ext.P6 series.     PW3 is the husband of  PW4, who<\/p>\n
  was   also   an   accused   in   Crime   No.181\/1998   of   Vellarada   Police<\/p>\n
  Station.   This witness has  stated before the court that his wife PW4<\/p>\n
  had told him that the appellant   came  to his house  and had given<\/p>\n
  Ext.P4  notice  requesting him to appear before the appellant and he<\/p>\n
  has further stated that he himself had   handed over  Ext.P4 to  the<\/p>\n
  investigating   officer.         PW4   is   the     sister   of   the   main   accused<\/p>\n
  Vijayan   in   Crime   No.181\/1998.       This   witness   has   stated   that   his<\/p>\n
  brother   Vijayan   had married one Mini   and in connection with the<\/p>\n
  above  marriage, there was a case against herself, Pws 1 and  3 and<\/p>\n
  the said Vijayan and some others.   This witness has further stated<\/p>\n
  that   the   appellant   came   to   the   house   of   her   on   2.10.1998   and<\/p>\n
  demanded   an     amount   of   Rs.25,000\/=     for   settling   the   case<\/p>\n
  registered   against   her   husband   and   others.       Further   this   witness<\/p>\n
CRL.A.NO.656\/2001                           14<\/span><\/p>\n
  has   stated   that     the   appellant   told   her   that   the   appellant     would<\/p>\n
  come again  if the amount  so demanded is not paid.   PW5  was the<\/p>\n
  Dy.S.P  of   Neyyattinkara,   the   superior   officer   of   the   appellant,  who<\/p>\n
  took   in     custody   of   Exts.P6   and     P7,     the   note   book   kept   by   the<\/p>\n
  appellant and the C.D file  of Crime No.181\/1998 of Vellarada Police<\/p>\n
  Station.  This witness has also stated that he had  seized  Ext.P4 as<\/p>\n
  produced by PW1.   PW6 is the   I.G. Of Police,   who issued Ext.P10<\/p>\n
  sanction order to prosecute the appellant.   PW7 is the Dy.S.P, who<\/p>\n
  had conducted part of the investigation of the case and had seized<\/p>\n
  certain   documents   in   connection   with     the   crime.       PW8     is   the<\/p>\n
  Dy.S.P,   who   had   recorded   Ext.P1     statement   from   PW1   and   had<\/p>\n
  conducted the trap.   This witness has   stated before the court that<\/p>\n
  PW1   came   to   his   office   on   10.11.1998   and   had   filed   Ext.P1<\/p>\n
  complaint.   This witness has further stated that as PW1 had brought<\/p>\n
  the amount of Rs.3,000\/= to be paid to the appellant as bribe, on<\/p>\n
  recording   Ext.P1,   presence   of     PW2   and   CW3   were   requested<\/p>\n
  through   the   officer   and   thereafter   he   had   explained     to   them   that<\/p>\n
  they have to  accompany them to the quarters of the appellant.   As<\/p>\n
  the appellant was not available  on 10.11.1998, PW1 and the police<\/p>\n
  officials came back to his office and the currency notes were kept in<\/p>\n
  safe custody.  On the next day  PW1 was again  directed to go to the<\/p>\n
CRL.A.NO.656\/2001                         15<\/span><\/p>\n
  quarters of the   appellant and himself,   PW2, CW3 and other police<\/p>\n
  officials  were  waited outside the quarters and  receipt of the signal<\/p>\n
  from   PW1   that   he   had   paid     amount   to   the   appellant,   PW8     and<\/p>\n
  other   witnesses     entered   into   the     quarters     and   PW8   asked   the<\/p>\n
  appellant     where   the   amount   which   he     received     from   PW1   was<\/p>\n
  kept.     To this   question the appellant had replied that PW1 placed<\/p>\n
  the notes on the table and the appellant took the same and  kept in<\/p>\n
  the almirah inside the bed room  and on pointing out the almirah  by<\/p>\n
  the appellant, PW2   was directed to   take out   the currency notes<\/p>\n
  from the almirah.   This witness has further stated that  as directed<\/p>\n
  by   him,     PW2   had   taken   MO1   series   from     the   2nd  berth   of   the<\/p>\n
  almirah and the currency notes were  tallied with the marking made<\/p>\n
  by   him   as     entered   in   Ext.P2   mahazar.     Further   this   witness   has<\/p>\n
  stated   that   another   bundle   of   fifty     rupees     denomination     of     an<\/p>\n
  amount of Rs.5,000\/=  was also seen kept  in  the same berth of the<\/p>\n
  almirah   and   the   same   was   also   recovered   as   per   Ext.P3   mahazar<\/p>\n
  and the  above notes were produced before the court and marked as<\/p>\n
  MO6   series.       This  witness   has    stated  that  the  appellant  had told<\/p>\n
  him   that   the   above   currency   notes   of   Rs.5,000\/=     belong   to   the<\/p>\n
  appellant.         However,   that   bundle   of   notes     was   also   taken   into<\/p>\n
  custody.  This witness has further stated that in the presence of PW2<\/p>\n
CRL.A.NO.656\/2001                          16<\/span><\/p>\n
  and   other  police  officials,   phenolphthalein    test  was   conducted   on<\/p>\n
  the   currency   notes   –   MO1   series,   MO4   piece   of   the     Hindu   daily<\/p>\n
  paper  on which PW1 alleged to have been placed the currency notes<\/p>\n
  which  was also subjected to phenolphthalein test.   This witness has<\/p>\n
  stated that the test conducted on the right hand of the appellant was<\/p>\n
  shown   positive   result   and   thereafter   on     preparing   the       arrest<\/p>\n
  memo, the appellant was arrested and  investigation of the case was<\/p>\n
  continued and PW7  filed   final charge before the court.   The above<\/p>\n
  evidence  of these witnesses has been considered by the trial court<\/p>\n
  for finding   the appellant guilty of the charges.     The contention of<\/p>\n
  Sri.T.Ravikumar , the learned counsel  for the appellant is that since<\/p>\n
  Pws   1,3   and   4   are       the   accused   in   Crime   No.181\/1998,   their<\/p>\n
  evidence   has to be   accepted only with   due care   and   caution as<\/p>\n
  witnesses     have     got   interest     to   give   false     evidence   against   the<\/p>\n
  appellant.       Admittedly   Crime   No.181\/1998     of   Vellarada   Police<\/p>\n
  Station     was   registered   on   the   direction   issued   by   this   Court     in<\/p>\n
  connection with  a writ petition   regarding  the kidnapping, rape and<\/p>\n
  criminal   intimidation   of   one   Mini     by   Vijayan,   the     brother   of   PW4<\/p>\n
  and other   eight accused.   PW1 had a specific case in Ext.P1   that<\/p>\n
  the     appellant   came   to   the   house   of   PW4   in   connection   with<\/p>\n
  investigation of Crime No.181\/1998 on 2.10.1998 and   had told to<\/p>\n
CRL.A.NO.656\/2001                          17<\/span><\/p>\n
  PW4 that he will help them   in the     case if he   is met properly.   It<\/p>\n
  was the further case of PW1 that  when  the appellant   went to the<\/p>\n
  house of PW4,  the appellant had given Ext.P4 notice  informing the<\/p>\n
  husband   of   PW4   to   meet   the   appellant   for   the   purpose   of   Crime<\/p>\n
  No.181\/19998   and   this   information     passed   on   to   PW3   and<\/p>\n
  thereafter PW3 had informed the   direction   given by the appellant<\/p>\n
  and   therefore  PW1 went to the quarters of the appellant and met<\/p>\n
  Sri.Radhakrishnan,   the   jeep   driver   of   the   appellant.       That   is   why<\/p>\n
  PW1 went to the   quarters of the appellant.   In Ext.P1 the   specific<\/p>\n
  case   of   PW1   was     that     as   the     appellant   directed   PW4   that     the<\/p>\n
  appellant  would   help them  if  PW1  and others     meet  him  properly<\/p>\n
  and  further  the   appellant   had     given   his     phone  number   to     PW4.<\/p>\n
  Hence PW1 went to the quarters on 4.11.1998 at about 10.30 a.m<\/p>\n
  and he met Sri. Sreekuma,  the driver of the  appellant and  at that<\/p>\n
  time Sri.Sreekumar  told him that Rs.5,000\/=  should be  given  to<\/p>\n
  the C.I of Police – the appellant.  Then  PW1 told to Sreekumar that<\/p>\n
  he will come   with money on the next day and the said driver had<\/p>\n
  not allowed him to see the appellant.   So,   on 9.11.1998 PW1     to<\/p>\n
  the   quarters   of   the   appellant   at   about   9   p.m   and   he   met   the<\/p>\n
  appellant  and  the   appellant    asked  him    whether  the  amount  has<\/p>\n
  been paid  or not.   This witness has stated that he  would give the<\/p>\n
CRL.A.NO.656\/2001                         18<\/span><\/p>\n
  money on the next day and this witness has further stated that the<\/p>\n
  appellant   had   demanded   an   amount   of   Rs.5,000\/=   otherwise   they<\/p>\n
  will  suffer     consequences.       Because  of the   demand  made  by  the<\/p>\n
  appellant, PW1 went to the office of PW8- the Dy.S.P of Police,  and<\/p>\n
  filed a complaint.    But when this witness was examined before the<\/p>\n
  court,   he had stated that   he met the appellant at 9 p.m but,   he<\/p>\n
  was not  remembering the date  and on that date the  appellant  had<\/p>\n
  told  him  that if Rs.5,000\/= is paid,  two women accused would  be<\/p>\n
  deleted   from   the   array   of   the   accused.       But,     this   witness   has<\/p>\n
  further stated  in the chief examination  that on 11.11.1998,  that is<\/p>\n
  on the day of the trap,  when he went to the quarters and switched<\/p>\n
  the calling bell,   the   appellant opened the door and   the appellant<\/p>\n
  could not identify him.     But,   when he told     his name and stated<\/p>\n
  that   he   is     coming   from     Ottasekaharamangalam,     then   only   the<\/p>\n
  appellant   recognized him.   Further this witness has stated that   he<\/p>\n
  told  the appellant that he  brought the amount and at that time the<\/p>\n
  appellant told him  to place  the amount on the table.    PW1 placed<\/p>\n
  the   amount   on   the   table     placed   on   the   next   room   where   the<\/p>\n
  appellant was seen.    But the date and time mentioned  by  PW1  in<\/p>\n
  the cross examination  are  different and he had stated that he  was<\/p>\n
  not   remembering   whether   on   the   first   day   he   met   the   driver<\/p>\n
CRL.A.NO.656\/2001                           19<\/span><\/p>\n
  Sreekumar   or   not.     Then   he   had   asserted   that   the   demand     was<\/p>\n
  made     by   the     driver   and     that   was     on   two   days     prior   to<\/p>\n
  10.11.1998.     He had further   stated that the   driver had stated to<\/p>\n
  him that the appellant should be paid Rs.5,000\/= and Rs.2,000\/= to<\/p>\n
  the office staff of the appellant  and a further sum of Rs.1,000\/= be<\/p>\n
  paid   to   the   driver.         It   is   also   admitted   by   him   in   the   cross<\/p>\n
  examination that the  appellant  demanded Rs.5,000\/=  as bribe but<\/p>\n
  that   was   not   spoken     to   by   him     while   he   was   questioned   by   the<\/p>\n
  investigating officer.   Further,     this witness has put a definite case<\/p>\n
  that he met the appellant on 9.11.1998   at noon and   hence   this<\/p>\n
  witness   has   no   consistent   case     with   the   demand   made   by   the<\/p>\n
  appellant.  That apart,  he had a case before the court  that on the<\/p>\n
  first   day   he   met the driver    Radhakrishnan who had   demanded<\/p>\n
  bribe   to   be   paid   to   the   appellant   and     it   has     also   come   out   in<\/p>\n
  evidence  the said  driver Radhakrishnan was the 2nd accused in the<\/p>\n
  F.I.R   whose   name   was   deleted   subsequently   by   the   investigating<\/p>\n
  agency   as   per   Ext.P14     report   filed   before   the     court   and   no<\/p>\n
  explanation     is   also   forthcoming     for   the   deletion   of   the   name   of<\/p>\n
  said   Radhakrishnan   from     the   array   of   the     accused.     It   has   also<\/p>\n
  come   out   in   evidence     that   the   said   Radhakrishnan     was<\/p>\n
  subsequently  shown as a  charge witness  but he was not examined<\/p>\n
CRL.A.NO.656\/2001                         20<\/span><\/p>\n
  by the prosecution.    Apart from the discrepancies of demand made<\/p>\n
  by the  appellant as  spoken  to by PW1, he had no consistent case<\/p>\n
  that when he actually met the appellant  and on what time  or what<\/p>\n
  day     the   appellant   demanded   the   bribe.       In   this   context,     the<\/p>\n
  evidence   of     DW1   is   relevant   as   he   had   stated   that   on   9.11.1998<\/p>\n
  between  5 p.m and  7 p.m  the  appellant had  attended  an official<\/p>\n
  function at Neyyattinkara in which the  Superintendent of Police  was<\/p>\n
  also     a   participant.       This   witness   has   further   stated   that     the<\/p>\n
  appellant   was   on   petrol   duty   up   to     12   O’Clock   at   night   on<\/p>\n
  9.11.1998.     This     evidence     creates   doubt   on   the     veracity   of   the<\/p>\n
  evidence of PW1 regarding     the demand  made by the appellant on<\/p>\n
  9.11.1998.   Further  as per Ext.P6 note book seized   by PW7,   the<\/p>\n
  Dy.S.P,     also     showed     that   the   appellant   was   on   petrol   duty<\/p>\n
  between     7   p.m   and   12   night     on   9.11.1998   and     this   particular<\/p>\n
  portion   was   marked   as   Ext.P6(a).           With   regard   to   the   alleged<\/p>\n
  demand made by the appellant  the evidence of Pws 3 and  4 also to<\/p>\n
  be     considered.       According   to     PW3   on   2.10.1998,   the   appellant<\/p>\n
  came to his house and  had given Ext.P4  notice  requesting him to<\/p>\n
  meet the appellant in connection with Crime No.181\/1998 and PW4<\/p>\n
  had   handed over Ext.P4 notice to PW3.   In this context,  PW3 was<\/p>\n
  cross   examined   by   the   defence   and   he   had   admitted     that   on<\/p>\n
CRL.A.NO.656\/2001                       21<\/span><\/p>\n
  receipt of Ext.P4 notice,  he met his lawyer and handed over Ext.P4<\/p>\n
  also.   He had further admitted that he himself had produced Ext.P4<\/p>\n
  before   the   investigating   officer     which   was   seized   by   the<\/p>\n
  investigating   officer   as   per   Ext.P5   mahazar     dated   9.4.1999   and<\/p>\n
  there was no explanation coming from PW3 where  Ext.P4 was kept.<\/p>\n
  Hence issuance of  Ext.P4 on 2.10.1998 by the appellant itself  was<\/p>\n
  doubtful  as alleged by the prosecution.   That apart when PW4 was<\/p>\n
  examined before the court, he had a definite case that the appellant<\/p>\n
  came to her house along with DW1 and other police officers.   This<\/p>\n
  witness has  stated that the appellant had  told  her  that he   should<\/p>\n
  be properly   met and the   appellant   had demanded an amount of<\/p>\n
  Rs.25,000\/= as bribe for  settling   Crime No.181\/1998 and  deletion<\/p>\n
  of  two women accused from the array of accused.  But this witness<\/p>\n
  has   no case that     the   demand made by the appellant   has been<\/p>\n
  conveyed   either   to   PW1   or     any   other   witness.     What     PW4   had<\/p>\n
  stated was that  she had handed over  Ext.P4  to PW3 and thereafter<\/p>\n
  she   was   not     aware   of   anything   about     Ext.P4.         She   had<\/p>\n
  specifically stated that   receipt  of  Ext.P4   or demand   so made by<\/p>\n
  the appellant   was not   conveyed to PW1.     This witness   also has<\/p>\n
  admitted that the appellant   tried to arrest her   husband – PW3 in<\/p>\n
  connection     with     the   crime   registered   against   him   and   PW4.<\/p>\n
CRL.A.NO.656\/2001                         22<\/span><\/p>\n
  Hence, the evidence of Pws 1, 3 and 4  with regard to the  demand<\/p>\n
  made by the appellant  for    any bribe cannot be accepted   without<\/p>\n
  corroboration of other evidence.   In this context,  the specific  case<\/p>\n
  set   up     by   PW1   in   Ext.P1     was   that   the   appellant   had   demanded<\/p>\n
  Rs.5,000\/=  to be paid as bribe.              This   Court     has     already   found<\/p>\n
  that the  1st demand,   according to PW1,  was made by  the  driver<\/p>\n
  Radhakrishnan   and   not   by   the   appellant.         In   the   above<\/p>\n
  circumstances,     the   evidence   of   Pws   1,   3   and   4   regarding     the<\/p>\n
  alleged demand made by the appellant cannot be accepted.  In this<\/p>\n
  context,   the judgment of the   Apex Court reported in  Major E.G.<\/p>\n
  Barsay   v. State of   Bombay<\/a>  ( AIR 1961   SC 1762) is relevant .<\/p>\n
  In the above judgment  the Apex Court  held that the  evidence  of a<\/p>\n
  trap witness should be corroborated  by the independent  evidence.<\/p>\n
  Further       an   early   judgment   of   the   Apex     Court   reported   in    Sat<\/p>\n
  Paul v.  Delhi Administration (AIR<\/a>  1976  SC 294) is also can be<\/p>\n
  advantageously    referred.    In the  above  case, the Apex Court had<\/p>\n
  taken  the  view that where the  witness have poor moral  fiber and<\/p>\n
  have to their   discredit   a load of bad antecedents which indicates<\/p>\n
  their   having   a   possible   motive   to   harm   the   accused   who   was   an<\/p>\n
  obstacle     in   their     immoral   activities,   it   would   be   hazardous     to<\/p>\n
  accept the testimonies of such witnesses   without   corroboration on<\/p>\n
CRL.A.NO.656\/2001                          23<\/span><\/p>\n
  crucial points from independent sources.    Admittedly  Pws 1, 3 and<\/p>\n
  4   are   accused   in   Crime   No.181\/1998   involving     the     offences   like<\/p>\n
  rape,  kidnapping and criminal intimidation and so on.   Hence,   Pws<\/p>\n
  1 to 4 have  got their own interest to  speak against  the  appellant<\/p>\n
  and   they   were     in   the   zest   of   a   remedy     for   escaping     from   the<\/p>\n
  clutches   of the  crime  registered against them.  It has  also come<\/p>\n
  out in evidence that   as per Ext.P7 C.D file     a case was registered<\/p>\n
  against  Pws 1, 3 and 4 and her brother Vijayan and  four others  for<\/p>\n
  committing     heinous     crime   like     rape,   kidnapping   and     criminal<\/p>\n
  intimidation.     Hence,     the   evidence   of   these   witnesses     is   not<\/p>\n
  sufficient   to   prove   that   the   appellant   had   made     demand   for     any<\/p>\n
  bribe   as   alleged   by   the   prosecution.       Hence,     benefit   of     doubt<\/p>\n
  regarding  demand  shall be construed  in favour of the appellant.<\/p>\n
  In this contest,  the  learned Public Prosecutor  contends that as per<\/p>\n
  Ext.P3 recovery mahazar,     MO1 series of   marked   currency notes<\/p>\n
  were     recovered   from     the   almirah   in     the     bed   room   of   the<\/p>\n
  appellant and it was proved by the evidence of  PW2 and  PW8  that<\/p>\n
  MO1 series were  the same  currency notes marked and described in<\/p>\n
  Ext.P2 entrustment mahazar.       Hence   the   recovery itself   is only<\/p>\n
  to prove that the appellant had demanded   bribe and   received the<\/p>\n
  same   as   per the presumption available to   the prosecution as per<\/p>\n
CRL.A.NO.656\/2001                          24<\/span><\/p>\n
  Section 20 of the  P.C.Act.\n<\/p>\n<\/p>\n
  6.       To   this   argument,   Sri.T.Ravikumar,     the   learned   counsel<\/p>\n
  appearing for the appellant had   contended that   even though PW1<\/p>\n
  had   stated   before   the   court   that     he   had   placed     the   marked<\/p>\n
  currency notes on the table which was placed in the bed room of the<\/p>\n
  appellant as   asked by the appellant,     MO4   piece of   Hindu paper<\/p>\n
  was found on the table  seen in the  sit out  or  in the next room of<\/p>\n
  the   bed   room.     Hence,   it   is     doubtful   whether     the   marked   notes<\/p>\n
  were  placed by PW1 on the  table as alleged by the prosecution and<\/p>\n
  that apart   PW1 had categorically   stated   before the court that he<\/p>\n
  had   placed     the   currency   notes   on   the   table     seen   inside   the   bed<\/p>\n
  room  close to the sit out in which the appellant came  on  switching<\/p>\n
  the   caling  bell   by  PW1.   That  apart,  according   to  PW8,   when   PW1<\/p>\n
  had   given       signal   showing   the     acceptance   of   the   amount   by  the<\/p>\n
  appellant, PW2 and other police officials entered into the quarters of<\/p>\n
  the   appellant   and   PW8     asked     the   appellant   where   the   amount<\/p>\n
  which   he   received   from     PW1   was   kept.     To   this   question,   the<\/p>\n
  appellant     himself  has   answered  that  he   had  taken     the     currency<\/p>\n
  notes     from   the   table   and     put   the   same     in   the   almirah   and<\/p>\n
  thereupon   PW2   was     directed   by   PW8   to   take     out   the   currency<\/p>\n
CRL.A.NO.656\/2001                           25<\/span><\/p>\n
  notes from the almirah and PW2 had taken out  the currency notes.<\/p>\n
  In this context,   discription   of   the almirah from which MO1 series<\/p>\n
  were  seized    was   there in Ext.P3.   It is stated in Ext.P3 mahazar<\/p>\n
  that     the   almirah   is   inside   the   bed   room       and     which   had     four<\/p>\n
  berths and in the 2nd berth from top,   MO1 series  notes were seen<\/p>\n
  found.   Further it is stated that this  almirah had shutters  and that<\/p>\n
  shutters were  not fully closed but   ”chariyirunnu”.       Further,   it is<\/p>\n
  stated   in   Ext.P3   that   there   was   another     bundle       notes   of<\/p>\n
  Rs.5,000\/=  of  fifty   denomination stapled  and also  seen kept on<\/p>\n
  the same berth of the almirah  and in the next berth of the almirah<\/p>\n
  there were   books and   dresses.     But   it is not recorded in Ext.P3<\/p>\n
  that     the almirah had   got any lock or not.     That   apart,   it   has<\/p>\n
  come out in evidence that   some  coins  were also found on the 2nd<\/p>\n
  berth of the almirah and that coins were not seized.  Further  as per<\/p>\n
  the   evidence   given   by   PW2   and   PW8,   it   could   be   seen     that   Mo1<\/p>\n
  series notes were subjected to phenolphthalein test,   whereas  Mo6<\/p>\n
  series   notes-   the   2nd  bundle     was   not   subjected   to   any<\/p>\n
  phenolphthalein test.     If such   a test   has also been conducted on<\/p>\n
  MO6 series,  it would have been proved that the same amount  was<\/p>\n
  received by the appellant as  stated   by PW1  as bribe for   himself.<\/p>\n
  That apart,  PW2 has stated  before the court that  he  himself  had<\/p>\n
CRL.A.NO.656\/2001                          26<\/span><\/p>\n
  took   out   MO1   series     notes,     but   the   hands   of     PW2   were   not<\/p>\n
  subjected to any phenolphthalein test  which  would also proved that<\/p>\n
  he   had   taken   out   the   notes   from   the   almirah.       That   apart,       a<\/p>\n
  portion of the almirah from  which the  alleged notes were  kept was<\/p>\n
  not   subjected   to   any   phenolphthalein   test.       In   this   context,     the<\/p>\n
  evidence of PW1 and PW8 was  also very crucial  with regard to the<\/p>\n
  handing over of MO1  series  notes to  PW1 that the trap was made.<\/p>\n
  PW1 had  a definite case before the court that on 11.11.1998  when<\/p>\n
  they   went to the quarters of   the appellant   MO1 currency    notes<\/p>\n
  were handed over  by  PW8 on the  road   near the quarters of the<\/p>\n
  appellant,  whereas  PW8 had  got a case that the notes were  kept<\/p>\n
  by him   in the   safe custody   in his office and were handed over to<\/p>\n
  PW1 at the office of  PW8 itself.   The contradiction in this    aspect<\/p>\n
  was that  if  PW8 had given the currency notes  to PW1 on touching<\/p>\n
  the   same   the hands of PW8 could   also have   been contact   with<\/p>\n
  the   currency   notes   should     also   be       subjected   to   phenolphthalein<\/p>\n
  test.   If   the  hands   of  PW8   were   also  subjected   to   phenolphthalein<\/p>\n
  test    it   would guarantee   that   the   currency  notes  recovered    from<\/p>\n
  the almirah of the appellant is   in accordance with the prosecution<\/p>\n
  case,  whereas   PW1  had a doubt  regarding  the bundle  of notes<\/p>\n
  i.e.,   whether the same   was kept   on the   table   seen   inside   the<\/p>\n
CRL.A.NO.656\/2001                             27<\/span><\/p>\n
  sit   out   or   inside   the   bed   room.     In   this   context,   in   Ext.P3     it   is<\/p>\n
  recorded  that  piece of  Hindu  daily paper  which was seen on the<\/p>\n
  table   kept in the sit out    was also   subjected  to   phenolphthalein<\/p>\n
  test which had shown a positive result.  In this context, the case set<\/p>\n
  up     by   the   appellant   in         his   Section   313     statement     requires<\/p>\n
  attention of this Court.    According to the appellant,  when PW8 and<\/p>\n
  other  police  officials   entered  into the  quarters,   he was asked to<\/p>\n
  sit down   on the cot  and the police officers including  PW8  made a<\/p>\n
  search   inside   the house and the appellant   was   kept in restraint<\/p>\n
  by     two     C.I   of   Police     so   that   he   could   not   move.     Further     the<\/p>\n
  appellant had  a case that the currency notes  which alleged to have<\/p>\n
  been   recovered   from   the       quarters   of   the  appellant       might  have<\/p>\n
  been   thrown   out   by     PW1   through   the   window     without     his<\/p>\n
  knowledge or   consent.     In this context, in Ext.P3   it is specifically<\/p>\n
  recorded   that the windows of the   sit out as well as the bed room<\/p>\n
  were opened.       Hence,   the case set up by the appellant that   he<\/p>\n
  had   not   received   any     amount   from   PW1   should   have     special<\/p>\n
  attention   in the light  of the evidence  adduced by the prosecution.<\/p>\n
  With regard to this aspect, the  learned trial judge   had found  the<\/p>\n
  appellant   alone   was   residing     in   the   quarters     and   hence   he   is   in<\/p>\n
  exclusive  possession of the quarters and he had no explanation for<\/p>\n
CRL.A.NO.656\/2001                         28<\/span><\/p>\n
  the recovery made  by the police.   But, it  has come out in evidence<\/p>\n
  that     when   the   appellant   was     arrested,   an   arrest   memo   was<\/p>\n
  prepared   and   handed   over     to   the   brother   of   the   appellant   at   the<\/p>\n
  spot.  There was  no evidence  to prove that the appellant alone was<\/p>\n
  in the quarters.  Hence,  the conclusion arrived  at by the  trial court<\/p>\n
  that the  appellant  alone was residing in the quarters is not  correct.<\/p>\n
  In   this   context,     the   prosecution   is   relying   on   Ext.P3   mahazar   in<\/p>\n
  which   PW8   had     recorded   that   when   himself   and   other   officials<\/p>\n
  entered   into     the  quarters,       he    asked  about     the   currency  notes<\/p>\n
  which he had received    from PW1.     It is   recorded  in Ext.P3 that<\/p>\n
  the appellant had  stated  to PW8 that  the amount received by him<\/p>\n
  from PW1 was kept in the  almirah and he himself has  pointed  out<\/p>\n
  the almirah from  which  recovery has been made.  In this context,<\/p>\n
  the   finding   of   the     trial   court   that   the   statement   given   by   the<\/p>\n
  appellant to PW8 can be  taken as  a  substantive piece of  evidence<\/p>\n
  against   the   appellant   and   the     statement   led   to   the     recovery   of<\/p>\n
  MO1 series.    But, even as  per Section 8 of the  Evidence Act  the<\/p>\n
  conduct of   any party or   any agent to     any party   or any   suit or<\/p>\n
  proceedings     in   reference   to   such   suit   or   proceedings   is   relevant,<\/p>\n
  but    explanation to that section it is clearly stated that the  conduct<\/p>\n
  in   this   section   does   not   include     the   statement   unless     those<\/p>\n
CRL.A.NO.656\/2001                          29<\/span><\/p>\n
  statement     acts   other   than   statements.       In   this     context,     the<\/p>\n
  statement   alleged   to   have   been   made   by   the   appellant   to   PW8<\/p>\n
  cannot   be   accepted   as   a   statement   which   led   to   the   recovery   of<\/p>\n
  Mo1 series.     That apart,   even if such a statement is recorded   by<\/p>\n
  PW8 in the course of the investigation,   that statement is   hit     by<\/p>\n
  Section     162   of   the   Code   of   Criminal   Procedure.       Hence,   the<\/p>\n
  recording  made   by PW8     in  Ext.P3    that the  appellant  had    stated<\/p>\n
  that   he   kept   the amount inside   the almirah and he had pointed<\/p>\n
  out   the   almirah   from     which   the   recovery   has   been   made   cannot<\/p>\n
  have   any     bearing     to   find     that     the   recovery   was   made   by   the<\/p>\n
  police     and   on   the   basis   of   the   recovery     it   is   proved   that   the<\/p>\n
  appellant   had   received   any   amount   as   alleged   by   the   prosecution.<\/p>\n
  Hence, the presumption under Section 20 could not  also be  drawn<\/p>\n
  in favour of the  prosecution.  In this context,  the judgment of the<\/p>\n
  Apex   Court     reported   in    Suraj     Mal   v.       The   State   (   Delhi<\/p>\n
  Administration)  [AIR   1979 SC 1408] is also to be referred.     In<\/p>\n
  the above case,  the  Apex Court  had categorically held that    mere<\/p>\n
  recovery of money divorced   from the  circumstances  under which<\/p>\n
  it  is   paid  is  not   sufficient   to  convict  the   accused   when   substantive<\/p>\n
  evidence   in   the   case   is   not   reliable.       In   this   context,   another<\/p>\n
  contention   was     raised       with   regard   to   the     phenolphthalein   test<\/p>\n
CRL.A.NO.656\/2001                          30<\/span><\/p>\n
  conducted on the hands of the appellant.   PW8 had   stated before<\/p>\n
  the court that when MO1 currency notes were recovered   from the<\/p>\n
  almirah,     the   notes     were   subjected   to   phenolphthalein   test   and<\/p>\n
  thereafter     left   hand   of   the   appellant     was   also     subjected   to<\/p>\n
  phenolphthalein test,     but the result was negative.   Subsequently,<\/p>\n
  the right hand of the appellant was subjected to phenolphthalein test<\/p>\n
  and thereafter in MO3-   is the  bottle  in which  the lime water  was<\/p>\n
  kept.    After the dipping of the  right hand of the   appellant it   was<\/p>\n
  turned   to   pink   as   per   Ext.P3   mahazar.     But   when   the     same   was<\/p>\n
  produced before the   trial court   it was pointed out that   there was<\/p>\n
  no   colour change in Mo3 bottle.     But the trial court had accepted<\/p>\n
  the explanation given by PW2 in this aspect as  PW2 had stated that<\/p>\n
  fading of the  colour may be due to  lapse of years.                      But   this<\/p>\n
  Court is not in a position to accept the explanation given by PW2  as<\/p>\n
  PW2 is not an expert   in this aspect.     That apart,   purpose of the<\/p>\n
  phenolphthalein   test   is   to   show   that   hands   of   the     appellant   had<\/p>\n
  contacted  the currency notes prior to  its recovery.    But  it is seen<\/p>\n
  from  the evidence now adduced before the court that MO3 had not<\/p>\n
  changed   any   colour.     Hence,     recording   of   Ext.P3     that   the   right<\/p>\n
  hand of the  appellant turned  pink  is also doubtful.   In the light of<\/p>\n
  the   above   fact   also   the   case   set   up     by   the   appellant   is     more<\/p>\n
CRL.A.NO.656\/2001                            31<\/span><\/p>\n
  probable regarding the alleged recovery made by PW8.<\/p>\n
  8.     In   the   light   of   the     discussions   made   and   the   reasoning<\/p>\n
  adopted in the judgment, the  appellant is entitled for the benefit of<\/p>\n
  doubt and hence  this Court is of the view that the judgment of the<\/p>\n
  trial court  is not   sustainable in law and hence it is   set aside and<\/p>\n
  the   appellant is not   guilty of the offence as   charged against him.<\/p>\n
  Hence,     he   is   acquitted.       The   bail   bonds     of   the   appellant   stand<\/p>\n
  canceled.\n<\/p>\n<\/p>\n
           Before     this   Court   parts     with   the     judgment,   it   has     to   be<\/p>\n
  noted   that   the   prosecution   had   a   case   that   MO6   series     notes<\/p>\n
  belong     to   the   appellant.       But   this   Court   had   already   found   that<\/p>\n
  MO6   notes     were     not     subjected   to   any   phenolphthalein   test,<\/p>\n
  whereas the  appellant had  a case that MO6 series  did not belong<\/p>\n
  to him.  Hence,  the order of the trial court  that  MO6 series  notes<\/p>\n
  shall   be   adjusted     as     part   of   the   fine   is   not     legal.   Hence,   MO6<\/p>\n
  series  shall be  confiscated  to the Government as per law.<\/p>\n
                                                        K. THANKAPPAN, JUDGE.\n<\/p>\n
  cl<\/p>\n
CRL.A.NO.656\/2001    32<\/span><\/p>\n
                           K.  THANKAPPAN, J.\n<\/p>\n
                           CRL.A.NO.656 OF  2001C<\/p>\n
                           JUDGMENT<\/p>\n
                           21st  March,  2007.\n<\/p>\n
\nCRL.A.NO.656\/2001    33<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-214798","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nG. 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