Edison vs State Of Kerala

The judgment dated 07.12.2015 in C.C. No.16/2009 on the files of the Enquiry Commissioner and Special Judge, Kottayam, is under challenge in this appeal filed under Section 374 of the Criminal Procedure Code [hereinafter referred as ‘Cr.P.C’, for short], at the instance of the first accused, who was found guilty by the special court.

Heard the learned counsel for the appellant/first accused and the learned Public Prosecutor in detail. Perused the judgment impugned and the records of the Special Court.

The prosecution case in brief is that accused Nos. 1 and 2 while working as the Secretary and III^rd Grade Overseer respectively of Ranni-Angadi Gramapanchayath and as such being public servants, abused their official position, had hatched conspiracy between them and in pursuance of that conspiracy, they demanded bribe of Rs.1,500/- from PW1 on 31-10-2007, at the panchayath office for issuing the building permit to PW1. Then it was accepted on 07.11.2007 on the date of trap.

Thus the prosecution alleges commission of offences punishable under Sections 7 and 13(1)(d) read with 13(2) of P.C. Act, [hereinafter referred to as the 'P.C.Act' for short] by accused Nos. 1 and 2.

The learned Special Judge ventured the matter after completing the pre-trial formalities. During trial, PW1 to PW6 were examined, Exts.P1 to P13 and MO1 to MO7 were marked from the side of prosecution. Availing the opportunity provided for adducing defence evidence, DW1 to DW3 were examined and Exts. D1 to D7 were marked on the side of the defence. CW1, a court witness also was examined and Exts. C1, C1(a) and C2 were also marked. On considering the matter on merits, the learned Special Judge found that the 1^st accused/appellant herein committed offences punishable under Sections 7 and 13(1)(d) read with 13(2) of P.C. Act and sentenced the first accused for the offence punishable under Sections 7 and 13(1)(d) read with 13(2) of the P.C. Act, while acquitting the second accused for want of evidence. The sentence imposed by the Special Court is as under:-

The learned counsel for the appellant/first accused zealously pointed out that in this case evidence of PW1 is not reliable, since he was declared hostile to the prosecution when he denied that any person other than the Secretary, who is the appellant/first accused herein, had demanded bribe from him.

It is submitted further that as per the evidence of PW1, who had lodged application for getting building permit on 31.10.2007, the first accused demanded bribe for himself and for the second accused for an amount of Rs. 1,500/- on 31.10.2007. But as per the evidence of PW2 and Ext.P6, the first accused was on 'other duty' on 31.10.2007, and the same would show that the allegation of demand made on 31.10.2007, by the first accused is falsehood and an impossibility. Thus the prosecution failed to prove the case beyond reasonable doubt and therefore by enlarging the benefit of doubt the 1^st accused/appellant may be acquitted.

Repelling this contention, it is submitted by the learned Public Prosecutor that even though PW1 was declared hostile, when he did not mention the overt tact against the second accused, as regards the demand and acceptance of bribe by the second accused, as regards the appellant/first accused is concerned, his evidence is convincing and the same was in tune with the allegation of the prosecution. It is also pointed out that a witness is not expected to recollect and narrate the entire version with photographic memory notwithstanding the hiatus and passage of time as held by the Apex Court in the decision in Vinod Kumar Garg. v. State (Government of National Capital Territory of Delhi) reported in [2019 KHC 7175]. Therefore minor variations in the evidence of a witness, need not be considered as serious to disbelieve the same. It is further pointed out that since the demand and acceptance of bribe by the appellant/first accused are proved by the prosecution, by the evidence of PW1 supported by the evidence of PW2 decoy witness and PW5, the Trap Laying Officer, the conviction and sentence entered into by the Special Court impugned herein do not require any interference.

In response to the rival contentions, the points to be considered are as under;

Point Nos. 1 to 4: In this case the prosecution mainly relied on the evidence of PW1 to find demand and acceptance of MO1 series bribe money on 07.11.2007 by the appellant/first accused in continuation of the demand made on 31.10.2007. PW1, the de facto complainant, a man aged 70 years, testified that he had made complaint before the Vigilance and Anti-Corruption Bureau, Pathanamthitta regarding the demand of bribe by the accused. Then after 3-4 days again he went to the Vigilance office and lodged a written complaint. PW1 identified the then Secretary of Ranni Angadi Panchayath, A1, and also the 2^nd accused at the dock. According to him, he had put up an application for permission before the Panchayat to construct a house in three cents of land, owned by him. Then the 2^nd accused visited his land and measured the same. The application so given to the 1^st accused, was tendered and marked in evidence as Ext.P1. After the visit, the second accused had informed him that permission was to be obtained from the Secretary. On the very same day, he met the Secretary and then the Secretary demanded ₹1,500/- as bribe for giving permission and he was instructed to remit some other amount in the office. PW1 replied that he did not have the money and he waited there till 3.00 p.m. and returned. During further chief examination, PW1 testified that at the panchayath office he had met only the Secretary and he had not met any other person. According to PW1, apart from Secretary, no others had demanded bribe from him. At this juncture, PW1 was declared as hostile and the court allowed him to be cross examined on this aspect, by the legal advisor representing the prosecution. During cross-examination, he admitted that Ext. P2, FIS was given by him and the same would bear his signature. Further he testified that he had given Ext.P2 and convinced of its contents thereof and what had been stated therein were true.

During further examination, PW1 given categoric evidence regarding the entrustment of three five hundred rupee notes to the Deputy Superintendent of Police and noting numbers of the same by the Deputy Superintendent of Police and he identified the said notes as MO1 series. Thereafter, MO1 series was entrusted back to him by the Deputy Superintendent of Police and he was instructed to give the same to the appellant/first accused, if he would demand for the same and also show a signal on demand of the same. Accordingly, he reached the Panchayat office at 11.30 hours and entered into the room of the Secretary/first accused. He found the Secretary alone in the room. When he enquired the purpose of his visit, he told about the permit he applied for. Soon, the Secretary asked him whether the money demanded was brought. He replied in the affirmative and handed over MO1 series to the appellant/first accused and he had accepted the same by using his right hand and put the same on his pocket. Then he was directed to remit the fee in the office. During this transaction, he could not find the second accused therein. Thereafter, he had showed the signal as instructed and the vigilance team entered into the office of the appellant/first accused. Even though PW1 was cross examined as regards to the demand and acceptance of bribe by the first accused as well as the pre and post trap proceedings his evidence in this regard was not at all shaken, except the fact that he did not support the case of the prosecution that the second accused also demanded bribe.

PW2, the independent witness for trap, the Technical Officer of District Industrial Office, Kozhenchery testified that on 7-11-2007 as per the direction of the General Manager of District Industrial Office, he had gone to Pathanamthitta Vigilance office as a trap witness and he reached there at the vigilance office at 9.30 a.m. Apart from this witness, PWD Engineer, Jayarajan also was there. The de facto complainant (PW1) also was there and he gathered details of the complaint from PW1. The de facto complainant handed over three 500 rupee currency notes. The Deputy Superintendent of Police had taken note of its numbers and initialled on the same and after smearing phenolphthalein powder on it, the same was entrusted back to the de facto complainant directing that if the appellant/first accused would again demand the same, had to be given and also instructed him to give a signal if the bribe money would be accepted by the accused. PW2 identified Ext.P3, pre-trial mahazar in this regard. At 10.45 a.m., they had started to the panchayath office, Ranni Angadi and reached there at about 12. The complainant was sent to the office. Witnesses in the vigilance party had taken positions surrounding the office. After 10 minutes, the pre-arranged signal was received. Accordingly, the Dy.S.P. along with him and other witnesses entered into the room of the Secretary (A1). PW2 identified the 1^st accused as Secretary at the dock. The Dy.S.P. and these witnesses were introduced them to the appellant/first accused. Then the Dy.S.P. called PW1 to the office room and enquired about what had been transpired. Then PW1 informed that he had paid the amount when the appellant/first accused demanded the same. When Dy.S.P. enquired this aspect with the appellant/first accused, initially the first accused denied the same, but later he admitted demand and acceptance of MO1 series by him. Then PW1 disclosed that the accused accepted the amount and counted the notes. Then he had put the same in his shirt's pocket.

C.P. Gopakumar, the Deputy Superintendent of Police of VACB, the Trap Laying Officer got examined as PW5. According to him, on 07.11.2007, PW1 reached his office and given statement. Acting on the same, he had registered Ext.P10 FIR. He identified the signature therein. Then witness Nos. 2 and 3 (gazetted officers) were brought to his office and in the presence of PW1, Phenolphthalein powder test was demonstrated and three five hundred rupee notes produced by PW1 were taken into custody by preparing mahazar. According to him, he had put initials on the notes and he identified the initials and also MO1 series notes as the currency notes, so entrusted by PW1. Thereafter, the money was entrusted back to PW1 with instruction to give the same to the accused, if the first accused would demand for the same. The Sodium Carbonate Solution used for demonstration were marked as MO4 through him and pre-trap mahazar was marked as Ext.P3. He deposed further that thereafter, the vigilance party along with gazetted officers and PW1 reached the office of the first accused and PW1 was sent to the office with a direction to give signal on demand and acceptance of the bribe by the first accused. He got the signal at 12.15 p.m., and he along with the witnesses entered into the room and introduced the identity of himself and other witnesses. When he enquired to PW1, he stated that the first accused demanded Rs. 1,500/- and thereafter, it was given to him and he kept the same in the left pocket of his shirt. Though the first accused initially denied the receipt of bribe, subsequently, he had admitted the same. Then he brought the other officers in the room of the first accused and prepared Sodium Carbonate solution in four separate glasses. He deposed about the dipping of the right hand of the first accused in Sodium Carbonate Solution and its pink colour change, MO3 identified as the said bottle, containing Sodium Carbonate Solution in this regard. Similarly, when the left hand of the first accused was dipped in the Sodium Carbonate Solution, the same also showed pink colour and the bottle of Sodium Carbonate Solution got identified as MO6. Then at the instance of the second witness, the pocket of the shirt of the first accused was searched and the first witness took MO1 currency notes therefrom and when the same notes were dipped in Sodium Carbonate Solution the same showed pink colour and the bottle containing Sodium Carbonate Solution so used was identified as MO5. He also deposed about the phenolphthalein test of the pocket of the shirt of the first accused and pink colour change therein also. Then he had seized the shirt worn by the first accused and the same got identified as MO7. He also deposed the arrest of the first accused and preparation of post trap mahazar, Ext.P4 and then Exts.P5 to P8.

PW6 the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau, Pathanamthitta, who filed the final report in this case also supported the prosecution and recorded the statements of witnesses.

On the side of defence, three witnesses were examined and the deposition rendered by them as extracted in the judgment of the trial court reads as under:-

On perusal of the evidence given by PW1, it could be found that during the chief examination, PW1 deposed regarding the lodging of Ext.P1 application before the appellant/first accused seeking permission for construction in his three cents of property. He also stated that the Secretary demanded Rs.1,500/- as bribe. While deposing so, he stated that except the Secretary, none others demanded bribe to him and at this juncture, the learned Public Prosecutor sought permission to cross examine him on declaring him hostile.

Here, according to PW1, the first accused/appellant herein demanded and accepted MO1 series bribe money from him, on 07.11.2007, in continuation of previous demand on 31.10.2007. Although he was declared hostile as he did not support the prosecution regarding involvement of the second accused, there is no reason to disbelieve the evidence of PW1 as regards to the demand and acceptance of MO1 series bribe money by the appellant/first accused. It is the well settled law that mere hostility of a witness would not take away the entire evidence of the said witness inadmissible or not reliable. Even reliable portion of a hostile witness also can be relied on to prove a fact in issue. It is pertinent to note that here in tune with the version of PW1, PW5 and PW2 deposed in support of the prosecution. In such a case the Special Court is right in giving relevance on the evidence of PW1 to prove the ingredients for the offences under Sections 7 and 13(1)(d) read with 13(2) of the P.C. Act. Therefore, merely because PW1 did not support the prosecution case against the second accused his evidence found to be reliable as discussed cannot be discarded and the same can safely be acted upon.

Regarding absence of the appellant, in the office on 31.10.2007, as argued by the learned counsel for the appellant/ first accused, based on the evidence of PW5 that on 31.10.2007, the appellant/first accused was on other duty and Ext.P6, the Attendance Register would show that he was on 'other duty'. However, DW2 examined in this case, is the person who applied for permit to construct compound wall as per Ext.D2. His evidence would show that the appellant/first accused reached his property for inspecting the same and he brought him from the office at 11.00 a.m. and he reached the office at 10.30 am for bringing him. He also deposed that he had dropped him at the office and the Secretary reached back in the office in the afternoon. He also reached the office and his permit was issued at 4.30 p.m. on the same day, signed by the appellant/first accused, the Secretary. Thus the evidence of DW2 would show that the appellant/first accused, though on 'other duty', he was available in the office on 31.10.2007.

It is judicially noticeable that when officers working in offices when posted for 'field duty' or 'other duty', the same would be noted in the attendance register to justify his absence in the office. However, recording 'on duty' in the attendance register alone is quite insufficient to hold that the officer must be absent in the office on the date shown as 'other duty'. A person on 'other duty' on field or otherwise could very well reach the office, on the date of 'other duty', after completion of the duty to do his remaining works. Therefore, merely because in Ext.P6, the appellant/first accused was recorded as 'on duty', on 31.10.2007, the evidence given by PW1 as regards to lodging of Ext.P1 application before him on 31.10.2007, supported by the evidence given by DW2 cannot be disbelieved. Thus the evidence of PW1 to the effect that, the appellant/first accused received Ext.P1 application from PW1 on 31.10.2007 and demanded bribe is liable to be believed.

In this connection it is relevant to refer a 5 Bench decision of the Apex Court in [AIR 2023 SC 330], Neeraj Dutta Vs State, where the Apex Court considered when the demand and acceptance under Section 7 of the P.C. Act to be said to be proved along with ingredients for the offences under Sections 7 and 13(1)(d) r/w 13(2) of the P.C. Act and in paragraph 68 it has been held as under :

Thus the legal position as regards to the essentials under Sections 7 and 13(1)(d)(i) and (ii) of the P.C. Act is extracted above. Regarding the mode of proof of demand of bribe, if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the P.C. Act. In such a case, there need not be a prior demand by the public servant. The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. The mode of proof of demand and acceptance is either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. Insofar as Section 7 of the P.C. Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law.

In this context, it is relevant to refer the decision of this Court in Sunil Kumar K. v. State of Kerala reported in [2025 KHC OnLine 983], in Crl.Appeal No.323/2020, dated 12.9.2025, wherein in paragraph No. 12, it was held as under:

In a recent decision of the Apex Court reported in [2026 INSC 365] in The State of Kerala v. K.A.Abdul Rasheed, the Apex Court considered the decision [(2023) 4 SCC 731], Neeraj Dutta v. State (NCT of Delhi) and in paragraph 13 the Apex Court held as under:

In the present case, the evidence of PW1, duly corroborated by PW2 and PW5 (the Dy.S.P.), clearly establishes the ingredients of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C. Act. Accordingly, the learned Special Judge is justified in holding that the appellant/first accused had committed the offences punishable under Sections 7 and 13(1) (d) read with Section 13(2) of the P.C. Act and therefore the conviction recorded against him does not warrant any interference. Coming to the sentence, I am inclined to modify the sentence to the statutory minimum, in consideration of the plea raised by the learned counsel for the appellant/first accused.

In the result:

Registry is directed to forward a copy of this judgment to the Special Court concerned for executing the modified sentence.