State vs Atmaram Kenchappa Malakari

L. Narayana Swamy, J.—The Appellant-State through Lokayukta Police, Belgaum has preferred this appeal challenging the order dated 6th June 2007 passed in Special Case (PC Act) No. 45 of 2001 by the Special Judge (Principal Sessions Judge) at Belgaum and sought for quashing of the same. Further, prayer is also made to convict the accused for the offence u/s 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short "PC Act"). The grounds urged by the appellant is that the Trial Court has committed an error in not considering the statement made u/s 313 of the Code of Criminal Procedure. By making the statement, the accused has admitted the fact of accepting Rs. 200/- by producing the receipt to that effect. The learned counsel submits that the demand and acceptance of bribe of Rs. 200/-; and the evidence of PW 1 and PW 2, supported by the evidence of the PW 5- the Investigating Officer, would have been sufficient to convict the accused for the said offence. He further submits that the prosecution has proved its case and in support of the same PW 1 to PW 5 have been examined, of which PW 1 and PW 2 are the complainant and shadow witness respectively, PW 3 is the panch witness for the trap; PW 4 is the sanctioning authority and PW-5 is the Lokayukta Investigating Officer, respectively. Documents have been marked at Exhibits P1 to P12 and material objects have been marked as MO 1 to MO 8. On behalf of the accused, Exhibit D1 to D4 has been marked. It is submitted that despite the fact that prosecution has proved its case, the Trial Court committed an error in acquitting the accused for the said offence. The Trial Court acquitted the accused for the reasons that the shadow witness did not support the prosecution and he has deposed in his evidence that he has seen the complainant along with two officers through window and the complainant has handed over two powder quoted notes of Rs. 100/- to the accused. PW 1-complainant has deposed in his evidence that the accused has demanded money and accepted the amount of Rs. 200/-, i.e. the powder quoted notes, and upon giving signal to the trap team, they entered and washed the hands of accused in solution, which turned to pink colour. The evidence of PW 1 corroborates the evidence of PW 2. Merely because, PW 2 does not speak about the statement made by the accused, is not sufficient to disbelieve the case of the prosecution. The case of the prosecution has been proved further by examining PW 5 the Investigating Officer and till the completion of trial on the side of the prosecution, the accused has not produced or made any statement. However, while recording a statement u/s 313 of the Code of Criminal Procedure, he has stated that he has produced the receipt for having accepted Rs. 200/-. This acceptance and issuance of the receipt, if examined conjointly, the evidence of PW 1 and PW 2 proves the case of the prosecution that accused has accepted the bribe.

The learned counsel for respondent submits that PW 2 is the material witness, whose evidence is most reliable for the purpose of demand of bribe. PW 2 do not support the case since he has deposed that he was standing outside and he has only seen the event through the window.

It is the case of the accused that Rs. 200/- was paid by the complainant and it was with regard to the fee and receipt was also given to the complainant to that extent and the original receipt was in possession of the complainant, and since the complainant did not produce same, its xerox copy has been produced along with his statement. Though the sub-statement have been made, PW 5- the Investigating Officer has not seized the Register and this inconsistent case of the prosecution, rightly was not rejected by the Trial Court. Heard both. The original records have been placed and the same has been examined. The point for consideration is whether the Trial Court has committed an error in not considering the evidence of PW 1 and PW 2, which corroborates the case of the prosecution along with Section 313 statement of the accused. My answer would be in favour of the accused by confirming the order of the Trial Court for the following reasons:

When a trap is conducted, the same has to be proved by the prosecution by examining the evidence of the complainant and the same has to be proved by examining the shadow witness. There shall be an evidence of shadow witness in unequivocal terms about the demanding and acceptance of bribe by the accused. Here, PW 2-the shadow witness, has deposed that he has seen the complainant paying Rs. 200/- and the accused accepting the same. But he did not listen about the demand made by the accused since he was standing outside the window. This evidence is very crucial to the prosecution, which de-links the chain of continuity about the action of the prosecution. The remaining witnesses are panch witnesses, who have entered the scene after seeing the signal from the complainant. PW 5 is the Investigating Officer. Soon after the trap, the accused has stated in writing that he has collected Rs. 200/- has a fee. At least at that stage, the Investigating Officer should have seized the receipt books, etc. Hence, the inference would be that there is no scope institution of a criminal case. Even if the accused admits of receiving the amount, it is for the prosecution to prove it. The link of making a demand, if any, on the basis of the materials and evidence on behalf of the prosecution, is not developed and there is a break by virtue of evidence of PW 2. It is a well-established position that when two opinions, if any, are available, the same are to be given to the accused. Accordingly, I pass the following:

ORDER

The order dated 6th June 2007 passed in Special Case (PC Act) No. 45 of 2001 by the Special Judge (Principal Sessions Judge) at Belgaum, is confirmed. Accordingly, the appeal is dismissed.