State Of Karnataka vs Kallappa S/O Kenchappa Belegali
2021 Latest Caselaw 6050 Kant

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        IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

   DATED THIS THE 14TH DAY OF DECEMBER, 2021

                       BEFORE

       THE HON'BLE MR. JUSTICE H.P.SANDESH

        CRIMINAL APPEAL No.200052/2015

BETWEEN:

STATE OF KARNATAKA
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR
(LOKAYUKTA)
HIGH COURT OF KARNATAKA
KALABURAGI BENCH

                                          ... APPELLANT
(BY SRI SUBHASH MALLAPUR, SPL.P.P.)

AND:

KALLAPPA
S/O KENCHAPPA BELEGALI
AGE: 31 YEARS
OCC: CIVIL POLICE CONSTABLE
B.NO.1220
GOLGUMBAZ P.S.,
BIJAPUR-586 101
                                        ... RESPONDENT

(BY SRI S.S.MAMADAPUR, ADVOCATE)

    THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF CRIMINAL PROCEDURE CODE PRAYING TO SET
ASIDE THE JUDGMENT &      ORDER   OF ACQUITTAL    DATED
30.12.2014 PASSED IN SPECIAL (LOK) CASE No.8/2011 ON THE
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FILE OF THE DISTRICT AND SESSIONS JUDGE/SPECIAL JUDGE
AT    BIJAPUR     WHEREBY         ACQUITTING        THE   ACCUSED/
RESPONDENT       FOR    THE     OFFENCES      PUNISHABLE        UNDER
SECTIONS 7, 13(1)(D) AND 13(2) OF THE P.C.ACT, 1988 AND
CONVICT AND SENTENCE THE ACCUSED/RESPONDENT FOR THE
OFFENCES WHICH HE HAS BEEN CHARGED SHEETED IN
ACCORDANCE WITH LAW.


       THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:


                           JUDGMENT

Heard the learned counsel for the appellant-

Lokayukta and the learned counsel for the

respondent/accused.

2. The factual matrix of the case is that the

respondent/accused demanded an amount of Rs.20,000/-

for not arresting the culprit, who is the friend of

complainant, till he obtains the anticipatory bail and out of

that he accepted an amount of Rs.10,000/- the other

formalities of entrustment and recovery mahazar were

conducted and police after registering the case

investigated the matter and filed the chargesheet. The

prosecution in order to prove the case, the prosecution

examined the witnesses P.Ws.1 to 7 and got marked

documents at Ex.P.1 to P.23 and Material objects at MO.1

to 10. The Trial Court after considering both oral and

documentary evidence acquitted the accused on the

ground that the prosecution evidence does not inspire

confidence of the Court to convict him for the charges

leveled against him. Hence, the present appeal is filed by

the Lokayukta police.

3. The learned Special Public Prosecutor

appearing for the appellant-Lokayukta would vehemently

contend that the Trial Court has not properly appreciated

the evidence in proper perspective. P.W.1 who is the

shadow witness fully corroborated to the evidence of the

complainant. P.W.2 who is also one of the complainant has

supported the case of the prosecution. P.W.3 is the

sanctioning authority and P.W.4 is the then PSI and P.W.6

is the Assistant Engineer who drawn the sketch and P.W.7

is the PSI of Lokayukta Police and other Investigating

Officer P.W.5 and 7 have fully supported the case of the

prosecution. Inspite of the same, the Trial Court judge has

committed an error in discarding the credibility of the

witnesses of the prosecution. Except denial of allegation

made against the accused, they have not rebutted the

case of the prosecution and hence, it requires interference

of this Court.

4. Per contra, learned counsel for the respondent

submits that the trial Court at length discussed the

prosecution witnesses and rightly came to the conclusion

that the evidence of P.Ws.1 and 2 does not inspire

confidence of the Court since P.W.1 admitted that he did

not hear the conversation between the accused and

complainant, however, he says that complainant gave the

money to the accused and accused collected the same by

his hands and kept the amount in his shirt pocket and the

same is not inspiring the confidence of the Court. Though

learned Special Public Prosecutor cross-examined these

witnesses nothing is elicited with respect to conversation is

concerned. The evidence of P.W.2, though he deposed that

the accused demanded the money and his evidence also

not inspires the confidence of the Court, since P.W.2

categorically admitted that accused is a Police Constable

and he is not an officer and he cannot take any decision

for arrest or for filing of the charge sheet or deleting the

name of the accused. The other witnesses are official

witnesses and their evidence cannot be considered when

the complainant and shadow witnesses have not supported

the case of the prosecution.

5. Having heard the learned Special Public

Prosecutor for the appellant-Lokayukta and the learned

counsel appearing for the respondent, this Court has to re-

appreciate the material on record and having reconsidered

the material on record, the point that would arise for

consideration before the Court is that.

Whether the learned Trial Court Judge has committed an error in acquitting the accused

and whether it requires interference of this Court?

6. Having heard the respective counsels and also

on perusal of the material available on record i.e.,

evidence of P.Ws.1 to 7 and documents at Ex.P.1 to P.23,

P.W.3 is the sanctioning authority and he has given the

evidence; P.W.4 is the PSI and P.W.5 is the Investigating

Officer. In the case of bringing the accused within the

ambit of Prevention of Corruption Act, the evidence of

complainant as well as shadow witnesses are the material

witnesses in order to prove the sine qua demand and

acceptance, since prosecution mainly relied upon their

evidence to prove the demand and acceptance. P.W.1 in

his evidence, no doubt, says that he was called as panch

witness and in his presence entrustment panchanama was

drawn. He says that he accompanied with the complainant.

The accused and complainant sat together and discussed

together but he did not hear the conversation properly. But

he says that complainant gave the money to the accused

and he has received the money and kept in his shirt pocket

and thereafter recovery was made at the instance of

accused. He also identified his signature in Ex.P5 and also

identified Exs.P.6 and P.7 photographs. This witness was

treated as partly hostile. In the cross-examination, he

admits that cassette of conversation was displayed in the

police station and heard the same and the same is marked

as MO.8 (subject to objection). It is suggested that he

heard the conversation between both of them and the

same was denied.

7. Having considered the evidence of P.W.1

regarding demand is concerned, his evidence not supports

the case of the prosecution. He categorically says in the

chief-evidence itself that he could not hear the discussion

between the accused and complainant properly. But only

his evidence is with respect to payment of bait money in

favour of the accused. In the cross-examination, he admits

that if person sitting in one cabin cannot see the other

person who are sitting in the other cabin. He also admits

that he was not sitting opposite to him. But he was sitting

by the side of the other table. He also admits that

complainant is no more and he examined in departmental

enquiry. The evidence given by him is contravened in

terms of Ex.D1. The other witness is P.W.2 and he is a

hearsay witness that the accused has demanded an

amount of Rs.20,000/- from the complainant and the

complainant stated the same thing. The police also given

the cassette for recording the conversation when he

demanded Rs.20,000/- to delete the name of the accused

from the chargesheet and the said conversation is handed

over to the police. He also identifies his signature in

Ex.P10 and he gave Rs.10,000/- to draw the panchanama

and entrustment mahazar was drawn. The accused came

to Pearl Hotel once again when he demanded to get the

bail in favour of his friends and accused demanded how

much amount he has brought and demanded an amount

which he brought Rs.10,000/- and he gave the said

amount and he counted the amount from his hand and

kept the same in his shirt pocket. He gave the signal and

recovery was made. In the cross-examination he admits

that accused is the police constable and he is not an officer

and he was not having any power to apprehend him or to

leave him or also not having any power to delete the name

of the accused. This witness is not an eye-witness to the

demand and he only says that he handed over the money.

Regarding demand is concerned, no evidence is before the

Court. The evidence of PW.1 does not inspire confidence

of the Court regarding demand is concerned. Apart from

that, PW.2 evidence is clear that accused is Police

Constable and he was not having any power to arrest or

not to arrest or to drop culprit from the charge sheet. It is

not the case of the prosecution that on behalf of the

superior officer this accused demanded money. As I have

already pointed out, in a case of bringing the accused

under the Prevention of Corruption Act, demand and

acceptance is sine qua non for convicting the accused. No

doubt, PWs.1 and 2 deposed with regard to demand of

bribe amount in favour of the accused. When the work

was not pending with the Police Constable and he was also

not having any authority either for deleting the name or

for not apprehending the culprit, the very case of the

prosecution cannot be believed. The original complainant

is no more and PW.2 was examined. When the work is not

pending with the accused, mere registration of the case

against the friends of the complainant cannot be a ground

to come to the conclusion that the prosecution has proved

the case. Mere recovery is not enough to bring the

accused within the purview of Sections 7 and 13 of the

Prevention of Corruption Act and the evidence of the

complainant as well as shadow witness inspire confidence

of the Court. The entire evidence in toto has to inspire

confidence of this Court and first of all, PW.1 did not say

anything about the demand. He says he was unable to

hear the conversation between the complainant and the

accused. Hence, I do not find any error committed by the

trial Court in acquitting the accused. The trial Judge also

in detail discussed with regard to the evidence of PWs.1

and 2 and officers evidence i.e., official witnesses. In the

case on hand, in order to prove demand is concerned,

though conversation is recorded in terms of M.O.8, the

same was not sent to the concerned department to test

the veracity of the demand and no voice test of the

accused is conducted and no report is also obtained in

respect of proving of M.O.8 i.e., Micro-cassette

conversation recorded. There are material contradictions in

the evidence of PW.1 with that of the version of PW.2. The

trap panchanama was also drawn in terms of Ex.P5 in the

police station and no explanation on the part of the

Lokayukta police. PW.1 shadow witness has also not

spoken anything about Exs.P1 to P4 and also with regard

to preparation of entrustment panchanama in the police

station which contradicts the evidence of PW.2. The

evidence of PWs.1 and 2 not corroborate with each other.

PW.5 has admitted in his cross-examination that M.O.8

was not at all sent for expert examination opinion. In the

absence of direct evidence with regard to demand is

concerned, I am of the opinion that the trial Court has not

committed any error in acquitting the accused and it does

not require interference of this Court to come to other

conclusion and the benefit of doubt extended in favour of

the accused is in accordance with law.

8. In view of the discussions made above, I pass

the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

VNR/NB*