Rajkumar S/O Somanna vs The State Of Karnataka Through
2022 Latest Caselaw 1107 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 25TH DAY OF JANUARY, 2022

                       BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

         CRIMINAL APPEAL NO.200070/2015


BETWEEN:

RAJKUMRA S/O SOMANNA,
AGE : MAJOR, OCC : VILLAGE ACCOUNTANT,
SRIMANDAL GRAM PANCHAYAT,
R/O CHIARPET GALLI, HUMNABAD,
DIT : BIDAR - 585 330.
                                         ... APPELLANT
(BY SRI SANJAY A.PATIL, ADVOCATE)


AND:

THE STATE OF KARNATAKA
THROUGH THE POLICE,
LOKAYUKTA POLICE, BIDAR,
REPRESENTED BY SPL. PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENH AT KALABURAGI.
                                      ... RESPONDENT

(BY SRI SUBHASH MALLAPUR, SPL.P.P. FOR LOKYUKTA)

     THIS   CRIMINAL   APPEAL    IS  FILED   UNDER
SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE
IMPUGNED     JUDGMENT    OF    CONVICTION    DATED
18.06.2015 PASSED BY THE SPL. JUDGE AND PRL. DIST &
SESSIONS JUDGE BIDAR IN SPL.CASE (CORRUPTION)
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NO.36/2011, THEREBY CONVICTING THE APPELLANT FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 7,
13(1)(D) R/W 13(2) OF PREVENTION AND CORRUPTION
ACT 1988 AND SET ASIDE THE ORDER ON SENTENCE
DATED 23.06.2015 PASSED BY THE SPECIAL JUDGE AND
PRL. DISTRICT AND SESSION JUDGE, BIDAR IN SPL.CASE
(CORRUPTION) NO.36/2021.

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

                        JUDGMENT

Heard Sri Sanjay A.Patil learned counsel for the

appellant and Sri Subhash Mallapur for respondent/

Lokayukta.

2. The present appeal is filed by accused No.1-

Rajkumar who has suffered an order of conviction in

Special Case (Corruption) No.36/2011 dated 18.06.2015

passed by the Special Judge and Principal District and

Sessions Judge, Bidar.

3. The brief facts of the case are as under :-

Accused No.1 herein referred to as appellant

(accused No.1) being a public servant working as Village

Accountant of Chambol and Srimandal. On 31.07.2009

demanded an illegal gratification of `600/- from the

complainant-Venkatrao S/o Mukandrao Serikar of

Hippalgaon village for showing official favour in connection

with consolidation of land in Sy.No.8 measuring 02 acres

of Hippalgaon village and on 03.08.2009 at about 3.15

p.m. at J.P.Nagar in a building known as 'Shree', accused

No.2 a public servant working as Village Assistant received

the illegal gratification of `600/- from the complainant as

directed by the accused No.1 and when the tainted money

handled by accused No.2, Lokayukta police laid a trap and

accused No.2 was caught hold red handed. The tainted

money was recovered and trap panchanama was recorded.

Thereafter, accused Nos.1 and 2 were arrested and after

thorough investigation, Lokayukta Police laid a charge-

sheet against accused Nos.1 and 2.

4. Learned Special Judge took cognizance of the

offences alleged against the accused persons for the

offences punishable under Section 13(1)(d) read with

Section 13(2) of Prevention of Corruption Act, 1988.

Presence of the accused was secured and charges were

framed and therefore, trial was held as they did not plead

guilty.

5. In order to prove the case, prosecution

examined in all 11 witnesses as PWs.1 to 11 and relied on

22 documentary evidences, which were exhibited and

marked as Exs.P1 to P22 and also relied on 13 material

objects, which were marked as MOs.1 to 13. On behalf of

the accused two documents were got marked as Ex.D1 and

Ex.D2.

6. Thereafter, learned Special Judge heard the

parties in detail and passed an order of conviction against

the appellant herein and acquitted Accused No.2.

7. Being aggrieved by the same, Accused No.1

has preferred this appeal. In the appeal following grounds

have been raised:

x The impugned judgment of conviction passed by the trial court is contrary to law and facts of the case.

x The trial court has not properly appreciated the evidence before it and has thus erroneously convicted the appellant/accused for the alleged offences.

x The Trial Court has totally ignored the fact that the complainant/PW-1 has totally given goby to the prosecution case and more particularly PW-1 has deposed to the effect that he has not given such a complaint alleging the demand by accused NO.1, that being so it goes to the rout of the prosecution, and hence the Trial court ought to have also acquitted the present appellant.

x The Trial Court ought to have taken into account that, the clear admission of PW-2 and PW-6 who are the pancha to the entrustment panchanama and there are various contradictions in their evidence regarding the manner in which the trap was held, that being so the trial court ought to have given benefit to the accused and the trial court ought to have also acquitted the present appellant.

x The trial court has also given a total gobye to the evidence of PW.4 who is the Deputy Commissioner, the sanctioning authority to prosecute the public servant/appellant, PW-4 has clearly deposed that he ha snot gone into the entire materials placed before him by the Lokayukta Police and hence it is

clear that the said sanction is without application of mind and thus it is not a valid Sanction, that being so the trail court ought to have acquitted the appellant on the sole ground that the entire case was instituted without a valid sanction.

x The Trial Court ought to have taken into account that PW-7 being the Tahasildar had als0 turn hostile to the prosecution and coupled with the evidence of PW-2 and 6 wherein there are Various contradiction, the trial court ought have als0 acquitted the appellant.

x The Trial Court has wrongly convicted the appellant basing on the evidence of PW-2 & 3 and other police official witnesses who are formal witnesses ignoring the fact that the material witnesses who have turned hostile

x It is submitted that, viewed at any angel the impugned judgment of conviction suffers from seriou9 infirmities and question of law and misconception in appreciating evidence of prosecution witnesses.

x It is submitted by the appellants that this Hon 'ble Court be pleased to permit his counsel to urge other some more grounds at the time of argument,

x It is submitted that no other appeal is pending or filed by the appellant before any court of law for

the same cause of action except the present appeal.

8. Re-iterating the above grounds, learned

counsel for the appellant Sri Sanjay A. Patil, vehemently

contended that the learned Special Judge ought not to

have convicted the Accused No.1 who did not handle the

tainted money even according to the prosecution. More so,

when the person (Accused No.2) who handled the tainted

money has been acquitted and the State has not preferred

any appeal against the acquittal of the Accused No.2. He

also pointed out that the complainant and shadow witness

having turned hostile to the case of the prosecution,

based on the version of PW-6 and the investigating officer

and resorting to Section 20 of the Prevention of Corruption

Act, the learned trial judge has convicted Accused No.1

which has resulted in miscarriage of justice and sought for

allowing the appeal.

9. Per contra, learned Special Public Prosecutor

appearing for Lokayuktha Sri Subash Mallapur, supported

the impugned judgment by contending that even though

Accused No.1 has not handled the tainted money, the

prosecution is able to establish that the work of the

complainant was pending with the Accused No.1 and

Accused No.1 has not directly received the tainted money

and received through Accused No.2 and therefore, there

are sufficient materials to maintain conviction as against

Accused No.1 and sought for dismissal of the appeal.

10. In view of the rival contentions of the parties,

following points would arise for consideration:

(i) Whether the prosecution is successful in establishing all ingredients to attract the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, beyond all reasonable doubt?

(ii) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?

(iii) Whether the sentence is excessive?

11. In the case on hand, the prosecution has

successfully established that Accused Nos.1 and 2 are

public servants, and the same is not in dispute.

12. Accused No.1 is the Village Accountant and

accused No.2 is a Village Assistant. Admittedly, an

application was pending with Accused No.1 for

consolidation of the land in survey No.8 measuring 2 acres

of Hippalgaon village and in that regard, the complainant

had approached the accused. However, as per the

complaint averments, there was a demand made by

Accused No.1 in a sum of `600/- as illegal gratification for

carrying out the said work by Accused No.1.

13. According to the prosecution, the tainted

money was handled by Accused No.2 in a building known

as 'Shree' at JP Nagar, wherein the complainant said to

have handed over sum of `600/- to the hands of Accused

No.2, who in-turn kept it in his shirt packet. Thereafter,

designated pre-signal was given by removing the cap on

the head, at that juncture, the raid party entered the

house and arrested Accused Nos.1 and 2 and enquired

about the tainted money. The accused No.2 took out the

tainted money from his shirt packet and thereafter, colour

test was conducted, wherein the colour less liquid turn

into pink colour. Noting all these aspects of the matter,

Trap mahazar was drafted on the spot and accused Nos.1

& 2 were taken to the custody.

14. Police after thorough investigation have laid

the charge sheet containing these aspects of the matter.

Before the court, the complainant Sri Venkat Rao was

examined as PW-1. He did not support the case of the

prosecution to any extent, except deposing about the

filing of the application of the accused with Accused No.1

for consolidation work of survey No. land in survey No.8

and also handing over `600/- admitting his signature on

the complaint. However, he did not supported the case of

the prosecution further. He has been treated as hostile

witness by the prosecution and cross examined in detail by

confronting the complaint averments, contents of

experimental mahazar and trap mahazar. Complainant

denies the same.

15. Shadow witness Sri Rajputh Babu was

examined as PW-2. He has supported the case of the

prosecution to a major extent. However, in respect of his

examination in chief itself, he has specifically stated that

he has not seen whether the complainant has handed over

the tainted money to the hands of Accused No.1 or

Accused No.2. To that extent, he did not supported the

case of the prosecution and he has been treated as hostile

witness. In his cross examination, it is elicited that he has

not entered inside the house known as 'Shree' and as

such, he did not hear what transpired within the house nor

seen what happened inside the house.

16. Sri Sanju Kumar is the Engineer who drafted

the spot sketch is examined as PW-3. Sri Sameerr Shukla,

Deputy commissioner, who is examined as PW-4 has

issued the sanction order against the accused Nos.1 & 2

for prosecution. His evidence is formal in nature. Sri

Ishwar is another witness who has visited the Tahsildar

Office is examined as PW-5, but, he has not supported the

case of the prosecution to any extent. Sri Ashok is the

another witness who has participated in experimental

mahazar and was with a raid party was examined as PW6

and he has supported the case of the prosecution to some

extent and to the extent he has been turned hostile, he

has been cross examined by the prosecution. Despite such

cross examination, the prosecution is unable to elicit any

material so as to improve the case of the prosecution .

17. Sri PW-7 Dr.V.Sharanappa, was the Tahsildar

and official superior of Accused No.1. He has supported

the case of the prosecution.

18. Sri Ramachandra is examined as PW-8. He

deposed that he has worked as a Election Tahsildar

between 2008 to 2011. He has handed over the

documents in respect of the house known as 'Shree' and

he has given the same vide Ex.P-19. His evidence is

formal in nature.

19. Sri H.N. Panchaksharappa was examined as

PW-9. He was the investigating officer, and has supported

the case of the prosecution about the experimental

mahazar and trap mahazar. PW-10 Ravindranath was the

further investigating officer, who completed the further

investigation and filed charge sheet.

20. PW-11 Sri Jagannatha, was also a Tahsildar

who worked between 20.6.2010 to 21.11.2011 who has

handed over the document pertaining to accused No.2 as

per Ex.P-20. His evidence is also formal in nature.

21. The above evidence on record is sought to be

re-appreciated by the learned counsel for the appellant.

22. Sri Sanjay A Patil, vehemently contended that

the complainant having not supported the case of the

prosecution to any extent and shadow witness clearly

admitting that he has not heard what transpired in the

house 'Shree' where the complainant said to have handed

over `600/- to the hands of Accused No.2 at the

instructions of Accused No.1 and having not seen actual

handing over of money, the prosecution case is totally

false and the same has not been rightly appreciated by the

learned trial judge. He pointed out that Tahsildar who was

examined as PW-7 has clearly admitted that as on the date

of trap, there was no work pending with Accused No.1 and

despite the same, the learned trial judge has proceeded to

pass an order of conviction as is found in para 36 of the

judgment and sought for allowing the appeal.

23. In the light of the above discrepancies, this

court has meticulously re-appreciated the material

evidence on record in order to prove the ingredients of

Sections 7, 13(1)(d) read with Section 13(2) of the

Prevention of Corruption Act.

24. As could be seen from the above, the

prosecution case mainly hinges on the testimony of the

evidence of shadow witness. It is now well settled

principles of law and requires no emphasis that in order to

establish an offence under Sections 7 and 13(1)(d) read

with Section 13(2) of the PC Act, prosecution has to

establish the following ingredients:

¾ Demand and acceptance of bribe money;

¾ Handling of tainted money by the accused on the

day of trap (colour test);

¾ Work of the complainant must be pending as on

the date of trap with the accused.

25. With the above legal requirements, when the

material evidence on record is analyzed, the prosecution

case suffers for want of substantive evidence in the form

of the oral testimony of the complainant who has turned

hostile to the case of the prosecution in toto.

26. Further, shadow witness though supported the

case of the prosecution, did not specifically depose about

the handing over of tainted money on the demand may by

Accused No.1 or Accused No.2 to the Tahsildar for the

illegal gratification and complainant handing over a sum of

`600/- to the hands of Accused No.2 at the instructions of

Accused No.1.

27. The learned trial judge did appreciate these

aspects of the matter in the impugned judgment and

rightly acquitted Accused No.2 State has not preferred any

appeal against the accused No.2 and therefore, the said

finding of the learned trial judge in acquitting Accused

No.2 has become final. With the same set of evidence,

solely on the testimony misreading the testimony of PW-7,

the Trial Court proceeded to record an order of conviction

against the accused No.1, when there was no demand

proved by the prosecution and there is no acceptance by

accused No.1 and as per the oral testimony of the PW-7

who has categorically admitted that as on the date of trap,

there was no work pending with accused No.1, no

ingredients whatsoever to attract the above offences has

been established by the prosecution and the same has not

been properly appreciated by the learned trial judge in the

impugned judgment accordingly a case is made out by the

appellant to interfere with the order passed by the learned

trial judge.

28. From the above discussions and in the absence

of cogent evidence placed on record all ingredients to

attract the aforesaid offences, this court is of the

considered opinion that Point No.1 is to be answered in

Negative and Point No.2 in the Affirmative. In view of

the finding of this court on point Nos.1 & 2, point No.3

does not arise for consideration and pass the following:

ORDER

(i) Appeal is allowed.

(2) The judgment of conviction and order of

sentence dated 18.06.2015 passed in Special Case

(Corruption) No.36/2011 by the Court of Special Judge and

Principal District and Sessions Judge, Bidar, is hereby set

aside.

(3) The Accused is acquitted for the offence

punishable under Sections 7, 13(1)(2) read with

Section 13(2) of Prevention of Corruption Act.

(4) The bail bond and surety bond if any stands

discharged.

(5) Fine amount if any deposited by the accused, is

ordered to be refunded to the accused.

Ordered accordingly.

Sd/-

JUDGE

sn/PL*