IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 CRL.A.No. 362 of 2000(A) ------------------------ CC.40/1999 of ENQUIRY COMMR. & SPL. JUDGE, TRIVANDRUM .................... APPELLANT/IST ACCUSED: -------------------------------- P. VASUDEVAN PILLAI, JAIL WARDER, SUB JAIL, KOLLAM. BY ADV. SRI.C.RAJENDRAN SRI.PIRAPPANCODE V. SREEDHARAN NAIR, SRI.S.P.ARAVINDAKSHAN PILLAI SRI. PIRAPPANCODE V.S.SUDHEER RESPONDENT: ---------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDING, ERNAKULAM ( DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU, KOLLAM. BY PUBLIC PROSECUTOR SRI.P.N.SUKUMARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/03/2008 , ALONG WITH CRA NO. 363 OF 2000, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER,J ========================= Crl.Appeal.Nos.362 & 363 of 2000 ========================== Dated this the 4th day of March, 2008 JUDGMENT These appeals are at the instance of the two accused who have been convicted and sentenced under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 34 I.P.C. Appellants were charge sheeted by the Vigilance and Anti corruption Bureau, Kollam for the above offences on the allegation that while they were working as Warden and Head Warden of Sub Jail, Kollam during July-August 1998 had demanded illegal gratification of Rs.1,000/- from PW1, Baiju Prasad as a reward for not manhandling PW4, Suresh, an under trial prisoner in the Sub Jail. 2. The prosecution case in brief was that on July 31, 1998 at about 4.30 p.m. accused No.1 had demanded and accepted Rs.500/- from PW1 at the guard room of the sub jail and had further asked PW1 to pay a sum of Rs.500/- more on the next day. On the basis of a complaint lodged by PW1 before the DYSP, Vigilance and Anti Corruption Bureau, Kollam, PW1 was instructed to bring a sum of Rs.500/- to the office of the Vigilance Crl.A.Nos.362 & 363 /2000 2 and Anti Corruption Bureau for arranging a trap. After arranging the presence of trap witnesses, DYSP had gone to the Sub Jail at about 11 a.m. on the next day on August 1, 1998 along with other witnesses. As instructed by the DYSP (PW7), PW1 had gone to the guard room and handed over the Phenolphthalein smeared 500 rupee note to accused No.1. Prosecution alleged that accused No.1 accepted the above note and handed it over to accused No.2 who took it and kept it inside MO7 book in the drawer. On receipt of the prearranged signal from PW2, Thahsildar who was the trap witness, the DYSP and his party had gone inside the guard room and recovered the currency note and completed the other formalities like seizure, arrest etc. 3. The prosecution had examined PWs.1 to 7 and Exts.P1 to P27 and MO1 to MO11 were also marked on its side. DW1 was examined on the side of the defence. 4. The learned Enquiry Commissioner and Special Judge after an elaborate consideration of the oral and documentary evidence on record found that the prosecution had satisfactorily proved the case against the accused. Accordingly, the two Crl.A.Nos.362 & 363 /2000 3 accused were found guilty under Sections 7 and 13(2) read with Section 13(1) (d) of the Act and convicted and sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.5,000/- each and in default to undergo rigorous imprisonment for a further term of five months each under Section 7 of the Act. They were also directed to suffer rigorous imprisonment for three years each and to pay a fine of Rs.10,000/- each under Section 13(2) read with Section 13(1)(d) and in default of payment of fine they were directed to suffer rigorous imprisonment for a further period of ten months each. The above order of conviction and sentence is under challenged in these two appeals. 5. Heard learned counsel for the appellants and the learned Public Prosecutor. 6. The case of the prosecution was that PW1 had gone to the Sub Jail, Kollam at about 4.30 p.m on July 31,1998 to visit PW4, who was remanded to Judicial custody in connection with a case. Admittedly Ext.P1 FI statement, which bears the signature of PW1 was recorded by PW7. In the said statement, PW1 had stated that he had gone to the Sub Jail along with one Anil to Crl.A.Nos.362 & 363 /2000 4 meet Mr.Suresh (PW4) who was remanded to Judicial custody. According to PW1, he had in fact accompanied Suresh to the Sub Jail and had been waiting outside after Suresh was taken in. After sometime PW1 was called inside. He found that Suresh was standing inside the guard room. Suresh told PW1 to give him some money, if he had any with him, because he wanted to give it to the warden. PW1 handed over Rs.200/- to Suresh who in turn gave it to the warden. The warden jabbed at the chest of Suresh and asked him what could be done with 200 rupees. The warden told PW1 that there were 15 officers on duty and he should give atleast Rs.1,000/- Since PW1 wanted to ensure that Suresh was not harmed by the officials, he gave Rs.500/- which he had with him. The warden who was named by PW1 in Ext.P1 statement (accused No.1) told PW1 that he should bring the balance Rs.500/- tomorrow as otherwise Suresh would be smashed. PW1 agreed to accused No.1 that he would bring the balance amount of Rs.500/- on the next day. Ext.P1 revealed that PW1 stated before the DYSP that he was not prepared to pay the balance amount of Rs.500/- to accused No.1 as bribe. The above statement is seen to have been recorded by PW7, the DYSP, Crl.A.Nos.362 & 363 /2000 5 at 8 a.m. on August 1, 1998. 7. PW7 deposed before the court that he had arranged the trap witnesses with the help of the District Collector, Kollam, who deputed PWs.2 and 3, two Tahsildars, as requested by PW7. It had come out in evidence that PW7 had smeared 500 rupee note with Phenolphthalein in the presence of PWs.2 and 3 and other witnesses. Ext.P4 Mahazer was prepared in connection with the above proceeding. After properly instructing PWs.1 to 3 about the modus operandi PW7 had accompanied them along with other witnesses to the Sub Jail at about 11 a.m. It has to be noticed that the evidence of PWs.1 to 3 clearly established that the operation was successfully completed. These three witnesses clearly stated that the 500 rupee note was accepted by accused No.1 inside the guard room. PW2 had also witnessed the same. PW4 Suresh had also witnessed the incident because admittedly the money was handed over by PW1 to accused No.1 in his presence. PW3, the other trap witness, had come inside the guard room along with PW7 and recovered the 500 rupee note in the presence of PWs.1, 2 and 4 from the drawer of the table. It had further come out in evidence that accused No.1 Crl.A.Nos.362 & 363 /2000 6 had handed over the 500 rupee note to accused No.2 who in turn had kept it in MO7 book inside the drawer of the table. The subsequent procedure followed by PW7 with regard to the seizure of the note and other documents and also the arrest of the two accused had also come out from the evidence of these witnesses. 8. However, it is contended by learned counsel for accused No.1 that the prosecution case has to be totally discarded and disbelieved in as much as the entire story had been apparently cooked up by the prosecution as is discernible from the evidence on record. According to the learned counsel, PW1 had categorically stated that PW7 had recorded his statement on July 31, 1998, shortly after his visit to the Sub Jail. Learned counsel contends that the said statement had not seen the light of the day. What has been pressed into service by prosecution is Ext.P1 statement which even according to PW1 was recorded by the DYSP in the evening of August 1, 1998, after arresting the accused. Learned counsel points out that PW1 had not supported the prosecution case and he was declared hostile. PW1 had deposed before the court that the two Crl.A.Nos.362 & 363 /2000 7 wardens who had demanded bribe were Rajasekharan and Satheesh and not the two accused. In this context, learned counsel places heavy reliance on Exts.P9 and P12, the gate register and duty book respectively maintained at the Sub Jail. Learned counsel contends that Ext.P9 would show that accused No.1 was on gate duty on July 31,1997 and he was not on duty as warden in the guard room. Ext.P12 would further show that accused No.1 was on kitchen duty on August 1, 1998. It is thus contended by the learned counsel that these two registers would cut at the root of the prosecution case. 9. First of all, I will deal with the evidence of PW1. It is true that PW1 was declared hostile by the prosecution since he asserted before the court that the two accused had not demanded any money from him. According to him they were not present in the guard room on July 31,1998. But it is pertinent to note that PW1 admitted his signature in Ext.P1, F.I statement after it was read over to him by the DYSP. He insisted that Ext.P1 was recorded at 5.p.m. on July 31, 1998. He further insisted that PW7 had recorded another statement of his at 4.p.m. on August 1, 1998 after the arrest of the two accused. Crl.A.Nos.362 & 363 /2000 8 Curiously the version given by PW1 in this regard was that the said statement was recorded after accused No.1 had “accepted the bribe”. He further stated that if his memory served him right, he had mentioned the names of the two accused in the statement. According to him the said statement was read over to him by the DYSP. It is the case of the learned counsel that the prosecution had suppressed the earliest statement given by PW1. I am unable to comprehend the rationale behind the said submission made by the learned counsel. As noticed already the case of PW1 in his chief examination was that Ext.P1 was not recorded by the DYSP at 8 a.m. on August 1, 1998, but it was recorded at 5.p.m. on July 31,1998. Therefore it cannot be said that the prosecution had suppressed the earliest statement given by PW1 even assuming that the contention raised by PW1 that his statement had been recorded on July 31, itself is accepted. In this context it may also noticed that PW1 had put the date as August 1, 1998 in his own hand beneath his signature in Ext.P1 Statement. The other question is whether the contention raised by PW1 that the DYSP had recorded yet another statement after the arrest of the two accused can be believed. It cannot be Crl.A.Nos.362 & 363 /2000 9 assumed that PW7 would have bothered to record another statement from PW1 after the entire episode was over. A perusal of deposition of PW1 will undoubtedly show that he was bent upon helping the accused particularly accused No.1. PW1 had disowned his statement given to the Investigating Officer that accused No.1 had demanded 500 rupees more as bribe after accepting Rs.500/-. Prosecution had relied on the above statements allegedly given by PW1 when he was questioned by PW7 and the above statement marked as Exts.P1, P3 (a) and (b). Before the court PW1 had made a further attempt to save the skin of accused No.1 in the course of his cross examination. He had stated that on seeing accused No.1 inside the guard room when he went inside along with PW2, he had asked accused No.1 where were the two officers who were on duty on the previous evening. According to PW1 he was informed by accused No.1 that they were on night duty. But significantly PW1 had admitted that accused No.1 had accepted 500 rupee note from him. 10. It is true that Ext.P9 gate register revealed that accused No.1 was on gate duty on July 31,1998. But it had come Crl.A.Nos.362 & 363 /2000 10 out in evidence that the distance between the gate and the guard room is hardly 13 meters. It had also come out in evidence that the staff on duty would move around the guard room, gate, kitchen etc. For instance it was admitted by accused No.1 himself that he was inside the guard room on August 1, 1998, though as per record the duty assigned to him was in the kitchen, as could be seen from Ext.P12. It was also admitted by accused No.1 in Section 313 statement that he had accepted the 500 rupee note from PW1. But according to him, he accepted the note since he was informed by PW1 that the money was to be given to the Counsel of PW4. But curiously PW4 did not have a case that he had asked PW1 to give him Rs.500 to be given to his counsel. The fact remains that accused No.1 had accepted the Phenolphthalein smeared 500 rupee note from PW1. The acceptance of this note undoubtedly probabalised the Prosecution case that on the previous day accused No.1 had demanded and obtained Rs.500/- from PW1 as stated by him in Ext.P1 F.I statement. The prosecution case falls in place particularly since accused No.1 though he was on kitchen duty, was physically present in the guard room at the relevant point of Crl.A.Nos.362 & 363 /2000 11 time. Therefore, I am unable to accept the contention raised on behalf of accused No.1 that the entire prosecution story was cooked up. I am also unable to accept the version given by PW1 before the court that Ext.P1 was recorded by PW7 after the entire episode. 11. As mentioned earlier the prosecution had successfully established that accused No.1 had accepted the money from PW1 in the presence of PWs.2 and 4. The Phenolphthalein test conducted by PW7 in the presence of the witnesses further established that the trap had worked successfully. Though it is vehemently contended by learned counsel that there was no evidence to show that accused No.1 had demanded for bribe, I am not able to accept the above contention either. In Ext.P1, PW1 had categorically stated that accused No.1 had accepted Rs.500 from him on the previous day after making a demand for the same. Similarly, accused No.1 had asked PW1 to bring Rs.500/- on the next day. Though PW1 had taken a U turn when he was examined before the court disowning his earlier version before the Investigating officer, I am satisfied that the court below was justified in holding that the prosecution had Crl.A.Nos.362 & 363 /2000 12 succeeded in proving the charge against the accused. 12. But when it comes to the case against accused No.2, I am afraid the prosecution had totally failed in proving the charge against him. It may be noticed that in Ext.P1, PW1 had no case that accused No.2 was present in the guard room on July 31, 1998. That accused No.2 was not on duty on July 31 at 4.30 p.m. is proved by Ext.P12. It is further seen from Ext.P12 that accused No.2 had joined duty on that day at 6.p.m. only. Further, the prosecution did not have a case that accused No.2 had made any demand for bribe from PW1 at any point of time. It had also come out in evidence that accused No.2 was not in the guard room at the time when accused No.1 accepted the 500 rupee note from PW1. In his 313 statement accused No.1 had categorically stated that accused No.2 had come to the guard room after he had taken the 500 rupee note from PW1. It is true that when accused No.1 handed over Rs. 500/- to accused No.2 he had taken it and kept it in MO7 note book in the drawer. PW6 working as head warden at the relevant point of time had stated that the detainee could not have accepted money from his relatives or visitors directly under any circumstances. If any Crl.A.Nos.362 & 363 /2000 13 detainee wanted to accept any money he had to submit an application before the Superintendent of the Jail. The warden can collect the money and keep it with him after making an entry in the P.C.P register. On receipt of an application from the detainee Superintendent had to pass appropriate orders. Then only the money could have been given to the detainee. Therefore, the contention of accused No.2 that he had collected the money from accused No.1 and put it in the P.C.P register (MO7) without knowing that it was accepted by accused No.1 as bribe appears to be probable. In that view of the matter the court below in my view was not justified in holding accused No.2 guilty of the offence alleged against him. Therefore, I am satisfied that accused No.2 is entitled to be acquitted. Ordered accordingly. 13. However, for the reasons stated above, I do not find any reason to interfere with the conviction and sentence passed against accused No.1. But, in the peculiar facts and circumstances particularly since it is on record that accused No.1 had been dismissed from service and also that he has already retired from service and has the responsibility to look Crl.A.Nos.362 & 363 /2000 14 after a large family , I am satisfied that ends of justice will be met if his sentence is modified and reduced. Accordingly accused No.1 is sentenced to undergo rigorous imprisonment for one year under Section 7 of the act and to pay a fine of Rs.5,000/- and in default he shall suffer rigorous imprisonment for three months. Similarly, the sentence of rigorous imprisonment of three years imposed on accused No.1 under Section 13(1)(d) read with Section 13(2) of the Act is also reduced. He shall suffer rigorous imprisonment for one year under the above count and pay a fine of Rs.10,000/-. In default of payment he shall suffer rigorous imprisonment for three months. Sentences shall run concurrently. Crl.Appeal No.362/2000 is allowed in part. Crl.Appeal No.363/2000 is allowed and appellant is acquitted. A.K.BASHEER,JUDGE dvs