IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 CRL.A.No. 1104 of 2005(C) ------------------------- CC.12/2001 of ENQUIRY COMMR. & SPL.JUDGE, KOZHIKODE .................... APPELLANT(S): ACCUSED: ---------------------- P.MANICKAN, S/O. PONNA, VARIKKATTUKULAMBU, KUTTIPPADAM, MUTHALAMADA, CHITTUR (SUB ENGINEER, ELECTRICAL MAJOR SECTION, K.S.E.B., KOLLANKODE). BY ADV. SRI.P.K.VIJAYAMOHANAN SRI.SOJAN MICHEAL RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K.HEMA, J. ----------------------------------------------- Crl. Appeal No. 1104 of 2005 ----------------------------------------------- Dated this 12th January, 2011. JUDGMENT This appeal arises from the conviction and sentence passed against appellant to undergo rigorous imprisonment for two years and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for one year under Section 7 of the Prevention of Corruption Act ('the P.C. Act' for short). Set off was allowed. 2. According to prosecution, while working as a public servant in the capacity of Sub Engineer in K.S.E.B. appellant demanded Rs.300/- as illegal gratification from PW1 during October-November 1999 and accepted Rs.200/- pursuant to such demand, as a reward for giving power connection to a building owned by his mother, after laying cables and other preliminary works. 3. Thereafter, on 30.11.1999 at about 9 a.m. appellant again demanded a sum of Rs.200/- from PW1 at his office as illegal gratification as reward for doing the rest of work like allotting consumer number and for energizing the line and pursuant to such demand, on 7.12.1999 he again accepted [Crl.A. No.1104/2005] 2 Rs.200/- as illegal gratification at around 1.15 p.m. at his office and thereby he committed offences under Section 13(1)(d) read with Section 13(2) and Section 7 of the P.C. Act, 1988. 4. To prove the prosecution case, prosecution examined PWs 1 to 6 and marked Exts.P1 to P20 and MO1 series to MO8. On the side of the accused, DW1 and DW2 and Exts. D1 and D2 and Exts.X1 to X3 were marked. On an analysis of the evidence on record, trial court found that accused is entitled to the benefit of doubt regarding demand and acceptance of Rs.200/- in October- November, 1999. However, it was held that as far as his second demand and acceptance of Rs.200/-, prosecution succeeded in establishing beyond shadow of doubt that accused committed offence under Section 7 of the PC Act. The said conviction and sentence are challenged in this appeal. 5. Heard both sides in detail and perused the records. On going through the charge framed by the court, I find that the appellant was called upon to answer two sets of charges. One of the charges was answered in favour of the appellant. I am satisfied of the reasons stated by trial court in support of such findings. Hence, I shall confine my discussion with respect to second charge only. 6. Learned counsel for appellant pointed out that charge [Crl.A. No.1104/2005] 3 was framed only for offence under Section 7 of the P.C. Act and the conviction was only under the said section. Trial court found that appellant “demanded” payment of Rs.200/- as bribe on 30.11.1999 and also on 7.12.1999 and accepted the amount on 7.12.1999. Learned counsel for appellant argued that to prove the “demand”, there is only oral testimony of PW1 but trial court already observed that his evidence regarding prior demand is not quite acceptable, especially since one Narayanan, an Electrician, who was allegedly present with the accused at the time of demand, was not examined. 7. It is true that having found that the sole testimony of PW1 cannot be accepted regarding prior demand made in October,1999, it may not be proper to accept his evidence on subsequent demand allegedly made on 30.11.1999 unless his evidence is corroborated by other evidence, especially since there are several discrepancies in his evidence regarding various aspects which will be discussed in the following paragraphs. At any rate, having found that benefit of doubt can be extended to accused regarding demand and acceptance, in the absence of examination of witness to corroborate the evidence of PW1, it may not be safe to place implicit reliance on the evidence of PW1 regarding second demand. [Crl.A. No.1104/2005] 4 8. In this context, learned counsel submitted that evidence of PW1 is not consistent regarding the second demand. He was not able to say the exact date on which demand was made. Learned Public Prosecutor pointed out that PW1 has stated that the demand was made one week prior to the date of trap which will be consistent with what is stated in the F.I. Statement given by PW1. Any way, it is needless to say that to hold a person guilty of offence under Section 7 of P.C. Act, it is not necessary to prove demand. It is enough if there is evidence to show that the public servant accepted illegal gratification, as a motive or reward for doing any official act etc. Therefore, I shall proceed to consider whether there is evidence regarding acceptance of Rs.200/- by accused as illegal gratification, as a motive or reward for doing any official act. 9. Before going into the details of evidence regarding acceptance of money on 7.12.99, it is essential to refer to the charge framed by the court against appellant. It was pointed out by learned counsel for appellant that as per the court charge, Rs.200/- was accepted by the appellant as illegal gratification as reward for doing “rest of work”, like allotting consumer number and energizing the line. According to learned counsel for appellant, it is quite clear from evidence adduced in this case that [Crl.A. No.1104/2005] 5 there was no necessity for making any demand of bribe for the purpose of allotting any consumer number or energizing line. 10. It has come out from evidence of PW3, the Assistant Engineer, that consumer number was allotted to appellant's mother's property as early as on 16.1.1996 as 3921/VDR on an application made by PW1's mother which was received at the office on 16.11.1995. The estimate was taken by the appellant himself while he was working as Overseer, long prior to the date of alleged demand and acceptance. The completion report was also prepared as Ext.P1(a). The completion certificate Ext.P1(b) was issued by the Overseer (appellant) at that time (after taking the estimate Ext.P1(f) dated 10.1.1999). 11. PW3, in clear and cogent terms admitted in evidence that the consumer number was allotted to PW1's mother as per Ext.P1(a), as early as on 16.1.1996. Therefore, the case of prosecution that the bribe was demanded and accepted as a reward for allotting consumer number much after such date viz., 30.11.1999 and accepted on 7.12.1999 cannot be accepted. Long prior to the alleged demand and acceptance of bribe the consumer number was allotted and there is no question of paying bribe for such purpose. On going through the evidence on record and on hearing both sides, I am satisfied of the above [Crl.A. No.1104/2005] 6 submissions. 12. As per the evidence adduced by prosecution itself, appellant, while working as Overseer had allotted consumer number after completion of estimate etc. as early as on 16.1.1996, that is, about three years prior to the alleged acceptance of bribe. In such circumstances, there was no necessity for accepting any illegal gratification for the purpose of allotting consumer number, as stated in the charge. 13. The other motive alleged in the charge framed by the court is that demand of bribe and acceptance of bribe was for energizing the line. Learned counsel for the appellant argued that it was not the duty of the appellant to energize the line. Appellant was only working as Sub Engineer at the relevant period, as per the prosecution case and he was not even in charge of the Electrical Section when the application by PW1's mother was made. Further, the relevant place lies within the jurisdiction of one Mr. Soman, who is a Sub Engineer in the K.S.E.B. and not within the jurisdiction of appellant. 14. PW3 admitted in clear and cogent terms that the relevant consumer number falls within the jurisdiction of Sub Engineer Mr.Soman. But according to PW3, appellant was entrusted with the work relating to the application, Ext.P1, since [Crl.A. No.1104/2005] 7 there was some dispute regarding drawing of line through a particular property, as the owner objected to the drawing of the line. So it is not a case where appellant has come to the picture voluntarily by himself. 15. In this context, the statement made by appellant while questioning under section 313 Cr.P.C has to be looked into. Appellant contended that PW3, who is the Assistant Engineer, had insisted and compelled him to gave electric connection to PW1 ignoring priority. Since another consumer had to be given connection prior to PW1, appellant was not willing to heed to the direction and he explained all these facts to PW1. 16. It is also brought out in evidence that without giving connection to the earlier consumer, connection cannot be given to PW1. According to appellant since he was not wiling to give electric connection to PW1, ignoring the priority, a direction was given by PW3, that PW1 must be given connection. Therefore, an impression must have been created in the mind of PW1 that appellant was the cause for not getting electric connection, and this would have led to his enmity towards appellant and that must be the reason why appellant would have given a complaint to Vigilance, it is contended. 17. It has come out from the evidence of PW1 and PW3 [Crl.A. No.1104/2005] 8 that appellant, on several occasions, explained that it is not possible to give connection to PW1 ignoring the priority. PW1 in fact, stated in cross examination that he heard appellant telling PW3, his superior officer, that it is not possible to give connection without giving connection to earlier customer. PW3 himself admitted that there are customers to whom connection had to be given prior to that of PW1. 18. It is also brought out from his evidence that electrical connection was given to consumer No.3917 and 3921 (that of PW1's mother) on 29.11.1999 and records were marked to prove this fact. Ext.P12 is the list showing certain connections being effected for the month of December, 1999 from the relevant Electrical Major Section and this shows the electric connection was given to consumer no.3917. It was brought out from the evidence of PW3 that he had told the police that on 19.11.1999 when PW1 came to the Electricity Office that he was told that connection was to be given to the earlier number and connection could be given only after giving to the earlier number (vide Ext.D2) 19. PW1 admitted that electric connection was given to consumer no.3917 and 3921 under the responsibility of PW3. Ext.P11 will prove this fact. It is argued that there is absolutely [Crl.A. No.1104/2005] 9 nothing on evidence to show that it was the duty of the appellant to energize the line. On the other hand, the evidence let in by prosecution establishes that Sub Engineer (appellant) was to prepare the estimate and he was sent specifically for clearing an objection raised by adjacent property owner in drawing line. Though charge reveals that appellant demanded illegal gratification for energising the line, there is nothing on record to show that he had any role in energising the line. 20. The evidence of PW3 would reveal that he gave statement before before the police that it is for the lineman to give connection and the relevant portion from the case diary is marked as Ext.D1, since he denied the relevant portion from the statement recorded under section 161 of the Code. Even though he denied the fact that it is for the lineman to give connection, he did not specifically state whether appellant had any duty to energise the line. 21. As already observed by me earlier, section 7 contemplates proof of acceptance of illegal gratification and it is also necessary to establish that such acceptance was as a motive or reward for doing any official act etc. It is not sufficient if prosecution establishes that accused accepts illegal gratification, but it has to further prove that such acceptance was as a motive [Crl.A. No.1104/2005] 10 or reward for doing any official act etc., as stated in section 7 of PC Act. 22. Though specific allegations are made in the charge that motive for accepting illegal gratification was for allotting consumer number and also for energizing the same, prosecution failed to establish the alleged motive etc. On the other hand, it is established that there was no necessity for accepting any illegal gratification either for the purpose of giving consumer number, (the number was allotted years prior to the alleged demand and acceptance) or for energising the line. 23. However, trial court has vaguely stated in the judgment that amount was accepted as a motive or reward for his official act of giving electric connection to PW1's mother's shop. There is absolutely no evidence to show appellant had anything to do with the actual act of giving electric connection. No witness stated that he is the person who had to give electric connection. Evidence of PW1 only shows that appellant had solved a dispute regarding drawing of line and also prepared estimate about three years prior to the alleged demand and acceptance of bribe. 24. It is also in evidence that appellant made it clear to PW1 that electric connection is given in priority and electric connection cannot be given to PW1 ignoring priority. The [Crl.A. No.1104/2005] 11 evidence of PW3 would show that PW3 himself had given the electric connection to consumer no.3917 and 3921 (PW1's mother). It is in evidence that PW1 used to contact PW3 very often and it cannot be said that it was not within his knowledge that appellant is not the person, but PW3, Assistant Engineer, is the person who energises the line, who had ultimately done it, as revealed from his own evidence. 25. Now coming to the alleged acceptance of bribe, the prosecution adduced evidence relating to a trap. A trap was arranged by PW6, who is the investigating officer in this case and PW1 was asked to give tainted currency notes, MO1 series to appellant on 7.12.1999. The case of the prosecution is that tainted money was kept in the pocket of PW1 and police constable who tainted the same dipped his hands in Sodium Carbonate Solution and it turned pink and it was taken in a bottle and it was marked as MO2. 26. MO1 series were handed over by PW1 to appellant, as instructed by PW6 on alleged demand by appellant, is the allegation made by prosecution. Thereafter, PW6 and other official witnesses came to the scene and appellant was asked to dip his palm in the Sodium Carbonate solution and the solution turned pink and both the hands were dipped and the pink [Crl.A. No.1104/2005] 12 coloured solutions were taken in two bottles. Those are marked as MO4 and MO5. 27. PW2 is the Assistant Engineer, who witnessed the seizure of MO1 series and also the Phenolphthalein test conducted. He has given evidence that MO4 and MO5 which were pink coloured solutions were seized after appellant dipped his right and left palm in the Sodium Carbonate solution. Appellant had a definite case that solution did not turn pink when he dipped his hands, because he did not accept the money which was thrust in his pocket. His case is that money was thrust into his pocket by PW1 and he had refused to accept the same. He sent PW2, a staff to call PW1 back for returning the money to PW1. 28. It has come out in evidence of PW2 that except MO2, (which has nothing to do with appellant) none of the other solutions which were in the bottle, and which were produced in the court had pink colour at the time of his examination. Therefore, it has to be concluded that MO4 and MO5 which “allegedly” turned pink were not pink in colour, when the trial commenced. Prosecution has no explanation why MO4 and MO5 did not contain any pink coloured solution. 29. Learned public prosecutor argued that the pink colour would vanish by lapse of time and trial court accepted the [Crl.A. No.1104/2005] 13 contention and proceeded to hold that the discrepancy in the colour of the solution is not material. Trial court also found that in the contemporaneous documents it was recorded that solution had turned pink when the appellant dipped his palm into the Sodium Carbonate solution. I am unable to accept this contention. According to me in the absence of any scientific evidence, materials or authority to show that pink colour would turn colourless by lapse of time and in the absence of any opportunity given to appellant to challenge this fact based on scientific materials, it may not be proper for the court to conclude or accept the contention raised at the time of argument that pink colour would vanish and it would turn colourless by the lapse of time. 30. In this context, the argument raised by learned counsel for appellant is also to be looked into. It is argued that if pink colour can turn colourless, The contents of MO2 must also turn colourless. But the solution in MO2 bottle was pink in colour. This argument cannot be brushed aside lightly. Liquid in MO2, MO4 and MO5 were taken on the same day and more or less at the same time. Those were collected by making the persons who handled MO1 series, the tainted currency notes. It is not comprehensible and it is not explained by prosecution why only [Crl.A. No.1104/2005] 14 the liquid in one of the bottles viz. MO2 remained pink in colour and why in spite of lapse of time, such solution did not turn colourless. 31. If the theory referred to by learned public prosecutor is accepted, it is only reasonable to hold that just like the liquid in MO4 and MO5, turning colourless after lapse of time, the liquid in MO2 also must turn colourless. But MO2 contained pink colour liquid where as MO4 and MO5 contained colourless liquid at the time of examination and this only probablises the defence case that appellant did not accept bribe and that the solution did not turn pink when he dipped his palm in the solution. At least this raises a doubt on the veracity of the evidence given by other witnesses on this aspect. 32. In this context, it is most relevant to note that, as per evidence of PW1, he had kept the currency notes inside a cover and the cover was handed over to appellant. PW1 is not declared as hostile. PW1 is a witness who is owned by prosecution and even now prosecution stands by his evidence. If that be the case, if as a matter of fact, the tainted currency notes were put inside the envelope and it was handed over to the appellant he would not have an opportunity to deal with the currency notes. In that case, there is no possibility for MO4 and MO5 turning pink in [Crl.A. No.1104/2005] 15 colour, So if the evidence of PW1 is accepted, the prosecution case that the solution turned pink on appellant dipping his hand cannot be accepted. 33. But trial court relied upon the evidence of other witnesses like PW2 and PW6 to hold that MO1 series were not kept in an envelope and evidence given by PW2 and PW6 was preferred to that of PW1 on this aspect. I cannot understand the logic behind the said reasoning. The court is not a witness to the trap. The court can come to a conclusion based on the evidence adduced in this case. When any piece of evidence is turning against prosecution it cannot be rejected conveniently and court cannot rely upon some other evidence which is supporting the prosecution case. Such an approach is not proper or acceptable on any known standards of appreciation of evidence. 34. Learned public prosecutor in this context submitted that the colour of the solution depends upon the concentration of the powder which is used for tainting and that may be the reason why solution in MO2 remained pink and solution in MO4 and MO5 turned colourless. This “concentration theory” also cannot be accepted in the absence of any scientific evidence. The court cannot come to any conclusion, particularly on scientific matters, on the basis of any such surmises, in the absence of evidence. It [Crl.A. No.1104/2005] 16 is relevant to note that trial court has not even verified any scientific material to enter a finding that colour may fade by lapse of time etc. 35. The prosecution evidence is thus inconsistent regarding the acceptance of the bribe by appellant. While PW2 and PW6 would say that currency notes were directly handed over to the appellant PW1 gave evidence to the contrary that those were put in a cover and given. The contention raised by appellant that money was thrust in his pocket appears to be supported by evidence adduced in this case, since MO4 and MO5, at the time of trial contain only colourless liquid which would indicate that tainted currency notes might not have been handled by appellant in the light of the nature of evidence adduced in this case. 36. I find it difficult to accept the evidence adduced by prosecution to hold that appellant accepted MO1 series, as alleged by prosecution. In the above circumstances, I find that conviction and sentence passed against appellant cannot be sustained. Prosecution has not proved its case beyond reasonable doubt that appellant demanded and accepted MO1 series from PW1 as a reward or motive for doing the particular acts which are stated in the charge laid by court. Hence the following order is passed: [Crl.A. No.1104/2005] 17 (i) The conviction and sentence passed against appellant under section 7 of PC Act are set aside. (ii) The appellant is found not guilty and he is acquitted of offence under section 7 of PC Act. (iii) The appellant is set at liberty forthwith. This appeal is allowed. Sd/-K. HEMA, JUDGE. Sou. /True copy/ P.A to Judge