IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.10.2009 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A.No.217/2004 State by Inspector of Police Vigilance & Anti Corruption, Tiruchirappalli Appellant/Complainant Vs Magalingam Respondent/Accused Prayer:- This Criminal Appeal is filed against the judgement dated 15.9.2003 in CC.No.6/2000 on the file learned Special Judge/ Chief Judicial Magistrate, Perambalur and to set aside the order of acquittal and convict the accused as charged. For Appellant : Mr.Hasan Mohammed Jinnah, APP For Respondent : Mr.Abudukumar Rajaratnam for Mr.T.Karthick Srinath ORDER The Appellant, who is the State represented by Inspector of Police, Vigilance and Anti Corruption, Tiruchirappalli has filed this Criminal Appeal against the judgement dated 15.9.2003 in Spl.CC.No.6/2000 passed by the learned Special Judge/Chief Judicial Magistrate, Perambalur, acquitting the Respondent/accused for the offence punishable under Section 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (herein after referred to as the Act). 2. The Respondent was working as a Village Administrative Officer of Edayakurichi Village, Udayarpalayam Taluk, Perambalur District. The charge against him was that five days prior to 16.9.1998 and on 16.9.1998 demanded Rs.200/- as illegal gratification from PW.2 in order to transfer the patta for a property purchased in his wife's name, by keeping the kosa form meant for transfer of patta without processing it and when PW.1 expressed his inability to pay the said sum, the accused reduced the amount to Rs.100/- and received the said sum from PW.1 on 17.9.1998 at about 10.45 a.m. at his office, thereby committed the offence under Section 7 and 13(2) read with 13(1)(d) of the Act. 3. The Prosecution in order to bring home the above said charges against the accused examined Pws.1 to 6, marked Exs.P1 to https://hcservices.ecourts.gov.in/hcservices/ P10 and Mos.1 to 5. 4. The case of Prosecution is as follows:- The complaint in this case is said to have been given by PW.2 to PW.5 the Inspector of Police, Vigilance and Anti Corruption on 16.9.1998 at 5.15 p.m. and the case has been registered in Cr.No.5/98 under Section 7 of the Act. Ex.P2 is the report and Ex.P3 is the FIR. 5. PW.2 in this case has turned hostile and he has admitted only the signature in the complaint and stated that he wrote the complaint on being dictated by the police. The report discloses that PW.2 has purchased property in his wife's name and applied for transfer of patta. The kosa form meant for transfer of patta was pending with the accused. The accused had met PW.2 in the bazaar at Edayakurichi on 11.9.199, took him to his office and told him that kosa form is pending with him and had demanded Rs.200/- as illegal gratification for processing the same. He had reiterated his demand on 16.9.1998 when he met PW.2 in his office and reduced the demand amount to Rs.100, since PW.2 expressed his inability to pay the gratification of Rs.200/-. The accused then asked PW.2 to bring Rs.100/- along with his paternal uncle on the next day, but PW.2 had told him that his paternal uncle was working as a teacher and he cannot get leave. To that, accused told him to bring the money and a xerox copy of the sale deed. But, as PW.2 was not willing to give gratification, he has approached the Vigilance Police and gave the complaint Ex.P2. 6. PW.5 on receipt of the said complaint registered a case in Cr.No.5/1998 and prepared Ex.P3 FIR and decided to conduct trap as accepted by PW.2. PW.5 summoned the witness PW.3, Assistant in the Office of the Executive Engineer, Technical Education Circle, I, Tiruchirappalli and PW.4 Junior Assistant in the Highways Department. PW.5 received two fifty rupees notes from PW.2 and demonstrated the phenolphthalein test to PW.2 and the witness summoned by him. PW.5 gave the amount of Rs.100/- smeared with phenolphthalein powder to PW.2 and instructed him to give the amount if the same is demanded by the accused and thereafter, to come out from the place of the accused and to give the prearranged signal by folding his sleeves of his shirt. He also instructed Pw.3 to accompany PW.2 to watch the conversation and told PW.2 to say that PW.3 has come to get visa to Dubai. 7. In respect of the proceedings held at the Vigilance Office, PW.5 prepared the entrustment mahazar Ex.P4. The raiding party, PW.5 and others including PW.2 and 3 left for Elayakurichi from Tiruchirappalli at 6.15 a.m. and reached there at 10.15 a.m. PW.5 instructed PW.2 and PW.3 to go to the office of the accused. According to PW.2, he alone was dropped at a distance of 1 furlong before the office and he entered into the office of the accused at 10.45 a.m. At that time, the accused was said to have been talking https://hcservices.ecourts.gov.in/hcservices/ to DW.1 Chinnadurai. PW.2 enquired with the Accused about the kosa form to which the accused had asked him whether he has brought his paternal uncle and about the xerox copoy of the document which he was instructed to bring to the Office. PW.2 has alleged that he immediately thrust the currency notes into his pocket and left the office, but the accused called him saying that he did not ask any money. But, PW.2 left the office without responding to him. When he came out, the raiding party asked him whether he had given the money to the accused to which he replied that he had kept the money in his pocket. 8. According to the Prosecution, PW.2 came out and gave the signal as per the prearranged plan and PW.5, PW.4 along with the raiding party entered inside and PW.2 identified the accused to PW.5. PW.2 was sent out and PW.5 introduced himself as a Vigilance Officer to the accused, who started sweating and was found perturbed. The accused admitted the receipt of the amount from PW.2. Thereafter PW.5 conducted phenolphthalein test and when the hands of the accused were dipped into the solution, it turned into light pink colour. Then PW.5 prepared a mahazar Ex.P5 and seized the shirt MO.5. He also seized the copy of the sale deed under Ex.P4 mahazar which was duly signed by the witnesses PWs.3 and 4. He drew a rough plan Ex.P9. He also seized the kosa form under Ex.P8. Thereafter, he arrested the accused at 1.00 p.m. and brought the accused to his house and conducted a search of his house and no incriminating material was seized. Thereafter, PW.5 prepared Ex.P7 in regard to the search made in the house of the accused. 9. PW.5 stated about the proceedings to PW.6 Inspector of Police and sent the accused to remand. PW.6 took up further investigation and complied with formalities, examined the witnesses and received the chemical analysis report Ex.P10. After completing investigation, obtained sanction order Ex.P1 from PW.1 and recorded his statement. He filed the charge sheet against the accused on 16.10.2000 for the offence under Section 7 an 13(2) read 13(1)(d) of the Act. 10. When the accused was questioned under Section 313 of Cr.PC in respect of the incriminating materials appearing against him, the accused denied the same and stated that he has been falsely implicated and examined one Chinnadurai as DW.1 who is said to have been present in the office of the accused at the relevant point of time. 11. The learned trial judge after analysing the evidence and the materials placed on record acquitted the accused as against which, this Criminal Appeal is filed. 12. Mr.Hasan Mohammed Jinnah, the learned Additional Public Prosecutor vehemently contended that since because the complainant turned hostile, that does not completely efface his https://hcservices.ecourts.gov.in/hcservices/ evidence and his evidence would remain admissible, as there is no legal bar to base a conviction upon his testimony, more so, when his evidence is corroborated by PWs.3 to 6. He would submit that the Trial Court has got itself misplaced in not considering PW.3 and PW.4 as independent witnesses. 13. In support of the above said submissions, the learned Additional Public Prosecutor placed reliance on the decision of the Honourable Supreme Court rendered in the case of Ram Ishwar Choudhary Vs. State of Bihar [2000-10-SCC-157], wherein the Honourable Supreme Court rejected the contention that the official witness in the trap case is not an independent witness. The learned Additional Public Prosecutor pointed out to the observation made by the Honourable Supreme Court that the Consolidation Officer (official witness) must also be held to be an independent witness, inasmuch as he was in no way concerned with the success of the trap that was laid by the raiding party. 14. Per contra, Mr.Abudukumar Rajarathinam, the learned counsel for the Respondent contended that the official witness forming part of the raiding party in the present case cannot be treated as an independent witness, as there is no material produced by the Prosecution to prove that he had taken permission from his superiors for being a witness to the trap and brought the attention of this court to the relevant portion in his cross examination as under:- @v';f mYtyfj;jpy; cs;s braw;bghwpahsh; y";r xHpg;g[ Jiwf;F mDg;g cj;jputpl;lhh;/ mJ tha;bkhHp cj;jput[jhd;/ md;iwa jpdk; tUif gjpntl;oy; mYtyf fhuzkhf nghtjhf Fwpg;g[ vJt[k; vGjtpy;iy/ btspapy; mDg;ggl;lhy; mjw;fhd Fwpg;g[ tUif gjpntl;oy; Fwpg;gpLthh;fs;/ vd;why; rhpjhd;/ btspa{h; brd;wjw;fhd o/V/. l;o/o/V vJt[k; th';ftpy;iy/ mJ khjphp vJt[k; fpisk; bra;atpy;iy/ vd;id mYtyf $Pg;gpd; K:ykhf miHj;J brd;wjhy; vJt[k; fpisk; bra;atpy;iy/ ehdl o/V bgwyhk; Mdhy; mij fpisk; bra;atpy;iy/@ 15.Referring to the above said evidence, the learned counsel for the Respondent contended that he cannot be termed as an independent witness, inasmuch as the Prosecution failed to prove that PW.2 obtained prior permission from his higher authorities to be a witness to the trap. 16. The learned counsel for the Respondent relied upon the decision of the Honourable Supreme Court rendered in the case of Som Parkash Vs. State of Punjab [1992-Supp-1-SCC-428], wherein it has been held that witness forming part of the raiding party found to be not independent. https://hcservices.ecourts.gov.in/hcservices/ 17. It is relevant to state that PW.2 being a Government servant is not supposed to associate himself with the raiding party, unless he gets proper permission from his superiors. He has not claimed dearness allowance though he had spent the whole day for the said purpose nor applied leave. This entertains a strong suspicion about the credibility of this witness more so when PW.2 has denied the accompaniment of PW.3 with him to the office of the accused at the relevant point of time. In the said context, he cannot be termed as an independent witness. In fact, the Honourable Supreme Court in the decision reported in 2000-10-SCC- 157 cited supra on facts in the said case has found that the official witness must be held to be an independent witness as he was in no way concerned with the success of the trap. In the present case, as there is no evidence to show that he participated in the trap as a witness only on the instruction of his superior, it cannot be said with certainty that he is an disinterested witness. 18. The learned Additional Public Prosecutor would contend that having regard to the evidence of Pws.3 to 6 and to some extent the evidence of PW.2, it cannot be said that all the ingredients of commission of offence under Section 7 of the Act have not been proved. He drew the attention of this court to the provisions of Section 20 of the Act that the burden of proof was on the accused and as there is no plausible explanation from the accused as to how the amount of Rs.100/- was found in his pocket, the trial court ought not to have recorded a judgement of acquittal in his favour. Incidentally, he pointed out to the testimony of PW.2 and Dw.1 that Pw.2 had stated that he thrust the notes into his pocket, whereas DW.1 would state that when PW.2 tried to put the notes into his pocket, the accused prevented him due to which the said notes fell on the table of the accused. 19. Indisputably, the standard of burden of proof on the accused vis-a-vis standard of proof on the Prosecution would differ and before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the Prosecution. 20. In an unreported judgement of Honourable Supreme Court in the case of State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede delivered on 29.7.2009 in Crl.A.No.1350/2009, the Honourable Supreme Court has observed that the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. 21. In a recent judgement of the Honourable Supreme Court rendered in the case of Noor Aga Vs. State of Punjab and another [MANU-SC-2913-2008], the Honourable Supreme Court after elaborately discussing about the presumption of innocence and reverse burden on referring to National and International Law extensively held https://hcservices.ecourts.gov.in/hcservices/ that the presumption of innocence being a human right cannot be thrown aside, but it has to be applied subject to exceptions. Their Lordships held at paragraph 17 of the judgement as below:- "17. The presumption raised against the trader is rebuttable one. Reverse burden as also statutory presumptions can be raised in several statutes as, for example, the Negotiable Instruments Act, Prevention of Corruption Act, TADA, Etc. Presumption is raised only when certain foundational facts are established by the Prosecution..... 21. From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirements of mens rea. But the substance and effect of any presumption adverse to a Defendant must be examined and must be reasonable. Relevant to any judgement on reasonableness or proportionality will be the opportunity given to the Defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case." [Emphasis added] 22. In the present case, PW.3 is one of the witnesses in respect of demand and receipt of illegal gratification by the accused and he is said to have accompanied PW.2 to the Office of the accused. As already pointed out, the Prosecution case in respect of the demand of illegal gratification and receipt of the amount solely rest on the evidence of PW.2 and his report Ex.P1, but he disowned the contents of the report, except admitting his signature and said that he wrote the contents of the complaint as directed and dictated by the police officer. It is well settled by a catena of decisions of the Honourable Supreme Court that the evidence of a hostile witness cannot be rejected in toto and any portion either in favour of the Prosecution or in favour of the defence can very well be placed reliance. https://hcservices.ecourts.gov.in/hcservices/ 23. In the light of the said principles laid down by the Honourable Supreme Court, the evidence of PW.2 has to be scrutinized. It is the version of PW.2 even in chief examination that in the bazaar when the accused happened to see him, he informed that he has received the kosa form and asked him to bring his paternal uncle so as to enquire him with regard to the sale. But, PW.2 told him that his paternal uncle would not be in a position to come and the accused insisted him to bring the xerox copy of the sale deed which made him to presume that the accused deliberately dodging for the sake of money and on the said presumption, gave the complaint. His version is that he alone went to the office of the accused. He has further stated that he thrust the currency notes in the left side of the pocket of the accused. 24. PW.3 has stated that the accused on coming to know that he is being trapped started sweating and found perturbed, but he has contradicted the same in his cross examination by denying the said fact. His presence at the office of the accused has been disputed by PW.2 and in the light of the admission made by PW.3 that he has not obtained any written permission from his superior, not recorded about his participation as a witness in the trap either in the attendance register or in the movement register, nor claimed any dearness allowance would lead to an adverse impact on the Prosecution evidence and his testimony does not lend credibility to the Prosecution case. 25. Another significant factor in this case is that the material part of evidence relating to the phenolphthalein test conducted at the office of the accused while receiving the notes and the consequent result has not been put to the accused while he was examined under Section 313 of Code of Criminal Procedure. Failure to put to the accused specifically, distinctly and separately such material circumstances appearing in evidence against the accused amounts to a serious irregularity and omission to question the accused on important incriminating circumstance would only lead to the exclusion of that evidence from consideration. 26. In the said context, it is important to refer to the judgement of the Honourable Supreme Court in Shivaji Sahabrao Vs. State of Maharashtra [1973-2-SCC-793], wherein a three Judge Bench of the Honourable Supreme Court has widened the sweep of the provision concerning examination of the accused after closing Prosecution evidence. Their Lordships in that case were considering the fallout of omission to put to the accused a question on a vital circumstance appearing against him in the Prosecution evidence. The Three Judges Bench Made the following observations therein:- "It is trite law, nevertheless fundamental that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain https://hcservices.ecourts.gov.in/hcservices/ it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction." 27. In the instant case, there was no reference to the said main incriminating material, which is the foundation of the Prosecution case and that material has not been brought to the notice of the accused, which vitiates the proceedings and cause serious prejudice to the accused. 28. Considering the entire evidence placed on record, the Prosecution case must be held to be lacking in credibility and the trial court has rightly acquitted the Respondent giving him the benefit of doubt. I do not find any infirmity or illegality in the said findings of the Trial Court. 29. In the result, this Criminal Appeal is dismissed. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar Srcm https://hcservices.ecourts.gov.in/hcservices/ To: 1.The Special Judge/Chief Judicial Magistrate, Perambalur 2.The Public Prosecutor, High Court, Madras 1 cc To Mr.T.Karthick Srinath, Advocate, SR.56770. Order in Crl.A.No.217/2004 MBS {CO} TP/29.10.2009. https://hcservices.ecourts.gov.in/hcservices/