Bail Slip The Appellant/Accused namely Bojan was directed to be released on bail as per the order of this Court dated 22.2.2002 made in Crl.M.P.No.1757/2002 in Crl.A.No.214/02. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 17.07.2008 CORAM THE HONOURABLE MR.JUSTICE T. SUDANTHIRAM Criminal Appeal No.214 of 2002 Bojan ..Appellant Versus State represented by The Deputy Superintendent of Police Vigilance and Anticorruption Udhagamandalam, Nilgiris District ..Respondent Criminal Appeal filed U/s.374 Cr.P.C.against the Judgment, conviction and sentence passed by the Special Judge (PC Act)cum District Sessions Judge, Udhagamandalam in SPL.C.C.No.1 of 2001 for the charges under Sections 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act 1988. For Appellant : Mr.S.Ashok Kumar SC for Mr.N.Ishtiaq Ahmed For Respondent : Mr.N.Kumanan Government Advocate (Crl.side) JUDGMENT The appellant stands convicted by the Special Judge for Prevention of Corruption Act -cum- District Sessions Judge, Udhagamandalam in Spl.C.C.No.1of 2001, for the offences under Sections 7, 13(2) r/w 13(1))(d) of the Prevention of Corruption Act and sentenced to undergo one year and to pay a fine of Rs.1000/- in default to undergo imprisonment for four months. 2. The case of the prosecution in brief is that P.W.2 Ravichandran who is the resident of Kangadu Village was owning land of 3.5 acres which was originally owned by his mother, https://hcservices.ecourts.gov.in/hcservices/ subsequently it was transferred to his name by way of settlement, has wanted to grow tea plants in his field and in order to get the subsidy, he approached the office of the tea board on 04.08.1999 and in the office he was given an application and he was asked to submit it with the certificate from the Village Administrative Officer that he was holding the vacant land. Then he came to Udhagamanalam at about 3.00p.m., and went to the office of the Village Administrative Officer wherein the Village Administrative Officer/accused was present. According to P.W.1, the accused/VAO was known to P.W.2, since the elder brother of P.W.2 and the accused have married the sisters. P.W.2 after informing the accused/Village Administrative Officer, that he wanted land holding certificate with the sketch, he was asked to come to the office on 09.08.1999. When he went on that day and inquired about his application, the accused demanded a sum of Rs.500/-. The accused also informed him that it would take another ten days to fill up the application. On 20.08.1999, at about 11.00a.m., P.W.2 went to the office of the accused. The accused demanded for the money and P.W.2 informed that he was not having so much of money and he was prepared to give Rs.300/-. The accused told P.W.2 that the application was not made ready and asked him to come on 24.08.1999 with the amount of Rs.500/-. On 23.08.1999 at 3.30p.m., P.W.2 went to the Vigilance Office and handed over the written complaint, Ex.P.2. P.W.7, the Deputy Superintendent of Police on receiving the complaint, registered the case and prepared the First Information Report, Ex.P.14. P.W.2 was asked to come on the next day morning. P.W.7 also informed and arranged for the mahazar witnesses. On the next day P.W.3 - Thangaraj, Bhaskar and also P.W.2 came to the office of P.W.7. P.W.7 informed about the Phenolphthalein test to the witnesses and he also noted the number of Rs.500/- currency notes M.O.1 series. P.W.3 was also informed to accompany P.W.2 and watch the proceedings. P.W.2 also was informed to give signal of removing the muffler from his neck and again by putting around the neck. The entrustment mahazar Ex.P.3 was prepared at about 8.25a.m., and the party went to the office of the accused and reached the place at 9.40a.m. The vehicle was stopped near the coffee house. P.Ws.2 and 3 walked up to the office. At that time, the accused was not present. After waiting for 10 minutes, at about 10.10a.m., the accused came there. P.W.2 questioned the accused whether the application was filled up. Then the accused enquired about P.W.3 and he was informed that P.W.3 was having a tea nursery at Coonoor. P.W.2 was asked to come alone after half an hour. After 20 minutes, P.W.2 alone entered into the office and enquired about the application form and the accused demanded the money. P.W.2 handed over the amount of Rs.500/- to the accused and the accused counted it. The accused also informed P.W.2 that the application was not filled up and asked him to come on the next day. P.W.2 came out of the office and gave the pre arranged https://hcservices.ecourts.gov.in/hcservices/ signal by removing the muffler from his neck and putting it around the neck. Then P.W.7 and others rushed to the office. The accused was identified by P.W.2 and P.W.2 was asked to remain outside. Sodium Carbonate solution was prepared and the accused was asked to dip his right hand finger and the solution turned pink. Again another solution was prepared and the accused was asked to dip his left hand fingers in another tumbler and that solution also turned pink. When the accused was asked about the money, he took out from his right side pant pocket. P.W.7 after following the formalities arrested the accused at 1.00p.m., and also prepared the recovery mahazar Ex.P.6. The sketch also was prepared which is marked as Ex.P.15. Then the house of the accused was also searched. On 25.05.1999, P.W.8 Inspector of Police, took up further investigation. He examined the witnesses, seized the necessary records after completing the investigation filed the final report after getting sanction on 13.02.2001. 3. The prosecution has examined 8 witnesses, marked 8 exhibits and produced 7 material objects. The accused was questioned under Section 313 Cr.P.C, with regard to the incriminating circumstances available against him and he had denied his complicity. 4. The accused has stated that the land was in the name of P.W.2's mother and there was a joint patta. The land was also given to P.W.2 by his mother. The land tax was not paid by people. Only at the time of obtaining loan, for that purpose people used to pay the land tax. He had arranged for change of patta in the name of P.W.2. P.W.2's elder brother's wife and his wife are sisters. He also further stated that the elder brother and his wife were living separately. After receiving the money, before he could give the receipt, P.W.2 had left the place. The accused also examined the brother of P.W.2 Haldurai as D.W.1. 5. Mr.S.Ashok Kumar, learned Senior Counsel appearing for the appellant/accused submitted that the evidence of P.W.2 with regard to the demand and acceptance of the bribe amount by the accused stands uncorroborated. P.W.2 was inimical towards the accused and he had utilized the opportunity. The learned Senior counsel further pointed out that the evidence of D.W.1 establishes the fact that the family of P.W.2 owned joint patta land and there were Kist arrears. The learned Senior Counsel vehemently contended that the trial Court having held that the evidence of P.W.2 is artificial and he was capable of giving false evidence before the Court and the trial judge observed that his evidence should be carefully considered; instead of analysing and discussing the evidence of P.W.2 merely accepted. The learned Senior counsel submitted that in view of the fact that there was a joint patta land in the name of P.W.2's mother and there were https://hcservices.ecourts.gov.in/hcservices/ arrears of land tax and P.W.2 was motivated, had utilized the opportunity and under the guise of tax arrears paid the amount of Rs.500/-. The learned Senior counsel emphasized his argument by stating that P.W.3 was specifically instructed to accompany P.W.2, but he had been deliberately kept away by P.W.2 at the time of making the payment and P.W.3 who is the official witness conveniently had stated that instead of watching the occurrence had moved out of that place. 6. Reliance was placed by the learned senior counsel on the following decisions: a. 1974 Crl L J 307 (Darshan Lal v. The Delhii Administration) b. 1992 Crl L J 490 (Som Parkash v. State of Punjab) 7. The learned Government Advocate (criminal side) submitted that the animosity of P.W.2 against the accused is not established and as the accused had accepted the receipt of the bribe amount, the inference is to be drawn under Section 20 of the Prevention of Corruption Act. It was further submitted that the explanation given by the accused that the amount was given towards land tax for the joint patta land is not established by any documents. 8. This Court considered the rival submissions made by both parties and also perused the records. 9. Admittedly with regard to the demand of bribe amount and its acceptance by the accused is spoken only by P.W.2. Normally though there may not be any other witnesses available by way of corroboration for the earlier demands, at the time of trap, the independent mahazar witness who accompanied the decoy witness would be available. In this case, P.W.3 the mahazar witness was specifically instructed to accompany P.W.2 and it was also informed to him that if he was questioned by the accused, it should be said that he was selling tea at Coonoor. 10. Now it is the prosecution case that the accused came from outside and having seen P.Ws.2 and 3 at the entrance and after enquiring about P.W.3, he had informed P.W.2 to come alone inside the union office after half an hour. As such, P.W.2 alone had gone inside and P.W.3 did not accompany. The reason which is now given for P.W.3 not accompanying P.W.2, is not mentioned in Ex.P.6 recovery mahazar. P.W.7, the Deputy Superintendent of Police also not enquired P.W.3 about it immediately after the occurrence. P.W.3 also admits that he was knowing about the importance of the instruction that was given to him to accompany P.W.2. He also admits that he was not directly instructed by the accused not to enter the office. He admits that he had not made https://hcservices.ecourts.gov.in/hcservices/ any attempt to watch the happenings standing from the outside. P.W.3 conveniently stated that he had moved away from the entrance and gone to the Saloon shop. As per the plan, Ex.P.15 prepared by P.W.7, the saloon is on the western side of the entrance of the office. It is not known as to why P.W.3 had moved away in that direction. The evidence of P.W.3 himself raises some suspicion about the prosecution case. 11. With regard to the evidence of P.W.2, though he had not mentioned in his complaint Ex.P.2 that the accused was known and related to him, it is an admitted fact that the wife of the accused and P.W.2s elder brother's wife are sisters. P.W.2's elder brother Natarajan and his wife were not living together and there was some family dispute. At the same time, it cannot be ruled out that P.W.2 had no reason to go against the accused. On analysing the evidence, the trial Court also held that the evidence of P.W.2 saying that he was knowing only about five or six years prior to the occurrence that his brother and wife were living separately is very unnatural. 12. The trial Court also held that P.W.2 was deposing falsely before the Court and as such his evidence should be carefully analysed. Though the trial Court said that P.W.2's evidence should be carefully analysed, it has not made any attempt to seek for corroboration for the evidence of P.W.2. The next question is how far the version of the defence should be accepted against the uncorroborated evidence of P.W.2. It is the case of the defence that people were not in the habit of paying land tax until when they are approached. According to the defence, though it was explained to P.W.7, the Deputy Superintendent of Police immediately after the trap, he had not made any note of it. P.W.7, the Deputy Superintendent of Police admits in his cross examination that he had not questioned the accused as to why he received the money and he has not recorded any statement. The shameful answer given by P.W.7 that as per the office regulation, the officer should enquire about the receipt of the money and he must record it in the mahazar and also record the statement, but he had not followed the procedures in this case. Even it is to be said that the defence has not established its version with strong materials as the prosecution case is already weak, the defence case makes further dent in the prosecution case. 13. In the decision of the Honourable Supreme Court in Darshan Lal vs. The Delhi Administration reported in (1974 Crl.L.J. 307), it has been held as follows; "5. ..........There is thus no independent reliable corroboration of the statements of Niranjan Lal and Anand Behari Lal as regards the first offer. Lastly, https://hcservices.ecourts.gov.in/hcservices/ in this background it was proper to look for unimpeachable evidence as to the passing of the currency note from Niranjan Lal to the appellant. We have already indicated certain important circumstances which cast doubt on that story. 6. Having regard to all these circumstances, we think it is a fit case where the courts below should have required independent and trustworthy corroboration of the evidence of Niranjan Lal and Satish Chandra who had laid the trap. In Ram Prakash Arora v. State of Punjab, AIR 1973 SC 498 at p.501 this Court, speaking about the evidence of trap witnesses, observed: "(They) were interested and partisan witnesses. They were concerned in the success of the trap and their evidence must be tested in the same way as that of any interested witness and in a proper case the court may look for independent corroboration before convicting the accused person". As there is no such corroboration, the appellant should be given the benefit of doubt." 14. In the decision the Honourable Supreme Court in Som Parkash vs. State of Punjab reported in (1992) Crl.L.J 490), it has been held thus; "2. The High Court found that the witnesses who were associated in the conduct of the raid for recovery of tainted money from the appellant could not be termed as independent who could be associated with such raids. The High Court further expressed doubt about money was actually handed over in his presence. The High Court, however, drew an adverse inference against the appellant from the circumstance that the bill which was delayed for unreasonable period had suddenly been passed by the appellant. On an overall assessment the High Court entertained some suspicion about the credibility of the prosecution witnesses but at the same time, did not find the suspicion to be strong enough to raise doubt about the guilt of the appellant. We agree with the learned counsel for the appellant that in the face of the finding that the witnesses who formed part of the raiding party were not independent and the evidence regarding handing over money to the appellant being unbelievable. The conviction of the appellant cannot be sustained." 15. In the decision of the Honourable Supreme Court in V.Venkatasubbarao v. State represented by Inspector of Police https://hcservices.ecourts.gov.in/hcservices/ reported in (2007 AIR SCW 9), it is held as ".........In the absence of a proof of demand the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of presumption only if a demand is proved." 16. In this case, as the credibility of the evidence of P.W.2 is in question and as such it is not corroborated and also as his evidence is not corroborated by any evidence of any independent witness and also as there are certain infirmities in the prosecution case, this Court holds that the prosecution has not proved the demand and acceptance of bribe amount by accused beyond reasonable doubt. 17. In the result, the benefit of doubt is given to the accused. The conviction and the sentence imposed on the accused are set aside and the appeal is allowed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ksr To 1. THE SPECIA JUDGE PC ACT CUM DISTRICT & SESSIONS JUDGE, THE NIGIRIS AT UTHAGAMANDALAM. 2. THE DISTRICT AND SESSIONS JUDGE- CUM -CHIEF JUDICIAL MAGISTRATE, THE NILGIRIS AT UTHAGAMANDALAM. 3. THE DY. SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION, UTHAGAMANDALAM. https://hcservices.ecourts.gov.in/hcservices/ 4. THE PUBLIC PROSECUTOR, HIGH COURT, MADRAS. +1cc to Mr.N.Ishtiaq Ahmed, Advocate Sr 37839 KU (CO) km/29.7. Criminal Appeal No.214 of 2002 https://hcservices.ecourts.gov.in/hcservices/