THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN Criminal Appeal No.453 of 2009 State represented by The Inspector of Police, Vigilance and Anti – Corruption, Cuddalore.
(Crime No.9/2004) .. Appellant Vs G.Janardhanan .. Respondent Prayer:- Criminal Appeal filed under Section 378 against the judgment dated 31.12.2008 in Special Case No.4/2005 on the file of the learned Special Judge/Chief Judicial Magistrate, Villupuram.
For Appellant : Mr.R.Ravichandran, Government Advocate (Crl.side) For Respondent : Mr.B.Kumar, Senior Counsel for Mr.A.Jeenasenan JUDGEMENT This criminal appeal filed under section 378 of the Code of Criminal Procedure is against the judgment of acquittal dated 31.12.2008 in special case No. 4/2005 on the file of learned Special http://www.judis.nic.iJnudge/ Chief Judicial Magistrate, Villupuram.
2. The case of the prosecution is that, the accused/respondent Mr.G.Jananarthanam, while serving as Sub-Inspector of Police at Kandachipuram Police Station, Villupuram District, during November 2003, booked a prohibition case against Mr.Seetharaman @ Seetha and Mr.Chinnathambi. As per the First Information Report, on 25.11.2003 at about 01.30 hours, Mr.Seetharaman @ Seetha and Mr.Chinnathambi were transporting 120 litres of illicit liquour in a Two wheeler - TVS XL bearing registration No. TN 25 B 7403. When they were intercepted by the respondent who was on patrolling duty, the duo abandoned the Two wheeler and the contraband and fled away from the scene of occurrence. In this regard, a case was registered under Cr.No.447/03 and the same was pending investigation and the Police were in search of the absconding accused. While so, the respondent on 26.05.2003, visited the house of Mrs.Saroja and enquired about the whereabouts of her son Mr.Seetharaman @ Seetha. When he was informed that Mr.Seetharaman @ Seetha is at Bangalore, he has directed Mrs.Saroja to produce her son, within a week, if not, he will foist a false case against her. So, after a week, on 01.06.2004, Mrs.Saroja went to the residence of the respondent and told him that her son is at Banagalore and requested not to insist on his presence but, to close the file without further action. For which, the respondent has demanded Rs.3,000/- from her. Since, Mrs.Saroja was not inclined to give bribe, she has approached the appelant and reported about the demand of illegal gratification.
3. The appellant Police immediately arranged for a trap. On 02.06.2004, two independent witnesses were called, currency were smeared with phenolpthalein and Mrs.Saroja was instructed to give the tainted money to the respondent, on demand.
4. Accordingly, Mrs.Saroja went to the respondent house along with one Ms.Athilakshmi, an Assistant in Education Department on 02.06.2004 at about 6.45 hrs. The respondent opened his house at 7.30 am. On seeing Mrs.Saroja, he asked, 'Whether she has brought the money, he demanded ? In response, she gave the tainted money to the respondent which was witnessed by Ms.Athilakshmi. After handing over the money both of them left the house of the respondent. Mrs.Saroja gave the pre-agreed signal to the Police and thereafter, the appellant Police went into the house of the respondent. Introduced themselves, asked the respondent/accused to dip his hands in the plain water. Which turned purple indicating the presence of phenolpthalein. On further introgation, based on the information given by the respondent, they recovered the tainted money kept in the self above refrigerator in the dining hall. Since, the respondent being a public servant and being prosecuted for offence under Sections 7 and 13 (1) (d) of the Prevention of Corruption Act, sanction under Section 19 was obtained to prosecute from the competent authority and final report has been filed.
5. To prove the charges, the prosecution has examined 15 witnesses; marked 20 documents and 3 meterial objects . On behalf of the accused/respondent two witnesses were examined and one document was exhibited.
6. The defacto complainant Saroja (PW-2), her son Mr.Seetharaman @ Seetha (PW-4) and one Mr.Pon.Kumar (PW-6) were declared hostile by the prosecution. The demand of money spoken by the accompanying witness Ms.Athilakshmi (PW-3) not corrobarated by any other evidence. Hence, on appreicating the evidence, the trial court has held that the prosecution has failed to prove the charges beyond reasonable doubt that the accused by corrupt or illegal means, obtained any pecuniary advantage. Hence, aquitted the accused. Challenging the same, the State has preferred the present Criminal Appeal.
7. The learned Government Advocate (crl.side) appearing for the appellant contented that, Ms.Athilakshmi – PW-3, the independent cum accompanying witness evidence is highly reliable and there is no reason to disbelieve her evidence. Even Mrs.Saroja - PW-2 though treated as hostile witness by the prosecution, her evidence on cumulative reading clearly indicates the demand of illegal gratification by the respondent/accused. The pendency of Prohibition Case Cr. No.447/2003 against PW-4 and PW-5 is admitted and proved through Ex P-14 to Ex P-17. The visit of the respondent/accused to the house of PW-2 on 26.05.2004, is proved through PW-2 and PW-6 though, both were treated hostile for not supporting the case of the prosecution, on other facts. The demand of money made by the respondent/accused on 02.06.2004 is proved through PW-3. The phenolpthalein test made on the hands of the respondent/accused proved positive and the same has been recorded in Ex P-4 a contemporaneous document. Since, the recovery of tainted money from the respondent/accused house is undistputed and the accused has failed to give any plausible explanation for the receipt of money from PW-2, it is sufficient to presume that it has been taken as pecuninary advantage to do an illegal act, in the course of discharging his official function.
8. Refering the judgment of the Hon'ble Supreme Court in State of UP -vs- Zakaullah (1998 (1) SCC 557), the learned Government Advocate (crl.side) submitted that, the rquirement to have an independent witness to corroborate the evidence of the Police is to be viewed from a realistic angle. Every witness must be presumed to be an independant witness until, it is proved that he was a dependant of the Police or interested witness for any purpose whatsoever. Therefore, the evidence of PW-3 – Ms.Athilakshmi and the evidence of PW-14 – Mr.Rajendiran, the trap laying Officer, coupled with the undisputed fact of recovery of tainted money from the residence of the accused is suffice to hold that the accused is guilty of receipt of pecuniary advantage.
9. In the judgment cited supra, the Hon'ble Supreme Court while dealing with the State Appeal against the judgment of the High Court reversing the conviction judgment of the Trial Court, has observed as follows:-
“10.The necessity for "independent witness" in cases involving police raid or police search is incorporated in the statute not for the purpose of helping the indicted person to bypass the evidence of those panch witnesses who have had some acquaintance with the police or officers conducting the search at some time or the other Acquaintance with the police by itself would not destroy a man s independent outlook. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty or for any other matter, it cannot be said that those are not independent persons. Of the police in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action. The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed to be an independent person until it is proved that hew was a dependent of the police or other officials for any purpose whatsoever.(Hazari Lal vs. Delhi Administration : 1980 (2) SCR 1053).
http://www.judis.nic.in 11.The most important evidence is that of PW-4 - Harendra Singh Sirohi, the Superintendent of Police who arranged the trap. We must mind the fact that he had no interest against the respondent. But the verve shown by him to bring his trap to a success is no ground to think that he had any animosity against the delinquent officer. He made arrangements to smear the phenolphthalein powder on the currency notes in order to satisfy himself that the public servant had in fact received the bribe and not that currency notes were just thrust into the pocket of an unwilling officer. Such a test in conducted for his conscientious satisfaction that he was proceeding against a real bribe taker and that an officer with integrity is not harassed unnecessarily.”
10. Per contra, the learned Senior Counsel appearing for the respondent/accused would submit that, the defacto complainant's son Mr.Seetharaman @ Seetha who was earlier convicted for bootlegging and absconding accused in the subsequent case registered in Cr.No.447/03 was evading arrest and the respondent was after him. Knowing that, in order to save her son (P.W.4) from the arrest and prosecution his mother, PW-2 and his close friend PW-6 tried to influence the respondent and attempted to give bribe which was turned down by the respondent. It is admitted by both the witnesses PW-4 and PW-6 that they requested the respondent/accused to drop action against Mr.Seetharaman @ Seetha, without insisting upon the physical presence of the absconder Mr.Seetharaman @ Seetha but, he refused. Since, the respondent/accused refused to yield to their pressure and insisted upon the physicial presence of the absconder, false complaint of demand of bribe money was registered and the money was forcibly kept in the sofa at the house of the accused/respondent by PW-2 and left the house.
11. The learned counsel further contended that, the evidence of PW-3 is totally unreliable not because she is a pre-arranged witness by the prosecution, because, her persence at the scene of occurance itself is doubtful. While PW-2 has deposed that when she went inside the accused/respondent house, PW-3 was standing outside the compound. The erroneous description by PW-3 regarding the physical feature of the respondent house, the contradiction with PW-2 about the demand of money makes her evidence unworthy of consideration.
12. The learned Senior Counsel apperaing for the respondent would speciifically point out that, both PW3–Ms.Athilakshmi and PW-14 – Mr.Rajendiran, the trap laying Officer, have deposed in their chief examination that after getting the pre–agreed signal from PW-2, they entered into the house of the accused/respondent. The respondent found very perplexed so, PW-14 held his hand and passified him and put him in sofa before starting the interrogation. Only thereafter, the respondent was asked to dip his hand in the water for phenapthalien test.
13. The conjoint reading of these part of the deposition along with P.W.2 evidence that the accused/respondent refused to take the money offered, so she kept the money on the sofa and came out would very well establish that the money was neither demanded nor accepted as a illegal gratification by the accused/respondent. The phenapthalein test has proved positive because, the trap laying Officer has held the hands of the accused before he was subjected to phenapthalin test.
14. The learned Senior Counsel appearing for the respondent further contented that, in a case of recovery of vehicle, without the presence of accused, the case cannot be closed. Since, PW-2 wanted to close the case against her son Nr.Seetharaman @ Seetha, the respondent was insisting upon the production of the absconding accused. This fact is admitted by the witnesses PW-2 and PW-6. It is also elucidated through the witnesses that, in a prohibition case, some of the accused accept their guilty and be ready to pay fine. In such cases, the Police used to arrange some Advocates for the accused to accomplish the same. The alleged demand of money was for the said purpose and even for such sort of disposal, the presence of the accused is necessary. Since, PW-2 was not ready to produce her son Mr.Seetharaman @ Seetha, the respondent declined to entertain her but, she has voluntarily came to his house and left the money against his wish. The trial Court after proper appreciation of the evidence, has rightly acquitted the accused for want of prove of demand and acceptance of tainted money as illegal gratification.
Hence, according to the learned Senior Counsel, the well considered judgment of the trial Court need not be interfered with by this Court.
15. The pivotal of the prosecution case is that, to close the criminal case against Mr.Seetharaman @ Seetha, the accused/respondent demanded Rs.3,000/- from PW - 2 and received the same on 02.06.2004 at 7.30 am, at his residence. The witnesses who are competent to speak about the demand and acceptance are PW-2 (the defacto complainant, who gave the money), PW-3 (the shadow witness who oversaw the transaction) and PW-6 (Mr.Pon.Kumar, who accompanied the defacto complainant to the Police Station to facilitate the closure of criminal case against Mr.Seetharaman @ Seetha). Both PW-2 and PW-6 are not witnesses trust worthy of any reliance. The prosecution itself has treated them as hostile because of their inconsistence and contradictory statements made by them.
16. Particularly, PW-2 who was interested in bailing out her son Mr.Seetharaman @ Seetha from the criminal prosecution has set law into motion by lodging complaint to the appellant Police with the help of PW-6 - Mr.Pon.Kumar. She has deposed that, her son got involved in illicit arrack case and was convicted. Later, he left to Bangalore. A month before this case, he came from Bangalore. He went to Tiruvannamalai and purchased a TVS two wheeler. One day, he and his friend, Mr.Chinnathambi, went to cinema. The next day morning, he came alone without the vehicle. On inquiry, he told that police chased him while coming back home so, he abondoned the vehicle and fled. Thereafter, he left for Bangalore. Since then, the Police were frequently visiting her house in search of her son. On one such visit, they broken the mud pots mistaking it as pots used for brewing arrack. Thereafter, she got signatures of 10 persons/neighbours and met Mr.Pon.Kumar to give representation to the Higher authorities. She also met the accused/respondent, in this regard and offered Rs.3,000/- to close the case against her son Mr.Seetharaman @ Seetha. But he said, unless she produce her son, he will not help her. She has further deposed that, after complaint - Ex P-2, she went to the accused house on 02.06.2004. First time when she knocked the door, there was no response and after some time, she again pressed the calling bell, the accused came out of the house. When she offered money, he initially refused to receive but later, received it and went inside the house.
17. The public prosecutor before the trial Court has treated PW -2 as hostile witness and cross examined her. The Defence counsel has also cross examined her. During the cross examination, she has narrated the events with further details. However, it only gives an impression that, the tainted money was planted or forcibly thrusted on the respondent to fix him in graft charge so that, he will not pursue the case against Mr.Seetharaman @ Seetha, an absconding accused in Cr.No.447/2003.
18. In the said background, the evidence of PW-3 – Ms.Athilakshmti requires deep scrutiny. In her evidence, she has deposed that, she was informed about the trap proceedings on 01.06.2004 at 8.00 pm and she went to the District Vigilance & Anti Corruption office on the next day at 3.00 am and accompanied PW-2 to the respondent house. At that time, the accused came out of his house in response to the calling bell. He demanded and received the money from P.W.2 at the veranda. The rough sketch and the observation mahazar which were marked as Ex P-5 and P-6 respectively indicate that next to varanda, there is a door and next to the door, there is a sofa in the hall.
19. The case of the prosecution is that, the accused was siting in the sofa and received money. While PW-2 in her chief examination say that the accused came out of his house and received money, later, in cross examination, she has stated that, she kept the money in the sofa and the accused shouted at her not to keep the money on the sofa. She took it back and gave it to accused and rushed out despite the accused calling her. The version of PW -3 is quite contrary to the version deposed by PW-2. The physicial feature of the house as shown in Ex P-5 and as deposed by DW-1 clearly indicates that there is no provision to sit in the veranda and the calling bell is next to the door which leads to the hall after the veranda. This creates the doubt, Whether PW-3 really saw PW-2 giving the tainted money to the accused and Whether she heard what transpired between them.
20. Intrestingly, both Mr.Seetharaman @ Seetha and Mr.Chinnathambi who are shown as absconding accused in Cr.No.447/2003 are cited as prosecution witnesses and examined as PW-4 and PW-5. Mr.Ganesan, the Inspector of Police of the concerned jurisidiction has been examined as PW-12. He has deposed about the case against PW-4 and PW-5. The documents related to Cr.No.447/2003 are marked as Ex P-13 to Ex P-17 through him. The learned Government Advocate (crl.side) states that, in that case, they both are still shown as absconding accused and no progress is made. Whereas, the learned counsel representing the respondent submits that the case was closed for not filing the final report in time. In any event, the vehicle involved in Cr.No.447/2003 admittedly not claimed by PW-4 Mr.Seetharaman @ Seetha.
21. Yet another reason to dis-credit the evidence of P.W.3 is that, her presence in the scene of occurrence as stated by her may not be correct because, of the embelishment in the deposition of P.W.14 the trap laying Officer who wants to make the trap proceedings natural and consequence of a proper procedure has stated that P.W.3 was asked to accompany P.W.2 and witness the transaction. If the accused entertains any doubt about P.w.3 and enquired about her, she should say that she is the daughter of P.W.2 or any other suitable convincing explanation and P.W.14 has further deposed that P.W.2 and the accompanying witness – PW - 3 after giving the tainted money to the accused came out and told him that the accused enquired about PW – 3 with P.W.2 and PW - 2 stated that PW - 3 is her daughter's mother-in-law (rkke;jp). This version is neither spoken by P.W.2 nor spoken by P.W.3. An embelishment which has been deposed by P.W.14 makes the prosecution case more suspectable. Hence, for the reasons stated, this Court is of the opinion that there is no merit in the Criminal Appeal and hence, the same is liable to be dismissed.
22. In the result, the Criminal Appeal is dismissed and the judgment of the trial Court is confirmed.
13.09.2017 http://www.judis.nic.ijnbm Index: Yes/No Speaking Order/non speaking order To
1. The Special Judge/ Chief Judicial Magistrate, Villupuram.
2. The Public Prosecutor, High Court, Madras.
G.JAYACHANDRAN.J., jbm Pre Delivery Judgment made in Crl.A.No.453 of 2009 13.09.2017