Madras High Court
A.Thankanadan vs The Inspector Of Police on 12 March, 2024
Crl.A.(MD).No.396 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 20.12.2023
Pronounced On : 12.03.2024
CORAM:
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.A(MD)No.396 of 2017
A.Thankanadan .. Appellant/ Accused No.1
Vs.
The Inspector of Police,
Vigilance and Anti-Corruption Wing,
Kanyakumari District.
(In Crime No.5 of 2014) .. Respondent/Complainant
PRAYER: Criminal Appeal has been filed under Section 374 of the
Criminal Procedure Code, to call for the records pertaining to the judgment
dated 15.09.2017 in Special Case No.2 of 2015 passed by the learned
Special Judge and Chief Judicial Magistrate, Nagercoil and to set aside the
same.
For Appellant : Mr.S.Deenadhayalan
For Respondent : Mr.T.Senthil Kumar
Additional Public Prosecutor
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JUDGMENT
This Criminal Appeal has been filed by the appellant/accused No.1 in
Special Case No.2 of 2015 before the learned Special Judge and Chief
Judicial Magistrate, Nagercoil, dated 15.09.2017. The trial Court convicted
the appellant for the offence under Sections 7 and 13(2) r/w 13(1)(d) of the
Prevention of Corruption Act, 1988 and imposed sentence as follows:
Rank of the Accused Offence under Section Punishment
7 of the Prevention of 2 years Simple
Corruption Act Imprisonment and fine
of Rs.5,000/-, in default,
to undergo six months
Simple Imprisonment.
Accused No.1 13(2) r/w 13(2)(d) of the 2 years Simple
Prevention of Corruption Imprisonment and fine
Act of Rs.5,000/-, in default,
to undergo six months
Simple Imprisonment.
Challenging the same, the appellant filed this appeal.
2. According to the prosecution, the appellant is the Sub-Inspector of
the Nithiravilai Police Station. The second accused Deva Kumaradass, is
Special Sub Inspector of Police. One Sundara raj and his neighbour Kumar
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@ Kumaradass, Sujatha had some dispute over the pathway. On 14.04.2014,
the said Sundara raj, Sujatha and P.W.3 are said to have assaulted Kumar @
Kumaradass. Therefore, he gave a complaint to the second accused and he
registered the case in Crime No.131 of 2014 for the offence under Sections
294(b), 323, 324 and 506(i) IPC. The allegation against P.W.3 was that he
instigated the remaining accused. But, P.W.3 was not present in the scene of
occurrence. To delete his name in the FIR, the appellant demanded Rs.
20,000/- as bribe amount on 17.04.2014 and on 25.04.2014 at 8.00 p.m, A1
demanded Rs.20,000/- to delete his name and asked them to hand over the
said amount on 26.04.2014 near the Virivilai bridge at 11.00 a.m. On
26.04.2014, P.W3 approached the respondent vigilance department and
gave the complaint-Ex.P2 to P.W.17 of the respondent vigilance
department. After receiving the complaint-Ex.P2, P.W.17 made enquiry and
thereafter, he registered a case in Crime No.5 of 2014 for the offence under
Section 7 of the Prevention of Corruption Act. After registration of the case,
he called the official witnesses P.W4 and P.W5 and demonstrated the
significance of the phenolphthalein test to P.W3 in the presence of P.W4
and P.W5. After that, he smeared phenolphthalein powder on the currency
brought by P.W3 and put the same in the pocket of P.W3 and instructed him
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to hand over the same to the appellant on his demand. Thereafter, he
prepared the entrustment mahazar after noting down the numbers of the said
currency and instructed P.W.3 to give signal upon receipt of the bribe
amount by the appellant. Thereafter, the trap team went to the place
disclosed by the appellant namely, the Virivilai bridge. On the Virivilai
bridge when P.W3 and P.W4 were waiting, A1 along with A2 came in a
two wheeler, ie., Hero Honda bike and stopped the vehicle in front of P.W3
and P.W4. Thereafter, A1 reiterated the demand of Rs.20,000/-. P.W3
handed over the said amount to A1. A1 received the said amount and
counted the same and thereafter handed over the money to A2. The said
occurrence took place at 11.15 a.m. A2 also counted the money. After
receipt of the money, A1 assured to drop his name from the final report and
asked P.W3 to go home. Thereafter, P.W3 and P.W4 came and gave signal
to P.W17. On receipt of the signal, P.W19 intercepted the appellant/A1 and
A2.
3. When P.W3 showed the identity of A2, he fled away from the place
of occurrence along with the tainted currency note. P.W17 and his team
members were unable to trace A2. The team conducted test in the hands of
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the appellant and the same turned into pink. Upon the positive result, the
team questioned about the receipt of tainted currency. He disclosed that he
handed over to A2 and also seized the Exhibits from A1. P.W17 prepared
the recovery mahazar-Ex.P7 and also the observation mahazar-Ex.P6.
Thereafter, they brought A1 to the police station and also conducted house
search in A1’s house where no incriminating materials were found,
produced the accused before the competent court. After that the
investigation was conducted by P.W19. After examination of witnesses and
collection of documents and obtaining the sanction order, filed the final
report against A1 and A2 without arresting A2 and also without recovering
the tainted money. The same was taken on file in C.C.No.2 of 2015 by the
learned Special Judge and Chief Judicial Magistrate, Nagercoil. After taking
cognizance in C.C.No.2 of 2015, the learned trial judge framed necessary
charges and questioned the accused and both the accused denied the
involvement in the crime and also they pleaded not guilty and they stood for
trial.
4. To prove the case, the prosecution examined P.W1 to
P.W21 and Ex.P1 to Ex.P38 and M.O.1. Thereafter, the learned trial Judge
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questioned the appellant under Section 313 of Cr.P.C., by putting the
incriminating material available against the appellant. He denied them as
false and posted for examination of the defence side witness. Neither the
defence witness was examined nor the defence documents were marked on
the side of the accused.
5. The learned trial Judge after considering the evidence and
argument of the learned counsel for the accused and prosecution convicted
the appellant under Section 7 and 13(1)(d) r/w 13(2) of the Prevention of
Corruption Act 1988, and acquitted A2. Against the acquittal judgement, the
Department did not prefer any appeal and the appellant/A1 preferred the
appeal against the conviction and sentence on the grounds stated in the
memorandum of grounds.
6. The learned counsel for the appellant made the following
submissions:
6.1. The acceptance of the bribe amount by the appellant is not
proved by the prosecution. According to the prosecution, the appellant
received the bribe amount from P.W3 in the presence of P.W4 and after
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prosecution, A2 fled from the scene of occurrence and hence, they did not
recover the money from A2 even after the dismissal of the number of
anticipatory bail petitions, A2 was not arrested. Hence, the acceptance of the
bribe amount, without the seizure of the bribe amount, was not proved.
Mere change of colour in the hands of the appellant without recovery of the
currency note, will not be sufficient to hold that the offence under Section 7
and 13(1)(d) read with 13(2) of the Prevention of Corruption Act are made
out and hence he seeks for acquittal.
6.2. The learned counsel for the appellant further submitted that the
demand was not proved. According to the prosecution, demand was made
on 25.04.2014 and the same was not proved. Even reiteration of the demand
in the presence of P.W4, was not proved on the ground that the presence of
P.W4 itself is doubtful. Hence, he relied the following judgements of the
Hon’ble Supreme: (i) (2008) 1 MLJ (Crl) 542 (SC), (ii)2021 (1) MWN (Cr.)
602 (SC), (iii) CDJ 2015 MHC 5114, (iv) (2019) 1 MLJ (Crl) 176, wherein
the Hon’ble Supreme Court has held that without demand, the conviction
under Section 7 and 13 (1)(d) read with 13(2) of the Prevention of
Corruption Act is not made out. Even in the complaint, there is no specific
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averment regarding the demand made on 17.04.2014. According to the
prosecution, three demands were made on different dates ie., on 17.04.2014,
25.04.2014 and finally he reiterated the amount in the presence of P.W4 on
26.04.2014. The above demands are not proved by the prosecution. The
appellant specifically stated that the money was handed over by P.W4 and
not by P.W3 and hence the shirt of P.W4 ought to have been subjected to
the phenolphthalein test. In the absence of the said proof of handling of
money by P.W4, the prosecution case that the money was handed over to
the appellant was not proved. The prosecution relied on the evidence of the
prosecution witnesses to prove the offence against the appellant and the
accused No.2. On the basis of the evidence, the learned trial Judge acquitted
A2. In the said circumstances, on the same set of evidence, the conviction
passed against A1 is not sustainable. The learned counsel for the appellant
submitted that on the same set of facts, when the prosecution evidence
relating to A2 is not believed and without any basis, the said evidence of the
prosecution is relied by the trial Judge to convict the appellant.
6.3. The learned counsel for the appellant further submitted that the
case was registered only by A2 against P.W.3 in Crime No.131 of 2014. In
the said circumstances, without holding the accused No.2 liable, the
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conviction passed against the accused No.1 is not maintainable. Hence he
seeks for acquittal.
6.4. The learned counsel for the appellant brought to the knowledge
of this Court number of following contradictions and seeks for acquittal.
6.5. According to P.W3, on 25.04.2014 at 9.15 a.m., he contacted the
appellant through phone and he asked to meet him at 8.00 o’clock at
Puthukkadai in front of the Aishwarya Hotel situated at Puthukkadai. But in
the complaint, it is stated that A1 contacted P.W3 and asked to meet him.
According to the appellant, this is a material contradiction. P.W4 in his
cross-examination stated that he received only the telephonic
communication and he met P.W17 in his office. But the evidence of the trap
laying officer is that he sent a written communication to the superior of
P.W4 and P.W5. P.W15 stated that under Ex.P23, P.W17 sent the written
communication to P.W4. Without production of the written communication,
the contradiction is material one to decide the presence of P.W4 and P.W5
in the entire trap proceedings. P.W4 stated that he had no conversation with
P.W5. But P.W5 stated that they had conversation upon their introduction.
According to P.W6, there is no entry in the general diary about the
attendance of A1 and A2 for the patrol duty. But in Ex.P9, it is stated that
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four persons attended the patrol duty.
6.6. According to P.W17, he sent the FIR immediately on 26.04.2014.
Even though it reached the learned Special Judge on 26.04.2014 and he
acknowledged the receipt of the same, the seal of the Court shows the date
as 28.04.2014 and hence, it creates doubt over the reaching of the FIR as
alleged by the prosecution. As per the evidence of P.W17, there was no
averment in Ex.P7-recovery mahazar regarding the absconding of A2. But in
the recovery mahazar, the said averment is there. Therefore, the said
contradiction affects the prosecution case. Citing the above contradiction,
the learned counsel for the appellant submitted about the cumulative effect
of the above contradiction which creates doubt about the prosecution case.
The learned counsel for the appellant further submitted that in the recovery
mahazar-Ex.P7, the signature of the accused is not obtained. Therefore, the
preparation of Ex.P7 in the presence of the accused is doubtful.
6.7. The learned counsel further submitted that the sanctioning
authority namely, P.W1 has not applied his mind to the facts of the case.
Without any evidence, P.W1 granted sanction to prosecute the appellant.
The learned counsel placed reliance on the judgments cited by him and
claiming that the ratio laid down in them is applicable to the appellant’s
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case, he seeks for acquittal.
7.The learned Additional Public Prosecutor made the following
submissions:
7.1. Per contra, the learned Additional Public Prosecutor submitted
that the demand is proved in accordance with law. The evidence of P.W3
regarding the demand made on 24.04.2014 is proved through the reiteration
of demand made on 27.04.2014 in the presence of P.W4. Hence, the demand
is proved in accordance with law. Further, as per the judgment of the
Hon’ble Constitution Bench of the Hon’ble Supreme Court, demand can also
be proved through the circumstantial evidence. The material circumstance,
according to the prosecution is that the seizure of the documents relating to
crime number where P.W3 was arrayed as accused and hence according to
the learned Additional Public Prosecutor, demand is proved through oral as
well as the circumstantial evidence.
7.2. The learned Additional Public Prosecutor submitted that the
acceptance was spoken by the four independent official witnesses, who have
no grudge against the appellant. The said version of P.W.4 corroborated
with the version of P.W3-defacto complainant. Hence, even though money
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was received by the appellant is proved. The appellant was subjected to the
phenolphthalein test and his hands turned into pink. Therefore, from the
said change in colour, it is clear that the money was handled by the
appellant. Even though the money was not recovered, the same is not
necessary when P.W4- independent official witness clearly deposed about
the receipt of the bribe money. P.W4 further stated that the accused
produced the documents relating to the crime number. In the said case
though he is not the investigating officer he was keeping custody of the said
document and the same is the strong circumstance to show that the appellant
was involved in the above case by way of demanding the bribe amount and
receiving the bribe amount. The learned Additional Public Prosecutor
submitted that the so called contradiction stated by the appellant is not
material one and the effect of the said contradictions would not affect the
prosecution case, when the evidence of P.W3 and P.W4 is cogent and
trustworthy regarding the demand and acceptance of the amount. The
learned Additional Public Prosecutor further stated that in the murder case,
corpus delicti is not required when the evidence speaks volumes about the
murder. The same principle is applicable to the case on hand that even
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by P.W3 and P.W4 in cogent manner and hence, the said acceptance is
clearly proved through the oral evidence and hence, it is not necessary to
recover the amount, more particularly, when the hands of A1 turned into
pink colour. Further, there was no explanation on the side of the appellant
regarding the change of colour.
7.3. In the recovery mahazar, it is clearly stated that the absconding
accused fled from the scene of occurrence and hence the submission of the
learned counsel for the appellant that the bribe money was not recovered is
admitted by the trap laying officer is not correct. According to the learned
Additional Public Prosecutor, that is the statement given by the
investigating officer after a long time and hence, the same was not material
one. When the demand and acceptance are proved through the evidence of
P.W3 and P.W4, the submission of the learned counsel for the appellant
that no signature was obtained in recovery mahazar-Ex.P7 is concerned, it is
not necessary to obtain the appellant’s signature in the recovery mahazar
which is not a material one. Regarding the case registered in the Crime No.
131 of 2014, no witness was examined and hence the basic case is not
proved and the demand for the alleged deletion of the appellant from the
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permission or written permission to P.W4 and P.W5 to participate in the
trap proceedings is immaterial when their presence is clearly proved through
the entrustment mahazar and the recovery mahazar. In the absence of any
motive between P.W4 and P.W5, the evidence cannot be eschewed without
any strong circumstance to disbelieve their evidence. The evidence of
P.W4- a Government servant and other official witness cannot be
disbelieved without any strong reason about their absence in the place of
occurrence as well as during the preparation of the entrustment mahazar.
The entry in the general diary has no consequence to the entire proceedings
of the trap when the appellant went to the alleged place of occurrence in
order to receive the amount. Even otherwise for the reference in Ex.P9, the
learned counsel for the appellant submitted that on the same prosecution
evidence, after acquittal of A2, the conviction cannot sustain in respect of
the appellant/A1 on the very same set of evidence, is not acceptable as per
the law laid down by the Hon’ble Supreme Court. Even in the case of
acquittal on the basis of the prosecution evidence, in respect of one accused,
if the evidence is sufficient in the eye of law against the other accused, the
conviction can be recorded. To fortify the same, he made reliance on the
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following Supreme Court judgement in the case of Neeraj Dutta Vs. State
(Government of NCT of Delhi) reported in 2023 (4) SCC 731.
7.4. Sanction has been granted with application of mind and the
sanctioning authority clearly deposed that he applied his mind and granted
sanction. According to the prosecutor, the sanctioning authority-P.W1 after
considering the entire material, granted the sanction, more particularly,
referring to the demand and acceptance of the amount by the appellant.
Hence, the learned Additional Public Prosecutor submitted that the case is
proved in accordance with law.
8. This Court has considered the rival submissions made by both side
and perused the materials available on record and the precedents relied upon
by them.
9. From the records, it is clear that P.W8 registered the case against
the appellant and others in Crime No.131 of 2014 for the offence under
Section 294(b), 323, 324 and 506(ii) IPC. According to P.W3, he was not
present in the scene of occurrence and his name was falsely implicated in
the FIR. On 25.04.2014, A1 demanded Rs.20,000/- as bribe to delete his
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name in the FIR and he also asked P.W3 to meet him at the Nithiravilai-
Virvilai bridge on 26.04.2014 at 11.00 a.m to give the bribe amount.
Thereafter, P.W3 gave the complaint to P.W17-the respondent Vigilance
Department. PW17 registered the case and prepared the entrustment
mahazar and also demonstrated the significance of the phenolphthalein test
and he also instructed PW3 to give money to A1 on demand and also
instructed him to give signal upon receipt of the said amount. Therefore,
when P.W3 and P.W.4 met the appellant, he reiterated the demand and
received the amount and counted the said amount and handed over to A2.
After that, the appellant assured P.W3 his name in the FIR would be
dropped. In the above said sequence of events, this Court raised the
following points for determination.
(i) Whether the prosecution proved the case against the appellant /A1
beyond reasonable doubt to sustain the conviction under Section 7 and 13
(1)(d) read with 13 (2) of the Prevention of Corruption Act?
(ii). Whether the conviction of the appellant/A1 is valid where A2
was acquitted by the trial Court?
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10. Proof of demand:
To drop the name of P.W3 in the FIR registered against him, the
appellant demanded Rs.20,000/- as bribe. P.W3 clearly stated that on
25.04.2014, the appellant asked P.W3 to give Rs.20,000/- to drop his name
in the FIR. The same was reiterated on 26.04.2014 in the presence of P.W4-
official independent witness. P.W4’s evidence clearly corroborated the
version of P.W3. Further Ex.P.12 was recovered from A2. A2 is not the
investigating officer, but he handled the file relating to the Crime No.131 of
2014 and since such a strong circumstances is available in addition to the
evidence of P.W3 and P.W4, to prove the demand made by the appellant to
drop the defacto complainant’s name in the FIR, this Court without any
hesitation holds that the prosecution proved the demand as required under
law so as to hold him guilty under Section 7 of the Prevention of Corruption
Act, 1988, on the basis of the circumstances as well as on the
unimpeachable evidence of P.W3 and P.W4.
11. Acceptance of money:
The non-recovery of money from the custody of A2 has no
significance when the appellant received the amount and counted the tainted
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Crl.A.(MD).No.396 of 2017money as per the version of P.W3 and P.W4. P.W3 and P.W4 have clearly
deposed before the Court without any contradiction and embellishment.
Further, according to the prosecution the first appellant, after the receipt of
the bribe amount handed over the same to the second appellant. He fled
away from the occurrence place along with the tainted currency. Therefore,
non-recovery of the bribe amount is not material when P.W3 and the
independent witnesses stated about the receipt and acceptance of the amount
and handling of the amount by A1. But non-explanation of the accused as to
why the colour changed in his hands clearly shows that he has handled the
money as stated in Vigilance Manual Rule 46 (1) which reads as follows:
“46. Phenolphthalein Test
(1) Before recovering the tainted money or other
articles in the course of trap proceedings, what is known as
“Phenolphthalein Test” should invariably be conducted the
fingers of both hands of the Accused Officer and on other
items such as his pant/shirt pocket, dhoti, etc., with which
the notes/articles are known to have come into contact. It
will be a corroborative piece of evidence to establish the
acceptance of tainted money by the Accused Officer.”
12. If the colour changed in the hands of the appellant, the
presumption is that he accepted the tainted currency. As per the evidence of
P.W3 and P.W4, the amount was received by the appellant and handed over
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to A2. Hence, the receipt of the bribe amount was proved through the
change of colour in the hands of the appellant and more particularly, in the
background that no explanation for the change of colour was given during
the questioning under Section 313 Cr.P.C., proceeding. This situation is
similar to the absence of the corpus delicti in the case of murder. Corpus is
not necessary to convict the accused when the evidence of the witnesses
clearly prove the murder of the diseased as held by the Hon’ble Supreme
Court in Prithi v. State of Haryana, reported in (2010) 8 SCC 536
20.Sometimes, there may not be any distinction
between proof of the fact of the crime and the proof of
the actor of it. The evidence of the corpus delicti and the
guilt of the person charged of an offence, many a time is
so interconnected that one cannot be separated from the
other. The same evidence often applies to both the fact of
the crime and the individuality of the person who
committed it. The question now is, whether the
prosecution evidence establishes that Ami Lal was
murdered and the commission of crime is made out
against the appellant.
Ram Gulam Chaudhary v. State of Bihar, (2001) 8 SCC 311 at
page 319
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23. There can be no dispute with the proposition
of law set out above. As is set out in the various
authorities (referred to above), it is not at all
necessary for a conviction for murder that the
corpus delicti be found. Undoubtedly, in the
absence of the corpus delicti there must be direct or
circumstantial evidence leading to the inescapable
conclusion that the person has died and that the
accused are the persons who had committed the
murder. Both the courts below have come to the
conclusion, based upon the evidence of PWs 3 and 4
(who were eyewitnesses) that Appellant 9 had killed
the accused before the body was taken away by all
the appellants. We have read the evidence of all the
witnesses. We have given a careful consideration to
the material on record. We see no reason to take a
different view. The evidence in this case is direct and
there is no reason to disbelieve this evidence. We see
no substance in the submission of Mr Mishra that
these two ladies could not have seen the boy being
killed and could not have in any case come to a
conclusion that he had died. Their presence at the
place of incident could not be doubted. Their
evidence clearly indicates that the incident took
place before their eyes.
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Sevaka Perumal v. State of T.N., (1991) 3 SCC 471 at page 476
5…. In a trial for murder it is not an absolute necessity
or an essential ingredient to establish corpus delicti. The
fact of death of the deceased must be established like any
other fact. Corpus delicti in some cases may not be
possible to be traced or recovered. Take for instance that
a murder was committed and the dead body was thrown
into flowing tidal river or stream or burnt out. It is
unlikely that the dead body may be recovered. If recovery
of the dead body, therefore, is an absolute necessity to
convict an accused, in many a case the accused would
manage to see that the dead body is destroyed etc. and
would afford a complete immunity to the guilty from being
punished and would escape even when the offence of
murder is proved. What, therefore, is required to base a
conviction for an offence of murder is that there should be
reliable and acceptable evidence that the offence of
murder, like any other factum of death was committed and
it must be proved by direct or circumstantial evidence,
although the dead body may not be traced.
Therefore, the similar principle is applicable to this case also and hence
non-recovery of the money cannot be held against the prosecution to suspect
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the acceptance when the evidence of P.W3 and P.W4 is cogent and
trustworthy. P.W3 and P.W4 have clearly stated that the accused received
the bribe money. Further, P.W.9 independent witness stated that he knew
A1 and A2. On 26.04.2014, A1 and A2 were sitting in the motor cycle and
A1 was in uniform and A2 was in civvies. At the time, six or seven persons
ran towards the accused persons. On seeing the same, A2 fled away from
the scene of occurrence. On enquiry, it was revealed that they received the
amount from P.W.3 and before recovery he escaped from the scene of
occurrence. From the above, it shows that A2 escaped from the scene of
occurrence. P.W4 and P.W.17 deposed that A2 escaped with money. The
said conduct is admissible to prove that he fled away from the place of
occurrence with money. The law does not require the proof of the factum of
acceptance of the bribe amount only through the mode of recovery of the
money when the witnesses clearly speak about handing over of the bribe
amount and its receipt by the accused. In the considered view of this Court,
the prosecution discharged the duty of the receipt of money. In similar
circumstances, the Hon’ble Mr.Justice Dalveer Bhandari (as he then was)
held in the case of Teka Ram v. State, reported in 1998 SCC OnLine Del
157:
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19….The learned Additional Sessions Judge rightly
gave emphasis to this aspect of the prosecution version that
at the crucial time, when the trap was laid and the accused
was about to be apprehended, he slipped away from the
office of the SDM without any intimation to anyone.
Therefore, neither the accused was apprehended nor the
tainted money could be recovered. Now, the accused cannot
be permitted to take any benefit of the circumstance by
which he evaded his arrest from the spot. Apart from that
this is one of those un-usual cases, where the SDM himself
has been examined and he has fully supported the
prosecution version. The independent panch witnesses have
also corroborated the prosecution version. The prosecution
has been able to establish its case beyond any shadow of
doubt. The conviction is accordingly upheld.
Hence, this Court is not inclined to accept the submission of the learned
counsel for the appellant that the acceptance is not proved for the reason
that the amount was not recovered. The said fact also finds place in the
recovery mahazar-Ex.P7 which reached the Court on the same day. Further,
according to the investigating agency, A2 absconded from the scene of
occurrence along with the tainted money. Hence, they were unable to trace
him. The said abscondence is clearly spoken to by P.W4. P.W3 clearly
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stated in his evidence that the amount was first received by the appellant
and then handed over to A2. In all aspect, acceptance is proved in
accordance with law.
13. The contradiction as stated by the appellant is not material in this
particular case and the same no way affected the evidence of P.W3 and
P.W4 with regard to the material particulars of the prosecution case, ie., the
demand and acceptance of the amount. The contradiction is quite natural,
more particularly, in the case on hand where the recording of statement of
the witnesses has been done in the year 2014 and the evidence was taken in
the year 2016. Since the delay in recording the evidence is normally caused,
such contradiction is not material and the same does not affect the
prosecution case as held by the Hon’ble Supreme Court in the following
judgement.
Jaiprakash Vs. State of U.P., reported in (2020) 17 SCC 632 at page
640
20… The witnesses who have deposed in the court after
considerable lapse of time of course, cannot be
expected to have photographic memory of the case. We
are conscious of the well-settled position that the minor
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discrepancies not touching upon the core of the
prosecution case, would not affect the credibility of the
witnesses or the prosecution case.
In Rakesh v. State of U.P., reported in (2021) 7 SCC 188 at page
195
9. …There may be some minor contradictions, however,
as held by this Court in a catena of decisions, minor
contradictions which do not go to the root of the matter
and/or such contradictions are not material
contradictions, the evidence of such witnesses cannot be
brushed aside and/or disbelieved.
In Mritunjoy Biswas v. Pranab, reported in (2013)
12 SCC 796 at page 809
28. It is well settled in law that the minor discrepancies are
not to be given undue emphasis and the evidence is to be
considered from the point of view of trustworthiness. The
test is whether the same inspires confidence in the mind of
the court. If the evidence is incredible and cannot be
accepted by the test of prudence, then it may create a dent in
the prosecution version. If an omission or discrepancy goes
to the root of the matter and ushers in incongruities, the
defence can take advantage of such inconsistencies. It needs
no special emphasis to state that every omission cannot take
the place of a material omission and, therefore, minor
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contradictions, inconsistencies or insignificant
embellishments do not affect the core of the prosecution
case and should not be taken to be a ground to reject the
prosecution evidence. The omission should create a serious
doubt about the truthfulness or creditworthiness of a
witness. It is only the serious contradictions and omissions
which materially affect the case of the prosecution but not
every contradiction or omission (see Leela Ram v. State of
Haryana [(1999) 9 SCC 525 : 2000 SCC (Cri) 222] ,
Rammi v. State of M.P. [(1999) 8 SCC 649 : 2000 SCC (Cri)
26] and Shyamal Ghosh v. State of W.B. [(2012) 7 SCC
646 : (2012) 3 SCC (Cri) 685] ).
In view of the above judgment, the minor contradiction cannot affect the
prosecution case. Further, the above contradiction is not at all material one.
14. P.W9 was examined as an independent witness to prove the fact
that the occurrence took place on 26.04.2014. This witness specifically
corroborated the version of P.W3 and P.W4 in respect of the presence of
the appellant. According to P.W3, A1 was in uniform and A2 was in civvies
on the date of occurrence and A2 was drinking tea. When the trap team
approached the accused persons, A2 escaped from the scene of occurrence.
On enquiry, it was revealed that A2 escaped from the scene of occurrence
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with tainted money. Even though P.W9 did not identify the persons, but
before the Court, he answered as follows:
“j';fehlhDk;. njtFkhujhRk; ,d;iwa
jpdk; nfhh;l;ow;F te;Js;shh;fsh vd;W
nfl;lhy; btspna ghh;j;jhy;jhd; bjhpa[k;/””
Further, P.W9 was not cross examined by the appellant. Therefore, the
presence of the appellant in the scene of occurrence was clearly spoken by
P.W9 and hence the submission of the learned counsel for the appellant that
the prosecution has not proved the incident is not correct.
15. It is well settled principle that even though A2 was acquitted on
the basis of the evidence of the prosecution witnesses, the conviction
against the appellant is maintainable, since the prosecution witnesses clearly
speak about the involvement of the appellant in the alleged offence. When
the evidence adduced by the prosecution is intrinsically inseparable and the
conviction is passed in favour of one accused and the acquittal is passed on
the other accused, the principle of parity is applicable. When the evidence is
separable, it would be open to the Court to convict the accused not
withstanding the fact that the evidence has been found to be deficient to
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prove the guilt of other accused. The Hon’ble Supreme Court in the case of
Gangadhar Behera v. State of Orissa, reported in (2002) 8 SCC 381 is as
follows:
15. Even if a major portion of the evidence is found
to be deficient, in case residue is sufficient to prove
guilt of an accused, notwithstanding acquittal of a
number of other co-accused persons, his conviction
can be maintained. It is the duty of the court to
separate the grain from the chaff. Where chaff can be
separated from the grain, it would be open to the
court to convict an accused notwithstanding the fact
that evidence has been found to be deficient to prove
guilt of other accused persons. Falsity of a particular
material witness or material particular would not ruin
it from the beginning to end.
The said principle was reiterated by the Hon’ble Supreme Court in number
of cases. In the latest decision, the Hon’ble Three Member Bench of the
Supreme Court re-affirmed the same in the following terms:
In Achhar Singh v. State of H.P., (2021) 5 SCC 543
26. The learned State counsel has rightly relied on
Gangadhar Behera [Gangadhar Behera v. State of Orissa,
(2002) 8 SCC 381 : 2003 SCC (Cri) 32] to contend that28/43
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Crl.A.(MD).No.396 of 2017even in cases where a major portion of the evidence is
found deficient, if the residue is sufficient to prove the guilt
of the accused, conviction can be based on it. This Court in
Hari Chand v. State of Delhi [Hari Chand v. State of Delhi,
(1996) 9 SCC 112 : 1996 SCC (Cri) 950] held that : (Hari
Chand case [Hari Chand v. State of Delhi, (1996) 9 SCC
112 : 1996 SCC (Cri) 950] , SCC pp. 124-25, para 24)
“24. … So far as this contention is concerned it must be
kept in view that while appreciating the evidence of
witnesses in a criminal trial especially in a case of
eyewitnesses the maxim falsus in uno, falsus in omnibus
cannot apply and the court has to make efforts to sift the
grain from the chaff. It is of course true that when a
witness is said to have exaggerated in his evidence at the
stage of trial and has tried to involve many more accused
and if that part of the evidence is not found acceptable the
remaining part of evidence has to be scrutinised with care
and the court must try to see whether the acceptable part of
the evidence gets corroborated from other evidence on
record so that the acceptable part can be safely relied
upon.”
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16. Sanction
16.1.The learned counsel for the appellant has stated that the
sanctioning authority has not applied his mind and granted sanction in
mechanical manner. According to the learned counsel for the appellant,
sanction is a sacrosanct act and the sanctioning authority is duty-bound to
apply his mind independently and grant the sanction.
16.2.Before Further elaboration on submission of Appellant regarding
non application mind while according sanction, this Court has a duty to find
out the meaning of “sanction” and precedents relating to the accord of
sanction. The word ‘sanction’ has not been defined in the Code of Criminal
Procedure.
Dictionary Meaning
Webster's Third New Internal Explicit permission or recognition
Dictionary by one in authority that gives
validity to the act of another person
or body; something that authorizes,
confirms, or countenances.
The New Lexicon Webster's Explicit permission given by some
Dictionary one in authority.
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The Concise Oxford Dictionary. Encouragement given to an action
etc., by custom or tradition; express
permission, confirmation or
ratification of a law etc; authorize,
countenance, or agree to (an action
etc.)
Stroud's Judicial Dictionary Sanction not only means prior
approval; generally it also means
ratification.
Words and Phrases— The verb ‘sanction’ has a distinct
shade of meaning from ‘authorize’
and means to assent, concur,
confirm or ratify. The word conveys
the idea of sacredness or of
authority.
The Law Lexicon by Ramanath Iyer Prior approval or ratification.
Rameshwar Bhartia Vs. State of Sanction is in the nature of
Assam reported in 1952 2 SCC 203, permission.
the Hon’ble Supreme Court has
stated that
16.3.In Om Prakash v. State of U.P., 2001 SCC OnLine All 818 at
page 1248. Hon’ble Mr.Justice G.P.Mathur (as he then was ) made detailed
discussion on this aspect and finally has held that
6….. The word ‘sanction’ has been used as a “verb” and
therefore it will mean to assent, to concur or approval.
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16.4. Therefore, in the considerable opinion of this Court, sanction is
the independent act of sanctioning authority with due application of mind
over the material forwarded by the investigating agency to prosecute the
accused before the Court of law under the penal provision constituting the
offence.
16.5.The Hon’ble Supreme Court in State of Maharashtra v. Mahesh
G. Jain, (2013) 8 SCC 119 after considering the earlier various decisions of
the Hon’ble Supreme Court reported in AIR 1958 SC 124, AIR 1979 SC
677, 1995 6 SCC 225, 2005 4 SCC 81, 2006 12 SCC 749, 2007 11 SCC
273, 2011 1 SCC 491, has expounded the following detailed principles of
law governing the validity of sanction:
“14.1. It is incumbent on the prosecution to prove that the
valid sanction has been granted by the sanctioning authority
after being satisfied that a case for sanction has been made
out.
14.2. The sanction order may expressly show that the
sanctioning authority has perused the material placed
before it and, after consideration of the circumstances, has
granted sanction for prosecution.
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14.3. The prosecution may prove by adducing the evidence
that the material was placed before the sanctioning
authority and its satisfaction was arrived at upon perusal of
the material placed before it.
14.4. Grant of sanction is only an administrative function
and the sanctioning authority is required to prima facie
reach the satisfaction that relevant facts would constitute
the offence.
14.5. The adequacy of material placed before the
sanctioning authority cannot be gone into by the court as it
does not sit in appeal over the sanction order.
14.6. If the sanctioning authority has perused all the
materials placed before it and some of them have not been
proved that would not vitiate the order of sanction.
14.7. The order of sanction is a prerequisite as it is
intended to provide a safeguard to a public servant against
frivolous and vexatious litigants, but simultaneously an
order of sanction should not be construed in a pedantic
manner and there should not be a hyper technical approach
to test its validity.”
16.6.In this case P.W.19, after collecting the material documents and
recording the statements of the witnesses recorded under Section 161 of
Cr.P.C, produced the same before P.W.2 to accord sanction. P.W.2 after
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considering and applying his mind granted sanction under Ex.P2 The
material portion of the sanction order is as follows:
Whereas, I Dr.S.Murugan, I.P.S., Deputy Inspector
General of Police, Tirunelveli Range, Tirunelveliu being
the authority competent to remove the said Tr.A.Thanga
Nadan, formerly Sub-Inspector of Police, Nitravilai P.S.
From his service, after fully and thoroughly examined
the materials and records such as Firs Information
Report, Statement of witnesses and accused Tr.Thanga
Nadan and other connecting records including Forensic
Science Lab report etc. placed before me in this regard
and circumstance of the case having applied my mind
and fully satisfied that said Tr.A.Thanga Nadan,
formerly Sub Inspector of Police, Nitravilai P.S., shall
be prosecuted for the offences punishable under
Sections 7, 13(2) r/w 13(1) (d) of the Prevention of
Corruption Act, 1988.
16.7. The sanctioning authority examined as P.W.2 and he also
deposed before the Court that he accorded sanction under Ex.P2 after
applying his mind in the following words:
fd;dpahFkhp khtl;lk; epj;jpiutpis fhty; epiyaj;jpy;
rhh;gha;thsuhf gzpg[hpe;j jpU/j’;fehlh;; vd;gth; ehfh;nfhtpy; CHy;
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Crl.A.(MD).No.396 of 2017jLg;g[ fz;fhzpg;g[ gphpt[ Fw;w vz;/5-2014 r-gp/7. 13(2) c-,/ 13(1) (o)
CHy; jLg;g[ rl;lk; Fw;w tHf;fpy; rk;ge;jg;gl;l Kjy; jfty;
mwpf;ifapd; efy;. kfrh;fspd; efy;. rhl;rpfs; kw;Wk; vjphp
j’;fehlhpd; thf;FK:y’;fspd; efy;fs;. ntjpapay; mwpf;ifapd; efy;.
kw;Wk; tHf;F bjhlh;ghf mDg;gg;gl;oUe;j mwpf;ifapy;
Fwpg;gplg;gl;oUe;j ,ju Mtz’;fs; Mfpaitfis bgw;Wk;
ehfh;nfhtpy; CHy; jLg;g[ kw;Wk; fz;fhzpg;g[ Jiw fhty; Ma;thsh;
mth;fis nehpy; tutiHj;Jk;. tHf;F ehl;Fwpg;ig ghh;itapl;Lk;.
midj;J Mtz’;fis ghprPyid bra;Jk;. vd; kdij brYj;jpa[k;.
rhh;gha;thsh; jpU/j’;fehlhh; kPJ ePjpkd;wj;jpy; tHf;F bjhlh;tJ
mtrpak; vd ehd; KG jpUg;jp mile;jjhy; mjd; mog;gilapy; jpU/
j’;fehlhh; rhh;gha;thsh; kPJ ePjpkd;wj;jpy; tHf;F bjhlu vdJ
bray;Kiw eltof;if vz;/ rp/ek;gh;/rp1-6586-2014 ehs;/04/04/2015go xU
,irthiz tH’;fpndd;/
16.8.From the above, this Court finds that the sanction order itself is
eloquent about the fact that the accused had demanded and accepted the
bribe amount. The sanctioning authority also came into the witness box and
he deposed that he accorded sanction for prosecution after proper
application of mind. Therefore, this Court finds that the sanctioning
authority has applied his mind to the fact that the appellants made a demand
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Crl.A.(MD).No.396 of 2017and accepted illegal gratification.
17. Further, Section 19 of the Prevention of Corruption Act 1988 and
Section 465 of Cr.P.C., specifically state that the conviction cannot be set
aside on the ground that there was an error in granting sanction unless
accused established failure of justice. For better appreciation, the relevant
portion of the Sections are extracted as follows:
Section 19 of the Under Section 465 of Cr.P.C.
Prevention of Corruption
act 1988
19.3...(3) Notwithstanding 465.Finding or sentence when reversible by
anything contained in the Code of reason of error, omission or irregularity.—(1)
Criminal Procedure, 1973 (2 of Subject to the provisions hereinbefore contained,
1974),— no finding, sentence or order passed by a court of
(a) no finding, sentence or order competent jurisdiction shall be reversed or altered
passed by a Special Judge shall be by a court of appeal, confirmation or revision on
reversed or altered by a court in account of any error, omission or irregularity in the
appeal, confirmation or revision complaint, summons, warrant, proclamation,
on the ground of the absence of, order, judgment or other proceedings before or
or any error, omission or during trial or in any inquiry or other proceedings
irregularity in, the sanction under this Code, or any error, or irregularity in any
required under sub-section (1), sanction for the prosecution, unless in the opinion
unless in the opinion of that court, of that court, a failure of justice has in fact been
a failure of justice has in fact occasioned thereby.
been occasioned thereby;
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17.1.The Hon’ble Supreme Court has held as follows in State v. T.
Venkatesh Murthy, (2004) 7 SCC 763 at page 765,
14.In the instant case neither the trial court nor the High
Court appear to have kept in view the requirements of
sub-section (3) relating to question regarding “failure of
justice”. Merely because there is any omission, error or
irregularity in the matter of according sanction, that
does not affect the validity of the proceeding unless the
court records the satisfaction that such error, omission
or irregularity has resulted in failure of justice.
17.2.In State of M.P. v. Virender Kumar Tripathi, (2009) 15 SCC
533 at page 536
9. Further, the High Court has failed to consider the
effect of Section 19(3) of the Act. The said provision
makes it clear that no finding, sentence or order passed
by a Special Judge shall be reversed or altered by a court
of appeal on the ground of absence of/or any error,
omission or irregularity in sanction required under sub-
section (1) of Section 19 unless in the opinion of the court
a failure of justice has in fact been occasioned thereby.
29.3.The Hon’ble Supreme Court in Tshering
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Bhutia v. State of Sikkim [Ashok Tshering Bhutia v. State
of Sikkim, (2011) 4 SCC 402 referring to the earlier
precedents has observed that
…A mere error, omission or irregularity in sanction is not
considered to be fatal unless it has resulted in a failure of
justice or has been occasioned thereby…
17.3.These two foundational facts to prosecute the appellants under
Section 7 and 13(1)(d) r/w 13(2) and 12 of the Prevention of Corruption Act
1988 are found in the sanctioning order/Ex.P2 and P.W.2’s deposition.
Further, in the case of State of Bihar v. P.P. Sharma, reported in AIR 1991
SC 1260, the Hon’ble Supreme Court has held as follows:
When the Government accorded sanction,
Section 114(e) of the Evidence Act raises presumption
that the official acts have been regularly performed.
The burden is heavier on the accused to establish the
contra to rebut that statutory presumption.
18.In this case also as discussed above, the sanctioning authority
accorded sanction by applying his mind and hence, the presumption under
Section 114(e) of the Indian Evidence Act comes into play that the
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sanctioning authority properly discharged his duty. The accused is duty
bound to establish the contra to rebut that statutory presumption and also
to establish the failure of justice. In this case, the accused never established
the both.
19. In this case, all the witnesses clearly speak about the demand and
acceptance of the bribe amount and the same was proved through the
evidence of P.W3, P.W.4, P.W17-trap laying officer and P.W9 and the
seizure of the documents relating to Crime No.131 of 2014. The same was
correctly appreciated by the learned trial Judge while rendering the
judgment of conviction and sentence against the accused. The recovery of
the amount was proved through the examination of P.W21. P.W21 is the
Manager of the Reserve Bank of India and he specifically stated that the
currency note number mentioned in the entrustment mahazar-Ex.P5 is the
corresponding currency note printed by the Reserve Bank of India.
Therefore, according to the prosecution, the acceptance is proved through
Ex.P5 wherein the currency number was clearly mentioned and the same
was corroborated by the version of the P.W21. P.W18 clearly has spoken
about the positive result on the first accused’s hands. According to the trap
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laying officer-P.W17, after conducting the phenolphthalein test in the hands
of the accused/appellant, the same was sent to P.W18 for the analysis. The
said report clearly speaks about the presence of the phenolphthalein powder
in the hand wash. Therefore, the handling of money is also proved through
the scientific analysis report. In all aspect, the prosecution clearly proved
the case. It is quite natural that, due to the passage of time, some
contradiction may happen which is unavoidable as held by the Hon’ble
Supreme Court. Without any contradiction, the witnesses cannot be treated
as a true witness. Hence, this Court finds no merit in the appeal and hence
the criminal appeal deserves to be dismissed.
20. The accused is aged about 67 years and he is suffering from
various illness and he also lost his job. Therefore, this Court considering the
said facts inclines to reduce two years sentence of simple imprisonment
imposed by the Court below for the offence under Sections 7 and 13(2) r/w
13(1)(d) of the Prevention of corruption Act, into one year each and the
same are to run concurrently. Fine amount imposed by the Court below with
the default sentence is hereby confirmed.
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21. Accordingly, this Criminal Appeal is partly allowed in the
following terms:
(i)the conviction passed against the appellant for the offence under
Sections 7 and 13(2) r/w 13(2)(d) of the Prevention of Corruption Act in
Special Case No.2 of 2015, by the learned Special Judge and Chief Judicial
Magistrate, Nagercoil, vide judgment dated 15.09.2017 is hereby confirmed.
(ii) the sentence of imprisonment to undergo two years simple
imprisonment and a fine of Rs.5,000/-, in default, to undergo 6 months
simple imprisonment for the offence under Section 7 of the Prevention of
Corruption Act; and to undergo two years simple imprisonment and a fine
of Rs.5,000/-, in default, to undergo 6 months simple imprisonment for the
offence under Section 13(2) r/w 13(2)(d) of the Prevention of Corruption
Act
is modified into
“to undergo one year simple imprisonment for the offence under Section 7
of the Prevention of Corruption Act; and to undergo one year simple
imprisonment for the offence under Section 13(2) r/w 13(2)(d) of the
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Crl.A.(MD).No.396 of 2017Prevention of Corruption Act and the said sentences are to run
concurrently and the judgment relating to the fine amount is hereby
confirmed”.
12.03.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
PJL/sbn
To
1. The learned Special Judge and Chief Judicial Magistrate,
Nagercoil.
2.The Inspector of Police,
Vigilance and Anti-Corruption Wing,
Kanyakumari District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4. The Section Officer,
Criminal Section (Records),
Madurai Bench of Madras High Court,
Madurai.
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K.K.RAMAKRISHNAN, J.
PJL/sbn
Predelivery Judgment made in
Crl.A(MD)No.396 of 2017
12.03.2024
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