Bojan v. State

Bail SlipThe Appellant/Accused namely Bojan was directed to bereleased on bail as per the order of this Court dated 22.2.2002made in Crl.M.P.No.1757/2002 in Crl.A.No.214/02.IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 17.07.2008CORAMTHE HONOURABLE MR.JUSTICE T. SUDANTHIRAMCriminal Appeal No.214 of 2002 Bojan..AppellantVersusState represented by The Deputy Superintendent of PoliceVigilance and AnticorruptionUdhagamandalam, Nilgiris District..RespondentCriminal Appeal filed U/s.374 Cr.P.C.against the Judgment, conviction and sentence passed by the Special Judge (PC Act)cumDistrict Sessions Judge, Udhagamandalam in SPL.C.C.No.1 of 2001for 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 AhmedFor Respondent : Mr.N.Kumanan Government Advocate (Crl.side)JUDGMENTThe 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 CorruptionAct and sentenced to undergo one year and to pay a fine ofRs.1000/- in default to undergo imprisonment for four months.

The case of the prosecution in brief is that P.W.2Ravichandran who is the resident of Kangadu Village was owningland 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 thesubsidy, he approached the office of the tea board on 04.08.1999and in the office he was given an application and he was asked tosubmit it with the certificate from the Village AdministrativeOfficer 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 AdministrativeOfficer/accused was present. According to P.W.1, the accused/VAOwas known to P.W.2, since the elder brother of P.W.2 and theaccused have married the sisters. P.W.2 after informing theaccused/Village Administrative Officer, that he wanted landholding certificate with the sketch, he was asked to come to theoffice on 09.08.1999.

The prosecution has examined 8 witnesses, marked 8exhibits and produced 7 material objects. The accused wasquestioned under Section 313 Cr.P.C, with regard to theincriminating circumstances available against him and he haddenied his complicity.

The accused has stated that the land was in the name ofP.W.2's mother and there was a joint patta. The land was alsogiven to P.W.2 by his mother. The land tax was not paid bypeople. Only at the time of obtaining loan, for that purposepeople used to pay the land tax. He had arranged for change ofpatta in the name of P.W.2. P.W.2's elder brother's wife and hiswife are sisters. He also further stated that the elder brotherand his wife were living separately. After receiving the money, before he could give the receipt, P.W.2 had left the place. Theaccused also examined the brother of P.W.2 Haldurai as D.W.1.

Mr.S.Ashok Kumar, learned Senior Counsel appearing for theappellant/accused submitted that the evidence of P.W.2 with regardto the demand and acceptance of the bribe amount by the accusedstands uncorroborated. P.W.2 was inimical towards the accused andhe had utilized the opportunity. The learned Senior counselfurther pointed out that the evidence of D.W.1 establishes thefact that the family of P.W.2 owned joint patta land and therewere Kist arrears. The learned Senior Counsel vehementlycontended that the trial Court having held that the evidence ofP.W.2 is artificial and he was capable of giving false evidencebefore the Court and the trial judge observed that his evidenceshould be carefully considered; instead of analysing anddiscussing the evidence of P.W.2 merely accepted. The learnedSenior counsel submitted that in view of the fact that there was ajoint 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 theopportunity and under the guise of tax arrears paid the amount ofRs.500/-. The learned Senior counsel emphasized his argument bystating 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 ofmaking the payment and P.W.3 who is the official witnessconveniently had stated that instead of watching the occurrencehad moved out of that place.

Reliance was placed by the learned senior counsel on thefollowing decisions:a. 1974 Crl L J 307 (Darshan Lal v. The DelhiiAdministration)b. 1992 Crl L J 490 (Som Parkash v. State of Punjab)

The learned Government Advocate (criminal side) submittedthat the animosity of P.W.2 against the accused is not establishedand 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 explanationgiven by the accused that the amount was given towards land taxfor the joint patta land is not established by any documents.

This Court considered the rival submissions made by bothparties and also perused the records.

Admittedly with regard to the demand of bribe amount andits acceptance by the accused is spoken only by P.W.2. Normallythough there may not be any other witnesses available by way ofcorroboration for the earlier demands, at the time of trap, theindependent mahazar witness who accompanied the decoy witnesswould be available. In this case, P.W.3 the mahazar witness wasspecifically instructed to accompany P.W.2 and it was alsoinformed to him that if he was questioned by the accused, itshould be said that he was selling tea at Coonoor.

Now it is the prosecution case that the accused came fromoutside and having seen P.Ws.2 and 3 at the entrance and afterenquiring about P.W.3, he had informed P.W.2 to come alone insidethe union office after half an hour. As such, P.W.2 alone hadgone inside and P.W.3 did not accompany. The reason which is nowgiven for P.W.3 not accompanying P.W.2, is not mentioned inEx.P.6 recovery mahazar. P.W.7, the Deputy Superintendent of Police also not enquired P.W.3 about it immediately after theoccurrence. P.W.3 also admits that he was knowing about theimportance of the instruction that was given to him to accompanyP.W.2. He also admits that he was not directly instructed by theaccused 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 entranceand gone to the Saloon shop. As per the plan, Ex.P.15 preparedby P.W.7, the saloon is on the western side of the entrance of theoffice. It is not known as to why P.W.3 had moved away in thatdirection. The evidence of P.W.3 himself raises some suspicionabout the prosecution case.

With regard to the evidence of P.W.2, though he had notmentioned in his complaint Ex.P.2 that the accused was known andrelated to him, it is an admitted fact that the wife of theaccused and P.W.2s elder brother's wife are sisters. P.W.2'selder brother Natarajan and his wife were not living together andthere was some family dispute. At the same time, it cannot beruled out that P.W.2 had no reason to go against the accused. Onanalysing the evidence, the trial Court also held that theevidence of P.W.2 saying that he was knowing only about five orsix years prior to the occurrence that his brother and wife wereliving separately is very unnatural.

The trial Court also held that P.W.2 was deposingfalsely before the Court and as such his evidence should becarefully analysed. Though the trial Court said that P.W.2'sevidence should be carefully analysed, it has not made any attemptto seek for corroboration for the evidence of P.W.2. The nextquestion is how far the version of the defence should be acceptedagainst the uncorroborated evidence of P.W.2. It is the case ofthe defence that people were not in the habit of paying land taxuntil when they are approached. According to the defence, thoughit was explained to P.W.7, the Deputy Superintendent of Policeimmediately after the trap, he had not made any note of it.P.W.7, the Deputy Superintendent of Police admits in his crossexamination that he had not questioned the accused as to why hereceived the money and he has not recorded any statement. Theshameful answer given by P.W.7 that as per the office regulation, the officer should enquire about the receipt of the money and hemust record it in the mahazar and also record the statement, buthe had not followed the procedures in this case. Even it is to besaid that the defence has not established its version with strongmaterials as the prosecution case is already weak, the defencecase makes further dent in the prosecution case.

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 reliablecorroboration 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 forunimpeachable evidence as to the passing of thecurrency note from Niranjan Lal to the appellant. Wehave already indicated certain important circumstanceswhich cast doubt on that story.6. Having regard to all these circumstances, wethink it is a fit case where the courts below shouldhave required independent and trustworthycorroboration of the evidence of Niranjan Lal and Satish Chandra who had laid the trap. In Ram PrakashArora v. State of Punjab, AIR 1973 SC 498 at p.501this Court, speaking about the evidence of trapwitnesses, observed: "(They) were interested and partisan witnesses. They were concerned in the success of the trap andtheir evidence must be tested in the same way as thatof any interested witness and in a proper case thecourt may look for independent corroboration beforeconvicting the accused person".As there is no such corroboration, the appellantshould be given the benefit of doubt. "

In the decision the Honourable Supreme Court in SomParkash vs. State of Punjab reported in (1992) Crl.L.J 490), ithas been held thus; "2. The High Court found that the witnesses whowere associated in the conduct of the raid for recoveryof tainted money from the appellant could not be termedas independent who could be associated with suchraids. The High Court further expressed doubt aboutmoney was actually handed over in his presence. TheHigh Court, however, drew an adverse inference againstthe appellant from the circumstance that the bill whichwas delayed for unreasonable period had suddenly beenpassed by the appellant. On an overall assessment the High Court entertained some suspicion about thecredibility of the prosecution witnesses but at thesame time, did not find the suspicion to be strongenough to raise doubt about the guilt of the appellant. We agree with the learned counsel for the appellantthat in the face of the finding that the witnesses whoformed part of the raiding party were not independentand the evidence regarding handing over money to theappellant being unbelievable. The conviction of theappellant cannot be sustained. "

In the decision of the Honourable Supreme Court inV.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 theabsence of a proof of demand the question of raising thepresumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of presumption only if ademand is proved. "

In this case, as the credibility of the evidence of P.W.2is in question and as such it is not corroborated and also as hisevidence is not corroborated by any evidence of any independentwitness and also as there are certain infirmities in theprosecution case, this Court holds that the prosecution has notproved the demand and acceptance of bribe amount by accused beyondreasonable doubt.