SHRIKANT YALLAPPA HAVANUR Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The appellant was the accused in the following circumstances:-

(2.) The learned Counsel for the appellant would point out that the complainant had turned totally hostile and it is found as a fact by the trial court. Since there was total contradiction insofar as the statement made and the allegations made in the complaint, the court below was even compelled to direct that a complaint for tendering false evidence be registered against the complainant. Therefore, the very foundation of the case of the prosecution was taken away. However, the court below has placed reliance on the evidence of the shadow witnesses in holding that the charges have been established against the accused beyond all reasonable doubt. Even insofar as the evidence of the shadow witness is concerned, the learned Counsel would take this court through the record to demonstrate that there were several inconsistencies for which there was no explanation forthcoming and the case of the prosecution cannot be sustained in the face of such inconsistencies. It is pointed out that insofar as the manner in which the demand and acceptance is said to have been made is vague. The case of the prosecution is that the accused had gone out with the complainant and the shadow witness to a nearby restaurant from his office and during the course of having tea, the demand was made and at which time, the money was handed over by the complainant. However, according to PW.2, the money was handed over not inside the hotel when they were having tea. PW.3 on the other hand, has stated that there was no discussion about the demand and acceptance of the bribe amount inside the hotel, but it was only after all of them came out of the hotel and it was outside the hotel that the demand was made by the accused and the money was handed over by the complainant and received by the accused. This inconsistency is not accepted by the prosecution at all and the court below has overlooked the said discrepancy. It is further pointed out that though there were several persons present in the hotel when the demand and acceptance had taken place, no other independent witness had been examined by the prosecution. There is no effort made to establish the occurrence of the event by examining any independent witnesses and even the witnesses examined by the prosecution having made contradictory statement, it cannot be said that the demand and acceptance is established. Further, insofar as the shadow witness is concerned, it is his categorical statement that there was no exchange of words between the plaintiff and the accused as regards the bribe amount is concerned and he did not hear as to what transpired between the complainant and the accused when they came out of the hotel. Therefore, sine qua non of an offence punishable under Section 13(1)(d) is the demand and acceptance of the bribe and when this is not established by the evidence of the complainant and due corroboration by the shadow witness and inconsistent and vague statements being made even by the shadow witness, it cannot be said that the commission of the offence has been made out beyond all reasonable doubt. Hence, he would submit that the prosecution case has to fail. There is also inconsistency in the trap having successfully accomplished. In that, one witness has stated that it was done inside the hotel when they were having tea and the other witness has stated that it was outside the hotel. This is also a serious contradiction which would take away the veracity of the case of the prosecution.

(3.) On the other hand, the learned Counsel for the respondent, seeking to justify the judgment, would point out that there is a significant circumstance which is not brought to the attention of this court, in that, it is not denied by the appellant that the bribe amount was found in his possession and this has been established by cogent evidence as regards the receipt of money, which was tainted with phenolphthalein powder and that the appellant's hands and pocket having been washed, were found to be pink in colour thereby indicating that the tainted money had been handled by the accused and was in his possession and hence the possession of the amount would raise a presumption under Section 20 of the PC Act, of the receipt of the bribe amount. The burden is on the accused to explain the circumstances under which he was in possession of the said bribe amount. The presumption is against the accused and this is not at all met by the appellant in seeking to urge the so-called inconsistencies highlighted by the learned counsel for the appellant.