H. PRAKASH PAI Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant herein was General Surgeon in the District Hospital, Kanhangad in July-August, 1998. One Lakshmi was under his treatment in July 1998 for some gynecological problems. Lakshmi was admitted in the hospital on 26.7.1998 as advised by the appellant herein. She was also advised to undergo an operation. The prosecution case is that for conducting the said operation, the appellant demanded an amount of 2000/- from Lakshmi and her relatives including her husband, and accordingly at about 3.25 p.m. on 3.8.1998 at his house, the appellant received 1000/- as illegal gratification from Madhavan, the brother of Lakshmi. A trap was arranged by the Deputy Superintendent of Police, VACB, Kasaragod on the complaint of Madhavan. After investigation, the VACB submitted final report before the Enquiry Commissioner and Special Judge (Vigilance), Kozhikode. After complying with the procedural formalities under the law, the learned trial Judge framed a charge against the accused under Sections 7 and 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act ('P.C Act' for short) to which the accused pleaded not guilty. The prosecution accordingly examined 8 witnesses in the trial court and marked Exts. P1 to P16 documents, and also the MO1 to MO6 properties including the currency seized from the consulting room of the accused. When examined under Section 313 Cr.P.C, the accused denied the incriminating circumstances and projected a defence that he had no reason or occasion to receive illegal gratification for operation because he was on duty off on 30.7.2008, and that operation was in fact conducted by the Gynaecologist much later. The case of the defence is that operation could not have been fixed before pre-anesthetic test and other tests. She was detected as a case of ovarian cyst, and even gynaecological test was conducted on 3.8.1998. In such a circumstance, it is quite unbelievable and unacceptable that the appellant received illegal gratification on 3.8.1998 for conducting operation. No oral evidence was adduced from the side of the defence. But Exts.D1 and D1 (a) were marked during trial.

(2.) On an appreciation of the evidence adduced by the prosecution, the learned trial Judge found the accused guilty under Sections 7 and 13 (2) read with Section 13 (1) (d) of the P.C Act. On conviction, he was sentenced to undergo rigorous imprisonment for 2 years each and to pay a fine of 5000/- each under Sections 7 and 13 (2) of the P.C Act by judgment dated 14.11.2006 in C.C No.52 of 2000. Aggrieved by the conviction and sentence, the accused has come up in appeal.

(3.) In fact, the appellant has no dispute regarding the prosecution case that he was on duty in the District Hospital, Kanhangad as General Surgeon from 26.7.1998 to 3.8.1998. However, the prosecution examined one Assistant Surgeon (PW-6) to prove the necessary documents. Exts.P8 to P10 documents will prove that the appellant herein was on duty in the hospital on the relevant dates, and that PW2 , Lakshmi was admitted in the hospital on 26.7.1998 by the Duty Medical Officer as advised by the appellant herein, after private consultation at his residence. The prescription issued by the appellant, contained in Ext.P10 series, will show that it was the appellant, who advised admission in the hospital.