P RAJAMANI Vs. STATE

JUDGEMENT

(1.) THIS appeal is against the conviction and sentence of the learned Special Judge (Chief Judicial Magistrate), South Arcot District at Cuddalore in S.C.No. 1 of 1985, dated 2.3.1987. THIS appellant who was the Village Administrative Officer of Punavasal village, alleged to have received bribe of Rs. 25 on 3.7.1984 for issuing the community certificate. The prosecution has examined 11 witnesses and the case of the prosecution in the lower court is as follows: The son of P.W.1 by name Muruganandam was studying in 10th standard in Orathur Higher Secondary School. As this school is at a distance of about four miles away from his village Ponnavasal his father P.W.1 wanted to admit him in the school hostel, where free boarding and lodging is provided to the backward community boys. As this boy Muruganandam belongs to a backward class P.W.1 approached P.W.8, who is working as Junior Assistant in Orathur School, for getting admission of his boy in the hostel. P.W.8 advised him to produce the community certificate and also the income certificate for admitting the boy in the hostel. On 2.7.1984, P.W.1 approached his appellant, who was the Village Administrative Officer in charge for Ponnavasal village, and requested for the community certificate and income certificate for which this appellant demanded Rs. 25 as bribe. Though P.W.1 expressed his inability, this appellant insisted that unless the amount as demanded by him was paid, he would not issue the community certificate. Therefore, P.W.1 saying that he would come on the next day, came to Cuddalore and orally gave the complaint to the Vigilance Inspector P.W.11, who recorded the complaint Ex.P-1. He registered a case against this appellant in Crime No. 4/AC/84 under Sec. 161, Indian Penal Code and asked P.W.1 to come on the next day early morning with the amount demanded by this appellant. P.W.11, the Inspector of Police, sent requisition to P.W.2 attached to the Housing Board and one Varadharajan, Deputy Registrar, to be the witnesses in the trap case. On the next day morning P.Ws. 1 and 2 and Varadharajan, were present in the Vigilance office at 5.00 a.m. P.W.11 explained to P.Ws. 1 and 2 and Varadharajan the salient features of the phenopthalence test and conducted the demonstration by spraying the phenopthalene powder over the currency notes M.Os. 1 and 2 brought by P.W.1 and asked the witness Varadharajan to handle the currency notes M.Os. 1 and 2 and dip his fingers in the Sodium Carbonate solution which was colourless. When he did so, the solution turned to pink colour P.W.11 prepared a mahazar Ex.P-2 for the demonstration and also for the currency notes M.Os. 1 and 2 P.W.1 was instructed to go along with P.W.2 and handover the money to the appellant only when he demanded. All of them went in a jeep to Panapatti village and except P.Ws. 1 and 2, others were waiting at a distance of about 1 km. away from the house of this appellant. When P.Ws. 1 and 2 went to the house of this appellant he asked P.W.1 whether he had brought the money. P.W.1 paid M.Os. 1 and 2 currency notes and the appellant receiving the money kept in within his left-hand side shirt pocket. Thereafter, this appellant prepared the community certificate Ex.P-3 and told P.W.1 that he would issue the income. certificate in the prescribed form which would be supplied in the school and to come with that form. P.Ws. 1 and 2 came out and informed P.W.11 as to what had happened. P.W.11 and all others came to the house of this appellant P.W.1 was kept away and P.W.11 introducing himself to the appellant, asked him whether he received money from P.W.1. THIS appellant got perplexed and P.W.11 arranged to prepare the sodium carbonate solution in two glass tumblers for dipping his right and left hand fingers. When this appellant did so, the solution turned to pink colour and the solution was preserved in M.Os. 5 and 6 bottles. P.W.11 asked this appellant to produce the money received from P.W.1. The appellant took out M.O. 3. Again sodium carbonate solution was prepared in which the M.O. 3 was dipped and that solution also turned to pink colour. M.O. 7 is the solution of that test. P.W.11 prepared a mahazar Ex.P-4 for what had happened in the house of this appellant. Thereafter, the house of the appellant was searched for which Ex.P-5 house search list was prepared and nothing incriminating was seized from his house. P.W.11 prepared a plan Ex.P-14 for the place where he seized the M.Os. 1 and 2 and also sodium carbonate solution. Two days later P.W.11 came to know that this appellant was creating a kist receipt Ex.P-6 on 5.7.1984 as though he received the kist amount from P.W.1 on 3.7.1984. THIS document was attested by P.W.3, the village Menial. Therefore, he seized Ex.P-6 receipt. As the accused was arrested, the Revenue Divisional Officer. Chidambaram, suspended the appellant and also granted sanction under Ex.P-10 for the prosecution of this appellant.

(2.) WHEN this appellant was questioned under Sec. 313 of the Code of Criminal Procedure to explain the incriminating circumstances found against him, he denied the allegation of receiving birbe. He also stated that P.W.1 paid the kist amount Rs.25 for which he prepared the kist receipt Ex.P-6 and the alleged community Certificate Ex.P-3 was obtained from him when he was in the police custody.

(3.) IT is true that there is inconsistency in the evidence of P.Ws. 1 and 2 on certain fact and it is because of that, P.W.1 was treated as hostile after the cross-examination. But this is a case in which the appellant himself would admit the payment of Rs. 25 by P.W.1 to him though according to him, this amount was towards the kist payable by P.W.1. P.W.2, the trap witness, was sent with P.W.1 only for the observation of the change of hands of money M.Os. 1 and 2 if any. As mentioned above, this fact is admitted by the appellant himself. The cash M.Os. 1 and 2 mentioned in the Mahasar Ex.P-2 prepared by the Vigilance Officer, had gone to the hands of this appellant and this amount has been later on seized from the appellant by the Vigilance Officer under Ex.P-4. mahazar. IT is true that the mere recovery of the money from the accused is not sufficient to prove the guilt as held by the Supreme Court in Sita Ram v. State of Rajasthan, A.I.R. 1975 S.C. 1432: 1975 Crl.L.J. 1224. Therefore, it has to be proved that this payment was towards the bribe, for the favour which P.W.1 wanted from this appellant. But the appellant's plea is that he received this amount when P.W.1 tendered it towards the kist amount payable by him for his land. According to the learned counsel for the appellant, as P.W.1 is owning 25 cents of land in patta No. 35 in Manakudaiyaniruppu village and admittedly kist was due from P.W.1, the payment of Rs. 25 was only towards the kist as explained by this appellant and as there is inconsistency between the evidence of P.Ws. 1 and 2 as there is no other reliable evidence to prove the demand of bribe by this appellant, the version of the accused, which is more probable, has to be accepted when especially P.W.1 has been treated as a hostile witness. No doubt P.W.1 has been treated as hostile witness by the prosecution. But on a perusal of his evidence, I find that he did not fail to support the prosecution with regard to the payment of the bribe to the appellant or demand of the bribe by him. On the other hand in the cross examination he gave answers to certain facts connected with P.W.2 contrary to the prosecution version. Even though in the chief examination P.W.1 said that after his complaint on 2.7.1984 evening to P.W.11, he was asked to come on the next day morning to the Vigilance Officer, where he met P.W.2 and one Varadharajan, and Phenopthalene test demonstration was done at that time, in the cross-examination he said that he met P.W.2 and Varadharajan at about 8.00 p.m. in the vigilance office on 2.7.19,84 and the phenopthelane test also was done, on the same night. Therefore, this part of the evidence relating to his meeting the trap witness P.W.2 and Varadharajan was changed in the cross-examination. Another part of the version in the cross-examination is that though he had P.W.2 went together to the house of this appellant, he changed it as though be alone entered into the house of this appellant, whereas P.W.2 was standing outside. In the chief-examination P.W.1 has stated that he and P.W.2 went together to the house of the appellant and this appellant and this appellant asked him whether he brought the amount. But contrary to that, in the cross-examination, he changed it as mentioned above. IT is because of this deviation from the chief-examination, P.W.2 was treated by the prosecution as hostile, after the cross examination by the accused. The deviation is only in respect of time of arrival of the trap witnesses and the accompaniment of P.W.2 into the house of this appellant. IT cannot be forgotten that the trap witness P.W.2 and Varadharajan were brought by P.W.11 only for witnessing the payment of the amount to the appellant. But in this case, as the appellant himself would admit the payment of this amount M.Os. 1 and 2 by P.W.1 to him, the role of the trap witness in this case and the phenopthalene test, loose it's significance. Therefore, even if we accept what has been stated by P.W.1 in the cross examination namely, that the trap witness came to the office of P.W.11 on the night of 2.7.1984 and that P.W.2 did not accompany him into the house of this appellant, still it will not affect the prosecution case. P.W.1 would stand by his words that this appellant demanded Rs.25 as bribe for issuing community certificate, that he paid this bribe of Rs. 25 to him on 3.7.1984 and obtained the certificate Ex.P-3. He has also stated in his evidence that when this appellant issued Ex.P-3 community certificate, he asked him to get prescribed application form from the school, so that he would sign in that form, for the issuance of the income certificate. There is no deviation in this version of P.W.1. For the reason that P.W.1 did not support the prosecution in every aspect, it cannot be argued that his evidence has to be rejected in toto. IN Kershoram Bora v. State of Assam, 1978 M.L.J. (Crl.) 644, the Supreme Court has observed that merely because a witness is declared as hostile his evidence cannot be rejected on that ground alone, though when the prosecution has declared him hostile, the prosecution exhibits its intention not to rely on the evidence of such a witness. As mentioned above, the prosecution treated him hostile only for the deviation made by him with regard to the unimportant aspect relating to the trap witness. I am using this word "unimportant" consciously for the reason that the trap witness becomes unnecessary when appellant himself has admitted the payment of the money by P.W.1. In view of the circumstances under which P.W.1 was treated as hostile, I feel that his evidence cannot be completely rejected as unreliable. This Court also in Charles Waker Devadas v. State by the Inspector of Police, 1993 L.W. (Crl.) 346, has held that the evidence of the hostile witness need not be rejected in toto and the Court can rely upon such portion if found satisfactory. But the learned counsel for the appellant would contend that when the principle of criminal law is that the benefit of doubt be given to the accused, the prosecution cannot make use of the advantageous portion in the evidence of P.W.1 to support its case, discarding the disadvantageous portion against it. Certainly, this argument carries weight and even if this principle is applied, the disadvantageous portion in the evidence of P.W.1 is only the time of arrival of the trap witness and the non accompaniment of P.W.2 into the house of the appellant. Even if these portions are taken as such, as said above, they cannot affect the prosecution case in any manner, because the payment of the money is admitted by the appellant, and P.W.1 has consistently stated through-out his evidence that he paid this money as bribe as it was demanded by the appellant. Therefore, even taking the evidence of P.W.1 as a whole the prosecution case has not been let down by P.W.1 and therefore his evidence cannot be rejected even though he was treated as hostile witness by the prosecution.