The State of Karnataka Vs Basavraj S/O Sabu Hosmani

THE STATE OF KARNATAKA LOKAYUKTHA POLICE, POLICE INSPECTOR, KARNATAKA LOKAYUKTA, POLICE WING, BELAGAVI, REPRESENTED BY SPECIAL PUBLIC PROSECUTOR, KARNATAKA LOKAYUKTA.

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…PETITIONER

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(BY SRI. SANTOSH B. MALAGOUDAR, SPP)

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AND:

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BASAVRAJ S/O. SABU HOSMANI, AGE: 21 YEARS, OCC. S.D.A, TAHASILDAR OFFICE, NAVALGUND.

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YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.06.21 11:50:11 +0530

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VENKAPPA S/O. GADIGEPPA HATTIYAVAR, AGE: 26 YEARS, OCC. V.A.TRILAPUR, R/O. ARLIKATTI, TQ. NAVALGUND.

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…RESPONDENTS

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(BY SRI. JAGADISH PATIL, ADVOCATE FOR R1 AND R2)

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THIS CRIMINAL APPEAL IS FILED IS UNDER SECTION 378 (1) AND (3) OF CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL PASSED BY THE III ADDL. DISTRICT AND SESSIONS & SPECIAL JUDGE, AT BELAGAVI, DATED 29/9/2015 IN SPL.(KLA) C.C.NO. 50/2012 AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL PASSED BY THE III ADDL. DISTRICT AND SESSIONS & SPECIAL JUDGE, AT DHARWAD, DATED 29/9/2015 IN SPL.(KLA) C.C.NO. 2/2015 AND CONVICT AND SENTENCE THE RESPONDENT/ACCUSED PERSON FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 7, 13(1), (d) R/W. SECTION 13(2) OF PREVENTION OF CORRUPTION ACT, 1988.

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NC: 2025:KHC-D:7837 CRL.A No. 100143 of 2016

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HC-KAR

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THIS APPEAL, COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE RAJESH RAI K)

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The State has preferred this appeal against the judgment of acquittal passed in Spl.KLA.C.C.No.2/2015 dated 29.09.2015 by III Addl. District and Sessions and Special Judge for Lokayukta and CBI Cases, at Dharwad (hereinafter referred to as the 'learned Special Judge'), whereby the learned Special Judge acquitted accused Nos.1 and 2/respondents for the offences punishable under Sections 7, 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as ‘P.C. Act’).

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The factual matrix of the prosecution case in brief is that:

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The Accused No.1 Basavraj S/o Sabu Hosmani., was working as Second Division Assistant in Tahsildhar Office Navalgund. Accused No.2 Venkappa S/o Gadigeppa Hattiyavar., was working as Village Accountant at Tirlapur Village in Navalgund Taluk during the year 2014. Complainant-PW.1

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namely Shankarappa Ramappa Pujar, resident of Tirlapur was Herediatary Archak of Maruti Temple and other temples at Tirlapur. The Government used to pay tastik allowance to the Pujaries for performance of pujas in the Muzarai Temples. The said tastik allowance was disbursed by Tahsildar Office. As such PW.1 submitted an application on 11.06.2013 requesting for disbursement of tastik allowance of Rs.24,200/-. For the same, accused No.1 demanded illegal gratification of Rs.3000/- from the complainant on 03.03.2014. Hence he approached Lokayukta police station Dharwad on 03.03.2014, lodged a written complaint as per Ex.P1. On the strength of Ex.P1 the FIR registered in Crime No.4/2014. Later a trap was conducted and thereby accused Nos.1 and 2 apprehended and the tainted amount was recovered at the instance of Accused No.2. The said incident was witnessed by shadow witnesses-PWs.2 and 3. The Investigating Officer-PW.5 after completion of investigation and on obtaining sanction laid the charge sheet against accused Nos.1 and 2.

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The learned Special Judge framed the charges against the accused for the aforementioned offences and read

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over the same to them. However, the accused pleaded not guilty and claimed to be tried.

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In order to bring home the guilt of the accused for

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the charges leveled against them, the prosecution in total examined 6 witnesses as PWs.1 to 6 so also marked 54 documents as Exs.P.1 to 54 and identified 13 material objects as MOs.1 to 13.

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After closure of the prosecution evidence, the learned Special Judge read over the incriminating evidence of the material witnesses to the accused as per the provision of Section 313 of Cr.P.C.

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Post assessment of oral and documentary evidence available on record, the learned Special Judge acquitted the accused for the charges leveled against them. The legality and correctness of the said judgment is challenged in this appeal by the appellant-Lokayukta.

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Heard the learned Addl. SPP Sri Santosh D. Malagoudar for the appellant and Sri Jagadish Patil for the respondents.

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HC-KAR

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The primary contention of the learned counsel for the Lokayukta is that the learned Special Judge failed to appreciate the aspect that PWs.2 and 3-the shadow witnesses for the trap, supported the case of prosecution and among these witnesses PW.3 has categorically stated that he visited the office of accused No.2 along with complainant and the complainant-PW.1 kept the bribe amount on the table of accused No.2. The said amount was seized by the Police and a trap mahazar was drawn as per Ex.P3. Further, the prosecution also proved the entrustment panchanama as per Ex.P2 and produced the Compact Disc containing the voice recording of accused No.1. In such circumstance, the prosecution successfully proved the guilt of accused. Despite, the learned Special Judge acquitted the accused based on surmise and conjecture. Accordingly he prays to allow the appeal and to convict the accused.

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Per contra , learned counsel for the respondents contended that the prosecution miserably failed to prove the guilt of accused by placing cogent evidence. As such, the learned Special Judge rightly acquitted the accused for the

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charges leveled against them. He further contended that PW.1complainant has categorically stated in his evidence that he did not give the bribe amount either to accused No.1 or 2, instead he handed over the same to one Basappa Gudi with a request to pay the same to accused No.2. In such circumstance, the evidence of PWs.2 and 3-the shadow witnesses cannot be believed since their evidence does not corroborates the testimony of PW.1. Further PW.1 totally denied the demand and acceptance of bribe either by accused No.1 or 2. Further, the scripts and compact Disk produced by the prosecution are not supported by any certificate under the provision of 65A or 65B of the Indian Evidence Act. In such circumstance, the Special Judge rightly acquitted the accused by passing a well reasoned judgment. Hence he prays to dismiss the appeal.

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I have bestowed my anxious consideration on the arguments advanced by the respective counsel and also perused the documents available on record.

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As could be gathered from records, one Shankarappa Ramappa Pujar who examined as PW.1 lodged a complaint against accused for demand of illegal gratification as

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per Ex.P1. Subsequently, a trap was held in the office of accused No.2. On careful perusal of his evidence before the Court, he deposed contrary to the contents of Ex.P1 and trap mahazar-Ex.P3 and stated that he handed over the bribe amount of Rs.3,000/- to one Basappa Gudi by requesting him to pay the same to accused No.2. Whereas, the shadow witness PW.2 stated that, at the time of trap, the complainant alone went inside the office of accused No.2 and the Investigating Officer called him, as such he went inside to the office and at that time, the Police was holding the hands of accused No.2. However, according to PW.3, at the time of trap, complainant entered into the office of accused No.2 and he sat on a chair in front of accused No.2 and there were some conversation between them, later complainant kept the amount on the table and came out. This evidence of PWs.2 and 3 totally contradictory to each other and also to the evidence of PW.1. In such circumstance, the prosecution failed to prove the demand and acceptance of illegal gratification made by accused Nos.1 and 2. Though the prosecution relied the scripts and Compact Disk of mobile conversation between accused and PW.1, however, the said secondary evidence not supported by

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mandatory certificates under the provisions of 65A or 65B of the Indian Evidence Act. As discussed supra, the complainant himself given a go bye to the averments of his complaint and PWs.2 and 3 have not witnessed the demand or acceptance of bribe made by accused Nos.1 and 2. In such circumstance, I am of the considered view that the prosecution failed to prove the guilt of accused beyond all reasonable doubt.

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The Hon'ble Apex Court in the case of N. Vijayakumar vs. State of Tamil Nadu reported in (2021) 3 SCC 687 held that "absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence and the presumption under Section 20 of the Act can be drawn only after the demand for and acceptance of illegal gratification is proved.

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It is settled position of law that the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of the guilt. Moreover, the Hon'ble Apex Court in the case of P.Sathyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh and another reported in (2015)

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10 SCC 152 held that, the proof of demand cannot be proved by the evidence of other witnesses, in such eventuality though such recovery proved; the benefit of doubt should be extended to the accused. Mere acceptance of any amount allegedly by way of demand, ipso facto, would not be sufficient to bring home the charges under Sections 7 and 13 of the Act. In the said judgment, the Hon’ble Apex Court by referring the judgment of Sujit Biswas vs. State of Assam reported in (2013) 12 SCC 406 held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of “may be" but has to upgrade it in the domain of “must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.

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Hence, applying the above findings in the judgment of the Hon’ble Apex Court to the facts and circumstances of this case, I am of the view that the learned Special Judge rightly acquitted the accused for the charges leveled against them. In

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