Dismissed

State of Kerala v. P.S.Leelamma

Kerala HC6 Aug 2020CRL.A/1167/2019

Case brief

AI extract

What is this about?

The appellant State filed a criminal appeal challenging the acquittal of an accused former Women Sub Inspector for corruption offences involving alleged bribery and fabrication of false entries. The High Court dismissed the appeal, holding that the prosecution failed to prove guilt beyond doubt.

What did the court decide?

Appeal dismissed; acquittal of the accused affirmed.

State of Kerala Vs P.S.Leelamma — Corruption | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SUNIL THOMAS

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THURSDAY, THE 06TH DAY OF AUGUST 2020 / 15TH SRAVANA, 1942

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CRL.A.No.1167 OF 2019

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(THE JUDGMENT DATED 24.10.2017 IN CC 126/2016 ON THE FILE OF THE COURT OF THE ENQUIRY COMMNR. & SPECIAL JUDGE, THALASSERY)

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(CRIME NO.VC-05/2010 OF VIGILANCE AND ANTI CORRUPTION BUREAU, KASARAGOD )

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APPELLANT/COMPLAINANT:

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STATE OF KERALA REP. BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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SPL.G.P SRI.A.RAJESH

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RESPONDENT/ACCUSED:

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P.S.LEELAMMA W/O. K.J. PHILIP KOCHUPARAMBIL HOUSE, PAPPINISSERY, KANNUR (FORMERLY WOMEN SUB INSPECTOR OF POLICE, KASARAGOD).

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BY ADV. SRI.I.V.PRAMOD BY ADV. SRI.K.V.SASIDHARAN BY ADV. SMT.SAIRA SOURAJ P.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2020, THE COURT ON 06.08.2020 DELIVERED THE FOLLOWING:

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JUDGMENT

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The State, aggrieved by the acquittal of the sole accused in CC.No.126/2016 of the Enquiry Commissioner and Special Judge, Thalassery has preferred this appeal.

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Prosecution allegation was that the accused, being a public servant, while working as Women Sub Inspector of Police, Women Cell, Kasaragod, abused her official position and committed criminal mis-conduct by demanding and accepting a sum of Rs.1000/- (Rupees one thousand only) from PW1, as bribe on 21.06.2010 at 1.05 pm. It was alleged that the accused had offered to exonerate PW1 and her son PW10 from a criminal case pursuant to complaint filed by PW10. She had also received a total sum of Rs.4300/- (Rupees four thousand three hundred only), from PW1 and her son on various occasions. Prosecution has a further allegation that the accused, to screen herself from the

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crime committed by her, fabricated false evidence by making false entries in her official note book. Thus she committed offences punishable under Sections 7, 13(1) (d) read with Section 13 (2) of Prevention of Corruption Act and Section 193 of the Indian Penal Code.

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Complaint was laid by PW1 on 21.6.2010 before Vigilance. It was recorded by PW13, the then DY.S.P, Vigilance and Anti Corruption Bureau, Kasaragod. Ext.P1, FIR was registered and a trap was laid. Two currency notes of Rs.500/- (Rupees five hundred only) were smeared with phenolpthaline and entrusted to PW1. Trap was successfully conducted and the accused was arrested. Investigation was conducted by PW14, 15 and 16. Final report was laid by PW17. After the appearance of the accused before the trial court, prosecution examined PW1 to PW11 and Exts.P1 to P33 were marked. There was no defence evidence.

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On an evaluation of entire evidence, court below concluded that prosecution was not successful in establishing that the accused had demanded and

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accepted bribe from PW1. It was also held that there was no cogent and convincing evidence to establish the allegation that accused fabricated false entry in Ext.P29. Hence accused was acquitted of all the charges framed against her. Aggrieved by the acquittal, State has preferred this appeal.

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Heard both sides in extenso on admission of the appeal. Perused the records.

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The defence set up by the accused was that she was absolutely innocent. PW1, had complained to her, while she was the SHO of Kasaragod Police Station, that the wife and two children of PW10 were missing. Cr.No.461/2010 was registered. On 4.5.2010, she had asked PW1, PW10 and the relatives of missing lady to appear. On that day, PW10, was beaten up by his in laws. PW1 wanted PW10 to be taken to a hospital in Mangalore. Hence she obtained a loan of Rs.1000/(Rupees one thousand only) from accused. Later wife and children of PW10 returned and laid a complaint alleging domestic violence against PW1 and PW10. She

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refused to go with PW10 and left with her parents. She, with the help of accused got her children shifted to a school near her house. PW1 was enimical towards the accused due to the above reason. To trap her, PW1, offered to return the money on 21.6.2010. While the money was being received, she was apprehended by Vigilance. She claimed that she was innocent and was trapped by PW1. She has not manipulated Ext.P29.

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Assailing the acquittal, the learned Special Government Pleader for Vigilance contended that the court below failed to analyse the evidence properly, which according him, established the demand and acceptance of bribe beyond any doubt. It was contended that court should not have given much credence to minor contradictions in the versions of witnesses and should have noted that totality of the evidence proved the demand of bribe and acceptance of it by the accused. It was contended that Ext.P29 was manipulated, which was patent from the document itself and court should have considered it in proper

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perspective.

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Prosecution essentially relied on the oral testimony of PW1, PW2, PW3 and PW13. PW1 and PW2 were the direct eye witnesses to the handing over of cash and the receipt of it by the accused. PW2 was the witness who accompanied PW1. PW3 was the CI, who conducted the preliminary enquiry about the complaint. PW13 being the detecting officer deposed touching on the complaint, pre trap proceedings, trap and the recovery of tainted notes from the accused. Corroboration was sought from the documentary evidence which are Exts.P1 FIS, Ext.P2 entrustment mahazar, Ext.P4 recovery mahazar, Ext.P3 arrest memo and Ext.P31 inspection memo, as well as from the materials supporting the phenolpthaline test.

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PW1 and PW2 gave versions which were generally uniform on material points. Virtually, they corroborated each other. The process of recovery of money from accused was uniformly spoken by PW1, PW2 and PW13. It gets sufficient corroboration from

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the documentary evidence mentioned above, especially, the contemporaneous documents, Exts.P3, P4 and P31.

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There is also no serious objection regarding the phenolpthaline test.

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Of course, the oral evidence of the above witnesses are not free from some contradictions. In Ext.P4, it was stated that just before PW1 and police party left the vigilance office, there was a telephonic conversation between accused and PW1. According to Ext.P4, the call was made by PW1, to the accused. However, at the time of evidence, PW1, PW2 and PW13 deposed that it was accused who made a call to PW1. Further, according to prosecution on the date of apprehension of accused PW1 and PW2 went to the place of incident, in an auto rickshaw. According to PW1 and PW2, after alighting from auto rickshaw PW1 called accused, who came to the gate and met them. However, according to PW13, he saw PW1, after alighting from the auto, proceeding towards SP office, alone. Few other contradictions were pointed out by the

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learned counsel for the accused.

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Learned Special Government Pleader submitted that the incident happened in 2010. Witnesses were examined before trial court in 2017. Considering the long gap of 7 years between the date of incident and the date of examination, some contradictions are likely to occur. To support the contention, the learned Special Government Pleader relied on the decision of Supreme Court in Vinod Kumar Garg Vs State (Government of National Capital Territory of Delhi) (2020) 2 SCC 88, wherein, Hon'ble Supreme Court held that minor discrepancy in the testimonies may be in consequential, if demand and acceptance of bribe is established by cogent evidence. Even other wise, all the contractions appear to be minor and does not affect the substratum of the prosecution case.

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It was pointed out by the learned Special Government Pleader that Ext.P25 sanction was granted by PW8. The sanction was also not seriously disputed by the accused. Even other wise, Hon'ble Supreme

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Court in State of Madhya Pradesh Vs Jiyalal (2009) 15 SCC 72 held that the High Court will not be justified in interfering with a finding of sentence or order passed in the sanction order unless failure of justice has been caused to the accused. There is no such contention in this case.

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The main dispute contradicted the demand. As indicated earlier, the case of the accused was that, there was no demand for bribe, that amount paid on 21.6.2010 was return of the amount received by PW1 from accused as loan and that she has not committed any misconduct. It was also contended that there was no reason for the accused to demand bribe and that, accused purposefully trapped her due to previous enmity. This seems to be the consistent defence of the accused. It is pertinent to note that even at the time of interception, the accused had set up such a defence. It is admitted by PW13 that at the time of recording Ext.P4 recovery mahazar, accused had stated that, she had advanced money for the treatment of the son of

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PW1, which was returned on that day. It was recorded in Ext.P4 itself.

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It was contended by the learned counsel for the accused that there was no reason for accused to demand bribe. It was pointed out that when PW1 and PW2 met accused on the relevant day, accused did not specifically ask about bribe amount. She only asked PW1 whether she had brought it. It does not clearly refer to bribe. Hence the only evidence regarding previous demand is that of PW1.

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According to PW1, she had gone to Kasaragod Police Station and laid a complaint about missing of the daughter in law and grand children. On 4.5.2010 she gave Rs.2000/- (Rupees two thousand only) to accused as instructed by PW10, her son. On that day, her son was assaulted by the in laws. After one week she met accused and on her demand, paid a sum of Rs.1800/(Rupees one thousand eight hundred only). After the daughter in law and children were produced before Magistrate, PW1 went to the police station to meet the

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accused. She demanded Rs.10,000/- (Rupees ten thousand only) for not arraying PW1 and PW10 as accused in the complaint submitted by daughter in law. PW1 informed her son about the demand. Thereafter, she along with PW10 met accused at Kasaragod railway station when PW10 given as Rs.500/- (Rupees five hundred only) to accused. Finally two days prior to her complaint to Vigilance, accused demanded Rs.2000/(Rupees two thousand only) to be paid as bribe. However, when PW10 was examined he did not support the prosecution in any manner and gave evidence denying the above version of PW1. He completely denied the version of PW1 regarding demand for bribe.

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Records show that PW1 met the accused, for the first time, in connection with her complaint regarding missing of daughter-in-law and children. The above complaint was closed on 31.05.2010. From 28.05.2010 to 09.06.2010, accused was on medical leave. She rejoined duty on 09.06.2010. She was transferred to Women's Cell on 10.06.2010. She got

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relieved on same day and joined Vanitha Cell, attached to S.P.Office. The daughter-in-law was produced before the Magistrate and pursuant to her statement of allegation of domestic violence, by Ext.D1 dated 27.05.2010, SHO, Kasaragod police station was asked to enquire. According to PW11, the then S.I of Kasaragod, enquiry was conducted by a Head Constable who gave Ext.P2 report. Based on it PW11 gave Ext.P3 report to court. According to PW11, accused had no role in that enquiry. PW1 also admitted that, no crime was pending against them. In the above circumstances, there was no likelihood of accused demanding bribe in connection with a matter not enquired by her, it was argued.

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The learned Special Government Pleader to salvage this, referred to the decision reported in Bhanuprasad Vs. The State of Gujarat (AIR 1968 SC 1323); In that with reference to S.161 of the Indian Penal Code, it was held that all that prosecution had to establish was, that the appellants were public servants

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and they had obtained illegal gratification. The question whether there was any offence which the accused could have investigated or not was irrelevant for that purpose, it was held. Not withstanding the above, for considering the limited question whether the allegation of demand of bribe and acceptance of it, may arise in the particular facts of the case, I feel that the question whether accused was enquiring or investigating into any crime or complaint can also be considered.

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Another reason relied on by the court below to doubt the prosecution case was with reference to the place of incident. According to prosecution, accused directed PW1 to come to S.P Office. PW1 called accused after reaching the front gate of S.P Office. She came to the gate and received the cash on the road side. The view of the trial court was that, it was the most unlikely place where one in uniform would accept bribe. PW13, in his evidence stated that accused accepted the bribe near road side, and after confirming the acceptance from accused, PW13, took her to the police station for

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recovery, conducting phenopthaline test and completing other formalities. The explanation offered by the witness for taking the accused inside was that, he apprehended that if recovery and other formalities were conducted at the place of occurrence, public and media may assemble. Evidently, it was a place, which was frequently used by public, and hence, the reasoning of trial court seems to be correct.

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As mentioned earlier, the crux of the defence of the accused was that on 4.5.2010, PW10 was beaten by his in laws at the police station. For taking him to Mangalore for treatment, she had given a sum of Rs.1000/- (Rupees one thousand only) to PW1 as loan. Later, PW1 developed an enimity towards accused on a belief that accused was helping the daughter-in-law of PW1. Hence, to trap her, under the guise of returning the loan, money was paid to her, after informing the Vigilance.

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To substantiate the above, accused relied on the materials marshalled by the prosecution itself. The

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above defence was advanced by accused even when she intercepted and money recovered. This was recorded in Ext.P4 by PW13. He deposed that towards the end of preparation of Ext.P4, accused voluntarily stated that she had given a loan of Rs.1000/- (Rupees one thousand only) for taking PW10 to hospital and the money was returned on 21.06.2010. It is an admitted fact that PW10 was beaten up on 4,5,2010 and was taken to Mangalore hospital. Payment of Rs.1000/(Rupees one thousand only) for taking PW10 to hospital is seen recorded in Ext.P29, a note book kept in the police station, for recording the details of each days activities in the station. The trial court relied on Ext.P29, and believed defence version, in spite of specific contention of the prosecution that the entry in Ext.29 on 4.5.2010 was subsequently inserted. The court below on a careful analysis found that few words appeared to be added in between few words, but even leaving that, still the remaining writings indicated payment of loan of Rs.1000/- (Rupees one thousand

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only).

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Assailing the above finding, the learned Special Government Pleader pointed out that though accused was directed to produce Ext.P29, it was belatedly surrendered 11 days after the demand. In the meanwhile, several pages of Ext.P29 were removed and replaced with new pages, rewritten, adding a new entry on 4.5.2010. It was contended that to replace that predated entry, entire pages containing the entries from 4.5.2010 had to be replaced with new pages, and the entire notings had to be rewritten, since the relevant pages were stapled together at the middle. The learned Special Public Prosecutor submitted that pages 56 to pages 115 were thus removed and, replaced with new pages. The above pages, stand “different” from the remaining pages, in colour, texture, and are visibly replaced, when looked from both sides of the book, it was contended.

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A close look of Ext.P29 shows that there is

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some substance in the contention of the learned Special

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Government Pleader. Page 56 to Page 115 seems to be more whitish than the remaining pages of the book. The alignment of these pages, when viewed from both sides of the book, seems to be slightly different. The pattern of writings from page 56 on wards seems to be slightly different from the pages previous to page 56. However it is pertinent to note that prosecution did not have such a case at trial stage. The only contention was that there was an interpolation in the entry dated 45.2010. It was correctly answered by court below. When the official witnesses were examined, Ext.P29 was not shown to them and these doubts now raised were not brought on record. Expert opinion was also not called for. Though this court is competent to examine the genuineness of Ext.P29, at this stage and without putting it through competent witnesses and without giving an opportunity to the accused to explain, it may not be proper to consider, it especially in an appeal against acquittal.

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The evidence of PW1, indicates that after the

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daughter-in-law had appeared before the court, she refused to go with PW1 and PW10. She raised allegations against them. It is also on record that she started residing with her parents at Payyannur. She got the children relieved from their school at Kasaragod and got admission at school in Payyannur. Admittedly, she was helped by the accused for it. PW1 admitted that children were shifted without her knowledge. Though PW1 asserted that she had no enimity towards accused, it appears that PW1 was not happy with the conduct of accused. According to the accused, she was trapped on account of this enimity.

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Relying on the decision in State of UP Vs Zakaullah, (1998 KHC 680) it was contended that the courts should adopt a practical approach while analysing evidence and a pedantic approach, in rejecting the case of the complainant on the ground that complainant was aggrieved against bribe taker, would only help corrupt officials getting insulated from all the consequences. The learned Special Government Pleader also relied on

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the decision in State of Maharastra Vs Ishwar Piraji Kalpatri (1996) 1 SCC 542 in which it was held that malafide or anonymous nature of complainant or prosecution is not relevant, if on the basis of allegation in the complaint, a prima facie case is made out.

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On an appreciation of entire evidence, it can safely be held that prosecution did not succeed in proving the guilt of accused beyond doubt. I feel that the court below has correctly appreciated the facts. There is no scope for appeal. Accordingly, appeal fails and is dismissed.

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Sd/-

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SUNIL THOMAS, JUDGE

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R.AV

State of Kerala v. P.S.Leelamma

Case brief

What is this about?

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State of Kerala v. P.S.Leelamma

Case brief

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