Subbusingh Vs. State by
Public Prosecutor  INSC 883 (4 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 402 OF 2002 Subbu
Singh ....Appellant Versus State by Public Prosecutor ....Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a learned Single Judge of Madras High
Court setting aside the judgment of acquittal passed by learned Chief Judicial
Magistrate cum Special Judge, Erode, Tamil Nadu.
Appellant faced trial
alongwith one Rajappan. The appellant faced trial for alleged commission of
offence punishable under Section 7 read with 12, 13(2) read with Section
13(1)(d) read with Section 12 of the Prevention of Corruption Act, 1988 (in
short the `Act'). The trial court directed acquittal of both the accused
persons. The High Court upheld the acquittal so far as the co-accused is
concerned, but set aside the judgment of acquittal and directed conviction for
the appellant for charged offences. The minimum sentence of six months and fine
with default stipulation for the offence punishable under Section 7 of the Act
and one year's rigorous imprisonment with fine with default stipulation for the
offence under Section 13(2) read with Section 13(1)(d) of the Act were awarded.
version in a nutshell is as follows:
Subbusingh (Al), the
appellant was working as Sub Inspector of Police at Sathiyamangalam Police
Station. Rajappan (A2), is the friend of Al. There was a land dispute between
Renga Naicker (P. W.4) and Thippa Naicker (P.W.21). Both of them quarreled with
each other on 6.7.1991.
relative of P.W.4 came to the Sathiyamangalam Police Station and complained to
Al Sub Inspector of Police orally against P.W.21.
Al directed the Police
constables P.W.11 and P.W.12 to go the spot to bring P.W.21. Accordingly, they
went to the scene of occurrence and found that P.W.21 was lying down with
injuries. The Constables took the injured and others to the Police Station.
In the meantime, Selvan
(P.W.2), brother-in-law of P.W.21 followed them to the Police Station. Since
the injured P.W.21 was not taken to the hospital, P.W.2 requested A1 to send
him to hospital. As, permitted by Al, the injured was taken in an Auto to a
private hospital run by Dr. Thangavel (P.W. 10). After taking injection from
the hospital, PW 21 and others came back to Police Station. P. W.2 was asked to
come back in the evening.
went to the Police Station at 5.00 P.M. At that time, the Police obtained Muchalika
from both the sides stating that they would settle the matter by approaching
the Civil Court. Then, Al directed P.W.21 and others to wait outside the Police
Station and act as per the instructions of one A2 who is the friend of A 1.
Within a few minutes,
A2 came and informed P.W.2 that Al had asked him to get Rs.500/- from them.
Natarajan (P.W.22), son of P. W.21 told that he was having only Rs.100/-. A2
after getting instruction from Al asked them to give Rs.100/-. P.W.22 told A2
that Rs.100/- was required to buy medicine. Then, A2 told them that he would
give Rs.100/- from his pocket and handed over the same on behalf of P.W.21 at
nearby bangle shop where P.W.8 was doing business. A2 directed him to bring
Rs.100/- and another Rs.400/- being the balance to be paid to Al.
Then, they were
allowed to go.
On 7.7 1991 Al
visited the land and gave the message that both PWs. 2 & 4 should meet him
in the evening. PW2 met Al at about 5.00 P.M. in the Police Station. At that
time, Al asked him whether he had brought the amount and PW2 told him that the
money was not ready. Al told him that already the amount of Rs.100/- was
received through shop owner and balance amount of Rs.400/- should be paid, or
otherwise he would put up a case against P.W.21 on the complaint of PW5 PW 2
told him that he would bring on 12.7.1991. Then PW2 informed this to PW21.
Since PW2 did not
want to give bribe he gave a complaint Ex.P2 to the Inspector of Police,
Vigilance (PW26) on 11.7.1991 at about 4.30 PM.
P.W.2 was asked to
come to the Vigilance Office next day. In the meantime, P.W.26 requested the
assistance from Manokaran (P.W.3) and one Jagadeesan, working in the Tamil Nadu
Next day morning, the
pre-trap mahazar was prepared by observing required formalities. The test was
demonstrated by applying phenolphthalein powder on the currency notes of
Rs.400/- handed over by PW.2. Then all of them went to the Police Station in
the early morning of 12.7. 1991 Since Al was not available, they went to his house
which is situated in the police quarters. Then, PWs. 2 & 3 alone were asked
to go inside. P.W.2 gave the balance amount of Rs.400/- to Al, who in turn
received it by his left hand.
he promised that he would take care of the case against P. W.21. Both P.Ws.2
and 3 came out and gave a signal.
and his men entered into the house. At that time, A1 was having M 0.1 series
currency notes in his left hand. The phenolphthalein test on both the hands was
conducted which proved positive.
investigation was taken up by, Vivekanandan (P.W.27), another Inspector of
Police. After examining the witnesses and obtaining sanction, he filed a charge
sheet against both the accused 1 and 2.
During the trial, the
prosecution examined P.Ws. l to 27, filed Exs. P1 to P.21 and marked M.Os. 1 to
questioning under Section 313 Cr.P.C., Al stated that he was innocent and the
currency notes were planted under his chair without his knowledge. A2 stated
that a false case was foisted against both Al and A2 at the instance of one
Lawrence under whom PW 2 was working.
The trial court after
considering the evidence on record acquitted both the accused in respect of the
In the appeal before
the High Court the stand of the State was that the trial court acquitted the
accused overlooking the material evidence without appreciation of evidence on
record in the proper perspective and the finding recorded are totally perverse
and against the material and evidence. The accused persons supported the
judgment of the trial court. The reasonings for the acquittal were as follows:
(1) PWs. 7 & 8
the shop owners had turned hostile. In Ex.P.7 The Credit Account Book, there is
no mention that the second accused had been given the amount of Rs.100/- and
that the said amount had been given to the first accused. Since the Muchalika
was entered both parties in the police Station and the same was signed by them
on 6.7.1991, there was no necessity for the first accused to ask the bribe
amount through the second accused.
(2) P.W. 21 alone is
the aggrieved person, as the amount was demanded from him only for the purpose
of not putting up a case against him. So, P. W.2 need not have agreed to pay
the bribe amount to Al and he need not lodge a complaint before the Vigilance
without the knowledge of P.W. 21. P.W. 2 must have been instigated by some
(3) Instead of
lodging a complaint before Erode Vigilance Office which has got jurisdiction
over the area, P.W. 2 had chosen to lodge a complaint before Coimbatore
Vigilance. There is no explanation for this.
(4) When P.W. 2
entered into the house of Al, he questioned him, "Who are you?" If
really, the occurrence had taken place on 6.7.1991 and 7.7.1991 in which P.W. 2
met Al and A2 on both these occasions, there was no necessity for Al to put
that question. Therefore, the occurrence took place on 6.7.1991 and 7.7.1991 as
spoken to by P.W. 2` and P. W. 21 to P. W. 23 cannot be true.
(5) No complaint was
produced before the trial court to show that P.W. 4 to P.W.6 on the one side
and P.W. 21 and P.W. 23 on the other side lodged complaint against each other.
Therefore, the evidence of P. W. 2 and P. Ws. 21 to 23 cannot be believed.
(6) The evidence of
P.W. 12, P.W. 13, P.W. 15 and P.W. 16 the Constables attached to
Sathiyamangalam Police Station, over the enquiry in regard to the complaint by
both parties in the Police Station, cannot be believed, since there is no entry
in the General Diary, The evidence of P.W. 14, another Constable also has to be
disbelieved, since the Muchalika obtained from both parties was not produced.
Moreover, Exs. P.12 and P13, the Trip Sheets of the Taxi contained the
signature of P. W. 27 Vigilance Inspector and as such they are fabricated
phenolphthalein test was not conducted properly. The pre- trap test was not
properly explained to the witnesses P. Ws. 2 and 3. After the trap, the
signature of the first accused had not been obtained on the bottles M.Os. 5 and
6. This shows that the test could not have been conducted at the house of Al.
(8) Al received the
money by his left hand. When P.Ws. 2 and 3 entered into the house, Al kept the
money in his left hand only, but the test conducted on both the right and left
hands proved positive. There is no explanation as to how the test on right hand
(9) Out of total
amount of Rs.500/-, according to the prosecution, Rs. 100/- was paid by A2
through P. Ws. 7 and 8 who had turned hostile. P.
W. 2 admitted that he
never paid Rs.100/- to A2 to be given to Al. When the receipt of a portion of
the demanded amount of Rs.500/- i.e. 100/- had not been proved, the trap
incident for the receipt of the balance amount of bribe could not be believed.
(10) Since the
evidence available on record through P.Ws. 2, 3 and 26 would not prove that the
accused has committed the offence under Section 7, presumption under Section 20
cannot be drawn.
The High Court found
that the conclusions are erroneous and on misreading of the evidence.
Accordingly the judgment of the trial court was set aside.
counsel for the appellant submitted that considering the limited scope for
interference with the judgment of acquittal the High Court ought not to have
interfered in the matter as the view taken by the trial court was a possible
view and therefore the High Court should not have interfered.
submissions inter alia were made in support of appeal:
1. Foundation for the
demand has been disbelieved;
2. Demand by A2 was
disbelieved and was part of the prosecution version regarding demand has been
disbelieved so the whole thing should have been discarded.
should have gone to Erode where there was a Vigilance Officer.
The evidence of PW2
is unreliable and there is no corroboration to his evidence. It is unnatural
that demand would be made from a person who was injured after settlement of the
dispute. The High Court erroneously held that PW2 called the witnesses which is
not correct. PW21 did not make any complaint though he is supposed to be the
affected person. There is no signature as alleged. It is pointed out that PW2
is not directly involved, he is brother in law of PW 21.
counsel for the respondent State on the other hand supported the judgment.
needs to be pointed out that the recovery was not disputed. The accused stated
that with oblique purpose he was trapped. The money was kept in the pocket of
case of prosecution with reference to the enquiry over the incident on 6.7.1991
is clearly spoken to by P.W. 2, P.W. 21, P.W. 22, son of PW 21 and P.W. 23
another relative. Though the other party namely P.Ws. 4 and 5 turned hostile,
they would admit that the incident took place on 6.7.1991 and that they were
called to Police Station by Al, who after enquiry directed them to settle the
dispute and warned them That apart, P.W.13, P.W.14, P.W.15 and P.W.16 the
Constables attached to the said Police Station, would also specifically state
that the enquiry was conducted on the basis of the oral complaint of P.W. 5
against P.W. 21 by Al and Muchalika, was obtained from them after giving
warning on his instruction.
circumstances, there is no reason to reject the evidence of P.W.2, P.W.13 to
P.W.16 and P.W.21 to P.W.23.
these acceptable materials are available through these witnesses, their
deposition cannot be rejected merely on the ground that the complaints given by
P. W. 4 and P. W. 21 were not marked and Muchalika obtained from both parties
were not produced. As a matter of fact, Arumugham (PW 25), the Inspector of
Police, Sathiyamangalam under whom A1 Sub-Inspector of Police was working
specifically stated that the complaints of PW 4 and PW 21 were not registered
in the Police Station.
This shows that even
without receipt of the written complaint and registration of the same, a mock
enquiry was conducted by A1 and on the pretext of enquiry, a Muchalika was
obtained from both the parties.
such a situation, it cannot be contended that the entire enquiry was over on
6.7.1991 itself after obtaining Muchalika. The fact that he went to the field
on 7.7,1991 at about 11.00 A.M. and directed P.W. 2 to come and meet him in the
Police Station in the evening itself would show that the parties were made to
think that he had not finished the enquiry. Only on the said direction, P.W. 2
went and met A1 in the Police Station on 7.7.1991 evening. In that context, Al
demanded money from P.W. 2 and threatened that if he failed to bring the
balance amount, namely Rs. 400/-, he would initiate action against P.W. 21 on
the complaint given by P.W. 5. Only thereafter P.W, 2 undertook to pay that
amount on Friday at the police station
is a case where P.W. 21 was attacked by P.Ws. 4 and 5, as a result of which
P.W. 21 sustained injuries and fell down on the field and became unconscious.
Instead of taking action against the persons concerned, who attacked P.W. 21,
Al detained P.W. 21 from the morning till evening.
Though Al was
requested by P.W.21 to send him to the Government Hospital, Al did not choose
to send him to the Government Hospital: on the other hand, he was beaten by Al
himself for having requested to send him to the Government Hospital. This shows
that Al did not allow P.W. 2 and P.W. 21 to get the medical records regarding
the injuries sustained by P. W. 21.
He was sent only to
Private Doctor P.W. 10. Though P.W. 10 turned hostile, Ex. P.8 marked through
him would show, in the light of the evidence of P.W. 2 and P.W. 21, that P.W.
10 gave prescription to P.W. 21 for the injuries sustained by him.
far as the stand that money was kept for the purpose of false implicating, the
same is without substance. The accused was a police officer who knew the
consequences of the bribe. He had not explained as to why he took up the money
in his examination under Section 313 of the Code. The accused stated that the
PW2 took the money because the Inspector asked him to do so. The normal conduct
would have been to take action against PW2 for offering bribe. Additionally, if
matter was closed there was no need for going to the field. It is to be noted
that the appellant was alone in his room for sometime holding the currency
notes before PW 26 and other officer entered into the house. Therefore, as
rightly observed by the High Court, the possibility of appellant counting the
money with the help of right hand cannot be ruled out. Once it is proved by the
prosecution that the money was demanded as bribe and the same was received from
PW2, Section 20 of the Act comes into play. Once there is a presumption as
contemplated under Section 20, it is for the accused to establish that the
amount was not received as bribe.
minimum sentence has been imposed there is no scope for interference with the
being the position there is no merit in this appeal which is dismissed. The
appellant shall surrender to custody forthwith to serve the remainder of
sentence, if any.
(Dr. ARIJIT PASAYAT)