Umesh S/o. Vittal Patil Vs. State Of Karnataka, - Court Judgment

SooperKanoon Citationsooperkanoon.com/1232448
CourtKarnataka Dharwad High Court
Decided OnJul-21-2022
Case NumberCRL.A 2760/2012
JudgeV.SRISHANANDA
AppellantUmesh S/o. Vittal Patil
RespondentState Of Karnataka,
Excerpt:
- 1 - crl.a no.2760 of 2012 ® in the high court of karnataka, dharwad bench dated this the21t day of july, 2022 before the hon'ble mr justice v.srishananda criminal appeal no.2760 of2012(c) between: umesh s/o. vittal patil age:38. years, occ: junior training officer, o/o. now at j.t.o. govt. iti vidyanagar, hubli. …petitioner (by sri shankar hegde and associates, adv.) and: state of karnataka, by lokayukta police belgaum. …respondent (by sri santosh b.malagoudar, hcgp) this criminal appeal is filed u/s3742) of cr.p.c. praying to set aside the judgement of conviction and order of sentence dated1106.2012 passed by the iv- addl. dist. & sessions judge & spl.judge (pca), belgaum, in spl.case no.186/2009 and to acquit him in the interst of justice. this appeal coming on for hearing this.....
Judgment:

- 1 - CRL.A No.2760 of 2012 ® IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE21T DAY OF JULY, 2022 BEFORE THE HON'BLE MR JUSTICE V.SRISHANANDA CRIMINAL APPEAL NO.2760 OF2012(C) BETWEEN: UMESH S/O. VITTAL PATIL AGE:

38. YEARS, OCC: JUNIOR TRAINING OFFICER, O/O. NOW AT J.T.O. GOVT. ITI VIDYANAGAR, HUBLI. …PETITIONER (BY SRI SHANKAR HEGDE and ASSOCIATES, ADV.) AND: STATE OF KARNATAKA, BY LOKAYUKTA POLICE BELGAUM. …RESPONDENT (BY SRI SANTOSH B.MALAGOUDAR, HCGP) THIS CRIMINAL APPEAL IS FILED U/S3742) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGEMENT OF CONVICTION AND

ORDER

OF SENTENCE DATED1106.2012 PASSED BY THE IV- ADDL. DIST. & SESSIONS JUDGE & SPL.JUDGE (PCA), BELGAUM, IN SPL.CASE NO.186/2009 AND TO ACQUIT HIM IN THE INTERST OF JUSTICE. THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING.-. 2 - CRL.A No.2760 of 2012

JUDGMENT

Convicted accused in Special C.C.No.186/2009 by judgment dated 11.07.2022 on the file of Special Judge, Belagavi has preferred this appeal.

2. Brief facts of the case are as under: Upon the complaint lodged by one Sharifsab Pakrusab Nadaf, Lokayukta police registered a case in Crime No.16/2008 for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Gist of the complaint averment reveals that, accused was working as a Junior Training Officer in the Government ITI College, Saundatti. Sister’s son of the complainant by name Maktumsab was studying in second year ITI in Government ITI College, Saundatti and final examination was scheduled to commence in 21.07.2008. Sri Maktumsab had paid necessary fee to be paid to the Government for attending the examination and accused received Rs.5,500/- from each of the student in the said class in order to see that the student would pass through the examination effortlessly. Accordingly, accused also demanded Rs.5,000/- from Maktumsab, which was not - 3 - CRL.A No.2760 of 2012 interested to be paid by the complainant however he paid only Rs.1,000/- and sought time for remitting the balance amount and thereafter the accused insisted for balance amount.

3. On 13.07.2008, the complainant along with Maktumsab approached the accused and sought for time and also requested him that Maktumsab is a poor person and therefore, sufficient time needs to be given. However, the request made by the complainant and the Maktumsab was turned down by the accused and he conversation between the accused and the complainant was recorded in a mobile phone and since they are not interested to part away the illegal gratification, they approached the Lokayukta Police on 16.07.2008 and lodged the complainant.

4. The head of the raid party being convinced about the veracity of the complaint averments, made arrangements for the intended trap. He secured two panch witnesses and explained them about the complaint averments and also took Rs.4,500/- to be paid from the hands of the complainant comprising of nine notes of Rs.500/- denomination and entered serial numbers of the said notes and smeared phenolphthalein - 4 - CRL.A No.2760 of 2012 powder and demonstrated the chemical reaction of the phenolphthalein powder with the sodium carbonate solution to the panchas and drafted entrustment/ experimental mahazar in the presence of panch witnesses and took their signature.

5. Thereafter, the complainant was instructed that he along with shadow witnesses should go to the working place of the accused, on demand should hand over the tainted currency notes to the hands of the accused and thereafter gave a pre- designated signal to the rest of the raid party by using his hand kerchief.

6. Thereafter raid team has been proceeded to place of the accused where the accused was working, complainant handed over the money to the accused on demand in the presence of the shadow witness and gave a pre-designated signal. Immediately the rest of the raid party came to the scene of offence; enquired the accused about the illegal gratification and handling of tainted currency; seized nine currency notes of Rs.500/- denomination; the serial numbers of the currency notes were tallied and colour test were conducted, which stood in positive; explanation of the accused - 5 - CRL.A No.2760 of 2012 was obtained; accused was arrested and trap mahazar was drafted.

7. Thereafter, the accused was produced before the Special Judge and he was sent to judicial custody. Subsequent thereto, detailed investigation has been conduced and charge sheet came to be filed against the accused for the aforesaid offences.

8. Presence of the accused was secured and he was on bail and charges were framed. Accused pleaded not guilty and trial was held.

9. In order to prove the case of the prosecution, in all 25 witnesses were examined as PWs.1 to PWs.25 and prosecution relied upon the 50 material documents which were exhibited and marked as Exs.P.1 to P.50. Eleven material objects were also relied on by the prosecution, which were marked as MO.1 to MO.11.

10. On behalf of the defence six documents were marked during the course of examination of prosecution witnesses Ex.D.1 to D.6. Thereafter accused statement as - 6 - CRL.A No.2760 of 2012 contemplated under Section 313(5) of Cr.P.C. was recorded, wherein the accused had denied all the incriminatory circumstances found against him and offered written explanation as is contemplated under Section 313 of Cr.P.C., which reads as under: “P¯À A.313 ¹.Dgï.¦.¹ P¼ÉUÀ É°Tv ÀºÉýP É £Á£ÀÄ ¸gÀPÀÁj PÉÊUÁjP ɸAÀ¸ÉÜ ¸ªÀ zÀ wÀAÛiÀÄ°è QjAiÀÄ vgÀ¨À ÃÉw C¢PüÁj CAvÁ P®É ¸ À ªÀiÁqÀÄwzÛ ÉÝãÀÄ. D PÁ®PÉÌ MlÄ Ö 14 «zÁåyðU¼ÀÄÀ £ªÀ ÄÀä ¸AÀ¸ÉÜAiÀÄ° èvgÀ¨À ÃÉw ¥qÀ AÉiÀÄÄwzÛ ÀÝgÀÄ. £Á£ÀÄ PvÀðÀªÀå ¤ªðÀ»¸ÀĪ ÀPÁ®PÉÌ ªÀÄPÀÄªÛ ÀĸÁ§ Eª£ÀÀÄ vgÀ¨À ÃÉwUÁV EzÀÝ£ÀÄ. Cª£ÀÀÄ ¸jÀAiÀiÁV PÁè¹U ɧgzÀ ÃÉ ¥ÀAæiÉÆÃUUÀ¼À°À èºÁdgÁUzÀ ÃÉ vgÀ¨À ÃÉw ²PPÀëjÀUÁU°À , £À£UÀÁU°À ªÀÄAiÀiÁðz ÉPÉÆqÀÄwgÛ°À ® èºÁUÀÆ C¸¨À åsÀ jÃw¬ÄAz À ªwÀð¸ÀĪÀÅzÀÄ ºÁUÀÆ UÉÊgÀĺÁdj¬ÄgÀĪÀÅzgÀ À §UÉÎ ¥ÁAæ±ÀÄ¥Á®jU É £Á£ÄÀ °TvªÀ ÁV84-2008 gAÀzÀÄ ªgÀ¢À ¸°À ¹è PªÀæ ÀÄ vUÉzÉ ÀÄPÉƼÀî®Ä «£AÀw¹zÉÝ. D ªgÀ¢À AiÀÄ£ÀÄß ¥ÁAæ±ÀÄ¥Á®gÀÄ ¥jÀòð¹ ªÀÄÄA¢£À PªÀæ ÄÀPÁÌV DzÃɲ¹zÀÝgÀÄ. CzgÀAÀv É F «µAÀiÀĪ£ÀÀÄß ªÉÄïÁ¢PüÁj dAn ¤zÃÉð±PÀgÀÄÀ vgÀ¨À ÃÉw «¨sÁVÃAiÀÄ PZÀ ÃÉjU É ¢:

8. 8-2008 gAÀzÀÄ w½¹zÀÄÝ EgÀÄvÀzÛ .É CzgÀ°À ÷è ¸AÀ¸ÉÜAiÀÄ ¹§âA¢ PÉʪÁq«À z ÉJ£ÀÄߪ À§UÉÎ w½¹zÀÄÝ EgÀÄvzÀÛ .É CzÃÉ ªÃɼUÉ É£ªÀ ÀÄä ¹§âA¢ ¦geÀ Áz ÉJA§ vgÀ¨À ÃÉw C¢üPÁj EªgÀÄÀ ¥ÁAæ±ÀÄ¥Á®g ÀeÉÆvÉ vAÀm É ªÀiÁr F PÁgtÀ PÁÌV £Á£ÀÄ ¥ÁAæ±ÄÀ¥Á®g À geÀ É ªÉÄðzÁÝU À ¥¨Àæ sÁg À ºÀÄzÉÝAiÀÄ°zè ÁÝU À ¦geÀ Áz É EªjÀU É CªgÀ£ÀÄÀß ¸Ãɪ¬É ÄAz À - 7 - CRL.A No.2760 of 2012 CªÀiÁ£vÀÀÄ Û ¥rÀ ¹ DzÃɱ À §AzÁU À £Á£ÃÉ CzÀ£ÀÄß CªjÀU É££ÀÀß ªÄÀÄSÁAvgÀ À v®À Ħ¹zÀÄÝ E£ÀÆß E¯ÁSÁ «ZÁgÀu É £qÀ AÉiÀÄÄwÛgÀÄvzÀÛ .É D PÁgtÀ ¥AÀæ±ÀÄ¥Á®jU É ¨Aɧ°¸ÀÄvÉÛã É CAvÁ ££ÀÀß ªÉÄÃ¯É AiiÀÁªvÀÄÀ Û zéÉñ À ¸Á¢¸üÀÄwzÛ ÀÝ£ÀÄ. F ªÉÄï É £ªÀ ÀÄÆ¢¹z À PÁgtÀ U½ÀUÉ ¦geÀ ÁzÉ EªgÀÀÄ ££ÀÀß ªÉÄï É ¸ÃÉqÀÄ wÃj¹PÉƼÀÄî®Ä ªÀÄÄPÀÄªÛ ÀĸÁ§£ À ªÉÄï É £Á£ÀÄ ªÀiÁrz À ªgÀ¢À AiÄÀ£ÄÀß w½zÀÄPÉÆAqÀÄ vªÀ ÀÄä eÁwAiÀÄ ¸AÀ§Az sÀ »rzÀÄ ±jÀÃ¥¸sÀÁ§, ºÄÀ¸ÃÉ£¸ÀÁ§ EªgÀ ÀªÀÄÄSÁAvgÀ À£Á£ÀÄ «zÁåyðU½ÀAz À¥jÀÃP Éë¥Á¸ÀÄ ªÀiÁqÄÀª À¸®À ĪÁV M¨ÉÆâ§âjAz À5,500/- ®AZ ÀvUÉzÉ ÀÄPÉƼÀÄîwzÛ ÉÝ£ÀÄ, CzgÀAÀvÉ ªÀÄÄPÀÄªÛ ÀĸÁ§¤UÀÆ ¨ÃÉrP ÉEmÁÖU ÀCªÀ£ÀÄ £À£UÀ ɪÉÆz®À Ä gÀÆ.1,000/- PÉÆnÖzÀÄÝ G½z À4,500/- U½ÀU É MvÁAÛiÀÄ ªÀiÁqÀÄvzÀÛ ÉÝà CAvÁ PÁgtÀ vÉÆÃj¹ ££ÀÀß ªÄÉï É ¸ÄÀ¼ÄÀî ¦AiÀiÁð¢ zÁR°¹zÀÄÝ EgÀÄvzÀÛ .É CzgÀAÀv É zÁ½ ªÀiÁrzÀ ¢ª¸À À £Á£ÀÄ ¦AiÀiÁð¢AiÀiÁz À ªÀÄÄPÀÄªÛ ÀĸÁ§£À£ÀÄß ¥Á¸ÀĪÀiÁq®À Ä ºÀt PÃɽ ¥qÀ ¢É zÀÄÝ ºÁUÀÆ £À£ßÀ ¥ÁåAn£ À Q¸¬É ÄAz ÀºtÀ ºÁdgÀÄ ¥qÀ ɹz ÉC£ÀÄߪ À«µAÀiÀÄ ¸ÀļÀÄî. F E® è¥QæÀAæiÄÉU¼À£ÀÄÀß vªÀ ÀÄä C£ÀÆPÀÆ®PÉÌ vPÀÀÌAv É ªÀiÁr ¸ÀļÀÄî ¥PÀægÀÀt vAÀiÀiÁj¸¯À ÁVz.É D ¢£ À AiÀiÁªzÀ ÃÉ ºÃɽP ÉPÉÆq®À Ä M¥Àà¢zÁÝU À££ÀÀߣÀÄß MvÁAÛiÀÄ ªÀiÁr C jÃw ºÃɽP É ºÁUÀÆ G½z ÀºÀÄqÀÄUgÀ Àº¸ÉÀgÀÄU¼À£ÀÀÄß ¥ÀnÖ §g¹ÉPÉÆArgÀÄvÁgÛ.É £Á£ÀÄ ££ÀÀß ªÀÄ£¬É ÄAz À PÉÆlÖ ºtÀ £ªÀ ÀÄä d«ÄãÀz°À è §Az À GvÀà£ÀߢAz À ªÀiÁj §Az À ºÁUÀÆ £À£Àß ªÃÉv£ÀzÀ °À è PÀÆr¹z À ºtÀ EzÄÀÝ D ºtÀ ªÀ£ÀÄß £Á£ÀÄ «zÁåyðU½ÀAz À v¯À Á gÀÆ.5,500/- ¸AÀU»Àæ ¹z À ºtÀ C£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî. ££ÀÀß ªÀÄ£¬É ÄAz Àd¥ÀÛ ªÀiÁrzÀ ºÀt gÀÆ.70,500/- CzÀÄ ££ÀUÀÉ ¸ÃÉjz À ºtÀ ªÁVzÀÝjAz À wgÀÄV PÉÆq®À Ä DzÉñ À ªÀiÁq¨À ÃÉPAÉzÄÀ «£AÀw¹PÉƼÀÄîvÃÉÛ£.É - 8 - CRL.A No.2760 of 2012 £Á£ÀÄ ¤gÀÄ¥gÀÁ¢ ü EzÀÄÝ ££ÀÀߣÀÄß DgÉÆÃ¥¢À Az À ªÀÄÄPUÀÛÉƽ¸¨À ÃÉPAÉzÀÄ «£AÀw¸ÀÄvÃÉÛ£.É ¸Àܼ:À ¨¼ÉUÀÁ« (GªÉÄñ À¥Ánî) ¢£ÁAP:À24-02-20 DgÉÆæ 11. Subsequent thereto, learned Special Judge heard the parties in detail and convicted the accused and sentenced him as under: “The accused is sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.5000/-, in default simple imprisonment for a further period of three months fro the offence punishable U/s 7 of the Prevention of Coruption Act, 1988. The accused is further sentenced to undergo rigorous imprisonment for a period of one and half years and to pay fine of Rs.10,000/- in default simple imprisonment for a further period of four months for the offence punishable U/s 13(1)(d) r/w Sec.13(2) of the Prevention of Corruption Act, 1988.” - 9 - CRL.A No.2760 of 2012 12. Being aggrieved by the same, accused-appellant is before this Court challenging the validity of the judgment passed by the Trial Court on the following grounds. (cid:1) The impugned judgment and order is contrary to law and the materials on record and therefore, the finding arrived at are vitiated as illegal and bad in law, hence, the judgment, sentence and order is liable to be set aside. (cid:1) It is humbly submitted that the evidence of PW- 6 shadow pancha is unbelievable, unworthy of credence, unnatural and suffers from contradictions, exaggeration and omission. The shadow pancha PW-6 is not at all independent, the learned trial judge has failed to initiate perjury proceedings against him for giving two different versions on oath. Instead the learned trial judge believed the evidence of PW-6 without any justification. PW-6 has admitted that he has deposed on oath in the departmental proceedings as per Ex.D-6, wherein, it is clearly stated that PW-6 has not heard the conversation between the appellant and the complainant PW-3, he has further admitted that he has not seen the passing of money from complainant to the appellant. However, before Special Court he says that he - 10 - CRL.A No.2760 of 2012 has not heard the conversation between complainant and appellant but had seen appellant receiving the money and putting it in pant pocket after counting the currency notes. This version should have been discarded by the learned Trial Judge as the two inconsistent statements of witnesses given at one or the other stage of the proceedings shall be discarded as unworthy of credence as held by Apex Court in Surajmal's case. Thus the learned Trial Judge has erred by accepting the evidence of PW-6 despite of production of Ex.D-6. (cid:1) It is humbly submitted that the persons who can speak about demand and acceptance of illegal gratification in the instant case are PW-3 complainant, PW-4 a person who had accompanied PW-3 throughout the proceedings, PW-6 shadow pancha and PW-23 the student on whose behalf PW-3 has said to have paid illegal gratification of Rs.4,500/- Other students produced between PW-9 to PW-21 are circumstantial witnesses to support demand of illegal gratification. In the trial PW-8 to PW-21 have turned totally hostile to the case of prosecution and in-cross examination by Special PP also nothing could be elicited against the appellant. Similarly, PW4who accompanied - 11 - CRL.A No.2760 of 2012 PW-3 throughout the proceedings and PW-23 a student stated supra have also not supported the case of the prosecution and were declared as hostile witnesses and subjected to cross- examination of Special PP, wherein nothing against the appellant could be elicited. Thus the witnesses who remains in the fray are PW-3 and PW-6. PW-6 has given contradictory statements by giving one version in the departmental proceedings as per Ex.D-6 and by giving diagonally opposite version before the Special Court. Thus his evidence is unacceptable and unworthy of credence besides being unnatural and improbable. Thus what remains with the prosecution is the isolated version of PW-3. The complainant PW-3, has not stated anything about demand. What he has stated is that "he has paid Rs.4,500/- as fees to the appellant and not as alleged bribe money. There is colossal difference between his version in complaint Ex.P-6 and his deposition before the Hon'ble Special Court. He has given go by to the case of the prosecution as for as all other matters are concerned. There are numerous material contradictions, even then his evidence is accepted. Thus evidence of PW-3 is not helpful to the case of the prosecution for proving demand and acceptance of illegal gratification.-. 12 - CRL.A No.2760 of 2012 The PW-4 who has accompanied PW-3 also says that he, (PW4 has not seen alleged demand and acceptance of illegal gratification. evidence of PW-3 also should have been discarded for above said reasons: Thus the prosecution/respondent has utterly failed to prove demand and acceptance of illegal gratification. (cid:1) It is humbly submitted that the evidence of PW- 3 is required to be discarded not only for the reason that PW-3 has given contradictory evidence on demand and acceptance but also for the reason that he is accomplice, as such, his evidence shall not be accepted without corroboration in material particulars as held in S.114 of Indian Evidence Act. PW-3 says he has taken SIM from PW-4 and mobile phone from PW-8. On enquiry it is revealed that PW-8 was not having mobile with facility of recording conversation made in cell phone. He has also stated that no mobile phone was given to either PW-3 or to PW-4. Though PW-3 spoke to one 1.G.Peerjade colleague of appellant 21 times in 6 days prior to alleged trap. Even then PW-3 says he does not who is Peerjade and that he does not know the holder of mobile number 9945435607. Therefore, his evidence is - 13 - CRL.A No.2760 of 2012 unworthy of credence and does not inspire the confidence. The background of the case should not be lost sight off. The Peerjade was placed under suspension for manhandling Principal PW- 2. The suspension order was handed over to Peerjade by the appellant. Therefore, he had developed grudge against the appellant. Hence, PW-3 got filed false case against the appellant. (cid:1) It is further submitted that no work of PW-3 or PW-23 was pending with the accused/appellant as on the date of alleged trap. (cid:1) It is humbly submitted that the learned Trial Judge has failed to notice an evidence of PW-6, PW-3 & PW-4, who have categorically stated that hand wash of the appellant was taken after making the accused/appellant to handover the money i.e., after recovery. (cid:1) It is humbly submitted that the evidence of PW- 24 is unworthy of credence as he claims to have taken the statement of students produced as PW-9 to PW21by visiting their college on 27- 07-2008. It is pertaining to note that the college was closed as 27-07-2008 was a holiday being Sunday. PW-23 & PW-4 have also stated that they have not given statement before 1.0. PW- 24. There are other contradictions and - 14 - CRL.A No.2760 of 2012 improvements made by PW-24 in his deposition before the Special Court. Therefore, his evidence is liable to rejected. (cid:1) It is humbly submitted that Ex.P-48 does not contain the so called proof showing the conversation said to have been made by PW-3 with appellant on 14-07-2008 at 9:30 PM. There are number of contradictions and exaggeration coupled with omissions which conspicuously demonstrate that the investigation is perfunctory. (cid:1) It is humbly submitted that the learned Special Judge has failed to appreciate the evidence of PW-3 in the light of the deposition given by PW- 4, PW-8 to PW-21 and PW-23. Thereby erroneous decision. (cid:1) It is humbly submitted that prosecution has utterly failed to prove the scene of offence with credible convincing cogent evidence. PW6says that scene of offence is 5'ft inside the gate, vis- à-vis PW-7 says that the scene of offence is 150'ft away from the gate (that too outside the gate). On this solitary ground alone entire impugned is to be discarded. (cid:1) It is humbly submitted that learned Trial Judge has failed to appreciate the evidence on record, - 15 - CRL.A No.2760 of 2012 including the findings given by enquiry officer in the department enquiry. When two views are possible the view favourable to the accused shall be taken into consideration. In the instant case though there are apparently different versions the learned judge has failed to give the benefit of doubt in favour of the appellant. The careful perusal of impugned order shows that the approach of the learned Trial Judge in presuming the appellant guilty since inception itself shows that very mind set of the learned judge was against the cardinal principles of criminal jurisprudence that the accused shall be treated as innocent till the guilt is proved beyond hilt. In this case as the very mind set was towards guilt rather than innocence, the Special Judge has failed to appreciate the important admissions, apparent contradictions, significant improvements, deliberate evasive answers, series of inconsistent statements made by witnesses on material aspects of demand and acceptance, scene of offences etc. (cid:1) It is humbly submitted that prosecution has utterly failed to prove that MO-9 contained the conversations between appellant and complainant. As these conversations are set to have been recorded in a mobile, which has not - 16 - CRL.A No.2760 of 2012 been seized nor proved before the Trial Court and in the absence of subjecting MO-9 to spectagraphic analysis test, the genuinity of voisograms cannot be proved. In order to prove the genuinity of recording, the prosecution shall prove accuracy of time, date, place of occurrence and relevancy of fact i.e., conversation. To ensure doctoring of conversation the genuinity shall be proved by subjecting MO-9 & mobile to the laboratory. In this case the prosecution has failed to prove that the mobile of PW-8 was borrowed by PW-4 for the purpose of recording and that the SIM of PW-3 was used by putting the same in the mobile of PW-8. PW-3 and PW-8 have denied having given their respective SIM card and cell phone. With this the called details collected by the prosecution shows that on 14-07-2008 at 9:30 PM PW-4 has not called the appellant to his cell phone i.e., 9880594741. The SIM card said to have been used by PW-4 claiming to be PW-3's also was not proved as the said SIM card belongs to one Shri.Azad Nadaf of Dharwad, who is nothing to do with this case and he has neither been cited as witnesses nor has been examined during the investigation or before the court. With this PW-3 himself has refused the - 17 - CRL.A No.2760 of 2012 ownership of SIM as his. Thus prosecution has failed to recording of conversation. (cid:1) It is humbly submitted that PW-3 & PW-4 have stated that nothing has been recorded in the cassette recorder given to them by Lokayukta Police. This shows that deliberately the cassette recorder was not produced as the production of the same would have shown that PW-3 trusted money into the pocket of accused, as accused has shouted and resisted thrusting as the recording would have shown the same. Thus learned Special Judge has failed to adverse inference for not recording the conversation despite of carrying the cassette recorder with specific instruction from Lokayukta Police to record the conversation between complainant and appellant. This recording cannot be accepted because this material is said to have been collected prior to lodging of FIR and has not been collected in the course of investigation. The learned Judge should have discarded MO-9 by applying the ratio laid down by Hon'ble Apex Court in various decisions. (cid:1) It is humbly submitted that the questionings u/s 313 Cr.P.C are illegal in as much as the alleged incriminating materials pertaining the charge are not put to the appellant seeking his - 18 - CRL.A No.2760 of 2012 explanation. The same has prejudiced his defence resulting in failure of justice.

15) It is humbly submitted that the sanction order is bad in law and on this count is alone impugned judgment is liable to be set aside. (cid:1) It is further submitted that where, the prosecution did not examine any one present at the scene of offence, "where whole transaction of bribe was alleged to have taken place" and no palpable explanation by the prosecution is forthcoming as to why no one from amongst the natural eye witnesses were produced specially when the eye witnesses found to be highly interested in success of the trap, the accused/appellant would be entitle to acquittal. (cid:1) It is further submitted that where witness makes to inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witness becomes unreliable and unworthy of credence. AIR1979SC1408in this case PW-3, PW-6, PW-7 & PW24have given contradictory evidence as stated supra. Hence, their evidence is liable to be discarded. (cid:1) Charge to be proved beyond reasonable doubt by prosecution and the accused should be - 19 - CRL.A No.2760 of 2012 considered innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification 2009 (CCR) 231 (SC). (cid:1) When corroboration is wanting for demand and acceptance illegal gratifications it is unsafe to base conviction. Shadow witness with raiding party requires corroboration. 2009 SCC (Cri) 879. (cid:1) Corroboration between complainant and shadow witness must, evidence of complainant shows he gives evasive answer and claims lack of memory, exaggerates material facts. His evidence is unworthy of credence. 2004(2) KCCR1233 2006(3) KCCR1445 (cid:1) Overall assessment of matter disclosing that prosecution story was not true accused entitled to acquittal 1985 criminal law journal 504. (cid:1) Defence theory given immediately in the form of immediate explanation is given under threat it is not a voluntary statement. (cid:1) When character of trap witness did not appear natural the evidence of such witness needs to be discarded.-. 20 - CRL.A No.2760 of 2012 (cid:1) When accused proves his case with preponderance of probability. The benefit of doubt shall be given to accused. 2009 CCR499(SC). (cid:1) For sustaining conviction u/s 7 of PC Act, 1988 pendency of work is essential. In the instant case none of the witnesses have deposed regarding the pendency of work and the motive for demanding illegal gratification was kept under dark. The Special Judge has erroneously held that the work is pending even when there is no evidence to show that for what purpose the appellant has demanded illegal gratification. The learned Special Judge failed to appreciation the evidence of PW-3, PW-6, & PW-7 in accordance with law. (cid:1) It is submitted that when the prosecution has failed to prove the case beyond reasonable doubt, the learned Special Judge sought not to have passed erroneous order assigning the imaginary and unjust reasons in the judgment. Therefore, the order of the learned Special Judge is devoid of merit and perverse. (cid:1) The above facts amply shows that the story of the prosecution is unnatural and prima facie appears to be false. The appellant has never - 21 - CRL.A No.2760 of 2012 demanded and received any illegal gratification from anybody at any point of time, much less from the complainant PW-23. (cid:1) The learned Special Judge has committed serious error in convicting the appellant by relying on the evidence of PW-3, PW-6, PW-7 & PW-24 but their evidence suffer from full of material contraction and omission which go to the root of the case and falsify the entire case of the prosecution/respondent. (cid:1) It is submitted that the prosecution has suppressed the genuineness of the case and they have not come before the court with clean hands against the appellant. But the learned Special Judge has come to wrong conclusion in erroneously convicting the appellant. Thus the same has resulted in miscarriage of justice to the appellant. (cid:1) It is submitted that the learned Special Judge has failed to understand the case of the defence while appreciating the witness and accepted the case of the prosecution and has not given any credence to the defence version. (cid:1) It is submitted that the prosecution has suppressed the genuineness of the actual incident and came with false story that the - 22 - CRL.A No.2760 of 2012 appellant has demanded and accepted illegal gratification. The learned Special Judge also accepted the same and arrived to wrong conclusion in convicting the appellant without assigning *convicting satisfactory and cogent reasons. (cid:1) It is submitted that the appellant was not in a position to show any favour or disfavor to the complainant. No work of the complainant was pending with appellant as such, there is no question of appellant demand any illegal gratification from him. (cid:1) It is humbly submitted that the impugned judgment and order dated 11-06-2012 is contrary to law and the material record and therefore the finding arrived at is vitiated as illegal and bad in law, hence, the judgment and order impugned is liable to be set aside. (cid:1) That the appellant craves leave to refer and rely upon various authorities in support of his case. (cid:1) That the appellant craves to refer to and rely upon charge sheet and other exhibited documents in support of his case. (cid:1) That the appellant craves leave to add, amend, delete, change, alter, modify any of the - 23 - CRL.A No.2760 of 2012 foregoing paras / grounds with the permission of this Hon'ble Court.

13. Reiterating the grounds urged in the appeal memorandum, Sri Shankar Hegde, learned counsel for the appellant contended that the entire case of the prosecution is nothing but ingenious and concoction with an intention to falsely implicate the accused in the case, on account of previous ill-will nurtured by the complainant party against the accused.

14. He also pointed out that the case of the prosecution is not proved to any extent muchless beyond reasonable doubt inasmuch as the prosecution witnesses namely PWs.9 to 21, who are the students and classmates of Maktumsab have turned hostile and therefore, the theory of the prosecution that sum of Rs.5,500/- from each of the students was demanded by the accused for easy and effortless passing of the second year diploma. He also pointed out that the question of Rs.1,000/- being paid and balance sum of Rs.4,500/- being demanded and accepted by the accused is not proved by placing cogent and convincing evidence on record in as much as there is no evidence on record which would subsequently pointed out that - 24 - CRL.A No.2760 of 2012 there was a demand of Rs.4,500/- by the accused either before lodging of the complaint or at the time of actual trap and sought for allowing the appeal.

15. He also pointed out that the mobile phone with which the conversation recorded earlier to lodging of the complaint took place is not being seized by the Lokayukta Police and therefore, there is no cogent evidence for the purpose of proving the demand of illegal gratification by the accused.

16. Per contra, Sri Santosh B.Malagoudar, learned counsel representing Lokayukta Police vehemently contended that in the case on hand, the complainant has supported the case of the prosecution so also, the shadow witness in toto. There is material on record stating that nephew of the complainant was studying in Government ITI college, Saundatti in second year diploma. There is also material on record that accused has handled the tainted currency in view of the fact that colour test stood positive. He further argued that insofar as the work of the complainant is concerned, admittedly the nephew of the complainant was studying in the Government ITI - 25 - CRL.A No.2760 of 2012 College in the second hear diploma and accused being working as Junior Training Officer is not in dispute. The prosecution deemed to have proved that in order to show favour to the nephew of the complainant, the illegal gratification amount was demanded by the accused and therefore, sought for dismissal of the appeal.

17. In view of the rival contentions of the parties, the following points would arise for consideration. i) Whether the prosecution has successfully established all ingredients to attract offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of PC Act?. ii) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference by this Court?. iii) What order?.

18. Regarding Point Nos.1 & 2 : In order to establish the case of the prosecution, the prosecution relied on the evidence of PW.3-complainant, PW.6-shadow witness, PW.7-Co-pancha and investigating officer.-. 26 - CRL.A No.2760 of 2012 19. PW.1 is the Assistant Engineer who drafted the spot sketch. His evidence is formal in nature.

20. PW.2 is the Principal of the Government ITI College, Saundatti. He also supported the case of the prosecution stating that accused was working as Junior Training Officer and he identified the voice that has been recorded in the cassette marked at MO.7.

21. In the cross-examination of PW.2, the suggestion made to him that voice recorded in MO.7 is incapable of proper identification, which has been denied by him. It is elicited that, whenever he needs to leave his seat, accused was made as In- charge Principal. He admits that he has also adduced evidence in disciplinary proceedings. He admits that every Sunday is the holiday for the college.

22. PW.3 is the complainant, who supported the case of the prosecution in toto by deposing about the contents of the complaint, entrustment mahazar and trap mahazar. In his cross examination it is elicited that he is not aware of completion of primary education and the metric examination of his nephew. He also admits that he is not aware of in which - 27 - CRL.A No.2760 of 2012 subject that Maktumsab was studying in the college and whether he is pursuing his further education. It is further elicited that Maktumsab had not contacted him earlier to lodge the complaint in respect of the fee. It is also elicited that he is unable to narrate the date, time and the place where Maktumsab approached him in respect of the demand made by the accused. He admits that before visiting the college he did not meet the mother of Maktumsab. He admits that he has visited the college at the request of Mehaboobsab Nadaf and he had gone to college from Garag. He admits that after visiting Saundatti, he met the accused and he requested for reducing fee. It is also elicited that, there was a conversation with the friends of complainant that if the matter is reported to Lokayukta, then the fee would be reduced. He admits that with an intention to get the fee reduced, he met the Lokayukta officials. He also did not know the last date of paying the fee. He admits that he does not know when Hussainsab had a conversation with accused and he was not aware of Hussainsab having a mobile phone and his telephone number.

23. It is also elicited in his cross-examination that on the date of trap, he had visited Belagavi and after meeting the - 28 - CRL.A No.2760 of 2012 Lokayukta Police, he requested the Lokayukta officials to reduce the fee of Maktumsab. He admits that on the date of trap between 1.00 and 1.30 p.m., the police had prepared complaint and thereafter obtained his signature on those documents. Hussainsab who is the relative of Maktumsab told accused that he had approached him to pay the fee. It is also elicited that at the time of handing over the tainted currency to the hands of the accused, it is specifically stated that Hussainsab told the accused that they have come to pay the fee and handed over the money. He admits that he has got a mobile phone bearing No.9916654038. It is elicited that he did not contact the accused through his mobile phone. He admits that he did not enquire the accused as to where they should hand over the money.

24. Hussainsab who accompanied PW.3 is examined as PW.4. He has not supported the case of the prosecution in toto and to the limited extent, he has supported the case of the prosecution and he has been cross examined. In his cross examination, it is elicited that Maktumsab had got parents and father of Maktumsab is working in Belagavi as labourer. It is also elicited that he has not aware of the class and the course - 29 - CRL.A No.2760 of 2012 that Maktumsab was studying. It is also elicited that he has not aware of the conversation between the complainant and the accused and he has also not seen the transaction that took place between the complaint and accused.

25. S.R.Umashankar is examined as PW.5. He is the sanctioning authority issued the sanction order to prosecute the accused. His evidence is formal in nature inasmuch as there is no serious challenge to the sanction order.

26. PW.6 is the shadow witness. He has supported the case of the prosecution in toto by specifically deposing that on demand the accused has received Rs.4,500/- and kept the same in his left side pant pocket. There was a conversation between the complainant and accused for two minutes, but he was not able to hear the same as he was standing about 15 feet away from the complainant and the accused.

27. In his cross examination, it is elicited that, he has not heard about the demand made by the accused for the illegal gratification on the day of trap. It is elicited that the complainant met the accused inside the gate. The tar road is - 30 - CRL.A No.2760 of 2012 about 12 feet wide and one Hussainsab had also accompanied the complainant.

28. It is also elicited that in the departmental enquiry, he has deposed that the accused was made to hold the notes in his hand, photograph was taken. He admitted his deposition before the Enquiry Officer, the same which was marked at Ex.P.6.

29. PW.7-Shivanand Shivalingayya Mathapathi is the co-pancha. He has supported the case of the prosecution. In this cross-examination no useful material is elicited.

30. PW.8-Manjunatha Theerthappa Ghodse is the owner of the mobile shop who carried on the business in the mane of Manjunatha Traders.

31. He has stated that he has not given any mobile handset to Hussainsab for recording the conversation. He has been treated as hostile witness and cross-examined by the prosecution. In such cross-examination no useful materials are elicited.-. 31 - CRL.A No.2760 of 2012 32. PWs.9 to 21 are the students of the Government ITI College Saundatti. These witnesses have been examined by the prosecution in order to prove that there was a demand of Rs.5,500/- from each one of them for successfully completing their course in the college. None of these witnesses supported the case of the prosecution to any extent and therefore, they have been treated as hostile witnesses and cross-examined by the prosecution. In such cross-examination, no useful material is elicited by the prosecution.

33. PW.22-Superintendent of Police who has directed the head of the raid party to correct few mistakes crept in the panchanama. His evidence is formal in nature.

34. Star witness to the prosecution namely Maktumsab from whom the accused demanded sum of Rs.5,500/- is examined as PW.23. He also did not support the case of the prosecution. Therefore he has been treated as hostile witnesses and cross-examined by the prosecution by confronting the statements said to have been recorded by the Investigating Officer under Section 161 of Cr.P.C.-. 32 - CRL.A No.2760 of 2012 35. In his cross-examination, suggestions made to him that he knew about his improper attendance and in that regard the accused has given a complaint to the principal is denied by him. However, he admitted that he has filed a complaint before the Consumer Disputes Redressal Forum and he admitted the said complaint.

36. PW.24 is the Investigating Officer and head of the raid party. He deposed about the receipt of the complaint; securing pancha witnesses; securing the currency for illegal gratification; smearing phenolphthalein powder; demonstrating the chemical re-action of the phenolphthalein powder with sodium carbonate solution; drafting of entrustment mahazar; trap; arrest of accused; filing of charge sheet.

37. In his cross examination, he denied the suggestion that on 27.07.2008 being a Sunday, college was closed and he has not recorded statements of PWs.9 to 21. He had pleaded his ignorance between 21.07.2008 and 31.07.2008 PWs.9 to 21 were in Dharwad for attending the examinations.

38. PW.25 is the Enquiry-Officer who conducted the departmental enquiry. He supported the case of the - 33 - CRL.A No.2760 of 2012 prosecution. He also identified the report given by him in the enquiry and marked the same as Ex.P.50.

39. In his cross-examination, it is elicited that only part of the charges has been proved and therefore, he has mentioned the same. The above evidence on record is sought to be re-appreciated on behalf of the appellant for allowing the appeal.

40. On perusal of the material on record, the complainant himself has not totally supported the case of the prosecution. The shadow witnesses no doubt supported the case of the prosecution to a major extent. However, in the case on hand, the work that was pending with the appellant is that he was supposed to see that the nephew of the complainant namely Maktumsab who is examined as PW.23, was promoted to the next class by showing official favour by misusing his official position and in that regard he has demanded Rs.5,500/- to be paid by the Maktumsab and other students. To prove the said aspect of the matter, Maktumsab is examined as PW.23, but he has not supported the case of the prosecution to any extent. The prosecution has treated him as hostile witness and - 34 - CRL.A No.2760 of 2012 cross-examined him in detail as discussed supra. However, in such cross-examination no useful material is elicited so as to establish the fact that the appellant had contracted to receive a sum of Rs.5,500/- from Maktumsab and other students of the same class for the purpose of promoting them to the next higher class. In the absence of any such work being pending with the appellant, all ingredients to attract the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C.Act stands not established in the case on hand.

41. Further in respect of demand is concerned, it is the case of the prosecution that Hussainsab recorded the conversation between the complainant and the accused prior to the trap. The said mobile phone is not seized by the police. There is no other plausible evidence on record to establish the demand and acceptance and the seizure of tainted currency notes by the accused on the date of trap.

42. Further, even with regard to colour test and seizure of the tainted currency notes, there are discrepancies as is found from the contents of the trap mahazar and oral - 35 - CRL.A No.2760 of 2012 testimony of the shadow witness. When these aspects of the matter viewed cumulatively, this Court is of the considered opinion that the prosecution has not been successful in establishing any one of the ingredients much less all the ingredients to attract the offences alleged against him.

43. However, learned trial judge in the impugned judgment has recorded a finding that the prosecution has proved the case beyond all reasonable doubt based on surmises and conjectures without there being any proper and valid legal proof placed by the prosecution. Further, PWs.9 to 21 being the students of the very same class, have turned hostile to the case of the prosecution, is also a relevant factor while appreciating the defence of the accused. It has been the specific case of the accused that Maktumsab was not having proper attendance and he has also failed to pay the requisite fee for taking the examination and in that regard, he had cautioned not only Maktumsab, the students who did not have the proper attendance and failed to comply the requisite payment of the examination fee. In order to prove the same, the prosecution has relied on the complaint filed before the Consumer Disputes Redressal Forum by the complainant earlier - 36 - CRL.A No.2760 of 2012 to filing of the present petition. It is found from the records that the complaint filed by Maktumsab got dismissed. So also the effort made by the complainant party to approach Ombudsmen with a complaint against the Principal of the Government ITI College, Saundatti and the present appellant also resulted in a dismissal. It is therefore, there is plausible material placed by the appellant stating that the complainant party nurtured enmity which resulted in filing the present complaint. Material on record also disclose that the departmental enquiry was held against the appellant herein which also resulted in recording only partial finding about the deficiency of the appellant herein. It is also elicited in the cross-examination of the complainant that he does not know in which class PW.23 is studying and who paid the fees at the time of his admission and what is the amount of fees, that was required to be paid by Maktumsab-PW.23 to the institution. It is also elicited that, he has not heard the mobile conversation that took place between the accused and Hussainsab. The person who lent the mobile phone to the hands of Hussainsab, who is a merchant dealing with the mobile telephones in the - 37 - CRL.A No.2760 of 2012 name of Manjunatha Traders has also turned hostile to the case of the prosecution.

44. Under these circumstances, non-placing all the requisite evidence to establish the demand and acceptance either before lodging of the complaint or at the time of the trap, has caused sufficient dent and doubt in the case of the prosecution.

45. It is settled principles of law that the prosecution has to travel a long distance between ‘may be proved’ and ‘actual proof’. It is also equally well settled that any amount of suspicion would not take the seat of actual proof. It is also well settled principles of criminal jurisprudence that any amount of suspicion would not take the seat of proof. Further, under the given set of circumstances, if two views are permissible, the view that favours the accused must be preferred. These celebrated legal principles in the Indian Criminal Jurisprudence are not even considered by the learned Trial Judge while passing the impugned judgment.

46. On cumulative consideration of the above aspects of the matter there is no iota of doubt in the mind of this Court - 38 - CRL.A No.2760 of 2012 that the prosecution case suffers from many doubts and the evidence placed on record would not sufficient enough to bring home the guilt of the accused. No doubt prosecution enjoys the presumption but in order to take the advantage of the presumption, the prosecution has to first discharge its initial burden.

47. In the case on hand, the prosecution has not been able to discharge the initial burden and therefore, the question of accused placing rebuttal evidence would not arise at all. Moreover, the accused has sufficiently explained his stand by filing necessary written submission under Section 313(5) of Cr.P.C referred to supra.

48. In view of the forgoing discussions, this Court is of the considered opinion that the prosecution has not been successful in establishing any one of the ingredients much less all ingredients to attract the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of P.C.Act. Accordingly, Point No.1 is answered in the negative. Consequently Point No.2 is to be answered in the affirmative and accordingly it is answered.-. 39 - CRL.A No.2760 of 2012 49. Regarding Point No.3 :- In view of answering Point Nos.1 & 2 above, the invariable conclusion that this Court can reach is to allow the appeal by setting aside the impugned order. Accordingly it is answered.

50. Having discussed the salient features of proof to be placed by the prosecution in order to record an order of conviction for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of P.C.Act, this Court cannot be a mute spectator for the lapses that is often committed by the prosecuting agency may be in collection of the necessary materials in the form of voice samples, or otherwise.

51. This Court, has experienced in many cases, the voice recorder that is given to the complainant to record the conversation between the complainant and the proposed accused would not be properly audible both at the time of lodging of the complaint or at the time of trap. The readymade explanation that, “the complainant failed to switch on the voice recorder in the anxiety”. Despite this Court and several other judicial pronouncements have cautioned the prosecution to - 40 - CRL.A No.2760 of 2012 take utmost care, in the said aspect of the matter, the prosecution agency is erring repeatedly.

52. Yet another area where this Court is required to ponder over is the collection of the voice sample. Many times, the voice sample is recorded either on mobile telephone of the complainant or by his friend and the same is transferred on to a media in the form of a Compact Disk Drive or a DVD or a Pen Drive. In such circumstances, the procedure required to be followed especially having regard to the requirement of, to prove a secondary evidence as is contemplated under Section 65 of the Indian Evidence Act more particularly Section 65(B) of Indian Evidence Act. Guidelines already issued for collection of electronic evidence and certificate thereof is not even adhered to by the prosecution.

53. It is noticed by this Court that in the absence of proper procedure being followed by the investigating agency repeatedly errors are occurring in collection of proper evidence would enure to the benefit of the accused persons. In other words, for want of proper certificate as is contemplated under Section 65(B) of the Indian Evidence Act, voice sample even if - 41 - CRL.A No.2760 of 2012 it is made available before the Court, cannot be relied upon by the Court on technical reasons. To obviate such procedural lapses, this Court has felt the necessity of issuing few guidelines in addition to the guidelines already issued by earlier judicial pronouncements. It is also often noticed that the voice sample recorded on mobile telephone is transferred on to the other media to be placed before the Court without following the proper procedure. Investigating Agency is also not adhering to the proviso available to Section 161 Cr.P.C while recording the statements of the charge sheet witnesses.

54. In this regard, it is necessary to cull out section 161 of Cr.P.C., which reads as under: “161. Examination of witnesses by police.- (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person - 42 - CRL.A No.2760 of 2012 supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. Provided that statement made under this sub-section may also be recorded by audio-video electronic means. xxxx

55. In the first proviso, it is provided that the statement of the charge sheet witness may be recorded by audio-video electronic means. If the statement of the panch witnesses or the complainant after the trap is recorded by using the audio-video electronic methods, possibility of such witnesses turning hostile to the case of the prosecution during the trial can be successfully avoided. However, it is necessary - 43 - CRL.A No.2760 of 2012 for the Investigating Agency to follow required procedure as is contemplated under Section 65(B) of the Indian Evidence Act while collecting sample or while producing the electronic evidence before the Court. In general, every individual today are using Smart phone. The complainant may also be given a Smart phone and if the complainant has recorded any audio conversation on his mobile telephone, it is utmost necessary for the Investigating Agency to transfer the said audio file where the conversation is recorded on to some other media as the mobile telephone is required day to day use of the complainant. In such circumstances, the investigating agency is necessarily required to follow the procedure contemplated under law. Unfortunately, no such procedure is carried out in many cases which will pave the way for the accused persons to take shelter under the technical reasons to get an order of acquittal.

56. To obviate such circumstances, it is just and necessary for this Court to lay down few guidelines for collection of the voice samples and production of the electronic evidence which the prosecution wants to rely upon in a given case. Before delving into the specific of preserving the quality - 44 - CRL.A No.2760 of 2012 of electronic evidence collected, it would be important to revisit the principles laid down as to admissibility of electronic evidence.

57. In this regard, the principles laid down in the case of Ram Singh v Col. Ram Singh reported in AIR1986SC3 in Paragraph 32, becomes relevant wherein it is held as under:

"(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. (2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial. (3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of con text and, therefore, inadmissible - 45 - CRL.A No.2760 of 2012 (4) The statement must be relevant according to the rules of Evidence Act. (5) The recorded cassette must be carefully sealed and kept in safe or official custody. (6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.

58. Over passage of time, various modes of electronic evidence came to be accepted by Indian Courts. It is worth to note that in the case of Jagjit Singh Vs. State of Haryana reported in (2006) 11 SCC1Hon’ble Apex Court held that the interview of the Petitioner, which was broadcasted on television, could be utilized as evidence.

59. It is worth to note that in the case of State of NCT vs Navjot Singh Sandhu reported in AIR2005SC3820Hon'ble Apex Court dealt with proof and admissibility of mobile phones and telephone call records.

60. A Division Bench of this Court in Crl.A.No.615/2013 has issued following guidelines for proper preservation of the Digital Evidence: - 46 - CRL.A No.2760 of 2012 " (1) All the concerned in each stage has to take proper precautions for search, seizure, packing, labelling, sending the digital evidence to expert, submitting to the Trial Court with proper custody. (2) Investigating agency has to make efforts to disable security settings like PIN, Password, Pattern Lock, Finger Print etc., before seizure procedure so that it should not create further obstruction/hurdle at any stage for the purpose of perusal, analysis of electronic gadgets. (3) The media containing the electronic record should be submitted by the investigating officer in a sealed and secured manner to the Court. Before that, the investigating officer has to keep the copy of the said electronic evidence in their computers, so that even If the compact disc or any electronic gadget produced before the Court, if for any reason is destroyed or corrupted, the copy which was preserved by the police can be used as secondary evidence before the Trial Court. (4) The media viz., CD/DVD/Pendrive/Hard Disk/Magnetic device etc., shall be preserved in - 47 - CRL.A No.2760 of 2012 anti- static envelope, away from humidity and heat in a proper manner even before the same is produced before the court and after production the court should also take care to keep them in proper manner till the said evidence is admitted by the Court during the course of the evidence. (5) It has to be ensured that such media do not get damaged due to the packing, sustain scratches (if optical) in any way while handling the file. (6) Concerned Government Authorities and the High Court have to take strict measures to provide Proper training to the investigating officers and also the concerned staff, Judicial officers and staff of the court with reference to packing and preserving the media for future use and retrieval of the contents of the said electronic media, as and when required, so that it would safely exist till the case is logically concluded. (7) The copy of the electronic record shall be kept in the server or in the PC of the concerned police station or the PC provided to the concerned investigating officer and also the PC provided to the concerned Court for reference as back up. An - 48 - CRL.A No.2760 of 2012 endorsement should also be made in the order sheet in this regard or in the case diary, as the case may be. (8) As soon as an electronic record is admitted in evidence, a copy of the relevant portion be stored in the concerned folder of the said case in a separate media and also stored in the PC in a separate drive so that a back up is preserved for future reference, even if for any reason hard disk/C.D. is destroyed or gets corrupted or rendered un-readable. (9) The electronic media shall be kept in safe deposit with the Chief Ministerial Office of the Court with a direction to preserve it in proper manner till the case is logically concluded. (10) Experts at FSL also if possible have to retain a copy of mirror image, extracted data with evidentiary value with proper labelling, which may be used as a secondary evidence at any point of time.

61. Likewise, learned Single Judge of this Court in W.P.No.11759/2020 has issued following guidelines for preservation of the electronic data found in the computer or a laptop or on mobile telephone as under:

"17.5. In the case of a personal computer or a - 49 - CRL.A No.2760 of 2012 laptop:

17. 5.1. When carrying out a search of the premises, as regards any electronic equipment, Smartphone or e-mail account, the search team to be accompanied by a qualified Forensic Examiner. 17.5.2. When carrying out a search of the premises, the investigating officer should not use the computer or attempt to search a computer for evidence. The usage of the computer and/or search should be conducted by a properly authorized and qualified person, like a properly qualified forensic examiner. 17.5.3. At the time of search, the place where the computer is stored or kept is to be photographed in such a manner that all the connections of wires including power, network, etc., are captured in such photograph/s. 17.5.4. The front and back of the computer and/or the laptop while connected to all the peripherals to be taken. 17.5.5. A diagram should be prepared showing the manner in which the computer and/or the laptop is connected. 17.5.6. If the computer or laptop is in the - 50 - CRL.A No.2760 of 2012 power-off mode, the same should not be powered on. 17.5.7. If the computer is powered on and the screen is blank, the mouse could be moved and as and when the image appears on the screen, the photograph of the screen to be taken. 17.5.8. If the computer is powered on, the investigating officer should not power off the computer. As far as possible, the investigating officer to secure the services of a computer forensic examiner to download the data available in the volatile memory i.e., RAM since the said data would be lost on the powering down of the computer or laptop. 17.5.9. If the computer is switched on and connected to a network, the investigating officer to secure the services of a forensic examiner to capture the volatile net work data like IP address, actual net work connections, net work logs, etc., 17.5.10. The MAC address also to be identified and secured. 17.5.11. In the unlikely event of the Forensic examiner not being available, then unplug the computer, pack the computer and the wires in separate faraday covers after labeling them.-. 51 - CRL.A No.2760 of 2012 17.5.12. In case of a laptop if the removal of the power cord does not shut down the laptop to locate and remove the battery. 17.5.13. If the laptop battery cannot be removed, then shut down the laptop and pack it in a faraday bag so as to block any communication to the said laptop since most of the laptops, nowadays have wireless communication enabled even when the laptop is in the stand by mode. 17.6. Seizure of networked devices: Apart from the above steps taken as regards seizure of the computer, laptop, etc., if the said equipment is connected to a network:

17. 6.1. To ascertain as to whether the said equipment is connected to any remote storage devices or shared network drives, if so to seize the remote storage devices as also the shared network devices. 17.6.2. To seize the wireless access points, routers, modems, and any equipment connected to such access points, routers, modems which may some times be hidden.-. 52 - CRL.A No.2760 of 2012 17.6.3. To ascertain if any unsecured wireless network can be accessed from the location. If so identify the same and secure the unsecured wireless devices since the accused might have used the said unsecured wireless devices. 17.6.4. To ascertain who is maintaining the network and to identify who is running the network - get all the details relating to the operations of the network and role of the equipment to be seized from such network manager. 17.6.5. To obtain from the network manager, network logs of the machine to be searched and/or seized so as to ascertain the access made by the said machine of the net work. 17.7. Mobile devices: Mobile devices would mean an include smart phone, mobile phone, tablets GPS units, etc., during the course of seizure of any of the mobile devices, apart from the steps taken in respect of a computer and/or laptop, the following additional steps to be taken: - 53 - CRL.A No.2760 of 2012 17.7.1. Prevent the device from communicating to network and/or receiving any wireless communication either through wifi or mobile data by packing the same in a faraday bag. 17.7.2. Keep the device charged throughout, since if the battery drains out, the data available in the volatile memory could be lost. 17.7.3. Look for slim-slots remove the sim card so as to prevent any access to the mobile network, pack the sim card separately in a faraday bag. 17.7.4. If the device is in power-off mode, the battery could also be removed and kept separately. 17.7.5. If the device is powered on, then put it in an aero plane mode in android device or airplane mode in a IOS device. 17.8. In all the cases above, the seized equipment should be kept as far as possible in a dust-free environment and temperature controlled. 17.9. While conducting the search, the investigating officer to seize any electronic storage devices like CD, DVD, Blu-Ray, pen drive, external hard drive, USB thumb drives, solid-state drives etc., located on the premises, label and pack them separately in a faraday bag. 17.10. The computers, storage media, laptop, etc., - 54 - CRL.A No.2760 of 2012 to be kept away from magnets, radio transmitters, police radios etc., since they could have an adverse impact on the data in the said devices. 17.11. To carry out a search of the premises to obtain instructions manuals, documentation, etc., as also to ascertain if a password is written down somewhere since many a time person owning equipment would have written the password in a book, writing pad or the like at the said location. 17.12. The entire process and procedure followed to be documented in writing from the time of entry of the investigation/search team into the premises until they exit.

62. Keeping in view the above guidelines, especially, in anti corruption cases, the conversation between the complainant and proposed accused are usually recorded either in a digital voice recorder or in a mobile phone or in any other electronic/digital device. The recordings are inadmissible in evidence unless such recordings are properly proved when they are transferred to other media is not supported by certificate as contemplated under section 65B (4) of the Indian Evidence Act. It is better to retain original digital device/electronic device. Therefore, in case of Arjun Panditrao Khotkar vs Kailash - 55 - CRL.A No.2760 of 2012 Kushanrao Gorantyal reported in (2020) 7 SCC1a direction has been issued to preserve the server and its contents at least for one year, in order to provide an opportunity to check the correctness of secondary evidence and authenticity/admissibility of the original device. In the case of Anvar PV v PK Basheer, Hon'ble Apex Court was pleased to hold that 65B certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence.

63. However the decision of the Hon'ble Apex Court in Ram Singh supra has stood the test of time and continues to be relevant even as the modes and methods of collecting evidence might evolve. But, the problem that law enforcement agencies face today is a lack of understanding of the tests to determine the authenticity and accuracy of a digital recording. It is important to ensure that the old or inconsistent rules do not encumber the steady dispensation of justice. Therefore, necessity has arisen to issue few guidelines to ensure to preserve the authenticity of collection of electronic evidence at - 56 - CRL.A No.2760 of 2012 every stage. Few scientific methods in preserving authenticated data are to be discussed.

64. If the forensic lab is not notified by the Central Government u/s 79A of the Information Technology Act, 2000 as provided in Sec 45A of the Indian Evidence Act, then the opinion of forensic expert will not be admissible in evidence. In this regard, the ratio was laid down by the Hon’ble Kerala High Court in Byju B R Vs State of Kerala in Bail Appl. No.288 of 2022 Dated:

29. 01/2022 assumes importance. In the said decision it is held that:

"In exercise of the power under Section 79-A, the Central Government has notified certain agencies as 'Examiner of Electronic Evidence'. In my view only such agencies can be allowed to conduct a forensic analysis of a mobile phone and the petitioners cannot entrust the phones to any person of their choice to examine or extract data from the phones in question. Following the introduction of Section 79-A, the Indian Evidence Act, 1872 has also been amended and Section 45A has been inserted making the opinion of the Examiner of Electronic Evidence' a relevant fact. Section 79-A of - 57 - CRL.A No.2760 of 2012 the Information Technology Act, 2000 reads as follows:- "Central Government to notify Examiner of Electronic Evidence.-.The Central Government may for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence. Explanation.-.For the purposes of this section, "electronic form evidence" means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines."

HASH VALUE :

65. Indeed, it is always a challenge to properly establish a voice record (electronic data) before Court of Law. In this regard Hash value is considered as an important aid. A hash value" is an alphanumeric string that serves to identify an individual digital file as a kind of "digital fingerprint”. Although it may be possible for two digital files to have hash values that - 58 - CRL.A No.2760 of 2012 "collide," or overlap, it is unlikely that the values of two dissimilar images will do so.

66. In fact, the Government of Maharashtra has already implemented the practice of collecting hash value of electronic evidences and collecting the memory component of the device it is recorded on at the first instance since 2016. A reference can also be made to the Standard Operating Procedures issued by the Government of Kerala for collection of digital evidence related to crimes against women and children, since 2021. In fact, guidelines on extraction of hash value are also given in Digital Evidence Investigation Manual Central Board of Direct Taxes Department of Revenue, Ministry of Finance, Government of India.

67. Further, in the globe similar situations are already dealt with. Sophisticated equipments are put to use and scientific methods have been adopted to prove the voice sample in the court of law.

68. For example in the case of Lorraine v. Markel 241 FR.D. 534 (D. Md. 2007): the court dealing with the issue - 59 - CRL.A No.2760 of 2012 search by Hash Value also observed that it would narrowly restrict the searched of digital devices. It further observed that "A file can be mislabeled: its extension (a sort of suffix indicating the type of file) can be changed; it can actually be converted to a different file type (just as a chat transcript can be captured as an image file, so can an image be inserted into a word processing file and saved as such). Any of these manipulations could change a document's hash value. And in any event a limited hash-value search would not have turned up any chat transcripts (which, again, can be saved as image files)

69. Similarly, in the case of Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640 (D. Kan. 2005), the court observed that:

"When an electronic file is sent with a hash mark, others can read it, but the file cannot be altered without a change also occurring in the hash mark. The producing party can be certain that the file was not altered by running the creator's hash mark algorithm to verify that the original hash mark is generated. This method allows a large amount of data to be self-authenticating with a rather small - 60 - CRL.A No.2760 of 2012 hash mark, efficiently assuring that the original image has not been manipulated.

70. Therefore, it is high time that the law enforcement agencies in our State should make their earnest endeavour to keep pace with the evolving technology. Before the trap is laid, it is needles to emphasise that, the important piece of evidence which would convince the raid party about the genuineness of complaint averments is voice recording submitted by a complainant containing the demand of bribe. The whole case often hinges upon this evidence. Unfortunately, required attention is not bestowed to preserve the said recording.

71. In order to ensure the same; the following guidelines are issued: • At the stage where the digital audio recording is submitted; a printout of the hash value of the file containing the relevant recording must be collected to authenticate evidence in the court of law which forms the first link in establishing a chain of custody for the document.-. 61 - CRL.A No.2760 of 2012 • At the time of trap, both audio and video recording should be done. • The memory card of the device must be sealed properly. • Thereafter, the date of creation of the file, date of modification must be looked into to ensure that both are consistent by recording the timestamp resolution of the file and by including the analysis of the same in the forgery analysis. • Every stage of handing over of the electronic evidence from one officer to another must be well documented and the determinant features of the file must be verified and corroborated at every stage. • Thereafter, the electronic file is submitted for Forensic testing. • Present day testing by spectrographic analysis may fall short on ascertaining the reliability and authenticity of an electronic document. Instead cryptographic analysis by hash value method be preferred. Meta data analysis of an electronic file would more accurate in suggesting any modification/s to the original file based on hash value. • The voice recorder itself has to be subjected to analysis, failing which a copy of the file will not be authentic since the source of the file is not verified. The proceedings of the entrustment mahazar and recovery mahazar should be videographed so that the - 62 - CRL.A No.2760 of 2012 complainant and independent witnesses can be contradicted in case of they turn hostile to the case of prosecution. • The hash value of the electronic device should be calculated and a cloned copy(mirror copy) of the device should be prepared. • At the time of seizure of the primary evidence and in the process of creating an image file from the primary object on to a compact disk, pen drive or any other device which is in sterile condition, hash value must be generated by using any of the freeware such as: Hasher or Hash generator or Hash calculator or SHA256Hash generator etc. Further, Hash value at the time of seizure and creating clone or image copy must necessarily be mentioned so as to ensure that there is no lapses while seizing and cloning the voice sample so as ensure image/clone/copy data (individual data) has same hash value. • The chain of custody form should be properly filled with clearly detailing the name and designation of the officer having custody of the electronic device. • Properly sealed electronic device should be opened at forensic lab in the presence of independent witnesses and videographed. A mahazar should be drawn indicating hash value of the electronic device after - 63 - CRL.A No.2760 of 2012 opening and matched with the hash value calculated at the time of sealing. • Forensic lab should be notified by the central government u/s 79A of the Information Technology Act, 2000 as provided in Sec 45A of the Indian Evidence Act. • Qualified and trained expert should test the samples. The report should contain the procedure adopted for testing the samples. The equipments used should be duly calibrated and updated periodically. • The electronic device should be tested for editing and tampering in order to establish its genuineness and authenticity. • Digital evidence form be created for every memory card/chip used in the trap case containing the unique identification features of the memory chip/card used. • The defence should be provided with a cloned copy or a mirror image of the electronic device.

72. In view of the forgoing discussion, following order is passed.-. 64 - CRL.A No.2760 of 2012

ORDER

The Appeal is hereby allowed. The impugned judgment and order of conviction dated 11.06.2012 passed in Special Case No.186/2009 by the IV Additional District and Sessions Judge and Special Judge (PCA), Belgaum is hereby set aside and the accused-appellant is hereby acquitted. Bail bond of the accused stands discharged. Fine amount in deposit if any, is ordered to be refunded to the accused under due identification. Office is directed to return the Trial Court Records with copy of this order. Operative portion of this order shall be communicated to the Trial Court. Sd/- JUDGE EM/PL*