CRI.APPEAL.248.08
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 248/2008
Fakira s/o Magdu Kannake
Aged about 56 years, occu: Head constable
B.No. 93, Resident of Dechlipetha
Tah. Aheri, Dist. Gadhiroli. .. APPELLANT
v e r s u s
State of Maharashtra
Through its P.S.O.
Mulchera, Dist. Gadchiroli. ... RESPONDENT
...........................................................................................................................
Ms. A.Kshirsagar, Advocate h/for Mr. A.S. Mardikar,
senior counsel for the appellant
Mr. V.P. Gangane, Additional Public Prosecutor for respondent-State
............................................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED: 2nd June, 2017
JUDGMENT:
The appellant, who was working as a Head Constable attached to Police Station, Mulchera at the relevant time, was prosecuted on the allegations of having committed offences punishable under Sections 7, 13 (1)
(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short, 'the Act of 1988'). The learned Special Judge, Gadchiroli, after conducting the trial, found the appellant guilty of the offences punishable u/s. 7 of the said Act and sentenced him to suffer R.I. for six months and to pay a fine of Rs. 1000/- in default, to suffer further R.I. for one month. She further ::: Uploaded on - 21/06/2017 ::: Downloaded on - 28/08/2017 04:38:30 ::: CRI.APPEAL.248.08 2 sentenced to suffer R.I. for one year and to pay a fine of Rs. 500/-, in default, to suffer R.I. for fifteen days u/s. 13(2) of the said Act.
2. The prosecution case, in nutshell, is that the complainant-Pralhad Mandal (PW 1) was working as a Watchman in Ganga Jamna Macchipalan Sanstha, Bamanpeth in Chamorshi Talqua, lodged a complaint with Anti Corruption Office, regarding the demand of Rs.4,000/- on 6.12.2013, by the accused for not beating him and his brother, against whom a complaint regarding theft of fishes from the tank at Singampalli was lodged at the Police Station. As per the instructions of the appellant, the complainant was supposed to bring the amount of Rs. 4000/- on 17.12.1993. After lodging the complaint (Exh.15), the complainant brought the amount of Rs. 4000/- and deposited it with the Anti Corruption Office for using it as tainted currency notes. The Panchas were explained about the grievance of the complainant through the Investigating Officer Dy.S.P. Kulkarni who demonstrated to the complainant and Panchas the use of phenolphthalein powder and sodium corbonite while arranging the trap. The currency notes of Rs. 4000/- were smeared with the phenolphthalein powder and kept it in the right pant pocket of the complainant. During the trap, panchnama (Exh.18) was drawn. The complainant along with the panchas and raiding party proceeded to the house of the appellant. The appellant was sitting below the pandol of his house taking meals. One person was sitting with him. The appellant asked the complainant to keep the amount in the basket kept inside his house. ::: Uploaded on - 21/06/2017 ::: Downloaded on - 28/08/2017 04:38:30 :::
CRI.APPEAL.248.08 3 Accordingly, it was kept by the complainant. The complainant then signalled the raiding party by cleaning his face with a scarf. The raiding party then apprehended the appellant. The liquid-sodium carbonate was sprinkled on the currency notes and the colour of those notes was changed to violet. The currency notes were taken charge and Panchnama (Exh.28) was drawn accordingly.
3. During the course of investigation, sanction to prosecute the appellant as contemplated under Section 19 of the Prevention of Corruption Act, 1988 was obtained from the competent authority ie, Additional Commissioner of Police, Anti Corruption. On completion of investigation, charge-sheet was filed alleging commission of offences punishable under section 7 and 13(1) (d) read with section 13 (1)(2) of the Act of 1988.
4. The prosecution in all examined as many as five witnesses. After considering the evidence on record, the learned Special Judge convicted the appellant and sentenced him, as aforesaid.
5. I have heard Ms. Kshirsagar, learned counsel for the appellant and Mr. V.P. Gangane, the learned A.P.P. for the respondent-State. The learned APP took me through the entire evidence led by the prosecution and the judgment passed by the learned Special Judge.
6. Ms.Kshirsagar, learned counsel for the appellant contended that the judgment delivered by the learned Special Judge is illegal and perverse inasmuch as the learned Judge has not considered the material discrepancies ::: Uploaded on - 21/06/2017 ::: Downloaded on - 28/08/2017 04:38:30 ::: CRI.APPEAL.248.08 4 in the evidence of the witnesses. The evidence of the witnesses clearly indicates that neither the appellant demanded the bribe nor he accepted it and the seizure of the tainted notes is not satisfactorily proved. According to Miss Kshirsagar, the appellant has been falsely implicated in the present case.
7. Per contra, Shri Gangane, the learned APP submitted that the learned Special Judge has rightly convicted the appellant as the prosecution has succeeded in establishing its case against the appellant, to the hilt.
8. At the outset, it may be mentioned that this Appeal was disposed of by this Court on 12th September, 2012. However the said Appeal was remitted to this Court by the Hon'ble Apex Court for deciding the same on merits. The Hon'ble Apex Court has decided the issue of sanction and held that there is no infirmity in the sanction order (Exh.42) issued by PW 5-Pramod Jaiswal. In that view of the matter, this Court is not required to again go into the niceties of the said issue.
9. Now coming to the evidence of the case, as stated above, the prosecution examined in all five witnesses. PW-1 is the complainant-Pralhad Mandal; PW-2 is the panch witness-Nirmalandyu Ganguli, who allegedly accompanied the complainant to the house of the appellant; PW 3-Pundlik Gedam, is another panch witness who was standing outside the house of the appellant when the alleged trap was led; PW 4-Vithal Nandurkar is the Investigating Officer who conducted the investigation and PW 5-Pramod Jaiswal is the sanctioning authority.
::: Uploaded on - 21/06/2017 ::: Downloaded on - 28/08/2017 04:38:30 :::
CRI.APPEAL.248.08 5
10. As far as the testimony of the complainant (PW 1)-Pralhad Mandal is concerned, according to him, on Monday, in the morning when he was near the tank, the police patil came there and told him that he had a notice against him from Police Station, Mulchera. He informed that there is a report against the complainant as well as his brother-Ravindra, one Niranjan Haldar, Manohar Biswas, Sukumar. Therefore, the complainant along with Ravindra and Niranjan went to the Police Station. The appellant informed him that one Ashutosh Gyanendra Mandal has given a report against him and against his brother in respect of theft and selling of fishes at Singampalli. The appellant asked him about the other person. The complainant replied that he does not know about his whereabouts. On this, the appellant said that, "Tumchi Gand Fodavi Lagte". The complainant was afraid that he would be beaten by the appellant, therefore, he called two persons - Gaurang and Malik. They all requested the appellant not to take recourse of such an action. To this, the appellant told them he would not beat him but for the said purpose an amount of Rs. 5000/- was required to be paid to him. On the request of the complainant the appellant reduced the amount from Rs. 5000/- to Rs. 4000/-. The appellant told that in case money is not paid to him they would be beaten and would be prosecuted. At this juncture, it may be mentioned here that apart from the complainant, the other persons who were named by him and in whose presence the alleged demand of bribe amount are not examined by the prosecution. As the complainant did not have the ::: Uploaded on - 21/06/2017 ::: Downloaded on - 28/08/2017 04:38:30 ::: CRI.APPEAL.248.08 6 money to pay to the appellant, he proceeded to Anti Corruption Office, Gadchiroli. On the next day, the complainant deposited the said amount in the Anti Corruption Office.
11. After bringing the amount of Rs. 4000/- Shri Kulkarni, Dy. S.P. Anti Corruption, asked the complainant that they have to go to Mulchara to pay to the appellant. Accordingly, one Clerk of Zilla Parishad, namely, Ganguli, one lady constable and one other police from Anti Corruption office were present. A demonstration was given to them as to how the phenolphthalein powder is applied on the currency notes and as to how it turns violet if liquid of sodium carbonate is sprinkled on it. The phenolphthalein powder was applied on the currency notes. On the same day, they all proceeded to the house of the appellant. The raiding party stopped at one furlong from the house of the appellant. The complainant and the Panch-Ganguli (PW 2) proceeded to the police station i.e. where the appellant used to work. As he was not in the police station they all went to his house. When complainant and Panch Ganguli (PW 2) went to the house of the appellant, the appellant was sitting below the pandol of his house, taking meals. One person was also sitting beside him, who was not examined. The complainant introduced the panch-Ganguli as his relative. The appellant asked him whether he brought the amount and the complainant answered in the affirmative. On this, the appellant went inside his house and asked him to follow him accordingly. The complainant and Panch Gangauli (PW 2) went inside. The complainant was asked to stand ::: Uploaded on - 21/06/2017 ::: Downloaded on - 28/08/2017 04:38:30 ::: CRI.APPEAL.248.08 7 near the door. The appellant then opened one plastic basket and asked the complainant to keep the amount in the said basket. The appellant opened the basket by left hand as he was taking meals by right hand. The complainant put the amount in the basket and the appellant shut it. The complainant asked the appellant to count the money but he said that in case less amount is given, where will he go leaving Kalinagar. Thereafter, the appellant and complainant came out. The complainant gave the signal to the raiding party by cleaning his face by scarf. The raiding party came inside. The Police Constable from ACB Office apprehended the appellant. The appellant said that he had not taken the amount. Both his hands were washed with the solution brought by the raiding party. However the colour was not changed. Panch Ganguli (PW 2) informed the police that the amount is kept in the plastic basket. The appellant was asked to bring that basket. The basket was opened and the currency notes were taken out. The currency notes were kept on the cot and liquid was sprinkled on those notes. The colour of those notes was changed to violet. The notes were taken charge by the police and panchnama was drawn accordingly. Even when the solution was sprinkled on the basket there were violet stains. The basket was also seized. In the basket the amount was covered by brown colour cotton bag. On that bag solution was sprinkled and it also turned in violet colour. The bag was also seized by the police. The liquid was sprinkled on the pocket of the pant of the complainant. It also turned violet. The pant of the complainant was also seized. Significantly, ::: Uploaded on - 21/06/2017 ::: Downloaded on - 28/08/2017 04:38:30 ::: CRI.APPEAL.248.08 8 during the cross-examination, the complainant admitted that it was apprehension in his mind that the police would beat and use third degree method. He further told the police not to beat them as they were not desiring beating. The complainant admitted that he he told them to take the money. This version of PW1-complainant-Pralhad Mandal indicates that there was apprehension in the mind of the complainant that police would beat them and, therefore, the complainant himself asked the appellant to take the money.
12. So far as keeping the amount in the basket is concerned, the complainant PW 1-Pralhad admitted that the appellant was taking meals in verandah, whereas in the complaint, there is mention of pandol. He told Panch
-Ganguli to remain outside the door and the box was kept on the ground he kept the amount in the box. He further admitted that he told that he had kept the amount in the box which is in the house, when the raiding party rushed in the house of the appellant and caught hold of him when he was in the verandah of his house. The said version of the complainant indicates that when the appellant was accosted by police the complainant himself informed that he had kept the amount in the box kept in the house of the appellant. It is not clear as to why the complainant has stated about keeping the amount in the box and not in the basket. The complainant specifically stated that the box was kept on the ground whereas PW 2-Ganguli states that the amount was kept in the basket which was kept on the table which was covered by a cloth. The appellant told the raiding party that he has not taken the amount. ::: Uploaded on - 21/06/2017 ::: Downloaded on - 28/08/2017 04:38:30 :::
CRI.APPEAL.248.08 9 Both the hands of the appellant were sprinkled with the solution brought by the party. The colour was not changed. The panch-Ganguli (PW 2) told the police that the amount was kept in the plastic basket. The appellant brought said basket, the currency notes were taken out and kept on the cot and liquid was sprinkled on the notes. The colour of those notes was changed to violet.
13. PW 2-Ganguli deposed that he along with the complainant went inside of the compound of the house of the appellant where he was taking meals. The appellant asked the complainant as to who was along with him - whether he is a contractor, at that time, the complainant informed him that he was his relative (Bhatva). The complainant asked as to where did he resides. On this, the PW 2 informed him that he resides at Mulchera and serving in camp No.
78. The said conversation does not find place in the testimony of the complainant-PW 1-Mandal, particularly with regard to where PW 2 resides.
14. Significantly, PW 2-Ganguli did not state that the appellant was sitting in the pandol of his house. He stated that appellant was sitting in the compound of his house. There is certainly a difference between pandol, verandah and compound of the house. PW 2 further stated that there was a table in the house and on that table there was one plastic basket. The appellant asked the complainant to keep that amount in the bag. The complainant had taken out that amount kept in the plastic bag i.e. plastic basket. Thus, according to the PW 2, the basket was kept on the table in the house and the amount was kept in the said basket, covered with a cloth. ::: Uploaded on - 21/06/2017 ::: Downloaded on - 28/08/2017 04:38:30 :::
CRI.APPEAL.248.08 10 Pertinently, the complainant had not stated about the amount kept on table in a basket and covered with a cloth. According to PW 2-Ganguli,the complainant requested the appellant to count the notes but complainant told him that he was taking meals and therefore he cannot count the money. He also said that where the complainant would go after paying less amount. PW 2 stated that there was one cloth in that basket. The complainant kept that amount in the basket and that was covered by a cloth. Thereafter, the basket was taken from the table and kept below. Pertinently, it is not stated by the complainant that the amount was kept in the basket and that was covered by cloth. The seizure panchnama was prepared at Exh.19, after sealing the currency notes. In the cross-examination, PW 2 admitted that when he was proceeding in the vehicle, they were informed on the road that Head Constable Kannake was to be trapped. He however denied that he was not knowing about the report.
15. Thus, there is a glaring discrepancy in the testimonies of PW 1 and PW 2 on the aspect of the place where the appellant was taking his meals and as per the complainant, the appellant was taking meals in pandol, in front of his house. According to PW 1, he was taking meals in a verandah of his house and, according to PW 2, he was taking meals in the compound of his house. There is certainly a difference in pandol, verandah and compound of the house. According to PW 2, there was conversation between him and the appellant as to who was with him, whether he is a contractor. The complainant informed that he is his 'Bhatva'. The appellant asked him as to where did he ::: Uploaded on - 21/06/2017 ::: Downloaded on - 28/08/2017 04:38:30 ::: CRI.APPEAL.248.08 11 reside. The complainant-PW 1 did not state the said conversation between him and the appellant about enquiring as to whether he is a contractor and where did he reside. According to PW 1, the amount was kept in the basket which was kept on the ground whereas, according to PW 2, it was kept in the basket which was on the table. The appellant opened the basket and asked PW 1 to keep the said amount in that basket. According to PW 2, the amount was covered with a cloth in the basket, whereas PW 1 kept mum with regard to covering the amount with a cloth in the basket. According to PW 1 he has kept the amount in the basket. According to PW 2 the amount was kept in a cloth and was covered with cloth, then how the basket turned violet on sprinkling sodium carbonate indicating that amount was kept in basket directly. Significantly, no cloth is taken charge by police. Interestingly, according to PW 1, one person was sitting beside the appellant when he was taking meals. It is unclear as to why the said person has not been examined by the prosecution. Thus, the testimonies of PW 1 and PW 2 are full of the discrepancies which go to the root of the case and create doubt about the alleged trap and seizure of the bribe amount from the house of appellant.
16. The prosecution examined PW 3-Dilip Gedam, the panch witness. According to him, he was with the raiding party. However, he was standing outside the house when the raid was conducted and when the signal was given by complainant. PW 3 deposed that Shri Kulkarni and his staff entered inside the house and others were standing at the door of the house. By ::: Uploaded on - 21/06/2017 ::: Downloaded on - 28/08/2017 04:38:30 ::: CRI.APPEAL.248.08 12 holding the hands of the appellant he was brought outside the house. The hands of the appellant were washed. His fingers were deeped in the solution, the solution turned violet. The said witness was declared hostile by the prosecution. On cross-examination by learned APP, PW 3 admitted that the currency notes were kept in the right pocket of the shirt of the complainant. Interestingly, it is the case of the prosecution that the amount which was to be given to the appellant was kept in the right pant pocket of the complainant. However, in the cross-examination itself, the prosecution has brought that those currency notes were kept in the right shirt pocket of the complainant. Attention of PW 3 was invited to the panchnama, which revels that it was written that the amount was kept in the right pocket of the full pant of the complainant. Thereafter he admitted that whatever he has stated earlier was not correct. Thus, it appears that the PW 3 was quite confused while deposing in the Court. During the cross-examination PW 3 supported the case of the prosecution and stated about the contents in the Panchnama (Exh.19). In the cross-examination of PW 3, he fairly admitted that he did not remember the contents in the panchnama and therefore he had not stated about the same in the examination-in-chief.
17. So far as PW 4-Vithal Nandurkar is concerned, he is the Investigating officer who recorded the complaint of the complainant. He identified the signature of Mr.Kulkrni on the panchnamas as he is dead. Thus, the contents in the panchnama are not proved by the Investigating Officer as such. ::: Uploaded on - 21/06/2017 ::: Downloaded on - 28/08/2017 04:38:30 :::
CRI.APPEAL.248.08 13
18. On careful scrutiny of the testimonies of the witnesses, it appears that since the complaint of theft of fishes was lodged against him, the complainant was apprehending that he was likely to be beaten. He had lodged a false report against the appellant that he has demanded an amount of Rs. 5000/- which was reduced to Rs. 4000/-. In brief, the demand of the bribe is not proved by the prosecution beyond reasonable doubt. The complainant (PW 1) has also stated in the cross-examination about his apprehension. Significantly, none of the witnesses who were present along with the complainant when the alleged demand was made by the appellant are examined by the prosecution. Thus, the alleged demand made by the appellant has not been proved by the prosecution. It is well-settled that the demand of illegal gratification is a sine quo non for constituting the offence. According to the complainant, the alleged demand by the appellant for not beating him and his brother and for not prosecuting them. The complainant, however, once stated that the appellant told him that after receiving the amount from him he would do his work and in case he could not pay the amount, the appellant would take action against him. The said version of the complainant also creates doubt whether the appellant in terms said to the complainant that he should pay the amount of Rs. 5000/- otherwise he would beat him.
19. Thus, the prosecution has not sought corroboration to the testimony of the complainant although it was available by examining the witnesses i.e. brother of the complainant-Ravindra and Niranjan against whom the ::: Uploaded on - 21/06/2017 ::: Downloaded on - 28/08/2017 04:38:30 ::: CRI.APPEAL.248.08 14 complaint of theft was allegedly lodged. So also, the persons who had accompanied the complainant to the Police station and in whose presence the appellant allegedly made the demand, i.e. Harviolas Khagen Mandal and Gautam Biswas Gai. Non-examination of the material witnesses although available makes the prosecution case doubtful, in the light of the fact that the testimony of the complainant suffers from material discrepancies, particularly when the seizure of the tainted notes from the house of the appellant is under shadow of doubt. Admittedly, the theft of fishes from the tank was already lodged against the complainant and his brother. The complaint reveals that accused threatened that he would not take action on the said complaint. However the investigating agency has not verified the the said fact whether in fact the report was lodged against the complainant and his brother in the Police Station, in the light of the fact that prosecution failed to examine the persons who accompanied the complainant to the Police station on 7.12.1993. No one from the concerned Police Station is examined by the prosecution where the appellant was working including the Police Patil who informed the complainant on 06.12.1193 to attend the Police station on 7.12.1993, as per the directions of the appellant. Thus. The prosecution has not verified the complaint of PW 1.
20. As per the testimony of the complainant, twice the appellant made demand of the bribe amount in the presence of different persons. On the first occasion, when the complainant attended the Police station on the message of ::: Uploaded on - 21/06/2017 ::: Downloaded on - 28/08/2017 04:38:30 ::: CRI.APPEAL.248.08 15 Police Patil, on Monday i.e. 6th December, 1993 along with his brother Ravindra and Niranjan. At that time, Harvilas Khagin Mandal and Gautam Biswas Gai were present in the Police Station. The complainant was demanded money by the appellant at that time. However, neither the persons who were present along with complainant at the time of first demand nor the second demand were examined by the prosecution to support his contention. According to PW 1, the appellant made the second demand from him after three days from the first demand i.e. on Thursday, in the Police Station, whereas as per the FIR, the second demand was made on the next day i.e. on 7.12.1993 in the presence of brother of the complainant Niranjan and Gaurang Haldar and one Malik at the residence of the appellant. The testimony of the appellant is not in consonance with the FIR which is a contemporaneous document, with regard to the alleged demand as well as the place of second demand.
21. Learned counsel for the appellant placed reliance on AIR 2010 SC 1589 in the case of Banarasi Dass vs. State of Haryana, wherein it is held by the Hon'ble Apex Court that the proof of demand and acceptance of bribe is essential and in absence of proof of demand and acceptance of bribe by the appellant, appellant is entitled to acquittal. It is also held that mere proof of recovery of bribe amount from the appellant is not sufficient to prove the offence.
22. In the case of Ashok Kumar Wardhani vs. State of Maharashtra, ::: Uploaded on - 21/06/2017 ::: Downloaded on - 28/08/2017 04:38:30 ::: CRI.APPEAL.248.08 16 reported in 2003 ALL MR (Cri) 88, the complainant was only witness regarding alleged demand. It was held by this Court that the complainant being an interested witness the Court must look for independent corroboration.
23. The Hon'ble Apex Court in the case of Jaswant Singh vs.State of Punjab, reported in AIR 1973 SC 707, has held as under :
"As PW 1 is the complainant, his evidence will have to be considered with great caution and it will not be ordinarily safe to accept his interested testimony unless there is material corroboration found in the other evidence adduced by the prosecution."
24. It is also noticed that no verification of the alleged demand of bribe was made before laying of trap. It was not verified whether in fact the complaint had demanded the bribe. No independent corroboration in that regard is laid by the prosecution. It was required to be verified whether the appellant, in fact, demanded the bribe from the complainant for not prosecuting him, as already it has come on record that the complaint was already filed against the present complainant and his brother. Even the testimonies of complainant and Panchas were not corroborated with the testimony of Investigating Officer as far as investigation is concerned, as unfortunately he is no more.
25. In the case of Madhav Rajurkar vs. State of Maharashtra, reported in ::: Uploaded on - 21/06/2017 ::: Downloaded on - 28/08/2017 04:38:30 ::: CRI.APPEAL.248.08 17 2016(2) Mh.L.J.(Cri) 580, this Court held that no verification of alleged demand of bribe was made before laying of trap. Since testimonies of witnesses were not reliable as they were not consistent with each. The fact that the appellant demanded bribe and same was accepted, not duly proved, the benefit of doubt can be granted to the appellant.
26. In the case of Tryambak Binnar vs. State of Maharashtra reported in 2002 (Vol.3) Mh.L.J. 293, a similar situation has arisen before this court. At that time this Court expressed that when at the time of alleged demand two witnesses were present along with the complainant, the prosecution has chosen not to examine the witnesses. Their statements are not recorded by the investigating agency. The Investigating Officer had not made any attempt to get himself satisfied regarding the complainant's assertion of demand from the appellant/accused for illegal gratification in the light of the fact that it is necessary while considering the evidence of the prosecution to bear in mind importance of evidence of prior demand which if trustworthy makes the trap legitimate to eradicate corruption otherwise we it could be an illegitimate trap.
27. In the case of State of Punjab vs. Sohan Singh, reported in AIR 2009 SC 1887, it has been held by the Hon'ble Supreme Court that independent witness to raiding party was not examined by prosecution without giving reasons. There were serious discrepancies in evidence as regards to events that have taken place prior to raid. The prosecution even failing to prove ::: Uploaded on - 21/06/2017 ::: Downloaded on - 28/08/2017 04:38:30 ::: CRI.APPEAL.248.08 18 demand by the accused. The accused were therefore entitled to acquittal.
28. In the instant case, the prosecution has failed to examine the witnesses who were with the complainant prior to the raid. Admittedly, the bribe amount was not recovered from the physical possession of the appellant. It was allegedly recovered from the house of the appellant. Hence, it is necessary to scrutinize the evidence on record carefully. It is discussed above that there are material discrepancies in the testimonies of the complainant and the panch witnesses who allegedly accompanied him when the trap was laid. These discrepancies go to the root of the case and creates a serious doubt about the seizure of the bribe amount from the house of the appellant. There are certainly chances of planting the said amount particularly when the appellant was taking meals outside his house. The material witnesses including the person who was sitting with the appellant in the pandol of the house were not examined by the prosecution. The learned trial Judge ought to have cautiously considered the material discrepancies.
29. Thus, the prosecution has miserably failed to prove the demand of gratification from the appellant as well as its acceptance. There is no corroboration to the testimonies of PW 1 and the panchas PW 2 and PW 3, with regard to the investigation conducted by the Investigating Officer Shri Kulkarni as, unfortunately he has expired. The circumstances under which the phenolphthalein powder was applied to the currency notes and the demonstration in that regard, there is no corroboration of the testimony of ::: Uploaded on - 21/06/2017 ::: Downloaded on - 28/08/2017 04:38:30 ::: CRI.APPEAL.248.08 19 Investigating Officer. The complainant does not know as to in which pocket, either shirt or pant, the currency notes were kept. Even the panch witness PW 3, who is a hostile witness, is not sure about that. The Investigating Officer would have thrown light on these aspects. However, as the prosecution was unable to examine him, the said fact remains under the shadow of doubt. The prosecution has miserably failed to prove its case beyond reasonable doubt. Thus, the judgment of the trial Court needs interference. The learned trial Court has not considered the material discrepancies in the testimonies of witnesses. Furthermore, the prosecution has failed to prove the demand made by the appellant from the complainant for not beating him or prosecuting him as well as the acceptance of the bribe amount beyond reasonable doubt. In view of the above-said discrepancies in the testimonies of prosecution witnesses and failure of the prosecution to prove the demand of the bribe, the following order is passed:-
ORDER
(i) Criminal Appeal No. 248/2008 is allowed.
(ii) The impugned judgment and order is quashed and set aside.
(iii) The bail bonds of the appellant shall stand cancelled.
JUDGE sahare ::: Uploaded on - 21/06/2017 ::: Downloaded on - 28/08/2017 04:38:30 :::