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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.196 OF 2008
Sunil son of Khushalarao Walke,
Aged about 39 years,
Occupation: Service, Police Constable,
Resident of Krushi Nagar,
Old Jaripatka, Nagpur,
Tahsil and District Nagpur. ....... APPELLANT
...V E R S U S...
The State of Maharashtra,
through Anti Corruption Bureau,
Nagpur, Police Station officer,
Police Station Panchpaoli,
Nagpur. ....... RESPONDENT
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Shri Amol Mardikar, Advocate for Appellant.
Shri A.V. Palshikar, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE: 22 nd NOVEMBER, 2017. ORAL JUDGMENT 1] Exception is taken to the judgment and order dated
05.04.2008 passed by the Additional Sessions Judge-2, Nagpur in Special Criminal Case 06/2006, by and under which, the appellant ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:48 ::: apeal196.08.J.odt 2 (hereinafter referred to as "the accused") is convicted for offence punishable under section 7 and 13 (1)(d) read with section 13 (2) of the Prevention of Corruption Act, 1988 and is sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs.500/-.
2] Heard Shri Amol Mardikar, the learned counsel for the appellant and Shri A.V. Palshikar, the learned Additional Public Prosecutor for the respondent/State.
3] Shri Amol Mardikar, the learned counsel for the accused submits that the prosecution has failed to establish the very sine quo non for constituting the offence punishable under the provisions of the Prevention of Corruption Act ("Act" for short) in as much as it is not proved, much less beyond reasonable doubt that the accused demanded illegal gratification. The submission is, that even de hors the defence of the accused that the tainted currency notes which were recovered were thrust in his pocket, which defence is probablized on the touchstone of preponderance of probabilities, even if arguendo the recovery of tainted currency ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:48 ::: apeal196.08.J.odt 3 notes is accepted, the case of the prosecution is not taken any further. Shri Amol Mardikar would rely on the enunciation of the law of the Apex Court in (i) Mukhtiar Singh (Since Deceased) through his L.R. vs. State of Punjab, 2017(7) Scale 702
(ii) P. Satyanarayana Murthy vs. State of Andhra Pradesh (1992) 4 SCC 39 (iii) B. Jayaraj vs. State of A.P. 2014 All SCR 1619,
(iv) A. Subair vs. State of Kerala (2009) SCC Vol.6 587 and
(v) N. Sunkanna vs. State of Andhra Pradesh 2015 ALL MR (Cri) 4551 (S.C.).
4] The learned counsel for the accused would further submit that after the introduction of section 165-A on the statute book (IPC) the bribe giver is equally guilty. The evidence of the bribe giver is no better than that of an accomplice and must be tested with caution, is the submission. Reliance is placed, amongst others, on the judgment of the Apex Court in Pannalal Damodar Rathi vs. State of Maharashtra, 1988 SCC (Criminal) 121. The further submission is that both the complainant and the panch witnesses are interested witnesses who are vitally interested in ensuring that the trap succeeds. The evidence of the ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:48 ::: apeal196.08.J.odt 4 complainant and the shadow panch must be subjected to close scrutiny, and should there be any doubt, the benefit thereof must necessarily go to the accused, is the submission. 5] The learned counsel submits that the initial demand, which according to the complainant was made on 16.09.2005 is not proved. Au contraire, the evidence of the Investigating Officer P.W.4 would reveal that the accused was not present in Police Station Panchpaoli on the day, and at any rate at the time, on which/at which, the demand is allegedly made. My attention is invited to the following portion in the cross-examination of the Investigating Officer P.W.4:
19. Accused is a police constable. Police constable has no power to register the offence. On 5/10/05 I recorded statement of witness Shri Dattatrya Vishnu Thhakur PSI at ACB office. On 16/09/05 as per entry No. 24 Dattatrya Thakur took over the charge of Shri Suryawanshi as Day officer, at 11.45 hours, as Suryawanshi was intended to attend High Court. I found in investigation that till 1.45 hours of 16/09/05 no any complainant had been to police station. So also I found that till 14.15 hours Shri Dattatrya Thakur was present in police station. At 2.15 p.m. one Sushila Bhandari had been to P.S. to lodge her report of theft of her truck.
During investigation I found that Dattatrya Thakur ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:48 ::: apeal196.08.J.odt 5 along with present accused were to be proceeded for investigation of the theft of said truck. At that time complainant in present matter came to police station. On verification of the motorcycle of complainant Dattatrya Thakur found the broken Head-light of the motorcycle. Complainant was asked to wait in police station as they were intended to go to inquire the report of Sushila Bhandari. Accordingly Shri Thakur alongwith present accused returned back at 16.10 hours to police station. I also found that at 16.10 hours complainant was not present in police station. From departure from police station till their arrival at police station no any order was given to accused by Shri Dattatrya Thakur. At 16.45 hours PSI Suryawanshi returned back and took his charge from Shri Thakur.
6] The learned counsel for the accused would further submit that the evidence of P.W.1 complainant and P.W.2 shadow panch is at variance, and the variance touches not peripheral aspects but the core. The evidence of both P.W.1 and P.W.2 must be discarded on this short ground, is the submission. Per contra, the learned A.P.P. Shri A.V. Palshikar would support the judgment and order impugned. The learned Special Judge did not commit any error in recording a finding that both demand and acceptance of illegal gratification stand proved, is the submission. The learned A.P.P. Shri Palshikar would further submit that since both the demand and the acceptance of the amount is proved, the ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:48 ::: apeal196.08.J.odt 6 statutory presumption under section 20 of the Act is activated and the consequential burden on the accused to rebut the statutory presumption is not discharged.
7] I have given my anxious consideration to the evidence on record and having done so, I am inclined to accept the submission of the learned counsel for the accused that the demand, which is the prerequisite and the essential ingredient to constitute an offence under the provisions of the Act, is not established by the prosecution beyond reasonable doubt. In so far as the essential demand is concerned, the version of the complainant that the demand for Rs.500/- for registering the First Information Report of the accident, was made by the accused in the Panchpaoli Police Station on 16.09.2005, is rendered extremely suspect and doubtful in view of the evidence of the Investigating Officer referred to supra. It is a settled position of law, that if the initial demand is either not proved or disproved, the version of the complainant qua the demand of acceptance of the illegal gratification at the time of trap, will have to be subjected to close, careful and cautious scrutiny. Shri Amol ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:48 ::: apeal196.08.J.odt 7 Mardikar invites my attention to the judgment of the learned Single Judge of this Court in Avinash Sitaram Garware Vs. State of Maharashtra reported in 2008 ALL MR (Cri) 15 and in particular to the following observations in paragraph 22:
22. Once the prior demand is not proved, the rest of the prosecution case regarding money allegedly demanded by the accused on 3/7/1991 is concerned, it will have to be read with great caution and circumspection. Evidence of PW-1 Prakash Patil indicates that he was instructed to accompany PI Khaire and PW-2 Waghchoure to the house of the accused. He has said that PI Khaire and PW-2 Waghchoure went inside the house of the accused and he introduced PI Khaire and PW-2 Waghchoure to the accused as intending purchasers of his land. The accused demanded money. He has stated that PI Khaire sat on his side in the house of the accused. According to him when he asked for 7/12 extracts, the accused demanded money for it. Thus demand for money was made by the accused in front of PI Khaire.
8] In so far as the demand allegedly made by the accused on the date of the trap, i.e. on 17.09.2005, the versions of the complainant P.W.1 and P.W.2 shadow panch are difficult to be reconciled. The complainant has deposed that on 17.09.2005, he along with the shadow panch went to the Panchpaoli Police ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:48 ::: apeal196.08.J.odt 8 Station, the accused met the complainant and the shadow panch at the Police Station, the complainant requested the accused to do his work and the response of the accused was to inquire from the complainant as to whether his (accused) work was done. The complainant replied in the affirmative "paise anale". The complainant then deposes that the accused inquired about the shadow panch Bagade, who in the complainant introduced as brother. The shadow panch was asked by the accused to wait outside, accordingly the shadow panch went outside and the complainant and the accused went to the spot on the vehicle of the complainant. Some documents were prepared and then both the complainant and the accused returned to the Police Station. The accused called the complainant near the Police van which was parked near the gate of the Panchpaoli Police Station and the shadow panch was at a distance of 12 feet from the complainant and the accused. The complainant states that the accused demanded the bribe amount which was paid and the predetermined signal given. If the evidence of the shadow panch is considered in juxtaposition to that of the complainant's, it is revealed that the shadow panch is absolutely silent on he ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:48 ::: apeal196.08.J.odt 9 accompanying the complainant to the Police Station, the conversation which allegedly took place between the complainant and the accused in the Police Station, the fact that the accused inquired about the identity of the shadow panch and then upon being told by the complainant that he was his brother, the accused having asked the shadow panch to go out of the Police Station. The version of the complainant that he and the shadow panch both met the accused at the Police Station, an amount was demanded even in the Police Station, is totally missing in the evidence of the shadow panch. Indeed, the story of the shadow panch begins from that point when the complainant and the accused leave the Police Station on the vehicle of the complainant to visit the spot. The shadow panch has not uttered a single word about the prior interaction with the accused.
The version of the complainant and the version of the shadow panch on the demand is again discrepant and inconsistent. The complainant has deposed thus:
Thereafter I was called by Walke near police van, which was standing near the gate of Panchpaoli police station. So, I went to him. Panch No. 1 Bagade was standing about 12 fee from us. Walke has demanded bribe amount.
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On the contrary, the version of the shadow panch is thus:
Near the gate of P.S. there was police Jeep. Complainant along with Shri Walke stood near the stairing of the said Jeep. I was also standing near them. Accused Walke inquired with the complainant about his work. Complainant replied in affirmative. Complainant asked "deu ka". Give me - said accused.
9] Having analyzed the evidence on record minutely, and having recorded a finding that the initial demand is not proved, I would find it extremely hazardous to hold that the demand on the date of the trap is proved beyond reasonable doubt. In view of the failure of the prosecution to prove the earlier demand, the evidence of what transpired later on must be tested on the anvil of caution, and having done so, the inter se discrepancies and inconsistencies in the evidence of the complainant P.W.1 and the shadow panch P.W.2 do not permit me to let the conviction rest on such evidence.
10] The judgment and order impugned is set aside. The accused is acquitted of offence punishable under section 7, 13 ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:48 ::: apeal196.08.J.odt 11 (1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988.
11] The bail bond of the accused shall stand discharged. 12] Fine paid by the accused, if any, be refunded.
13] The appeal is allowed.
JUDGE
NSN
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