Bombay High Court
Lalaso Balu Shaikh vs The State Of Maharashtra on 9 December, 2011
Bench: A.M. Thipsay
1 Apeal-945-03
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION.
CRIMINAL APPEAL NO. 945 OF 2003
Lalaso Balu Shaikh
Aged : 45 years,
R/o Nej, Tq. Hatkanangale,
Dist. Kolhapur,
At present : Room No. 66,
Juna-Budhwar Police Line,
Kolhapur.
..APPELLANT
-VERSUS-
The State of Maharashtra.
..RESPONDENT
.....
Shri Shekhar A. Ingawale, advocate for the appellant.
Shri K.V. Saste, A.P.P. for respondent/State.
.....
(CORAM : A.M. THIPSAY , J.)
DATE OF RESERVING THE JUDGMENT : 14th November, 2011
DATE OF PRONOUNCING THE JUDGMENT : 9th December, 2011
JUDGMENT :
1. This appeal is directed against the judgment and order
dated 23rd July, 2003 passed by the Special Judge, Kolhapur, in
Special Case No. 8 of 1999, convicting the appellant, who was the
sole accused in the said case, of the offences punishable under
Sections 7 and Section 13(2) r/w Section 13(1)(d) of the Prevention
of Corruption Act, 1988. The learned Special Judge sentenced the
2 Apeal-945-03
appellant to suffer R.I. for one year and to pay a fine of Rs. 1,000/-
with respect to the offence punishable under Section 7 and to
suffer R.I. for two years and to pay a fine of Rs. 2,000/- with
respect to the offence punishable under Sections 13(2) r/w 13(1)(d)
of the Prevention of Corruption Act, 1988. (Hereinafter referred to
as "the said Act", or "the P.C. Act"). The learned Special Judge
imposed default sentences in the event of failure to pay the amount
of fine. The substantive sentences were directed to run
concurrently.
The appellant (Hereinafter referred to as "the
accused" for the sake of convenience), being aggrieved by the said
order of conviction and sentences, has approached this Court.
2. The case of the prosecution as revealed from the
column no. 16 of the prescribed proforma of the Final Report Form,
as was put forth before the trial Court, was as follows :-
That, the accused- a Police Constable-was attached
to Shahupuri Police Station, Kolhapur at the material time. That,
he had been entrusted with the duties of looking after the
investigation papers, applications etc. and of assisting the
investigation in respect of the various offences as might be
3 Apeal-945-03
registered at the said Police Station. That, a crime vide C.R. No.
139 of 1998 had been registered at the said Police Station against
one Bipin Yeshwant Mane and five others. That, in that case, the
accused had favoured the said Mane and other accused, by not
taking action under the provisions of Section 151 of the Code of
Criminal Procedure; and that, due to such `co-operation' extended
by the present accused to the said Bipin Mane and others in the
said crime report, the present accused on 22.10.1998, demanded
a bribe of Rs. 10,000/- for himself from them, and later on, settled
for Rs. 5,000/-. The said Bipin Yeshwant Mane reported the matter
to the Anti Corruption Bureau, Kolhapur on 23.10.1998, pursuant to
which a trap was arranged. That, in the presence of the panch
witness Girish Gangatirkar (PW-2), the accused demanded and
accepted the bribe of Rs. 5,000/-, on 23.10.1998 at the residence
of said Bipin Mane and as per the trap laid, he was caught red
handed. On completion of investigation and after obtaining
sanction under Section 19 of the said Act, which was duly granted
by Raghur Kuppuswami Padmanabhan (PW-5), the accused was
prosecuted on the allegation of having committed the offences
punishable under Section 7 and Section 13(2) r/w Section 13(1)(d)
of the said Act. The trial, as aforesaid, resulted in conviction of the
accused.
4 Apeal-945-03
3. I have heard Mr. Shekhar Ingawale, the learned
Advocate for the accused. I have also heard Mr. Saste, the learned
Additional Public Prosecutor for the State. With the assistance of
the learned counsel, I have gone through the entire evidence
adduced before the trial Court, the impugned judgment and all
other relevant record.
4. The prosecution examined six witnesses in the trial
Court. The first witness Bipin Mane is the person, who reported
the matter to the Anti Corruption Bureau and got laid a trap for
apprehending the accused. The second witness Girish
Gangatirkar, an employee in the office of the Joint Charity
Commissioner, is a panch witness in respect of reporting of matter
by Bipin Mane to the Anti Corruption Bureau, laying of trap and the
acceptance of the bribe by the accused. Third witness
Hemchandra Kshirsagar is a Police Officer, who, at the material
time, was attached to Shahapuri Police Station. He is the one,
who was investigating into C.R. No.139/1998, which was in respect
of the offence punishable under Sections 147, 148, 149, 363, 348
and 469 of the Indian Penal Code as also the offences punishable
under Section 3(1)(x) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989, that had been registered
against said Bipin Mane and five others. It is with this witness, that
5 Apeal-945-03
the accused was working as orderly. The fourth witness Liyaqat
Mujawar is a friend of the said Bipin Mane and one of the accused
in the said C.R. No. 139/1998. The fifth witness Raghur K.
Padmanabhan, is the Sanctioning Authority, who had granted
sanction as contemplated under Section 19 of the said Act. The
sixth witness Sudhir Chougule, was working as a Deputy
Superintendent of Police, Anti Corruption Bureau, Kolhapur at the
material time and is the Investigating Officer in the matter.
5. It is contended by Mr. Ingawale, the learned Advocate
for the appellant that the appellant had been falsely implicated by
said Bipin Mane. According to him, the evidence adduced before
the trial Court was not at all satisfactory. He submitted that there
were various inconsistencies and contradictions in the evidence of
said Bipin Mane (PW-1), Girish Gangatirkar-panch witness (PW-2),
Liyaqat Mujawar (PW-4), Sudhir Chougule-Investigating Officer
(PW-6) on crucial aspects such as demand and acceptance of the
bribe. He submitted that said Bipin Mane (PW-1), as well as said
Liyaqat Mujawar (PW-4), were highly influential persons and that,
by reason of being involved in the said C.R. No. 139/1998, their
ego was hurt; and that, as the accused was associated with the
investigation of the said case, they bore a grudge against him and
falsely implicated him for ulterior motives. He submitted, that the
6 Apeal-945-03
case of the accused was clearly put forth by him from the very
beginning, which was to the effect that he had gone to the house of
said Bipin Mane in connection with the investigation of the said
C.R. No. 139/1998 and that, this case of the accused was
supported by the evidence of the prosecution itself. He submitted
that in any case, the accused was entitled to get the benefit of
reasonable doubt, which arises on considering the evidence
adduced by the prosecution and to be acquitted.
6. Mr. Saste, the learned Additional Public Prosecutor, on the
other hand, contended that the witnesses had no motive to falsely
implicate the accused and that, their evidence is reliable and
acceptable. He submitted that the appreciation of the evidence of
the prosecution witnesses as done by the learned Special Judge
does not suffer from any infirmities and that, the conclusion arrived
at by the learned Special Judge is proper and legal. He, therefore,
submitted that the appeal deserves to be dismissed.
7. The evidence of Bipin Mane (PW-1) shows that he,
Liyaqat Mujwar (PW-4), one Mahesh Chavan, one Sangram
Jadhav, one Nasirkhan Pathan and one Devendra Patil are close
friends and meet every day. That, some person used to make
telephone calls to the wife and sister of Mahesh Chavan and used
7 Apeal-945-03
to harass them by using filthy language. That, Bipin Mane and his
friends decided to trace that person and ultimately found that he
was one Amar Kamble, working as a `Canteen Boy' in the Income
Tax office. The version of Mane is that when they took said Amar
Kamble to Police Station, he lodged a report with the Police
against Mane and his friends, on the basis of which, a crime (i.e.
C.R. No. 139/2011) was registered against them. His evidence
also shows that the investigation of that case was being done by
P.S.I.-Kshirsagar (PW-3) and that, the accused was assistant of Mr.
Kshirsagar.
8. Mane states that in the course of investigation, the
accused had come to his house on 2-3 occasions and that, on one
occasion, he told Mane that he had helped Mane and his friends in
the investigation of the said C.R. According to Mane, the accused
demanded Rs. 10,000/- from him and also gave threats that if the
said amount would not be paid, he would file proceedings under
Section 151 of the Code of Criminal Procedure against Mane and
others. Mane states that he did not pay any heed to such demand
and threats. Though, such demands and threats were again made
on 2-3 occasions, he did not pay any heed thereto.
9. That, on 22.10.1998 at about 11.30 a.m., Mane had
8 Apeal-945-03
gone to the house of Liyaqat Mujawar (PW-4) to invite him for
breakfast. That, that time accused made a telephone call on the
telephone at the residence of said Liyaqat but as Liyaqat was
inside, Mane answered the call. The accused, at that time, on
telephone, told Mane to bring Rs. 10,000/- on the next day in the
evening and that, he would tell later to Mane, the place where the
money should be brought. Since Mane told him that he could not
afford the amount of Rs. 10,000/-, the matter was got settled at
Rs. 5,000/-. Mane then asked him as to when he should hand over
the money, then the accused said that he would come to Mane's
house and take the money. Mane informed about this to Liyaqat
(PW-4).
10. That, on 23.10.1998, Mane approached the Anti
Corruption Bureau office and told about his grievance. His
complaint was recorded (Exhibit-16). Mane has given the details
of the laying of the trap in his evidence. According to him, he had
gone to the office of the Anti Corruption Bureau at 11.30 a.m. on
23.10.1998 and after making a complaint to the Officer, he was
asked to come to the Anti Corruption Bureau again at 4 p.m. with
bribe money. That, accordingly he went there with an amount of
Rs. 5,000/- consisting of 10 currency notes of Rs. 500/-
denomination. That, when he reached there, two panchas were
9 Apeal-945-03
already present to whom he was introduced and that, they were
Girish Kamlakar Gangatirkar (PW-2) and one Maruti Tukaram
Suryawanshi. Mane explained his grievance against accused to
the panchas. The panchas were asked to go through the contents
of the complaint of Mane, that had been recorded in morning.
11. Serial number of the currency notes were noted in the
panchanama, which was being drawn simultaneously. That, the
Officer from the Anti Corruption Bureau explained the use and the
properties of anthracene powder and thereafter applied the
anthracene powder to the currency notes that had been brought by
Mane. The technical details of the trap need not be mentioned
here, but what needs to be mentioned is that instructions were
given to Mane to sit in the drawing room of his house with panch
Girish Gangatirkar (PW-2) and that, upon enquiry, if any, by the
accused, he should be told that Gangatirkar was a relative of
Mane.
12. Mane was specifically instructed to have talks with the
accused regarding his work, that he should not be entangled with
the criminal case, and that, if the accused would demand the
money, then-and then only-it should be given to him. That, if and
after the bribe would be accepted by the accused, Mane was to
10 Apeal-945-03
give a signal to the members of the raiding party by uttering the
words `Choti Chaha Kar'.
13. Regarding the actual trap, according to Mane, he went
to his house at about 5.30 p.m. with panch Gangatirkar (PW-2) and
that, after 5 to 10 minutes thereafter the other panch and members
of the raiding party also reached there. About 5 to 10 minutes
thereafter, the accused came there and made enquires as to
whether `Bipin' was present. Mane then asked him whether he
would like to take `breakfast', but the accused refused. According
to Mane, he had a talk with the accused that accused should not
give any trouble to Mane and his other friends, and that, no case
should be filed against them. That, the accused then demanded
the money by making sign by crossing his thumb and first finger.
That, thereafter, Mane took out the currency notes from his shirt
pocket by his right hand and handed over the same to the
accused, who accepted them by his right hand. That the accused
then kept those currency notes in the left side chest pocket of his
shirt. As per the instructions given to him, Mane then gave a signal
to the raiding party by saying `Choti Chaha Kar'. That, immediately
the members of the raiding party, who had been sitting on the first
floor came to drawing hall and on Mane's pointing out towards the
accused, the accused was caught. Mane was then asked to wait
11 Apeal-945-03
outside and was again called inside after some time. Darkness
was created and the person of Mane was examined in the light of
ultraviolet lamp. Bluish glitter on the right hand finger and left side
pocket of shirt of Mane was noticed.
14. Mane was extensively cross examined. It is revealed
in the cross examination, that he had studied upto B.E.
(Mechanical) and was, at the material time, a Lecturer in a college
at Kagal. It is also revealed, that the college is named after Bipin
Mane's great grand father. It is also revealed, that father of Bipin
Mane-Shri Y.D. Mane-was the President of Kagal Municipality and
that, he belonged to the political group of Shri Mandlik, who was
the then a sitting M.P. from Kolhapur. It is also revealed that the
State Minister Mr. Mushrif also belonged to the political group of
Mane's father. It was suggested to him that about 65 ladies had
filed a complaint against him and his friends, but he expressed
ignorance about any such complaint.
15. There is some cross examination of this witness on
the point of the facts relating to the said C.R. No. 139/1998, the
object of which seems to be to point out that Mane and his friends
are not of good character. It does not appear necessary to go into
that aspect. It is, however, a fact that Mane and his friends had
12 Apeal-945-03
been arrested in the said C.R. of Shahupuri Police Station and
that, the complaint against Mane and others made by said Amar
Kamble was to the effect that he was beaten up and that, his hair
and one side moustache was partially cut. It is also revealed that
the news of the case filed against Mane and others was flashed in
the local news paper.
16. Mr. Ingawale, the learned Advocate for the appellant
contended that the character of the complainant appears to be not
good in view of the complaint made by about 65 ladies against him
and his friends, and that, therefore, the evidence of Mane needs to
be examined with caution. Since Mane has denied that any such
complaint was made against him and others by ladies, I am not
inclined to give much importance to this aspect. The registration of
a crime against Mane, Liyaqat (PW-4) and their other friends, is
however relevant in the context of the case against the accused,
though not relevant as showing bad character of the complainant.
The relevancy of registration and pendency of the crime against
Mane lies in the fact that the accused was associated with the
investigating Officer in that case. In the light of the peculiar facts of
this case and the specific contention taken by the accused, it would
be necessary to examine the evidence carefully from the point of
view of ascertaining what could be the purpose of visit of the
13 Apeal-945-03
accused to the house of Mane.
17. Shri Shekhar Ingawale, the learned Advocate for the
accused has pointed out certain discrepancies in the evidence of
the witnesses with respect to the details, such as, demand of bribe
by the accused, time, place and nature of such demand, the details
regarding the reporting of the said matter to the A.C.B. and the
actual trap, etc. According to him, these infirmities in the
prosecution evidence create a doubt about the truth of the
prosecution case.
18. In my opinion, such discrepancies in the evidence and
the other infirmities therein, if any, need to be examined only in the
backdrop of the basic case of the prosecution against the accused.
It is only by keeping the case of the prosecution as such in mind,
that effect of the infirmities in the prosecution evidence can be
properly interpreted and appreciated.
19. One of the ingredients of the offence punishable under
Section 7 of the P.C. Act is that the gratification must have been
received by the accused as `a motive or reward', for- "(a) doing or
forbearing to do an official act; or (b) showing or forbearing to
show favour or disfavour to someone in the exercise of his official
14 Apeal-945-03
functions; or (c) rendering, or attempting to render, any service or
disservice to someone, with the Central or any State Government
or Parliament or the Legislature of any State, or with any public
servant."
20. Thus, there must be an understanding between the
accused and the person aggrieved, that the bribe was being given
in consideration of some specific official act or acts, or conduct.
Now, in the instant case, such official act or omission in respect of
which the bribe was being demanded, was the act of not dealing
with Mane and the others under the provisions of Section 151
of the Code of Criminal Procedure and this is the case of the
prosecution itself. In other words, the bribe was being demanded
by the accused as a consideration for not taking action against
Mane and his friends under the provisions of Section 151 of the
Code of Criminal Procedure. It is in this context, it is contended by
the learned counsel for the accused that the accused being a mere
Head constable had no power or authority either to take any such
action or to prevent such action from being taken and that,
therefore, there would be no question of the accused demanding or
receiving any amount as a motive or reward in consideration of any
such official act or omission. Undoubtedly, incapacity of the public
servant to show any favour or render any service to Mane and
15 Apeal-945-03
others would not take the matter out of the purview of the penal
provisions in question. Explanation (d) to Section 7 of the P.C. Act
itself lays down that receipt of gratification by a public servant as a
motive or reward for doing what he is not in a position to do, is also
covered within the penal provision laid down in Section 7. Thus,
the contention that the accused could not have initiated or dropped
any action under Section 151 of the Code against Mane and others
and that, if such action was intended to be taken against them by
the superiors of the accused, the accused could in no way prevent
it, is not relevant from exonerating the accused of the alleged
offences. Nevertheless, such incapacity of the accused is an
important factor bearing on the question as to what was the
understanding with which the money was to be given and this
would be relevant in deciding whether the money was received or
being received, as a motive or reward as contemplated under
Section 7 of the P.C. Act.
21. The contention that Mane and his friends are highly
influential persons and that, the accused, therefore, would not have
dared to demand any money from them as a bribe, which is closely
connected with the previous contention may now be examined.
Indeed, factually, this contention appears to be correct. In the
cross examination of Mane, he admitted that his father Y.D. Mane
16 Apeal-945-03
was a known politician and that, he was the President of Kagal
Municipality. Mane also admitted that his father was from the
political group of Shri Mandlik, the then sitting M.P. from Kolhapur.
He also admitted that Shri Hasan Mushrif, the then Minister in the
State Government, was also from the political group of Mane's
father. Even Liyaqat Mujawar (PW-4) appears to be quite
influential, in as much as, admittedly the said Minister Hasan
Mushrif is his maternal uncle. What is further relevant is that,
admittedly.
another maternal uncle of Liyaqat Mujawar-
Shri Shamsuddin- was the Superintendent of Police of Kolhapur
District at the material time. Thus, there can be no hesitation in
concluding that Mane and Liyaqat Mujawar were certainly having
sufficient influence so as to be able to, at least, approach and
convince the superior police officers in case of any illegal or
unlawful demand made by a police head constable or in respect of
threats given by him.
22. There is great substance in the contention advanced
by the learned counsel for the accused that under the
circumstances, it was quite unlikely that a Police Head Constable
like the accused would expect to get any bribe from Mane and
others under the threat of otherwise taking an action under Section
151 of the Code against them. Unless the accused would feel that
17 Apeal-945-03
he could legitimately create such a threat in the mind of Mane and
others, he would not go ahead and negotiate with them for the
bribe by stating that if the same would be given, he would not take
the said action.
23. According to the accused, he had gone to Mane's
house, to collect `Bonafide Certificates' in connection with C.R. No.
139 of 1998 the investigation into which was being done by P.S.I.-
Kshirsagar (PW-3). It is not in dispute that the said crime was,
inter alia, also in respect of offences punishable under the
Atrocities Act, and therefore, the caste of the accused persons in
that case, as also the caste of the aggrieved person, were the
crucial aspects on which evidence needed to be collected in the
course of investigation. Apparently, `Bonafide certificates' issued
by the School Authorities contain the caste, and therefore,
obtaining of such bonafide certificates would be a step in
investigation for ascertaining the caste. It is for that purpose, that
bonafide certificates were required by the P.S.I.-Kishirsagar
(PW-3), who was investigating the said case. The evidence
shows that, the certificates in respect of Mane himself, Mahesh
Chavan and Devendra Patil had been collected but the certificates
in respect of the other accused in the said case were not collected.
The case of the accused is that he had agreed to visit the house of
18 Apeal-945-03
Mane for collecting the remaining certificates and that, Mane took
disadvantage of this and lodged a false report against the accused.
According to the accused, Mane tried to insert the amount in the
pocket of the accused, when the persons from the raiding party
caught hold of the accused.
24 Mane, in his evidence (in examination-in-chief) stated
that he was instructed by A.C.B. Officer that when he would meet
the accused in his house, he should open talk with the accused
regarding his work (i.e.,-regarding 151 proceedings) and that, he
should not be entangled with any criminal case; that if the accused
would demand money, then and then only, he should give it to the
accused. This is supported by the contents of the pre-trap
panchanama Exhibit-21, which reflects that Mane was instructed to
open the topic regarding the case filed against him and his friends
and to then request the accused not to initiate proceedings under
Section 151 of the Code of Criminal Procedure. The Investigating
Officer Mr. Chougule (PW-6) has also stated in his cross
examination, that he had instructed Mane that after the accused
would meet him, he (Mane) would have to say to the accused that
no action under section 151 of the Code of Criminal Procedure
should be taken against him. However, though such were the
instructions given to Mane, actually there does not appear
19 Apeal-945-03
to have taken place any talk between Mane and the accused about
the proceedings under Section 151 of the Code of Criminal
Procedure. No doubt, Mane has said that he said to the accused
that he (the accused) should not give any trouble to Mane and his
friends and that, no case should be filed against them but, there is
no specific reference to Section 151 of the Code of Criminal
Procedure, which was expected, in view of the categorical
instructions given to Mane in that regard by the Investigating
Officer. The evidence of panch-Gangatirkar (PW-2) on this aspect
also does not speak that there was any talk between Mane and the
accused about not taking action against Mane and his friends or
not involving them in any criminal case etc. Though this may not
be, by itself, significant, that the panch-Gangatirkar (PW-2) says
that there was discussion between Mane and the accused about
the O.B.C. Certificate, is certainly significant.
25. In the cross examination, Mane has refused that the
accused was asking him for `bonafide certificate'. It is only when
he was confronted with his supplementary statement recorded
during the investigation, that he admitted that he had a talk with the
accused about `O.B.C. certificate' at the time of trap. It is clear and
is not in dispute that the words `O.B.C. certificate' and `bonafide
certificate' have been used to mean the same certificate, i.e.-a
20 Apeal-945-03
certificate showing the caste of the concerned person.
26. The evidence of P.S.I.-Kshirsagar (PW-3), the
Investigating Officer in respect of the said C.R. No. 139/1998, in
which Mane and his friends were accused, shows that the accused
was specifically instructed by him, to collect caste certificate of the
complainant in that case and the accused in that case i.e. Bipin
Mane and others. His evidence shows that there were seven
accused in the said C.R. including Bipin Mane and Liyaqat
Mujawar (PW-4). P.S.I.-Kshirsagar (PW-3) has said that the
bonafide certificates of the complainant and the accused in that
case were required and that on 23.10.1998 i.e. on the date of trap
itself, the bonafide certificates in respect of Mane, Mahesh Chavan
and one Devendra Patil were collected. There is substance in the
contention of the learned counsel for the accused that this lends
some support to the statement of the accused as to why he had
gone to the house of Mane.
27. Mane initially denied that the bonafide certificates
were being demanded by the accused from him and others, or that,
the bonafide certificates relating to some of them were handed
over to the accused, as was suggested to him in the cross
examination. He also denied that the bonafide certificates relating
21 Apeal-945-03
to him, Mahesh Chavan and Devendra Patil were given to the
accused on 23.10.1998 itself in the morning. It is only when he
was confronted with his supplementary statement, that he admitted
that there was a talk between him and the accused at the time of
trap about `O.B.C. certificate'. It is seen earlier that `the O.B.C.
certificate' and `the bonafide certificate' are the terms used in
respect of the same certificate. In any case, in the story put forth by
Mane, there was no occasion for any discussion between him and
the accused for O.B.C. certificate. That, the accused should put
forth a specific case that the purpose of his visit was only for
collection of the relevant certificates and Mane should attempt to
suppress that discussion had taken place about such certificate,
lends assurance to the version of the accused. Mane's attempt to
suppress that there was some talk about some certificate, speaks
for itself. It can be legitimately presumed from the attempt of such
suppression, that Mane himself thought that the fact that there was
discussion about any such certificate between him and the
accused, would create an inference that the visit of the accused
could be very well for the purpose of collecting such certificates or
in that connection; and that, then the very basis of the prosecution
case would collapse.
28 In my opinion, the undisputed position that there was some
22 Apeal-945-03
discussion about some certificates (whether termed as O.B.C.
certificate or bonafide certificate) between the accused and Mane
at the time of trap, does not fit in with the case of the prosecution.
If, the purpose of visit of the accused was to collect money from
Mane as and by way of bribe and that, the bribe was to be taken
for not taking any action against Mane and others under Section
151 of the Code of Criminal Procedure, then there was no scope or
occasion for discussion regarding any `O.B.C. certificate'.
Anyway, if there would have been a talk in respect of the O.B.C.
certificate in connection with proposed action under Section 151 of
the Code of Criminal Procedure, as alleged by Mane, then Mane
would not have attempted to suppress this aspect and on the
contrary would have explained as to how the subject of 'O.B.C.
Certificate' cropped up in the context of the demand of the
accused.
29 After carefully considering this aspect of the matter, it seems
quite possible that the accused had actually gone to the house of
Mane for collecting the certificates in connection with the case that
had been registered against Mane and others.
30 In law, Mane and others were not bound to produce the
certificates. It was the need of the Investigating Agency to collect
23 Apeal-945-03
such certificates, so as to be able to complete the investigation in
respect of the C.R. No. 139 of 1998. In fact, therefore, the
Investigating Agency required co-operation from Mane and others.
On being promised and in the hope of obtaining such certificates,
the accused could very well visit Mane's house.
31. The evidence also shows that when the accused
realised that he was trapped, he addressed to Bipin Mane as "Bipin
you have deceived me." There is no challenge to this evidence.
This has to be taken as spontaneous utterance by the accused,
and though not very conclusive or decisive, is quite consistent with
the reaction of a person who has been falsely involved. This
evidence is significant from another angle also. That the accused
addressed Mane as 'Bipin' - the first name- is indicative of sufficient
acquaintance between the two, and somewhat unlikely in the
background of the alleged threats of otherwise taking action U/sec.
151 of the P.C. Act for demanding the bribe. Though by itself, this
piece of evidence, would not mean much, in the light of the
evidence discussed earlier, it is sufficient to support the doubt as to
the understanding between Mane and accused leading to the visit
of the accused to the house of Mane.
32. There is also an important aspect of the matter, which
24 Apeal-945-03
can not be overlooked while appreciating the evidence. The
evidence of Investigating Officer-Mr. Chougule (PW-6) shows that
relations between Bipin Mane's father and the uncle of Mane, who
is a doctor, are cordial. Chougule admitted in cross examination
that while working at A.C.B. Kolhapur, there were complaints
against him made to his superiors and that, an enquiry into those
complaints had been started. He also admitted that during the
period of pendency of the said enquiry proceedings, he was
transferred to Nanded. It is interesting to note that according to
him, he was ill, and therefore, could not join his duty at Nanded for
a period of about one year. Apparently, after that, he came back to
Kolhapur. It is contended by the learned counsel for the accused
that in the context of the connections of Bipin Mane and Liyakat
Mujawar (PW-4) with the politicians and with the Superintendent of
Police, Kolhapur District, the fact that Chougule, though
transferred, actually did not join at his new post on the ground of
illness and then, came back to Kolhapur after one year spent in
leave, is quite significant and shows Chougule obviously required
favour from the politicians and/or his superiors in the police
department for being able to practically defeat the order of transfer.
Though, it cannot be concluded that it had any bearing upon the
facts of the present case, the fact remains that Chougule does not
seem to be a person on whom implicit reliance could be placed, for
25 Apeal-945-03
impartial investigation, when the complaint was made and
supported by influential persons.
33 The various contentions put forth with respect to the
unreliability of evidence relating to the demand of bribe, the
understanding, actual incident of trap etc., may now be examined.
According to Mane, when initially demands were made by the
accused, who had come to Mane's house 2-3 times, the accused
had said to him that he had helped Mane and others in the
investigation in C.R. No. 139 of 1998, but that, Mane did not pay
any heed to such demands. This was when Mane was alone.
Even thereafter on 2-3 occasions, the accused made similar
demands and gave threats to initiate proceedings under Section
151 of the Code of Criminal Procedure, but still Mane did not pay
any heed to such demands, or to the threats. There can be no
doubt that Mane was certainly capable of complaining about the
demands made by the accused to the Superiors of the accused
and certainly was not required to be bothered about such threats of
the accused.
34. According to Mane, the accused had not actually helped
him, and therefore, Mane could have easily asked him as to how
the accused had helped them and that, how the accused was
26 Apeal-945-03
expecting that they would pay him any money, but this was also not
done by Mane.
35. Interestingly, the demand after which the decision of
Mane to report the matter to the A.C.B. was taken, was quite
unexpected. Mane could know about the demand only
accidentally, as the accused had given telephonic call on the
telephone of Liyaqat Mujawar, which was accidentally picked up by
the accused, who accidentally happened to be in the house of
Liyaqat Mujawar. It is nobody's case that the accused was
expecting Bipin Mane to be there in the house of Liyaqat Mujawar
or pick up the receiver and answer the telephone call.
36. Again, going by the version in the report lodged with
the A.C.B. by Mane, the place where the money was to be paid to
the accused was not fixed. Mane was told that the accused would
come to Mane's house for collecting the money, or would inform
about the place where should such money should be given. Mane,
however, appears to have taken for granted that the money would
be collected by the accused from the residence of Mane itself. In
this context, if the evidence of Mane is seen, he first says that
when the accused demanded Rs. 10,000/-, he told Mane that he
would be telling the place where money should be brought,
27 Apeal-945-03
afterwords. However, during the said conversation, when Mane
settled the matter for Rs. 5,000/-, the accused fixed the place for
such receipt of money as the house of accused. The accused,
who had just said that he would be informing about the place
where the money should be brought, (meaning that he did not want
to commit about it at that time), should immediately change his
mind and fix the place of receipt of such money, is not very logical.
37.
When there were specific instructions to Mane to
speak about the proceedings under Section 151 of the Code of
Criminal Procedure, why he should not speak so, is difficult to
understand. At the cost of repetition, it may be observed that in the
light of the prosecution case as has been put forth where was the
occasion to have any discussion about any O.B.C. certificate is not
at all clear. However, if the version of the accused, which
corroborated by the evidence of A.P.I.-Kshirsagar (PW-3) is
considered, the discussion about the O.B.C. certificate fits in
properly with such version.
38. There is also substance in the contention of the
learned counsel for the accused that the accused who had earlier
quite openly demanding the money from Mane and Liyaqat
Mujawar repeatedly and was also giving threats to them was not
28 Apeal-945-03
likely to have a totally different attitude at the time of trap so as not
to speak of money at all convey the demand only by making a sign
by his first finger and thumb. That, the accused who did not feel
anything odd on noticing Gangatirkar (PW-2) with Mane, and was
not cautioned by the presence of a stranger would be so cautious
to ensure that the demand of money is not uttered by mouth and
that, it is conveyed only by a sign, is difficult to believe. It is quite
likely that the story of demand of money having been made by
gestures, has been put forth to overcome the fact that no such
demand was heard by the panch or the raiding party and probably
in the belief that it would make the prosecution version more
reliable and acceptable.
39. There is also inconsistency between the version of
Mane and Liyaqat Mujawar about having gone to the office of
A.C.B. to lodge a report. According to Mane, he and Liyaqat
Mujawar both had gone to the office of the A.C.B. to report the
matter against the accused but, Liyaqat Mane says that he did not
go to the A.C.B. office with Mane.
40. There is also some lack of clarity on the aspect as to
whether the money that was to be paid to the accused was to be
on behalf of Mane and his other friends who all were accused in
29 Apeal-945-03
C.R. No. 139 of 1998 or whether Mane himself was to pay the
whole amount.
41. There are some contradictions in the evidence of
different witnesses about the post trap happening also but I do not
wish to discuss the same, it being unnecessary.
42. From the aforesaid discussion, what can be regarded
as either undisputed or satisfactorily proved, may be summarized
is as under.
(i) Bipin Mane (PW-1), Liyaqat Mujawar (PW-4) and
their friends were accused in C.R. No. 139 of
1998, which inter alia involved the offence
punishable under the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act.
(ii) A.P.I.-Kshirsagar (PW-3) was investigating into
that case and the accused was assisting him.
(iii) Mane and others had been arrested in that case.
1. ( As a part of investigation, the evidence showing
i the caste of the accused persons was required to
v be collected and Kshirsagar had directed the
) accused to collect the bonafide certificates in
respect of Mane and others as and by way of
obtaining such evidence.
(v) Bonafide certificates in respect of Mane, Mahesh
Chavan and Devendra Patil had been collected on
23.10.1998.
30 Apeal-945-03
(vi) Mane and Liyaqat Mujawar were both influential.
Mane's father, admittedly being local politician and
the President of local Municipality and Liyaqat
Mujawar's one maternal uncle being a Minister and
another being the Superintendent of Police of the
same District i.e. Kolhapur.
(vii) The Investigating Officer-Chougule (PW-6) was
transferred to Nanded, admittedly, on the basis of
the complaints received against him but he did not
join at the new posting on the ground of sickness
for about one year and thereafter had succeeded
in again getting the posting at Kolhapur.
(viii) Mane was instructed to specifically speak about
the proceedings under Section 151 of the Code of
Criminal Procedure when the accused would come
to him for demanding and collecting the bribe
amount, but Mane actually did not speak about
151 proceedings at all.
(ix) Discussion did take place between the accused
and Mane at that time, about `the O.B.C.
certificate'.
(x) That, Mane tried to dispute or deny that the
discussion took place about `O.B.C. certificate'
and admitted it, only when confronted with the
Police record of his statement.
(xi) That, the accused had actually not shown any
favour either to Mane or any of his friends in the
investigation of C.R. No. 139 of 1998.
43. In the background of these facts, it is difficult to
believe that the accused had made a demand of money for not
initiating any action under Section 151 of the Code of Criminal
Procedure against Mane and others. It is also not in dispute that
the accused was not capable of either taking any such action
31 Apeal-945-03
against Mane and others, or of preventing any such action if
intended to be taken against them by the superiors of the accused.
It is also clear that the collection of certificates, showing the caste
of Mane and others, was a task entrusted to the accused as a part
of investigation in the said C.R. No. 139/1998. In this background,
that at the stage of trap there should be know discussion about
under Section 151 Proceedings but there should be no discussion
about O.B.C. certificates, creates, at least a doubt, that version of
the accused which has been put forth specifically and consistently
by him, could possibly be true.
44. It may not be out of context to observe here, that,
admittedly, Mini Tape Recorders had been provided in the office of
Anti Corruption Bureau. The Investigating Officer-Chougule
(PW-6) admitted in the cross examination, that it would be
desirable that talks which would take place at the time of
acceptance of bribe come before the Court accurately and that, for
that purpose, Mini Tape Recorders had been provided in the office
of Anti Corruption Bureau. Undoubtedly, Chougule (PW-6) did add
that the Tape Recorders were not in a working condition, obviously
as and by way of an explanation for the failure to get the
conversation between the accused and Mane recorded. This
explanation is not very satisfactory. If the importance of having
32 Apeal-945-03
conversation recorded verbatim, was indeed realised by the
Investigating Agency, and if there was sincerity in the investigation,
it would not be that difficult to get at least one tape recorder
repaired, or to secure some tape recorder from elsewhere.
Chougule also admitted, that it was possible to make a phone call
to the accused and get the conversation between Mane and the
accused, tapped. The same was not done and no reason for not
having done so, has been given. Obviously, no serious efforts to
collect the evidence which would have been of a clinching nature
were made; and this leads to a doubt about the sincerity of the
investigating agency.
45. When the other infirmities in the prosecution case are
examined in the light of this broad and basic weakness in the
prosecution case, certainly a reasonable doubt about what was
exactly the case, arises. Mane and others who are quite influential
were undoubtedly offended because of their arrest in C.R. No.
139/1998, and likelihood of their resorting to get someone from the
Investigating Agency arrested in the hope of regaining their
prestige by casting a cloud of doubt upon the Investigating Agency,
can not be ruled out.
46. The learned Special Judge has not appreciated the
33 Apeal-945-03
evidence in proper perspective. In fact, the learned Special Judge
unnecessarily resorted to uncalled for comments on the length of
cross examination and the 'futility' thereof. The learned Judge
observed that `only because Mane was from a family having
political background, he could not be said to be a person of bad
character' without realising that the political background of Mane
was being projected for the purpose of showing the unlikelihood of
a Head Constable of Police daring to attempt to obtain a bribe from
him, (without having helped him in any manner) by threatening him
of some action, which was not within the power of the Head
Constable i.e. the accused. In para no.11 of his Judgment, the
learned Special Judge observed as follows:-
"The accused is saying that, no demand is made by
him. The complainant is saying that, demand was
made. If the demand was not made at all, what was
the reason for the complainant to go to the ACB Office
and to lodge a complaint and as per the instructions of
Dy. S.P. Chougule sit in his house."
These observations are rather unfortunate and show a
basic departure from the principles of the criminal jurisprudence
and appreciation of evidence. These observations are so wide and
general that such a line of reasoning can be resorted to in each
and every case under the Prevention of Corruption Act. The
34 Apeal-945-03
learned Judge overlooked that Mane and others, who were
influential had been arrested by Kshirsagar and the accused was
assisting him. It was quite possible for Mane and others, who were
highly placed in society, to think of taking revenge against the
Investigating Agency by involving some or one of them in a case of
corruption. It would help them to reduce the harm to their
reputation, that was naturally caused by their arrest. Once a
member of the Investigating Agency, who had taken part in the
arrest of Mane and others, in the course of investigation in C.R.
No. 139 of 1998, would be trapped on the charge of taking bribe,
the Investigating Agency would be projected in a bad light, and
therefore, the correctness of the allegations made against Mane
and others, in that case, could at once be doubted by others. This
was the precise case put forth by the accused, but the learned
Judge has clearly ignored the same and has been rather sarcastic
in dealing with the defence version.
47. The appreciation of evidence, as done by the learned
Special Judge and his approach to the matter was neither proper
nor legal. This was a case, where, on an overall consideration of
the entire evidence, a reasonable doubt certainly arose about the
guilt of the accused. In fact, the version of the accused appears to
be quite plausible. Since the prosecution had failed to establish the
35 Apeal-945-03
guilt of the accused beyond reasonable doubt, the accused was
entitled to be acquitted.
48. The impugned judgment of conviction is neither proper
nor legal. The same, therefore, needs to be interfered with in the
interest of justice.
49. The appeal is allowed. The impugned judgment and
order of conviction and the sentences imposed by the trial court
are set aside.
50. The accused/appellant stands acquitted. His bail
bonds are discharged.
51. Fine, if paid, be refunded to him.
(A.M. THIPSAY,J.)
