Shamsundar Balwantrao Joshi vs The State Of Mah
2016 Latest Caselaw 65 Bom

                                     [1]          CR. APPEAL 268/2012+ JUDGMENT




       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD




                                                                                
                      CRIMINAL APPEAL NO. 268 OF 2012




                                                        
    Shamsundar S/o Balwantrao Joshi,
    Age : 51 years, Occu.: Service,
    working as PSI, R/o Pawannagar,




                                                       
    Taroda Kd., Malegaon Road,
    Nanded                                                   .. Appellant

         VERSUS




                                           
    The State of Maharashtra,
    Through In-charge Police Station,
    Mudkhed, Tal. Mudkhed,
    Dist. Nanded
                                ig                           .. Respondent

                                           WITH
                              
                      CRIMINAL APPEAL NO. 272 OF 2012

    Balaji S/o Nagorao Suradwar,
    Age 40 years, 
      


    Occu.: Police Head Constable,
    Buckle No.734, Police Station,
   



    Mudkhed, Dist. Nanded                                    .. Appellant

        VERSUS
    The State of Maharashtra,





    Through In-charge Police Station,
    Mudkhed, Tal. Mudkhed,
    Dist. Nanded                                             .. Respondent

                               ----





    Mr. R.S. Deshmukh, Advocate for the appellant in Criminal
    Appeal No. 268 of 2012

    Mr.   Joydeep   Chatterji,   Advocate   for   the   appellant   in
    Criminal Appeal No. 272 of 2012

    Mr. A.R. Kale, A.P.P. for the respondent/State in both 
    appeals
                               ----




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                                             [2]    CR. APPEAL 268/2012+ JUDGMENT




                                               CORAM     : M.T. JOSHI, J.
                                               RESERVED ON   : 29/01/2016




                                                                                 
                                               PRONOUNCED ON : 25/02/2016




                                                         
    JUDGMENT :

Heard both sides.

2. Both the appeals have arisen from the order

of conviction dated 15/03/2012 passed by the learned

Special Judge cum Assistant Sessions Judge, Nanded in

Spl. (ACB) Case no. 2/2008, for the offences

punishable under section 13(1)(d) r/w. 13(2) of the

Prevention of Corruption Act against the respective

appellants.

3. Both the appellants were sentenced to suffer

rigorous imprisonment for a period of 3 years each

and to pay a fine of Rs.5000/- each.

4. The prosecution case in brief is as under:-

. That appellant - Shamsundar was posted as

P.S.I. while appellant - Balaji was posted as a

Constable at Mudkhed Police Station during the

[3] CR. APPEAL 268/2012+ JUDGMENT

relevant period. On 20/7/2007, the appellants had

seized country liquor bottles from the house of

complainant PW1 - Raosaheb Ramrao Deshmukh of village

Chikala, Taluka - Mudkhed. Complainant was arrested

and was kept in the cell of the Police station.

Friend of complainant, namely, Sanjay Ingole came to

meet the complainant in the lock-up. At that time,

appellant - Shamsundar, in presence of said Sanjay,

made a demand of Rs.2000/-. Appellant promised that

if the said amount is paid, the complainant would be

produced before the Court on the same day and the

complainant would be able to get his release on bail

else the complainant was threatened to be kept in the

lock-up for whole of the night.

. Upon negotiation, the appellant - Shamsundar

became ready to accept an amount of Rs.1600/-. The

complainant had Rs.600/- with him. He paid the same

to appellant - Shamsundar and agreed to pay the

balance amount of Rs.1000/- on the next day.

Appellant - Shamsundar handed over the amount of

Rs.600/- to appellant - Balaji, who was present

[4] CR. APPEAL 268/2012+ JUDGMENT

there. Thereafter, appellant - Balaji took the

complainant to Mudkhed Tehsil Office. Certain

signatures of the complainant were obtained in the

Tehsil office. Thereafter, the complainant was

produced in the Court at Nanded and the complainant

was released on bail.

. Thereafter, on 22/07/2007 at about 9.00 am,

both the appellants came to the house of the

complainant at Chikala. Appellant - Shamsundar

questioned him as to why the amount was not brought

and threatened that another crime would be registered

against the complainant. The complainant told that

he would be able to make the arrangement of the money

within 2 - 4 days. Again after 4 days, both the

appellants visited the house of the complainant at

village Chikala. At that time, in absence of the

complainant, they threatened the wife of the

complainant that the amount should be sent at the

Police station.

. Thereafter, on 29/7/2007, appellant - Balaji

[5] CR. APPEAL 268/2012+ JUDGMENT

met the complainant in the weekly bazar of Mudkhed.

He abused him and further threatened that if the

amount of Rs.1000/- is not paid on the next day by

visiting the Police station, a false crime would be

registered. Upon that, the complainant again sought

time of 1-2 days for making the arrangement of money.

Appellant - Balaji therefore told the complainant to

be ready with the amount and he should come in

Gujarati hotel near the Tehsil office on the next day

i.e. on 30/7/2007 at about 5.00 pm alongwith the

money and two passport size photographs.

. In these circumstances, the complainant

filed his complaint with Anti Corruption Bureau,

Nanded on 30/07/2007.

. PW4 - Police Inspector Mr. Naeem Pasha Abdul

Hakeem Hashmi conducted the investigation in the

crime. He collected two panch witnesses i.e.

employees of the Nanded Municipal Corporation

including PW2 - Vilas Gajbhare. Contents of the

complaint were read over to them. It was decided to

[6] CR. APPEAL 268/2012+ JUDGMENT

organize a trap. The decoy money brought by the

complainant was smeared with anthracene powder.

After taking all the precautions, the decoy money was

kept in the left side chest pocket of the

complainant.

. Thereafter, the raiding party proceeded

towards the Gujarthi hotel. While the complainant

and the shadow panch witness went ahead, other

members of the trap party followed them by remaining

in the vicinity. Complainant thereafter made a phone

call to both the appellants from a public call

center. The complainant told both the appellants

that he was waiting for them. Upon that, appellant -

Balaji asked him to wait for five minutes. After

some time, appellant - Balaji came on a motorcycle.

He was in Police uniform. Appellant - Balaji

directed the complainant to sit on the backside of

the motorcycle. Thereafter, appellant - Balaji

slowly took the motorcycle to one Natraj Bar and

Restaurant. Said restaurant had half wall cabins

near the main door. They sat in the cabin. The

[7] CR. APPEAL 268/2012+ JUDGMENT

shadow panch witness in speedily went to the beer

bar. He positioned himself at the door of the cabin.

The complainant was facing the shadow panch witness

while back of the appellant - Balaji was towards the

shadow panch witness. The panch witness was around 5

feet away from them.

. During conversation, appellant - Balaji

questioned the complainant, as to whether he had

brought two photographs and the amount of Rs.1000/-.

The complainant answered in the affirmative. He

firstly handed over the two photographs and said that

in-fact appellant - Shamsundar had directed him to

directly pay the amount to appellant - Shamsundar

himself. Upon that, appellant - Balaji stated that

the money should be paid to him and he would hand

over the same to the appellant - Shamsundar.

Thereupon, the complainant presented the decoy money

and said that in future, no crime should be

registered against him. Appellant - Balaji accepted

the amount, counted the same and put it in the hip

pocket of his khaki trouser. At the same time, he

[8] CR. APPEAL 268/2012+ JUDGMENT

said that there would be no trouble to the

complainant from them. Thereupon, the complainant

gave the predetermined signal. Thereupon, rest of

the members of the raiding party arrived at the spot.

. The Investigating Officer carried further

examination of the clothes and hands of the appellant

- Balaji and, thereafter, of the complainant under

the ultra-violet light. The said examination

confirmed the transfer of the decoy money from

complainant to the hip pocket of the trouser of the

appellant - Balaji. Said khaki trouser was seized

upon first bringing blue coloured trouser from the

house of the appellant - Balaji. Appellant - Balaji

was arrested vide panchanama at Exhibit 50. Further

necessary investigation was carried. Necessary

documents were seized.

. PW3 - Mr. Sharadprasad Yadav, the then

Special Police Inspector General at Nanded Range

accorded sanction to prosecute both the appellants

vide sanction order at Exhibit 44 and the chargesheet

[9] CR. APPEAL 268/2012+ JUDGMENT

came to be filed.

5. Before the learned Special Judge, in all 4

witnesses, as described above were examined. The

case of the appellant - Shamsundar was that at no

point of time he made any demand of the money. As

the crime was registered against the complainant, the

appellant is falsely implicated in the case.

In-fact, Balasaheb the cousin of the complainant had

expended amount for the release of the complainant on

bail in the prohibition case. The said amount was to

be repaid through appellant - Balaji and the

appellants were falsely implicated in the trap.

6. According to the appellant - Balaji, he has

accepted the amount in-fact towards the onward

payment to Balasaheb as the expenses of securing

release of the complainant on bail. However, as the

complainant was enraged because of the registration

of the prohibition case, he (appellant - Balaji) was

trapped in the raid while accepting the said money.

7. Before the learned Special Judge, the

[10] CR. APPEAL 268/2012+ JUDGMENT

complainant deviated from the prosecution case.

During cross-examination, he deposed that the amount

was towards the expenses for his bail. Balasaheb and

one Laxman had accompanied him till his release on

bail. He had therefore promised to pay the amount of

Rs.1000/- to appellant - Balaji towards the payment

to Balasaheb. He however again denied the suggestion

that appellant - Balaji never demanded an amount of

Rs.1000/- as bribe.

8. Shadow panch witness PW2 - Vilas Gajbhare

supported the prosecution case.

9. The learned Special Judge came to the

conclusion that the prosecution has proved its case

beyond reasonable doubt and, therefore, the

conviction came to be recorded.

10. Mr. R.S. Deshmukh, learned counsel for the

appellant - Shamsundar in Criminal Appeal No. 268 of

2012 and Mr. Joydeep Chatterji, learned counsel for

the appellant - Balaji in Criminal Appeal No. 272 of

2012 submitted before me that the veracity of the

[11] CR. APPEAL 268/2012+ JUDGMENT

complainant is full of suspicion in view of the fact

that according to the F.I.R. itself the complainant

had illegally stored country liquor in his house.

Further during cross-examination he admitted that he

was already facing trial for the offence punishable

under section 324 etc. of the Indian Penal Code. Not

only this, the statement of the shadow panch witness

would also show that he was under the apprehension to

support the prosecution case and, therefore, he made

a false statement. Therefore, taking me through the

evidence on record, they submitted that in-fact the

prosecution has failed to prove that any demand was

made at any time or the decoy money was accepted

towards the said demand of illegal gratification.

11. On the other hand, learned A.P.P. submits

that though the complainant has deviated from the

prosecution case to some extent, the independent

panch witness has fully supported the prosecution

case. He therefore submits that the appeal be

dismissed.

[12] CR. APPEAL 268/2012+ JUDGMENT

12. On the basis of this material, following

points arise for my determination:-

I) Whether the prosecution has proved that for a period between 20/7/2007 till 30/7/2007, both the appellants, in

furtherance of their common intention made a demand of Rs.1600/- towards the

gratification other than the legal remuneration, to facilitate the release

of the complainant on bail ?

II) Whether the prosecution has further proved that on 22/7/2007, appellant - Shamsundar had accepted an amount of

Rs.600/- towards the part of the said

illegal gratification ?

III) Whether the prosecution has further

proved that on 30/7/2007, appellant - Balaji had accepted the amount of Rs.1000/- at Mudkhed, as the balance of

the illegal gratification ?

IV) Whether the prosecution has further proved that both or any of the appellants had obtained the above said pecuniary advantage by illegal means by

[13] CR. APPEAL 268/2012+ JUDGMENT

abusing their position as the public servants ?

My findings to all the above points are in the

negative. Both Criminal Appeals are therefore

allowed and the appellants are acquitted of all the

offences, for the reasons to follow.

R E A S O N S

11. The complainant deposed that he has taken a

written complaint to the Anti Corruption Bureau.

According to the Investigating Officer, however, no

such written complaint was given to him. He himself

has reduced into writing the oral complaint made by

the complainant. Leaving aside this controversy, the

compliant at Exhibit 34 would show that the

complainant had stored country liquor bottles in his

house. The appellants raided his house on 20/7/2007.

They seized the bottles and arrested the complainant.

During cross-examination, the complainant also

admitted that he was already facing the trial for the

[14] CR. APPEAL 268/2012+ JUDGMENT

offence punishable under section 324 of the Indian

Penal Code in the Court of learned Judicial

Magistrate First Class. He also further admitted

that in-fact his father - Ramrao Deshmukh had also

filed a complaint against him with the Police

Station.

12. In this state-of-affair, we shall have to

find out, as to whether the deposition of the

complainant regarding the initial demand is proved

beyond reasonable doubt. To prove the said demand

naturally, we have the solitary statement of the

complainant.

. We have already found that as to whether the

complainant has taken a written complaint to the Anti

Corruption Bureau, or as to whether he made a oral

complaint, is a disputed fact. He admitted that due

to the institution of a criminal case of storage of

illicit country liquor, he was annoyed with both the

appellants. He initially deposed in cross-

examination that he is not aware as to whether the

[15] CR. APPEAL 268/2012+ JUDGMENT

appellant had prepared his arrest panchanama upon

seizure of liquor on the day of the raid i.e. on

20/07/2007.

. In the circumstances, the photocopy of the

panchanama was confronted to him bearing his

signature. Thereupon he admitted the said

panchanama. He lastly admitted that at the time of

his arrest, his cousin brother Balasaheb Deshmukh and

Narhari Deshmukh were present. He also admitted that

from the time of his arrest till his release on bail,

both the panch witnesses had accompanied him.

He also admitted that Balasaheb had to look after the

issue of his release on bail from the Court. In the

FIR however he recited that one Sanjay came to meet

him in the lock-up.

13. If all these facts are taken into

consideration, then it would be clear that the

complainant was enraged because of the raid at his

house from where admittedly, illegally stored country

liquor bottles were seized by the appellants.

[16] CR. APPEAL 268/2012+ JUDGMENT

Regular panchanama of his arrest was prepared and the

panch witnesses and his relatives were allowed to

remain with him from the time of his arrest till his

release on bail. Had any of the appellants wanted to

exploit the complainant by threatening him to keep

behind the bar, his cousin would not have been

allowed to remain with him.

. We have already found the credibility of the

complainant is dented, which need not be repeated

here. It is therefore difficult to completely trust

the sole testimony of the complainant regarding the

initial demand.

14. As regards the last of the demand during

trap, we have however the corroboration from PW2 -

Vilas, the shadow panch witness. This corroboration

however is shrouded in suspicion. The shadow panch

witness deposed during cross-examination that before

entering the witness box, he read over the contents

of the prosecution papers and more particularly the

panchanama. He was aware of the fact that if he

[17] CR. APPEAL 268/2012+ JUDGMENT

would depose against the contents of the panchanama,

then he would be required to face a criminal case as

well as a departmental enquiry.

. It is an admitted fact that the bar cum

restaurant where the raid was carried had several

customers at the time of occurrence. The complainant

has admittedly kept away the shadow panch witness

while making a phone call to both the appellants and,

therefore, the shadow panch witness was not aware

about the talk between the complainant and the

appellants.

15. The panch witness simply deposed that while

appellant - Balaji took away the complainant on his

motorcycle towards Natraj bar and restaurant, he

followed them on foot. In these circumstances, it

would be difficult to accept his case that he was

able to reach Natraj bar and restaurant on foot

within no time with an opportunity to witness all the

transactions.

[18] CR. APPEAL 268/2012+ JUDGMENT

16. Above all, while it is the prosecution case

that appellant - Balaji was in police uniform and the

decoy money was recovered from his hip pocket of

khaki colour trouser, the arrest panchanama recorded

by the Investigating Officer immediately after the

raid at Exhibit 50 would show that appellant - Balaji

had red coloured checks on his shirt and blue

coloured jean pant. Spot panchanama at Exhibit 37

would show that the khaki trouser only was seized.

Thus khaki shirt should have remained on his person

at the time of arrest.

17. Besides this, according to the deposition of

shadow panch witness during the talk, appellant -

Balaji simply asked the complainant as to whether he

had brought the photographs and the money and when

the complainant answered in the affirmative, the

appellant - Balaji accepted the two photographs and

the decoy money. He did not depose about the details

of the talk as is found in the prosecution case, as

detailed above.

[19] CR. APPEAL 268/2012+ JUDGMENT

18. If all these facts are taken into

consideration, the corroboration of PW2 - Vilas

Gajbhare, the shadow panch witness failed to satisfy

that during the raid, appellant - Balaji had made a

demand of money towards any illegal gratification and

accepted the decoy money towards the said demand.

19. The learned Special Judge however appears to

have been impressed by the partial hostility of the

complainant in the cross-examination and generally

relying on the testimony of the complainant as well

as the shadow panch witness, convicted both the

appellants.

20. In my view, however, the above material

would show that the prosecution has failed to prove

its case beyond reasonable doubt. In the

circumstances, the following order :-

21. Both the Criminal Appeals are hereby

allowed.

22. The impugned judgment and order dated

[20] CR. APPEAL 268/2012+ JUDGMENT

15/03/2012 passed by the Special Judge cum Assistant

Sessions Judge, Nanded in Spl. (ACB) Case No. 2/2008,

convicting both the appellants for the offences

punishable under section 13(1)(d) r/w. 13(2) of the

Prevention of Corruption Act, is hereby set aside.

. Instead, both the appellants are hereby

acquitted of both the offences. Their bail bonds

shall stand cancelled. Fine amount, if any,

desposited by them, be refunded to them, after a

period of 10 weeks from the date of this order.

23. Both Criminal Appeals stand disposed of

accordingly.

Sd/-

[M.T. JOSHI] JUDGE arp/