The State Of Mah vs Ghanshyam Arjun Phasale
2016 Latest Caselaw 2642 Bom

                                                        Criminal Appeal No.301/2005
                                              1

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                               
                                   BENCH AT AURANGABAD




                                                       
                            CRIMINAL APPEAL NO.301 OF 2005


     The State of Maharashtra




                                                      
     through K.B. Randive,
     Dy. S.P., Anti Corruption Bureau,
     Ahmednagar                                         ...   APPELLANT
                                                  (Original Complainant)
              VERSUS




                                         
     Ghanshyam Arjun Phasale,
     Age 40 years, Occ. Service,
     Police Constable, B.No.1306,
     Topkhana Police Station,
     R/o Police Line,
                            
     Police Headquarters, Ahmednagar.                  ...      RESPONDENT

                       .....
     Shri A.M. Phule, A.P.P. for appellant/ State
      

     Shri A.S. Gandhi, Advocate for respondent
                       .....
   



                                     CORAM:       A.I.S. CHEEMA, J.

                                     DATED:       8th June, 2016.





                      Date of reserving judgment : 27th April 2016
                      Date of pronouncing judgment : 8th June, 2016.


     JUDGMENT:

1. The State has filed this appeal against the acquittal of

respondent - accused - Police Constable Ghanshyam Phasale

(herienafter referred as accused). The accused was tried in

Special Case No.3/1999 before Special Judge, Ahmednagar and

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came to be acquitted of offence punishable under Sections 7 and

13(2)(d) of the Prevention of Corruption Act, 1988 (Act- in brief)

on 31.1.2005.

2. In nutshell, the case of prosecution is as follows :-

(a) On 13.6.1998, the complainant Shaikh Abid

Babasaheb (hereafter referred as complainant) filed a

complaint with Anti Corruption Bureau at

Ahmednagar before Deputy S.P., Keshav Randive

(P.W.3). The complainant (P.W.1) reported that, on

11.6.1998, he learnt that his uncle Shaikh Iqbal had

on that day at about 3.00 p.m. consumed medicine

used for killing bugs and was admitted in the Civil

Hospital. On 12.6.1998, at about 11.00 a.m., Shaikh

Aslam, younger brother of complainant and Zakir

Shaikh came to complainant. Zakir Shaikh started

telling complainant that at the Civil Hospital, Police

Constable Phasale had called him and said that, "You

have admitted Shaikh Iqbal and it is a matter of

suicide and legal action will have to be taken and that

if such action is not to be taken, Rs.300/- will have to

be paid." Complaint mentioned that, thereafter

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complainant and Zakir Shaikh went to Civil Hospital

and came to know that, the uncle was going to be

discharged on that day. So, complainant and Zakir

Shaikh went and met the accused. Accused said that

the case of uncle is of suicide and if such case is not

to be filed, then he should be paid Rs.300/-. Zakir

Shaikh was present at such time. Complainant told

accused that he is poor person and from where he

will get such amount. Accused told that if case is

filed, more amount will have to be spent. Ultimately,

complainant agreed to pay Rs.300/-. He had been

now called at 10.00 a.m. (of that date of 13.6.1998).

(b) It is the case that, the complainant had gone to the

Anti Corruption Bureau Office on 12.6.1998 along

with Zakir Shaikh and informed that one Government

servant has demanded money from him for not doing

official work and that he has been called at 10.00

a.m. on 13.6.1998 for which he will file complaint on

13.6.1998 at 8.00 a.m. Consequently, P.W.3

Randive sent letter to the office of Block Development

Officer and secured presence of two panchas namely

Ashok Devtarse (P.W.2) and one Dalvi. They were

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asked to come in the morning of 13.6.1998.

(c) On 13.6.1998, the complainant went to the Anti

Corruption Bureau Office and filed the complaint

(Exh.22) mentioned supra. The Dy.S.P. Randive then

completed the procedure as to how the trap would be

executed. The complainant and panchas were

explained the procedure as to how anthracin powder

works and the complainant who had brought

Rs.300/- was explained as to how the money is to be

paid and signal is to be given etc.

(d) It is the case of the prosecution that, thereafter the

raiding party went to the Civil Hospital at

Ahmednagar and while other raiding party stayed

some distance away, the complainant and P.W.2

Panch Ashok Devtarse went ahead. After waiting for

some time near the concerned room where police sit,

the accused came there. Accused signaled to the

complainant regarding what happened of the money

and the complainant paid the same to the accused

who kept it in his back pocket. The complainant gave

pre-destined signal and the rest of the raiding party

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came in front. Both the hands of the accused were

caught hold by a constable. Accused suspected and

forcibly got his hand free and removed the money

from his pocket and threw it on the ground. The

raiding party revealed its identity and the accused

was taken in the police room and it was found that

there was blue shine on his fingers as well as on his

hip pocket.

                              ig       The further procedure was completed.

                       Necessary panchanamas were prepared.                        P.W.3

Keshav filed complaint on the same day to the

Topkha Police Station. He obtained the duty list of

the accused of the date of 13.6.1998. Investigation

was completed and charge sheet came to be filed.

(e) Prosecution brought on record the evidence of

complainant as well as shadow panch P.W.2 Ashok

Devtarse. P.W.3 Keshav Randive also stepped into

the witness box. P.W.4 is Himanshu Roy, then

Dy.S.P., who granted sanction (Exh.40).

The defence of the accused is of total denial.

3. Trial Court, after considering the evidence, passed

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the above judgment, acquitting the accused of all the charges.

Thus, this appeal by the State. It is claimed by the State and it

has been argued by the learned A.P.P. that the acquittal of the

accused was erroneous. It has been wrongly held that the

complainant was not on duty on 12.6.1998 and that he had gone

to Jamkhed. Jamkhed was only 70 Kms. from Ahmednagar and

in 2-3 hours person can return. It was possible that on same day

the accused demanded money from complainant to avoid filing of

case. Although complainant was declared hostile, he did depose

about demand by the accused. The demand was made by

gesture of hand and on receiving money it was kept in back

pocket by the accused and this has been proved. There is no

reason why the complainant would have deposed against the

accused. There was sufficient evidence to convict the accused.

The offence was proved beyond reasonable doubt. The demand

can be proved by indirect evidence also. According to the

learned A.P.P., the acquittal deserves to be reversed.

4. Against this, the learned counsel for the accused

argued that, demand was not made to the complainant but it was

made to one Shaikh Zakir (referred at places as "Zakir Shaikh"

also). As per the evidence of the complainant Shaikh Zakir was

present at the time of trap also, but he was not examined. On

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11.6.1998 and 12.6.1998 the accused was not at Civil Hospital.

There is no evidence in that regard available. on 13.6.1998 also

at the relevant time, when trap was executed, accused was not

on duty. Although P.W.3 Keshav claimed that the complainant

went to him on 12.6.1998, no complaint was recorded on that

day and in advance panchas were called. There is evidence that,

the doctor had not sent any intimation to the police at the Civil

Hospital about the uncle of the complainant and the uncle was

also discharged on 13.6.1998 and so, there was no reason for

the complainant to be apprehensive. The demand and

acceptance, which is pre-requisite for such offence, was not

established. The evidence of P.W.2 shows that, when the trap

was executed, only rough notes were prepared. As per P.W.2,

the panchanamas were prepared only later on. The sanction was

mechanical. The accused brought on record evidence of D.W.1

Head Constable Shivaji Sathe and D.W.2 Goraksh Bhos, Police

Head Constable to bring on record the fact that on 11.6.1998 and

12.6.1998 he was not at the Civil Hospital. According to the

learned counsel, the accused was rightly acquitted by the trial

Court.

5. I have gone through the evidence available in this

matter. Material evidence is that of complainant P.W.1 and the

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shadow panch P.W.2 Ashok. Regarding the initial demand stated

to be made on 12.6.1998, the complainant backed out of his

complaint Exh.22. He claimed that, his uncle Shaikh Iqbal was

admitted in the hospital as he accidentally consumed liquid

thinking it to be medicine. The complainant deposed that on

12.6.1998 his brother Shaikh Aslam and Zakir Shaikh had gone

to enquire in the hospital. According to him, they returned from

the hospital and told the complainant that the Constable Phasale

had demanded Rs.300/- if the uncle was to be discharged.

Complainant deposed that, Zakir wanted to lodge complaint with

the Anti Corruption Bureau and so he and Zakir went to Anti

Corruption Bureau Office and he lodged the complaint. The

complainant was confronted with Portion "A" of his complaint

where it was recorded that after Shaikh Aslam and Zakir Shaikh

came to him and told regarding the demand he had himself gone

to the hospital and the accused demanded Rs.300/- to him also

as detailed in the complaint. Thus, the complainant backed out

of the alleged initial demand dated 12.6.1998. Although cross-

examined, the complainant did not concede on this count

although he gave evidence that he did in fact file complaint to

the A.C.B. Office and that trap was laid on 13.6.1998 and it was

executed.

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6. Coming to the trap dated 13.6.1998, the evidence of

complainant and panch P.W.2 shows that, before going for

execution of the trap, they were explained the procedure

regarding how the trap will be executed and they were given

guidance as to what they will be required to do. The evidence

then is that, they went to the Civil Hospital and only complainant

and P.W.2 went ahead while other stayed at some distance.

Complainant has deposed that, at the Civil Hospital he and panch

Devtarse (P.W.2) proceeded and went to the Police Chowki. One

Constable was present there and they asked him where constable

Phasale is. That person told that Constable Phasale has gone

away. They waited for Constable Phasale. It is then deposed

that, Shaikh Zakir showed him the said Constable and so he went

near the said Constable (accused) along with panch. Accused

asked him who was the person accompanying and complainant

said that he was his brother. Complainant deposed that, when

accused asked him whether he has brought the said amount, he

answered in the affirmative. According to complainant, he took

out the currency notes from his left shirt pocket with his right

hand and gave the same in the hand of accused who threw it on

the floor. The complainant then claimed that, the raiding party

came there and held hands of Phasale.

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Regarding this actual incident, Panch P.W.3 Ashok

deposed that, when he and complainant went at the Civil

Hospital, complainant told him that the police sit at that place.

The accused was not present and they waited for long time for

about half an hour. Accused then came on bicycle and came to

the police room. He deposed that, he and complainant followed

accused and accused asked the complainant what happened of

his work. Evidence is that, at that time, the accused made

gesture of hand for demanding the money and accused took out

the amount from his shirt pocket and inserted that amount in the

pocket of Phasale (accused). The panch then changed his

version to say that the accused accepted the amount in his hand

and kept it in his back pant pocket. According to this panch, the

accused came out of that room and the A.C.B. staff came there

and held the hands of the accused. The amount from the back

pant pocket of the accused fell down on the floor, which was then

picked up by the other panch Dalvi.

7. Thus, it can be seen from the above evidence that,

although the complainant deposed that the accused asked if the

said amount had been brought, the panch claimed that the

accused asked complainant as to what happened of his work and

made gesture by hand for the money. The complainant claimed

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that moment he kept the money in the hand of the accused, the

accused threw it. However, the panch claimed that the raiding

party came and caught the accused, and amount from back

pocket of the accused fell down on the floor.

8. The cross-examination of the complainant shows

that, his uncle was discharged from the hospital on 13.6.1998.

The cross-examination of P.W.3 Keshav Randive shows that, the

said uncle Shaikh Iqbal was discharged from the hospital on

13.6.1998 at 9.00 a.m. Thus, it was before the trap was

executed. As per panchanama Exh.26, the trap-party reached

the Hospital at about 10.15 a.m. P.W.3 police officer admitted

that, he had recorded statement of the concerned doctor and

came to know that information about the patient in M.L.C. had

not been given to the police. It is stated that, until information is

received in M.L.C., the police do not take action. The

complainant admitted that, doctor had not informed him or

anybody else that his uncle had taken poisonous medicine. Thus,

the foundation for the complainant to be afraid and thus agree to

pay does not appear to be there.

9. Cross-examination of the complainant further shows

that on 13.6.1998 when he went to file complaint at about 7.00

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a.m., Shaikh Zakir was with him. In fact, he deposed that, at

the hospital Shaikh Zakir showed him the accused and thereafter

he and the panch went ahead and met the accused. This Shaikh

Zakir, to whom it is claimed that the first demand was made

when he had gone with Shaikh Aslam, the brother of

complainant, to the hospital, and who, as per the complaint

Exh.22 had gone with the complainant to the Civil Hospital before

they went to A.C.B. Office, has not been examined.

ig The

evidence shows that, he was present even on 13.6.1998 but he

was not examined.

10. If till 13.6.1998 complainant had not personally met

the accused and Zakir Shaikh was required to point out the

accused to him, the other evidence becomes doubtful that when

the complainant and the panch went near the accused, accused

would ask the complainant as to who is the other person

accompanying him. In fact the complainant himself would

require an introduction.

11. The evidence of P.W.3 Dy. S.P. Keshav is that, the

complainant had come to him on 12.6.1998, complaining that he

wants to file complaint against Government servant for

demanding bribe. According to this official, the complainant

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stated that he would file the complaint on 13.6.1998. According

to P.W.3 Keshav, as 13.6.1998 was Second Saturday, he sent

letter to Block Development Office and secured presence of the

panchas and requested them to come in the morning of

13.6.1998. Thus, all this preparation would be in anticipation. If

the F.I.R. (Complaint Exh.30) filed by this Dy.S.P. to Police

Station after the trap was executed is perused, he reported that

the complainant had come to his office on 12.6.1998 at about

3.00 p.m. and informed that "One Government servant" has

demanded money from him for not doing official work and that

he has been told to come on 13.6.1998 at 10.00 a.m. with the

money. P.W.3 informed in the F.I.R. that, the complainant had

told P.W.3 that he would give the detailed complaint on

13.6.1998 at 8.00 a.m. Because of such oral information, note

was taken in the "Samaj" Register and the signature of the

complainant and Zakir Shaikh who was with the complainant had

been taken.

The said "Samaj" Register or its extract has not been

brought on record. This becomes material looking to the fact

that the complaint Exh. 22, dated 13.6.1998 does not even bear

time as to when it was recorded. This fact needs to be read

along with the cross-examination of P.W.2 where he deposed (in

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para 6) that after the trap was executed, rough notes were made

in the Civil Hospital and then they came to the A.C.B. Office and

panchanama was typed in office. The said rough notes were not

brought before the Court. The conspectus of the above

discussion is that, it was doubtful as to how things took place in

what is claimed by the prosecution to be a successful trap.

12. Although prosecution brought on record document

Exh.33 as the letter from Topkhana Police Station, and the

evidence of P.W.3 Keshav that the accused had duty at the Civil

Hospital on 13.6.1998 from 10.00 a.m. to 2.00 p.m. and 8.00

p.m. to next day 8.00 a.m., duty list regarding the date of

12.6.1998 was not collected. The accused examined D.W.1

Police Head Constable Shivaji to claim that on 11.6.1998 D.W.1

Shivaji and one Head Constable Labde were on duty in Civil

Hospital and he had been sent to Jamkhed to deliver

correspondence. D.W.1 Shivaji deposed that, he met the

accused on 12.6.1998 at about 12.00 - 1.00 noon, when this

D.W.1 had gone to Topkhana Police Station. According to this

witness, on 12.6.1998, accused was not on duty in the Civil

Hospital. D.W.2 Head Constable Goraksh was examined to prove

that on 11.6.1998 the accused had gone to Jamkhed to deliver

papers and met him at 5.25 p.m. No doubt there is substance in

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the submission of A.P.P. that Jamkhed is only 69 Kms. (as is

admitted by D.W.2) and it is possible for a person to come back,

still the material date was of 12.6.1998. Although D.W.1 did not

produce any document to show that accused was not on duty at

Civil Hospital on that day, it was for P.W.3 Keshav to collect the

duty list of 12.6.1998 also.

13. This appeal being against acquittal, merely because

some other view of the evidence could be possible, would not be

a reason for this Court to interfere. I have gone through the

judgment of the trial Court and the reasons recorded by it. The

trial Court, while discussing the evidence, observed that, the

evidence of complainant was not free from shadow of doubts.

His evidence showed that he has not lodged the complaint on his

own accord and admitted that he lodged the complaint as his

cousin brother Shaikh Zakir told him to lodge such complaint.

The trial Court referred to the evidence of complainant where he

accepted that, it was true that there should not be several

complaints from Shaikh Zakir and so the complaint was recorded

in his name. Trial Court observed that, thus the person appears

to be in the habit of lodging complaints. Trial Court observed

that, as Shaikh Zakir was continuously on the scene, not

examining him should invite adverse inference. It was found

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that, recording pre-trap demand of bribe amount, absolutely

there is no iota of evidence. Trial Court also found that, the

complaint was not lodged on 12.6.1998 itself and thus, on

12.6.1998 presence of panchas could not have been secured.

From the evidence, trial Court raised question whether the Dy.

S.P. Randive was sure that the complainant would on next day

file the complaint. Trial Court raised doubts whether the

complaint was lodged before going for trap or it was lodged after

the trap was executed. Not producing of Station Diary entry by

the Dy. S.P. also was found to be objectionable. According to

trial Court, duty list of 12.6.1998 should have been produced.

Trial Court discussed the evidence to find that, demand of

12.6.1998 as well as 13.6.1998 was not duly established. The

evidence was discussed showing the anthracin powder was only

on the tips of the hand of the accused and the evidence of the

complainant as well as panch showed that when the accused was

caught he had reversed his pocket to show that he did not have

the money. Thus, the trial Court found that the reflection of

anthracin powder on the back pocket of the accused was

explained and the fact that anthracin powder was found on the

tips of the hand and not the palm shows that the accused did not

want the money and when it was put in his hand, he threw it

immediately. The trial Court thus did not raise the presumption

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under Section 20 of the Act also. Even regarding sanction,

although P.W.4 Himanshu Roy deposed that he had studied the

papers and granted the sanction, trial Court found that the Dy.

S.P. did not have the original complaint with him when he

granted the sanction.. For such reasons, the trial Court found

that offence was not proved and acquitted the accused.

14. I have also gone through the evidence as discussed

above and find that, there is room for doubt as to what exactly

happened and demand and acceptance of the amount of

gratification is not established beyond reasonable doubts. Thus,

I decline to interfere with the judgment of acquittal recorded by

the trial Court. There is no substance in the appeal.

The appeal is dismissed. Bail Bonds of accused are

cancelled.

(A.I.S. CHEEMA, J.)