Rajesh Sakharam Mhaske vs The State Of Mah
2016 Latest Caselaw 420 Bom

                                                                            Cri.Appeal666.08
                                               1

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         BENCH AT AURANGABAD

                             CRIMINAL APPEAL NO.666 OF 2008




                                                                                  
    Rajesh s/o Sakharam Mhaske,
    Age 35 years, Occu. Service,




                                                          
    R/o Surananagar, Khatkali
    By-pass road, Hingoli,
    Taluka and District Hingoli                                  ..Appellant

            Versus




                                                         
    The State of Maharashtra                                     ..Respondent

    Mr P.S. Paranjape, Advocate for appellant
    Mr S.J. Salgare, A.P.P. for respondent




                                          
                              ig                   CORAM : N.W. SAMBRE, J.

                                                   DATE     : 8th March 2016
                            
    ORAL JUDGMENT

            Heard.

2. The present appeal is by accused against the judgment of

conviction delivered by the Designated Court under the provisions of

Prevention of Corruption Act, thereby convicting the present

appellant, a public servant working as a Constable at the relevant

time with the traffic department of State Police. The appellant is

convicted under Section 235 (2) of Cr.P.C., for the offences punishable

under Sections 13 (i) (d) read with Section 13 (2) Prevention of

Corruption Act of (hereinafter referred to as the 'Act') and was

sentenced under Section 7 of the Act to suffer rigorous imprisonment

for two years and to pay fine of Rs.5,000/- in default to suffer simple

imprisonment for six months and for an offence punishable under

Section 13 (i) (d) read with Section 13 (2) of the Act to suffer rigorous

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imprisonment for two years and to pay fine of Rs.5,000/-, in default to

suffer simple imprisonment for six months.

3. The few facts, as are necessary for deciding the present appeal

against conviction are as under :

4. The appellant herein was working as a Traffic Constable with

Hingoli Police and was posted at Hingoli Police Station (city).

5. Complainant Trimbak, having auto-rickshaw was operating the

same on Hingoli-Aundha road and in the month of May 2005, the

appellant challaned his vehicle for illegally operating and contravening

the provisions of Motor Vehicles Act prior to the trap in question, the

appellant obstructed his auto-rickshaw for about three times and

thereafter asked the complainant that in case he wanted to operate

his auto-rickshaw on Hingoli road, then he has to pay bribe of Rs.300/-

per month and without payment the bribe, he would not be allowed to

operate the auto-rickshaw on that road and he will be prosecuted. On

23rd May 2005 at about 2.00 p.m., the appellant stopped the

complainant, when he was operating his auto-rickshaw and demanded

the hafta of Rs.300/- and threatened him to detain his vehicle in police

station, in case the hafta is not paid. As a consequence, the

complainant Trimbak informed him that he will arrange the amount

and pay hafta of Rs.300/- on 25th May 2005.

6. As he was not willing to pay the bribe amount, he lodged

complaint against the appellant on 24 th May 2005 with the Anti

Corruption Bureau Office (hereafter referred to as 'A.C.B. Office' for

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brevity) with the above referred narrations. After the complaint was

received by the office of A.C.B., the panch witnesses were called and

given live demonstration as to the performance of trap, so as to catch

him red-hand. Necessary instructions were given to the panch

witnesses by the Investigating Officer, A.P.I. Jadhav.

7. It is claimed that the Investigating Officer and the panch witness

No.1 boarded the auto-rickshaw of complainant, whereas the panch

witness No.2 and other Officers followed in a departmental vehicle. As

the accused was not found on the spot, i.e. near bus stand the

rickshaw was taken to the Police Station and the accused came near

the canteen in the Police Station premises, where the trap was

arranged. P.W.1, Complainant Trimbak and the members of trap

party went inside the canteen attached to the Police Station and after

the accused accepted the amount of bribe, upon receiving appropriate

signal, the accused was apprehended along with the tainted currency

notes.

8. As a consequence of successful trap, the accused was charge-

sheeted after receiving the sanction order from the competent

authority for prosecution of the appellant.

9. After the charge was presented, the charge was framed against

the present appellant at Exh.1, to which the appellant pleaded not

guilty and as such, the trial was conducted.

10. The prosecution examined in all four witnesses, i.e. P.W.1,

complainant Trimbak, P.W.2 Shrikant Karbhajane, Panch witness,

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P.W.3 A.P.I. Jadhav, the Investigation Officer and P.W.4 D.C.P.

Khandare, the competent authority who has awarded sanction for

prosecution.

11. Based upon the evidence as was brought on record, learned

Court of Sessions has convicted the appellant as stated herein above,

as such present appeal.

12. Learned Counsel for the appellant Mr Paranjape would urge that

the conviction of the appellant under the provisions of Prevention of

Corruption Act is not sustainable, as the same is contrary to the law

and the evidence that is brought on record. He claimed that the

perverse findings are recorded by learned Sessions Judge. Amongst

other, the grounds as are pressed into service seeking acquittal of the

appellant are that, upon perusal of the complaint and the evidence

that is brought on record, it would be noticed that there is change in

spot of payment, date and day of raid. He would then submit that

once the complainant, Trimbak was declared hostile, the chances of

conviction of appellant are very brink and same should have been

taken into account by learned Sessions Judge before delivering the

verdict of conviction of appellant. According to him, the testimony of

hostile witness can be relied upon and conviction based on evidence

of P.W.1 Trimbak is also required to be appreciated by the Court.

According to him, the demand of bribe amount as claimed against the

appellant was not at all proved and has invited attention of this Court

to the evidence of P.W.1 complainant to that effect. He would then

submit that the Sessions Court has observed that there was no

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previous animosity between the complainant and appellant and as

such, the same cannot be reason for false implication, is also

incorrect, as he has invited attention of this Court to the fact that the

complainant was challaned by the appellant on earlier occasion. He

would then submit that no pre-trap panchnama or verification was

drawn in the other cases. According to him, the complaint contents

lot of contradictions to that and the evidence that is brought on

record, is also required to be considered, so as to order acquittal of

the accused.

13. Learned Counsel for the appellant, so as to substantiate his case

for acquittal has relied upon the judgment of this Court in the matter

of Surender Kumar Vs. Central Bureau of Investigation,

reported in 2014 ALL MR (Cri) 129. As the trap was concluded at

canteen, which is a public place, apart from P.W.2, Shrikant, no

independent witness was examined, so as to corroborate the

evidence. According to him, both the panch witnesses ought to have

been examined so as to build a strong case and the non-examination

of second panch witness is fatal for the case of the prosecution, so as

to bring home the guilt of the accused. He has invited attention of

this Court to paragraphs 12, 18 and 19 of the said judgment. He

would then submit that the appellant is entitled for the acquittal, as

the evidence as brought on record, if evaluated carefully, the

victimisation of the appellant cannot be ruled out, particularly in the

background of the fact that the complainant was prosecuted two

months prior to the incident. He sought support from the judgment of

this Court in the matter of Shridhar Chavan Vs. The State of

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Maharashtra, reported in 2016 ALL MR (Cri) 88. He has also

relied upon the judgment of Apex Court in the matter of M.R.

Purushottam Vs. State of Karnataka, reported in 2015 (3) Scc

247, so as to substantiate his submission that the demand must be

proved so do the recovery and in absence thereof, the appellant

cannot be convicted for the offence. He has sought reliance upon

paragraph 5 of the said judgment.

14. Leaned A.P.P., while supporting the judgment of conviction

would urge that even if the complainant has turned hostile, the

Sessions Court was right in considering the evidence of panch

witnesses, particularly having regard to the fact that the conviction

could be based even on the testimony of panch witness. According to

him, the judgment delivered by the learned Sessions Judge is just and

proper and does not call for any interference. He has relied upon the

judgment of Apex Court in the matter of Bhagwan Singh Vs. The

State of Haryana, reported in (1976) (1) SCC 389, so as to submit

that the evidence of a hostile witness does not completely efface his

evidence and remains admissible in the trial and there is no legal bar

to base a conviction upon his testimony if corroborated by other

reliable evidence.

15. Having considered the rival submissions, it is required to be

noted that the learned Counsel for the appellant was right in pointing

out that the complainant Trimbak who was examined at Exh.25/1 was

declared to be hostile. The complainant, however, even if is declared

as hostile, in my opinion, the evidence of a hostile witness can be

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taken into account for the purpose of corroboration, as is rightly

pointed by the learned A.P.P., while relying upon the judgment of

Apex Court in the matter of Bhagwan Vs. State of Haryana (cited

supra). Paragraphs 8 and 9 of the said judgment are worth relying

upon. In the present case, what is required to be noted is, the

complainant, in his examination-in-chief has in clear terms stated

about the demand of bribe by the present appellant and has named

the present appellant as the person who has demanded the bribe. He

has identified the accused. He has also identified the currency notes,

which was muddemal in present case. In his cross-examination

though he has stated that he was prosecuted two months prior, to the

incident, however, the appellant, if intend to rely upon the said

statement/admission given by the complainant, same will be of hardly

any assistance, as the said fact is not substantiated by any

documentary evidence by the appellant, though it was well within his

knowledge. That the complainant was declared hostile was known to

appellant. The appellant has failed to establish his case that he is

falsely implicated in the present crime. Rather, the hostility of the

complainant falsify the case of the appellant as regards false

implication.

16. It is required to be noted that the Investigating Officer, A.P.P.

Prakash Jadhav is examined at Exh.36/1. According to this witness,

the complainant has visited the office and narrated the complaint

which was reduced into writing by him and was signed by the

complainant at Exh.26. He has proved the complaint. He then stated

that panch witnesses were deputed by the Office of the Collector

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pursuant to his request and the panch witnesses were introduced to

the complainant who have agreed to act as panch witnesses. The

next day morning, the complainant was called along with Rs.300/-. On

25th May 2005, the complainant and both the panch witnesses with

the help of ultra violet lamp were shown the demo of use of

anthracene powder. He then stated that he along with complainant,

panch witness No.1 accompanied him in the auto-rickshaw so as to

locate the appellant and after taking round near the bus stand,

Hingoli, as the appellant was not found, they went near the police

canteen in the premises of Police Station, Hingoli City. At the canteen

in the police station premises, the complainant noticed the accused

going inside the canteen after parking his motorcycle hence, they

went inside following him. After the complainant gave signal, the trap

party members reached the P.W.1 complainant, at that time the

appellant having accepted the bribe was caught by the members of

trap party and thereafter they introduced themselves. Upon

inspection in dark since anthracene powder was noticed on the hands

of the appellant and the crowed was gathered, the appellant was

removed to the adjoining police station.

17. P.W.3 A.P.I. Jadhav has proved in his evidence, the panchnama

after the trap at Exh.32 and the arrest panchnama at Exh.40.

18. In his cross-examination, nothing could be elicited in favour of

appellant so as to demolish the prosecution story.

19. So far as P.W.2 - Shrikant Karbhajane is concerned, he was

examined at Exh.29/1. In his examination-in-chief he has claimed that

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he is working in the office of Collector as a Clerk and was present with

the trap party having received order from the Collector Office, to

attend the A.C.B. Office. He then claimed that along with him,

another panch witness Mr Meetkar was present. On 25 th May 2005,

they attended the office of A.C.B. at 7.30 a.m. and they were

introduced to complainant. He has also stated that he has verified the

contents of the written complaint and he signed the said complaint,

which is at Exh.26. He then narrated the entire trap preparation and

thereafter claimed that they started at 9.00 a.m. and reached Hingoli.

After confirming the vehicle number they boarded auto-rickshaw of

the complainant along with A.P.I. Jadhav and other staff members and

went to the bus stand, Hingoli where they have not noticed the

appellant, as such they stopped near the canteen of Police Station.

He then along with complainant went inside the canteen, where the

accused demanded him bribe of Rs.300/-, which was paid by the

complainant and accepted by the accused. He then narrated that the

bribe amount of Rs.300/- was identified by him and the trap

panchnama that was drawn at Exh.32 was also admitted to have been

signed by him. He has also identified the notes, pant and shirt of the

accused. In his cross-examination, nothing could be elicited so as to

support the case of the appellant. He stood by the prosecution story

in its entirety including that of the demand and the acceptance of

bribe.

20. In the above referred background of the evidence, as brought

on record, if the submissions of learned Counsel for the appellant are

tested, the claim of the appellant that the complainant was declared

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hostile and as such, he ought to have been acquitted is required to be

rejected for the reason that the independent testimony of panch

witness is corroborated with the complaint and nothing could be

elicited so as to demonstrate his false implication. It is required to be

noted that though the appellant has come out with a case of false

implication, however, there is hardly any material on record to prove

the same by the appellant, but for the statement of the complainant

that two months prior to the trap. Complainant was challenged for

violation of the Motor Vehicles Act. Apart from above, it is also

required to be noted that the testimony of panch witnesses is in

corroboration with the prosecution story, as brought on record,

through the evidence of Investigating Officer. The evidence of panch

witness is no way contrary to the prosecution story and the said

witness, in clear terms, stood by the prosecution story. The demand

of bribe and the acceptance is very much proved, particularly when

the bribe amount along with anthracene powder was recovered from

the pant of the accused, whose hands and the pant were stained with

the anthracene powder.

21. It is required to be noted that the claim as sought to be put

forth that the testimony of complainant who was declared as hostile

should have been analysed carefully so as to read for the benefit of

the appellant for his acquittal, is also required to be rejected, as the

conviction could be based on the testimony of panch witness, who has

stood by the prosecution story as is accepted in the present case.

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22. The next contention of leaned Counsel for the appellant that no

pre-trap confirmation/verification of complaint panchnama was drawn

and as such, the same does call for interference resulting in an

acquittal of the present appellant. It is required to be noted that upon

reading of evidence of P.W.1 Trimbak, he has in clear terms admitted

that the complainant has disclosed about his intention of not

interested in paying bribe to the appellant, the verification of

complaint by him in presence of complainant and the successful trap

as was laid down against the appellant speak of the reposing of

confidence in the evidence of P.W.1., Trimbak. The hostility of the

complainant will be of hardly any assistance. The non-preparation of

pre-trap panchnama is not a legal impediment and is not fatal to the

prosecution case once the pre-trap preparations were very much

brought on record in the testimony of P.W.2 Shrikant Karbhajane, who

has in clear terms narrated about the complainant's self-introduction

in the office of A.C.B., the verification of the complaint and such other

events which were necessary for successful trap.

23. The omissions and contradictions as are sought to be placed on

record, particularly in the light of the evidence of complainant who

was declared hostile will be of hardly any assistance to the appellant,

particularly in the light of the evidence of panch witnesses. The

change of place of the incident including the date is of hardly any

assistance to the appellant, particularly having regard to the fact that

trap was successful. There is hardly any material on record to infer

that the appellant was victimised. No material whatsoever is brought

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on record to support the said contention though reliance is placed

upon the judgment of this Court. It is required to be noted that in the

judgment of this Court in the matter of Surender Kumar Vs. C.B.I.

(cited supra), the facts of the said case were altogether different, as in

the said case, the money was not found in the hands of public

servant, however, it was found in a newspaper laying in a room. Apart

from above, the other judgments, as relied upon i.e. in the matter of

Shridhar Chavan Vs. State of Maharashtra, M.R. Purushottam Vs. State

of Karnataka (cited supra) will be of hardly any assistance to the

appellant.

24.

The case against the appellant was proved by the prosecution

beyond reasonable doubt in clear terms brining on record that there

was demand and acceptance of bribe.

25. In this background, in my opinion, no case for interference is

made out. The appeal fails, stands rejected.

26. The bail bonds of the appellant stand cancelled. The trial Court

to secure his presence in the light of judgment of conviction delivered

against him.

( N.W. SAMBRE, J.) vvr