State Of Maharashtra vs Deepak S/O Vithalrao Giri
2017 Latest Caselaw 2445 Bom

Judgment

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

                CRIMINAL APPEAL NO.45 OF 2003

The State of Maharashtra,
Through Dy. Superintendent of Police,
Anti Corruption Bureau,
Chandrapur.                                                 ..... Appellant.

                                  ::   VERSUS   ::

Deepak s/o Vithalrao Giri,
Aged about 39 years,
Medical Officer, Primary Health Centre,
Gangalwadi, Tahsil Brahmapuri, 
District Chandrapur.                              ..... Respondent.

==============================================================
          Shri Amit Chutke, Addll. P.P. for the Appellant/State.
          Ms D.A. Wadpalliwar, Adv. h/f Shri S.P. Bhandarkar, Counsel
          for the Respondent.
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                                CORAM : N.W. SAMBRE, J.  

DATE : MAY 9, 2017.

ORAL JUDGMENT

1. On 29.8.2002 learned Special Judge,

Chandrapur acquitted the respondent/accused for the

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offences under Sections 7 and 13(1)(d) punishable under

Section 13(2) of the Prevention of Corruption Act, 1988.

As such, the present appeal is by the State.

2. The prosecution case as appears from the

record is, the respondent/accused was working as a

Medical Officer at Primary Health Centre (P.H.C.),

Gangalwadi.

3. Complainant Bhimrao Warloo Sorte, residing

along with his mother Janabai, wife Asha, and brother

Sukru Sangole, claimed that his mother since was not

well as she was suffering from dehydration, he got her

admitted to the P.H.C. at Gangalwani at which moment

the respondent/accused demanded amount of Rs.500/-.

As the said amount was not paid to the

respondent/accused by the complainant, the

complainant shifted his mother to Christanand Hospital

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at Brahmapuri. In the meantime, on 16.8.1991 since the

wife of complainant Asha was also suffering from

dehydration, she was taken to hospital by Sukru, the

brother of the complainant at which point of time again

there was a demand of Rs.500/- out of which Rs.300/- was

paid. As the total amount was not paid, it is claimed

that the respondent/accused discharged Asha without

providing her medical treatment. In the above referred

background, it is claimed that the complainant went to

the respondent/accused and questioned him on the issue

of refusal to treat his mother Janabai, which has

resulted in her death.

4. On 26.8.1991, the condition of Asha became

critical and as such she was taken to the P.H.C. at

Gangalwadi. It is then claimed that at that moment the

respondent/accused demanded amount of Rs.200/-. As

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the complainant was not willing to pay the bribe, he

lodged the complaint in person resulting into a

successful trap. Crime No.183 of 1991 came to be

registered with Brahmapuri Police Station for the

offences under Sections 7 and 13(1)(d) punishable under

Section 13(2) of the Prevention of Corruption Act, 1988.

After the charge-sheet was filed, charge was framed and

the respondent/accused was put to Trial. Learned

Special Judge acquitted the respondent/accused. As

such, the present criminal appeal is by the State.

5. Learned Additional Public Prosecutor Shri

Amit Chutke for the appellant/State would invite my

attention to the evidences of the complainant and that

of pancha witness so as to substantiate his claim that

the acquittal of the respondent/accused suffers from

illegality and calls for an interference. In addition, he

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would take me through the evidences of these two

witnesses and based on the theory of presumption, he

would urge that since the trap was successful, the

respondent/accused is liable to be convicted as he has

failed to discharge the burden of proving his innocence.

6. Per contra, learned counsel Ms D.A.

Wadpalliwar for the respondent/accused would urge

that the prosecution has failed to prove its case beyond

reasonable doubt. According to her, the first person, to

whom the demand was made, was Sukru, the real

brother of the complainant, who has not supported the

case of the prosecution. In addition, she would urge

that even though the degree of the evidence, as is

brought by the respondent/accused on record, does not

in clear terms disprove the case of the prosecution or

the issue of presumption. According to her, it is

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required to be inferred from the conduct of the

respondent/accused after the trap was successful that

the amount accepted was towards refund of the hand

loan. She would urge that the defence of the

respondent/accused was properly appreciated and there

is no case for interference and she has sought for

dismissal of the criminal appeal.

7. The charge against the respondent/accused

was framed at Exhibit 10 and complainant Bhimrao was

examined at Exhibit 14 as PW1. PW2 Vilas Bawane was

examined at Exhibit 18 as a pancha witness who has

supported the case of the prosecution. PW3 Dr. Vishram

Nakade, posted at the Christanand Hospital at

Brahmapuri, was examined in support of the

prosecution case. In the cross-examination of the said

doctor it is brought on record that the mother of the

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complainant, Janabai was referred to the Medical

Hospital at Nagpur by a reference letter which was seen

by him. PW4 Aaha, wife of the complainant, was

examined at Exhibit 43. From her cross-examination,

material contradictions and omissions could be noticed

particularly as regards the statement given by her to

the police that the doctor had advised to take her to the

hospital at Chandraupr. PW5 Sukru, the brother of the

complainant, was examined at Exhibit 44 has stated

about death of his mother Janabai who died about 10 to

11 years ago. He would then further state that he was

unable to identify the respondent/accused and he

denied that there was any demand by the

respondent/accused of amount of Rs.500/-. The

prosecution is though not supported by this witness, the

said witness was not declared hostile and subjected to

cross-examination. PW6 Prakash Bodhele who has also

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not supported the case of demand of Rs.500/- made by

the respondent/accused. PW7 Prabhakar Selokar has

spoken about some complaints against the

respondent/accused. However, he has not stated about

the demand made by the respondent/accused.

PW8 Police Head Constable Baba Zade was examined in

support of the report which is marked at Article-M.

PW10 Head Constable Shriram Mogre was examined on

the issue of carrying seized articles. PW11 Prabhakar

Salve, who at the relevant time was working as a

Secretary to the Government of Maharashtra, Public

Health Department, was examined in support of the

sanction given to prosecute the respondent/accused.

PW12 the Deputy Superintendent of Police Ashok

Pawar was examined as an investigating officer.

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8. The defence has examined Ghanshyam

Dhakate who was working as a public servant in P.H.C.

at Gangalwadi as an Attendant. He has deposed in

support of the defence of the accused.

9. If the cumulative effect is given to the

evidence that is brought on record and the same is

analyzed critically, it is required to be noted that the

first demand as claimed was by the respondent/accused

to Sukru, the brother of the complainant. In the

evidence of said Sukru, who has not supported the case

of the prosecution, it is brought on record that when he

went to the hospital along with Asha, wife of the

complainant, there was no such demand of amount. He

then claimed that he and other witness Prabhakar went

to the P.H.C. along with Asha and Asha accordingly was

hospitalized and was given proper treatment. It is then

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claimed that as this witness has not supported the case

of the prosecution, he was subjected to cross-

examination by learned Additional Public Prosecutor

and in his cross-examination he has stated that there

was no demand of amount by the respondent/accused.

He has denied the payment of Rs.300/- to the

respondent/accused as a part payment or bribe amount.

He has also denied that he has informed complainant

Bhimrao about demand of Rs.500/-.

10. The said evidence is read along with the

evidence of PW6 Prakash Bodhele, who was also

subjected to cross-examination by learned Additional

Public Prosecutor, has not supported the case of the

prosecution as regards demand.

11. The presumption, under the Prevention of

Corruption Act, is against the respondent/accused.

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Once the trap is successful, it was expected of the

respondent/accused to prove his innocence when

particularly the trap was successful and the amount

was recovered from him.

12. It has come on record particularly in the

evidence that when the respondent/accused was caught

hold at the time of trap, he immediately raised a defence

that the said amount was towards the refund of amount

of hand loan, which specifically finds mention in the

investigation papers.

13. For convicting a person under the provisions

of the Prevention of Corruption Act, 1988, particularly

for the offences under Sections 7 and 13(1)(d)

punishable under Section 13(2), it is necessary to prove

the demand. In this case, the effect of evidences of

Prakash and Sukru that is PW5 and PW6 does not

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repose any confidence to the prosecution theory as

demand of bribe itself is under cloud.

14. The Honourable Apex Court has already

expressed a view particularly on the scope of

interference by the Appellate Court in the acquittal of

the accused and has declared that if the view taken by

the Court below is a plausible view and in any case it

cannot be inferred that such a view is not a plausible,

then only this Court in appellate jurisdiction can

interfere.

15. Giving cumulative effect to the evidences,

what could be inferred from the discussion as referred

above, the acquittal as is ordered by learned Special

Judge is based on the theory of failure to prove the

demand. The view, in the light of evidences, appears to

be an appropriate view and in my opinion does not call

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for any interference in appellate jurisdiction.

16. In the result, the criminal appeal fails and is

dismissed.

JUDGE

!! BRW !!

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