Bombay High Court
The State Of Maharashtra vs Husain Dastagir Shaikh on 22 January, 2021
Bench: K.R. Sriram
Digitally signed
by Gauri A.
Gaekwad 1/13 1.APEAL-1179-2007.doc
Gauri A. Date:
Gaekwad 2021.01.27
15:45:53
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1179 OF 2007
The State of Maharashtra ) ....Appellant/Complainant
V/s.
Husain Dastagir Shaikh )
Age : 46 yrs., Occ.: Class III, )
Buckle No.1997 ) .....Respondent/accused
WITH
CRIMINAL APPLICATION NO.1046 OF 2019
----
Mrs. Anamika Malhotra, APP for State - Appellant.
Mr. Rahul Singh a/w. Mr. Rajesh Behere for respondent.
----
CORAM : K.R.SHRIRAM, J.
DATE : 22nd JANUARY 2021
ORAL JUDGMENT :
CRIMINAL APPEAL NO.1179 OF 2007
1 This is an appeal filed by the State impugning order and
judgment dated 2nd April 2005 passed by the Special Judge (P.O.C. Act),
Thane, acquitting respondent (accused) of offences punishable under
Section 7 (Public servant taking gratification other than legal remuneration
in respect of an official act), Section 13 (1) (d) read with Section 13 (2) of
Prevention of Corruption Act, 1988 (PC Act).
2 The prosecution's case is that in the year 1998 accused, a Police
Constable, attached to Thanenagar Police Station was posted at Shrirang
Police Chowky, Thane. Complainant (PW-1), a mechanic by profession, had
illicit relationship with one Kiran Chaube (Kiran), a bar girl. Kiran and PW-1
started living together. After sometime their relations became strained when
PW-1 realised that Kiran was having an affair with others. Therefore, PW-1
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left Kiran in November 1998. Kiran used to visit PW-1 at his garage to threaten
him that she would commit suicide and he will end up in jail. Kiran also lodged
a complaint with Vartak Nagar Police Station. On 29th November 1998 Kiran
and her mother met PW-1 at his garage and threatened him. Therefore, PW-1
decided to lodge a NC against them for threatening.
On 30th November 1998 at about 12.30 p.m. PW-1 went to
Shrirang Police Chowky where accused was present. PW-1 narrated the incident
to accused and requested him to record his complaint. Accused demanded a
sum of Rs.3,000/- to record the complaint and take action. At the request of
PW-1, accused reduced the demand to Rs.2,500/- but told PW-1 to pay the
amount by evening at the Chowky and only then the NC will be recorded and
action taken against Kiran. Accused it seems also told PW-1 to get PW-2 in the
evening.
PW-1 and PW-2 met accused at the Chowky the same evening and
told him that they have not been able to arrange the money. Accused told them
to give the money the next day around 12.30 to 1.00 p.m.
In the morning of 1st December 1998, PW-1 lodged complaint with
the Anti Corruption Bureau through PW-6 Shelar, Investigating Officer. Pre-trap
formalities were completed with PW-4 and PW-5 being panch witnesses.
As per the plan, PW-1, PW-2, PW-3 and PW-4, a shadow panch,
met accused in the Chowky with others waiting at a safe distance for a sign
from PW-1 to effect the raid. Accused it seems informed them that the NC has
to be lodged at Thanenagar Police Station but he would give a note
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addressed to the Police Station to do the needful. The note was prepared
and was given to PW-1, who was asked to go with PW-3 to the Police Station
and lodge the NC. After the note was handed over, PW-1 gave the bribe
amount of Rs.2,500/- to PW-2, who then gave the money to accused.
Accused collected the money and left the place by bicycle at which time the
agreed signal was given and the raiding party pounced on accused and
caught his hand. Accused it seems, when he saw the raiding party, threw the
money on the road and tried to escape but he was prevented by PW-6
Shelar. Thereafter, post-raid formalities were conducted.
3 A complaint was lodged by PW-6 against accused at Thanenagar
Police Station and after completion of investigation, papers were sent to
PW-7, who accorded the sanction. Thereafter, chargesheet came to be filed,
charges were framed and accused pleaded not guilty and claimed to be
tried.
4 To drive home the charge, prosecution led evidence of
7 witnesses. The Trial Court in the facts and circumstances of the case and
after considering the evidence, acquitted accused. The Trial Court has given
various reasons for the conclusion that it arrived at. I would agree with the
conclusions arrived at by the Trial Court though learned APP made a valiant
attempt to show that there was no lacuna in the prosecution's case or even if
there were, they were very minor which require to be overlooked. I have
gone through the evidence and the impugned judgment with the assistance
of the learned APP and Mr. Singh. Even I find there are so many glaring
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omissions/contradictions/lacuna which cannot be overlooked.
5 I find, inter alia, the following contradictions/inconsistencies/
lacuna in the evidence :
(a) The two prime witnesses are PW-1 and PW-2. PW-1
complainant, in his examination in chief, in paragraph 2 states that on
30th November 1998 he went to Shrirang Police Chowky where accused was
present and he narrated to him the incident of Kiran and her mother
abusing him. Accused reduced the same in writing and told him that he will
take action against Kiran and her mother but PW-1 should pay him
Rs.3,000/-. PW-1 then says he requested accused to reduce the amount and
accused reduced it to Rs.2,500/- but said it should be paid on the same day
in the evening. Since PW-1 could not arrange the amount, he told accused in
the evening that he has not been able to arrange the amount. Accused then
told him to bring the amount on the next day. PW-1 then says that accused
told him to bring one Rajesh Chavan (PW-2), who is the friend of PW-1.
Why accused told PW-1 to bring PW-2 or what was the connection between
PW-2 and accused is not mentioned by PW-1. Then PW-1 says in the evening
of 30th November 1998, he went to Rajesh Chavan (PW-2) and told him
about the incident.
As against this testimony of PW-1, let us see what PW-2 has
stated. PW-2 says that on 30th November 1998 PW-1 met him and told him
that accused was demanding a bribe to be paid in the evening at about 7.00
to 7.30 p.m. and in the evening, he went to Shrirang Police Chowky with
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PW-1 and met accused. Accused then told PW-2 that complaint will have to
be lodged at Thanenagar Police Station as Kiran lodged the complaint there.
PW-2 further says accused then told him that he will give letter to the
concerned officer at the police station and then the complaint will be
received and for that purpose, accused demanded bribe of Rs.3,000/-. PW-2
then informed accused not to take money as PW-1 was a poor mechanic, at
which time accused reduced the amount to Rs.2,500/- and asked PW-2 to
pay the amount at that time. PW-2 then told accused that PW-1 was not
having that much of money and arrangement would be made on the next
day.
PW-1 says the amount was reduced from Rs.3,000/- to
Rs.2,500/- in the morning but PW-2 says that the amount was reduced from
Rs.3,000/- to Rs.2,500/- in the evening. PW-1 says he went alone in the
evening to meet accused, whereas PW-2 says he accompanied PW-1 to meet
accused.
PW-1 does not mention anything about accused telling him that
the complaint will have to be lodged at Thanenagar Police Station for which
he will issue a letter of recommendation, whereas PW-2 says accused told
them that the complaint has to be lodged at Thanenagar Police Station and
he will issue a letter of recommendation. This itself makes the prosecution's
case doubtful on the demand of bribe sought by accused.
(b) Another point of inconsistency in the evidence of PW-1 and
PW-2 is that PW-1 says in paragraph 1 of his deposition that on
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29th November 1998 Kiran came to his garage with her mother and
quarreled with him and after threatening she left. PW-1 does not say
anything about PW-2 being present at that time. As against this, PW-2 in
paragraph 1 of his deposition, says he had gone to the shop of PW-1 at
which time a female came and abused complainant and left.
(c) Another point which goes against the prosecution's case is
that in the FIR and in the evidence of PW-1, it is stated that accused
demanded bribe for taking action against Kiran and her mother but in the
evidence of PW-2 it is mentioned that accused demanded bribe of Rs.3,000/-
for giving a letter to the concerned officer at the police station. PW-1 does
not say that the money demanded was for issuing a letter.
(d) I have to note that in paragraph 2 of PW-1's testimony, PW-1
also clarifies "On the earlier day I had gone to the accused to meet him in
the evening alongwith Rajesh Chavan". But in the same paragraph in the
beginning, PW-1 says the accused told him to bring Rajesh Chavan the next
day. Therefore, there is inconsistency in the evidence of PW-1 itself which
also raises a doubt on the truthfulness of the testimony of PW-1.
(e) PW-1, in his deposition, in paragraph 2 says " I went to
Rajesh Chavan and told him about the incident. On his say we met his two
friends Baliram Kamble and Ganesh Vichare. They advised me to approach
Anti Corruption Bureau. Then we went to Anti Corruption Bureau office and
met Inspector Shelar". Ganesh Vichare and Baliram Kamble are PW-4 and
PW-5, the panch witnesses, who admittedly are stock panch witnesses. What
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is relevant is PW-1 says on the say of Rajesh Chavan (PW-2) he met his two
friends "Baliram Kamble and Ganesh Vichare". Therefore, these two panch
witnesses PW-4 and PW-5 cannot be considered to be independent
witnesses.
(f) Another point which indicates the two panch witness PW-4
and PW-5 cannot be considered as independent witnesses is evident from
the deposition of PW-3. PW-3, in her deposition, in paragraph 1 states
"Shiva is my brother-in-law. On 1st December I accompanied him to
Shrirang Police Chowky and met the accused in connection with complaint
filed by him. Rajesh Chavan was with us. One Vichare other panch was also
with us. I treat him as brother". Shiva is PW-1 and Rajesh Chavan is PW-2.
PW-3, therefore, admits that she considers Vichare, the panch witness (PW-
4) as her own brother. This also shows panch witness Ganesh Vichare cannot
be considered to be an independent witness.
(g) PW-1 also says "I was asked to come on 2 nd December 1998.
I again say, I was not so asked. Ganesh Vichare and Baliram Kamble my
friends were present". Therefore, PW-1 admits that PW-4 and PW-5, the
panch witnesses, were his friends and therefore, cannot be considered to be
independent witnesses, which is the fundamental requirement of panch
witness.
(h) As against this evidence of PW-1, PW-2, in his deposition, in
paragraph 2 says "On the next day we lodged complaint at A.C.B. office. On
1st December 1998 we went to A.C.B. office wife of brother Shiva was with
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us. We met the officer and narrated the incident. Complaint of Shiva was
recorded..... Thereafter panch witness were called. They were introduced to
us. We told them the gist of the complaint". PW-2 makes it look like the
panch witnesses were strangers and they were introduced to them by
Inspector Shelar, the Investigating Officer, whereas PW-1 says before they
went to the office of A.C.B., they went and met the panch witnesses, who
went with them to the office of A.C.B. In my view, this is a very serious
contradiction apart from the others which kills the case of prosecution. I
have to also note that the panch witnesses have admitted that they have
been panch witnesses in many other matters where the same Inspector
Shelar, Investigating Officer (PW-6), has been the Investigating Officer.
(i) Another contradiction is regarding demonstration of
anthracene powder. PW-1 says in paragraph 3 of his evidence that he gave
the notes to Shelar, i.e., PW-6, who applied anthracene powder on the notes
and PW-6 put the notes in the left chest pocket of PW-1. As against this, PW-
2 does not say who applied the anthracene powder on the notes but says the
notes were folded by panch and were kept in left chest pocket of PW-1. PW-
3 says that she gave Rs.2,500/- cash to PW-1 who produced before Anti
Corruption Bureau officers and some powder was applied to the notes and
panchnama was drawn etc. but PW-3 also says application of powder was
not done in her presence and it was done inside the room and she was
outside. Then how does PW-3 says what happened inside the room?
Moreover, PW-3 says the notes were given to Shiva and he kept the same in
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his chest pocket, whereas PW-1 says PW-6 Inspector Shelar kept in his chest
pocket and PW-2 says the panch witness PW-4 kept it in the chest pocket of
PW-1. PW-4, PW-5 and PW-6, however, said Head Constable Patil applied the
powder, folded the notes and kept the notes in the left chest pocket of PW-1.
(j) The inconsistency in the evidence of PW-3 also is
demonstrated by the fact that at one point she says application of powder
was not done in her presence because it was done inside the room and she
was outside, whereas to the leading question put by the Prosecutor, PW-3
narrates what happened inside the room.
(k) On the point of bicycle and recovery, PW-1 in his testimony
says that when he and PW-3 proceeded towards Thanenagar Police Station,
they heard some commotion after they travelled some distance and PW-1
did not see whether accused came out of the chowky after him and ride the
bicycle. PW-1 also says he did not see bicycle was lying 100 ft. away from
the police station. But PW-3, who was with PW-1, says that after they
travelled some distance of 100 to 200 ft., which would roughly amount to
50 metres, they heard commotion. PW-3 says she saw accused running,
accused was caught by A.C.B. officers, accused was beaten by PW-6 and
there was a bicycle lying. But PW-1 says he did not see any of these things.
Mrs. Malhotra, learned APP, says that in the examination in
chief, PW-1 says when he was going out with PW-3 they heard commotion
near the chowky so they returned to the chowky, Inspector Shelar and other
members of the raiding party were inside the chowky, both the hands of the
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accused were caught by them, the notes were lying on the road and bicycle
of the accused was also lying there in front of the chowky. But in the cross
examination, PW-1 says he did not see the bicycle was lying 100 ft. away
from the police station.
6 Mrs. Malhotra states that the chit, which was given by accused,
has not been denied by the defence, which shows the motive. In my view,
we have to see what evidence is before the Court and simply showing
motive is not enough. Prosecution has to prove beyond reasonable doubt the
motive, the demand and acceptance. In a case under the Prevention of
Corruption Act, the motive for demanding a bribe also is very relevant. PW-1
complainant says the motive was to take action against Kiran and her
mother and note down complaint, whereas PW-2 says was to give a letter for
Thanenagar Police Station for receiving the complaint. Therefore, there is
inconsistency in the motive alluded by prosecution. The matter is under the
provisions of PC Act. Criminal jurisprudence requires prosecution to prove
its case beyond reasonable doubt. In my view, since a complaint under PC
Act not only affects the accused but also his entire family members and the
stigma attaches for generations, even a minor contradiction or inconsistency
will have to be viewed very seriously against the prosecution. Even a minor
inconsistency or contradiction or omission cannot be ignored.
7 The Apex Court in Ghurey Lal V/s. State of U.P.1 has formulated
the factors to be kept in mind by the Appellate Court while hearing an appeal
1. (2008) 10 SCC 450
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against acquittal. Paragraph Nos.72 and 73 of the said judgment read as under:
72. The following principles emerge from the cases above:
1. The appellate court may review the evidence in appeals
against acquittal under Section 378 and 386 of the Criminal
Procedure Code, 1973. Its power of reviewing evidence is wide
and the appellate court can reappreciate the entire evidence on
record. It can review the trial court's conclusion with respect to
both facts and law.
2. The accused is presumed innocent until proven guilty. The
accused possessed this presumption when he was before the trial
court. The trial court's acquittal bolsters the presumption that he is
innocent.
3. Due or proper weight and consideration must be given to the
trial court's decision. This is especially true when a witness'
credibility is at issue. It is not enough for the High Court to take a
different view of the evidence. There must also be substantial and
compelling reasons for holding that trial court was wrong.
73. In light of the above, the High Court and other appellate courts
should follow the well settled principles crystallized by number of
judgments if it is going to overrule or otherwise disturb the trial
court's acquittal:
1. The appellate court may only overrule or otherwise disturb the
trial court's acquittal if it has "very substantial and compelling
reasons" for doing so.
A number of instances arise in which the appellate court would
have "very substantial and compelling reasons" to discard the trial
court's decision. "Very substantial and compelling reasons" exist
when:
i) The trial court's conclusion with regard to the facts is palpably
wrong;
ii) The trial court's decision was based on an erroneous view of
law;
iii) The trial court's judgment is likely to result in "grave
miscarriage of justice";
iv) The entire approach of the trial court in dealing with the
evidence was patently illegal;
v) The trial court's judgment was manifestly unjust and
unreasonable;
vi) The trial court has ignored the evidence or misread the material
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evidence or has ignored material documents like dying
declarations/ report of the Ballistic expert, etc.
vii) This list is intended to be illustrative, not exhaustive.
2. The Appellate Court must always give proper weight and
consideration to the findings of the trial court.
3. If two reasonable views can be reached - one that leads to
acquittal, the other to conviction - the High Courts/appellate courts
must rule in favour of the accused.
The Apex Court in many other judgments including Murlidhar
& Ors. V/s. State of Karnataka2 has held that unless, the conclusions reached
by the trial court are found to be palpably wrong or based on erroneous
view of the law or if such conclusions are allowed to stand, they are likely to
result in grave injustice, Appellate Court should not interfere with the
conclusions of the Trial Court. Apex Court also held that merely because the
appellate court on re-appreciation and re-evaluation of the evidence is
inclined to take a different view, interference with the judgment of acquittal
is not justified if the view taken by the trial court is a possible view.
We must also keep in mind that there is a presumption of
innocence in favour of respondent and such presumption is strengthened by
the order of acquittal passed in his favour by the Trial Court.
The Apex Court in Ramesh Babulal Doshi V/s. State of Gujarat3
has held that if the Appellate Court holds, for reasons to be recorded that
the order of acquittal cannot at all be sustained because Appellate Court
finds the order to be palpably wrong, manifestly erroneous or demonstrably
2. (2014) 5 SCC 730
3. 1996 SCC (cri) 972
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unsustainable, Appellate Court can reappraise the evidence to arrive at its
own conclusions. In other words, if Appellate Court finds that there was
nothing wrong or manifestly erroneous with the order of the Trial Court, the
Appeal Court need not even re-appraise the evidence and arrive at its own
conclusions.
8 There is an acquittal and therefore, there is double presumption
in favour of accused. Firstly, the presumption of innocence available to
accused under the fundamental principle of criminal jurisprudence that
every person shall be presumed to be innocent unless he is proved guilty by
a competent court of law. Secondly, accused having secured his acquittal, the
presumption of his innocence is further reinforced, reaffirmed and
strengthened by the Trial Court. For acquitting accused, the Trial Court
rightly observed that the prosecution had failed to prove its case.
9 In the circumstances, in my view, the opinion of the Trial Court
cannot be held to be illegal or improper or contrary to law. The order of
acquittal, in my view, need not be interfered with.
10 Appeal dismissed.
CRIMINAL APPLICATION NO.1046 OF 2019
11 In view of the above, criminal application does not survive and
accordingly stands disposed.
(K.R. SHRIRAM, J.)
Gauri Gaekwad
