Bombay High Court
Rajkumar Ramchandra Igawe And Anr vs The State Of Maharashtra on 9 June, 2021
Bench: Prakash Deu Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.879 OF 2015
1. Rajkumar Ramchandra Igawe, Age 47 years,
Occ.Service, r/o.Kegaon, Tal.North Solapur,
District Solapur.
2. Baburao Malku Walkunde, Age 37 years,
Occ.Service, r/o.61, Phata, Malshiras, Appellants
District Solapur. (Org.Accused nos.1 and 3)
versus
The State of Maharashtra through ACB,
Malshiras Police Station, Solapur. Respondent
WITH
CRIMINAL APPEAL NO.249 OF 2018
The State of Maharashtra Appellant
versus
1. Rajkumar Ramchandra Igawe
2. Baburao Malku Walkunde Respondents
Ms.Pooja Chavan, Advocate for appellants in Criminal Appeal No.879
of 2015 and for Respondents in Criminal Appeal No.249/2018.
Mrs.A.A.Takalkar, APP, for Respondent-State in Appeal No.879 of
2015 and for Appellant in Appeal No.249 of 2018.
CORAM : PRAKASH D. NAIK, J.
Date of Reserving the Judgment : 4th January 2021
Date of Pronouncing the Judgment : 9th June 2021
::: Uploaded on - 11/06/2021 ::: Downloaded on - 11/06/2021 20:24:15 :::
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JUDGMENT :
1. Criminal Appeal No.879 of 2015 is preferred under Section
374 of Code of Criminal Procedure challenging the judgment and
order dated 26th August 2015 passed by Additional Sessions Judge,
Malshiras in Special Case No.4 of 2011 convicting appellant no.1 for
offence u/s.7 of Prevention of Corruption Act (`PC Act') and
sentencing him to suffer rigorous imprisonment for two years and to
pay fine of Rs.5,000/- and u/s 13(1)(d) r/w Section 13(2) of PC Act
and sentencing him to undergo rigorous imprisonment for two years
and pay fine of Rs.5,000/-. Appellant no.2 is convicted for offence
u/s 12 of PC Act and sentenced to suffer rigorous imprisonment for
two years and to pay fine of Rs.5,000/- and in default to suffer
rigorous imprisonment for three months. Accused no.2 was
acquitted. Appeal No.249 of 2018 is preferred by State seeking
enhancement of punishment awarded by the Trial Court.
2. The appellants were arraigned as accused nos.1 and 3 before
Trial Court proceedings.
3. Brief facts of the prosecution case are as follows :-
(i) On 10th March 2011 accused no.1 was working as Police
Constable at Malshiras Police Station. Accused no.2 was also Police
Constable attached to same police station. Accused no.3 was Home
Guard working at Home Guard Office, Malshiras. All of them were
public servants. Accused no.3 was on bandobast duty from 21 st
February to 11th March 2011 at Malshiras Police Station;
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(ii) The complainant was residing as tenant in premises of
Balu Aswale at Malshiras. One Ambadas Gazul was another tenant.
On 7th March 2011 electric connection in the house of Gazul was off.
He enquired with complainant. There was exchange of words
between both of them. Gazul lodged complaint with police station
and non-cognizable crime was registered against complainant and
his wife on 9th March 2011;
(iii) Accused no.1 was directed to take preventive action
against complainant. On the same day accused no.1 arrested
original complainant u/s 151 of Cr.P.C. Thereafter accused no.1
asked complainant whether he want to be released or want to go in
jail. The complainant requested accused no.1 to release him on bail.
Accused no.1 demanded Rs.5,000/- from the complainant. He was
threatened that if he fail to pay the amount, he would be kept in jail.
Accused no.1 demanded Rs.5,000/- for releasing complainant on
bail. After negotiations, the amount was fixed to Rs.4,000/-. The
complainant assured accused no.1 that amount would be given on
10th March 2011. On the assurance, complainant was produced
before Executive Magistrate, Malshiras and he was released on bail;
(iv) On 10th March 2011 complainant approached ACB,
Solapur and lodged complaint. The complaint was recorded.
Panchas were called. The incident was narrated to them.
Verification about the demand was conducted. The complainant was
called at S.T.stand Malshiras for handing over bribe amount. It was
decided to lay trap. Currency notes of Rs.4,000/- were marked by
anthracene powder. Instructions were given to complainant and
panch witnesses;
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(v) The raiding team proceeded towards Malshiras. They
reached at S.T.stand. The complainant and panch witness no.1 went
near S.T.stand. Complainant gave phone call to accused no.1. The
complainant was called at District Co-operative Bank. The
complainant and panch no.1 went to said spot. Accused nos.1 and 3
met complainant. Accused no.1 spoke about bribe amount. He
instructed the complainant to hand over the amount of bribe to
accused no.3, however, complainant was reluctant to hand over the
amount to accused no.3. Accused no.1 went to Police Station,
Malshiras. He did not return. Complainant gave call to accused
no.1. He did not come. Thereafter accused no.1 made call to
complainant and informed him that he is sending Police Constable
Gaikwad for collecting the money and hand over money to him.
Accused nos.2 and 3 came on motorcycle towards complainant.
Accused no.2 informed the complainant to give the money to pillion
rider. Accordingly complainant handed over the anthracene powder
marked currency notes to accused no.3. He accepted the amount
and kept it in right side hip pocket. Accused nos.2 and 3 went to
police station. Immediately raiding party reached the police station.
They caught accused no.3. Accused no.2 ran away. The hands of
accused and complainant were examined. The notes were recovered
from the possession of accused no.3. Investigation proceeded. Pre-
trap panchanama, post-trap panchanama were recorded. Voice
samples were obtained. Panchanama in that regard was also
recorded. The voice sample with conversation recorded were
forwarded to Regional Forensic Science Laboratory, Mumbai. Report
was obtained. On completing investigation charge sheet was filed.
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4. Charge was framed by order dated 11th February 2013.
Accused no.1 (appellant no.1) was charged for offences under
Sections 7, 13(1)(d) and 13(2) of PC Act. Accused nos.2 and 3 were
charged with offence punishable u/s 12 of PC Act.
5. The prosecution examined three witnesses. PW-1 Sachin Patil
is the complainant. PW-2 Firoz Mujawar is panch witness. PW-3
Sanjay Sathe is Investigating Officer.
6. The statements of accused were recorded u/s 313 of Cr.P.C.
The defense of the accused was of false implication. The defense of
accused no.3 (appellant no.2) is that the complainant Sachin Patil
owed money to him towards purchase of grocery articles. The
amount was not illegal gratification.
7. PW-1 Sachin Patil is the complainant in this case. According to
him, there was quarrel between him and one Gazul. The
complainant was taken to police station. Gazul made complaint
against him. Accused no.1 took the complainant to police station. He
was assaulted. He was detained at police station through out the
day. Accused no.1 demanded Rs.5,000/- for his release. Brother-in-
law of the complainant visited police station. The complainant told
him about the demand of accused no.1. His brother-in-law agreed to
make payment of Rs.4,000/- to accused no.1. Accused no.1 was
assured about the payment on the next day. The complainant was
taken to Executive Magistrate by accused no.1. He executed surety
bond. Tatya Bajare was his surety. On 10 th March 2011 he went to
ACB, Solapur and lodged the complaint about illegal demand of
money. Since accused no.1 had threatened the complainant that he
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will be booked in a false case if he does not pay the amount, he
lodged the complaint with ACB. The accused no.1 had given his cell
phone number. The complainant and his brother-in-law went to ACB
for lodging the complaint. Written complaint was submitted by the
complainant. It was marked as Exhibit-13. The panch witnesses
were called. The complainant was introduced to them. Firoz
Mujawar agreed to act as panch no.1. The officer took Rs.4,000/-
from complainant. Anthracene powder was applied to the currency
notes. Trap was arranged. At 7.00 pm, the complainant received call
from accused no.1. He enquired about arrangement of money. The
complainant and raiding team went near S.T.stand. The complainant
and panch witness no.1 went towards S.T.stand. They were called
near co-operative bank. They met accused no.1. He was told that
complainant has brought money. Mean while, accused no.1 received
a phone call,. Therefore, he went away. Accused no.1 gave call to
complainant. The complainant went to S.T.stand. He was asked to
give money to accused no.3. Accused nos.2 and 3 came together.
The complainant was informed by accused no.1 that he has sent
accused nos.2 and 3 to collect the amount. Accused no.2 told the
complainant that he has been sent to collect the money. Accused
no.3 was pillion rider on the motorcycle. Money was handed over to
accused no.3. The amount was accepted by accused no.3. Both the
accused sat on the motorcycle and proceeded towards police station.
They were chased. They were apprehended at the police station.
The amount with anthracene powder was recovered from accused
no.3.
8. PW-2 Firoz Mujawar acted a panch witness. According to him,
he along with other panchas were called by ACB. The complainant
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was present. He narrated the complaint. It was decided to verify
demand. Appropriate instructions were given to him and the
complainant. PW-3 asked the complainant to give call to the
complainant for confirmation of demand. The complainant refused
to make phone call on the ground that accused no.1 will immediately
call him. PW-3 had instructed the panch witness and the
complainant to give signal if the bribe amount is accepted by the
accused. All the required arrangements were made for conducting
raid. Recorder was handed over to the complainant. Panch witness,
complainant and raiding party proceeded towards Malshiras. Before
proceeding to Malshiras, complainant received phone call of accused
no.1. The call was taken by putting his mobile on speaker mode.
Accused no.1 enquired about money. The complainant replied that
he had collected the amount. Accused no.1 instructed the
complainant to come at Malshiras. Note of conversation was
prepared (Exh.14). Pre-trap panchanama was prepared (Exh.18).
The team proceeded to Malshiras. On the way complainant received
call from accused no.1. The complainant put on the speaker of his
mobile. Accused no.1 asked the complainant about his whereabouts.
He was told to come at S.T.stand, Malshiras. Conversation between
them was reproduced in panchanama. The conversation was also
recorded on tape recorder. Accused no.1 gave call to complainant
and asked to come near bank. Talk took place between accused no.1
and the complainant. The conversation was recorded. Accused no.1
enquired whether amount was brought. The complainant told him
that he has brought Rs.2,000/-. In the mean while, accused no.1
received phone call. He told the complainant to hand over amount
to accused no.3. He was reluctant to hand over the amount.
Accused no.1 received call and hence he left for police station.
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Accused no.1 told the complainant that he is not in a position to
come. This conversation is recorded Accused no.1 told the
complainant that he is sending one police Naik. Accused nos.2 and 3
came there on motorcycle. The currency notes were handed over to
accused no.3. The notes were accepted. Signal was given to the
raiding party. Accused were caught. Currency notes were recovered.
Anthracene powder was noticed on the currency notes and at the
hands of accused. Post-trap panchanama was recorded.
9. PW-3 conducted investigation. According to him, the
complainant had approached ACB. The complaint was recorded.
Panch witnesses were called. Arrangements were made to conduct
raid. The complainant was instructed to give call to accused no.1 for
confirmation of payment. Pursuant to that the raiding team made
preparations for conducting raid. Anthracene powder was applied to
currency notes. Instructions were given to the complainant and
panch witnesses. Panch no.1 was instructed to be with complainant.
Trap was laid down. He recorded conversation between accused
no.1 and PW-1 on piece of paper. The bribe amount was accepted by
accused no.3. Accused no.2 had fled the place. Accused no.1 had
returned to police station. Statements of witnesses were recorded.
Voice samples of the accused and the complainant were obtained.
Same were forwarded to the forensic expert for examination and
report. Sanction for prosecution was obtained. On receipt of
sanction charge sheet was filed.
10. Learned advocate for appellants in Appeal No.879 of 2015 as
submitted as under :-
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(a) The appellants are falsely implicated in this case. The
prosecution has failed to establish the charge levelled against
appellants;
(b) The prosecution has not proved that amount of
Rs.4,000/- was demanded and accepted as a bribe. The demand by
accused no.1 and acceptance of amount as bribe by accused no.3 at
the instance of accused no.1 is not proved beyond reasonable doubt;
(c) The amount of Rs.4,000/- which was accepted by
accused no.3 cannot be termed as bribe within the provisions of PC
Act. The complainant has admitted that he was supposed to pay
dues of Rs.4,000/- to accused no.3;
(d) The complainant has suppressed vital facts in the
complaint/statement recorded by ACB . The fact that accused no.3
was at the Police and that the amount towards grossery was admitted
by him to be paid to accused no.3, is not reflected in his complaint;
(e) The presumption u/s 20 of PC Act can be rebutted. The
evidence on record falsifies the case of prosecution. The complainant
has falsely implicated the accused out of vendetta since action u/s
151 of Cr.P.C was initiated against him by accused no.1 and to avoid
payment of legitimate dues of accused no.3;
(f) The accused no.2 was prosecuted as an abettor by
invoking Section 12 of PC Act. He has been acquitted for lack of
evidence;
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(g) There are serious omissions and contradictions in the
evidence of PW-1 and PW-3;
(h) The brother-in-law of the complainant who had
allegedly visited police station and had agreed to make arrangement
for payment of Rs.4,000/-, has not been examined by the
prosecution;
(i) The forensic report with regards to the voice of accused
does not support the prosecution case. The conversation relied upon
by the prosecution, which was between accused no.1 and the
complainant, is devoid of corroboration to establish that voice in the
tape recorded conversation is that of the accused no.1;
(j) The complainant has admitted in the evidence that
accused no.1 told him to pay the amount to Walkunde (accused
no.3). Thus, it is established that amount of Rs.4,000/- was paid
towards dues of accused no.3. Accused no.1 has not accepted the
amount;
(k) The proceedings u/s.151 of Cr.P.C initiated against the
complainant were over as bail bond was executed by complainant.
The question of demanding bribe does not arise;
(l) The sanction issued by the sanctioning authority suffers
from non application of mind.
11. Learned counsel for appellants-accused has relied upon several
decisions in support of her submissions. Reference can be made to
the following decisions :
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(i) AIR-2002-SC-486 (Punjabrao Vs. State of Maharashtra);
(ii) 1988-Mh.L.J.-936 (Ashok Sadashiv Astikar Vs. State of
Maharashtra);
(iii) 1988-Mh.L.J-913 (Chiman Keshavdas Bhatia Vs. State
of Maharashtra).
12. Learned APP appearing for the Respondent-State in Appeal
No.879 of 2015 and for the appellant-State in Appeal No.249 of
2018 submitted that there is sufficient evidence on record to
establish the charge against appellants. The demand was made by
accused no.1. The complainant and the panch witness has
established the demand. The amount was accepted by accused no.3
at the instance of accused no.1, which has been proved through
evidence of PW Nos.1, 2 and 3. PW-2 is an independent person. He
has corroborated evidence of PW-1. The complaint, trap
panchanama, panchanama of conversation etc were the documents
which were proved in evidence, which has supported the occular
evidence of PW Nos.1 to 3. The accused no.1 had threatened the
complainant of false implication in another case and thus the
demand of Rs.5,000/- which was reduced to Rs.4,000/-, was made
by him. The accused have admitted that amount of Rs.4,000/- was
accepted by accused no.3. Thus, the prosecution has established
foundational facts to invoke presumption u/s 20 of PC Act. The
accused have not rebutted the presumption. There was no reason for
the complainant to falsely implicate the accused. Sanction was
granted with application of mind. The document was admitted by
defense. There is no infirmity in the sanction order. The accused
have not offered any explanation u/s 313 of Cr.P.C. There is no
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rebuttal to the evidence of demand and acceptance of bribe amount.
The offence is of serious nature. Both the accused were public
servants. The Trial Court has awarded lesser sentence. Considering
the nature of offence, the sentence of imprisonment be enhanced on
confirming the judgment of conviction passed by the Trial Court.
13. On analyzing the evidence lead by the prosecution before the
Trial Court it can be gathered that evidence of PW-1/complainant
refers to quarrel with one Mr.Gazul. Both were residing at the
adjoining premises as tenants. Gazul was working as Clerk in
Malshiras Court. According to the complainant, the quarrel had
occurred on 8th March 2011. The complainant was working as a
servant in shop drawing salary of Rs.4,500/- p.m. Head Constable
Igawe (accused no.1) visited the residence of complainant on 9 th
March 2021. He was called at Police Station for enquiry in relation
to the complaint lodged by Gazul. He was taken to police station. He
was assaulted and made to sit at police station. Brother-in-law of the
complainant Tatya Bajare came to the police station to enquire about
the reason for detaining the complainant. The complainant was
informed about the action u/s.151 of Cr.P.C initiated against him.
Accused no.1 demanded Rs.5,000/- for his release. The brother-in-
law of the complainant agreed to pay Rs.4,000/-. The complainant
assured accused no.1 that payment would be made on the next day.
The complainant was taken before Executive Magistrate by accused
no.1 and he submitted bail bond. Tatya Bajare was his surety. From
the version of complainant as stated hereinabove, it is apparent that
proceedings u/s.151 of Cr.P.C were initiated and completed on the
same day. Although amount of Rs.5,000/- was demanded by accused
no.1 as alleged by the complainant, bail bond was executed before
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the Magistrate. The complainant, however, lodged the complaint
with ACB on 10th March 2021. It is pertinent to note that Tatya
Bajare stood as surety to the complainant and who had allegedly
agreed to make payment of Rs.4,000/-, has not been examined by
prosecution, although he was cited as one of the witness by the
prosecution. After registration of the complaint (Exhibit-13), trap
was arranged. The raiding party proceeded to Malshiras. While on
the way to Malshiras, PW-1 had received call from accused no.1. He
enquired about money. According to complainant, the conversation
was heard by raiding party as he spoke on speaker. The conversation
which had allegedly ensued between PW-1 and accused no.1 was
reduced into writing by Mr.Tathe. The said writing has been
produced in evidence vide Exhibit-14. It is relevant to note that
conversation was not recorded in the tape recorder or in the cell
phone. It is difficult to accept that conversation between accused
and the complainant could be recorded simultaneously on a paper.
Thereafter according to the complainant, the raiding party reached at
Malshiras. PW-1 and PW-3 (panch) met accused no.1 at DCC Bank.
According to PW-1, accused no.1 spoke to him and enquired with
him as to how much amount is brought by him. The complainant
told him that he has brought Rs.4,000/-. Accused no.1 received a
phone call and he left. It is surprising that although the accused no.1
had demanded Rs.4,000/- from the complainant, he left the place
after meeting him without accepting the amount. After some time
accused no.1 gave a call and called the complainant at the S.T.stand.
The accused no.1 did not meet them at S.T.stand. However, he
informed PW-1 telephonically that he is sending accused nos.2 and 3
to collect the amount. Thereafter accused nos.2 and 3 came to the
spot. Accused no.2 disclosed him that accused no.1 has sent them to
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collect the money and that the amount is to be given to accused no.3.
PW-2 took the amount and handed over the same to accused no.3.
The amount was accepted by accused no.3 and both the accused left
the place on motorcycle. The raiding party then went to police
station and apprehended the accused persons. The amount was
recovered from accused no.3. It is relevant to note that the version
of PW-1 depicts accused no.3 as a stranger. He did not disclose that
he knows accused no.3. He did not state that he owed any amount
to accused no.3. The conduct of PW-1, therefore, creates suspicion.
14. During cross-examination of PW-1 he stated that he is resident
of Malshiras since last fifteen years. He was arrested and released on
bail. There was no possibility of re-arrest. Accused no.3 is resident
of Malshiras. He is acquainted with him since long. Accused no.3 is
Home Guard at Malshiras Police Station. Accused no.3 has
agricultural land at Malshiras. PW-1 was purchasing grossery from
accused no.3. On 9th March 2011 accused no.3 was at the police
station when accused no.1 took him at the police station. At that
time accused no.3 had demanded his Rs.4,000/- from PW-1. He was
to pay him Rs.4,000/-. He assured him to pay Rs.4,000/-. Thus, the
complainant in his evidence has accepted that he owed money to
accused no.3. The fact that accused no.3 was at the police station
and complainant accepted his liability of making payment to him
when he was taken to police station on 9th March 2011, has been
suppressed by him in his complaint (Exhibit-13). Thus, the case of
prosecution that amount of Rs.4,000/- was demanded by accused
no.1 as a bribe for releasing him on bail bond in the proceedings u/s
151 of Cr.P.C, is surrounded by shadow of doubt. The defense has
been able to rebut the presumption. The accused cannot be
convicted on the basis of doubtful version of star witness of the
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prosecution. It is pertinent to note that in the complaint, however,
PW-1 has stated that accused no.1 has threatened him of false
prosecution in a new case in the event demand is not fulfilled.
Apparently in his evidence before the Court he has not referred to
such fact. It is also pertinent to note that PW-1 further admitted that
when accused no.1 met him near DCC Bank at Malshiras, he asked
him to pay amount to Walgunde (accused no.3). Thus, the amount
was due to be paid to accused no.3 was directed to be paid to him. It
is also required to be noted that accused no.1 did not accept money
and accused no.3 accepted the money. The evidence of PW-1 also
suffers from omissions. The fact that he told his brother-in-law that
accused no.1 is demanding amount is not reflected in the complaint.
The brother-in-law was ready to pay Rs.4,000/-, PW-1 told ACB that
when he received call at 7.00 pm, accused no.1 asked him whether
he has arranged the money, were proved as omissions. The
statement before ACB did not refer to his conversation with accused
no.1.
15. The prosecution has relied upon evidence of PW-2 Firoz
Mujawar. He had acted as panch witness. According to him, he had
signed the complaint as panch. ACB Officer Tathe had explained his
role in raid. ACB officer Tathe had asked the complainant to give a
call to accused no.1 for the purpose of verifying the demand.
However, he did not make the call. However, PW-1 refused to give
call to accused no.1. PW-1 did not state in his evidence that he had
attempted to verify the demand b giving call to accused no.1. ACB
officer had handed over portable recorded to PW-1. The evidence of
PW-1 is silent in that regard. According to PW-2, the conversation
between PW-1 and accused no.1 was noted by officer Tathe on a
piece of paper. It is not clear as to why said conversation was not
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tape recorded. The pre-trap panchanama, trap panchanama and
transcript of conversation was brought on record. The evidence of
PW-1 and PW-2 is apparently contradictory to each other. There was
no attempt on the part of raiding party to verify the demand of bribe
at the instance of accused no.1. The call which was purportedly
made by accused no.1 to complainant, was being relied upon as a
demand. Considering the manner in which the said conversation
was recorded on a piece of paper, speaks volumes of doubt about
such demand.
16. PW-3 Sanjay Tathe is the Investigating Officer. He has
reiterated the conversation of PW-1 and PW-2. He deposed that after
receipt of call detail reports, it was revealed that cell number given
by accused no.1 was registered in the name of accused no.3.
However, that cell number was in use of accused no.1. He had
obtained the voice sample of accused no.1. He recorded statement of
complainant and other witnesses. He obtained CDR. He arrested
accused. He obtained voice sample of accused no.2. He set the
recorded cassette along with voice sample of accused nos.1 and 2 to
regional forensic science laboratory. It appears that voice sample of
complainant was not obtained. The letter forwarding voice sample
was marked as Exhibit-41. In the cross-examination he stated that
brother-in-law of the complainant did not accompany the
complainant. No conversation was found in recording that accused
no.2 had asked the complainant to hand over money to accused
no.3. While giving complaint the complainant did not tell him that
he has informed his brother-in-law that accused no.2 is demanding
money. Complainant did not inform him that his brother-in-law was
ready to pay Rs.4,000/- to accused no.1 against his will. During the
statement PW-1 did not state that while they were on the way to
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Malshiras at about 7.00 p.m accused no.1 had asked him whether he
has arranged for money. It is not mentioned in the statement of PW-
1 that there was talk between PW-1 and accused at ACB Office while
recording pre-trap panchanama.
17. The Chemical Analyzer report with regards to the voice
samples is on record. The Directorate of Forensic Science Lab had
forwarded the said report dated 27 th May 2014 to Deputy
Superintendent of Police, ACB, Solapur. The examination report
indicate that there were four sealed envelopes containing following :
Exhibit-1 : An audio cassette containing speech recording in
an envelope marked as Exhibit-A;
Exhibit 2 : An audio cassette containing speech recording in
an envelope marked as Exhibit-B;
Exhibit-3 : An audio cassette containing speech recording in
an envelope marked as Exhibit-C;
Exhibit-4 : An audio cassette containing speech recording in
an envelope marked Exhibit-D.
The purpose of examination was to examine whether the
questioned voice exhibit of the speaker marked Exhibit-1 is similar to
the specimen voice exhibits of speaker marked Exhibit-2 and Exhibit-
3; and to examine whether the questioned voice exhibit of the
speaker marked Exhibit-1 is similar to the specimen voice exhibit of
speaker marked Exhibit-4. The result of analysis is as follows :
"The auditory analysis of recorded questioned voice exhibit of
speaker marked Exhibit-1 and specimen voice exhibit of speaker
marked Exhibit-2 and Exhibit-3 revealed that the questioned voice
exhibit of speaker marked Exhibit-1 is found noisy ----
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The auditory analysis of recorded questioned voice exhibit of
speaker marked Exhibit-1 and specimen voice exhibit of speaker
marked Exhibit-4 revealed that the questioned voice exhibit of
speaker marked Exhibit-1 is found insufficient for voice analysis.
Hence, spectrographic test could not be conducted."
18. Thus, there is no corroborative evidence in the form of report
of voice analysis to support the prosecution case.
19. The infirmities in the evidence of witnesses as stated above
and the doubtful version of complainant indicate that there is lack of
evidence to establish the charges against appellants. The Supreme
Court in the case of Panjabrao Vs. State of Maharashtra (supra)
relied upon by the learned advocate for applicant, has observed that
it is well settled that in case where accused offers an explanation for
receipt of the alleged amount, the question that arises for
consideration is whether that explanation can be said to have been
established. The accused is not required to establish his defense by
proving beyond reasonable doubt as the prosecution but can
establish the same by preponderance of probability. In the case of
Ashok Sadashiv Astikar (supra) this Court has observed that burden
of proof lying upon the accused under Section 4(1) of the PC Act will
be satisfied, if he establishes his case by a preponderance of
probability as is done by a parts in civil proceedings and that it is not
necessary that he should establish his case by the lest of proof
beyond a reasonable doubt. In the case of Chiman Keshavdas Bhatia
(supra), this Court had observed that it is enough if the defence is
reasonable and probable.
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20. In the present case the prosecution has failed to establish
foundational facts to draw presumption u/s 20 of PC Act. In any
case, the defense of the accused is that amount of Rs.4,000/- was
due to be paid to accused no.3. the evidence of PW-1 establishes the
said fact. In the circumstances neither the accused no.1 nor accused
no.3 could be convicted for the alleged offence. In order to bring
home the guilt of offence u/s 7 of PC Act, the prosecution would
have to prove that the appellant had accepted or obtained or agreed
to accept or attempted to obtain any gratification other than legal
remuneration as a motive or reward for doing an official act. To
bring home the conviction under Section 13(1)(d) of the Act, the
prosecution would have to prove that the appellant by corrupt or
illegal means or by abusing his position obtained for himself any
available things or advantage. It is well settled law that degree and
character of the burden of proof on the accused to rebut the
presumption cannot be equated with the degree and character of
proof on the prosecution. The material on record in the present case,
the evidence on record adduced by the prosecution itself establishes
innocence of the accused. Hence, I am of the considered opinion
that prosecution has failed to prove its case against accused beyond
reasonable doubt. Hence, the judgment of conviction deserves to be
set aside. The appeal for enhancement preferred by the State is
devoid of merits since the judgment and order convicting the
appellants is being set aside.
21. Hence, I pass following order :
ORDER
(i) Criminal Appeal No.879 of 2015 is allowed and disposed;
20 of 20 Apeal.879.2015.doc
(ii) The judgment and order dated 26th August 2015 passed by the
Additional Sessions Judge, Malshiras in Special Case No.4 of 2011
convicting Appellant no.1 for the offence under Section 7 of PC Act,
1988 and under Section 13(1)(d) r/w Section 13(2) of PC Act, 1988
and sentencing him to suffer imprisonment and pay fine as well as
conviction of Accused no.3 (Appellant no.2) for the offence under
Section 12 of PC Act, 1988 and sentencing him to suffer
imprisonment and pay fine, is quashed and set aside, and both the
Appellants are acquitted;
(iii) Criminal Appeal No.249 of 2018 is dismissed and disposed of
as such.
(PRAKASH D. NAIK, J.)
MST
