The State Of Maharashtra vs Ishwara Ramchandra Patilo
2021 Latest Caselaw 8454 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CRIMINAL APPELLATE JURISDICTION
                            CRIMINAL APPEAL NO.135 OF 2003

    State of Maharashtra                        ) ....Appellant/Complainant
               V/s.
    Ishwara Ramchandra Patil                    )
    Age : 40 yrs.,                              )
    R/o. H. No.2025, 8th Lane,                  )
    Rajarampuri, Dist. Kolhapur                 ) .....Respondent/accused
                                     ----
Mrs. M.M. Deshmukh, Addl. PP for State - Appellant.
Mr. Saurabh Kshirsagar i/b. Mr. Tejas V. Dhotre for respondent.
                                     ----
                                            CORAM : K.R.SHRIRAM, J.

                                            DATE       : 25th JUNE 2021
ORAL JUDGMENT :

1                This is an appeal filed by the State impugning an order and

judgment dated 8th July 2002 passed by Special Judge, Kolhapur, 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 It is prosecution's case that the mother of complainant P.W.-1

was a member of Zilla Parishad and she had applied for a telephone

connection under the special quota. When the complainant went to the

telephone exchange, he was told that instructions have been given to the

local exchange and he should approach the local exchange for connection.

Respondent (accused) was operator/person working at the local exchange.

On 27th January 1998 when complainant met respondent at his office,

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accused is alleged to have informed him that connection will be given,

provided a bribe of Rs.300/- was given to him and asked the complainant

to come the following day. Complainant went straight to the Office of ACB

and lodged a complaint on 27th January 1998.

3 On 28th January 1998, in the morning hours, P.W.-4, the

investigating officer, called for Panch witnesses and after completing the

pre-trap formalities, proceeded to the office of accused.

4 It is prosecution's case that when they reached the office, it was

complainant P.W.-1 and Shadow panch Dilip Chavan, who went inside to

trap accused. Dilip Chavan has not been examined because he is alleged to

have died before his evidence could be recorded.

5 According to prosecution, when P.W.-1 and Dilip Chavan

reached the office of accused, accused was not at his seat and had gone for

lunch. So they waited for half an hour and when accused returned to his

seat, both of them went to accused and P.W.-1 inquired about the telephone

connection. Accused informed P.W.-1 that telephone connection has already

been activated and gave the telephone number which complainant dialed

from the desk of accused and complainant's wife had answered on the other

side. Complainant was happy and asked his wife to call back but the wife of

complainant was unable to reach him and therefore, complainant asked

accused why his wife is unable to reach him. Accused told complainant that

he has done his work and complainant should do what he was supposed to

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do (that is pay Rs.300/- bribe as discussed). Complainant then gave

Rs.300/- with his right hand which accused received in his right hand and

put it in his hip pocket of pant. Thereafter, complainant went outside on the

pretext of having forgotten his vehicle keys and gave the agreed signal to

the raiding party, which was waiting near the gate. At that time, the raiding

party saw one man rushing out hurriedly from the backside of the building

and shadow panch came out and pointed out to that man as accused. Even

complainant, who was there, pointed out to accused as the person who had

taken the bribe. A Constable, who was part of the raiding party (not

examined) and who was near the gate caught accused but by then accused

removed the money from his hip pocket and threw it on the ground and

tried to push the money into the gutter. Both the hands of accused were

caught by P.W.-4 , who then brought accused inside the office. According to

prosecution, though money was not found on the person of accused, he is

still guilty.

6 After the raid was over, post-raid formalities were completed,

report was given by investigating officer based on which, a complaint came

to be lodged. After obtaining sanction, charge sheet was filed and

prosecution commenced.

7                Accused denied all charges and according to him the telephone


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connection had already been activated on 28 th January 1998. According to

accused, complainant -P.W.-1 and his mother, who was working in Zilla

Parishad, were very arrogant and rude and were quarrelsome. According to

accused, he was also not the person, whose job was to give telephone

connection and, therefore, when accused told complainant and his mother

that it was not with him to give any telephone connection, they got angry

and have lodged this false complaint. Further it was P.W.-1 who thrust some

currency notes in the hip pocket of accused when he was standing and

accused took out that notes from his pocket and threw it down on the floor,

that is how traces of anthracene marks were found on the right hand and

hip pocket of accused.

8. To drive home its charge, prosecution led evidence of four

witnesses, viz., Krishna Nivruti Patil, complainant as P.W.-1, Amar Narayan

Shinde, 2nd panch witness and who picked up the currency notes from the

road side as P.W.-2, sanctioning authority Arvind Parvatikar as P.W.-3 and

Sudhir R. Chougle, DY. S.P., ACB as P.W.-4.

9 I have perused the appeal memo, evidence and impugned

judgment with the assistance of the Learned Additional PP and the Learned

Counsel for respondent. I do not find any infirmity in the conclusion arrived

at by the Trial Court and in my view, no interference is called for.

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10               Before I proceed further, I have to note that, accused is working

in the local telephone exchange. It is not prosecution's case that telephone

exchange was deserted because no other employee of telephone exchange

has been called to give evidence. It is not prosecution's case that the spot,

from where the respondent was nabbed and the tainted money was picked

up, was deserted. No independent witnesses have been examined. As the

shadow panch also has expired, the entire evidence of demand and payment

hinges on the sole evidence of P.W.-1.

11 Let us see whether P.W.-1 was a reliable witness. In my view, the

Trial Court has rightly concluded that his evidence cannot be solely relied

upon. It is prosecution's case that the amount of Rs.300/- was demanded on

27th January 1998 for activating telephone connection at the residence of

the mother of complainant. Admittedly on 28 th January 1998, when P.W.-1

went to trap accused, accused informed P.W.-1 that his work was done and

telephone line has been activated. It is prosecution's case that admittedly,

accused gave telephone number also and P.W.-1 dialed that number and was

happy to hear his wife's voice on the other end but, when the wife tried to

call him back, she could not get the connection, at which stage, when he

enquired with accused, accused said he has to do what he has promised to

do. Prosecution is imputing that accused said unless he pays Rs.300/- as

bribe, no outside call can be made from the telephone provided at the

residence of mother of P.W.-1. After considering the evidence, it came to

light that (a) the wife of P.W.-1 has not been examined to prove that she was

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unable to get through/make outgoing calls; (b) there is nothing to indicate

how the wife knew the number, which she had to dial because P.W.-1 does

not state that accused gave him the number to be passed on to his wife to

call back. Nor complainant says how he knew the number to which, his wife

should call to speak to him and he passed on this number; (c) how did he

know within that few minutes that his wife was unable to call back because

P.W.-1 was in front of accused and his wife was at his mother's residence.

These are very valid questions which has not be dealt with in the evidence

of PW-1.

12 Therefore, it is difficult to accept the prosecution's case that

even after the telephone connection was activated, accused still demanded

money and took the tainted money.

13 P.W.-1 says after handing over the tainted money, accused

received it with his right hand and put it in hip pocket of his pant and then

P.W.-1 went outside on the pretext of having forgotten the vehicle keys and

gave the agreed signal to the raiding party and the raiding party

apprehended accused near the gate when accused was rushing out hurriedly

from the back side of the building. Nothing has come on record as to why

accused rushed out of the building when there was no raiding party in front

of him in the office because until that stage, accused was not aware, as it

appears from prosecution's evidence, that there was a trap laid for him. If

P.W.-1 was in front side of the building, how would he see accused coming

outside from backside of building, is not explained. If, both were on two

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opposite sides of building, how does P.W.-1 identify accused to the raiding

party, which is what P.W.-1 says. If P.W.-1 has identified and seen accused

rushing outside of the building from the backside, then, I ask myself why he

is silent about accused throwing out tainted money on the road and trying

to push it with his legs into the gutter.

14 There are many such lacunas and grey areas in the evidence of

P.W.-1, which are dealt with in the impugned judgment. For the sake of brevity,

I do not find it necessary to deal with all these points because in my view also,

from what has been discussed above, the evidence of P.W.-1 is not reliable. We

have to juxtapose the evidence of P.W.-1 with accused as stated in his defence

that it was P.W.-1 who thrust some currency notes in the hip pocket of pant of

accused when he was standing and accused took out those notes from his

pocket and threw it on the ground, and that is how anthracene marks were

found on his right hand and hip pocket.

15 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

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.

1. (2008) 10 SCC 450 Meera Jadhav

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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 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

2. (2014) 5 SCC 730 Meera Jadhav

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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

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.

16 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

3. 1996 SCC (cri) 972 Meera Jadhav

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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.

17 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.

18               Appeal dismissed.

19               The Government/Appropriate Authority shall pay over to

respondent - Ishwara Ramchandra Patil, within a period of 30 days from the

date of receiving a copy of this order, all pensionary or other benefits/dues

stalled, in view of pendency of this appeal. If during the service, in view of

this matter, the promotions or increments of accused have been affected, the

concerned Authority/ Department will pay, proceed and calculate on the

basis that there was no such matter ever on record against accused and will

factor in all promotions and increments that accused would have been

entitled to and all the amounts shall be accordingly paid within 30 days.

After 30 days interest at 12% p.a. will have to be paid by

Government/Appropriate Authority to respondent.

No authority shall demand certified copy for reimbursing the

benefits/dues as directed above. All to act on authenticated copy of this

order. Certified copy expedited.

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                                                (K.R. SHRIRAM, J.)




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