Bombay High Court
State Of Maha vs Santosh Sitaram Patil on 6 May, 2024
2024:BHC-AUG:9629
{1} CR APPEAL NO. 556 OF 2004
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 556 OF 2004
The State of Maharashtra
Through Anti Corruption Bureau,
Jalgaon, District Jalgaon. ....Appellant
Versus
Santosh Sitaram Patil
Age: 47 years, Occu.: Service,
Police Head Constable B.No.1765,
Posted at Marawad Police Station,
Tq.Amalner, District Jalgaon. .....Respondent
(Ori. Accused)
.....
APP for Appellant : Mr.D.J.Patil
Advocate for Respondent : Ms.Sakshi Kale h/f. Mr. Ajeet B. Kale
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 23 APRIL, 2024
PRONOUNCED ON : 06 MAY, 2024
JUDGMENT :
-
1. State is taking exception to the judgment and order passed
by the learned Special Judge, Amalner, District Jalgaon dated
15-05-2004 in Special Trial No.14 of 1999 by which respondent has
been acquitted from offence under Section 7, 13(1)(d) read with
13(2) of the Prevention of Corruption Act (PC Act).
{2} CR APPEAL NO. 556 OF 2004
FACTS IN BRIEF LEADING TO TRIAL
2. Complainant PW1 Raghunath was called for enquiry on receipt
of complaint from one Hilal Babulal Patil. In that connection,
complainant visited Marwad Police Station. There, accused, a Police
Officer, apprised about complaint and demanded Rs.3,000/- for
sending favourable report. On mediation of one Madhukar Patil,
amount was brought down from Rs.3,000/- to Rs.400/-. However, as
complainant was not willing to pay bribe, he approached Anti
Corruption Bureau (ACB), Jalgaon and lodged report exh.20 on 20-
12-1996. ACB authorities arranged pancha and planned trap. Both
complainant and pancha were apprised about the procedure of
application of anthracene powder and they were given necessary
instructions to be followed at the time of trap. Accused was
approached on 21-12-1996. Accused took complainant to a hotel
namely Chaya Tea House to take tea and there he made demand. He
also accepted the amount and therefore, raiding party, who was
waiting in lay, apprehended accused and further procedure was
undertaken and after completing investigation, accused has been
tried before learned trial Court.
Learned Special Judge, Amalner conducted trial and on
appreciating oral and documentary evidence held that prosecution
{3} CR APPEAL NO. 556 OF 2004
failed to establish the charge and acquitted accused by judgment and
order dated 15-05-2004. Hence, the appeal.
SUBMISSIONS
On behalf of appellant :
3. Learned APP submitted that prosecution has established the
charges by adducing evidence of in all four witnesses i.e. PW1
Raghunath, complainant, PW2 Indrasing Devasing Patil, Pancha, PW3
Bipinkumarsing Bulandsing, Sanctioning Authority, PW4 Hiraman
Abhiman Kankhare, Investigating Officer. That prosecution had
proved demand as well as acceptance. That sanctioning authority
was also examined, who after application of mind, has granted
sanction. According to learned APP, there were repeated demands
by accused, accused himself approached complainant to his village,
therefore, there was ample evidence about demand of illegal
gratification. He pointed out that evidence of complainant was
supported by pancha witness and Investigating Officer. Therefore, all
necessary ingredients for attracting charges were available. That
evidence of prosecution witnesses remained unshaken in cross-
examination. Therefore, prosecution had succeeded in establishing
the guilt, but the learned trial Court has failed to appreciate and
{4} CR APPEAL NO. 556 OF 2004
consider said evidence and also failed to consider and apply correct
law. Therefore, he prays to allow appeal by setting aside impugned
judgment and order.
On behalf of Respondent :
4. Per contra, learned Counsel for respondent accused submitted
that case of prosecution was not proved beyond reasonable doubt.
She pointed out that at the outset, evidence of complainant is not
supported by shadow pancha, who allegedly accompanied
complainant at the time of trap. She pointed out that said pancha
witness is reported to be dead. That another pancha witness, who
examined, had no knowledge about actual occurrence. She pointed
out that in case of such nature, complainant being interested witness,
it is unsafe to rely on his testimony and therefore, corroboration is
necessary, which is missing here. She pointed out that there are
repeated demands, but no complaint was lodged by PW1
complainant at any point of time. She pointed out that firstly even
demand is not proved and secondly acceptance is also not proved
because money was found lying on the floor in a tea stall. Learned
Counsel pointed out that crucial witnesses i.e. PW1 Namdeo Koli and
other two Persons, who were also said to be party to apprehension,
{5} CR APPEAL NO. 556 OF 2004
are not examined. Therefore, evidence of prosecution was patently
weak. She pointed out that on the contrary, defence has been
successful in rebutting presumption by adducing evidence of DW1
Budha Onkar More. She further pointed out that here sanctioning
authority had not applied its mind and had granted mechanical
sanction. All such aspects were correctly appreciated by the learned
trial Court and according to her, the conclusion reached at by learned
trial Court is most possible view, which could emerge and as such she
submits that there is no merit in the appeal and consequently, she
prays to dismiss the appeal.
GIST OF EVIDENCE
5. PW1 Raghunath Harchand Patil, complainant gave evidence
that there was quarrel with Hilal Baburao Patil of which Hilal lodged
complaint at Marwad Police Station as well as before learned Judicial
Magistrate First Class, Amalner. Accused Santosh Patil called him and
two others for enquiry to Marwad Police Station. He read over the
complaint and demanded Rs.3,000/- for doing favour. Finally, on
negotiations, accused agreed to accept Rs.400/-. But as complainant
was not willing to give bribe, he lodged complaint exh.20. He and
shadow pancha, as per arranged trap, went to pay bribe at Marwad
{6} CR APPEAL NO. 556 OF 2004
Police Station. Thereafter, while sitting in a hotel, accused demanded
bribe, it was paid by complainant and accepted by accused and
raiding party caught accused.
6. PW2 Indrasing Devasing Patil, pancha stated that he was
directed to visit ACB office on 21-12-1996. There, he met
complainant, nature of complaint was apprised to him and he and
complainant were made aware of the procedure and he accompanied
complainant to Marwad Police Station. From there, they went to a
hotel. Complainant reached there. Predetermined signal was given
by complainant and accused was caught.
7. PW3 Bipinkumarsing Bulandsing, Sanctioning Authority
deposed about receiving papers, ascertaining the same and according
sanction exh.31.
8. PW4 Hiraman Abhiman Kankhare is the Investigating Officer,
who narrated all the steps taken by him during investigation till
chargesheeting accused.
{7} CR APPEAL NO. 556 OF 2004
ANALYSIS
9. Sum and substance of accusations is that complainant was
summoned to attend Police Station on receiving some complaint and
during enquiry, it is alleged that to issue favourable report, accused
demanded Rs.3000/-. Finally, on negotiations, accused agreed to
accept Rs.400/- and therefore, there was demand and the amount
being accepted, there was acceptance.
In support of such case, prosecution has adduced evidence of
complainant PW1 Raghunath Patil, who reiterated the contents of the
complaint. That at Marwad Police Station, accused demanded
Rs.3,000/-, he was unable to give such amount and therefore,
through mediation of one Madhukar Patil in subsequent visit, amount
was brought down to Rs.400/-. Thereafter, he approached ACB
authority and lodged complaint. On instructions of ACB authorities,
he and shadow pancha visited Marwad Police Station. That day
accused took them to Chaya Tea Stall and there accused demanded
money and it was duly handed over and thereafter, predetermined
signal was relayed.
In cross-examination he admitted that he does not know that
accused already submitted report to the Court. He answered that he
learnt that accused had already submitted report to the Court against
{8} CR APPEAL NO. 556 OF 2004
him but he denied that getting annoyed by the same, he lodged
complaint against accused on 20-12-1996. Omissions are brought
about visiting Police Station on the next day. He answered that
accused visited his village and at that time, he was accompanied by
another Constable namely Kurkure. He admitted that, thrice he went
to Marwad Police Station before he approached to ACB and he
candidly admitted that he did not inform about demand by accused.
10. PW2 Indrasing Devasing Patil is pancha, who claims to have
accompanied ACB office alongwith another pancha Namdeo Koli and
there, ACB authorities introduced them to complainant, apprised
them about nature of complaint and he too signed the complaint
exh.20 as a pancha. Thereafter, procedure of application of
anthracene powder to the currency was explained to them. In
paragraph no.5, he stated that both panchas, complainant and
raiding party were proceeded towards Marwad Police Station. He
stated that complainant was instructed to disclose identity of
Namdeo Koli as his relative. According to him, complainant and
Namdeo entered the hotel near Marwad Police Station and after
taking water in the hotel, they proceeded towards premises of
Marwad Police Station. After 2-3 minutes, they left the premises of
{9} CR APPEAL NO. 556 OF 2004
Marwad Police Station and they both sat near a Pan shop. After 30
minutes, three persons came from Police Station, one of them was
having bag in his hand and he was wearing suit-pant, whereas rest
were having Payjama. The person having a bag in his hand gave
signal to the complainant to come in the hotel and thereafter,
complainant went in the hotel. After 30 minutes of reaching hotel,
complainant gave predetermined signal and raiding party entered the
hotel and raiding party asked Namdeo Koli as to who asked the bribe
money and at that time, Namdeo Kolil pointed finger towards the
accused and he was apprehended. Accused threw the currency on
the ground and raiding party asked this witness to lift the currency.
While in cross-examination, he answered that the complainant
did not have talk with raiding party after coming out of Police
Station premises. He stated that he was accompanied one Police
Officer but he is unable to give his name. He admitted that inner
portion of the hotel was not clearly visible from the place where he
was standing. He answered that complainant gave signal from the
counter of the hotel. He admitted that in his presence, ACB
authorities did not record statements of two persons, who were
accompanying accused. He answered that currency notes were lying
7 to 8 feet away from the hotel counter. Rest all is denial.
{10} CR APPEAL NO. 556 OF 2004
11. Therefore, what transpires on close scrutiny of evidence of
PW1 Raghunath, complainant and that of PW2 Indrasing, shadow
pancha is that on receiving complaint against PW1 complainant, he
was called by a Police Officer at Marwad Police Station, who was
officiating there. According to complainant, he and two others visited
Marwad Police Station. Exactly on which date they visited Marwad
Police Station has not been stated by PW1 complainant. He admits to
that extent in the examination-in-chief itself. According to him,
accused demanded Rs.3,000/- for sending favourable report and as
he was not having such amount, he disagreed to such demand. He
stated that he one Madhukar Patil has mediated and the demand was
settled at Rs.400/-. He stated that thereafter, accused visited his
village and demanded money but on which date and which place of
his village accused demanded money, is not given. He speaks about
visiting ACB, Jalgaon on 20-12-1996 i.e. after more than two months
after first visit to Marwad Police Station. He claims that he has
already stated in the evidence that he and pancha Namdeo Koli
visited Marwad Police Station that day and they and accused went to
hotel for tea. Therefore, Namdeo Koli was his companion but he
seems to have expired and therefore, his evidence is not recorded by
Police. PW2 Indrasing, who is examined by the Court, appears to be
{11} CR APPEAL NO. 556 OF 2004
second pancha, but he was mere party to first interaction with
complainant while apprising about complaint as well as explaining
procedure of trap in ACB office. Infact Namdeo Koli was instructed
to accompany complainant and he accompanied complainant to
Marwad Police Station and then to Chaya Tea House. Therefore, PW2
Indrasing does not have direct knowledge about conversation, which
took place between complainant and accused in hotel. PW2
Indrasing has candidly admittedly that events in the hotel were not
visible to him. Further evidence of PW2 Indrasing goes to show that
from hotel, complainant, Namdeo Kolil and accused returned to
Marwad Police Station. They spent 30 minutes there and thereafter,
two unknown persons accompanied accused. Investigating Officer
did not record their statements. Therefore, who were those two
persons, who gave signal to complainant is a mystery. Here except
evidence of PW1, there is no supportive evidence.
As rightly submitted by learned Counsel for the respondent in
case of such nature, law requires independent corroboration to the
testimony of complainant. Here Namdeo Koli, who accompanied
complainant to Marwad Police Station and was an independent
witness, is apparently not available. Therefore, demand is not
cogently proved. Cross-examination of PW1 Raghunath as well as
{12} CR APPEAL NO. 556 OF 2004
evidence of PW2 Indrasing suggested that currency was lying on the
floor. Therefore, there is no witness, who had seen acceptance. No
independent witness had seen acceptance of amount. Resultantly,
both demand as well as acceptance come under shadow of doubt.
12. On visiting evidence of PW3 Bipinkumarsing, Sanctioning
Authority, it is emerging that except his testimony about receiving
draft sanction order, there is nothing to show that there was
independent application of mind. Therefore, trial Court has correctly
held that sanction is not valid. Apart from this, aspects of demand as
well as acceptance have come under shadow of doubt. Such crucial
aspects have not been cogently proved by the prosecution. Material
witnesses are not examined or available. Hence, no fault can be
found in the conclusion reached at by the trial Court. No case being
made out on merits, appeal deserves to be dismissed. Accordingly, I
proceed to pass following order :
ORDER
Criminal Appeal No.556 of 2004 stands dismissed.
( ABHAY S. WAGHWASE )
JUDGE
SPT
