Bombay High Court
Siddarth S/O Laxman Gajghate vs State Of Maharashtra Thr. Anti ... on 23 October, 2024
2024:BHC-NAG:12017
Judgment
306 apeal419.06
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.419 OF 2006
Siddarth s/o Laxman Gajghate,
aged about 33 years,
occupation : agriculturist,
r/o Indapur, tahsil Bhiwapur,
district Nagpur. ..... Appellant.
:: V E R S U S ::
State of Maharashtra,
through Anti Corruption Bureau,
Civil Lines, Nagpur. ..... Respondent.
=================================
Shri A.D.Dangore, Counsel with Shri S.B.Trivedi,
Advocate for the Appellant.
Mrs.Sneha Dhote, Additional Public Prosecutor for the
Respondent/State.
=================================
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 15/10/2024
PRONOUNCED ON : 23/10/2024
JUDGMENT
1. By this appeal, appellant (accused No.2 Siddarth)
has challenged judgment and order dated 30.6.2006
passed by learned Judge, Special Court for ACB, Nagpur
(learned Judge of the trial court) in Special Case
No.23/1999.
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2. By the said judgment impugned, learned Judge of
the trial court convicted accused No.2 Siddarth for
offence punishable under Section 12 of the said Act and
sentenced to undergo rigorous imprisonment for one
year and to pay fine Rs.500/-, in default, to undergo
further rigorous imprisonment for three months.
3. The other accused, who was accused No.1 and
was convicted, also filed appeal bearing Criminal Appeal
No.389/2006 against the said judgment impugned.
However, during pendency of the said appeal, accused
No.1 died and, therefore, his appeal stood abated.
4. Brief facts of the prosecution as emerge from
police papers and recorded evidence are as under:
The deceased accused was serving as Forest
Guard. Kishor Shambharkar (the complainant) was
constructing his house by using wooden logs. While he
was constructing his house, he received a message from
the deceased accused through one Ghude that he was
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called and, therefore, the complainant approached the
deceased accused. The complainant was informed that
he used wooden logs for construction of the house by
bringing the same from forest without permission. The
deceased accused demanded Rs.1000/- from him on
which the complainant paid Rs.500/- and agreed to pay
balance amount Rs.500/- after 2-3 days. As the
deceased accused allowed the complainant to take
wooden logs from forest, the complainant took wooden
poles required for resting of the roof of his house. On
20.7.1998, when the complainant had been to bus stop,
the deceased accused met him and told him that a
criminal case would be filed against him as he used
wooden poles by bringing from the forest. The
complainant informed him that he had already paid
Rs.1000/- for not filing the case. On which, the
deceased accused demanded Rs.1500/- from him. As
the complainant was not willing to pay the said amount,
he approached the office of the Anti Corruption Bureau
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at Nagpur (bureau) on 29.7.1998 and lodged a
complaint.
5. After receipt of the complaint, on the next day i.e.
30.7.1998, officers of the bureau called two panchas.
The complainant narrated the entire incident to panchas
and panchas verified the same from the complaint and,
thereafter, the complainant produced tainted amount of
Rs.1000/- before officers of the bureau. The officers of
the bureau shown them demonstration as to
phenolphthalein powder and sodium carbonate. The
said solution was applied on the tainted notes and notes
were kept in shirt pocket of the complainant.
Accordingly, pre-trap panchanama was drawn. After the
pre-trap panchanama, the complainant and pancha
No.1 proceeded towards the office of the deceased
accused. The deceased accused demanded the amount
and asked accused No.2 Siddarth to accept the same.
Accused No.2 Siddarth accepted the same. On getting
signal, other raiding party members caught the
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deceased accused and accused No.2 Siddarth. The
amount was recovered from accused No.2 Siddarth.
The hand wash of the deceased accused and accused
No.2 Siddarth and the complainant was collected. The
solution as to shirt pocket of the complainant and pant
pocket of accused No.2 Siddarth was also collected.
After obtaining a sanction against the deceased
accused, chargesheet was submitted against him and
accused No.2 Siddarth.
6. In support of the prosecution case, the
prosecution examined in all seven witnesses namely
Kishor Shambharkar vide Exhibit-10 (PW1), the
complainant; Balakdas Bante vide Exhibit-21 (PW2), the
Shadow Pancha; Rajesh Dongare vide Exhibit-29 (PW3),
pancha No.2; Ravinath Roy vide Exhibit-31 (PW4), the
Sanctioning Authority; Hemant Kumar Pande vide
Exhibit-34 (PW5), the Constable of the bureau; Laghu
Bhude vide Exhibit-38 (PW6), and Purshottam
Choudhary vide Exhibit-39 (PW7), the Trap Officer.
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7. Besides the oral evidence, the prosecution placed
reliance on documents mainly complaint Exhibit-11,
seizure memos Exhibits-12 and 13, pre-trap
panchanama Exhibit-22, seizure memo Exhibit-23, the
post-trap panchanama Exhibit-26, sanction Exhibit-32,
japtinama by the Forest Department Exhibit-41, report
Exhibit-42, First Information Report Exhibit-43, Chemical
Analyzer's Report Exhibit-44.
8. After considering the evidence, learned Judge of
the trial court held and convicted accused No.2 Siddarth
as the aforesaid.
9. Heard learned counsel Shri A.D.Dangore for
accused No.2 Siddarth and learned Additional Public
Prosecutor Mrs.Sneha Dhote for the State.
10. Learned counsel for accused No.2 Siddarth
submitted that as far as accused No.2 Siddarth is
concerned, he is charged under Section 12 of the said
Act. He submitted that the entire prosecution case is
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rested upon the evidence of complainant PW1 Kishor
Shambharkar and Shadow Pancha PW2 Balakdas Bante.
As far as the complainant is concerned, he specifically
admitted that the amount was given to accused No.2
Siddarth because the trap was failed. He further
admitted that accused No.2 Siddarth was not aware that
the amount given to him was bribe amount. He further
submitted that even the evidence of the Shadow Pancha
shows that he did not support the prosecution case as
far as involvement of the accused is concerned. He
denied that accused No.2 Siddarth demanded the
amount and, thereafter, the complainant took out the
amount and delivered the same to accused No.2
Siddarth. During cross examination by learned APP
also, nothing transpired to show that accused No.2
Siddarth was knowing that it was bribe amount and he
accepted the same knowingly that it was bribe amount.
Thus, as far as ingredients of offence to prove the
charge under Section 12 of the said Act is not
established. There is no evidence to show that accused
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No.2 Siddarth abetted the deceased accused to demand
the amount and accepted the same. Learned Judge of
the trial court has not considered these aspects and
convicted accused No.2 Siddarth.
11. Per contra, learned Additional Public Prosecutor
for the State submitted that though complainant PW1
Kishor Shambharkar and Shadow Pancha PW2 Balakdas
Bante have not supported the prosecution case, the
evidence of Pancha No.2 PW3 Rajesh Dongare shows
that the amount was recovered from accused No.2
Siddarth. The Chemical Analyzer's Report substantiates
the allegation that the hand wash and pant pocket wash
of accused No.2 Siddarth contains contents of
phenolphthalein powder and sodium carbonate.
12. Thus, the evidence in the nature of circumstantial
evidence establishes involvement of accused No.2
Siddarth.
13. After hearing both sides and perusing the
evidence on record and what has been called by learned
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Judge of the trial court in the judgment impugned, I am
of a view that so far as the prosecution case against
accused No.2 Siddarth is concerned, it stands on very
shaky grounds and, therefore, there is a scope of
making interference with findings recorded by learned
Judge of the trial court as against accused No.2
Siddarth.
14. As far as the evidence of complainant PW1 Kishor
Shambharkar is concerned, it shows that the entire
allegations are made by him as to the demand against
the deceased accused who was serving as a Forest
Guard. As per allegations, the complainant brought
wooden logs from the forest for construction purpose.
The deceased accused accepted amount Rs.1000/- from
him for not taking the action. Subsequently, again he
demanded Rs.1500/- for not filing a criminal case and,
therefore, the complainant approached the office of the
bureau and lodged the report. As per the evidence of
the complainant, on day of the trap, he along with
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pancha No.1 approached the deceased accused. During
communication, the deceased accused demanded the
amount and at the relevant time accused No.2 Siddarth
came there and the deceased accused asked him to pay
the amount to accused No.2 Siddarth. On the say of the
deceased accused, accused No.2 Siddarth accepted the
amount and kept in his pant pocket. During cross
examination, the complainant specifically admitted that
accused No.2 Siddarth was not aware that the amount
given to him was bribe amount. He further admitted
that the amount was given to accused No.2 Siddarth
before the trap was failed. One vital omission, that the
complainant did not state before the police that accused
No.2 Siddarth was asked to give Rs.1000/- to him as
directed by the Forest Guard. As the complainant
admitted that he has not stated before the police, the
omission is proved. The another omission that he
stated before the police as to the talk between the
deceased accused and accused No.2 Siddarth to accept
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Rs.1000/- is not stated before the officer of the bureau
while giving the statement.
Thus, the evidence as to involvement of the
accused as to the demand and acceptance is an
improvement by complainant PW1 Kishor Shambharkar.
Another witness is Shadow Pancha, who has not
supported the prosecution case as far as involvement of
accused No.2 Siddarth is concerned. During the cross
examination, the said Shadow Pancha denied
suggestion that accused No.2 Siddarth demanded the
amount from the complainant and the complainant had
taken out the amount from his shirt pocket and
delivered it to accused No.2 Siddarth .
Thus, as far as the demand by accused No.2
Siddarth on the say of the deceased accused is
concerned, the same is neither supported by the
complainant nor by the Shadow Pancha.
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The evidence of the Shadow Pancha is concerned,
it is only to the extent that the amount was recovered
from accused No.2 Siddarth. During the cross
examination, he admitted that he does not remember
whether he stated before the police that the enquiry
was made by the officer of the bureau as to bribe
amount was kept and the complainant informed that the
bribe amount was kept in the pant pocket of accused
No.2 Siddarth.
15. The evidence of Trap Officer PW7 Purshottam
Choudhary, as to involvement of accused No.2 Siddarth,
is only to the extent that after the trap, he made
enquiry with pancha and the complainant and he was
informed that the amount is with accused No.2
Siddarth. The cross examination of the Trap Officer
shows that the demand was not by accused No.2
Siddarth. Complainant PW1 Kishor Shambharkar has
not stated in his statement that accused No.2 Siddarth
called him back side of the forest office. He has not
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enquired with the complainant as to in whose
possession the bribe amount was and, therefore, the
statement of the complainant nowhere shows that the
bribe amount was kept by accused No.2 Siddarth under
his lungi.
16. Thus, from the evidence of aforesaid witnesses
and circumstance in the nature of post-trap
panchanama Exhibit-26, it can be seen that as far as
accused No.2 Siddarth is concerned, there was no
demand by accused No.2 Siddarth. He accepted the
amount on the say of the deceased accused and he was
not knowing that the amount accepted by him was bribe
amount. Even the evidence of investigating officer
shows that the complainant never complained that the
demand was made by accused No.2 Siddarth.
17. Thus, from the evidence, it reveals that accused
No.2 Siddarth was neither aware that the amount
accepted was gratification amount. Accused No.2
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Siddarth is charged under Section 12 of the said Act,
which deals with punishment for abetment of offences.
18. Section 12 of the said Act, reads thus:
12. Punishment for abetment of offences. -
Whoever abets any offence punishable under this
Act, whether or not that offence is committed in
consequence of that abetment, shall be
punishable with imprisonment for a term which
shall be not less than three years, but which may
extend to seven years and shall also be liable to
fine.
19. Section 12 of the said Act seeks to punish
abetment of offences punishable under Sections 7 and
11 of the said Act. What amounts to abetment of
offence has not been defined in the said Act and,
therefore, one has to take recourse to provisions of
Section 107 of the Indian Penal Code (under Section 45
of BNS Act). Under the said Section, abetment of a
thing can be done in 3 different ways : firstly, by
instigation; secondly, by engaging oneself in a criminal
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conspiracy; and thirdly, by intentionally aiding a person
in doing an act which is an offence.
20. In the instant case, the first two ways are not
concerned through which abetment is possible. It is not
the prosecution case that accused No.2 Siddarth
instigated or compelled the deceased accused to
demand the amount or take the amount as a bribe nor
there is a case of conspiracy and, therefore, it is the
case of aiding as accused No.2 Siddarth accepted the
amount. So, this case would fall under 3 rd category of
Section 107 of the Indian Penal Code.
21. On going through the evidence, it reveals that
accused No.2 Siddarth was not aware while accepting
the amount that it was a bribe amount. There was no
knowledge to accused No.2 Siddarth that the amount
accepted for the deceased accused was a bribe amount.
22. When a person is charged with an offence of
abetting commission of offence, the burden is upon the
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prosecution to prove the same intention of the abettor
as the main accused was having.
23. The evidence is absolutely lacking in this case.
What is apparent is that a person who is accused of
abetment of commission of offence may accept
something for and on behalf of the main accused in
good faith without having an apprehension that the
amount accepting is really a bribe amount. Therefore, it
is necessary for the prosecution to establish that the
abettor has shared the same intention as the main
accused, which is absent here.
24. Learned Judge of the trial court, as can be seen
from the judgment impugned in the appeal, has not
considered the aforesaid material aspects while
convicting accused No.2 Siddarth and the punishment
imposed under Section 12 of the said Act cannot be
sustained in law.
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306 apeal419.06
25. In the circumstances, the criminal appeal
deserves to be allowed, as per order below:
ORDER
(1) The Criminal Appeal is allowed.
(2) The judgment and order dated 30.6.2006 passed by
learned Judge, Special Court for ACB, Nagpur in Special
Case No.23/1999 is hereby quashed and set aside.
(3) Accused No.2 Siddarth is acquitted for which he was
convicted and sentenced.
Appeal stands disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge ...../-
Date: 24/10/2024 11:01:10
