[Cites 13, Cited by 0]

Bombay High Court

The State Of Maharashtra vs Rajaram S/O. Ranba Zende on 2 December, 2025

2025:BHC-AUG:33192
                                                                     Cri.Appeal.948.2018
                                                -1-

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD

                            CRIMINAL APPEAL NO. 948 OF 2018

            The State of Maharashtra,
            through P.S.O. Police Station,
            Shirur Anantpal, Tq. Shirur Anantpal,
            Dist. Latur.                                         ... Appellant

                       Versus
            Rajaram s/o Ranba Zendre,
            Age: 56 years; Occu. Service,
            R/o Shirur Anantpal, Dist. Latur.                    ... Respondent

                                             .....
            Mr. S. A. Gaikwad, APP for Appellant/State
            Mr. M. D. Shinde, Advocate for Respondent
                                             .....
                                           CORAM : ABHAY S. WAGHWASE, J.
                                   RESERVED ON : 28 NOVEMBER 2025
                                PRONOUNCED ON : 02 DECEMBER 2025

            JUDGMENT :

1. Judgment and order dated 16.05.2017 passed by learned

Special Judge in Special (ACB) Case No. 03 of 2011 is the subject

matter of challenge on behalf of State in this appeal.

2. In nutshell, prosecution was launched against present

respondent on report Exhibit 46 received from one Hariram Madaje,

who reported that his own brother Bharat was addicted to liquor and

under its influence, he used to trouble his own wife, brothers and

entire family and therefore, complainant allegedly approached Cri.Appeal.948.2018

accused, who was ASI of the police station, Shirur Anantpal. It is the

case of prosecution that, for taking action against Bharat, there was

demand of bribe of Rs.1,500/- and on refusal to meet demand, it is

alleged no action as expected would be taken. Rs.500/- were paid

upfront and remaining Rs.1,000/- was decided to be paid later on. As

complainant was not willing to pay bribe, he approached ACB

authorities i.e. PW4, who planned, arranged and executed trap and

after apprehending the accused, charge-sheeted him for offence u/s 7,

13(1)(d) and u/s 13(2) of Prevention of Corruption Act ,1988.

In support of its case, apart from relying on documentary

evidence like complaint, panchanamas, etc, prosecution adduced oral

evidence of complainant PW1; shadow panch PW2; sanctioning

authority PW3 and investigating officer PW4.

3. After appreciating the same and hearing each of the side,

learned Trial Judge vide judgment and order dated 16.05.2017

concluded that prosecution failed to prove the case beyond

reasonable doubt and thereby acquitted the accused. Hence, Instant

Appeal.

SUBMISSIONS

4. Learned APP would point out that on receipt of report

from PW1 independent panchas were summoned by the investigating

officer and on introducing them to complainant, they were made to Cri.Appeal.948.2018

get demand verification done and after getting convinced, final trap

was laid and also successfully executed and therefore, according to

him, there is both, demand as well as acceptance.

5. Learned APP very candidly pointed out that, here,

unfortunately, complainant himself has not supported prosecution

and was required to cross examine. However, he added that mere for

want of support of complainant, case of prosecution was not affected,

more particularly, according to him, when complainant in cross has

admitted his signature over the complaint and therefore, said

complaint is got proved through investigating officer and has

evidentiary value.

6. He further submitted that, independent panch witness

like PW2 has lend support to the story of prosecution and he has

narrated about demand during pre-trap verification as well as

demand and acceptance post trap. According to him, evidence of PW2

finds support from very investigating officer and thus, according to

him, case of prosecution stood proved beyond reasonable doubt.

Relying on the judgment of the Hon'ble Apex Court in the case of

Neeraj Dutta v. State (Govt. of NCT of Delhi) , reported in (2023) 4

SCC 731, he prays to allow the appeal by setting aside the impugned

judgment and order of acquittal.

Cri.Appeal.948.2018

7. In answer to above, learned counsel for original accused

submit that, complainant himself has retracted. He was illiterate and

had not given any written complaint. That, he had denied the

contents of complaint noted on his narration. That, moreover, it has

come on record that at the time of alleged demand and acceptance,

there was no work pending with accused. That, very sanctioning

authority had admitted that there was no work pending with accused

and therefore, according to him, there was no question of putting up a

demand. He further added that, it is a case of thrusting to falsely

implicate. For said reasons, he justifies the judgment and order of

acquittal and urges to dismiss the appeal for want of merits.

He relied on the judgment of this Court in the case of

State of Maharashtra v. Mohan Madhusudan Daskhedkar , reported

in [2017 All.M.R (Cri.) 2298].

8. In the light of above submissions, evidence is re-

appreciated and reanalyzed. Going by the nature of complaint,

testimonies of complainant and more particularly that of shadow

panch is crucial. He being independent witness, it is incumbent upon

prosecution to prove its case beyond reasonable doubt that there was

demand as well as acceptance. In the light of such requirements,

evidence is put to analysis.

Cri.Appeal.948.2018

Evidence of PW1 is at Exhibit 31. On appreciating the

same, it is emerging that, in initial part of the chief, he has narrated

about his brother Bharat to be liquor addicted and troubling them.

But, according to him, his brother Govind has lodged report against

Bharat and he denied report from his side. According to him, as

accused ASI was making proper inquiry, he had no occasion to go to

ACB and he flatly denied demand of Rs.1,500/- made by accused and

part amount of Rs.500/- being paid to the accused. He also denied

arrest of accused in presence of panchas.

9. Therefore, finding him not supporting, learned APP after

seeking permission of the Court, cross examined very complainant

and in paragraph no.4 he has answered that he is uneducated, he

cannot sign; he denied officer asking him to sign and also denied

knowing the contents of Exhibit 32. He also denied demand of

Rs.1,500/- raised by accused for taking action against his brother.

Since thereafter he had denied to every suggestion of learned APP.

While under cross at the hands of defence, he admitted

that, his brother had executed undertaking at police station to

behave properly and that he would not indulge in consumption of

liquor. He also admitted that chapter proceedings initiated against

his brother and initial report against his brother was filed on

11.12.2010. He also admitted about not giving report against his Cri.Appeal.948.2018

brother at police station Shirur Anantpal. Lastly, he admitted that

no proceedings were pending against his brother on 18.01.2011.

10. PW2 shadow panch in his evidence at Exhibit 44, testified

about visiting ACB office with another panch Ibrahim and being

introduced to Hariram, who narrated them about his brother

troubling them under influence of liquor and for taking action, ASI

had demanded Rs.1,500/-. In his testimony he has testified about

verification of demand done in his presence, which is at Exhibit 49.

Then he narrated in paragraph 9, the events of actual trap at the

hotel Pratiksha where accused was to meet them. He stated that, in

the hotel, accused asked complainant whether he brought money and

after it was answered in affirmative, he was directed to hand it over

and it was duly accepted and kept in the pant pocket, followed by

relay of signal and apprehension of accused.

Above witness is subjected to extensive cross, wherein, he

admitted that, on application of Govind, accused had already taken

action against Bharat and forwarded report under section 107 of

Cr.P.C. He admitted that, in the verification panchanama, it was

noted that this witness introduced by the complainant to accused as a

money lender. He admitted that he has no occasion to read each and

every panchanama over the cause signature.

Cri.Appeal.948.2018

11. PW3 is the sanctioning authority and PW4 is the

investigating officer. Here, there is no issue about validity of sanction

and non application of mind.

PW4 is the investigating officer, who carried out

investigation and charge-sheeted accused. His evidence is at Exhibit

79, wherein he narrated the entire events that took place since

lodgment of complaint by PW1 till apprehension of accused and

charge-sheeting him.

While under cross he has admitted that, he has not seen

the application filed by complainant in police station against his

brother. He also admitted about action being initiated against

complainant's brother on the strength of complaint dated 11.12.2010

itself and the report already submitted and brother of accused

executing bond and thus, also admitted that complaint is already

disposed of. He admitted that, he had not come across any written

complaint filed against Bharat, who is brother of complainant after

complaint dated 11.12.2010. He also admitted that, at the time of

verification panchanama Exhibit 49, he had instructed informant to

introduce panch as money lender. Therefore, text appearing in

panchanama to that extent is an improvement. He also admitted

that, on the day of alleged initial payment of Rs.500/- by complainant

to accused, Suresh Londhe and Moinoddin Shaikh was not present.

Cri.Appeal.948.2018

However, in spite of so, unfortunately these two persons who were

best witnesses to the very demand, are not examined. He admitted

that, contents of Exhibit 46 which is report by complainant is

reproduced word to word in Exhibit 47 verification panchanama.

Rest is all denial.

12. Therefore, here, it is emerging that, firstly complainant

has retracted and has denied lodging any complaint against his

brother. He has flatly denied contents of the report or signature over

it. This is evident from paragraph 4 while learned APP has cross

examined complainant himself. This witness has flatly denied

demand of Rs.1,500/- being raised for taking action against his

brother or Rs. 500/- be taken by way of initial payment. Though PW2

has testified about accompanying complainant for verification and

also accompanying him at the time of trap, this witness in cross has

admitted that no work of complainant was pending with accused.

13. Even sanctioning authority including very investigating

officer in their cross examinations have admitted that action of

chapter proceedings was already taken against brother of

complainant for which entire exercise of lodging report and

conducting investigation regarding initiating action against brother

of complainant was undertaken. Therefore, the crucial question

which arises when almost all witnesses are admitting that there was Cri.Appeal.948.2018

no work pending with accused, the very question of motive to raise

demand does not arise.

14. Learned APP has relied on judgment of the Hon'ble Apex

Court in the case of Neeraj Dutta (Supra). The observations in

paragraph 67 and 68, which are relevant are as under :-

"67. Therefore, this Court cautioned that even if a witness is treated as "hostile" and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the Accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness"

testimony if corroborated by other reliable evidence.

68. What emerges from the aforesaid discussion is summarised as under :

(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the Accused public servant Under Sections 7 and 13(1)(d)(i) and (ii) of the Act.

Cri.Appeal.948.2018

(b) In order to bring home the guilt of the Accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.

(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.

(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:

(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.

(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence Under Section 13(1)(d)(i) and (ii) of the Act.

Cri.Appeal.948.2018

(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence Under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, Under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and inturn there is a payment made which is received by the public servant, would be an offence of obtainment Under Section 13(1)(d) and (i) and

(ii) of the Act.

(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the Accused and in the absence of rebuttal presumption stands.

(f) In the event the complainant turns 'hostile', or has died Cri.Appeal.948.2018

or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the Accused public servant.

(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d)(i) and (ii) of the Act.

(h) We clarify that the presumption in law Under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature."

15. Recently, while deciding Criminal Appeal No.1779 of

2010 on 23.02.2023, in the case of Shankarlal Sharma v. State of

Madhya Pradesh, the Hon'ble Apex Court has analyzed the above

judgment and held that, the Constitutional Bench has reiterated that

mere acceptance or receipt of legal gratification would not make it an

offence under sections 7 or 13(1)(d) of P.C. Act. The Hon'ble Apex

Court further observed that when complainant does not support the Cri.Appeal.948.2018

prosecution, the demand made by accused can be otherwise proved

even on the basis of circumstantial evidence and while saying so, the

Constitutional Bench has reiterated that the offer by the bribe giver

and demand by the public servant has to be proved by the

prosecution as a fact in issue. The contents of paragraph 5 of the

above judgment, in appeal, are as under :-

"5. A Constitution Bench judgment of this Court in a recent decision dated 15th December, 2022 in Criminal Appeal No.1669 of 2009 (Neeraj Dutta v. State (Govt. of NCT of Delhi) holds that when the complainant does not support the prosecution, the demand made by the accused can be otherwise proved by the prosecution even on the basis of circumstantial evidence. While saying so, the Constitution Bench has reiterated that the offer by the bribe giver and the demand by the public servant have to be proved by the prosecution as a fact in issue. The Constitution Bench reiterated that mere acceptance or receipt of illegal gratification without anything more would not make it an offence under Section 7 or Section 13(d) of the PC Act. The Constitution Bench also held that only when a proper demand is made by a public servant and is accepted by the bribe giver and in turn, the amount tendered by the bribe giver is received by the public servant, it would be an offence under Section 13(1)(d) and in particular Clauses (i) and (ii) thereof. The Constitution Bench reiterated the well settled law that presumption under Section 20 does not apply to Clauses

(i) and (ii) of Section 13(1)(d) of the PC Act."

Cri.Appeal.948.2018

Therefore, here, even if complainant has retracted, he

seems to have resiled from the very inception of the testimony. No

part of his testimony shows that there was any demand of illegal

gratification. He has outright denied any complaint being lodged at

his instance. Therefore, the foundational fact of initial demand itself

is not proved by prosecution. In view of above observations of the

Hon'ble Apex Court in appeal referred above, even as facts

foundations are not proved, in my opinion, the very essence of

demand has not been substantiated. Therefore, shadow panch and

Investigating Officer have allegedly supported the prosecution, in

view of demand itself not being proved, case of prosecution cannot be

accepted.

16. Similarly, in the testimony of sanctioning authority

including Investigating Officer, there is admission in cross that there

was no work pending with accused so as to hold that he was

motivated to set up demand. These witnesses have admitted that,

prior to the date of complaint, action was already shown to be

initiated against the brother of PW1, for which it is alleged that there

was demand of bribe.

17. Learned counsel for respondent has placed on record

judgment of this court in Criminal Appeal No. 360 of 2004, in the Cri.Appeal.948.2018

case of The State of Maharashtra v. Mohan Madhusudan

Daskhedkar, holding that, complainant having interacted and not

supported the prosecution case, benefit of doubt was rightly held to

be extended by trial court.

18. Further, the observations of the Hon'ble Apex Court in the

case of Ghurey Lal v. State of U.P., (2008) 10 SCC 450, the factors

which are required to be borne in mind by the appellate court while

hearing an appeal against acquittal, more particularly in 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 Sections 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 Cri.Appeal.948.2018

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;

Cri.Appeal.948.2018

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."

Likewise, above law is reiterated even in the case of

Murlidhar & Ors. v. State of Karnataka reported in (2014) 5 SCC 730

: [2014 ALL SCR 1571] as well as in the case of Ramesh Babulal

Doshi v. State of Gujarat, reported in 1996 SCC (Cri) 972.

For above reasons also, this court refrains from

substituting its own view by upsetting the findings recorded by

learned trial court, more particularly when even on merits, case of

prosecution is rendered doubtful for reasons stated above. Therefore, Cri.Appeal.948.2018

I do not find any reason for interference in the impugned Judgment

and order passed by the learned trial Court. Hence, the following

order :