Bombay High Court
The State Of Mah vs Shed Hussain Syed Omar on 1 July, 2025
2025:BHC-AUG:16637
{1} CRI APPEAL 524 OF 2005
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 524 OF 2005
The State of Maharashtra ....Appellant
Versus
Shed Hussain Syed Omar
Age : 50 years, Occu.: Service,
R/o. Jalna. .....Respondent
(Ori. Accused)
.....
APP for Appellant : Mr.S.S.Dande
Advocate for Respondents : Mr. Joydeep Chatterji
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 20 JUNE, 2025
PRONOUNCED ON : 01 JULY, 2025
JUDGMENT :
-
1. In this appeal, State is assailing judgment and order dated
20-04-2005 passed by the learned Additional Sessions Judge, Jalna
thereby acquitting respondent from charges under Sections 7, 13(1)
(d) read with 13(2) of the Prevention of Corruption Act.
FACTUAL MATRIX
2. Complainant PW1 Sugrabi Aliyas Khan Pathan had approached
accused, Assistant Sub-Inspector, posted at Murgi Talav Police
Station to lodge complaint against accused Gulab Khan, who had
{2} CRI APPEAL 524 OF 2005
quarreled with her son and indulged in fight with him. Accused,
according to prosecution, refused to entertain complaint and rather
demanded Rs.1,000/- to register complaint. After bargain, accused
allegedly agreed to accept Rs.1,000/- in two installments of Rs.500/-
each and accordingly, complainant agreed to pay Rs.500/- on next
day. However, as complainant PW1 Sugrabi was reluctant to pay
bribe, she approached Anti Corruption Bureau (ACB) authorities,
who planned trap by arranging pancha, given necessary instructions.
Both PW1 Sugrabi and PW2 Vijaymala, shadow pancha were made to
approach accused, handover bribe amount on demand, relay pre-
determined signal and thereafter, trap was to be executed.
Accordingly, trap was laid and accused was apprehended. PW3
Bhokre, Investigating Officer carried out investigation and after
gathering sufficient evidence, he chargesheeted accused.
Accused was tried by learned Additional Sessions Judge, Jalna
vide Special Case PCA No.2 of 2002 wherein prosecution adduced
evidence of in all three witnesses and sought reliance on
documentary evidence. After hearing respective parties, learned trial
Judge drew points for determination, appreciated evidence adduced
by each of the side and finally reached to a finding that prosecution
failed to bring home the charges and hence, by judgment and order
{3} CRI APPEAL 524 OF 2005
dated 20-04-2005, acquitted accused. Feeling aggrieved by the same,
State has preferred instant appeal on receipt of leave to file appeal.
SUBMISSIONS
On behalf of appellant State :
3. Learned APP reiterated the foundational facts of the case as
stated above and criticized the judgment on the ground that learned
trial Court failed to appreciate the evidence adduced by the
prosecution in its correct perspective. He would strenuously submit
that complaint was duly noted, Investigating Officer had planned and
laid trap and necessary instructions were given to PW1 Sugrabi and
PW2 Vijaymala, who are consistent and lending support to each
other. He pointed out that, they both are consistent on the points of
demand, offer as well as acceptance. He pointed out that, on
directions of accused, PW1 Sugrabi has kept money in the bag and
tainted currency was recovered from the same. He also took this
Court through the cross-examination of PW1 Suigrabi and PW2
Vijaymala and would strenuously submit that their evidence in
examination-in-chief has remained undisturbed and intact. That,
there was questioning to complainant about money being brought or
not. Therefore, with such quality of evidence, it is his submission
{4} CRI APPEAL 524 OF 2005
that learned trial Court ought to have accepted the prosecution case.
That, evidence of the Investigating Officer, who was instrumental in
arranging the trap, executing the trap and apprehending the accused,
is a value addition to the evidence of PW1 Sugrabi and PW2
Vijaymala. Therefore, it is his submission that case of prosecution
was proved beyond reasonable doubt, however, the same has not
been considered and appreciated and rather accused has been
acquitted and hence, he questions the maintainability of the
impugned order and urges to set aside the same by allowing the
appeal.
On behalf of respondent :
4. In answer to above, learned counsel for respondent would take
this Court through very charge and would point out that prosecution
story and evidence on behalf of prosecution is ambiguous. That,
there is no evidence about any demand. He pointed out that very
PW1 complainant had not supported prosecution and therefore,
entire edifice of prosecution case had collapsed. That, even PW2
shadow pancha did not support wholeheartedly. On this point, he
took this Court through answers given by PW2 Vijaymala while
facing cross-examination. Learned counsel for respondent also took
{5} CRI APPEAL 524 OF 2005
this Court through the impugned judgment and would submit that
learned trial Court has touched each and every chapter of the
prosecution case and has tested the prosecution story on the anvil of
proving the case beyond reasonable doubt. That as crucial witnesses
like PW1 complainant and PW2 shadow pancha had not supported
prosecution, prosecution case got hit at the very bottom. That, it
was clear case of false implication out of annoyance for initiating
action by accused respondent against son of complainant by way of
chapter proceedings. Therefore, there was false reporting and
moreover, complainant failed to stick up to the prosecution case.
Lastly, he submitted that learned trial Court has extensively
dealt with evidence adduced by the prosecution, case advanced by
each of the side and as there was no error whatsoever, learned trial
Court refused to accept the case of prosecution. He also points out
that settled law, while dealing with appeal against acquittal, be taken
into account before interfering in the impugned judgment.
EVIDENCE BEFORE TRIAL COURT
5. In support of its case, prosecution has adduced evidence of
three witnesses. Sum and substance of their evidence is as under :
{6} CRI APPEAL 524 OF 2005
PW1 Sugrabai Aliyas Khan Pathan is the complainant. At
exh.20, she deposed as under :
" My son had lodged a complaint at Sadar Bazar P. Stn. We
had been to Sadar Bazar P. Stn. And enquired about the
complaint with the accused. Accused told us that they would
see about it after receipt of medical certificate. Accused told
me I would required to spend Rs.1000/-. I told him that I can
not afford to spend Rs.1000/-. I agreed to pay Rs.500/- to the
accused. I agreed to pay Rs.500/- on the next day. Thereafter
I made complaint to Anti Corruption Bureau. They reduced
my complaint in writing. They read over the contents to me.
The complaint now shown to me is the same. It bears my
signature. Contents therein are correct. It is at Ex.20. I
lodged the complaint as accused demanded an amount of
Rs.500/- in respect of taking action on the basis of our
complaint. Thereafter panch witness and myself went to our
house. After about 1/11/2 hours accused came to our house.
Myself and panch witness were inside our house when
accused came there I offered him money. He refused to accept
and asked me to come to Police Chowki. Accused and my two
sons went to Police Chowki. Myself and panch witness
followed them to Police Chowki. Again I offered amount to
the accused and he refused to accept. He told to give the
amount at Tahsil office. I again asked the accused to accept
the amount. He told me to put the amount in the bag. The
bag was kept on the ground. I kept the amount of Rs.500/- in
the bag. I again called the accused and was giving him money
{7} CRI APPEAL 524 OF 2005
for the purpose of ticked and other expenses when members
of raiding party came there and caught hold of accused. He
had asked about the panch witness. I told him that she was
my daughter-in-law. After the raid I left the place. It did not
happened that accused demanded Rs.500/-to me. The bag
was not in the hand of the accused when I inserted the
amount. Declared hostile and allowed to cross."
PW2 Vijaymala Bhimrao Popalwad is shadow pancha. At
exh.21, she deposed as under :
"On 30.1.2002 our superior officer asked myself and my
colleague Mr.Kazi to go Anti Corruption Bureau for some
confidential official work. Accordingly, we had been to ACB
office at about 6 p.m. They asked us to come on next day
morning at 6 a.m. Accordingly, on the next day morning we
remained present in ACB office. They gave us idea that they
wanted to lay down the trap and requested us to act as panch
witness. I was to act as panch no.1. The complainant was in
the office. They introduced the complainant with us and vice
versa. They also gave her complaint to verify the contents.
Complainant gave an amount of Rs.500/- to the ACB party.
They were 3 notes of 100 denomination each and 5 notes of
and 4 notes of 50 denomination each. The complainant had a
grievance that accused had demanded an amount of
Rs.1000/- and she had agreed to pay Rs.500/- on that day to
the accused. They had shown us the demonstration of
anthracene powder and the powder was smeared on the
{8} CRI APPEAL 524 OF 2005
notes handed over by the complainant. The tainted amount
was kept in a pocket and the packet was handed over to the
complainant. She kept it in her blouze. They gave us
necessary instructions in respect of raid. I was given
instruction to keep a close watch on the happening and
accordingly pre-trap panchnama was drawn.
Thereafter we left ACB office and went at the house of
the complainant. After about 2 hours accused came there. He
enquired whether complainant was in the house. The accused
asked the complainant whether she had made arrangement of
money. Complainant replied affirmatively. Then accused
asked her to come to Murgi Talav Police Chowki along with
amount of Rs.250/- required for expenses in Tahsil office and
also asked her to bring his money Rs.500/- The accused
proceeded ahead. Myself, the other panch and complainant
then went to Murgi Talav Police Chowki by a Rickshaw.
Accordingly the complainant took an amount of Rs.250/-
separately with her. When we reached to Murgi Talav Police
Chowki accused asked complainant whether she had brought
the money. She said yes. The accused then enquired about me
and complainant told that I was her daughter-in-law. Then
accused asked us to come to Tahsil office. Accused and two
sons of complainant went ahead to Tahsil office and we
followed them. We reached there at about 2.30 p.m. The
members of raiding party also followed us. Again near the
gate of Tahsil office, accused enquired about me. And
complainant told that I was his daughter-in-law. The accused
then asked whether complainant had brought Rs.500/- for
{9} CRI APPEAL 524 OF 2005
him and Rs.250/- towards expenses of Tahsil office. Accused
was having a bag he asked the complainant to insert the
tainted amount in the said bag. Accordingly complainant
inserted the tainted amount Rs.500/- in the bag of the
accused. She then handed over the amount of Rs.250/-
towards expenses of Tahsil to the accused. Thereafter the
complainant made the pre-determined signal to the raiding
party and members of raiding party rushed to the accused.
Cross-examination :
"I have stated before police that accused asked the
complainant whether she had made the arrangement of
money. I have stated before police that complainant replied
affirmatively. I have also stated before police that accused
told the complainant to bring an amount of Rs.250/- towards
expenses in Tahsil office and Rs.500/- for him. I cannot
assign any reason why these things are not in my statement
before police. I have not stated before police that at police
chowki accused asked the complainant whether she had
brought money. I have not stated before police that
complainant told the accused that she had brought the
amount. I have stated before police that in the police chowki
accused enquired about me and that complainant told that I
was her daughter-in-law. I can not say why it is not in my
statement before police. I have not stated before police that
when we reached to Tahsil office accused had asked the
complainant whether she had brought Rs.500/- and Rs.250/-
towards expenses in Tahsil office. I have also not stated
before police that complainant replied affirmatively. That she
{10} CRI APPEAL 524 OF 2005
had brought money."
ANALYSIS
6. Heard at the length. Sum and substance of prosecution case in
trial Court is that complainant PW1 Sugrabi was expecting accused
Police Officer i.e. respondent herein to initiate action against one
Gulab Khan, who had engaged in fight with her son and there were
cross complaints. It is further case of prosecution that she had
insisted for lodging complaint upon which accused respondent
allegedly asked her to pay bribe of Rs.1,000/- to take action. As she
was not willing, she has approached ACB authorities, who planned
and executed trap. Evidence of PW1 Sugrabi is at exh.19. Evidence
of PW2 Vijaymala, shadow pancha is at exh.21. They are two crucial
witnesses.
7. Sum and substance of argument of learned APP is that here
demand is proved both by PW1 Sugrabai, complainant and
sufficiently corroborated by PW2 Vijaymala, shadow pancha.
Secondly, there was acceptance of cash by accused in presence of
PW2 Vijaymala, shadow pancha. Therefore, sine qua non for proving
charges was available.
This Court has dealt and re-produced substantive evidence of
{11} CRI APPEAL 524 OF 2005
PW1 Sugrabi, who stepped in witness box and his evidence is at
exh.19, where she has narrated her story. It is emerging from her
evidence that accused allegedly visited house of complainant and
PW2 Vijaymala, shadow pancha claims to be present there when the
demand was raised. Therefore, both PW1 and PW2 needs to be
consistent. However, here on carefully going through record, it does
not transpire so. In complaint exh.20 at the instance of PW1 Sugrabi,
she has reported that accused informed her that she would require to
spent Rs.1,000/- to obtain medical certificate. She further reported
in the complaint that she agreed to pay the said amount and she paid
Rs.100/- to the accused that day and said that she would pay the
remaining amount later. Whereas in oral evidence at exh.19, she has
deposed about accused asking her to spent Rs.1,000/- and when she
expressed her inability to spend such amount, it was agreed between
them that she would pay Rs.500/- on the next day. Therefore, as
pointed out by learned counsel for respondent, complainant is not
deposing as per the contents of the report on the strength of which
complaint has been entertained.
PW2 Vijaymala, who is expected to corroborate, in her
evidence at exh.21, has stated that when she was in the company of
PW1 Sugrabi during the visit of accused to her house, he allegedly
{12} CRI APPEAL 524 OF 2005
made enquiry with complainant as to whether she had made
arrangement of money and then accused allegedly asked her to come
to Murgi Talav Police Station with additional amount of Rs.250/- but
towards expenses to be incurred at Tahsil Office.
In statement of PW2 Vijaymala before Police, she does not
speak about accused asking PW1 Sugrabi to bring the amount of
Rs.250/- towards expenses which would be incurred at Tahsil Office.
On cross-examination to this extent, she is unable to assign any
reason as to why her statement is silent about accused putting up
demand of Rs.500/- for him and Rs.250/- towards expenses to be
incurred at Tahsil Office.
Therefore, as stated, PW2 Vijaymala is not lending support to
PW1 Sugrabi. There is no evidence that in presence of PW2
Vijaymala, shadow pancha, accused had questioned complainant as
to whether she brought amount of Rs.500/- towards his payment and
Rs.250/- towards expenses to be incurred at Tahsil Office.
8. Another crucial aspect, which is emerging, as pointed out that
by the learned counsel for respondent is that, PW1 Sugrabi and PW2
Vijaymala are also not consistent about acceptance. According to
PW1 Sugrabi, accused had, after making demand, directed PW1
{13} CRI APPEAL 524 OF 2005
Sugrabi to keep bribe amount in the bag. PW1 Sugrabi also claims
that she followed such instructions and she herself kept tainted
currency in the bag, which was on the ground. Whereas PW2
Vijaymala, shadow pancha stated that PW1 Sugrabi inserted currency
in the bag which was with accused. Therefore, as rightly pointed out,
even on the point of acceptance PW1 Sugrabi and PW2 Vijaymala are
not consistent. PW1 Sugrabi says that amount was inserted on
direction of accused when the bag was on the ground. Whereas
statement of PW2 Vijayamala is distinct and she stated about
inserting amount in the bag of accused. Even otherwise there is no
acceptance and it is a case of rather putting the money in the bag
wherever the bag was i.e. either on the ground or in possession of
accused. This inflicts severe blow to prosecution case because such
evidence does not suggest any acceptance. Resultantly, as pointed
out by learned counsel for respondent, evidence of prosecution, more
particularly, evidence of PW1 Sugrabi and PW2 Vijaymala does not
lay credence to the story of prosecution on the point of demand as
well as acceptance. Therefore, on crucial point, prosecution story
has not been made worthy of credence.
9. Learned trial Court has discussed each of the points raised by
{14} CRI APPEAL 524 OF 2005
the learned APP as well as learned counsel for defence. The
prosecution witnesses are not consistent on material points for the
reasons stated in above paragraphs. Therefore, there is doubt about
both demand as well as acceptance. For above reasons and there
being no merits in the appeal, it deserves to be dismissed.
Accordingly, following order is passed.
ORDER
Criminal Appeal is dismissed.
( ABHAY S. WAGHWASE )
JUDGE
SPT
