Bombay High Court
The State Of Mah. And Ors vs Trimbak Madhavrao Waghmare on 29 July, 2025
2025:BHC-AUG:19879
Cri.Appeal.835.2005
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 835 OF 2005
The State of Maharashtra,
Through Anti-Corruption Bureau,
Latur. ... Appellant
(Orig. Complainant)
Versus
Trimbak S/o. Madhavrao Waghmare,
Age : 44 years, at present residing
Sajja Gaundagaon, Tq. Udgir,
Dist. Latur. ... Respondent.
(Orig. Accused No.1)
.....
Mr. S. M. Ganachari, AGP for Appellant - State
Mr. H. I. Pathan, Advocate for Respondent
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 16 JULY 2025
PRONOUNCED ON : 29 JULY 2025
JUDGMENT :
1. State is hereby questioning the judgment and order dated
30.08.2005 passed by learned Special Judge/Additional Sessions
Judge, Latur in Special Case No. 1 of 1991 acquitting respondents
from charge of offence under sections 7, 13(1)(d) read with section
13(2) of Prevention of Corruption Act.
PROSECUTION CASE IN BRIEF IN TRIAL COURT IS AS UNDER
2. Complainant's aunt Kewalbai held agricultural land
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which had a well. She intended to install electric motor for pumping
water, for which she required 7/12 extract carrying entry regarding
well and also entry in the revenue record to that extent. She
accordingly had applied. On her behalf her nephew complainant PW1
Tukaram took follow up by visiting Tahsil office and he too made
another application to issue the document. It is the case of
prosecution that, to issue 7/12 extract accused initially demanded
Rs.500/- and on negotiations it brought down to Rs.400/-. Accused
put up demand to pay Rs.200/- on Monday i.e. on 19.02.1990 and
remaining amount asked to be paid after work is over. PW1 Tukaram
as was not willing to pay bribe, he approached ACB authorities,
lodged report, followed by laying of trap by engaging independent
panch and issuing necessary instructions to both, complainant and
panch to go together and to offer bribe on demand and relay signal.
Accordingly, after drawing pre-trap panchanama, both approached
accused. However, accused no.1 though raised demand, directed
currency to be paid to accused no.2. Accused no.2 accepted the
currency and accused were apprehended and finally tried by learned
Special Judge, Latur, who was pleased to acquit them. Hence, the
instant appeal.
SUBMISSIONS
3. Sum and substance of arguments advanced by the
learned APP is that, accused no.1 is a Talathi, whereas, accused no.2
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is his acquaintance and though a private person, he used to accept
bribe on behalf of accused no.1. Here, there is demand which is
categorically reported and even deposed in the testimony by PW1
Tukaram in his evidence at Exh.79. That, shadow panch, who had
accompanied him, has also deposed about accused no.1 demanding
bribe and at the time of it was being handed over, he directed it to be
paid to accused no.2. That, both these witnesses i.e. complainant PW1
and shadow panch PW2 Bhimrao are consistent. That, initial amount
of Rs.200/- was already accepted from PW1 Tukaram to the extent of
which PW1 Tukaram has categorically stated. Learned APP pointed
out that, in presence of PW2 Bhimrao accused no.1 directed amount
to be handed over to accused no.2. Thus, there was both convincing
and cogent evidence regarding demand and acceptance. Both of them
were lending support to each other on the core of prosecution case,
but the same has not been considered and appreciated by learned
trial Judge.
4. Taking this court the observations of Hon'ble learned
trial court in paragraph 20 and would submit that, trial court has
misread and misinterpret the evidence of complainant and shadow
panch while recording finding that they are not consistent. Learned
APP would pose a question when there was no ill intention, why
accused no.1 asked shadow panch to leave. Therefore, according to
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him, all these circumstances ought to have been correctly
appreciated, but according to him, the same has not been done.
5. Taking this court through the answers given by accused
nos.1 and 2 under section 313 of Cr.P.C., he would submit that,
question nos. 20 and 21 put to accused no.2 were duly answered
which clearly established the case of prosecution. That, even
statement of accused no.2 recorded immediately after the trap,
clearly indicates that he acted at the instance of accused no.1. That,
in spite of such quality of evidence, learned APP would submit that,
surprisingly the trial court has disbelieved the prosecution case and
hence he urges for interference by allowing the appeal.
6. Learned counsel for respondent original accused
supported the findings of learned trial Judge and would submit that
the conclusion drawn by the trial court is the correct view that could
emerge with such quality of evidence. It is doubtful whether there
was any demand at all. Rather, he pointed out that, evidence of
complainant categorically shows that, being previously acquainted
complainant and accused no.2 were lending financial support to each
other as and when required. He pointed out that, complainant himself
admitted to that extent in paragraph 13 of cross-examination. He
further pointed out that, shadow panch was not present nor was in
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the company of complainant and accused at relevant time. Thus,
there is no corroboration to the testimony of complainant which is
essential. That, while concluding it is submitted that evidence on
behalf of prosecution was full of doubts and therefore, learned trial
court committed no error whatsoever in acquitting the accused and
he prays to dismiss the appeal for want of merits.
EVIDENCE ON RECORD
7. In trial court, prosecution seems to have rested its case
on the evidence of following witnesses :-
PW1 Tukaram is the complainant. His evidence at Exh.79.
PW2 Bhimrao is the shadow panch.
PW3 Honaji Jawale is the Sanctioning Authority.
PW4 Shankar Gute, is the Investigating Officer and his
evidence is at Exh.104
SUM AND SUBSTANCE OE EVIDENCE OF PW1 AND PW2
8. Re-appreciated and reanalyzed the evidence. PW1
Tukaram is the complainant. PW2 Bhimrao is the shadow panch.
PW3 Honaji Jawale, is sanctioning authority and PW4 Shankar Gutte
is the Investigating Officer. In view of nature of the complaint,
evidence of complainant and that of shadow panch is crucial. It is
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settled principle that complainant being interested party, law
requires corroboration to his testimony, more particularly from
shadow panch, who is expected to be party to the demand as well as
acceptance.
On visiting evidence of PW1 Tukaram, in his examination-
in-chief, he has reiterated that he approached accused on 15.02.1990
on behalf of his aunt for 7/12 extract and claims that accused put up
demand of Rs.500/- for the said work. On negotiations, brought down
the figure at Rs.400/- and directed complainant to pay Rs.200/- in
advance on Monday i.e. 19.02.1990 and remaining after the work.
So complaint Exh.80 was lodged with Anti Corruption Bureau, who
planned trap. It has come in his evidence that, he and shadow panch
approached office of Talathi and then claims to have made inquiry
with accused and further claims accused inquiring him whether
amount is brought as demanded. That, accused also questioned
complainant as to who shadow panch accompanying him and
thereafter they went to hotel to take tea and then going to cloth shop
of one Babu Yellale and again going to take tea stall and on the way
they meet accused no.2. It is his case that, at that time, accused no.1
told complainant to pay amount to accused no.2. While they were
entering Marathwada footwear, accused no.1 asked PW2 Bhimrao to
stay back and only he himself, accused no.1 and accused no.2 entered
the shop. He further deposed that, in the shop accused no.1 asked
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him to deliver amount of Rs.200/- to accused no.2 and accordingly it
was done and accused no.2 accepted the currency. After which, both
accused left the shop and he gave signal, after which raiding party
apprehended both accused.
While under cross, in paragraph 13 complainant has
admitted his acquittance with accused no.2 and accused no.2 to be a
businessmen and that whenever accused no.2 needed money, he took
it from him as well as whenever he himself needed money he took it
from accused no.2. In further cross-examination he admitted that,
after approaching accused no.1 in the office, he allegedly told that
after election, 7/12 extract be collected. Surprisingly, in further
cross, he admitted that after taking tea in the hotel, accused no.1
alone left the hotel, saying that, he is going. He further answered
that, accused no.1 entered the shop of Babu Yellale and he and panch
followed accused no.1 and spent 10 minutes in the cloth shop. He
answered that in said shop again accused told him to come after
election. He again answered that, only accused no.1 left the cloth
shop also and started walking and that time accused no.2 met him.
He claims that, thereafter again accused no.1 took accused no.2 with
him in the hotel for tea and he answered that thereafter again he
himself and panch, both too entered the hotel. Witness does not speak
about asking accused also to join them in the hotel. He further
Cri.Appeal.835.2005
answered, after spending 25 to 30 minutes in the hotel, accused no.1
alone entered footwear shop. Then he answered in paragraph 14 that
accused no.2 asked him to pay amount of credit as he was in need of
Rs.500/- to Rs.1000/- to go for shopping at Nanded. He further
answered that, he told accused no.2 that, he does not have such
amount and he only posses Rs.200/- and after conversation, he gave
it to accused no.2. Paragraph 16 are omissions, but the same are not
to material.
9. PW2 Bhimrao in his evidence at Exh.92 deposed about
being summoned to ACB office, introduce to complainant, hearing his
case causing signature over the complaint. He further deposed about
the procedure of application of anthracene and instructions issued by
Investigating Officer. That, he was instructed to accompany
complainant and to be watchful and PW1 being provided with mini
tape recorder to record conversation. He further deposed that at
around 8:45 a.m., he and PW1 Tukaram went near the house of one
Narba Gunale and entered the office, which was on upper story. He
further stated that, accused took them to have a tea near the hotel.
After tea, witness deposed that accused no.1 started walking and
went to cloth shop and he himself and PW1 Tukaram following him.
He further stated that, accused had asked cloth shop owner Babu
Yellale to verify whether this witness was really maternal uncle of
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PW1 and accordingly Babu making inquiry with him. (evidence of
PW1 is silent on this aspect). He further stated that, PW1 Tukaram
told accused that as told by him, he has brought the amount and to
take the amount of Rs.200/- otherwise it would be spent. Thus,
apparently, from such version of this witness, it is clear that even
before making demand by accused no.1, PW1 himself has offered
bribe. It is further stated that, at that time, accused demanded
Rs.400/- and that he should give whole amount. This is contrary to it
PW1 has already stated that only Rs.200/- were paid on Monday and
remaining Rs.200 were to be paid after work is to be done. Witness
further stated that, while he and PW1 Tukaram were following
accused, accused no.2 met them and again PW1 Tukaram and he
himself returned to the said hotel. He deposed that both accused took
tea, after which accused no.1 and PW1 Tukaram went inside the hotel
while he himself and accused no.2 sitting in the hotel itself. He
further deposed that, both accused and PW1 asked him to wait there
only, but he claims that in spite of it, he followed them to the footwear
shop and while he was on the staircase, there were talks between
accused no.1 and PW1 Tukaram. What was the actual conservation is
not stated by this witness. He stated that, PW1 Tukaram took out
amount from watch pocket and headed it over to accused no.2, who
accepted it, followed by signal relayed by PW1 Tukaram and raiding
party approached him.
Cri.Appeal.835.2005
Answers given in paragraph 9 of cross examination of
this witness, to which attention of this court is invited, are relevant.
It is noticed that, this witness in cross examination admitted that,
during their visit to the office of accused, he told them that work
would be done after election is over. He admitted that, in the office,
accused no.1 had not raised any demand. He also admitted that,
during their first visit to the hotel for taking tea also, there was no
demand. He further admitted that they were not instructed to follow
accused no.1. He answered that after taking tea in the hotel, accused
no.1 started proceeding alone and that in the cloth shop, he and PW1
Tukaram went on their own accord and they were not called by
accused, even when he went to tea stall for the second time. He fairly
admitted that he does not know what talks took place between PW1
Tukaram and accused no.1.
ANALYSIS
10. Therefore, on complete and careful scrutiny of evidence
of above evidence which is crucial, it does emerge that these
witnesses are not consistent. It is conspicuously emerging from the
answers given in cross examination, more particularly that of PW2
Bhimrao that there was no demand from accused no.1 either at the
office or at the tea stall or shops. Secondly, answers given by PW2
Bhimrao while under cross examination and clear admission that, he
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did not hear the conservation between accused no.1 and PW1
Tukaram, casts a serious doubt about demand or acceptance. What is
stated by PW1 Tukaram about demand of Rs.400/- being made and
Rs.200/- agreed to be paid on Monday and remaining after the work
is over is not finding place in the testimony PW2 Bhimrao, who claims
to have heard the story from complainant during first visit to ACB
office. From the answers given by PW2 Bhimrao coupled with his
admission that they themselves on their own accord followed accused
and that they were not asked to join clearly shows that desperate
attempt was made to make the trap successful. PW1 Tukaram seems
to have on his own accord offered bribe, even when there was no
demand saying that accused should accept Rs.200/- or else it would
be spent. For above reasons, the very aspect of demand has come
under shadow of doubt. Admittedly, accused no.1 has not accepted
the cash.
11. Though case of prosecution is that on behalf of accused
no.1, accused no.2 accepted, there is no foundation to show that
accused no.2 acted at the instance of accused no.1, being fully aware
that the amount accepted by him was illegal gratification. On the
contrary, PW1 Tukaram himself has admitted in paragraph 13 that
there were previous relations between him and accused no.2 and
they both were raising money from each other whenever required.
Cri.Appeal.835.2005
He has stated that accused no.2 had borrowed Rs.500/- to Rs.1000/-,
but PW1 Tukaram informing his inability to meet such demand and
rather he could pay Rs.200/-, which he was equipped with. With such
quality of evidence, even if there is acceptance of cash by accused
no.2, it has not been proved beyond reasonable doubt, accused no.2
was fully aware that the amount accepted by him was nothing but
bribe. Although the owner of the cloth shop and the owner of the
footwear shop were crucial witnesses, they were not examined.
12. On complete re-appreciation of the evidence, this court is
more than convinced that, evidence on behalf of prosecution in trial
court against accused persons is patently weak and fragile. It is
unreasonable to expect conviction with such quality of evidence. The
view taken by learned trial Judge is the only view that could emerge
from such evidence. As no case for interference is made out, I pass
following order.
ORDER
The criminal appeal is dismissed.
(ABHAY S. WAGHWASE, J.)
Tandale
