High Court

Legal Reasoning

{1} CRI APPEAL 226 OF 2005IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL APPEAL NO. 226 OF 2005The State of MaharashtraThrough Public Prosecutor,High Court, Bench at Aurangabad….Appellant VersusShri Rajendra Bhanudas PatilP.H.C.B.1030, Age: 47 years, Occu.: Service, Yermala Out-post,Taluka Kallam, Dist.Osmanabad.…..Respondent …..APP for Appellant : Mr.K.K.NaikAdvocate for Respondent : Mr.Joydeep Chatterji ….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 27 JUNE, 2024 PRONOUNCED ON : 05 JULY, 2024 JUDGMENT :- 1. State is hereby questioning the acquittal awarded by learnedtrial Judge to present respondent by its judgment and order dated20-12-2004 in Special Case ( A.C.) No. 1 of 2000. FACTS LEADING TO THE TRIAL 2. Present respondent was made to face trial on the premise thathe, being a Police Head Constable, demanded bribe of Rs.700/- for {2} CRI APPEAL 226 OF 2005returning keys of the four wheeler vehicle owned by complainant andfor not taking action for plying excess passengers and violating trafficrules. Complainant PW2 Ankush was not willing to meet theillegal demand and therefore, he lodged report with ACB office on28–10-1999. ACB authorities accordingly planned and arranged trap,Panchas were called, complainant and Panchas were explainedprocedure of trap. Complainant and shadow pancha approachedaccused. Accused demanded bribe amount and kept in his rexinecover affixed to the two wheeler. He was apprehended by raidingparty, who was waiting in lay. Accused was arrested and afterinvestigation, accused was chargesheeted for commission of offenceunder Sections 7, 12, 13(1)(d) read with section 13(2) of thePrevention of Corruption Act. At trial, prosecution has adduced evidence of in all sixwitnesses and also relied on complaint, pre-trap panchanama, post-trap panchanama etc. Defence of accused is of false implication andthrusting bribe for not taking action. 3.After appreciating oral and documentary evidence and onhearing both sides, learned trial Judge reached to a finding that {3} CRI APPEAL 226 OF 2005prosecution failed to establish the charges and acquitted the accusedby its judgment and order dated 20-12-2004 resulting into presentappeal by State. SUBMISSIONSOn behalf of State :4. Learned APP would apprise this Court about the status of theparties and the nature of the complaint. According to him, accusedwas a Policeman. That complainant owned a four wheeler vehicle toply passengers from Yermala to Kallam by appointing Driver. Thaton 24-10-1999, accused took away the keys of vehicle. That driverreported it to complainant and therefore, complainant approachedaccused with a request to return the keys. That time accuseddemanded Rs.900/- for returning the keys and for not taking action.Learned APP pointed out that finally, accused agreed to acceptRs.700/-. However, complainant approached ACB and they plannedtrap and action.5.Learned APP pointed out that PW2 Ankush, complainant andPW3 Gopinath, shadow pancha are both examined. That they weretogether when they approached accused. That accused demanded {4} CRI APPEAL 226 OF 2005bribe amount and it was paid and accepted by accused in presence ofpancha witness. That immediately thereafter, accused wasapprehended and was found in possession of tainted currency.Therefore, according to learned APP, trap was successful. That therewas proper sanction and as such all necessary ingredients werefulfilled, but still learned trial Court did not accept the case ofprosecution and according to him, learned trial Court erred inacquitting the accused. Hence, he prays for re-appreciating theevidence and to allow the appeal. On behalf of Respondent Accused :6.Canvassing in favour of judgment passed by the learned trialCourt, learned Counsel for respondent accused submits thatprosecution has miserably failed to prove the charges. He pointedout that demand has not been proved. That accused had notaccepted the amount, rather amount was kept by complainant in therexine bag. According to learned counsel for respondent, materialwitnesses like driver of the vehicle and witness, who allegedlycollected and took out tainted currency from the rexine cover are notexamined. That versions of complainant and pancha witnesses arenot consistent and therefore, learned trial Court rightly disbelieved {5} CRI APPEAL 226 OF 2005prosecution case. He further pointed out that Sanctioning Authorityhas not applied its mind and has rather accorded sanction inmechanical manner. Therefore, according to him, prosecution storywas hopelessly weak on all counts and therefore, according to him,learned trial Court committed no error in acquitting the accused. Helastly pointed out that accused being acquitted, there is strongpresumption in favour of accused and no good case or ground beingmade out, he prays to dismiss the appeal. EVIDENCE ON BEHALF OF PROSECUTION IN TRIAL COURT7.In support of its case, prosecution has adduced evidence of inall six witnesses. Sum and substance of their evidence is as under : PW1 Anup Kumar Singh is Superintendent of Police and he isSanctioning Authority. He testified that he received file alongwithdraft sanction. He studied the file and granted sanction exh.35.PW2 Ankush Nivratti Late, complainant stated that he ownsJeep bearing no. MH-25 A-343, which was used for plying passengersby employing driver. That on 24-10-1999, his driver came and toldthat accused retained the keys of the Jeep and demanded Rs.900/- {6} CRI APPEAL 226 OF 2005towards illegal gratification. He approached accused and finally heagreed to minimize the amount from Rs.900/- to Rs.700/-. But heapproached ACB and lodged report exh.37. That pre-trappanchanama drawn in presence of Panchas. That when he andPancha went to accused, accused asked whether amount is brought.That he removed it from pocket and kept it in the front side of petroltank in the rexin cover. That accused counted it and kept it. Thatraiding party apprehended accused.PW3 Namdeo Gopinath Sasane, shadow Pancha also statedthat he was called to ACB office, introduced to complainant, madeaware of complaint and given instructions to accompany complainantat the time of demand. That he and complainant went. That accusedcame on Motorcycle alongwith another Policeman and askedcomplainant whether he brought amount. That complainantremoved the money from pocket and tendered it to the accused, whoaccepted it and counted it. That raiding party apprehended accused.PW4 Bajrangsingh Ratansingh Thakur (ASI) is the PoliceOfficial, who registered crime. PW5 Nagnath Ghalappa Gaikwad isDy.S.P. PW6 Kalidas Shankarrao Suryawanshi (P.I.), is Investigating {7} CRI APPEAL 226 OF 2005Officer. ANALYSIS 8. After considering submissions of both sides, here it is noticedthat there is charge of demand of Rs.700/-. PW2 Complainant’sevidence shows that bribe amount was demanded first to driver, buthe is not examined. PW2 Complainant’s evidence shows that he andPancha both went towards Yermala Outpost to pay bribe amount ondemand. But PW2 Complainant’s evidence shows that accused wasnot present and it was learnt that he had been towards ST Standside. Therefore, PW2 complainant and PW3 Pancha proceeded inthat direction. According to PW2 complainant, they saw accused andone P.C.Pawar coming on Motorcycle from ST Stand side. Accusedwas rider but complainant deposed that on seeing accused, hehimself signaled accused to stop and take the vehicle off the road.Therefore, complainant has apparently made accused halt. Furthercomplainant has taken out money and himself kept it in the rexinecover affixed on the petrol tank of the two wheeler. Therefore, eventhere is no acceptance. It further appears that this witness has beencross-examined by learned APP himself finding him not supporting.Thus, complainant has not apparently supported prosecution. {8} CRI APPEAL 226 OF 20059.Evidence of PW3 Namdeo, shadow pancha shows that he is notsupporting complainant because according to him accused acceptedthe currency allegedly tendered by accused. Very complainant hadspoken about he himself inserting the amount in the rexine cover butas stated above, pancha gave different version about accusedaccepting the currency notes. 10.PW5 Bajrangsingh, Dy.S.P. has made Panch No.2 Narute to takeout the currency notes from rexine cover and even according to PW3shadow pancha witness, second Pancha namely Narute removed theamount, but in Cross-examination itself PW3 shadow Pancha furtheradmitted that Dy.S.P. asked accused to remove amount which he hadkept. Therefore, witnesses are not consistent. 11.Cross-examination of PW1 Singh (S.P.), Sanctioning Authorityshows that contents of sanction order are identical to draft sanctionorder and the Sanctioning Authority has merely filled the blanks inhis own handwriting. Therefore, it is doubtful whether there isindependent application fo mind by such authority.12.Therefore, the above discussed material clearly shows that case {9} CRI APPEAL 226 OF 2005of prosecution is not free from doubt. PW2 Ankush, Complainant hasnot supported prosecution case. Version of PW3 Namdeo, shadowpancha witness and PW2 Ankush, complainant are not consistent.Acceptance is not proved. Material witnesses are not examined.Therefore, no fault can be found in the judgment of the trial Courtacquitting the accused. No case being made out for disturbing thejudgment, I proceed to pass following order. ORDER Criminal Appeal No.226 of 2005 is dismissed. ( ABHAY S. WAGHWASE ) JUDGE SPT