StateMr. R v. Gore
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-1- Cri.Appeal.277.2002IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 277 OF 2002The State of Maharashtra… Appellant (Orig. Complainant)VersusAshruba Ramji Ragde, Age : 55 years, Occu. : Labour, R/o. Palaskheda Dabhadi, Tq. Bhokardan, Dist. Jalna.… Respondent (Orig. Accused)…Mr. N. D. Batule, APP for Appellant – StateMr. R. V. Gore, Advocate for Respondent... CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 13th MARCH, 2024PRONOUNCED ON : 8th APRIL, 2024JUDGMENT : 1.State is hereby questioning the judgment and order ofacquittal dated 19.01.2002 passed by learned Special Judge, Jalnain Special Case No. 03 of 1998, acquitting the accused from offencepunishable under sections 7, 9 and 13(1)(d) read with section13(2) of the Prevention of Corruption Act, 1988 (P.C. Act).FACTS LEADING TO TRIAL ARE AS UNDER2.In nutshell prosecution case is that, accused Ashrubawas Police Patil of village Palaskheda and as such, he was a publicservant. One Sugrabai wife of Ganesh filed complaint to police -2- Cri.Appeal.277.2002station, Hasnabad, alleging that, one Ganesh Dongre took awaysome construction material. On receipt of said complaint, inquirywas conducted and communication dated 08.09.1997 was issued toaccused Police Patil to keep said Ganesh Dongre present at PoliceStation. Accused and said Ganesh Dongre approached PoliceStation. Accused Ashruba took said Ganesh on the pretext of teaand said that he will settle the matter by telling Police HeadConstable Joshi and for that purpose he demanded Rs.200/-. Whenthere was disinclination to meet the demand, accused Ashrubaallegedly threatened to see that he would be put in jail. Therefore,said Ganesh approached ACB authorities, who entertained thecomplaint, planned the trap, sent complainant Ganesh withshadow panch and accordingly, accused Ashruba was caught afteraccepting the bribe by ACB authorities and after investigation, hewas charge-sheeted and tried. Learned trial court examined the evidence of PW1Ganesh - Complainant, PW2 Ramchandra – Shadow Panch, PW3 PISheshrao Suryawanshi – Investigating Officer and PW4 Shivaji –Sanctioning Authority and on appreciating the oral anddocumentary evidence, learned trial court held that, prosecutionfailed to prove the case beyond reasonable doubt and therebyacquitted the accused form all charges by judgment and orderdated 19.01.2002. -3- Cri.Appeal.277.2002SUBMISSIONSOn behalf of Appellant - State :-3.Learned APP has questioned the judgment and order ofacquittal on the ground that, here, there is clear demand of illegalgratification by accused, who was Police Patil of the village. He wasdirected by police authorities to bring complainant, against whomthere were allegations of taking away construction material. That,he brought complainant, however he demanded bribe to see thatcomplainant goes scot free and that there would be no inquiry i.e.for not taking legal action on the report of Sugrabai. Learned APPpointed out that, in fact accused threatened complainant with direconsequences i.e. seeing him going in jail, if demand of Rs.200/- isnot met. Consequently, prompt Complainant was lodged aboutdemand of illegal bribe. ACB authorities had planned and arrangedtrap which was successful. Still, learned trial court has acquittedthe accused. 4.According to learned counsel, there is improperappreciation of evidence. Legal position is also not correctlyappreciated by learned trial Judge. Both, pre-trap and post-trappanchanamas are infact proved. That, there is demand as well asacceptance. Therefore, all ingredients for attracting the chargeswere available, but learned trial court unfortunately acquitted theaccused. -4- Cri.Appeal.277.2002 5.Learned APP took this court through the testimonies ofprosecution witnesses and would submit that their evidence isinspires confidence and the same has remained unshaken. There isvalid sanction, and therefore, guilt ought to have been recorded,but learned trial court having failed, he prays to interfere byallowing the appeal. On behalf of Respondent :-6.Per contra, learned counsel for respondent accusedwould submit that, evidence of prosecution was apparently weak.Evidence of material witnesses like complainant and panch is fullof contradictions and omissions. He took this court through thejudgment of trial court, more particularly paragraph nos. 16, 17,18 and 21 and would submit that there is correct appreciation ofevidence as well as law. Lastly, he submitted that, the view arrivedat by learned trial Judge is the most possible view that couldemerge on appreciating entire evidence. According to him, there isno merit in the appeal and he prays to dismiss the same.7.In support of his submissions, learned counsel forrespondent accused places reliance on following decisions :- 1) Tryambak Lilaji Binnar v. State of Maharashtra, 2002 (3) Mh.L.J. 293 -5- Cri.Appeal.277.2002 2) State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede 2009 (5) AIR Bom R 781 3) Ratnakar Narayan Morankar v. State of Maharashtra 2022 DGLS (Bom.) 3590 4) Dilip and Another v. State of Madhya Pradesh 2007 AIR(SC) 369 EVIDENCE ON RECORD8. Complainant PW1 Ganesh, who is examined at Exh.18deposed that, Sugrabai, a widow and Police Patil had lodged reportagainst him, accusing him for selling soil from the land of Sugrabaiand in that connection, Police Head Constable Joshi asked accusedAshruba, Police Patil of the village to bring him to police station.When he went to Police Station, accused took this witness for teaand asked him to pay Rs.200/- to avoid any action on the report ofSugrabai. Next day also, accused approached complainant and toldhim to pay more money as a consideration for not taking action,and therefore, he sold grains and raised amount. At weekly bazaraccused again told him that, it is not possible to do his work in onlyRs. 200/- and he would be required to spend more money. Finallygetting helpless, he approached ACB and lodged complaint(Exh.19). He deposed that, ACB authorities, arranged panchas,namely, Moti Kawde and Kulkarni and all of them were apprised -6- Cri.Appeal.277.2002about the procedure of application of anthracene to currency,which was to be paid on demand. He and panch Moti Kawdereached Latifpur. Accused met them near PHC Hasnabad.Complainant invited accused for tea and thereafter accused toldhim to pay the amount and accordingly he removed the amountfrom his pocket and handed it over to accused, who accepted it.Pre-determined signal was given and police apprehendedcomplainant. PW2 Ramchandra, shadow panch, deposed aboutvisiting ACB authorities, being introduced to complainant,verifying facts of complaint and he endorsing over the complaint(Exh.19), ACB authorities explaining the entire procedure andissuing necessary instructions to the complainant that, afterdemand made by Police Patil or Police Constable Joshi, amount tobe handed over, and thereafter, on acceptance, signal to be given.He further deposed about pre-trap panchanama being drawn andhe accompanying complainant at Hasnabad. At weekly bazarcomplainant pointed him the Police Patil. After they approachedaccused Police Patil, they went to a hotel. That time, accused PolicePatil asked whether he brought the money and before it, there wasconversation between complainant and Police Patil regarding workof complainant. Complainant asked accused as to what hadhappened about his work, upon which Police Patil questioned -7- Cri.Appeal.277.2002whether he has brought the money and only if he brought themoney, the matter would be settled. Accused Police Patil askedcomplainant to handover the money, which was accepted andcounted by Police Patil, after which signal was given. Accused wasapprehended. Constable Baheti took out currency from the handsof accused and the same was later on seized. PW3 PI Sheshrao Suryawanshi, Investigating Officer,narrated all steps taken after receipt of complaint (Exh.21) tillcharge-sheeting accused. PW4 Shivaji Divekar is the Sanctioning Authority. 9.Accused has also adduced evidence of one AsaramSaudagar (DW1), who was working in the hotel and he deposedthat, on the day of weekly bazar, at around 2:00 to 2:30 p.m., thesecustomers ordered tea and he served it. One person was wearingcap and other one was wearing dhoti. The person wearing capcalled him for taking money and told him about the bill amount andsaid person asked him whether he had change and he told the saidperson that he was going to serve the order he should bring thechange and then pay money.ANALYSIS10.In chief PW1 Ganesh stated that, when he went topolice station, accused took him out for tea and assured to see that -8- Cri.Appeal.277.2002no action would be taken on complaint by Sugrabai, but only ifRs.200/- is paid. Complainant has not uttered that, said amountwould be required to be paid as bribe to Constable Joshi, who wasconducting inquiry of the alleged complainant. Complainantfurther states twice – thrice accused approached him, saying that,work cannot be done in Rs.200/-, but more amount would berequired, however what was the quantum that would be required isnot stated by complainant. Still, surprisingly, complainant hascarried only Rs.200/-, which was unagreeable to accused. Further,complainant claims that he raised amount by selling grains, butwhen how much amount was raised, has not been elaborated byhim. Further, exactly when complainant was called with bribeamount is also not stated by complainant. Rather his evidenceshows that, he took shadow panch directly to weekly bazar andseeing accused in the weekly bazar, he seems to have beenapproached and there the amount has been allegedly paid. Therefore, complainant’s evidence firstly is ambagiousas regards to what was the exact bribe amount expected byaccused as according to him after initial demand of Rs.200/-.Accused has allegedly approaching twice – thrice on the groundthat, more money would be required and more money cannot bepaid. -9- Cri.Appeal.277.200211.His cross shows that, there is contradiction as regardsto portion marked ‘A’, ‘B’ and ‘C’ of the complaint dated 17.09.1997and portion marked ‘A’ and ‘B’ of statement before the police dated21.09.1997s which he denied. The portion marks are reproducedas under : Portion marked of the complaint dated 17.09.1997 (Exh.19)“A”“On that place Jamadar Joshi inquired me about the sellingof the soil.”“B”“I told him that we would see Jamadar Joshi and to clearthe misunderstanding he had, if any.”“C”“I somehow managed by saying that I have no money.Would do something for him later.” Portion marked of the statement before the Police dated 21.09.1997 (Exhs. 35 & 36)“A”“Then the Police Patil said that, Why you are telling me?You go and see Joshi Saheb on your own.”“B”“Then the Police Patil said that, “ you should pay JoshiSaheb the money on your own and get the matter settled.” Further his cross also shows that there are omissions inparagraph nos. 6 and 7 regarding informing Investigating Officerthat he had agreed to pay amount to Joshi; that next day, prior toapproaching Constable Joshi, accused met him at his residence,about informing Investigating Officer that Police Patil told to spendmore money and that he would be required to spend more and so -10- Cri.Appeal.277.2002he became helpless. He admitted that, Investigating Officer hasinstructed him that payment should be made only when demandmade by Constable Joshi. However, presence of Joshi is not marked either bycomplainant or shadow panch i.e. at the weekly bazar. Therefore, itis further doubtful whether accused was allegedly arranging bribeon behalf of Constable Joshi because it is he who was makinginquiry on the complaint. Further, he admitted that the onlyconversation between him and accused was only about accusedasking to pay the money and he paid the money.12.Even PW2 Ramchandra, shadow panch stated that,while they were going towards weekly bazar, complainant sawaccused. According to him, complainant invited accused for a tea inthe hotel. However, according to him, accused said that work wouldbe done only if he had brought money otherwise not. But suchversion is not coming from the mouth of complainant. Resultantly,complainant and shadow panch in spite of being together are notconsistent.13.Evidence of PW2 Ramchandra goes to show that, it iscomplainant, who was insisting accused to settle the matter. Whileunder cross, he has also unable to recollect whether he had
Legal Reasoning
-11- Cri.Appeal.277.2002narrated the portion marked ‘A’ in his statement dated 18.09.1998i.e. regarding “Dongare said to the person who was walking withhim that [he] should see Joshi saheb and to settle the matterwhatever it is.” To this the other person said, “You go and seeJoshi saheb on your own. Why you are asking me?” Materialomission has been brought in his statement about accused askingcomplainant whether he brought the amount and if it brought, onlythen matter would be settled and thereafter complainant told himthat he brought the money. Therefore, considering the evidence of PW1 Ganesh andPW2 Ramchandra, they do not seem to be lending support to eachother. They are at variance and their evidence is full of materialomissions and contradictions, hence unsafe to rely. 14.Even as is pointed out by learned counsel forrespondent, important witness like Constable Baheti, who actuallyapprehended accused and further took out tainted currency fromthe pocket of accused, is not examined by prosecution. Further,contents of Exh.37 goes to show that there is no demand, butcomplainant has voluntarily had handed over the amount. Suchcontents of panchanama which is allegedly drawn at the spotfurther creates doubt about prosecution version. -12- Cri.Appeal.277.2002 The net result of above discussion is that, prosecutioncase is not free from doubt. 15.On going through the impugned judgment, the viewtaken by learned trial Judge seems to be the possible view thatcould emerge with such quality of evidence on record. No case ismade out by State to upset the findings of the trial court. Hence, Iproceed to pass the following order :-ORDERThe Criminal Appeal stands dismissed. (ABHAY S. WAGHWASE, J.)Tandale