High Court · 2025

Legal Reasoning

ALS-149-2018-1-IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADAPPLICATION FOR LEAVE TO APPEAL BY STATE NO. 149 OF 2018The State of Maharashtra,Through Police Station, Bidkin, Tq. Paithan, Dist. Aurangabad.… Applicant VersusSanjay Damodhar Gore, Age : 48 years, Occu. : Police Naik, R/o. Plot No. 10, Komalnagar, Padegaon, Aurangabad. … Respondent.…..Mr. D. R. Korade, APP for Applicant - State.Mr. Rajendrraa Deshmukh, Senior Advocate a/w Ms. Rakshanda Jaiswal i/b. Mr.Vishal Chavan, Advocate for Respondent.…..CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 23 SEPTEMBER 2025PRONOUNCED ON : 10 OCTOBER 2025ORDER : 1.Present application by State is with prayers for grantingleave to question the judgment and order of acquittal passed bylearned Special Judge-5, Aurangabad in Special (ACB) Case No.04 of2014 acquitting present respondent from charge under sections 7,13(1)(d) punishable under section 13(2) of the Prevention ofCorruption Act.2.Learned APP would point out that present respondentwas charge-sheeted and tried for demanding illegal gratification and ALS-149-2018-2-even accepting the same. He further elaborated that, the respondent,who was working in police department and posted at Bidkin PoliceStation, had demanded an illegal gratification of Rs.5,000/- toprevent the arrest of complainant’s relatives in a case arising out ofquarrel. That, to desist from arrest, there was demand which wasapparently illegal gratification. He further pointed out that,complainant lodged report with ACB authorities, who entertained thecomplaint, planned a trap in presence of shadow panch and aftergiving necessary instructions, trap was laid. He further submittedthat, both, complainant as well as shadow panch, while in thecompany of each other, demand verification was done. That,panchanama to this extent has been drawn and subsequently ongiven date complainant and shadow panch went to the police stationand approached the accused. He raised demand and the same wascomplied. That, after necessary signal was relayed, accused wasapprehended with tainted currency. Thus, according to learned APP,there is evidence on the point of demand as well as acceptance.3.He further pointed out that, after completinginvestigation, necessary sanction was obtained and on receiving thesame, accused person was tried. According to learned APP, onlyimportant witnesses have deposed and has stuck up their versions.Learned APP took this court through the testimonies of both, ALS-149-2018-3-complainant as well as shadow panch, however, some minoromissions are highlighted by trial court and acquittal has beengranted. He further stressed that, prosecution has a good case onmerits. That, the necessary ingredients to attract the charges arevery much available, and therefore, learned APP seeks indulgence ofthis court in granting leave. 4.In answer to above, learned Senior Counsel Mr.Deshmukh pointed out that, prosecution has miserably failed toprove the charges. That, star witnesses like complainant and shadowpanch are not consistent nor lending support to each other. LearnedSenior counsel took this court through the answers given bycomplainant as well cross faced by shadow panch and pointed outthat, very essential requirements of demand and acceptance havecome under shadow of doubt on material counts. He further pointedout that, though an attempt was made to record a voice sample, theprosecution failed to adduce evidence to that extent and also failed toplace essential certificate required under section 65B of the EvidenceAct. That, after meticulous consideration of available material,learned trial Judge was pleased to acquit the accused, and therefore,he urges to refuse the leave as there is already judgment of acquittalis in favour of accused. ALS-149-2018-4-5.Heard. Perused the papers. Present respondent seems tohave faced trial vide Special (ACB) Case No.4 of 2014. Prosecutionseems to have rested its case on the evidence of PW1 complainant,PW2 shadow panch and PW3 Investigating Officer and crucialevidence is that of complainant and shadow panch. It is expectedthat, these two witnesses restrict to their versions about demand aswell as acceptance of illegal gratification.6.Studied the evidence. Complainant is examined at Exh.19and it is his testimony that present respondent original accused, whoworked as head constable, demanded Rs.5,000/- to evade arrest ofhis brother Tulshiram, Baliram and Renuka. Therefore, he lodgedreport with ACB. While in presence of shadow panch, verificationpanchanama was drawn and he and panch approached accused. Heclaims that accused asked him whether he brought the money and onasking the accused ‘to give’, he handed over cash to accused, whichhe accepted and kept it in the left side pocket of his pant. After whichhe came out and relayed the signal. However, as pointed out, whileunder cross, complainant has admitted about visiting his owncomplaint prior to stepping into witness box and that he wasspecifically instructed to depose accordingly. In paragraph 7 of thecross, he has admitted that the accused did not voluntarily ask himto pay a bribe for evading arrest and further candidly admitted that ALS-149-2018-5-accused did not ask him to pay money at the time of trap also. Suchanswers weighed over the learned trial Judge in drawing inferencethat complainant had referred to his own report and thereafterdeposed in the witness box. 7.PW2 Uttam is the shadow panch and his evidence is atExh.24. He also spoke regarding he be engaged to act as panch, andhe accompanying complainant to visit accused. He also stated that, ina room at police station, complainant had recorded voiceconversation wherein accused and complainant talked about hiswork with accused, upon which accused put up a demand ofRs.4,000/- and complainant held it before him and accused acceptedit. However, as pointed out, while under cross, shadow panch isunable to state whether episode of voice recording is reflected in thepanchanama or the voice recorder has been at all seized by way ofMuddemal. He admitted that, statement of accused was recorded, buthe is unable to tell whether it was recorded at the police rest house orwhen he brought at the ACB office after the trap. He also admittedthat in the verification panchanama, the conversation exchangedbetween complainant and accused as recorded in the voice recorder,is not reflected and he is unable to explain why material to thisextent is missing in the panchanama. ALS-149-2018-6-8.PW1 complainant admitted that when voice recorder wasplayed, it was not clearly audible. He also admitted that accused didnot voluntarily ask to pay to evade arrest of relatives. Therefore,complainant has admitted that, there was no demand on the firstcount by accused, which indeed turned out to be fatal to theprosecution.9.Testimony of Investigating Officer and complainant doesnot match with the contents of panchanama. Further it has come tolight that, on 29.10.2013 and 30.10.2013 relatives of complainantwere already arrested. Therefore, subsequent demand to evadearrest itself comes under shadow of doubt. 10.Defence has put up a case of thrusting. There is norebuttal of the same by prosecution. Therefore, with above quality ofevidence, this court does not find any infirmity in the analysis,appreciation and further conclusion as is tried to be questioned byState in appeal. Hence, I proceed to pass the following order :ORDER (i)Leave is refused. (ii)The application for leave to appeal by State is rejected. (ABHAY S. WAGHWASE, J.) Tandale