High Court

Legal Reasoning

{1} CR APPEAL NO. 556 OF 2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 556 OF 2004The State of MaharashtraThrough Anti Corruption Bureau,Jalgaon, District Jalgaon.….Appellant VersusSantosh Sitaram PatilAge: 47 years, Occu.: Service,Police Head Constable B.No.1765,Posted at Marawad Police Station,Tq.Amalner, District Jalgaon.…..Respondent (Ori. Accused)…..APP for Appellant : Mr.D.J.PatilAdvocate for Respondent : Ms.Sakshi Kale h/f. Mr. Ajeet B. Kale ….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 23 APRIL, 2024 PRONOUNCED ON : 06 MAY, 2024 JUDGMENT :- 1.State is taking exception to the judgment and order passedby the learned Special Judge, Amalner, District Jalgaon dated15-05-2004 in Special Trial No.14 of 1999 by which respondent hasbeen acquitted from offence under Section 7, 13(1)(d) read with13(2) of the Prevention of Corruption Act (PC Act). {2} CR APPEAL NO. 556 OF 2004FACTS IN BRIEF LEADING TO TRIAL2.Complainant PW1 Raghunath was called for enquiry on receiptof complaint from one Hilal Babulal Patil. In that connection,complainant visited Marwad Police Station. There, accused, a PoliceOfficer, apprised about complaint and demanded Rs.3,000/- forsending favourable report. On mediation of one Madhukar Patil,amount was brought down from Rs.3,000/- to Rs.400/-. However, ascomplainant was not willing to pay bribe, he approached AntiCorruption Bureau (ACB), Jalgaon and lodged report exh.20 on 20-12-1996. ACB authorities arranged pancha and planned trap. Bothcomplainant and pancha were apprised about the procedure ofapplication of anthracene powder and they were given necessaryinstructions to be followed at the time of trap. Accused wasapproached on 21-12-1996. Accused took complainant to a hotelnamely Chaya Tea House to take tea and there he made demand. Healso accepted the amount and therefore, raiding party, who waswaiting in lay, apprehended accused and further procedure wasundertaken and after completing investigation, accused has beentried before learned trial Court. Learned Special Judge, Amalner conducted trial and onappreciating oral and documentary evidence held that prosecution {3} CR APPEAL NO. 556 OF 2004failed to establish the charge and acquitted accused by judgment andorder dated 15-05-2004. Hence, the appeal. SUBMISSIONSOn behalf of appellant :3. Learned APP submitted that prosecution has established thecharges by adducing evidence of in all four witnesses i.e. PW1Raghunath, complainant, PW2 Indrasing Devasing Patil, Pancha, PW3Bipinkumarsing Bulandsing, Sanctioning Authority, PW4 HiramanAbhiman Kankhare, Investigating Officer. That prosecution hadproved demand as well as acceptance. That sanctioning authoritywas also examined, who after application of mind, has grantedsanction. According to learned APP, there were repeated demandsby accused, accused himself approached complainant to his village,therefore, there was ample evidence about demand of illegalgratification. He pointed out that evidence of complainant wassupported by pancha witness and Investigating Officer. Therefore, allnecessary ingredients for attracting charges were available. Thatevidence of prosecution witnesses remained unshaken in cross-examination. Therefore, prosecution had succeeded in establishingthe guilt, but the learned trial Court has failed to appreciate and {4} CR APPEAL NO. 556 OF 2004consider said evidence and also failed to consider and apply correctlaw. Therefore, he prays to allow appeal by setting aside impugnedjudgment and order. On behalf of Respondent :4. Per contra, learned Counsel for respondent accused submittedthat case of prosecution was not proved beyond reasonable doubt.She pointed out that at the outset, evidence of complainant is notsupported by shadow pancha, who allegedly accompaniedcomplainant at the time of trap. She pointed out that said panchawitness is reported to be dead. That another pancha witness, whoexamined, had no knowledge about actual occurrence. She pointedout that in case of such nature, complainant being interested witness,it is unsafe to rely on his testimony and therefore, corroboration isnecessary, which is missing here. She pointed out that there arerepeated demands, but no complaint was lodged by PW1complainant at any point of time. She pointed out that firstly evendemand is not proved and secondly acceptance is also not provedbecause money was found lying on the floor in a tea stall. LearnedCounsel pointed out that crucial witnesses i.e. PW1 Namdeo Koli andother two Persons, who were also said to be party to apprehension, {5} CR APPEAL NO. 556 OF 2004are not examined. Therefore, evidence of prosecution was patentlyweak. She pointed out that on the contrary, defence has beensuccessful in rebutting presumption by adducing evidence of DW1Budha Onkar More. She further pointed out that here sanctioningauthority had not applied its mind and had granted mechanicalsanction. All such aspects were correctly appreciated by the learnedtrial Court and according to her, the conclusion reached at by learnedtrial Court is most possible view, which could emerge and as such shesubmits that there is no merit in the appeal and consequently, sheprays to dismiss the appeal. GIST OF EVIDENCE 5.PW1 Raghunath Harchand Patil, complainant gave evidencethat there was quarrel with Hilal Baburao Patil of which Hilal lodgedcomplaint at Marwad Police Station as well as before learned JudicialMagistrate First Class, Amalner. Accused Santosh Patil called him andtwo others for enquiry to Marwad Police Station. He read over thecomplaint and demanded Rs.3,000/- for doing favour. Finally, onnegotiations, accused agreed to accept Rs.400/-. But as complainantwas not willing to give bribe, he lodged complaint exh.20. He andshadow pancha, as per arranged trap, went to pay bribe at Marwad {6} CR APPEAL NO. 556 OF 2004Police Station. Thereafter, while sitting in a hotel, accused demandedbribe, it was paid by complainant and accepted by accused andraiding party caught accused.6.PW2 Indrasing Devasing Patil, pancha stated that he wasdirected to visit ACB office on 21-12-1996. There, he metcomplainant, nature of complaint was apprised to him and he andcomplainant were made aware of the procedure and he accompaniedcomplainant to Marwad Police Station. From there, they went to ahotel. Complainant reached there. Predetermined signal was givenby complainant and accused was caught. 7.PW3 Bipinkumarsing Bulandsing, Sanctioning Authoritydeposed about receiving papers, ascertaining the same and accordingsanction exh.31.8.PW4 Hiraman Abhiman Kankhare is the Investigating Officer,who narrated all the steps taken by him during investigation tillchargesheeting accused. {7} CR APPEAL NO. 556 OF 2004ANALYSIS9.Sum and substance of accusations is that complainant wassummoned to attend Police Station on receiving some complaint andduring enquiry, it is alleged that to issue favourable report, accuseddemanded Rs.3000/-. Finally, on negotiations, accused agreed toaccept Rs.400/- and therefore, there was demand and the amountbeing accepted, there was acceptance. In support of such case, prosecution has adduced evidence ofcomplainant PW1 Raghunath Patil, who reiterated the contents of thecomplaint. That at Marwad Police Station, accused demandedRs.3,000/-, he was unable to give such amount and therefore,through mediation of one Madhukar Patil in subsequent visit, amountwas brought down to Rs.400/-. Thereafter, he approached ACBauthority and lodged complaint. On instructions of ACB authorities,he and shadow pancha visited Marwad Police Station. That dayaccused took them to Chaya Tea Stall and there accused demandedmoney and it was duly handed over and thereafter, predeterminedsignal was relayed. In cross-examination he admitted that he does not know thataccused already submitted report to the Court. He answered that helearnt that accused had already submitted report to the Court against {8} CR APPEAL NO. 556 OF 2004him but he denied that getting annoyed by the same, he lodgedcomplaint against accused on 20-12-1996. Omissions are broughtabout visiting Police Station on the next day. He answered thataccused visited his village and at that time, he was accompanied byanother Constable namely Kurkure. He admitted that, thrice he wentto Marwad Police Station before he approached to ACB and hecandidly admitted that he did not inform about demand by accused. 10.PW2 Indrasing Devasing Patil is pancha, who claims to haveaccompanied ACB office alongwith another pancha Namdeo Koli andthere, ACB authorities introduced them to complainant, apprisedthem about nature of complaint and he too signed the complaintexh.20 as a pancha. Thereafter, procedure of application ofanthracene powder to the currency was explained to them. Inparagraph no.5, he stated that both panchas, complainant andraiding party were proceeded towards Marwad Police Station. Hestated that complainant was instructed to disclose identity ofNamdeo Koli as his relative. According to him, complainant andNamdeo entered the hotel near Marwad Police Station and aftertaking water in the hotel, they proceeded towards premises ofMarwad Police Station. After 2-3 minutes, they left the premises of {9} CR APPEAL NO. 556 OF 2004Marwad Police Station and they both sat near a Pan shop. After 30minutes, three persons came from Police Station, one of them washaving bag in his hand and he was wearing suit-pant, whereas restwere having Payjama. The person having a bag in his hand gavesignal to the complainant to come in the hotel and thereafter,complainant went in the hotel. After 30 minutes of reaching hotel,complainant gave predetermined signal and raiding party entered thehotel and raiding party asked Namdeo Koli as to who asked the bribemoney and at that time, Namdeo Kolil pointed finger towards theaccused and he was apprehended. Accused threw the currency onthe ground and raiding party asked this witness to lift the currency. While in cross-examination, he answered that the complainantdid not have talk with raiding party after coming out of PoliceStation premises. He stated that he was accompanied one PoliceOfficer but he is unable to give his name. He admitted that innerportion of the hotel was not clearly visible from the place where hewas standing. He answered that complainant gave signal from thecounter of the hotel. He admitted that in his presence, ACBauthorities did not record statements of two persons, who wereaccompanying accused. He answered that currency notes were lying7 to 8 feet away from the hotel counter. Rest all is denial. {10} CR APPEAL NO. 556 OF 200411.Therefore, what transpires on close scrutiny of evidence ofPW1 Raghunath, complainant and that of PW2 Indrasing, shadowpancha is that on receiving complaint against PW1 complainant, hewas called by a Police Officer at Marwad Police Station, who wasofficiating there. According to complainant, he and two others visitedMarwad Police Station. Exactly on which date they visited MarwadPolice Station has not been stated by PW1 complainant. He admits tothat extent in the examination-in-chief itself. According to him,accused demanded Rs.3,000/- for sending favourable report and ashe was not having such amount, he disagreed to such demand. Hestated that he one Madhukar Patil has mediated and the demand wassettled at Rs.400/-. He stated that thereafter, accused visited hisvillage and demanded money but on which date and which place ofhis village accused demanded money, is not given. He speaks aboutvisiting ACB, Jalgaon on 20-12-1996 i.e. after more than two monthsafter first visit to Marwad Police Station. He claims that he hasalready stated in the evidence that he and pancha Namdeo Kolivisited Marwad Police Station that day and they and accused went tohotel for tea. Therefore, Namdeo Koli was his companion but heseems to have expired and therefore, his evidence is not recorded byPolice. PW2 Indrasing, who is examined by the Court, appears to be {11} CR APPEAL NO. 556 OF 2004second pancha, but he was mere party to first interaction withcomplainant while apprising about complaint as well as explainingprocedure of trap in ACB office. Infact Namdeo Koli was instructedto accompany complainant and he accompanied complainant toMarwad Police Station and then to Chaya Tea House. Therefore, PW2Indrasing does not have direct knowledge about conversation, whichtook place between complainant and accused in hotel. PW2Indrasing has candidly admittedly that events in the hotel were notvisible to him. Further evidence of PW2 Indrasing goes to show thatfrom hotel, complainant, Namdeo Kolil and accused returned toMarwad Police Station. They spent 30 minutes there and thereafter,two unknown persons accompanied accused. Investigating Officerdid not record their statements. Therefore, who were those twopersons, who gave signal to complainant is a mystery. Here exceptevidence of PW1, there is no supportive evidence. As rightly submitted by learned Counsel for the respondent incase of such nature, law requires independent corroboration to thetestimony of complainant. Here Namdeo Koli, who accompaniedcomplainant to Marwad Police Station and was an independentwitness, is apparently not available. Therefore, demand is notcogently proved. Cross-examination of PW1 Raghunath as well as {12} CR APPEAL NO. 556 OF 2004evidence of PW2 Indrasing suggested that currency was lying on thefloor. Therefore, there is no witness, who had seen acceptance. Noindependent witness had seen acceptance of amount. Resultantly,both demand as well as acceptance come under shadow of doubt. 12.On visiting evidence of PW3 Bipinkumarsing, SanctioningAuthority, it is emerging that except his testimony about receivingdraft sanction order, there is nothing to show that there wasindependent application of mind. Therefore, trial Court has correctlyheld that sanction is not valid. Apart from this, aspects of demand aswell as acceptance have come under shadow of doubt. Such crucialaspects have not been cogently proved by the prosecution. Materialwitnesses are not examined or available. Hence, no fault can befound in the conclusion reached at by the trial Court. No case beingmade out on merits, appeal deserves to be dismissed. Accordingly, Iproceed to pass following order : ORDERCriminal Appeal No.556 of 2004 stands dismissed. ( ABHAY S. WAGHWASE ) JUDGE SPT