High Court
Legal Reasoning
CriAppeal 852-2004-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 852 OF 20041]Ashok s/o Chunilal Kachi,since deceased through his L.Rs.-1-A]Arti w/o Ashok Kachi,Age – 40 years, Occu.: Household,R/o.: ‘Gajanan Complex’, Harsool,Aurangabad, Taluka and District Aurangabad.1-B]Akash s/o Ashok Kachi,Age: 23 years, Occu.: Private Service,R/o. As above.1-C]Amit s/o Ashok Kachi,Age – 17 years, Occu.: Student,R/o. As above.(under guardianship of his naturalmother i.e. Arti w/o Ashok Kachi).1-D]Ashish s/o Ashok Kachi,Age – 13 years, Occu. Student,R/o. As above.(under guardianship of his naturalmother i.e. Arti w/o Ashok Kachi).… Appellants [Lrs. of orig. Accused]VersusThe State of Maharashtra… Respondent…..Mr. Rajendrraa Deshmukkh, Senior Advocate a/w Mr. Vishal A.Chavan & Vikhyati Jain i/by Mr. Devang R. Deshmukh, Advocate forthe Appellants.Mr. G. O. Wattamwar, APP for Respondent-State...... CORAM :ABHAY S. WAGHWASE, J. Reserved on: 03.09.2024Pronounced on: 09.09.2024 CriAppeal 852-2004-2- JUDGMENT : 1.In this appeal, there is challenge to judgment and order ofconviction dated 17.11.2004 rendered by learned Special Judge,Aurangabad in Special Case No. 29/1999. 2.It needs to be noted that during pendency of appeal, accusedAshok Chunilal Kachi expired, and therefore appeal was prosecutedby his wife in capacity of legal representative.PROSECUTION VERSION IN TRIAL COURT IS AS UNDER3.Son of PW2 Indubai, namely, Rahul, was apprehended byaccused, Police Head Constable posted in Detection Branch atJawaharnagar Police Station, on suspicion of committing theft ofbundle of wire and was taken to police station. Complainant followedand visited police station to inform that her son Rahul had notcommitted theft, rather it was found, and she pleaded to let her sonoff, but accused Ashok demanded Rs.2,000/- to release her son. Whenshe expressed her inability to pay such amount, she being poor, hebrought down the demand to Rs.1,000/-. As she was not willing togive bribe, she lodged report with ACB authorities who planned andarranged trap by arranging panchas. Complainant and pancha were CriAppeal 852-2004-3- explained the procedure and necessary instructions were given to paytainted currency on demand. Accordingly, PW3 Thorat, who acted asshadow pancha, went to the house of complainant. Accusedapproached complainant and put up demand and on its payment, shegave predetermined signal. Raiding party, which was waiting in lay,apprehended accused and he was resultantly booked andchargesheeted for offence punishable under Sections 7, 13(1)(d) and13(2) of the Prevention of Corruption Act, 1988 [PC Act].4.Deceased Ashok was tried by Special Judge vide Special CaseNo. 29 of 1999. On appreciating the evidence of in all five witnesses,learned Special Judge accepted the case of prosecution as proved andby judgment and order dated 17.11.2004, held deceased Ashok guiltyfor offence under Sections 7, 13(1)(d) and 13(2) of the Prevention ofCorruption Act, 1988 [PC Act]. Hence the appeal.SUBMISSIONSOn behalf of the appellants :5.Learned senior counsel, pleading innocence and falseimplication, pointed out that prosecution had failed to bring home the CriAppeal 852-2004-4- charges beyond reasonable doubt. He pointed out that it is a clearcase of thrusting money as complainant was annoyed for her son wasbooked in some crime. Learned senior counsel took this court throughthe testimony of complainant and submitted that she has admittedthat she was annoyed and angry with accused because he had takenher son Rahul twice to the police station and had beaten him in policestation and also abused him on mother and sisters. Learned seniorcounsel further submitted that shadow pancha admitted that he wassleeping by pulling chadar over his face and therefore he was notparty to the alleged visit of accused or any demand. Further,complainant and pancha witness are at variance on the time of raid.He pointed out that according to complainant, she took out taintedcurrency from cloth bag, whereas pancha deposed about taintedcurrency taken out from purse. Therefore, with such variance, hewould submit that, prosecution story is unworthy of credence.6.Learned senior counsel further submitted that here, sanctioningauthority has admitted that he was in receipt of a draft sanction. That,his evidence does not show that there was application of mind beforeaccording sanction, and rather it was in mechanical manner. He nextsubmitted that here, verification panchanama has not been drawn bythe Investigating Officer. Moreover, immediately after the alleged CriAppeal 852-2004-5- raid, accused had given written statement that amount wasdeliberately thrust to implicate him and he had not demanded oraccepted any amount. For all above reasons, learned senior counselquestions the story of prosecution as well as the quality of evidenceand criticizes the judgment to be based on assumptions andpresumptions and without any strong, legally acceptable evidence.On behalf of respondent State:7.Per contra, supporting the judgment, learned APP submittedthat accused had detained son of complainant on mere suspicion andthere was no record of his custody at police station. That, to releaseher son, accused had demanded Rs.2,000/-. That, he also threatenedthat on failure to comply the demand, her son would be involved inanother crime. That, out of fear, complainant agreed to payRs.1,000/- but she approached ACB and lodged prompt reportresulting into planning of trap and it being successfully executed. Hepointed out that accused Ashok was apprehended in the house ofcomplainant when he went there to collect the bribe amount for nottaking action on her son in future. That, shadow pancha was presentthere and he had seen and witnessed the visit, demand as well asacceptance. Learned APP pointed that tainted currency was recovered CriAppeal 852-2004-6- from the possession of accused. That, false explanation has beenoffered. Learned trial court has correctly appreciated the availableevidence and, according to learned APP, no fault can be found in themanner of appreciation and findings recorded by learned trial Judgeand consequently, he prays to dismiss the appeal.EVIDENCE ON RECORDPW1 Prakash Sengaonkar, sanctioning authority, who was a D.C.P.ranking officer, deposed about receiving papers from ACB i.e.pertaining to crime no. 3005/1999. He studied the papers andaccorded sanction Exhibit 12.PW2 Indubai - informant narrated events of her son being taken toJawaharnagar police station by accused, she visiting policestation to get her son released but accused refusing to releaseand rather demanding Rs.2000/- for his release. That, afteraccused left, she got her son released i.e. while other superiorofficer was on duty. She deposed that accused approached herand questioned how her son was released and threatened toimplicate her son in another case if she fails to meet his demand.She offered to pay Rs.1000/- in installments and as she was notwilling to pay bribe, she lodged report. ACB arranged trap.Shadow pancha accompanied her in the house and whenaccused came to take the bribe amount, she offered on hisdemand and when he accepted it, she gave signal, followed byaccused being apprehended by raiding party. CriAppeal 852-2004-7- PW3 Thorat, shadow pancha stated that he was called to act aspancha, was introduced to complainant, he heard her grievanceand agreed to act as pancha. He visited house of complainant asinstructed. Accused came there, put up demand and acceptedbribe, after which complainant gave signal and accused wasapprehended.PW4PSI Patil, posted at Jawaharnagar Police Station, who releasedson of complainant. PW5P.I. Chaudhari is the Investigating Officer.ANALYSIS8.After considering the submissions of learned Senior Counsel,case seems to have been put up that, as son of complainant wasinvolved in crimes and was apprehended, out of annoyance, there wasdeliberate entrapment by thrusting tainted currency. There was neverany bribe demanded or accepted. 9.In the line of above defence, if evidence of complainant PW2 isput to minute scrutiny, it seems that complainant’s son, namely,Rahul aged 14 was allegedly taken to Jawaharnagar Police Station bydeceased accused Ashok who undisputedly was there as a constable in CriAppeal 852-2004-8- detection branch. When the complainant lady visited police station toplead innocence of her son and with a request to release him, shedeposed that, accused demanded Rs.2000/- for releasing her son. Shehas testified that when she expressed her inability to meet suchdemand, she being poor, she claims that accused asked her to come tothe court tomorrow. On next day she seems to have again visitedpolice station and at that time, approached accused and told that shehas brought Rs.500/- only. However, he demanded Rs.1000/- insteadof Rs.2000/- and left the police station. She claims that anotherofficer was approached by her who released her son. She furtherdeposed that at around 9.00 p.m., deceased accused visited herhouse, questioned her who released her son and further threatened toimplicate her son in another case and arrest him if she fails to payRs.1000/-. She deposed that she offered Rs.200/- and assured to payremaining balance in 2 to 3 days. He accepted Rs.200/- and told herto pay him Rs.500/- on Friday and remaining Rs.300/- later on. Sheclaims that as she was not willing to pay the bribe, she lodged reportwith ACB, who planned and arranged trap. In para 6 and 7, she statedthat at her house, shadow pancha accompanied her and around 5.00p.m. accused came on motorcycle. He sat on the same cot whereshadow pancha was pretending to sleep. Accused demanded money.She told him that she could not raise Rs.800/- and rather succeeded CriAppeal 852-2004-9- in gathering Rs.500/- only, upon which accused told her to payRs.300/- on Sunday. On demand, she paid him Rs.500/-, went inanother room and transmitted signal and accused was resultantlycaught by raiding party. He was found in possession of taintedcurrency.10.On visiting her cross, she has admitted that previously, her sonwas taken to Jawaharnagar Police Station by accused. She admittedthat accused had beaten her son in police station and therefore shewas annoyed. That, as her son was under watch, she thought thataccused might detain her son in some crime. There is cross onneighbour Sitabai, who, complainant deposed that, was an informerof the police. She answered that she does not know whether accusedwas visiting her house. She answered that shadow pancha wassleeping on the cot by covering his face with chadar. Rest is all denial,including thrusting of amount in the hand.11.PW3 shadow pancha who is examined at Exhibit 17, in para 6stated that on instructions of ACB, he went to the house ofcomplainant. While he was lying on the cot, around 5.30 p.m.,complainant told that accused had come and to make space to sit onthe cot. Shadow pancha stated that accused sat on the cot and asked CriAppeal 852-2004-10- complainant whether amount of Rs.800/- was ready. He also narratedthat complaint told accused that she could arrange only Rs.500/- andnot 800/-, upon which she offered Rs.500/-and assured give Rs.300/-on Sunday. He also deposed that complainant took out taintedcurrency and held it before accused, who took it and counted it andthereafter complainant gave signal and trap was executed. 12.On visiting his cross, it is merely brought that he was unable tosee another pancha Shelar and he was lying on the cot having chadaron his person. He denied that as he was sleeping, he could notwitness the events.13.On appreciating and analyzing testimony of PW2 complainantIndubai and PW3 shadow pancha Thorat, it has come on record thataccused, a police constable posted at Jawaharnagar police station,apprehended son of complainant and when his release was sought, hehad demanded Rs.2000/- and finally agreed to take Rs.1000/-. In hisabsence, son of complainant was released and therefore he seems tohave visited her house to question about it, and it is further emergingthat, he also threatened to implicate her son in another crime if shefails to meet his demand, and therefore she has lodged report. PW3shadow pancha, who is also examined, was party to the planning and CriAppeal 852-2004-11- arranging of trap and had also accompanied complainant to herhouse. He is independent witness. He had no axe to grind. He hasalso narrated that in complainant’s house, around 5.30 p.m., accusedhad come to collect bribe amount, demanded it and even acceptedpart amount. Both, PW2 complainant and PW3 shadow pancha, areconsistent on all events taking place in the house of complainant. Inpresence of shadow pancha, there is not only arrival of accused to thehouse of complainant, but also demand and acceptance by him. Thereis no explanation as to why accused visited house of complainant forno reason even when there was no crime or offence registered againsther son. His very visit to her house twice, clearly indicates that he hadintentions to accept bribe to not to implicate her son in any othercase. PW2 complainant and PW3 shadow pancha, as stated above, areconsistent and lending support to each other on all the events. 14.Learned senior counsel pointed out that witnesses are notconsistent and there is variance in the timing. Mere different timingsquoted by complainant and pancha witness, itself will not wash awaythe act of demand, acceptance and immediate possession of taintedcurrency with accused, that too, in the house of complainant. Therewas no justifiable reason for deceased accused to visit complainant’shouse. Repeated visits to her house clearly show that he had sinister CriAppeal 852-2004-12- motive of seeing that his demand of bribe is met. Mere immediaterecording of statement that amount was thrust, itself will not besufficient to discard the evidence of complainant which is gettingfortified from the testimony of independent witness ie. shadowpancha. Similarly, mere answers given in cross by illiterate ladycomplainant that she was annoyed with accused for taking her son topolice station, is no reason to falsely implicate, as is tried to be putforth. Likewise, variance in the testimony about both hands beingcaught and blue shining reflected on only one hand, also would notcome to the rescue of accused, who had put up demand of bribe andfurther apprehended in presence of independent shadow pancha.Therefore, the defence put up of thrusting, is of no avail to thedeceased. 15.As regards to sanction is concern, it is apparently by a D.C.P.ranking officer who is admittedly of a rank of S.P. He hascategorically stated that he had received papers and he had studiedthe same. His such testimony shows that there is application of mindwhile according sanction. It cannot be said to be sanction given inmechanical manner. Mere acceptance about receipt of draft also itselfwould not be of much relevance when there is no further effectivecross of using draft as a sanction order.
Decision
CriAppeal 852-2004-13- 16.To sum up, case of prosecution has been correctly appreciatedby the trial Judge. The view taken by the trial Judge is the mostpossible view that could emerge on careful appreciation and re-appreciation. No case being made out on merits, there is no reason tointerfere. Hence, I proceed to pass the following order:ORDERThe appeal is dismissed. [ABHAY S. WAGHWASE, J.]vre