Bombay High Court
Raosaheb vs State Of Maharashtra on 19 July, 1994
Equivalent citations: 1994CRILJ3792
JUDGMENT
1. The appellant-accused was tried for offence under S. 161 of the Indian Penal Code and under S. 5(2) read with S. 5(1)(d) of the Prevention of Corruption Act, 1947, before the learned Special Judge, Aurangabad. The learned Special Judge convicted the accused for these offences and sentenced him to suffer rigorous imprisonment for one year and to pay fine of Rs. 500/- on each count in default to suffer rigorous imprisonment for three months with the directions to run the substantive sentences concurrently.
2. That judgment and order of conviction and sentence is challenged in this appeal.
3. In nutshell, the prosecution case was that the accused was working as Talathi at Sajja Rajapur situated in Paithan Taluka in the year 1987. The village Pedgaon is under Sajja Rajapur. The complainant Natha is of village Deogaon in Taluka Paithan. The father of the complainant died in 1978. The name of the complainant was shown as Karta in the record of right in respect of the landed property in place of his father. In order to have the benefit of a small holder the complainant Natha and his brothers appeared to have partitioned the lands and on the basis of the partition deed Natha was interested to have the mutation effected in the record of rights in respect of the landed property.
4. It was alleged that on 7-10-1987 the complainant Natha along with his friend Subhash saw the accused in his office. The complainant Natha tendered his application along with the xerox copy of the partition deed to the accused with the request to make the mutation. It was alleged that the accused demanded a sum of Rs. 400/- from the complainant for effecting the mutation. The complainant, however, pleaded with the accused that he was a poor man and was not able to pay Rs. 400/ -. It was further alleged that the accused demanded Rs. 300/- but the complainant also showed his inability to pay Rs. 300/ -. At least, the accused is said to have told the complainant that his work would not be done unless he gave him Rs. 150/-. The complainant had no alternative but to agree to the said demand. It was alleged that the complainant had only Rs. 50/- at that time and he paid it to the accused in presence of Subhash. It was alleged that the accused thereupon asked the complainant to pay the balance of of Rs. 100/- on 13-10-1987 so that his work could be done.
5. On 13-10-1987 at about 10.15 a.m. the complainant Natha approached the office of the Deputy Superintendent of Police, Anti-Corruption, Aurangabad. He met Shri Shinde, Dy.S.P. and apprised him about the demand of the accused. His statement was recorded at Exhibit 11. Shri Shinde then arranged the trap and after following the usual procedure of handing over the bribe amount to the complainant in presence of Panch Ravindra Kulkarni instructed the complainant to pay the amount of bribe to the accused only on his demand. The complainant was earlier shown the demonstration on the effect of phenolphthalein powder in presence of the panchas. He was also given instructions how to give the pre-arranged signal after the trap to the raiding party. The pre-trap panchanama, Exh. 16, was accordingly made.
It is said that the complainant Natha and the Panch Ravindra first went to the office of the accused but the office was found to be locked. Natha inquired with the neighbouring boy about the accused and it is said that the boy told him that the accused was in his house. The complainant Natha and the Panch, therefore, went to the house of the accused and the accused then took them to his office. It is said that after entering into the office room, the accused sat on the carpet. The complainant and the panch also sat in front of him. It is said that the complainant Natha first inquired from the accused as to whether the mutation was sanctioned. The complainant also told the accused that he has paid Rs. 50/- on 7th and he had brought the remaining amount of Rs. 100/-. According to the prosecution, the accused told Natha that he should give the amount to him which he had brought. The complainant Natha, therefore, took out the currency notes from his left side pocket of the panch by right hand and held it before the accused. The accused then took the said amount in his left hand and kept the same on left side of the carpet below his lap.
The pre-arranged signal was then given by the complainant to the raiding party and the Police Constable Yakub then came immediately. He caught hold both the hands of the accused. The soda water solution was prepared, the accused was asked to dip his left hand in it but the colour of solution did not change. However, when the accused dipped his right hand fingers in the fresh solution, the colour of the solution was changed to faint violet. Some drops were sprinkled on the currency notes which were found on the carpet by the left side lap of the accused and they were changed to faint violet colour. Similarly colour of the drops of solution changed when they were sprinkled on the carpet. That portion of the carpet was seized. The post-trap panchanama, Exh. 17 was prepared. After investigation was over and the sanction was obtained, the accused was accordingly prosecuted.
5A. The accused pleaded not guilty to the charge and his defence was one of total denial. It was suggested that the complainant was specifically told by him that his work could not be done as the partition was not legal offending the provisions of the Fragments. The complainant Natha, therefore, appears to have been enraged in not agreeing to his wish to effect the mutation and planted the amount. The accused has also explained the presence of powder on his left hand fingers by suggesting that the complainant Natha when insisting the accused to get the money from him he had raised his hand and moved the hand signifying his refusal, his hand touched the hand of the complainant.
5B. At the trial the prosecution examined 7 witnesses but the evidence of following four witnesses would assume importance.
P.W. 1 complainant Natha, P.W. 2 Panch Ravindra Kulkarni, P.W. 3 Tahsildar Dattatraya Bhalerao, P.W. 4 Subhash Lambaji and P.W. 7 C. N. Shinde, Investigating Officer.
6. On going through the evidence of these witnesses the learned trial Judge believed the testimony of the complainant as corroborated by Panch Ravindra on the point of demand and acceptance of Rs. 100/- as bribe amount for effecting mutation. The learned Special Judge has not accepted the explanation offered by the accused as plausible for presence of phenolphthalein powder on his right hand fingers.
7. The question arises is whether the conviction recorded on the basis of the statement of the complainant as corroborated by the Panch Ravindra was sustainable in law.
8. Mr. Sharma, learned counsel appearing for the appellant, in the first place, has taken me through the evidence of these witnesses. The learned counsel argued that the Court below has not at all appreciated the evidence in its proper perspective. It has been argued that no reliance could be placed on the interested testimony of the complainant Natha in the absence of independent corroboration on the question of demand. Quite apart it has also been submitted that admittedly the prosecution attempted to examine P.W. 4 Subhash Limbaji Khand as a witness on the point of initial demand by the accused. Not only that but he too was examined as a witness to the events that have taken place on 13-10-1987 in the office of the accused but curiously enough the witness has not supported either the complainant Natha or the Panch Ravindra and therefore, in the fitness of things, the Court below ought to have discarded the entire version of the complainant as sought to be corroborated by the Panch. The learned counsel has relied upon a number of circumstances to show that the doubt emerges to believe the testimony of the complainant and the Panch on the point of demand and acceptance of Rs. 100/-. The learned counsel has also submitted that there are circumstances which would throw a considerable light to accept the explanation offered by the accused as plausible. It is thus submitted that the conviction of the accused was not legal and proper in law.
9. Mr. Varale, learned Additional Public Prosecutor for the State, no doubt, tried to support the conviction of the appellant on the evidence of the aforesaid witnesses.
10. In order to appreciate the evidence of the complainant Natha as well as Panch Ravindra it cannot escape notice that the prosecution examined P.W. 4 Subhash Khand as an independent witness on the point of demand on 7-10-1987 by the accused. He also happens to be a witness by co-incidence to the demand of bribe on 13-10-1987 in the office room of the accused when the complainant is said to have given Rs. 100/- as a bribe amount to the accused. Significantly P.W. 4 Subhash, however, does not support the prosecution version about the events either of 7-10-1987 or 13-10-1987. There is hardly any ground for the witness Subhash not to support the prosecution version unless, I think, there was an element of truth that it was merely an illegitimate trap.
The complainant Natha whole-heartedly accepted the fact that he and Subhash went to the accused on 7-10-1987 and in presence of Subhash he handed over his application along with the copy of the partition deed for effecting the mutation. That application is produced at Exhibit 10. It is his version that at that time the accused demanded Rs. 400/- for effecting mutation on the basis of partition and after he showed his inability to pay that much amount the accused of his own reduced the demand of Rs. 400/- to Rs. 300/- and from Rs. 300/- to Rs. 150/- and that too in the presence of witness Subhash. He has stated that on that day he paid Rs. 50/- to the accused and the accused asked him to bring the balance of Rs. 100/- on 13-10-1987. His evidence shows that he slept over the matter from 7th to 13th October, 1987, when in the morning at about 8.30 a.m. according to him, he came to Aurangabad and filed his complaint, Exhibit 16 with the Deputy Superintendent of Police, Anti-Corruption, Shri Shinde. In the complaint there is a clear recital that the demand was made by the accused in the presence of witness Subhash.
The other part of his evidence is that he and Panch Ravindra sat in front of the accused, within 5/10 minutes thereafter the witness Subhash had also come there and he sat behind him facing the accused. He has stated that he then opened the talk by saying that on 7-10-1987 he gave Rs. 50/- he had brought the remaining amount of Rs. 100/-. He then asked the accused as to when he would sanction the mutation and the names of his brothers will be entered in the village record. It is his version that the accused told him that he should hand over the amount to him if he had brought it. According to him, he took out the amount from his pocket by left hand and held it before the accused, asked the accused to accept the same but the accused, however, asked him to place the amount on the ground. It is the version of the complainant that he did not place the amount on the ground but he was holding the amount. He told the accused that he was in hurry to go. It is, therefore, his version that the accused accepted the amount by his left hand. But at the same time, the accused placed the amount on the carpet near his left lap.
11. In this context, it is also his version that the witness Subhash had also demanded 7/12 extract of his land from the accused. The accused was searching for a gut book. Subhash was having talk with him.
Now, P.W. 2 Panch Ravindra, no doubt, lends corroboration to that part of the evidence of the complainant Natha about his talk with the accused and handing over of Rs. 100/- to the accused in his right hand and the accused-keeping the same on the carpet below his lap. But the Panch Ravindra admits the presence of the witness Subhash right from the beginning. He also admitted that the accused was searching for a register to give 7/12 extract to the witness Subhash.
Keeping in view the explanation offered by the accused, the question arises whether the narration of events by the complainant Natha as sought to be corroborated by Panch Ravindra inspired confidence. Normally for no reasons whatsoever the witness Subhash who happens to be the friend and man of confidence of the complainant Natha would have refused to support the complainant and the Panch Ravindra. It is true that the prosecution cross-examined the witness Subhash merely on the ground that he has not accepted some statements in his previous statement before the Police as correct. He stated that on 5-10-1987 the document of partition was executed by Natha and his brothers. He was present. He was called for partition at that time. Not only that but that document of partition was written by Natha himself in his presence. He is also a signatory to the said document, Exhibit 14. Further he stated that two days thereafter he went to the office of the Talathi along with Natha. The complainant handed over the application to the accused for effecting mutation. The version is that the accused had told the complainant that it was not possible but the complainant insisted on the accused to get the work done. The accused, therefore, obtained Natha's signature as well as his own signature in the register. The witness identifies his signature on Form No. 9 and signature of the complainant on its reverse side. It is also his version that the accused had made it clear to the complainant Natha that it was not possible to get his work done for the time being. That was the only talk, according to him, that has taken place on that day. It is his version that again 7/8 days thereafter he went to the accused to get 7/12 extract of his land. It was a Bazar day. At that time he met Natha and one more person in the office of the accused when he demanded 7/12 extract from the accused. The accused got up and was searching the record. At that time, the complainant inquired with the accused if his work is done. The accused, however, told him that his work could not be done. Thereafter the complainant again repeated his request to get the work done and Natha offered money to the accused. The accused, however, told Natha that he does not want money as his work was not possible for the time being. Natha then kept the amount near the accused on the carpet. This is what the witness Subhash has said in examination-in-chief.
The witness was cross-examined by the prosecution and also by the accused. It is his further version that the accused had told Natha that the partition deed which he has produced was not as per the rules and no mutation can be effected on that basis. He also stated that when the complainant was pressing the accused to accept the money from him, the accused showed his unwillingness to take the money by shaking his hand.
12. It will be thus seen that there is variance in the evidence of the complainant, Panch Ravindra on one hand and the witness Subhash on the other. The witness Subhash has, as a matter of fact, corroborated the explanation offered by the accused in regard to the presence of powder on his right hand. In this context it is necessary to point out from the evidence of witness P.W. 6 Tehsildar Ubale that as per the Government Resolution the minimum area for dry land is 2 acres and for irrigated land it is 20 gunthas for the purpose of fragmentation. He stated that there can be no fragmentation other than the minimum area prescribed by the Act. So there can be no partition of the land below the standard area fixed under the Act. In regard to the application of the complainant Natha for effecting the mutation on the basis of partition, the witness said that legally there can be no mutation of the land. P.W. 3 Dattatraya Bhalerao, Tehsildar, under whom the accused was working stated that the Tehsildar and the Naib Tehsildar are empowered to sanction the mutation on the basis of partition. He further stated that there were no complaints against the accused relating to his official work nor was there any complaint demanding money from others for such work.
It is, therefore, quite clear from the evidence of these officers that to effect the mutation the application ought to be first sanctioned by the Tehsildar or the Naib Tehsildar on the basis of such partition. It was therefore not in the hands of the accused to effect the mutation as soon as the application was made to him. This circumstance, independently, lends assurance to the testimony of the witness Subhash. In this context, it is necessary to emphasise that the evidence of a hostile witness cannot be brushed aside completely if his evidence is otherwise corroborated by independent source.
There is also patent discrepancy in the evidence of the complainant and the Panch on one hand the witness Subhash on the other. In the first place it is not clear from the evidence of the complainant Natha and the Panch Ravindra as to what point of time the accused stood and was searching for the register for supplying 7/12 extract to the witness Subhash. It is also not clear from their evidence as to at what point of time the witness Subhash had come there. The complainant Natha tried to suggest that within 4/5 minutes after he reached the office of the accused, the witness Subhash had come there. That means the witness came after his talk with the accused. Quite a part, his version further shows that when he tried to tender the amount to the accused, the accused has said "kai ghai aahai" The Panch Ravindra in his cross-examination, however, contradicts the complainant Natha and has said that the witness Subhash met them in Bazar and they three together went to the office of the accused. He, therefore, admits the presence of Subhash right from the beginning in the office room of the accused. Quite a part, the Panch Ravindra fails in his memory to tell if the accused had told the complainant Natha that his work could not be done. He also failed in his memory if the accused demanded money from the complainant on his own accord. He also failed in his memory to say if the accused stated that he does not want the money.
It is, however, clear from the evidence of Panch Ravindra that the accused had got up for taking over the register, when the Police Constable Yakub came inside and caught hold of his hand. In this context, it is necessary to point out from the evidence of the Deputy Superintendent of Police, Anti-Corruption, Shri Shinde, that he could see from outside what was going on in the room of the accused and according to him, when the accused was in a sitting position his hands were caught hold of by the Police Constable Yakub. It is the version of the Deputy Superintendent of Police, Shri Shinde, that when he asked the accused as to where the amount of Rs. 100/- was accepted by him from the complainant, the accused told that the amount was lying by the side of his left lap. It is significant to note that neither Pyjama or pant of the accused was seized nor it was examined from the point of view if the powder was on that portion of his lap. There is no explanation from the prosecution as to why the Pyjama of the accused was not examined from that point of view. The Investigating Officer was confronted with the averments in the complaint and the fact that the accused pointed out the money by lifting his lap is not mentioned either in the complaint or in the post-trap panchanama. It is also not clear from the aforesaid evidence, whether the hands of the accused were caught hold of by the Police Constable Yakub when the accused was in standing position.
It can be legitimately inferred that the moment the accused stood for searching the register, there was opportunity for the complainant to keep the amount on the carpet without knowledge of the accused especially when no demand for money was made by the accused. If the accused had sat when the hands were caught hold, the finding of the currency notes below his left lap would stand explained as the theory of planting. Non-examination of that portion of apparel of the accused, in my opinion, would also throw a considerable doubt if the amount was really kept by the accused by his own hand or it was by the complainant. The possibility of the accused coming in contact with the hands of the complainant soon after or before he could give signal cannot also be ruled out.
13. It may be stated that when the witness Subhash does not corroborate the complainant, essential part of the prosecution story that the accused demanded Rs. 150/- from the complainant on 7-10-1987 will have to be discarded as not proved. If it were a case that the accused had demanded Rs. 150/- on 7-10-1987 and the complainant wanted to make a complaint in that behalf, why the complainant had kept silent from 7th to 13th October, 1987, has not been explained by the complainant in his evidence. The conduct of the complainant in keeping silence is a circumstance suggesting improbability in his version when the accused demanded Rupees 150/- on 7-10-1987 in presence of the witness Subhash. If regard be had to the evidence of the complainant when he narrated the events of 13-10-1987, prominent feature of his version is that there was no demand from the accused of his own for Rs. 100/- but it is the complainant who himself has talked about the said demand of part payment. His evidence further suggests that for a considerable time, the accused did not show his anxiety to receive the amount from him nor has he asked the complainant to pay him the amount first. The talk that the accused had with the complainant was said to be in presence of a stranger, Panch inasmuch as, it is common version of these witnesses that the accused did not bother to inquire about the Panch Ravindra. That further shows that the accused did not give serious thought to the presence of witness Subhash. Normally the bribe amount is not accepted in presence of a stranger. The accused would not have accepted the bribe amount in presence of the Panch Ravindra. The very fact that the accused did not enquire about the Panch demonstrates his behaviour consistent with his innocence. Thus, the circumstances undoubtedly show that the acts attributed to the accused are against the normal course of human behaviour. That again throws a considerable doubt on the prosecution version. Where the prosecution evidence is clouded with such circumstances against the normal human behaviour, then a reasonable doubt arises and it would be dangerous to act on that part of the prosecution version. In my opinion, the evidence adduced by the prosecution is of such a nature that if after that can be legitimately considered has been given due weight, room still exists for taking the view that howsoever stronger opinion raised against the accused, every reasonable possibility of his innocence has not been excluded. In the circumstances, the accused would be entitled to acquittal. In that view of the matter, it cannot be said that the learned Special Judge was justified in recording conviction against the accused with this state of evidence. I, therefore, differ from the view taken by the learned Special Judge. The accused in this case is entitled to the benefit of doubt since the prosecution has not proved its case against the accused beyond all manners of doubt.
14. The appeal is, therefore, allowed. The conviction and sentence passed against the appellant-accused is hereby quashed. The accused is acquitted. Fine, if paid, be refunded. His bail bond stands cancelled.
15. Appeal allowed.