Bombay High Court
Ramdas Gunwantrao Dange (Dead) Through ... vs State Of Mah.Thr. Pso Amravati on 17 July, 2018
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.116 of 2004
Ramdas Gunwantrao Dange
Aged about 62 years, Occ.-Retired,
Resident of Police Quarters, Amravati. .... (Dead)
(Since deceased thr legal representatives)
1] Mathurabai wd/o Ramdas Dange, (Amended as per Court's
Aged about 75 years, Occ.-Household, order dated 22.04.2014)
R/o.-Azad Chowk, Karajgaon,
Tah.Chandur Bazar, District Amravati.
2] Maya Satishrao Nimbhorkar,
Aged 35 years, Occ.-Household,
R/o.-Kondwardha, Post Talegaon (Mohana),
Tah. Chandur Bazar, District Amravati.
3] Chhaya Kamleshrao Patil (Dhanorkar),
Aged 30 years, Occ.-Household,
R/o.-Wadodhara, Mujmoda, Old Padra Road,
Opp.Parvi Balak Mandir, Wadodara,
Tq. and District Wadodara.
4] Anjali Nivruttirao Munekar,
Aged 27 years, Occc.-Household,
R/o.-Abadwada, Post Shirasgaon Band,
Tah. Chandur Bazar, District Amravati. .... Appellants.
-Versus-
State of Maharashtra,
Through Anti Corruption Bureau, Amravati,
District Amravati. .... Respondent.
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Shri P.R. Agrawal, Adv for appellants.
Mrs. Shamsi Haider, APP for State.
Coram : Manish Pitale, J.
Dated : 17 July, 2018.
th
ORAL JUDGMENT
By this appeal, the appellant has challenged judgment and order dated 06-02-2004 passed by the Court of Additional Sessions Judge, Amravati (trial Court) in Special Case (ACB) No. 9 of 1994, whereby the trial Court convicted him for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 [for short, 'Act of 1988'] and he stood sentenced to suffer rigorous imprisonment for six months and one year on the two counts and to pay fine of Rs. 250/- each on the two counts. During the pendency of this appeal, the appellant died and by order dated 22-04-2014, his legal representatives were permitted to be brought on record for prosecuting this appeal. For the sake of convenience, although deceased, the original accused is being referred to as the appellant in this judgment.
2] The prosecution case in brief is that at the relevant time, the appellant was working as Head Constable. Complainant Sheshrao Deora (PW-1) claimed that the appellant had visited his village in connection with verification of a complaint lodged against him by the wife of one Balu Ingle about indecent assault on her. According to the prosecution, on 15-09-1993, the appellant had visited the village and he made a demand of Rs. 200/- from the complainant (PW-1) in presence of villagers for hushing up the case filed against him. The complainant (PW-1) claimed that the villagers convinced him to pay the amount and accordingly he paid the ::: Uploaded on - 23/07/2018 ::: Downloaded on - 24/07/2018 00:42:05 ::: 3 170718 apeal 116.04. judg..odt amount of Rs. 200/- to the appellant. The appellant then left the village.
3] Thereafter, the appellant allegedly again visited the village for investigation after about 4/5 days and demanded further amount of Rs. 50/- from the complainant (PW-1). Being harassed by the appellant, complainant (PW-1) submitted a written complaint to the office of the Anti Corruption Bureau (ACB) on 11-10-1993, whereby, a trap was organized against the appellant. The Investigating Officer Ramesh Pawde (PW-4) arranged for two panchas and made preparation for execution of the trap by applying phenolphthalein powder to three currency notes totalling to Rs.50/-. The raiding party including PW-1 and shadow witness Prakash Gotmare (PW-2), were made aware about the manner in which the trap was to be executed. Thereafter, at about 4.00 pm the entire team left for executing the trap against the appellant. On reaching village Mahuli, it was found that the appellant was at a bus stand and that a friend of the complainant (PW-1) i.e. one Baban Dhote asked the appellant to have a cup of tea at a hotel. It is at this place that the complainant (PW-1) and shadow witness (PW-2) met the appellant where the demand of illegal gratification was made and the said currency notes were handed over by the complainant (PW-1) to the appellant, who kept those notes in the pocket of his shirt. Upon pre-decided signal being given by the complainant (PW-1), the Investigating Officer and other members of the raiding party apprehended the appellant and procedure of pouring Sodium Carbonate solution was undertaken and samples were collected. Panchanama no.2 (post trap panchanama) was prepared and offences under the Act of 1988 were registered against the appellant.
::: Uploaded on - 23/07/2018 ::: Downloaded on - 24/07/2018 00:42:05 :::4 170718 apeal 116.04. judg..odt 4] In support of its case, the prosecution examined five witnesses. (PW-1) Sheshrao Deore was the complainant, (PW-2) Prakash Gotmare was the shadow witness, (PW-3) Purushottam Katde was panch witness no.2, (PW-4) Ramesh Pawde was the Investigating Officer and (PW-5) Anil Dhere was the sanctioning authority who granted sanction for the prosecution of the appellant as he was a public servant.
5] On the basis of the oral and documentary evidence placed on record by the prosecution, the trial Court by the impugned judgment and order convicted and sentenced the appellant in the aforesaid manner. Being aggrieved by the same, the appellant filed this appeal.
6] Shri P.R. Agrawal, learned Counsel appearing on behalf of the appellant, submitted that the trial Court had erred in convicting and sentencing the appellant because there was hardly any evidence placed on record by the prosecution for demand of illegal gratification by the appellant. It was submitted that the initial demand allegedly made on 15-09-1993, was not at all proved because witnesses, although available, were not examined other than the complainant (PW-1). As regards the demand on the date when the trap was executed, it was submitted that the complainant (PW-1) himself did not clearly and empathetically prove such demand of illegal gratification by the appellant. It was further submitted that the evidence of shadow witness (PW-2) when compared with that of the complainant (PW-1) was full of discrepancies and variances, thereby demonstrating that these two most important witnesses for the prosecution had failed to prove the basic fact of demand of illegal gratification by the appellant. It was further submitted that the evidence of shadow witness ::: Uploaded on - 23/07/2018 ::: Downloaded on - 24/07/2018 00:42:05 ::: 5 170718 apeal 116.04. judg..odt no.2 was rendered unreliable because he conceded in his cross examination that he had been supplied copies of his statement as well as panchanama and that he had brought those documents to the Court, of which most of the paragraphs were underlined by red ink. On this basis, it was submitted that the entire testimony of the shadow witness (PW-2) could not have been looked into by the trial Court.
7] It was further submitted that panchanama no.2 recorded that the appellant had given a written explanation immediately after the trap was executed and that it was signed by the appellant as also the Investigating Officer. But, the prosecution deliberately suppressed the said document for which an adverse inference was required to be drawn. It was further submitted that in the same panchanama no.2, it was clearly recorded that the statements of the hotel owner where the trap was executed and the other persons in the vicinity were recorded by the Investigating Officer, but they were not examined as witnesses. This was another circumstance creating a serious doubt about the prosecution case. It was further submitted that although the shirt worn by the appellant at the time when the trap was executed was seized, but it was never sent for chemical analysis. Only the liquid Sodium Carbonate which had allegedly changed colour was sent for chemical analysis. It was submitted that since the prosecution had come up with a positive case that the appellant had kept the bribe amount in his shirt, it was necessary to send the shirt for chemical analysis. It was submitted that not only the prosecution unable to prove its case but the defence of the appellant of false implication was shown to be a probable defence. On this basis, the learned Counsel appearing for the appellant submitted that the appeal deserved to be ::: Uploaded on - 23/07/2018 ::: Downloaded on - 24/07/2018 00:42:05 ::: 6 170718 apeal 116.04. judg..odt allowed. The learned Counsel placed reliance on the judgment of the Hon'ble Supreme Court in the case of Mukhtiar Singh (since deceased) through his L.R. vs State of Punjab, reported at 2018(1) Mh.L.J. (Cri.) (S.C.) 1 and judgments of this Court in the case of Yashwant s/o Sambhaji Dadmal vs State of Maharashtra, reported at 2012 All MR (Cri) 2966, Sharad Namdeorao Shirbate vs State of Maharashtra, reported at 2007 All MR (Cri) 352, Suresh Purushottam Ashtankar vs State of Maharashtra, reported at 2015 All MR (Cri) 4243, Bismillakha s/o Salarkha Pathan vs State of Maharashtra, reported at 2004 All MR (Cri) 1341 and recent judgments of this Court in the case of Sukhdeo Laxman Parale vs State of Maharashtra (Criminal Appeal No.597 of 2003) and Namdeo s/o Bakaramji Pagare vs State of Maharashtra (Criminal Appeal No.618 of 2003).
8] On the other hand, Mrs. Shamsi Haider, learned APP appearing on behalf of the State submitted that the trial Court had properly appreciated the oral and documentary evidence on record while convicting and sentencing the appellant. It was submitted that the evidence of complainant (PW-1) and shadow witness (PW-2) was sufficient to prove the prosecution case. It was submitted that the deficiencies and discrepancies said to be highlighted on behalf of the appellant did not go to the very root of the matter and that no interference was warranted in the impugned judgment and order passed by the trial Court.
9] Heard Counsel for the parties and perused the record. In the present case, the prosecution has come out with a positive case that initial demand was made by the appellant on 15-09-1993, when he allegedly ::: Uploaded on - 23/07/2018 ::: Downloaded on - 24/07/2018 00:42:05 ::: 7 170718 apeal 116.04. judg..odt visited the village of the complainant (PW-1) for investigating the complaint that had been filed against him. It has come in the evidence of complainant (PW-1) that there were villagers present when the appellant made demand of illegal gratification of Rs. 200/- for hushing up the case and that on the villagers convincing the complainant (PW-1), he paid the said amount to the appellant. The prosecution has not examined a single villager in order to corroborate the aforesaid claim made by the complainant (PW-1). It has also come in the evidence and material placed on record by the prosecution that the complainant (PW-1) had claimed that his wife had given the said amount of Rs. 200/- to the appellant. She was also not examined by the prosecution, In this situation, there was hardly any evidence with regard to the initial demand allegedly made on 15-09- 1993 by the appellant and payment of illegal gratification of Rs. 200/- on the said date by complainant (PW-1) to the appellant.
10] As regards the written complaint submitted by complainant (PW-1) to the office of the ACB on 11-10-1993, it was stated by the complainant (PW-1) himself that he was accompanied by his friend Baban Dhote, when he lodged the said complaint. But, the said Baban Dhote was not examined by the prosecution. As regards the manner in which the trap was executed on 11-10-1993, the evidence of complainant (PW-1) shows that according to him, the appellant was present at bus stand from where his friend Baban Dhote brought the appellant to a hotel to have tea. According to the complainant (PW-1), while having tea the appellant made demand of money upon which the tainted currency notes were handed over to him, which he kept in the pocket of his shirt. The panchanama no.2 dated 11-10-1993 records that the statement of the hotel owner along with ::: Uploaded on - 23/07/2018 ::: Downloaded on - 24/07/2018 00:42:05 ::: 8 170718 apeal 116.04. judg..odt statements of other persons in the vicinity including the owner of pan stall, were recorded by the Investigating Officer. But, none of the said persons have been examined. It is only the statement of the complainant (PW-1) which is on record, as regards the alleged demand made by the appellant at the time when the trap was executed. In this regard, the learned Counsel appearing for the appellant is justified in relying upon the judgment of this Court in the case of Yashwant Dadmal (supra), wherein this Court has held that when the prosecution failed to examine material witnesses, it created a doubt about the prosecution case. In the present case, the hotel owner and others whose statements were recorded by the Investigating Officer should have been examined by the prosecution to corroborate the evidence of complainant (PW-1). Having failed to do so, it creates a doubt about the prosecution case. As regards the evidence of shadow witness (PW-2), a perusal of the same shows that the description of the events given by this witness about the manner in which the trap was executed, was at variance with the evidence of complainant (PW-1). There were discrepancies as regards the manner in which the appellant came to the place where the trap was executed and the manner in which the pre- decided signal was given to the Investigating Officer. That apart, most crucial aspect of the evidence of (PW-2) shadow witness was that in cross examination he admitted as follows :-
"I had received summons in the last week. I had received another summons before about three months. Then I had been to the A.C.B. office where I received the copies of statement and panchanama.
The incident took place in the year 1993. I had accepted the papers in this case as the A.C.B. personnel happened to give it to me. They did not ::: Uploaded on - 23/07/2018 ::: Downloaded on - 24/07/2018 00:42:05 ::: 9 170718 apeal 116.04. judg..odt tell me anything about the said document. Today I have brought those documents in the Court. Most of the paras are underlined with red ink."
11] The above quoted portion clearly shows that before deposing in the Court, the shadow witness (PW-2) had carried copies of his statement and the panchanama, part of which were underlined in red ink. This clearly shows that said witness refreshed his memory before standing in the witness box for deposing in support of the prosecution case.
12] In the case of Suresh Ashtankar (supra), a Division Bench of this Court, in this context, held as follows :-
"30. In the cross examination, Sharyu (PW1) has admitted as under :
" It is true that, today, I have read my statement. It is true that police had given the same to me. It is true that the said police Officer is sitting in the Court hall. "
31. In the backdrop of the aforesaid evidence, it will be useful to refer reported decision by the learned Single Judge of this Court (R.C.Chavan, J) reported in 2006 (2) Mh.L.J. (Cri) 1210, Sharad s/o. Namdeorao Shirbhate vs. State of Maharashtra.
32. In para 10 of the said reported Judgment, the learned Single Judge found that Pundlik (PW1) has admitted that the police had read over his statement to him and also told him to tender the evidence as per his statement. The learned Single Judge has observed thus :
::: Uploaded on - 23/07/2018 ::: Downloaded on - 24/07/2018 00:42:05 :::10 170718 apeal 116.04. judg..odt "There would indeed be nothing wrong in the witness refreshing his memory, but that ought to be done before the Court and not outside the Court. In order to test the veracity of a witness, he would be required to recollect the incident out of his own memory and should he falter on some material aspect, he could be allowed to refresh his memory with reference to the contemporaneous records of the incident created by the police.
It would not be permissible for such witness to stealthily refresh his memory before entering the Court and deposing about the entire evidence giving minute details as if he was reeling them out from his memory.
Therefore, the objection to the reliability of evidence of PW 2 Prabhakar taken by learned Counsel for the appellant is valid."
(emphasis is supplied by us).
We approve the dictum of the learned Single Judge in that behalf."
13] Division Bench of this Court has approved the dictum of law laid down by a learned Single Judge of this Court in the case of Sharad Shirbhate (supra). Applying the said position of law, it becomes clear that the evidence of shadow witness (PW-2) in the present case was rendered wholly unreliable and that the trial Court could not have looked into the same.
14] Apart from this, panchanama no.2 dated 11-10-1993 has recorded that immediately after the trap was executed the appellant gave ::: Uploaded on - 23/07/2018 ::: Downloaded on - 24/07/2018 00:42:05 ::: 11 170718 apeal 116.04. judg..odt his reply in his own handwriting, which was read by both the panch witnesses. It was signed by the appellant, the panch witnesses as also the Investigating Officer (PW-4). But, the said written reply/explanation submitted by the appellant immediately after the trap was executed, was not brought on record by the prosecution. This has a material bearing on the present case. In the case of Bismillakha (supra), this Court held as follows :-
"However, there is one more important circumstance and i.e the statement to be found in the post trap panchanama to the effect that immediately after the trap was sprung, both the accused were asked by P.I Dhok and they gave their version regarding acceptance of money. It is the express prosecution case which can be found in the panchnama that the version given by accused was reduced to writing and signed by the panchas as well as P.I Dhok. The contents of what was mentioned in these two writings was not found in the panchanama as those were separate documents. However, for reasons best known to the prosecution, these documents have not been brought before the Court in the trial. The panchas examined as well as P.W 7 Dhok but do not utter a single word about this first version given by the two accused in writing immediately after the trap was sprung. This circumstance of suppressing the first version as given by two accused, according to him, is a very important circumstance which raises a shadow of doubt about the veracity of the prosecution case. The duty of the prosecution is to bring the entire truth as found before the Court. It appears to me that these two vital documents have been kept back from the trial. In my view, in such circumstances, these writings were evidence which could be produced and which were in the hands of the Investigating agency and which could have been produced as evidence in the Court but was not produced. By virtue of Section 114 of ::: Uploaded on - 23/07/2018 ::: Downloaded on - 24/07/2018 00:42:05 :::
12 170718 apeal 116.04. judg..odt the Indian Evidence Act, the Court would be entitled to presume that had these documents been produced, they would not have favoured the prosecution which had withheld these documents. Useful reference can be made to illustration (g) of Section 114 of the Indian Evidence Act, in this regard."
15] Thus, it becomes evident that once the prosecution suppresses the first version given by the accused an adverse inference is required to be drawn against the prosecution. It is to be presumed that such version favoured the accused (appellant) in the present case and that the prosecution deliberately suppressed the same. On this ground also the prosecution case suffers from serious weakness.
16] A perusal of the report of chemical analysis (Exhibit-43) shows that only pink colour liquid in four bottles was sent for analysis by the prosecution. The seizure memo shows that tainted currency notes were seized and Exhibit-27 shows that the shirt worn by the appellant at the time when the trap was executed also seized during investigation. But, neither the tainted currency notes nor the shirt were sent for chemical analysis. This is crucial, because as per the version of the prosecution witnesses, the appellant had accepted the tainted currency notes and kept them in the pocket of his shirt. Having seized the shirt and the tainted currency notes vide Exhibits-26 and 27 and thereafter having failed to send the same for chemical analysis, further demonstrates that the prosecution case suffers from serious infirmities.
17] But, the trial Court has not taken into consideration any of ::: Uploaded on - 23/07/2018 ::: Downloaded on - 24/07/2018 00:42:05 ::: 13 170718 apeal 116.04. judg..odt these infirmities that were obvious from the evidence and material on record. The evidence of shadow witness (PW-2) was rendered wholly unreliable and it could not look into by the trial Court. For the reasons given above, only the evidence of the complainant (PW-1) remained to support the prosecution case. But, when the evidence of complainant (PW-1) is read with the entire material on record, it appears to be discrepant and unreliable. In such a situation, there is hardly any evidence on record to prove demand of illegal gratification by the appellant in the present case. In the case of Mukhtiar Singh (supra), the Hon'ble Supreme Court held as follows :-
"14. The indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, has by now engaged the attention of this Court on umpteen occasions. In A. Subair vs. State of Kerala, this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State of Kerala vs. C.P. Rao that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
15. In P. Satyanarayana Murthy (supra), this Court took note of its verdict in B. Jayaraj vs. State of A.P. underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section ::: Uploaded on - 23/07/2018 ::: Downloaded on - 24/07/2018 00:42:05 ::: 14 170718 apeal 116.04. judg..odt 7 as well as Section 13(1) (d) (i) and (ii) of the Act. It was recounted as well that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the Act, it was held as well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the pre-requisites of Sections 7 and 13 and the proof thereof summed up its conclusions as hereunder:
"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder."
(emphasis supplied)"
18] Thus, it is a sine qua non for the prosecution to prove demand of illegal gratification to establish the charges under Sections 7 and 13 of the Act of 1988. In the light of the above discussion, it is clear that the ::: Uploaded on - 23/07/2018 ::: Downloaded on - 24/07/2018 00:42:05 ::: 15 170718 apeal 116.04. judg..odt prosecution in the present case failed to prove demand of illegal gratification by the appellant and even acceptance of illegal gratification was rendered doubtful and suspicious. In this situation, the explanation sought to be given by the appellant under Section 313 of the Code of Criminal Procedure, 1973, regarding false implication appears to be probable. The evidence and material on record clearly shows that the prosecution failed to prove the foundational facts regarding demand of illegal gratification by the appellant and therefore, presumption under Section 20 of the Act of 1988, did not get triggered in the present case. In any case, the defence version of false implication appears to be probable in the face of the evidence and material on record. This demonstrates that the trial Court committed error in convicting and sentencing the appellant under the provisions of the Act of 1988.
19] In the light of the above, this appeal is allowed. The impugned judgment and order passed by the trial Court is set aside and the appellant is acquitted of the offences for which he was charged. As noted above, the appellant died during pendency of this appeal and his legal representatives were permitted to prosecute this appeal. In this situation, the fine amount, if paid, shall be refunded to the legal representatives of the appellant.
JUDGE Deshmukh ::: Uploaded on - 23/07/2018 ::: Downloaded on - 24/07/2018 00:42:05 :::