Bombay High Court
State Of Mah. Thru Anti Corruption ... vs Haribhau Rajaram Tekade & Anor on 24 May, 2017
Author: Vasanti A. Naik
Bench: Vasanti A. Naik
c.appeeal.675.06
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO.675/2006
The State of Maharashtra
Through Anti Corruption Bureau,
Nagpur Dist. Nagpur. .. APPELLANT
v e r s u s
1) Haribhau s/o Rajaram Tekade
Aged 56 years, occu: service
R/o Katol, Dist. Nagpur.
2) Anil s/o Pandlikrao Dambhale
Aged 22 years, occu: Business
R/o Katol, Dist. Nagpur. .. ... RESPONDENTs
...........................................................................................................................
Mr. K.R. Lule, Additional Public Prosecutor for appellant-State
Mr.R.M.Daga, Advocate for respondent nos. 1 and 2
............................................................................................................................
CORAM: SMT. VASANTI A. NAIK,J .
DATED : 24th May, 2017
ORAL JUDGMENT:
By this Criminal Appeal, the appellant-State of Maharashtra challenges the judgment dated 21st August 2006, in Special Case No.5/1998 acquitting the respondents/accused of the offences punishable under sections 7, 13(1)(d) read with Section 13(2)of the Prevention of Corruption Act, 1988.
2. According to the prosecution case, complainant-Gulab was a resident ::: Uploaded on - 12/06/2017 ::: Downloaded on - 28/08/2017 03:40:31 ::: c.appeeal.675.06 2 of village Walni and his brother-Ashok had lodged a report against him and his two sons Rajendra and Sanjay that they had assaulted Ashok. On the report of Ashok, Crime No. 75/1997 was registered against complainant-Gulab and his two sons for the offences punishable under Sections 324 read with Section 34 of the Penal Code. At the relevant time, the respondent no.1/accused No. 1-Haribhau Tekade was attached to Police Station, Katol as an Assistant Police Sub-Inspector. After registration of the crime against the complainant and his two sons, accused no.1-Haribhau took complainant-Gulab from his village to the Police Station at Katol on 12.03.1997 and arrested him on the same day. The complainant-Gulab was produced before the Court in the said crime and was released on bail. Accused No.1-Haribhau Tekade asked the complainant to bring his two sons to the Police Station as a crime was registered against them also. Since both the sons of the complainant were appearing for the annual examination, the complainant took them to the Police Station on 18.03.1997. Natthu Savarkar PW-4 also accompanied them for furnishing surety. On 18.03.1997 when the complainant went to the Police Station along with his two sons, accused no.1-Haribhau told PW 4-Savarkar that if he would give him "pk;ikuhdk [kpkZ" i.e. some amount, he would tell his officers to release the sons of the complainant, on bail. Natthu Savarkar agreed to pay the amount and thereafter, at the instance of accused no.1-Haribhau, an application for releasing the sons of the complainant on bail was made. Accused No.1 then produced the complainant before the police officer and ::: Uploaded on - 12/06/2017 ::: Downloaded on - 28/08/2017 03:40:31 ::: c.appeeal.675.06 3 accused no.1-Haribhau was asked by the Police Officer to release both the sons of the complainant on bail. The accused no.1 then demanded an amount of Rs. 400/- from the complainant. The complainant expressed his inability to pay the said amount and requested that the amount should be reduced to Rs. 200/-. The accused no.1,however, said that the amount would not be reduced. The complainant agreed that till 21st March 1997, he would collect and pay the amount to accused No.1 Haribhau. Since the complainant did not pay the amount to the accused no.1 till 21st March 1997, the accused no.1 sent a message to the complainant through Savarkar on 25th March 1997, reminding him about the payment of money. The accused no.1 threatened that if the amount was not paid by the complainant, his sons would be put behind the bars, under section 151 of the Code of Criminal Procedure. Since the complainant did not desire to pay the amount to the accused no.1, he filed a complaint in the office of the Anti Corruption Bureau on 26th March,1997. The pre-trap procedure and the importance of the phenolphthalein test was explained to the accused and after completing the formalities, the raiding party went in a jeep from Nagpur to Katol. The complainant along with Panch No.1 Pramod Nawre (PW 3) went towards the Police Station. The accused no.1 asked him as to who had accompanied the complainant and the complainant told him that he (the Panch no.1) was his maternal nephew. The accused no.1 then took the complainant and Panch no.1 to the nearby pan- shop and told the complainant that the amount be handed over to the pan- ::: Uploaded on - 12/06/2017 ::: Downloaded on - 28/08/2017 03:40:31 :::
c.appeeal.675.06 4 shop keeper. Though the panshop was owned by Arun Dambhale (PW 5), the accused no.2-Anil, the real brother of Arun Dambhale, was sitting in the panshop at the relevant time. The complainant then took out Rs. 200/- from the pocket of his shirt and handed over the same to the accused no.2-Anil Dambhale who was managing the panshop and the said currency notes were placed by him on the plank of his panshop. The accused no.1 then went to the Police Station. The complainant gave the agreed signal to the raiding party and the raiding party apprehended the accused no.2-Anil Dambhale. The phenolphthalein test was conducted on the hands of the accused no.2 and since the solution's colour changed into violet, the same was collected in a sealed bottle and sent for chemical examination. Both the accused were arrested. The currency notes were seized and sealed in an envelope. The sanction to prosecute the accused no.1 was obtained from the Competent Authority. After the investigation of the case was completed, the trial Court framed the charges against the accused no.1. The defence of the accused nos. 1 and 2 was of total denial. The accused no.2 further stated that the amount of Rs. 200/-was paid by the complainant to him to clear the dues towards the purchase of bidis and other material from the pan-kiosk owned by PW 5-Anil Dambhale. The prosecution examined PW 1-Sudhakar Dhote, who had carried the first information report for its registration to Katol Police Station; PW 2 complainant-Gulab, PW 3-Pramod Nawre; Panch No.1; PW 4-Natthu Savarkar, who claimed to be one of the eye witnesses to the demand and acceptance of ::: Uploaded on - 12/06/2017 ::: Downloaded on - 28/08/2017 03:40:31 ::: c.appeeal.675.06 5 bribe by the accused no.1; PW 5-Arun Dambhale, the owner of the pan- shop, whose brother accused no.2-Anil Dambhale was found to be sitting at the time of the incident and had allegedly accepted Rs. 200/- from the complainant at the instance of accused no.1-Haribhau and PW 6-Kishor Naik, the Investigating Officer. On an appreciation of the evidence on record, the trial Court held that the accused no.1 was working as a public servant at the relevant time and though there was a valid sanction to prosecute the accused no.1, the prosecution had failed to prove that on 18.03.1997 and 21.03.1997 the accused no.1-Haribhau had demanded the bribe of Rs. 400/- from the complainant for showing favour to the complainant in discharge of his official duty. The trial Court held that the prosecution had failed to prove that the accused no.2-Anil Dambhale had accepted the bribe of Rs. 200/- on 26.03.1997 as per the direction of accused no.1-Haribhau and thereby aided and abetted in the acceptance of the amount. After having held so, the trial Court acquitted the accused no.1 of the offences punishable under sections 7, 13 (1)(d) read with Section 13(2) of the Act and the accused no.2 of the offences punishable under sections 12, 13 (1)(d) read with section13 (2) of the Act. The judgment of the trial Court acquitting both the accused of the offences referred to herein-above, is challenged by the State Government in this Criminal Appeal.
3. Shri K.R. Lule, the learned Additional Public Prosecutor submitted that the trial Court committed a serious error in acquitting the accused when the ::: Uploaded on - 12/06/2017 ::: Downloaded on - 28/08/2017 03:40:31 ::: c.appeeal.675.06 6 evidence of the complainant and the panch witness clearly proves the demand and acceptance of the bribe by the accused no.1. It is submitted that the when a prior demand was made, the complainant and PW 4-Natthu were present and both have testified in respect of the demand. It is submitted that the trial Court has failed to appreciate the evidence tendered by the prosecution in the right perspective while acquitting the accused no.1, particularly when the demand and acceptance is proved. It is stated that the defence of the accused no.2 is unacceptable, being an afterthought. It is stated that the trial Court has recorded a finding in respect of certain omissions without considering that each and every fact may not be stated in the first information report. It is stated that the evidence was recorded after a long lapse of time and, in view of the said gap, there was a possibility of variation in the statements and depositions of the witnesses. It is stated that the trial Court wrongly held that an amount of Rs. 271/-was due and payable by the complainant to the panshop owner Shri Arun Dambhale and that it is necessary to believe that the amount of Rs. 200/- was paid by the complainant to the accused no.2-Anil Dambhale, to clear the dues. It is submitted that in the circumstances of the case, the trial Court ought to have convicted the accused of the offences punishable under the provisions of the Act.
4. On a perusal of the original record and proceedings as also the judgment of the trial Court, it appears that the following points arise for consideration in this Criminal Appeal :-
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c.appeeal.675.06 7
(i) Whether the trial Court was justified in acquitting the accused no.1 and 2 of the offences punishable under the Act?
(ii) Whether the judgment of acquittal calls for interference ?
(iii) What order?
5. On a reading of the evidence of the prosecution witnesses and the judgment of the trial Court, it appears that there is no scope for interference with the judgment of the trial Court in an appeal against acquittal. A crime was registered in the Police Station, Katol against the complainant and his two sons. The complainant was arrested on 12.03.1997 and on 13.03.1997 he was released on bail. The complainant took his sons to the Police Station on 18.03.1997 after their examinations were over and at that time the complainant was accompanied by PW 4-Natthu Savarkar, for furnishing surety. On the said date, both the sons of the complainant were released on bail and it is the case of the prosecution that on 18.03.1997, accused no.1-
Haribhau demanded an amount of Rs. 400/- from complainant-Gulab through Natthu Savarkar, for "pk;ikuhdk [kpkZ". For proving the said demand on 18.03.1997, the prosecution has relied on the oral evidence of complainant- Gulab and PW 4-Natthu Savarkar. The trial Court found that the evidence of complainant-Gulab was contradicted by the evidence of Natthu Savarkar on material particulars. The trial Court found that though it is the case of the prosecution that on 18.03.1997, the complainant took his two sons to the Police Station when the accused no.1 had demanded the bribe of Rs. 400/- ::: Uploaded on - 12/06/2017 ::: Downloaded on - 28/08/2017 03:40:31 :::
c.appeeal.675.06 8 through PW 4-Natthu Savarkar, the complainant did not state in his evidence about taking his two sons to the Police Station on 18.03.1997. In Paragraph 4 of the deposition of the complainant, the complainant merely stated that the accused no.1 sent a message to him through PW 4-Natthu Savarkar that as crime is registered against the sons of the complainant, that the complainant should pay the accused no.1 "pk;ikuhdk [kpkZ" or else action would be taken against the sons of the complainant, under section 151 of the Criminal Procedure Code. It is stated by the complainant in his evidence that along with Natthu he went to the house of the accused and the accused demanded a sum of Rs. 400/-. The complainant did not explain about the delay in filing the report. The trial Court found that in the first information report lodged by the complainant, he had not stated about Natthu Savarkar and the complainant visiting the house of accused no.1-Haribhau and the demand made by the accused no.1 on the said date. The complainant had admitted in his cross-examination that the said statements did not find place in the first information report. The trial Court found that there was a material contradiction in the testimony of the complainant and PW 4-Natthu inasmuch as Natthu had stated that accused No.1- Haribhau had demanded the amount of Rs. 400/- only on once, when they had been to his house. The trial Court rightly held that the said evidence of Natthu was not supported by the first information report at Exh. 26 and the complaint-report at Exh.29 that was lodged with the Anti Corruption Bureau. The trial Court further found ::: Uploaded on - 12/06/2017 ::: Downloaded on - 28/08/2017 03:40:31 ::: c.appeeal.675.06 9 that though it was testified by the complainant that he had been to the house of the accused no.1 with Natthu, Natthu did not mention in his evidence that he had accompanied the complainant to the house of the accused when the pre-trap demand was made. Also, though Natthu had stated in his evidence that after the two sons of the complainant were released on bail, accused no. 1-Haribhau came outside the police Station and told Natthu to ask the complainant to give him "pk;ikuhdk [kpkZ" and the demand of Rs. 400/- was made towards the same, the complainant had deposed nothing in this regard in his evidence. The trial Court rightly held that had such a talk taken place in between the accused no.1 and Natthu outside the Police station on 18.03.1997 and Natthu Savarkar had conveyed the said fact to the complainant, the complainant would have stated about the said material fact in his evidence. The evidence of the complainant is, however, silent on the demand of Rs. 400/- by the accused no.1 from the complainant through Natthu Savarkar outside the Katol police station on 18.03.1997. According to the evidence of Natthu he had given message to the complainant that accused no.1 had demanded Rs. 200/-, however the complainant has testified that Natthu told him at his house that he should give "pk;ikuhdk [kpkZ" to the accused no.1 or else proceedings would be initiated against his sons under section 151 of the Code of Criminal Procedure. The complainant did not depose that Natthu had told him that accused no.1 had demanded a sum of Rs. 200/-. Moreover, the evidence of the complainant in respect of giving of ::: Uploaded on - 12/06/2017 ::: Downloaded on - 28/08/2017 03:40:31 ::: c.appeeal.675.06 10 such message by Natthu to him in his house in the village did not find place in the first information report and the reports at Exhs. 26 and 29. On an appreciation of the evidence of Natthu and the complainant, the trial Court noticed that there were material discrepancies in the evidence of these witnesses, in respect of pre-trap demand by the accused no.1. The trial Court rightly held that the evidence of the prosecution witnesses, namely, the complainant and PW 4-Natthu in respect of the pre-trap demand, was unreliable. The trial Court, then, found that PW 4-Natthu Savarkar had admitted in his cross-examination that he was involved in criminal cases under the Atrocities Act and for theft and assault. The trial Court, therefore, held that the evidence of Nathhu was not reliable, considering his background and also the inconsistency in the evidence of the complainant and Natthu.
6. As regards the demand made by accused no.1-Haribhau at the time of actual trap on 24.03.1997, the trial Court held that the prosecution had failed to establish that the accused no.1 had made any illegal demand from the complainant at the time of trap on 25.03.1997. For proving the demand on the date of the trap, the prosecution had relied on the oral evidence of the complainant, PW 3-Pramod Navre and Panch no.1 PW 4-Natthu Savarkar. The complainant had deposed that at the time of the trap, the complainant met the accused in the Police Station and told the accused no.1 that he had brought the amount, that he should accept it and the accused no.1 asked ::: Uploaded on - 12/06/2017 ::: Downloaded on - 28/08/2017 03:40:31 ::: c.appeeal.675.06 11 the complainant as to who was the person with the complainant. The complainant deposed that he told the accused no.1 that Pramod (Panch witness no.1) was his maternal nephew. It is stated in the evidence of the complainant that the accused no.1 told him that he would take the money and that the complainant should come to the panshop. The complainant deposed that he along with the panch witness and accused no.1 went to the panshop adjacent to the road by the side of the police station and near the panshop he asked the complainant to give money to the panshop-keeper. The complainant had deposed that on the say of the accused no.1 he had given the money to the boy who was manging the panshop and after taking the money, the panshop-keeper kept it on the counter of the panshop. In the cross- examination, the complainant stated that he had stated in his statement made before the police on 15.04.1997 that he had told the accused no.1 that he had brought the money and he should take it and the accused no.1 refused to take the money in the Police Station. The said statement, however, does not find place in the statement of the complainant that was recorded by the police on 15.04.1997. The evidence of the complainant was not supported by Panch no.1- PW 3-Pramod Navre. In his evidence Pramod had deposed that he had been to the Police Station along with the complainant and tyhe accused no.1 had enquired about the person with him and the complainant informed that he was the maternal relative of the complainant. PW 3-Pramod further deposed that the complainant told the accused no.1 that case should ::: Uploaded on - 12/06/2017 ::: Downloaded on - 28/08/2017 03:40:31 ::: c.appeeal.675.06 12 not be filed against this sons. It was deposed by Pramod that accused no.1 told the complainant that he had sent the message through Nathhu and the complainant told the accused no.1 that he would pay the sum of Rs. 200/-. PW 3-Pramod then deposed that the accused no.1 asked the complainant to pay the amount to the panshop-keeper. It is deposed by PW 3 that he along with the complainant went to the panshop and gave the money to the panshop keeper. The panshop keeper counted the money and placed it on the counter in the shop. On an appreciation of the evidence of the complainant and the Panch witness No.1-Pramod, the trial Court found that there were several discrepancies in the version of these witnesses in respect of material particulars. The trial Court found that the evidence of the complainant and PW 3-Pramod Navre - panch witness, was inconsistent with each other. The trial Court found that it was too risky to rely upon the evidence of the complainant and the panch witness for holding that the accused no.1 had made the illegal demand at the time of the actual trap. According to the oral evidence of the complainant, the accused no.1 had not actually made any demand at the time of the trap and it is he who wanted to give the money to accused no.1-Haribhau. The trial Court rightly held that this was a serious infirmity in the evidence of the complainant. PW 3-Pramod had also not deposed that the accused no.1 had actually made the demand of Rs. 200/- from the complainant at the time of the trap on 25.03.1997. In this background, the trial Court held that the prosecution had failed to prove that ::: Uploaded on - 12/06/2017 ::: Downloaded on - 28/08/2017 03:40:31 ::: c.appeeal.675.06 13 the accused no.1 had made an illegal demand from the complainant at the time of trap on 25.03.1997. After having held so, the trial Court found, on an appreciation of the material on record, that an amount of Rs. 271/- was due from the complainant to the panshop owner i.e. PW 5-Arun Dambhale towards purchase of pan and bidis, on credit. A diary was produced by the accused during the evidence of PW 5-Arun Dambhale, the owner of the panshop in that regard. PW 5-Arun Dambhale had admitted in his cross- examination that an amount of Rs. 271/- was due from complainant Gulab as on 21.07.1997. The said diary showed that the complainant purchased pan and other material from the panshop owner from 14.02.1996 till 27/1/1997 and an amount of Rs. 271/- was due and payable by the complainant. Though the said diary was not seized by the police during investigation, PW 5- Arun Dambhale had deposed in his cross-examination that when he was called to the Police Station on 2nd April 1997, though he had taken two account books, only one account book was retained and the other account book was returned to him. Though the prosecution declared this witness to be hostile and cross- examined the said witness at length, nothing was brought out from the cross- examination of PW 5-Arun Dambhale to disbelieve his evidence about maintenance of account of the complainant in respect of purchase of the material from the panshop on credit. The trial Court relied on the evidence of PW 5-Arun that an amount of Rs. 271/- was due and payable by the complainant to the panshop owner as on 27.01.1997. The trial Court held ::: Uploaded on - 12/06/2017 ::: Downloaded on - 28/08/2017 03:40:31 ::: c.appeeal.675.06 14 that since it was not proved that the accused no.1 had made a demand of Rs. 200/- from the complainant and since it was clear from the evidence of the complainant that he wanted to pay the said amount to the accused no.1, if the amount was handed over to the panshop keeper, the case of the accused no.2 that the said amount was paid by the complainant to the panshop-keeper for repayment of the dues, is acceptable. The trial Court also found that there was no evidence whatsoever to show that there was any prior meeting of the minds between the accused no.1 and accused no.2 in regard to the acceptance of the bribe by the accused no.2, on behalf of the accused no.1. While recording the aforesaid finding, the trial Court refused to rely on the evidence of the Investigating Officer that an amount of Rs. 245/- was due and payable by the accused no.1 to the accused no.2 on 31.03.1997 and, therefore, the said amount was directed to be paid by the complainant, on the instructions of the accused no.1 to the accused no.2. Nothing was said by the accused no.1 to the accused no.2 at the time of actual trap, particularly about the acceptance of the amount of Rs. 200/- from the complainant towards the dues of the accused no.1 and, therefore, the trial Court held that the production of the diary at article "E" by the Investigating Officer would not prove that the amount was directed to be paid to the accused no.2 at the instructions of the accused no.1. The case of prosecution that the accused no. 1 was guilty as he was running away from the place of the incident was found to be unreliable. The trial Court held that the said story to be apocryphal ::: Uploaded on - 12/06/2017 ::: Downloaded on - 28/08/2017 03:40:31 ::: c.appeeal.675.06 15 as the same was not supported by any reliable evidence. The complainant did not depose that the accused no.1 had ran away from the place of the incident. Pramod/ Panch no.1 also did not depose so. The trial Court did not find the evidence of the prosecution in that regard to be reliable and hence discarded the same. After recording the aforesaid findings the trial Court held that the prosecution had failed to produce reliable and probable evidence to bring home the guilt to both the accused, beyond reasonable doubt. After having held so, the trial Court appears to have acquitted the accused nos. 1 and 2. The findings recorded by the trial Court are just and reasonable. The appreciation of the evidence by the trial Court appears to be just and proper. The view expressed by the trial Court is a probable view and there is no scope for interference with the said view, especially in an appeal against acquittal. It is well-settled that the findings of facts recorded by the trial Court could be reversed on very substantial or compelling reasons. Though the powers of the appellate Court, while considering an appeal against acquittal, are extensive and similar to the powers of the appellate Court while deciding an appeal against conviction, the appellate court would generally be loath, in disturbing the findings of facts recorded by the trial Court. The findings cannot be reversed in any case, merely because another view is possible. It would be worthwhile to refer to the judgments of the Hon'ble Supreme Court reported in AIR 1952 SC 52 (Surajmal Singh vs. The State); AIR 1954 SC Page 1 (Tulsiram Kanu vs. The State) and AIR 1954 SC 637 (Madan Mohan singh ::: Uploaded on - 12/06/2017 ::: Downloaded on - 28/08/2017 03:40:31 ::: c.appeeal.675.06 16 vs. State of Uttar Pradesh and others), in this regard.
Since the judgment of the trial Court is just and proper, the Appeal is dismissed with no order as to costs.
JUDGE sahare ::: Uploaded on - 12/06/2017 ::: Downloaded on - 28/08/2017 03:40:31 :::