Bombay High Court
Lalaso Balu Shaikh vs The State Of Maharashtra on 9 December, 2011
Author: A.M. Thipsay
Bench: A.M. Thipsay
1 Apeal-945-03
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION.
CRIMINAL APPEAL NO. 945 OF 2003
Lalaso Balu Shaikh
Aged : 45 years,
R/o Nej, Tq. Hatkanangale,
Dist. Kolhapur,
At present : Room No. 66,
Juna-Budhwar Police Line,
Kolhapur.
..APPELLANT
-VERSUS-
The State of Maharashtra.
..RESPONDENT
.....
Shri Shekhar A. Ingawale, advocate for the appellant.
Shri K.V. Saste, A.P.P. for respondent/State.
.....
(CORAM : A.M. THIPSAY , J.)
DATE OF RESERVING THE JUDGMENT : 14th November, 2011
DATE OF PRONOUNCING THE JUDGMENT : 9th December, 2011
JUDGMENT :
1. This appeal is directed against the judgment and order dated 23rd July, 2003 passed by the Special Judge, Kolhapur, in Special Case No. 8 of 1999, convicting the appellant, who was the sole accused in the said case, of the offences punishable under Sections 7 and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988. The learned Special Judge sentenced the ::: Downloaded on - 09/06/2013 17:59:29 ::: 2 Apeal-945-03 appellant to suffer R.I. for one year and to pay a fine of Rs. 1,000/-
with respect to the offence punishable under Section 7 and to suffer R.I. for two years and to pay a fine of Rs. 2,000/- with respect to the offence punishable under Sections 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. (Hereinafter referred to as "the said Act", or "the P.C. Act"). The learned Special Judge imposed default sentences in the event of failure to pay the amount of fine. The substantive sentences were directed to run concurrently.
The appellant (Hereinafter referred to as "the accused" for the sake of convenience), being aggrieved by the said order of conviction and sentences, has approached this Court.
2. The case of the prosecution as revealed from the column no. 16 of the prescribed proforma of the Final Report Form, as was put forth before the trial Court, was as follows :-
That, the accused- a Police Constable-was attached to Shahupuri Police Station, Kolhapur at the material time. That, he had been entrusted with the duties of looking after the investigation papers, applications etc. and of assisting the investigation in respect of the various offences as might be ::: Downloaded on - 09/06/2013 17:59:29 :::
3 Apeal-945-03 registered at the said Police Station. That, a crime vide C.R. No. 139 of 1998 had been registered at the said Police Station against one Bipin Yeshwant Mane and five others. That, in that case, the accused had favoured the said Mane and other accused, by not taking action under the provisions of Section 151 of the Code of Criminal Procedure; and that, due to such `co-operation' extended by the present accused to the said Bipin Mane and others in the said crime report, the present accused on 22.10.1998, demanded a bribe of Rs. 10,000/- for himself from them, and later on, settled for Rs. 5,000/-. The said Bipin Yeshwant Mane reported the matter to the Anti Corruption Bureau, Kolhapur on 23.10.1998, pursuant to which a trap was arranged. That, in the presence of the panch witness Girish Gangatirkar (PW-2), the accused demanded and accepted the bribe of Rs. 5,000/-, on 23.10.1998 at the residence of said Bipin Mane and as per the trap laid, he was caught red handed. On completion of investigation and after obtaining sanction under Section 19 of the said Act, which was duly granted by Raghur Kuppuswami Padmanabhan (PW-5), the accused was prosecuted on the allegation of having committed the offences punishable under Section 7 and Section 13(2) r/w Section 13(1)(d) of the said Act. The trial, as aforesaid, resulted in conviction of the accused.
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3. I have heard Mr. Shekhar Ingawale, the learned Advocate for the accused. I have also heard Mr. Saste, the learned Additional Public Prosecutor for the State. With the assistance of the learned counsel, I have gone through the entire evidence adduced before the trial Court, the impugned judgment and all other relevant record.
4. The prosecution examined six witnesses in the trial Court. The first witness Bipin Mane is the person, who reported the matter to the Anti Corruption Bureau and got laid a trap for apprehending the accused. The second witness Girish Gangatirkar, an employee in the office of the Joint Charity Commissioner, is a panch witness in respect of reporting of matter by Bipin Mane to the Anti Corruption Bureau, laying of trap and the acceptance of the bribe by the accused. Third witness Hemchandra Kshirsagar is a Police Officer, who, at the material time, was attached to Shahapuri Police Station. He is the one, who was investigating into C.R. No.139/1998, which was in respect of the offence punishable under Sections 147, 148, 149, 363, 348 and 469 of the Indian Penal Code as also the offences punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, that had been registered against said Bipin Mane and five others. It is with this witness, that ::: Downloaded on - 09/06/2013 17:59:29 ::: 5 Apeal-945-03 the accused was working as orderly. The fourth witness Liyaqat Mujawar is a friend of the said Bipin Mane and one of the accused in the said C.R. No. 139/1998. The fifth witness Raghur K. Padmanabhan, is the Sanctioning Authority, who had granted sanction as contemplated under Section 19 of the said Act. The sixth witness Sudhir Chougule, was working as a Deputy Superintendent of Police, Anti Corruption Bureau, Kolhapur at the material time and is the Investigating Officer in the matter.
5. It is contended by Mr. Ingawale, the learned Advocate for the appellant that the appellant had been falsely implicated by said Bipin Mane. According to him, the evidence adduced before the trial Court was not at all satisfactory. He submitted that there were various inconsistencies and contradictions in the evidence of said Bipin Mane (PW-1), Girish Gangatirkar-panch witness (PW-2), Liyaqat Mujawar (PW-4), Sudhir Chougule-Investigating Officer (PW-6) on crucial aspects such as demand and acceptance of the bribe. He submitted that said Bipin Mane (PW-1), as well as said Liyaqat Mujawar (PW-4), were highly influential persons and that, by reason of being involved in the said C.R. No. 139/1998, their ego was hurt; and that, as the accused was associated with the investigation of the said case, they bore a grudge against him and falsely implicated him for ulterior motives. He submitted, that the ::: Downloaded on - 09/06/2013 17:59:29 ::: 6 Apeal-945-03 case of the accused was clearly put forth by him from the very beginning, which was to the effect that he had gone to the house of said Bipin Mane in connection with the investigation of the said C.R. No. 139/1998 and that, this case of the accused was supported by the evidence of the prosecution itself. He submitted that in any case, the accused was entitled to get the benefit of reasonable doubt, which arises on considering the evidence adduced by the prosecution and to be acquitted.
6. Mr. Saste, the learned Additional Public Prosecutor, on the other hand, contended that the witnesses had no motive to falsely implicate the accused and that, their evidence is reliable and acceptable. He submitted that the appreciation of the evidence of the prosecution witnesses as done by the learned Special Judge does not suffer from any infirmities and that, the conclusion arrived at by the learned Special Judge is proper and legal. He, therefore, submitted that the appeal deserves to be dismissed.
7. The evidence of Bipin Mane (PW-1) shows that he, Liyaqat Mujwar (PW-4), one Mahesh Chavan, one Sangram Jadhav, one Nasirkhan Pathan and one Devendra Patil are close friends and meet every day. That, some person used to make telephone calls to the wife and sister of Mahesh Chavan and used ::: Downloaded on - 09/06/2013 17:59:30 ::: 7 Apeal-945-03 to harass them by using filthy language. That, Bipin Mane and his friends decided to trace that person and ultimately found that he was one Amar Kamble, working as a `Canteen Boy' in the Income Tax office. The version of Mane is that when they took said Amar Kamble to Police Station, he lodged a report with the Police against Mane and his friends, on the basis of which, a crime (i.e. C.R. No. 139/2011) was registered against them. His evidence also shows that the investigation of that case was being done by P.S.I.-Kshirsagar (PW-3) and that, the accused was assistant of Mr. Kshirsagar.
8. Mane states that in the course of investigation, the accused had come to his house on 2-3 occasions and that, on one occasion, he told Mane that he had helped Mane and his friends in the investigation of the said C.R. According to Mane, the accused demanded Rs. 10,000/- from him and also gave threats that if the said amount would not be paid, he would file proceedings under Section 151 of the Code of Criminal Procedure against Mane and others. Mane states that he did not pay any heed to such demand and threats. Though, such demands and threats were again made on 2-3 occasions, he did not pay any heed thereto.
9. That, on 22.10.1998 at about 11.30 a.m., Mane had ::: Downloaded on - 09/06/2013 17:59:30 ::: 8 Apeal-945-03 gone to the house of Liyaqat Mujawar (PW-4) to invite him for breakfast. That, that time accused made a telephone call on the telephone at the residence of said Liyaqat but as Liyaqat was inside, Mane answered the call. The accused, at that time, on telephone, told Mane to bring Rs. 10,000/- on the next day in the evening and that, he would tell later to Mane, the place where the money should be brought. Since Mane told him that he could not afford the amount of Rs. 10,000/-, the matter was got settled at Rs. 5,000/-. Mane then asked him as to when he should hand over the money, then the accused said that he would come to Mane's house and take the money. Mane informed about this to Liyaqat (PW-4).
10. That, on 23.10.1998, Mane approached the Anti Corruption Bureau office and told about his grievance. His complaint was recorded (Exhibit-16). Mane has given the details of the laying of the trap in his evidence. According to him, he had gone to the office of the Anti Corruption Bureau at 11.30 a.m. on 23.10.1998 and after making a complaint to the Officer, he was asked to come to the Anti Corruption Bureau again at 4 p.m. with bribe money. That, accordingly he went there with an amount of Rs. 5,000/- consisting of 10 currency notes of Rs. 500/-
denomination. That, when he reached there, two panchas were ::: Downloaded on - 09/06/2013 17:59:30 ::: 9 Apeal-945-03 already present to whom he was introduced and that, they were Girish Kamlakar Gangatirkar (PW-2) and one Maruti Tukaram Suryawanshi. Mane explained his grievance against accused to the panchas. The panchas were asked to go through the contents of the complaint of Mane, that had been recorded in morning.
11. Serial number of the currency notes were noted in the panchanama, which was being drawn simultaneously. That, the Officer from the Anti Corruption Bureau explained the use and the properties of anthracene powder and thereafter applied the anthracene powder to the currency notes that had been brought by Mane. The technical details of the trap need not be mentioned here, but what needs to be mentioned is that instructions were given to Mane to sit in the drawing room of his house with panch Girish Gangatirkar (PW-2) and that, upon enquiry, if any, by the accused, he should be told that Gangatirkar was a relative of Mane.
12. Mane was specifically instructed to have talks with the accused regarding his work, that he should not be entangled with the criminal case, and that, if the accused would demand the money, then-and then only-it should be given to him. That, if and after the bribe would be accepted by the accused, Mane was to ::: Downloaded on - 09/06/2013 17:59:30 ::: 10 Apeal-945-03 give a signal to the members of the raiding party by uttering the words `Choti Chaha Kar'.
13. Regarding the actual trap, according to Mane, he went to his house at about 5.30 p.m. with panch Gangatirkar (PW-2) and that, after 5 to 10 minutes thereafter the other panch and members of the raiding party also reached there. About 5 to 10 minutes thereafter, the accused came there and made enquires as to whether `Bipin' was present. Mane then asked him whether he would like to take `breakfast', but the accused refused. According to Mane, he had a talk with the accused that accused should not give any trouble to Mane and his other friends, and that, no case should be filed against them. That, the accused then demanded the money by making sign by crossing his thumb and first finger.
That, thereafter, Mane took out the currency notes from his shirt pocket by his right hand and handed over the same to the accused, who accepted them by his right hand. That the accused then kept those currency notes in the left side chest pocket of his shirt. As per the instructions given to him, Mane then gave a signal to the raiding party by saying `Choti Chaha Kar'. That, immediately the members of the raiding party, who had been sitting on the first floor came to drawing hall and on Mane's pointing out towards the accused, the accused was caught. Mane was then asked to wait ::: Downloaded on - 09/06/2013 17:59:30 ::: 11 Apeal-945-03 outside and was again called inside after some time. Darkness was created and the person of Mane was examined in the light of ultraviolet lamp. Bluish glitter on the right hand finger and left side pocket of shirt of Mane was noticed.
14. Mane was extensively cross examined. It is revealed in the cross examination, that he had studied upto B.E. (Mechanical) and was, at the material time, a Lecturer in a college at Kagal. It is also revealed, that the college is named after Bipin Mane's great grand father. It is also revealed, that father of Bipin Mane-Shri Y.D. Mane-was the President of Kagal Municipality and that, he belonged to the political group of Shri Mandlik, who was the then a sitting M.P. from Kolhapur. It is also revealed that the State Minister Mr. Mushrif also belonged to the political group of Mane's father. It was suggested to him that about 65 ladies had filed a complaint against him and his friends, but he expressed ignorance about any such complaint.
15. There is some cross examination of this witness on the point of the facts relating to the said C.R. No. 139/1998, the object of which seems to be to point out that Mane and his friends are not of good character. It does not appear necessary to go into that aspect. It is, however, a fact that Mane and his friends had ::: Downloaded on - 09/06/2013 17:59:30 ::: 12 Apeal-945-03 been arrested in the said C.R. of Shahupuri Police Station and that, the complaint against Mane and others made by said Amar Kamble was to the effect that he was beaten up and that, his hair and one side moustache was partially cut. It is also revealed that the news of the case filed against Mane and others was flashed in the local news paper.
16. Mr. Ingawale, the learned Advocate for the appellant contended that the character of the complainant appears to be not good in view of the complaint made by about 65 ladies against him and his friends, and that, therefore, the evidence of Mane needs to be examined with caution. Since Mane has denied that any such complaint was made against him and others by ladies, I am not inclined to give much importance to this aspect. The registration of a crime against Mane, Liyaqat (PW-4) and their other friends, is however relevant in the context of the case against the accused, though not relevant as showing bad character of the complainant.
The relevancy of registration and pendency of the crime against Mane lies in the fact that the accused was associated with the investigating Officer in that case. In the light of the peculiar facts of this case and the specific contention taken by the accused, it would be necessary to examine the evidence carefully from the point of view of ascertaining what could be the purpose of visit of the ::: Downloaded on - 09/06/2013 17:59:30 ::: 13 Apeal-945-03 accused to the house of Mane.
17. Shri Shekhar Ingawale, the learned Advocate for the accused has pointed out certain discrepancies in the evidence of the witnesses with respect to the details, such as, demand of bribe by the accused, time, place and nature of such demand, the details regarding the reporting of the said matter to the A.C.B. and the actual trap, etc. According to him, these infirmities in the prosecution evidence create a doubt about the truth of the prosecution case.
18. In my opinion, such discrepancies in the evidence and the other infirmities therein, if any, need to be examined only in the backdrop of the basic case of the prosecution against the accused.
It is only by keeping the case of the prosecution as such in mind, that effect of the infirmities in the prosecution evidence can be properly interpreted and appreciated.
19. One of the ingredients of the offence punishable under Section 7 of the P.C. Act is that the gratification must have been received by the accused as `a motive or reward', for- "(a) doing or forbearing to do an official act; or (b) showing or forbearing to show favour or disfavour to someone in the exercise of his official ::: Downloaded on - 09/06/2013 17:59:30 ::: 14 Apeal-945-03 functions; or (c) rendering, or attempting to render, any service or disservice to someone, with the Central or any State Government or Parliament or the Legislature of any State, or with any public servant."
20. Thus, there must be an understanding between the accused and the person aggrieved, that the bribe was being given in consideration of some specific official act or acts, or conduct.
Now, in the instant case, such official act or omission in respect of which the bribe was being demanded, was the act of not dealing with Mane and the others under the provisions of Section 151 of the Code of Criminal Procedure and this is the case of the prosecution itself. In other words, the bribe was being demanded by the accused as a consideration for not taking action against Mane and his friends under the provisions of Section 151 of the Code of Criminal Procedure. It is in this context, it is contended by the learned counsel for the accused that the accused being a mere Head constable had no power or authority either to take any such action or to prevent such action from being taken and that, therefore, there would be no question of the accused demanding or receiving any amount as a motive or reward in consideration of any such official act or omission. Undoubtedly, incapacity of the public servant to show any favour or render any service to Mane and ::: Downloaded on - 09/06/2013 17:59:30 ::: 15 Apeal-945-03 others would not take the matter out of the purview of the penal provisions in question. Explanation (d) to Section 7 of the P.C. Act itself lays down that receipt of gratification by a public servant as a motive or reward for doing what he is not in a position to do, is also covered within the penal provision laid down in Section 7. Thus, the contention that the accused could not have initiated or dropped any action under Section 151 of the Code against Mane and others and that, if such action was intended to be taken against them by the superiors of the accused, the accused could in no way prevent it, is not relevant from exonerating the accused of the alleged offences. Nevertheless, such incapacity of the accused is an important factor bearing on the question as to what was the understanding with which the money was to be given and this would be relevant in deciding whether the money was received or being received, as a motive or reward as contemplated under Section 7 of the P.C. Act.
21. The contention that Mane and his friends are highly influential persons and that, the accused, therefore, would not have dared to demand any money from them as a bribe, which is closely connected with the previous contention may now be examined.
Indeed, factually, this contention appears to be correct. In the cross examination of Mane, he admitted that his father Y.D. Mane ::: Downloaded on - 09/06/2013 17:59:30 ::: 16 Apeal-945-03 was a known politician and that, he was the President of Kagal Municipality. Mane also admitted that his father was from the political group of Shri Mandlik, the then sitting M.P. from Kolhapur.
He also admitted that Shri Hasan Mushrif, the then Minister in the State Government, was also from the political group of Mane's father. Even Liyaqat Mujawar (PW-4) appears to be quite influential, in as much as, admittedly the said Minister Hasan Mushrif is his maternal uncle. What is further relevant is that, admittedly.
another maternal uncle of Liyaqat Mujawar-
Shri Shamsuddin- was the Superintendent of Police of Kolhapur District at the material time. Thus, there can be no hesitation in concluding that Mane and Liyaqat Mujawar were certainly having sufficient influence so as to be able to, at least, approach and convince the superior police officers in case of any illegal or unlawful demand made by a police head constable or in respect of threats given by him.
22. There is great substance in the contention advanced by the learned counsel for the accused that under the circumstances, it was quite unlikely that a Police Head Constable like the accused would expect to get any bribe from Mane and others under the threat of otherwise taking an action under Section 151 of the Code against them. Unless the accused would feel that ::: Downloaded on - 09/06/2013 17:59:30 ::: 17 Apeal-945-03 he could legitimately create such a threat in the mind of Mane and others, he would not go ahead and negotiate with them for the bribe by stating that if the same would be given, he would not take the said action.
23. According to the accused, he had gone to Mane's house, to collect `Bonafide Certificates' in connection with C.R. No. 139 of 1998 the investigation into which was being done by P.S.I.-
Kshirsagar (PW-3). It is not in dispute that the said crime was, inter alia, also in respect of offences punishable under the Atrocities Act, and therefore, the caste of the accused persons in that case, as also the caste of the aggrieved person, were the crucial aspects on which evidence needed to be collected in the course of investigation. Apparently, `Bonafide certificates' issued by the School Authorities contain the caste, and therefore, obtaining of such bonafide certificates would be a step in investigation for ascertaining the caste. It is for that purpose, that bonafide certificates were required by the P.S.I.-Kishirsagar (PW-3), who was investigating the said case. The evidence shows that, the certificates in respect of Mane himself, Mahesh Chavan and Devendra Patil had been collected but the certificates in respect of the other accused in the said case were not collected.
The case of the accused is that he had agreed to visit the house of ::: Downloaded on - 09/06/2013 17:59:30 ::: 18 Apeal-945-03 Mane for collecting the remaining certificates and that, Mane took disadvantage of this and lodged a false report against the accused.
According to the accused, Mane tried to insert the amount in the pocket of the accused, when the persons from the raiding party caught hold of the accused.
24 Mane, in his evidence (in examination-in-chief) stated that he was instructed by A.C.B. Officer that when he would meet the accused in his house, he should open talk with the accused regarding his work (i.e.,-regarding 151 proceedings) and that, he should not be entangled with any criminal case; that if the accused would demand money, then and then only, he should give it to the accused. This is supported by the contents of the pre-trap panchanama Exhibit-21, which reflects that Mane was instructed to open the topic regarding the case filed against him and his friends and to then request the accused not to initiate proceedings under Section 151 of the Code of Criminal Procedure. The Investigating Officer Mr. Chougule (PW-6) has also stated in his cross examination, that he had instructed Mane that after the accused would meet him, he (Mane) would have to say to the accused that no action under section 151 of the Code of Criminal Procedure should be taken against him. However, though such were the instructions given to Mane, actually there does not appear ::: Downloaded on - 09/06/2013 17:59:30 ::: 19 Apeal-945-03 to have taken place any talk between Mane and the accused about the proceedings under Section 151 of the Code of Criminal Procedure. No doubt, Mane has said that he said to the accused that he (the accused) should not give any trouble to Mane and his friends and that, no case should be filed against them but, there is no specific reference to Section 151 of the Code of Criminal Procedure, which was expected, in view of the categorical instructions given to Mane in that regard by the Investigating Officer. The evidence of panch-Gangatirkar (PW-2) on this aspect also does not speak that there was any talk between Mane and the accused about not taking action against Mane and his friends or not involving them in any criminal case etc. Though this may not be, by itself, significant, that the panch-Gangatirkar (PW-2) says that there was discussion between Mane and the accused about the O.B.C. Certificate, is certainly significant.
25. In the cross examination, Mane has refused that the accused was asking him for `bonafide certificate'. It is only when he was confronted with his supplementary statement recorded during the investigation, that he admitted that he had a talk with the accused about `O.B.C. certificate' at the time of trap. It is clear and is not in dispute that the words `O.B.C. certificate' and `bonafide certificate' have been used to mean the same certificate, i.e.-a ::: Downloaded on - 09/06/2013 17:59:30 ::: 20 Apeal-945-03 certificate showing the caste of the concerned person.
26. The evidence of P.S.I.-Kshirsagar (PW-3), the Investigating Officer in respect of the said C.R. No. 139/1998, in which Mane and his friends were accused, shows that the accused was specifically instructed by him, to collect caste certificate of the complainant in that case and the accused in that case i.e. Bipin Mane and others. His evidence shows that there were seven accused in the said C.R. including Bipin Mane and Liyaqat Mujawar (PW-4). P.S.I.-Kshirsagar (PW-3) has said that the bonafide certificates of the complainant and the accused in that case were required and that on 23.10.1998 i.e. on the date of trap itself, the bonafide certificates in respect of Mane, Mahesh Chavan and one Devendra Patil were collected. There is substance in the contention of the learned counsel for the accused that this lends some support to the statement of the accused as to why he had gone to the house of Mane.
27. Mane initially denied that the bonafide certificates were being demanded by the accused from him and others, or that, the bonafide certificates relating to some of them were handed over to the accused, as was suggested to him in the cross examination. He also denied that the bonafide certificates relating ::: Downloaded on - 09/06/2013 17:59:30 ::: 21 Apeal-945-03 to him, Mahesh Chavan and Devendra Patil were given to the accused on 23.10.1998 itself in the morning. It is only when he was confronted with his supplementary statement, that he admitted that there was a talk between him and the accused at the time of trap about `O.B.C. certificate'. It is seen earlier that `the O.B.C. certificate' and `the bonafide certificate' are the terms used in respect of the same certificate. In any case, in the story put forth by Mane, there was no occasion for any discussion between him and the accused for O.B.C. certificate. That, the accused should put forth a specific case that the purpose of his visit was only for collection of the relevant certificates and Mane should attempt to suppress that discussion had taken place about such certificate, lends assurance to the version of the accused. Mane's attempt to suppress that there was some talk about some certificate, speaks for itself. It can be legitimately presumed from the attempt of such suppression, that Mane himself thought that the fact that there was discussion about any such certificate between him and the accused, would create an inference that the visit of the accused could be very well for the purpose of collecting such certificates or in that connection; and that, then the very basis of the prosecution case would collapse.
28 In my opinion, the undisputed position that there was some ::: Downloaded on - 09/06/2013 17:59:30 ::: 22 Apeal-945-03 discussion about some certificates (whether termed as O.B.C. certificate or bonafide certificate) between the accused and Mane at the time of trap, does not fit in with the case of the prosecution.
If, the purpose of visit of the accused was to collect money from Mane as and by way of bribe and that, the bribe was to be taken for not taking any action against Mane and others under Section 151 of the Code of Criminal Procedure, then there was no scope or occasion for discussion regarding any `O.B.C. certificate'.
Anyway, if there would have been a talk in respect of the O.B.C. certificate in connection with proposed action under Section 151 of the Code of Criminal Procedure, as alleged by Mane, then Mane would not have attempted to suppress this aspect and on the contrary would have explained as to how the subject of 'O.B.C. Certificate' cropped up in the context of the demand of the accused.
29 After carefully considering this aspect of the matter, it seems quite possible that the accused had actually gone to the house of Mane for collecting the certificates in connection with the case that had been registered against Mane and others.
30 In law, Mane and others were not bound to produce the certificates. It was the need of the Investigating Agency to collect ::: Downloaded on - 09/06/2013 17:59:30 ::: 23 Apeal-945-03 such certificates, so as to be able to complete the investigation in respect of the C.R. No. 139 of 1998. In fact, therefore, the Investigating Agency required co-operation from Mane and others.
On being promised and in the hope of obtaining such certificates, the accused could very well visit Mane's house.
31. The evidence also shows that when the accused realised that he was trapped, he addressed to Bipin Mane as "Bipin you have deceived me." There is no challenge to this evidence.
This has to be taken as spontaneous utterance by the accused, and though not very conclusive or decisive, is quite consistent with the reaction of a person who has been falsely involved. This evidence is significant from another angle also. That the accused addressed Mane as 'Bipin' - the first name- is indicative of sufficient acquaintance between the two, and somewhat unlikely in the background of the alleged threats of otherwise taking action U/sec.
151 of the P.C. Act for demanding the bribe. Though by itself, this piece of evidence, would not mean much, in the light of the evidence discussed earlier, it is sufficient to support the doubt as to the understanding between Mane and accused leading to the visit of the accused to the house of Mane.
32. There is also an important aspect of the matter, which ::: Downloaded on - 09/06/2013 17:59:30 ::: 24 Apeal-945-03 can not be overlooked while appreciating the evidence. The evidence of Investigating Officer-Mr. Chougule (PW-6) shows that relations between Bipin Mane's father and the uncle of Mane, who is a doctor, are cordial. Chougule admitted in cross examination that while working at A.C.B. Kolhapur, there were complaints against him made to his superiors and that, an enquiry into those complaints had been started. He also admitted that during the period of pendency of the said enquiry proceedings, he was transferred to Nanded. It is interesting to note that according to him, he was ill, and therefore, could not join his duty at Nanded for a period of about one year. Apparently, after that, he came back to Kolhapur. It is contended by the learned counsel for the accused that in the context of the connections of Bipin Mane and Liyakat Mujawar (PW-4) with the politicians and with the Superintendent of Police, Kolhapur District, the fact that Chougule, though transferred, actually did not join at his new post on the ground of illness and then, came back to Kolhapur after one year spent in leave, is quite significant and shows Chougule obviously required favour from the politicians and/or his superiors in the police department for being able to practically defeat the order of transfer.
Though, it cannot be concluded that it had any bearing upon the facts of the present case, the fact remains that Chougule does not seem to be a person on whom implicit reliance could be placed, for ::: Downloaded on - 09/06/2013 17:59:30 ::: 25 Apeal-945-03 impartial investigation, when the complaint was made and supported by influential persons.
33 The various contentions put forth with respect to the unreliability of evidence relating to the demand of bribe, the understanding, actual incident of trap etc., may now be examined.
According to Mane, when initially demands were made by the accused, who had come to Mane's house 2-3 times, the accused had said to him that he had helped Mane and others in the investigation in C.R. No. 139 of 1998, but that, Mane did not pay any heed to such demands. This was when Mane was alone.
Even thereafter on 2-3 occasions, the accused made similar demands and gave threats to initiate proceedings under Section 151 of the Code of Criminal Procedure, but still Mane did not pay any heed to such demands, or to the threats. There can be no doubt that Mane was certainly capable of complaining about the demands made by the accused to the Superiors of the accused and certainly was not required to be bothered about such threats of the accused.
34. According to Mane, the accused had not actually helped him, and therefore, Mane could have easily asked him as to how the accused had helped them and that, how the accused was ::: Downloaded on - 09/06/2013 17:59:30 ::: 26 Apeal-945-03 expecting that they would pay him any money, but this was also not done by Mane.
35. Interestingly, the demand after which the decision of Mane to report the matter to the A.C.B. was taken, was quite unexpected. Mane could know about the demand only accidentally, as the accused had given telephonic call on the telephone of Liyaqat Mujawar, which was accidentally picked up by the accused, who accidentally happened to be in the house of Liyaqat Mujawar. It is nobody's case that the accused was expecting Bipin Mane to be there in the house of Liyaqat Mujawar or pick up the receiver and answer the telephone call.
36. Again, going by the version in the report lodged with the A.C.B. by Mane, the place where the money was to be paid to the accused was not fixed. Mane was told that the accused would come to Mane's house for collecting the money, or would inform about the place where should such money should be given. Mane, however, appears to have taken for granted that the money would be collected by the accused from the residence of Mane itself. In this context, if the evidence of Mane is seen, he first says that when the accused demanded Rs. 10,000/-, he told Mane that he would be telling the place where money should be brought, ::: Downloaded on - 09/06/2013 17:59:30 ::: 27 Apeal-945-03 afterwords. However, during the said conversation, when Mane settled the matter for Rs. 5,000/-, the accused fixed the place for such receipt of money as the house of accused. The accused, who had just said that he would be informing about the place where the money should be brought, (meaning that he did not want to commit about it at that time), should immediately change his mind and fix the place of receipt of such money, is not very logical.
37. When there were specific instructions to Mane to speak about the proceedings under Section 151 of the Code of Criminal Procedure, why he should not speak so, is difficult to understand. At the cost of repetition, it may be observed that in the light of the prosecution case as has been put forth where was the occasion to have any discussion about any O.B.C. certificate is not at all clear. However, if the version of the accused, which corroborated by the evidence of A.P.I.-Kshirsagar (PW-3) is considered, the discussion about the O.B.C. certificate fits in properly with such version.
38. There is also substance in the contention of the learned counsel for the accused that the accused who had earlier quite openly demanding the money from Mane and Liyaqat Mujawar repeatedly and was also giving threats to them was not ::: Downloaded on - 09/06/2013 17:59:30 ::: 28 Apeal-945-03 likely to have a totally different attitude at the time of trap so as not to speak of money at all convey the demand only by making a sign by his first finger and thumb. That, the accused who did not feel anything odd on noticing Gangatirkar (PW-2) with Mane, and was not cautioned by the presence of a stranger would be so cautious to ensure that the demand of money is not uttered by mouth and that, it is conveyed only by a sign, is difficult to believe. It is quite likely that the story of demand of money having been made by gestures, has been put forth to overcome the fact that no such demand was heard by the panch or the raiding party and probably in the belief that it would make the prosecution version more reliable and acceptable.
39. There is also inconsistency between the version of Mane and Liyaqat Mujawar about having gone to the office of A.C.B. to lodge a report. According to Mane, he and Liyaqat Mujawar both had gone to the office of the A.C.B. to report the matter against the accused but, Liyaqat Mane says that he did not go to the A.C.B. office with Mane.
40. There is also some lack of clarity on the aspect as to whether the money that was to be paid to the accused was to be on behalf of Mane and his other friends who all were accused in ::: Downloaded on - 09/06/2013 17:59:30 ::: 29 Apeal-945-03 C.R. No. 139 of 1998 or whether Mane himself was to pay the whole amount.
41. There are some contradictions in the evidence of different witnesses about the post trap happening also but I do not wish to discuss the same, it being unnecessary.
42. From the aforesaid discussion, what can be regarded as either undisputed or satisfactorily proved, may be summarized is as under.
(i) Bipin Mane (PW-1), Liyaqat Mujawar (PW-4) and their friends were accused in C.R. No. 139 of 1998, which inter alia involved the offence punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
(ii) A.P.I.-Kshirsagar (PW-3) was investigating into that case and the accused was assisting him.
(iii) Mane and others had been arrested in that case.
1. ( As a part of investigation, the evidence showing i the caste of the accused persons was required to v be collected and Kshirsagar had directed the ) accused to collect the bonafide certificates in respect of Mane and others as and by way of obtaining such evidence.
(v) Bonafide certificates in respect of Mane, Mahesh Chavan and Devendra Patil had been collected on 23.10.1998.
::: Downloaded on - 09/06/2013 17:59:30 :::30 Apeal-945-03
(vi) Mane and Liyaqat Mujawar were both influential.
Mane's father, admittedly being local politician and the President of local Municipality and Liyaqat Mujawar's one maternal uncle being a Minister and another being the Superintendent of Police of the same District i.e. Kolhapur.
(vii) The Investigating Officer-Chougule (PW-6) was transferred to Nanded, admittedly, on the basis of the complaints received against him but he did not join at the new posting on the ground of sickness for about one year and thereafter had succeeded in again getting the posting at Kolhapur.
(viii) Mane was instructed to specifically speak about the proceedings under Section 151 of the Code of Criminal Procedure when the accused would come to him for demanding and collecting the bribe amount, but Mane actually did not speak about 151 proceedings at all.
(ix) Discussion did take place between the accused and Mane at that time, about `the O.B.C. certificate'.
(x) That, Mane tried to dispute or deny that the discussion took place about `O.B.C. certificate' and admitted it, only when confronted with the Police record of his statement.
(xi) That, the accused had actually not shown any favour either to Mane or any of his friends in the investigation of C.R. No. 139 of 1998.
43. In the background of these facts, it is difficult to believe that the accused had made a demand of money for not initiating any action under Section 151 of the Code of Criminal Procedure against Mane and others. It is also not in dispute that the accused was not capable of either taking any such action ::: Downloaded on - 09/06/2013 17:59:30 ::: 31 Apeal-945-03 against Mane and others, or of preventing any such action if intended to be taken against them by the superiors of the accused.
It is also clear that the collection of certificates, showing the caste of Mane and others, was a task entrusted to the accused as a part of investigation in the said C.R. No. 139/1998. In this background, that at the stage of trap there should be know discussion about under Section 151 Proceedings but there should be no discussion about O.B.C. certificates, creates, at least a doubt, that version of the accused which has been put forth specifically and consistently by him, could possibly be true.
44. It may not be out of context to observe here, that, admittedly, Mini Tape Recorders had been provided in the office of Anti Corruption Bureau. The Investigating Officer-Chougule (PW-6) admitted in the cross examination, that it would be desirable that talks which would take place at the time of acceptance of bribe come before the Court accurately and that, for that purpose, Mini Tape Recorders had been provided in the office of Anti Corruption Bureau. Undoubtedly, Chougule (PW-6) did add that the Tape Recorders were not in a working condition, obviously as and by way of an explanation for the failure to get the conversation between the accused and Mane recorded. This explanation is not very satisfactory. If the importance of having ::: Downloaded on - 09/06/2013 17:59:30 ::: 32 Apeal-945-03 conversation recorded verbatim, was indeed realised by the Investigating Agency, and if there was sincerity in the investigation, it would not be that difficult to get at least one tape recorder repaired, or to secure some tape recorder from elsewhere.
Chougule also admitted, that it was possible to make a phone call to the accused and get the conversation between Mane and the accused, tapped. The same was not done and no reason for not having done so, has been given. Obviously, no serious efforts to collect the evidence which would have been of a clinching nature were made; and this leads to a doubt about the sincerity of the investigating agency.
45. When the other infirmities in the prosecution case are examined in the light of this broad and basic weakness in the prosecution case, certainly a reasonable doubt about what was exactly the case, arises. Mane and others who are quite influential were undoubtedly offended because of their arrest in C.R. No. 139/1998, and likelihood of their resorting to get someone from the Investigating Agency arrested in the hope of regaining their prestige by casting a cloud of doubt upon the Investigating Agency, can not be ruled out.
46. The learned Special Judge has not appreciated the ::: Downloaded on - 09/06/2013 17:59:30 ::: 33 Apeal-945-03 evidence in proper perspective. In fact, the learned Special Judge unnecessarily resorted to uncalled for comments on the length of cross examination and the 'futility' thereof. The learned Judge observed that `only because Mane was from a family having political background, he could not be said to be a person of bad character' without realising that the political background of Mane was being projected for the purpose of showing the unlikelihood of a Head Constable of Police daring to attempt to obtain a bribe from him, (without having helped him in any manner) by threatening him of some action, which was not within the power of the Head Constable i.e. the accused. In para no.11 of his Judgment, the learned Special Judge observed as follows:-
"The accused is saying that, no demand is made by him. The complainant is saying that, demand was made. If the demand was not made at all, what was the reason for the complainant to go to the ACB Office and to lodge a complaint and as per the instructions of Dy. S.P. Chougule sit in his house."
These observations are rather unfortunate and show a basic departure from the principles of the criminal jurisprudence and appreciation of evidence. These observations are so wide and general that such a line of reasoning can be resorted to in each and every case under the Prevention of Corruption Act. The ::: Downloaded on - 09/06/2013 17:59:30 ::: 34 Apeal-945-03 learned Judge overlooked that Mane and others, who were influential had been arrested by Kshirsagar and the accused was assisting him. It was quite possible for Mane and others, who were highly placed in society, to think of taking revenge against the Investigating Agency by involving some or one of them in a case of corruption. It would help them to reduce the harm to their reputation, that was naturally caused by their arrest. Once a member of the Investigating Agency, who had taken part in the arrest of Mane and others, in the course of investigation in C.R. No. 139 of 1998, would be trapped on the charge of taking bribe, the Investigating Agency would be projected in a bad light, and therefore, the correctness of the allegations made against Mane and others, in that case, could at once be doubted by others. This was the precise case put forth by the accused, but the learned Judge has clearly ignored the same and has been rather sarcastic in dealing with the defence version.
47. The appreciation of evidence, as done by the learned Special Judge and his approach to the matter was neither proper nor legal. This was a case, where, on an overall consideration of the entire evidence, a reasonable doubt certainly arose about the guilt of the accused. In fact, the version of the accused appears to be quite plausible. Since the prosecution had failed to establish the ::: Downloaded on - 09/06/2013 17:59:30 ::: 35 Apeal-945-03 guilt of the accused beyond reasonable doubt, the accused was entitled to be acquitted.
48. The impugned judgment of conviction is neither proper nor legal. The same, therefore, needs to be interfered with in the interest of justice.
49. The appeal is allowed. The impugned judgment and order of conviction and the sentences imposed by the trial court are set aside.
50. The accused/appellant stands acquitted. His bail bonds are discharged.
51. Fine, if paid, be refunded to him.
(A.M. THIPSAY,J.) ::: Downloaded on - 09/06/2013 17:59:30 :::