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Showing contexts for: anthracene powder use in Pushpaben vs State on 25 November, 2010Matching Fragments
Heard Mr. Mihir H. Pathak, learned advocate for the appellant and Mr RC Kodekar learned APP for the respondent-State.
Mr Pathak for the appellant has read the complaint, contents of Panchnama Exh.13 and the oral evidence of Investigating Officer Mr. Yadav Exh.15 and vehemently contended that from the contents of the complaint it is the say of trapping officer that he has received some information regarding the misconduct and illegal demand by the policemen the prosecution has failed to establish its case beyond reasonable doubt that whether that information was received by the prosecution witness or not. He has contended that the trial Court has failed to appreciate that during the evidence the prosecution witnesses have failed to prove its case as per initial version and the case against the appellant has not been proved beyond reasonable doubt. He has contended that the panch witness in his evidence has stated that the accused has demanded Rs.20/- towards the entry fee for entering into the city, but, the said facts has not stated by the witness in his Police statement. He has also contended that the panchnama (Exh.14) also does not show that Rs.20/- was accepted by the accused towards entry fee and, therefore, the trial Court has not appreciated the fact that this improvement has been made for the first time during the course of evidence so as to give further corroboration to the prosecution case. He has also contended that the driver of the truck (the complainant) has not been examined by the prosecution and, therefore, there is no corroboration to the evidence of panch and, therefore, it is hazardous to base conviction on uncorroborated testimony of panch having such kind of material omission and contradiction. He has also contended that the evidence of PI Yadav that search of the accused was done by Panch No.1, however, the said evidence has not been corroborated by PI Yadav and the panchnama Exh.14 shows that the search of the accused was made by panch No.2, who is not examined and thus the prosecution itself is not sure and positive whether who made search of the accused person and that creates great doubt that whether in fact Rs.20/- was recovered from the appellant accused. He has contended that the learned Judge has failed to appreciate that looking to the first part of the panchnama the numbers of the notes of Rs.10/- were not tallied, the number of muddamal note is 6B L 444597 while in the panchnama the number is mentioned as 6 B L444596 . Therefore, the prosecution has failed to establish that whether the accused had in fact demanded and accepted the money as alleged and whether such amount is recovered from the accused. He has contended that in corruption cases before arranging the trap the concerned Officer used to call the panchas and also used to experiment of anthracene powder on the notes. In the present case it is alleged that on the previous day the Police Inspector has received information from his Department about collection of bribe money by way of entry fees and on the same day he managed to get the services of two panchas, but, he has not done the experiment of anthracene powder on the notes. He has contended that in absence of any such experiment it is very difficult to believe the prosecution case. In the present case when there is contradictory evidence regarding the recovery of currency notes from the accused as well as in absence of experiment of anthracene powder and also in view of material contradiction and the basic infirmities the entire prosecution case becomes doubtful and the trial Court ought to have acquitted the accused from the charges levelled against him.
It is true that in the present case the Trapping Officer has not used the anthracene powder and has not applied the anthracene powder on the trap amount. This is debatable question which arise before this Court that whether non-application of anthracene powder on the trap amount can be fatal to the prosecution case ? I have perused the oral evidence of trapping officer Mr. Yadav. He has explained in which circumstances that trap was managed by him.
Section 7 of the Prevention of Corruption reads as under:
(iii)while holding office as a public servant, obtains for any persons any valuable thing or pecuniary advantage without any public interest; or
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or properly disproportionate to his known sources of income.
As per Section 7 of the P.C. Act the demand of illegal gratification which may be made by a public servant and if it is proved beyond reasonable doubt from the oral evidence of independent witness as well as of the police witness and in that connection the panchnama was prepared, then there no question whether the experiment of anthracene powder was done or not. It is also pertinent to note that there is no case of the accused that he has any enmity with the trapping officer and the trapping officer has falsely involved the accused in the alleged offence. P.W. 2 I.K.Yadav (Exh.15) has clearly deposed in his cross-examination that they have only one bottle of anthracene powder available between three officers and out of three officers if one officer received information and trap is to be laid that officer keeps the said bottle of anthracene powder with him and during that period if some other officer received information at that time that officer cannot take advantage of that bottle of anthracene powder. He has categorically denied that on 6.7.1990 he could have used the anthracene powder by obtaining the help of person who is using the anthracene powder. As per the explanation of Trapping Officer it clearly appears that he has explained the non-use of anthracene powder. In my opinion, the explanation given by the Trapping Officer is genuine and proper and, therefore, no question arise for non-use of anthracene powder by the Trapping Officer. Once the demand and acceptance is proved and when the trapping officer has satisfactorily explained that in which circumstances experiment of anthracene powder was not done then in that circumstances non-use of anthracene powder cannot be said that it is fatal to the prosecution case. I am, therefore, of the opinion that non-use of anthracene powder is not fatal to the prosecution case. Section 8 of the Prevention of Corruption Act reads as under :