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5 Photographs of cabin of the accused 52 & 54 the appellant/convicted accused the appellant/convicted accused

(r) After hearing the parties, the learned trial court, by the impugned judgment and order, was pleased to convict the appellant/convicted accused and sentenced him accordingly, as indicated in the opening paragraph of this judgment.

APPEAL-663-2016-J.doc 4 I have heard Mr.Ponda, the learned counsel appearing for the appellant/convicted accused. He argued that the case in hand is a classic example of the complainant sponsored investigation leading to false implication of the appellant/ convicted accused. In his submission, entire arrangement for laying down the trap was made by complainant/PW1 Rajaram Gadade in association with his friend Rajendra Ghosalkar, who had taken a lead role in lodging the complaint against the appellant/convicted accused. However, said Rajendra Ghosalkar is not examined by the prosecution, despite the fact that evidence of complainant/PW1 Rajaram Gadade is vague and lacunic. It is further argued that in paragraph 27 of his cross-examination, complainant/PW1 Rajaram Gadade had disowned the prosecution case and candidly accepted the fact that he had no talks with any other person than Rajendra Ghosalkar, when they had been to the chamber of the appellant/convicted accused, allegedly for payment of the bribe. According to Mr.Ponda, the learned counsel, case of the prosecution is suspect because the raiding party stayed at the farm house of Rajendra Ghosalkar, who was APPEAL-663-2016-J.doc instrumental in laying the trap against the appellant/convicted accused, by making a false complaint through complainant/PW1 Rajaram Gadade. Complainant/PW1 Rajaram Gadade was not even in a position to identify the appellant/convicted accused. There is no evidence in respect of any demand as well as acceptance. There is no plausible explanation as to why instead of approaching the Office of the Superintendent, Anti-Corruption Bureau of Ratnagiri, in whose territorial jurisdiction the alleged incident took place, complainant/PW1 Rajaram Gadade had chosen to approach the Anti-Corruption Bureau, Thane, which was not having any territorial jurisdiction in the matter. This, in submission of Mr.Ponda, the learned counsel, happened only because Rajendra Ghosalkar, who wanted to falsely implicate the appellant/convicted accused, was having clout at Thane and he is a resident of Thane. The prosecution against the appellant/ convicted accused was a politically motivated prosecution by Rajendra Ghosalkar. Therefore, according to the learned counsel, the appellant/convicted accused is entitled for acquittal. Mr.Ponda, the learned counsel, placed reliance on judgments in APPEAL-663-2016-J.doc the matter of B. Jayaraj vs. State of Andhra Pradesh 1 and M.K.Harshan vs. State of Kerala2 to substantiate his contention that evidence regarding demand of illegal gratification is an essential ingredient for making out the offence punishable under Section 7 as well as under Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. He placed reliance on the judgment in the matter of Anwar vs. P. K. Basheer and Others3 for contending that without certificate under Section 65B of the Evidence Act, electronic evidence cannot be made use of. 5 As against this, Mr.Kapadnis, the learned APP, argued that first demand is proved by the prosecution through evidence of complainant/PW1 Rajaram Gadade and there was no prohibition to lodge the complaint in respect of the incident of Ratnagiri with the Anti-Corruption Bureau, Thane. It is further argued by the learned APP that evidence of complainant/PW1 Rajaram Gadade is sufficient to show that the appellant/convicted accused had again demanded illegal gratification on the day of the 1 (2014) 13 Supreme Court Cases 55 2 1996 (11) SCC 720 3 2014 (10) SCC 473 APPEAL-663-2016-J.doc trap i.e. on 14th August 2013, in presence of Rajendra Ghosalkar and accepted the same by asking complainant/PW1 Rajaram Gadade to keep the amount of bribe of Rs.5 lakh in his drawer. The learned APP further argued that transcript of conversation between complainant/PW1 Rajaram Gadade as well as the appellant/convicted accused reflected in the Panchnama Exhibit 44 shows that there was demand of bribe of Rs.5 lakh by the appellant/convicted accused and the acceptance of the amount of illegal gratification by him, by directing complainant/PW1 Rajaram Gadade to keep it in the drawer of his office table. Therefore, demand and acceptance is duly proved. By relying on judgment in the matter of Shafhi Mohd. vs. State of Himachal Pradesh4 the learned APP submitted that there is no need for certificate, as required by Section 65B(4) of the Evidence Act in the case in hand, as it was for the Forensic Department of the State to give such certificate after examining the Compact Disc containing recorded conversation between the appellant/ convicted accused and complainant/PW1 Rajaram Gadade. The Anti-Corruption Bureau is not competent to produce such 4 2018 (1) SCC 860 APPEAL-663-2016-J.doc certificate. With these submissions, the learned APP supported the impugned judgment and order of conviction as well as the resultant sentence imposed on the appellant/convicted accused by the learned Special Judge, Ratnagiri.

6 (1995) 3 Supreme Court Cases 351 APPEAL-663-2016-J.doc "22 Now coming to the witnesses in trap cases, as held in State of Bihar vs. Basawan Singh (AIR 1958 SC 500) by a Bench of Five Judges, if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charge, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices in that sense but are only partisan or interested witnesses who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested which may vary from case to case and the corroboration in the case of such interested witnesses can be in a general way and not as one required in material particulars as in the case of an approver. Therefore in seeking corroboration for the evidence of trap witnesses a distinction has to be drawn where participation of an individual in a crime is not voluntary but is the result of pressure. In such a case the element of mens rea to commit the crime is not apparent and (sic) cannot strictly be classified as an accomplice and at any rate be treated as being on the same footing. Where bribe has already been demanded from a man and if without giving the bribe he goes to the police or magistrate and brings them to APPEAL-663-2016-J.doc witness the payment it will be a legitimate trap and in such cases at the most he can be treated as an interested witness and whether corroboration is necessary or not will be within the discretion of the court depending upon the facts and circumstances of each case. However as a rule of prudence, the court has to scrutinise the evidence of such interested witnesses carefully."

In the matter of Ramprakash Arora vs. State of Punjab9 the Hon'ble Apex Court has given guidelines guide-lines regarding appreciation of evidence of trap witnesses and has held that they are concerned with the success of the trap and their evidence must be tested in the same way as that of other interested witnesses and in a proper case, the court may look for independent corroboration.

10 Keeping in mind this position of law in respect of appreciation of evidence of the complainant/PW1 as well as trap 8 AIR 1973 SC 707 9 AIR 1973 SC 498 APPEAL-663-2016-J.doc witnesses in a case under the Prevention of Corruption Act, 1988, let us examine evidence adduced by the prosecution in order to establish guilt of the appellant/convicted accused, by reviewing and re-appreciating the entire evidence. This being an appeal challenging conviction, there is no embargo on reviewing the entire evidence or rather it becomes the duty of this court to re- appreciate the entire evidence, this court being the last fact finding court in the subject matter.

18 In a trap case, the complainant is certainly an interested witness and as a rule of prudence, the court has to scrutinize his evidence carefully. Whether his evidence requires corroboration or not can be determined upon examining facts and circumstances of the particular case and corroborating evidence can be given by way of circumstantial evidence. For securing conviction for offences punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988, satisfactory evidence regarding demand is necessary. Mere recovery by itself would not prove the charge against the accused. In absence of any evidence to prove payment of bribe and voluntary acceptance of such money, knowing it to be bribe, conviction cannot be sustained. In the case in hand, in his chief- examination, complainant/PW1 Rajaram Gadade had not deposed the date on which demand of illegal gratification was made to him APPEAL-663-2016-J.doc in presence of Rajendra Ghosalkar by the appellant/convicted accused but he indicated that as soon as the demand was made, he rushed to the office of the Anti-Corruption Bureau, Thane, and lodged complaint Exhibit 36. Thus, he tried to convey that the demand was emanated from appellant/convicted accused on 12 th August 2013 and he took immediate action in the matter. However, in cross-examination, he admitted that as per prosecution case, the alleged demand was made on 30 th July 2013 at Ratnagiri, whereas, he lodged complaint thereof on 12 th August 2013 and that too, with the Anti-Corruption Bureau, Thane. As accepted by him from 30th July 2013 to 12th August 2013, he was doing all his routine work daily. Thus, the complainant/PW1 never felt it necessary to lodge the complaint immediately despite availability of the office of the Anti-Corruption Bureau at Ratnagiri city itself. Evidence of this complainant/ PW1 suggests that he was under advise of Rajendra Ghosalkar - a man of worldly wisdom, who used to visit various offices and having potential of securing a favourable order of renewal of license in revision petition. Rajendra Ghosalkar seems to be the person who stage APPEAL-663-2016-J.doc manged the trap. This position is clear from cross-examination of the complainant/PW1 and shadow panch/ PW2 Lakhanlal Dhapade. As seen from paragraph 20 of cross-examination of the complainant/PW1, there were deliberations at the farm house of Rajendra Ghosalkar on 12th August 2013 and 13th August 2013 for planning how to carry out the raid for trapping the appellant/convicted accused, and Rajendra Ghosalkar as well as his brother-in-law Nana Shirke had also participated in that long and considerate discussion with the staff of the Anti-Corruption Bureau, Thane. This material unerringly gives an inference that even prior to lodging the complaint (Exhibit 36), there must have been due deliberation for the purpose of bolstering the case of prosecution, which the complainant/PW1 and Rajendra Ghosalkar were intending to set up. That must be the reason for delay in lodging the complaint Exhibit 36. The delay in approaching the Anti-Corruption Bureau apart from choice of the preferred office of the Anti-Corruption Bureau, makes evidence of the complainant/PW1 suspect and unsafe to rely without corroboration in material particulars. However, appreciation and APPEAL-663-2016-J.doc scrutiny of evidence of prosecution shows that, infact, there is no corroborative evidence for supporting vague and highly interested version of the complainant/PW1.