crapl104.99 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.104 OF 1999. Chandrasen s/o Kisanrao Chauhan Age 54 years, Occu. Service, Assistant Police Sub Inspector Pimpalner Police Station, R/o. Pimpalner, Tq. and district Beed. ...APPELLANT. Versus 1 The State of Maharashtra (Copy to be served on the Public Prosecutor, High Court, Bench at Aurangabad) 2 The Police Inspector Anti Corruption Bureau Beed, District Beed. ...RESPONDENTS. ..... Shri S.J. Salgare, Advocate holding for Smt. S.S. Jadhav, Advocate for the appellant. Mr. S.G. Nandedkar, A.P.P. for respondents ..... CORAM: S. S. SHINDE, J. RESERVED ON: 03.02.2011. PRONOUNCED ON: 04.03.2011. JUDGMENT:- 1. This appeal is filed challenging the judgment and order of conviction dated crapl104.99 2 01.03.1999, passed by the learned Special Judge, Beed, in Special Case No.55 of 1991 whereby the learned Special Judge has convicted the appellant-accused for the offence punishable under Section 7(i)(d) of the Prevention of Corruption Act and sentenced to suffer R.I. for three years and to pay fine of Rs.3000/- I/D R.I. for nine months. The appellant-accused is also convicted for the offence punishable under Section 13(1)(d)(i) (ii) of the Prevention of Corruption Act and sentenced to suffer R.I. for four years and to pay fine of Rs.4000/- I/D to suffer R.I. for one year. 2 The prosecution case, in brief, is as under;- The complainant Laxman Vishnu Are is a Kotwal. 15 days prior to the incident in question i.e. one Sunday evening the persons viz. Rajabhau Kale, Hanumant Shinde, Kacharu Kadam in all 6-7 had assaulted the crapl104.99 3 complainant’s mother, wife and 2 sons. At that time, the complainant was near Hanuman temple. Complainant’s son Rajabhau went to police station on the same day and lodged a complaint. Complainant’s son told him that Head constable Chauhan did not take down the names of all assailants. Hence on the next day complainant gave application to D.S.P. Office Beed, Tahsildar Beed and P.S.I. Pimpalner police station. The complainant mentioned the names of all accused persons. On the next day i.e. on Tuesday the complainant met head constable Chauhan at Beed near Kala Hanuman Thane police chowki. At that time, complainant’s son Pandurang was with him. At same time head constable Chauhan and one constable with him were in civil dresses. Head Constable Chauhan told Kotwal that they are under arrest. Thereafter, complainant told him that he has to take his salary from Tahsil Office. Thereafter Head Constable Chauhan took Pandurang on his motorcycle with him and went crapl104.99 4 away. On the next day i.e. on Wednesday after the arrest of Pandurang he was produced by Head constable Chauhan before Tahsildar, Beed. The complainant halted till 5.00 to 6.00 p.m. He furnished bail for his son. At that time also Head constable Chauhan told the complainant that the complainant and his two sons are yet to be arrested. Head constable Chauhan asked them to come to the police station. Thereupon, the complainant told him that it is too late. The complainant assured head constable Chauhan that they will come to Pimpalner police station on the next day morning. Thereafter, head constable Chauhan asked them to come early. 3. Thereafter on Thursday morning at 11.00 a.m. the complainant met head constable Chauhan in the Pimpalner police station. At that time, surety Vishwanath Jagannath Yeserkar, both the sons of the complainant and the complainant having 7x12 extract with them crapl104.99 5 had been to the police station. Thereafter, head constable Chauhan took the complainant aside. Head constable Chauhan told the complainant that Rs.500/- will be required for bail of three persons i.e. complainant and his two sons. Thereupon, the complainant told that he has no money. Head constable Chauhan then told the complainant that all three will have to go to jail. He further told the complainant that surety would be sent to Beed Court only. Thereafter, the complainant requested head constable Chauhan that he should not do such injustice. Thereupon Head Constable Chauhan asked to pay at least Rs.400/-. Thereafter, the complainant told Head Constable Chauhan that in fact he has no money with him. Head Constable Chauhan told the complainant that he will give bail to all three persons but he will have to give Rs.400/- personally. Thereafter the complainant unwillingly agreed. Head constable Chauhan took surety and complainant’s two sons aside. He noted down crapl104.99 6 their names and ages and released them on bail. He obtained signature of surety. Head Constable Chauhan told that there is no necessity of the 7x12 extract. After furnishing surety when the complainant was going out of the police station at 2.00 p.m. head constable again told him that they should halt there only. 4. He added that they will have to be sent to Tahsil Court, Beed on the next day. Hence, on the next day complainant again went to the police station at noon. Head constable Chauhan gave one constable with the complainant and sent him to Tahsildar Beed. There, the complainant was given date as 14.1.1991. The complainant met Hawaldar Chauhan in the Pimpalner police station on Thursday at 5.00 p.m. He told head constable Chauhan that he had brought Rs.100/- only. Head Constable Chauhan took Rs.100/- from him and told the complainant to bring balance of Rs.300/- on crapl104.99 7 Saturday in the market of Nathapur without fail. Thereafter he went to police station on 12.1.1991 and reported to Anti Corruption Bureau that the Head Constable Chauhan is going to accept Rs.300/- from him and that he is not inclined to offer the bribe to Head Constable Chauhan. He also pointed out to the Anti Corruption Bureau that neither himself nor family members from his house has to pay private dues or Government due. The complainant had brought Rs.300/- with him and lodged the complaint. The said complaint was read over to complainant. The State complainant viz. Vikas Murlidhar Kohak, Police Inspector of Anti Corruption Bureau, Beed recorded the complaint of Laxman Vishnu Are on 12.1.1991 as per Exh.16. 5. Thereafter, State complainant arranged a trap. He made requisition to Executive Engineer Irrigation Department, Beed for sending two Government employees as panch crapl104.99 8 witness. State complainant also asked Irrigation Department to make the Government vehicle available. Accordingly, this letter was given on 11.1.1991 on which date complainant Laxman had contacted State complainant Kohak. Accordingly, on 11.1.1991 at 5.00 p.m. panchas were asked by the State complainant to come on 12.1.1991 morning. Thereafter he contacted Anti Corruption Bureau Aurangabad and requested assistance of one police Inspector and one constable for help by wireless message. After arrival of panchas, police Inspector introduced himself. They agreed to act as panch in the trap case. Thereafter, P.I. Kohak introduced his staff to panchas. Thereafter, panchas went away. On 12.1.1991 morning above mentioned both panchas came in the A.C.B. Office in jeep. 6. Thereafter police Inspector Shri Shaikh and police constable Vyahere Anti Corruption Branch Aurangabad also came. They were crapl104.99 9 introduced to panchas and the complainant and vice versa. Thereafter in presence of panchas and at their instance pre-trap panchnama No.1 was prepared. While preparing panchnama, all legal technicalities were followed including disclosure of the complainant by complainant to panchas. Use of anthracene powder etc. the complainant produced notes of Rs.300/-, their numbers were noted in the panchnama. anthracene powder was applied to the notes. Thereafter, notes were kept in the pocket of the complainant. Thereafter instructions were given to complainant and panchas as mentioned in the panchnama No.1. The Government complainant Vikas Kohak took care that before starting for raid anthracene powder is not attached to the hand of anybody. Thereafter police Inspector Kohak, two panchas, Police Inspector Shaikh, complainant, members of the raiding party proceeded in the Government vehicle from Beed and went to Nathapur. They stopped Government jeep near the field of crapl104.99 10 Chauhan Bandhu. Thereafter as per the instructions the Government complainant, complainant Laxman and panch Baliram Dhole proceeded by foot and went to S.T. Stand square of Nathapur. The raiding party was divided into two groups. Thereafter, they followed complainant keeping sufficient distance while concealing their presence. 7. Thereafter they concealed themselves at the square. Complainant Laxman and panch Dhole first stopped near Anand betel stall. Thereafter, they halted near Baba Pan Centre. They met Hawaldar, Chauhan wearing while shirt and white pyjama. Head Constable Chauhan told the complainant that he was waiting for him since ½ hours. Thereafter, Hawaldar Chauhan asked the complainant Laxman Are whether he brought money. The complainant Are told him that he had brought remaining Rs.300/- as told by him. Thereafter Hawaldar Chauhan stretched his right hand in front of complainant. crapl104.99 11 Thereafter the complainant Are took out notes of bribe from his left shirt pocket. He put them in hand of Hawaldar Chauhan. Thereafter Hawaldar Chauhan counted those notes. At that time complainant gave signal as instructed to indicate acceptance of bribe. Thereafter police Inspector Shaikh ran towards Head Constable Chauhan and held his both hands near the wrist. At that time, Head Constable Chauhan threw notes in his right hand while crumpling on the ground. Thereafter panch No. 2 Rathod and other raiding party members reached to the spot at that time Mahadeo Trimbak Chauhan came there and started asking P.I. Kohak etc. as to why Head constable Chauhan is being beaten. 8. Thereafter the Government complainant Kohak introduced them to him. Thereafter Mahadeo Chauhan asked P.W.2 Rathodl to lift notes thrown by H.C. Chauhan from the ground. Accordingly panch No.2 collected spread over crapl104.99 12 notes. As it was inconvenience to prepare panchnama in the situation where both the hands of Chauhan were folded. The Government complainant took him to Gram Panchayat Karyalaya, Nathapur. Thereafter the name of accused was taken down alongwith his designation and address. Thereafter, windows and doors of Gram Panchayat office were closed. Both the hands of A.S.I. Chauhan were examined in the light of ultra violet lamp and presence of powder were found on his both hands. Thereafter notes in possession of panch No.2 Rathod was examined in the light of ultraviolet lamp. The presence of anthracene powder was also noticed on those notes. It was so confirmed by both the panchas and police Inspector Kohak etc. number of these notes were tallied with numbers mentioned in the panchnama No.1/1 numbers of the notes mentioned in panchnama No.2 Out of these notes, three notes were fresh. But torn notes were in crumpled condition. All these notes crapl104.99 13 were kept in one packet. Packet was sealed and panchas and police inspector signed on the packet. The said packet was sealed and taken in possession by the Government complainant. Thereafter, P.I. Kohak asked accused to give his say but he refused to give anything in hand writing, as his mental condition was not good. 9. Thereafter the Government complainant and panchas inspected the spot and boundaries of the spot were mentioned in the panchnama. The panchnama was prepared in the Gram Panchayat Office. One copy of the panchnama was given to accused. Thereafter all of them went to Pimpalner police station in the jeep. As per instructions of Government complainant Kohak, A.S.I. Chauhan had handed over original papers of crime No. 104/90, 105/90. He also took application of complainant Laxman Vishnu Are. So also his application given to Superintendent of Police and the application crapl104.99 14 of Rajabhau Laxman Are. P.I. Kohak and panchas inspected these papers and signed these papers. Thereafter these papers were seized and accordingly panchnama No.3 was prepared. Thereafter all of them excluding accused came to Anti Corruption Branch Office. Thereafter the Government complainant Shri Kohak told the panchas sealed packet containing bottle of anthracene powder. So also signatures of the panchas taken and kept the packet in the cup board and panchnama No.4 was prepared accordingly. 10. Thereafter on the next day the Government complainant went to Pimpalner police station and filed the complaint Exh.42. Head Constable Panhalkar registered the offence as Crime No. 3 of 1991 under Section 7, 12 (1) (d) r.w. Section 13(2) of the Prevention of Corruption Act, 1988. Thereafter, he obtained certificate extract of crime No. 104 of 1990 and 105 of 1990 of P.S. Pimpalner from Head crapl104.99 15 constable Panhalkar. The original register did not show timing of the arrest of Laxman Are and Rajabhau Are in crime No.104 of 1990. Accordingly he verified and signed mentioning their absence. In fact, Laxman and his two sons namely Rajabhau and Pandurang were arrested in proceeding under Section 107 of the Cr.P.C. also in Section 152 of Cr.P.C. of the Cr.P.C. but no entry of the said arrest was taken in the arrest register. Thereafter, he went to Tahsil Office, Beed and obtained certificate of the extracts of arrest of Laxman and his sons. He recorded the statement of Vasant Kate, the concerned clerk from Tahsil Office. The documents obtained from the Tahsil Office are at Exh.19. Thereafter they issued letter to Tahsildar to arrange to prepare a map of the spot where the trap was arranged. He also recorded the statement of surety Vishwanath Devadkar. He recorded statements of one Madhavrao Trimbakrao Chavan, member of Gram Panchayat, Sk. Jamil Sk. Ahmed, crapl104.99 16 owner of Kashmir Pan Center. Radhakrishna Giri, owner of Baba Pan Center. Shriram Madhav Chavan, owner of Tea stall and four persons. He recorded the statement of P.S.I. Pimpalner Head Constable Panhalkar, Head constable Maksood Ahmed Manjur Ahmed. He took Circle Officer Vilas Sharangat to the spot and gave him information of the panchnama for drawing map of the spot. Thereafter, he went to the S.P. Office Beed and obtained copies of posting order of A.S.I. Chavan at Pimpalner Police Station. Thereafter, he prepared a set of all investigating papers and sent it to S.P. Office Beed for obtaining sanction in the month of June, 1991. He received a map of the circle Inspector, Sharangat in August, 1991. On the very day he recorded his statement. He got sanction order on 21st of August, 1991. He filed charge sheet in the court on 31.8.1991. 11. Thereafter, the learned trial Judge framed charge against the accused under Section 7, 13 crapl104.99 17 (1) (d) r.w. Section 13(2) of the Prevention of Corruption Act, 1988 as per Exh.8. The contents of the charge were read over and explained to him. He pleaded not guilty as per the Exh.9. 12. Thereafter Prosecution examined in all nine witnesses in support of its case. Laxman s/o Vishnu Are, P.W.1 (Exh.15) is the complainant. Vasant Ganpatrao Ghat P.W.2 (Exh. 18), Madhavrao Trimbakrao Chavan P.W.3 (Exh. 2)), who is eye witness. Shaikh Jamil Shaikh Hamid, P.W.4 (Exh.11) owner of pan center adjacent to spot of incident. Kaushalkumar Pathak, P.W.5 (Exh.23) is Deputy Commissioner of Police at Bombay. Baliram Nivruttirao Dhole P.W.6 (Exh.26) is the panch witness, Vishwanath Jagannath Devadkar P.W.7 (Exh.33) who is standing as surety for Laxman and his sons and Vikas Murlidharrao Kohak P.W.9 (Exh. 41). crapl104.99 18 13. Thereafter statement of accused is recorded under Section 313 of the Code of criminal Procedure. The defence of the accused is of total denial. As per him, the complainant gave false complaint because accused refused to involve the names of such persons who were not connected with the offence. In the complaint given by complainant’s son Rajabhau. As per him the complainant thrusted the notes into his hands. As per him the Government witnesses deposed as per the directions of their superior. 14. The learned Additional Special Judge, Beed after framing necessary points and recording evidence and after hearing the parties has convicted the appellant for the offence punishable under Section 7(1) (d) and sentencing him to suffer R.I. for three years and to pay fine of Rs.3000/-I/D R.I. for nine months and the for the offence punishable under Section 13(1) (d) (i) (ii) of Prevention crapl104.99 19 of Corruption Act and sentencing him to suffer R.I. for four years and to pay fine of Rs. 4000/- I/D to suffer R.I. for one year. Hence, the judgment of the learned Sessions Judge is under challenge in this appeal. 15. The learned Counsel for the appellant submitted that the evidence of the prosecution witnesses is not consistent, there are material contradictions, omissions and improvements and, therefore, it is not safe to place reliance on the evidence of the prosecution witnesses. P.W.1 Laxman Arey in his examination-in-chief has stated that when they went to the Police Station, P.S.I. was not present in the police station. His surety was accepted by accused but he demanded Rs. 500/- for accepting surety. It is further deposed by this witness that on Tuesday they were released on bail in police station and on Wednesday their bail was accepted in chapter crapl104.99 20 case in the Office of Tahsildar at Beed. This fact is also corroborated by the evidence of P.W.2 Vasant Chate, who has proved Exh.19/3 and 19/5. Therefore, the Counsel for appellant would submit that the documents at Exh.19/3 and 19/5 would show that in Chapter Case No.1/91 the complainant and others were released on furnishing P.R. bond of Rs.500/- on 2.1.1991 and in Chapter Case No.3/91, they were released on furnishing P.R. bond of Rs. 2000/- on 4.1.1991 by accepting surety. Therefore, the Counsel for appellant would submit that this shows that the complainant and others were already released on bail. He further submitted that P.W.1 Laxman Arey in his cross-examination has admitted that he was released on bail in police station Pimpalner six days prior to the trap. He gave Rs.100/- to the accused 5 to 7 days after the bail. Therefore, the Counsel would submit that this clearly shows that the work of releasing P.W.1 on bail was already done by accused - crapl104.99 21 appellant and, therefore, there was no question of demand of Rs.400/- from P.W.1 Laxman for releasing him on bail. The learned Counsel further invited my attention to the cross-examination of P.W.1 Laxman and submitted that P.W.1 Laxman wanted that the appellant / accused should add names of some persons. However, the appellant did not accede to his request and, therefore, P.W.1 Laxman had also given application to the Superintendent of Police and Tahsildar against the appellant / accused. It is further submitted that even P.W.1 Laxman in his cross- examination has admitted that he became angry as other names were not added in the offence by the accused. It is further submitted that P.W.1 Laxman lodged complaint to the ACB on 12th January, 1991 i.e. after lapse of 7 to 8 days after the alleged demand. This shows that P.W.1 had a grudge against the accused and therefore, the appellant is entitled for acquittal. It is further submitted that one of crapl104.99 22 the essential ingredients of section 7 of the Prevention of Corruption Act, 1988 regarding motive for accepting illegal gratification of Rs.300/- has not been proved by the prosecution beyond reasonable doubt. In support of this contention, the learned Counsel for appellant placed reliance on the judgment of this Court in case of Suryabhan vs. State of Maharashtra, reported in 1995 Cr.L.J. 107. It is further submitted that the appellant proved his case by preponderance of probability. The prosecution has failed to prove its case beyond reasonable doubt. The Counsel placed reliance in case of Banarsidas vs. State of Haryana reported in 2010 AIR SCW 2282, and submitted that in that case, it is held that mere proof of recovery of bribe money from accused is not sufficient to prove the offence. The prosecution has to establish demand also. He has further invited my attention to another judgment of the Apex Court in case of C.M. Girishbabu vs. State of crapl104.99 23 Kerala reported in 2009 AIR SCW 1693, which takes similar view as is taken in case of Banarsidas (supra). 16. The learned Counsel for appellant further submitted that P.W.1 Laxman Arey has admitted in his examination-in-chief that when he along with his son Rajabhau and surety holder Vishwanath had been to the Police Station at that time the accused had demanded money for releasing him on bail. However, the prosecution has examined Vishwanath Devadkar as P.W.7 but, he had not stated about the demand by the accused. Therefore, the Counsel would submit that the prosecution has not proved the prior demand in this case. In support of his submission, the counsel for appellant placed reliance on the judgment in case of Avinash Sitaram Garware vs. State of Maharashtra reported in 2008 ALL M.R. (Cri) 85. It is further submitted that in the post- trap panchanama (Exh.28), averments of demand crapl104.99 24 are missing. So also in the sanction order at Exh.24, the demand is not mentioned. Therefore, the Counsel for the appellant would submit that the very foundation of the trap i.e. the demand is not proved and therefore, the appellant is entitled for acquittal. It is further submitted that sanctioning authority P.W.5 Kaushalkumar Pathak in his evidence and more particularly, in cross- examination has given evasive answers to the questions of defence. Therefore, he submitted that it can safely be inferred that the sanctioning authority has not applied its mind at the time of according sanction. Therefore, prosecution has not proved the sanction beyond all reasonable doubt. Relying on the grounds taken in the appeal memo and afore stated submissions, the learned Counsel for appellant would submit that the appeal deserves to be allowed by setting aside the impugned judgment and order of conviction. crapl104.99 25 17. On the other hand, the learned A.P.P. appearing for the respondent State submitted that on 13th January, 1991 offence was registered against the accused u/s 7, 13(1)(d) r.w. Sec. 13(2) of the Prevention of Corruption Act, 1988. The complaint was lodged by one Vikas Laxman Kohok, Dy.S.P., ACB, Beed. There was demand of Rs.400/- for the purpose of granting bail to the complainant and his two sons. The accused was working as police officer at the relevant time and he had called the complainant along with his two sons in the police station and he demanded Rs.200/- each for granting them bail. The complainant showed his inability to pay the said amount since he was not having money at the relevant time with him. The accused insisted at least to pay Rs.400/- and in case said amount is not paid, the accused told the complainant that he would send them to the Beed Court for the purpose of bail. Therefore, the complainant requested the crapl104.99 26 accused that he had no money at that time and he would pay the same afterwards. It is further submitted that the accused accepted the request of the complainant and asked him to bring amount of Rs.400/- after 8 - 10 days and told him to come to Beed for filing chapter case on the next day. After some days, the complainant met the accused. At that time, accused received Rs.100/- from the complainant and asked him to bring remaining amount of Rs.300/- in the market of Nathapur. Since the complainant was not willing to pay said amount, the complainant approached to the A.C.B., Beed on 11th January, 1991. The A.P.P. further submitted that the Dy. S.P., A.C.B., Beed recorded statement and prepared pre-trap panchanama. Panch witnesses were called and trap was arranged. The Panch witness Baliram Dhole was a shadow witness. The Dy. S.P. sent him along with complainant towards the accused as per their trap and in front of witness, accused demanded remaining crapl104.99 27 amount of Rs.300/- to the complainant and accordingly, the complainatn handed over tented notes to the accused. As soon as the accused accepted tented notes and got it confirmed, by that time, the complainant gave signal to the raiding party and raid was completed. Mr. Shaikh from raiding party reached on the spot and caught both hands of accused. At that time, accused had immediately crushed the tented notes and thrown it on the ground. Those notes were recovered. As anthracene powder was applied to the