1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.62 OF 2007 Arjun Bajirao Kale ) age 58 years, Occ: service ) R/o. 142 Asra Colony, ) Solapur, Dist: Solapur. ) ..... Appellant. (Original Accused) V/s The State of Maharashtra )...... Respondent (Original Complainant) ---- Mr. B.R. Patil for the appellant. Mr. D.P. Adsule, APP for the State. ---- CORAM: V.M. KANADE, J. DATE : 12th November, 2008 ORAL JUDGMENT: 1. Heard the learned Counsel appearing on behalf of the appellant and the learned APP appearing on behalf of the State. 2. Appellant has filed this appeal, challenging the judgment and order passed by the Special Judge, Solapur dated 07/12/2006 whereby the learned Judge was pleased to convict the appellant for the offence punishable under section 7 of the Prevention of Corruption Act, 1988 and sentenced him to suffer 2 rigorous imprisonment for two years and to pay fine of Rs 20,000/- and, in default of payment of fine, to suffer further rigorous imprisonment for one year and the learned Judge also convicted him for the offence punishable under section 13(1)(d) and 13(2) of the Prevention of Corruption Act and sentenced him to suffer rigorous imprisonment for three years and to pay fine of Rs. 30,000/- and, in default of payment of fine, to suffer further rigorous imprisonment for one and half years. 3. Prosecution case, in brief, is that the appellant was serving as a Senior Police Inspector in Vijapur Naka Police Station at Solapur. Prosecution case is that he demanded an amount of Rs 50,000/- from the complainant by threatening to arrest him and his servant in counterfeit currency case. Prosecution case is that, initially, some amount was paid by the complainant and the accused demanded balance amount of Rs. 25,000/-. Complainant – Bharat Pandurang Jadhav filed a complaint with the Anti Corruption Bureau. The currency notes of Rs 25,000/- were covered with anthracene powder and the pre-trap panchanama was prepared. The Investigating Officer took raiding party to the Police Station and the 3 complainant and the panch witness Madan Kulkarni entered the cabin of the accused. Prosecution case is that the accused demanded money from the complainant and, thereafter, the complainant handed over the said tainted money to the accused in the presence of panch witness and, thereafter, gave pre- arranged signal. The accused put the said amount in his pocket and, as a result, impressions of anthracene powder were found on his hand. The accused was, thereafter, arrested. Sanction to prosecute the accused was granted by the Additional Director General of Police. 4. Prosecution examined in all 11 witnesses. P.W. 4 - Bharat Pandurang Jadhav who was the complainant, in cross- examination did not support the prosecution case and he was declared hostile with the leave of the Court. P.W. 8 – Shriniwas Madam also turned hostile. The panch witness P.W. 5 – Madan Kulkarni, however, supported the prosecution case and stated that the money was demanded in his presence and it was accepted in his presence by the accused. 5. Trial Court relied on the testimony of P.W. 5 – 4 Madan Kulkarni who was the panch witness, though P.W. 4, who was the complainant, turned hostile and on the basis of the said evidence held that the demand had been established by the prosecution and that the acceptance also was proved beyond reasonable doubt. On the basis of this evidence, Trial Court convicted the accused. 6. Shri Patil, the learned Counsel appearing on behalf of the appellant submitted that the demand was the foundation of the case under the Prevention of Corruption Act and unless demand is conclusively established by the prosecution, mere acceptance of money was not sufficient to convict the accused. In support of the said submission, Counsel for the appellant relied upon two judgments; one of the Supreme Court in Sat Paul v. Delhi Administration reported in AIR 1976 SC 294 and the another of this Court in Pandharinath Shelke v. State of Maharashtra reported in 2005(2) Bom. C.R. (Cri) 940. He submitted that the complainant P.W. 4 had turned hostile and, therefore, no reliance could be placed on his testimony. He further submitted that P.W. 9 - Rajkumar Shriman, initially, was named as an accused by the prosecution. However, no charge- 5 sheet was filed against him and, subsequently, the prosecution has examined him as prosecution witness. He submitted that, therefore, no reliance could be placed on his testimony since he was an interested witness and the police obviously had favoured him by not making him an accused in the case. He submitted that, therefore, on the sole uncorroborated testimony of panch witness P.W. 5, it could not be held that the demand had been proved by the prosecution. 7. Shri Adsule, the learned APP appearing on behalf of the State, on the other hand, submitted that the Trial Court had rightly observed in para 39 of its judgment that though P.W. 4 - Bharat Pandurang Jadhav has turned hostile, his testimony was corroborated by P.W. 5 – Madan Kulkarni and by the Investigating Officer and, therefore, the said testimony clearly established the demand made by the appellant. He invited my attention to the deposition of P.W. 5 – Madan Kulkarni and submitted that his testimony was not shaken in cross- examination by the defence. He submitted that this is a case of Police Officer accepting bribe for the purpose of not prosecuting the criminal and, as such, it is a grave case of misconduct as per 6 the provisions of Prevention of Corruption Act, 1988. He, therefore, submitted that no leniency should be shown to such appellant who had demanded bribe from the offender for the purpose of rescuing him from the prosecution. 8. It is a well settled position in law that demand of bribe is a foundation in a case under the Prevention of Corruption Act. Mere acceptance of money, by itself, would not be sufficient for the purpose of convicting the accused who is charged with an offence punishable under section 7 and section 13(1)(d) and 13(2) of the Prevention of Corruption Act. In the present case, the accused has admitted having accepted the said amount of Rs 25,000/-. In his cross-examination, P.W. 4 - Bharat Pandurang Jadhav has admitted that he had entered the cabin of the appellant alone and had inquired abut whether P.W. 9 - Rajkumar Shriman had come to the Police Station. The accused replied in the negative and, thereafter, P.W. 4 has stated that he went out and again entered the cabin after some time and, thereafter, informed the appellant that he was to pay some amount to P.W. 9 - Rajkumar Shriman. However, he was not found in the premises. He, therefore, requested the 7 appellant/accused to deliver the amount of Rs 25,000/- to him and the accused, therefore, accepted the said amount. Though P.W. 4 in his examination-in-chief has stated that the accused had demanded the amount towards bribe, in the cross- examination he has admitted the defence of the accused. Under these circumstances, therefore, it has to be seen whether theory of demand has been established by the prosecution. 9. The learned Counsel appearing on behalf of the appellant has relied upon the judgment of the Supreme Court in the case of Sat Paul (supra). The ratio of the said judgment is squarely applicable to the facts of the present case. In the said case, it was held by the Apex Court that it was necessary to see whether there was corroboration to the evidence of the complainant regarding bribe, by other witnesses. In the present case, the complainant has resiled from his earlier testimony. P.W. 8 - Shriniwas Madam also has turned hostile. P.W. 9 - Rajkumar Shriman, admittedly, was initially named as an accused but, subsequently, when charge-sheet was filed, his name was dropped from the array of the accused and he was examined as witness. This witness does not state as to what 8 transpired in the cabin of the accused but has stated about the demand made by the accused before the pre-trap panchanama. No reliance, therefore, could be placed on the testimony of this witness, firstly because he is an interested witness and, secondly, because the Police have obliged him by dropping his name from the list of the accused in the case. The only other witness who has deposed about the demand of bribe is P.W. 5 – Madan Kulkarni. Madan Kulkarni has, in his evidence, stated that he, alongwith the complainant, had gone inside the cabin of the accused and, at that time, the accused demanded bribe and the complainant had paid the said amount in his presence. Apart from this evidence, there is no evidence of any other witness on the question of demand of illegal gratification. Thus, there are to contrary versions which are given by two witnesses. The complainant P.W. 4 - Bharat Pandurang Jadhav has, in his evidence, categorically stated that he alone went inside the cabin. This admission has been given by him in his cross-examination. Trial Court, in my view, erred in accepting the version given by this witness in his examination-in-chief which was totally demolished by the defence by getting an admission from him in the cross-examination. In my view, therefore, it was not open 9 for the Trial Court to have relied on that part of the examination- in-chief which has been demolished in cross-examination. Finding recording by the Trial Court in para 39 of its judgment, therefore, is clearly illegal and is not supported by any authority or provision of law. 10. Another aspect which has to be taken into consideration is that the prosecution witnesses viz P.W. 4 and P.W. 9 are history-sheeters and had a good reason for implicating the appellant who was the Senior Police Inspector. P.W. 4 in his cross-examination has admitted that, initially, he was carrying on business of manufacturing and selling illicit liquor. He and his three brothers all were involved in number of cases of extortion, murder and other serious offences. He also admitted that some of the cases against him were pending in the Court. P.W. 9 also was sailing in the same boat. P.W. 5 – Madan Kulkarni, on the other hand, who is a panch witness, has stated in his evidence that he, alongwith the complainant, had gone inside the cabin of the accused and, at that time, the accused demanded bribe and the complainant had paid the said amount in his presence. The question is whether on the sole 10 testimony of panch witness, it could be held that the demand has been proved? In my view, benefit of doubt will have to be given to the appellant/accused. Therefore, in my view, on the sole uncorroborated testimony of P.W. 5 – Madan Kulkarni, it cannot be held that the demand has been established by the prosecution. The apex court in the case of Sat Paul (supra) has observed that if, in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the judge should, as a matter of prudence, discard his evidence in toto. It will be fruitful to refer to the observations made by the Apex Court in para 20 and 21 of its judgment in the case of Sat Paul (supra), which read as under:- “20. The courts below have believed the word of these pimps and women of easy virtue, that the appellant did all this to extort a bribe. The trial court with reference to certain observations of Dua J in Ram Sarup's case (1967 Cri LJ 744 Delhi) ibid, treated the “shady and questionable characteristics” of these witnesses as a point in favour of the prosecution. It argued that persons with such antecedents can be easily exploited by corrupt police officers for extorting bribes. Thus, in a way, what was a stigma was considered a badge of honour. We are, with respect, unable to appreciate this reasoning. The observations in Ram 11 Sarup's case, were not intended to lay down a rule of universal application. Indeed, for weighing evidence there can be no specific canon. No generalisation is possible in such matters. Each case has its own features and each witness his own peculiarities. Here was a police officer with an unblemished record rather an outstanding record of 19 years' service. Such an officer would be least disposed to countenance pimping within his territorial jurisdiction. He must therefore have been an eye-sore to them. It could not therefore be said that these witnesses had no motive whatever to falsely implicate the appellant.” “21. Thus the conduct of the appellant in restraining Ramesh for interrogation, could be the innocent act of an honest and duty-conscious Police Officer.” In the present case also, on the one hand, there is an appellant who is a Police Officer having long unblemished service and on the other hand there are P.W. 4 and P.W. 8 who are history- sheeters and who definitely had an axe to grind against the present appellant. Complainant P.W. 4 - Bharat Pandurang Jadhav in his cross-examination resiled from his statement and did not support the prosecution case. P.W. 8 also turned hostile. P.W. 9 was obliged by the prosecution by deleting his name from the array of the accused. The observations made by the Apex Court in the case of Sat Paul (supra) will squarely apply to 12 the facts of the present case. The explanation given by the accused that the money was handed over to him for the purpose of giving it to another person, therefore, appears to be the probable defence. Under these circumstances, the judgment and order of the Trial Court will have to be set aside. 11. Accordingly, the following order is passed:- O R D E R In the result, appeal is allowed. The judgment and order of the Trial Court is set aside. Appellant is acquitted of the offence punishable under section 7 and under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988. The amount of fine which is paid by the appellant may be returned to him. His bail bonds stand cancelled. Appeal is disposed of in the aforesaid terms. (V.M. KANADE, J.) 13