AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.162 OF 1996 Mahadeo Yashwant Kamble, Occ. Service, R/o. Tasgaon, District Sangli. ) ) ... Appellant Versus State of Maharashtra. ) ... Respondent Ms. S.D. Khot for the appellant. Smt. V.R. Bhosale, A.P.P. for the State. CORAM : SMT. RANJANA DESAI, J. DATE ON WHICH THE JUDGMENT RESERVED : 29TH SEPTEMBER, 2007. DATE ON WHICH THE JUDGMENT PRONOUNCED : 9TH OCTOBER, 2007. JUDGMENT:- 1. The appellant (for sake of brevity, “the accused”) was tried in the court of Special Judge, Sangli at Sangli in Special Case No.11 of 1990 for offences punishable under sections 7, 13(1)(d) and 13 AJN 2 (2) of the Prevention of Corruption Act (for short, “the said Act”). By his judgment and order dated 28/2/1996 the learned Special Judge convicted the accused of the offences punishable under section 7 of the said Act and sentenced him to suffer RI for one year and to pay a fine of Rs.5,000/-, in default, to suffer further RI for six months. The accused is also convicted for offences punishable under section 13(1)(d) read with section 13(2) of the said Act and sentenced to suffer RI for one year and to pay a fine of Rs.5,000/-, in default, to suffer RI for further six months. Substantive sentences for both the offences were ordered to run concurrently. Being aggrieved by the said judgment and order, the accused has preferred this appeal. 2. It would be advantageous to begin with the gist of the prosecution story as evident from the complaint filed by the complainant PW-1 Raosaheb Patil and from his evidence. Admittedly in June/July, 1990, the accused was the Circle Officer at Kasbe-Digraj and, as such, he was a public servant. PW-1 is a resident of village Dudhgaon, Taluka Miraj, District Sangli. He AJN 3 owns a house and an agricultural land at Dughagon. His grandfather Amgonda Patil had a brother by name Bhau. Bhau had a daughter by name Shrimanti. Shrimanti was married to one Nabu Nilkanth Patil from village Samdoli, Taluka Miraj. Shrimanti did not cohabit with her husband. She lived with her father at Dudhgaon. 3. PW-1 Raosaheb's father Shamgonda Patil had a brother by name Balgonda Patil. PW-1 Raosaheb has a brother by name Bhausaheb. Ajit is the son of Balgonda Patil. PW-1 Raosaheb, his brother Bhausaheb and his cousin Ajit do their agricultural work jointly at Dudhagaon. 4. Bhausaheb, the father of Shrimanti died and after his death, Shrimanti started living with PW-1 Raosaheb's father Shamgonda Patil. Shrimanti had inherited acres of land from her father. She made a Will in respect of her property in favour of PW-1 Raosaheb, his brother Bhausaheb and cousin Ajit. The Will was executed on 26/12/1989. Shrimanti died on 13/5/1990. AJN 4 5. On 14/5/1990, PW-1 Raosaheb, his brother Bhausaheb and his cousin Ajit made an application to the Talathi of Dudhgaon for entering their names in the 7/12 extract of the land of Shrimanti and to get the 7/12 extract. PW-2 Mohammad Soudagar, the Talathi of Dudhagaon took an entry of the Will in the village Form No.6 and issued notices to the concerned persons including the husband of Shrimanti. Shrimanti' s husband took objection for the mutation entry and this objection was entered in Village Form No.6- A by Talathi. According to the prosecution, Talathi of Dudhagaon gave an extract of the said mutation entry to PW-1 Raosaheb and his brother saying that unless the Circle Inspector certifies the entry, he will not be in a position to give any certified copy of 7/12 extract. 6. It is admitted by the accused that at the relevant time, he was working as Circle Inspector in charge of Digraj Circle and village Dudhagaon forms part of the said Digraj Circle. AJN 5 7. According to PW-1 Raosaheb, on 5/6/1990, he visited the office of the accused at Digraj and made enquiry about his work. According to him, the accused demanded Rs.1,000/- for getting the work done. PW-1 told him that he had only Rs.500/- with him. He paid that amount to the accused and told him that he will give the remaining amount of Rs.500/- later on. He requested the accused to issue an extract of 7/12 record. He then returned to Dudhagaon. 8. The Talathi then issued notices to the concerned parties and within 5-6 days thereafter, on the call of the Talathi, PW-1 Raosaheb and others appeared at Dudhagaon Chawadi. At the instance of Nabu Patil, the husband of Shrimanti, next date was fixed on 27/6/1990 at Kasbe-Digraj. This date was fixed by the accused. The accused asked the parties to remain present before him at Kasbe-Digraj on that day. Accordingly, PW-1 Raosaheb, his brothers and Nabu Patil remained present at Kasbe-Digraj. On 27/6/1990, there was some compromise between PW-1 Raosaheb, his brothers and Nabu Patil. At the request of the parties, the accused fixed the next date i.e. 5/7/1990 at Digraj. It appears that AJN 6 in the meanwhile, the three brothers paid Rs.40,000/- to Nabu Patil at Samdoli as per the compromise and on receipt of the amount, Nabu Patil gave his no objection to the mutation entry and promised to give his no objection in writing. 9. According to PW-1 Raosaheb, on 5/7/1990, he along with Bhausaheb, Ajit and Nabu Patil went to meet the accused in Digraj office. There Nabu Patil gave in writing to the accused that he has no objection for the mutation in favour of PW-1 Raosaheb and his brothers. According to PW-1 Raosaheb, the accused said that on the next day he would be visiting Dudhagaon and PW-1 Raosaheb and others should see him there. On 6/7/1990 at 3.00 p.m. PW-1 visited Dudhagaon Chawadi. The accused was present there. The accused called PW-1 Raosaheb near him. PW-1 Raosaheb told him that he has brought the remaining amount of Rs.500/- and requested him to accept the same and issue extract of 7/12 record. According to PW-1 Raosaheb, the accused said that he would not do the work for Rs.1,000/-. He demanded Rs.5,000/- from PW-1 Raosaheb saying that Nabu Patil had received Rs.40,000/-. PW-1 AJN 7 Raosaheb requested the accused to settle the matter at lesser amount, but the accused insisted for Rs.5,000/-. At that time, the accused had fractured his leg. He told PW-1 Raosaheb that he would not be coming to village Dudhgaon for 10-12 days. PW-1 Raosaheb then asked the accused for the next date. The accused gave him the next date on 10/7/1990 at Tasgaon. The accused told PW-1 Raosaheb that he would be calling Dudhagaon Talathi at his house at Tasgaon on 10/7/1990. He asked PW-1 to be prepared with Rs.5,000/- and told him that he would give him the 7/12 extract on that day. On 9/7/1990, PW-1 Raosaheb approached the office of the Anti Corruption Bureau at Sangli and lodged the complaint (Ex-26). 10. The evidence of PW-1 Raosaheb, panch witness PW-4 Ramesh Pote and PW-6 PI Shankar Patil show that on 10/7/1990 pancha witnesses were called to the office of the Anti Corruption Bureau. PW-1 Raosaheb was introduced to the panch witnesses and his grievance was narrated to him. Their signatures were obtained on the complaint. Thereafter, PW-1 Raosaheb produced AJN 8 the amount before the Investigating Officer in the presence of panch witnesses. Then there was demonstration of use of anthracene powder and ultra-violet lamp. The anthracene powder was applied to the currency notes produced by PW-1 Raosaheb. The said currency notes were kept in the pocket of the trouser of PW-1 Raosaheb by one of the staff members. Instructions were then given to PW-1 Raosaheb and panch witnesses by PW-6 PI Patil regarding the trap to be laid for the accused. A detailed pre- trap panchanama was drawn before the raiding party left the office. It is at Ex-23. It was drawn on 10/7/1990 between 8.45 – 11.00 a.m. 11. The raiding party consisting of PW-6 PI Patil, his staff and two panch witnesses and PW-1 Raosaheb left the office of the Anti Corruption Bureau. The evidence of PW-1 Raosaheb, panch witness PW-4 Pote and PW-6 PI Patil indicates that the raiding party then went to Tasgaon by a tempo. At Tasgaon, near Jyotiba Mandir, they stopped the tempo. PW-1 Raosaheb and PW-4 Pote started going towards the house of the accused. There were two AJN 9 women near the house of the accused. They informed that the accused was not present in the house. They said that the accused had gone to his filed. A boy was then sent to his field. The women said that the accused will return after one and half hour. PW-1 Raosaheb and panch PW-4 Pote waited for the accused. The accused returned on a scooter. He parked the scooter and went to his house. They went inside his house. He had put on a dhoti and a banian. A room outside the house was locked. The accused called for the keys of the room and opened the lock. The accused carried with him a black chained bag from his house. He took PW- 1 Raosaheb and PW-4 Pote to the said room (Saraswati Niwas). PW-1 Raosaheb and the accused took their seats on the cot. PW- 4 Pote sat on the chair. According to PW-1 Raosaheb, he asked the accused about his work and the accused asked him whether he had brought the amount as demanded by him. PW-1 Raosaheb said that he had brought the amount. The accused asked PW-1 Raosaheb to give the amount. PW-1 Raosaheb then took out the amount from the right side pocket of his trouser with his right hand and handed it over to the accused. The accused accepted it in his AJN 10 right hand. The accused then counted the money with both his hands and nodded that the amount was correct and then put it in his bag. PW-1 Raosaheb asked the accused that he had already paid Rs.500/- and whether he would return the same. The accused declined to return the said amount. PW-1 Raosaheb asked the accused to give a chit for the Talathi. The accused took out from the bag a register and a ball pen, a piece of paper, etc. The accused started writing the chit. In the meantime, PW-1 Raosaheb asked for water. The accused started getting up, but PW-1 Raosaheb told him that since he had suffered a fracture, he himself will go out and get the water. PW-1 Raosaheb went out through the southern door. According to the panch witness PW-4 Pote, after PW-1 Raosaheb went out, the accused got up and went to the western side window, opened it and asked his house- mates to bring tea and water and again closed the window and sat on the cot. The accused asked PW-4 Pote as to how he was related to PW-1 Raosaheb. PW-4 Pote told him that he was his cousin. AJN 11 12. According to PW-1 Raosaheb, after going out of the room, as per instructions, he gave signal to the raiding party, which was waiting outside. PW-6 PI Patil and the staff accompanied by the second pancha arrived there. PW-6 PI Patil introduced himself to the accused. On enquiry, the accused told them that he had accepted the amount and kept it in the bag. The hands of the panch witnesses and the hands of the accused were examined in the light of the ultra-violet lamp. No glow was noticed on the hands of the panch witnesses, but a bluish glow was noticed on the hands and fingers of the accused. The handle of the black bag was examined. Bluish glow was noticed on the handle. At the instance of PW-6 PI Patil the accused took out the amount of Rs.5,000/- from his bag and handed it over to the second pancha Naikwadi. Naikwadi tallied the numbers of the currency with the numbers which were noted down in the pre-trap panchnama and confirmed that the numbers tallied. The said currency notes were then kept in an envelope and the envelope was then sealed with the signatures of panch witnesses and the same was attached. PW-6 PI Patil in his evidence has stated that the amount of AJN 12 Rs.5,000/- which was taken out from the bag by the accused was examined in the light of ultra-violet lamp. Bluish glow was seen on all the currency notes. PW-1 Raosaheb was then called in. His hands were checked in the light of ultra-violet lamp. Bluish glow was seen on his right hand palm and fingers. Post-trap panchnama (Ex-53) was drawn. A list of numbers of currency notes was prepared. It is at Ex-53A. Thereafter, the raiding party returned to the office of the Anti Corruption Bureau at Sangli. 13. The panch witnesses were again called to the office of the Anti Corruption Bureau on the next day. The investigating Officer along with panch witness visited Kasbe-Digraj Chawadi on the next day. The accused was present there. He unlocked the cup-board in the Chawadi. PW-6 PI Patil seized some of the relevant documents under panchanama (Ex-54). The said documents are at Ex-27, Ex-31 to Ex-49. 14. On 11/7/1990, the Investigating Officer lodged a complaint against the accused and the offences came to be recorded as AJN 13 aforesaid vide C.R. No.168 of 1990. After completion of investigation and after obtaining the sanction, the accused came to be charged as aforesaid. 15. In support of its case, the prosecution examined as many as six witnesses. The star witness of the prosecution is PW-1 Raosaheb. The prosecution also examined the Talathi PW-2 Mohammad Soudagar, panch witness PW-4 Pote and PW-6 PI Patil. 16. The accused denied the case. According to him, at Dudhagaon, in order to assist the Talathi, he had certified 38 mutation entries out of 42 pending mutation entries because notices were served and there was no objection to the said entries. So far as mutation entry No.5039 is concerned, it was on the basis of a Will. He directed the Talathi to fix the date for hearing of the objections. Accordingly, date of hearing was fixed on 21/6/1990. On 21/6/1990, the Talathi, Dudhagaon saw him at Digraj and informed him that PW-1 Raosaheb had applied for adjournment. AJN 14 The Talathi showed him the application. Accordingly, he asked the Talathi to fix the date on 27/6/1990. He then came to Sangli to attend the camp of the revenue staff held in the Collector Office, Sangli on 21/6/1990 and 22/6/1990. In that camp, all the Tahasildars, Naib Tahasildars, Circle Officers and Talathies in the district were present. Instructions were given to them that the entries of mutation on the basis of Will should not be certified except on production of probate. He, therefore, informed the concerned person that the Will maker had died on 13/5/1990 and the application for mutation was made on 14/5/1990 and, therefore, there was reason for suspicion. He told them that the entry should not be certified without a probate. PW-1 Raosaheb and others then asked for next date. He fixed the next date as 5/7/1990 at Kasabe-Digraj. 17. According to the accused, on 5/7/1990, the persons concerned with the entry No.5039 appeared before him at Kasabe- Digraj. They insisted that he should record statement on that day. He told them that he had already instructed them to produce AJN 15 probate from the court. They told him that they had arrived at a compromise and asked him to certify the mutation entry. He told them that prior to 27/6/1990, he had met with an accident and had sustained injury to his leg. Because of the pain which he was experiencing due to the fracture he asked them to have the matter fixed on the next date. According to him on 5/7/1990, he recorded the statement of the concerned persons. He then handed over the papers to the Talathi and left for Miraj to attend the meeting in the Tehsil office which was fixed on 5/7/1990. He had already received order from the Tahasildar to remain present at Mouje Digraj on 6/7/1990 for the matter of handing over possession and partition. According to him, in the meeting dated 5/7/1990, the Tahasildar orally asked him to remain present in the Sangli Chavadi on 6/7/1990 for the said work. On 3/7/1990, he went to Dr. Ashok Nivrutti Tasgaonkar for examination of his fractured leg. Dr. Tasgaonkar asked him to take treatment of Dr. Kothari, Orthopedic Surgeon. Accordingly, he went to Dr. Kothari at Sangli. Dr. Kothari examined him and told him that he needed plaster. Dr. Kothari issued a certificate to him. On 6/7/1990, he again got AJN 16 himself examined in the Civil Hospital at Sangli. He then reported at Sangli Chavadi at about 12.00 noon to 1.00 p.m. on 6/7/1990. 18. According to him, at Sangli Chawadi, the Tahasildar told him that the work about the partition and delivery of possession at Mouje Digraj would not be done on that day. He, therefore, left Sangli at about 1.30 p.m. and went to Dr. Tasgaonkar. On 7/7/1990, Dr. Tasgaonkar put plaster on his leg. He then returned to Tasgaon on 7/7/1990. Dr. Tasgaonkar issued certificate on 7/7/1990 and asked him to take rest. According to the accused, on 9/7/1990, he was at Tasgaon. On that day, he sent an application for leave for the period from 9/7/1990 to 8/8/1990 to the Tahasildar Miraj through his son. On 9/7/1990, there was a death anniversary of his father. He had been to his field. On that day, his guests stayed in his field. Some of them stayed in his house. On 10/7/1990 the food was cooked in the field for the death anniversary. At about 1.00 p.m. to 1.30 p.m. his son came to the field and told him that his wife had sent a message that two persons had come to see him. He, therefore, returned with his son AJN 17 on scooter. He parked the scooter near Jyotiba Temple. From there, he walked to his house. He came out of the house with a dhoti and a banian on his person. PW-1 Raosaheb and the other person came to him. They told him that they had some work with him and they wanted to talk to him. Saraswati Niwas was locked. He asked his daughter-in-law to open the lock. There were guests in the house and, therefore, they decided to sit in Saraswati Niwas. All of them went there. 19. According to the accused, PW-1 Raosaheb sat on the cot and his companion sat on the chair inside the room. He asked PW-1 Raosaheb as to who was the person seating in the chair. PW-1 Raosaheb told him that that person was his cousin. He got up from the cot and opened the western side window and called his wife and asked her to bring tea and water. After having tea and water, PW-1 Raosaheb got up saying that he would return soon. He went out. Within 5-10 minutes after PW-1 Raosaheb had gone with Mokashi, PW-6 PI Patil, PW-1 Raosaheb and other staff entered the room. PW-6 PI Patil introduced himself to him and told AJN 18 him that he had just accepted and received money. According to the accused, he was frightened and he started looking here and there. Then PW-6 PI Patil asked him to take out the money. According to the accused, he then opened the chain of the bag. There were some papers in the bag. He took out from the bag a barnishi, a diary, some circulars, medical papers, copy of leave application, etc. After he took out his articles, he noticed that there was some money in the inner pocket of his bag. He gave it to PW- 6 PI Patil. PW-6 PI Patil then went to the southern side of the room with his staff. The accused remained with a lady constable and one or two staff members in the northern side of the room. He asked the constable to open the northern side door of the room as he wanted to go to the urinal. The constable opened that door and he went to the urinal and came back. His daughter-in-law then brought tea. All of them had tea. PW-6 PI Patil told him in the presence of Mokashi that he wanted the papers about the mutation entry of PW-1 Raosaheb. He asked him to remain present in his office at 11.00 a.m. on the next day. AJN 19 20. According to the accused, on the next day at 11.00 a.m., he reported in the office of the Anti Corruption Bureau at Sangli. Then he, PW-6 PI Patil and his staff went to Kasabe-Digraj by a private van. In his office at Kasabe-Digraj, PW-6 PI Patil handed over the keys to him. The accused opened the cup-board and showed all the papers to PW-6 PI Patil. According to the accused, the papers of PW-1 Raosaheb's mutation entry were not in the cup-board. When he was asked as to where the papers were, he told PW-6 PI Patil that they were with Dudhagaon Talathi. He had then sent a man to Dudhagaon Tahasildar and called for the record. Accordingly, the Talathi came there with the record of 7/12 mutation book and other papers regarding entry No.5039. PW-6 PI Patil took them in custody. Panchanama was then drawn. The accused was then asked to go. He was then asked to remain present in the guest house at Sangli on 16/7/1990. Accordingly, he remained present there on 16/7/1990. In short, it is the case of the accused that because he had insisted on the production of probate from PW-1 Raosaheb, PW-1 Raosaheb has falsely implicated him in this case. Money was planted in his bag. AJN 20 21. After perusing the evidence on record, the learned Special Judge came to the conclusion that the prosecution had proved its case beyond reasonable doubt. He, therefore, convicted the accused as aforesaid. Hence, this appeal by the accused. 22. I have heard, at some length, Ms. Khot, the learned counsel appearing for the appellant-accused and Smt. Bhosale, the learned A.P.P. appearing for the State. With the assistance of the learned counsel, I have gone through the evidence and the record of the case. 23. Ms. Khot, the learned counsel appearing for the appellant submitted that the learned Special Judge erred in convicting the accused. She submitted that there is enough indication in the evidence that the prosecution story is concocted and the accused is sought to be implicated at the instance of one Mokashi, who had an axe to grind against the accused. AJN 21 24. Ms. Khot submitted that there is no corroboration to the alleged first demand dated 5/6/1991. The prosecution has not examined the brothers of PW-1 Raosaheb. Similarly for the second demand dated 6/7/1990 also, there is no independent corroboration. PW-2 Soudagar, the Talathi does not speak about it. Therefore the second demand is also not proved. It is risky to hold that these demands are proved only on the basis of the evidence of PW-1 Raosaheb whose evidence is in the nature of evidence of an accomplice. Ms. Khot submitted that once prior demands are not established the court has to be careful while accepting the evidence relating to the alleged trap. A different approach is necessary in such a case. The evidence pertaining to the trap has to be carefully evaluated and if there are discrepancies, it has to be rejected. In this connection, the learned counsel heavily relied on the judgment of this court in Tryambak Lilaji Binnar v. State of Maharashtra, 2002 Cri. L.J. 3059. 25. Ms. Khot submitted that if the prior demands are not proved, the entire prosecution story becomes suspect. Possibility of AJN 22 concoction cannot be ruled out. 26. Ms. Khot pointed out that M.A. No.4, the Register which is maintained by the office to keep record