1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 584 OF 2009 Deepakkumar S/o Shashikumar Mishra, Age : 50 years, Occ : Service, R/o Nirala Bazar, Aurangabad ..APPLICANT -VERSUS- The State of Maharashtra Copy to be served on Government Pleader, High Court of Bombay, Bench at Aurangabad. ..RESPONDENT Mr. N.S. Ghanekar, for appellant. Mr. S.G. Nandedkar, A.P.P. for respondent. CORAM : A.V. NIRGUDE, J. Date : 18th October, 2010 ORAL JUDGMENT : 1. The appellant is challenging the judgment and order passed by the learned Special Judge, Aurangabad, convicting and sentencing him for the offence punishable under Section 7 and Under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act (Henceforth referred as "the Act"). The learned Judge sentenced the appellant to undergo various terms of substantive sentences and fine. The case of the prosecution is as under. 2. The appellant in 2006 was working as Police Prosecutor in the Court of Judicial Magistrate, First Class, Paithan, Dist. Aurangabad. In September-October, 2006, he was trying two 2 counter criminal cases. One Tanaji was complainant in one of these cases and was interested not only in getting his opponents convicted but to secure his own acquittal too. According to Tanaji, the appellant demanded bribe of Rs. 1,000/- for supporting his case as against his opponents. 3. On 4th October, 2006, the demand was made. On the same day, Tanaji lodged his complaint to Anti Corruption Bureau. On 5th October, 2006, a trap was arranged and the appellant caught red handed. 4. The appellant was tried before the learned Special Judge. The prosecution case depended mainly on four prosecution witnesses. The prosecution witness no.1 was complainant -Tanaji and prosecution witness no.3 was the shadow panch-Subhash. The prosecution witness no.2 was the Deputy Secretary, Home Department, who had given sanction for prosecuting the appellant. The prosecution witness no.4 was the Investigation Officer. 5. Out of the prosecution witnesses nos.1 and 3, the prosecution witness no.3 Tanaji remained faithful to the prosecution case, throughout. He said, on 4th October, 2006 at the request of the appellant, he went to see him in office. He said, at that time, the appellant demanded Rs. 2,000/- as bribe and ultimately he said, the appellant agreed to accept Rs. 1,000/- as bribe. He said, the appellant asked him to bring Rs. 1,000/- on next day i.e. on 5th October, 2006. He then said, he lodged his complaint with A.C.B. on the same day and thereafter a trap was arranged on the next day. He said, after a trap formalities were completed, he and the shadow panch -Subhash at about 10.30 am reached the office of the appellant. The appellant was sitting in his office and asked them to wait outside for some time. Thereafter he allowed them to enter his office. The prosecution witness no.1 then stated that he initiated the conversation by stating that he had 3 brought two witnesses with him. To this, appellant said, he did not need any witnesses on that day. Thereafter, he said that the appellant asked him, whether he had brought the money as demanded by him on the previous day. He said, to this he replied in affirmative. He said, the appellant then demanded the money by holding his hands in front of him. He said, thereupon he removed the tainted currency notes from his shirt pocket by his right hand and the appellant accepted the same in his right hand. He thereafter stated that immediately thereafter he told to the appellant that he had brought with him a copy of his statement. He held that statement before the appellant. He said, the appellant accepted the statement in his left hand and then kept the tainted currency notes in that paper and folded the same. He said, thereafter he went outside the office of the appellant. He said, he saw the shadow panch standing there. He said, thereafter he gave signal to the raiding party. He said, the raiding party then came and the Investigation Officer Shri. Rajput asked the shadow panch as to who has demanded and accepted the amount. He said, the shadow panch informed the Investigation Officer that it was the appellant who demanded and accepted the bribe amount. He thereafter narrated as to how the hands of the appellant and others were seen under the ultra violate light and how the appellant's right hand's finger found smeared with anthrasene powder. In the cross examination he admitted, " When I had given that money to accused, at relevant time he had kept those notes in folded palm. When Rajput Saheb came there, at relevant time accused had given that money from the said document." This admissions had some relevance which I would discuss in further part of the judgment. 6. The prosecution witness no.3 is the shadow panch- Subhash. This witness stated that at about 10.30 a.m. on 5th 4 October, 2006, he and complainant reached near the office of the appellant. He said, after waiting outside the office for some time, the appellant allowed them to enter his office. He said, the complainant sat in the chair in front of the appellant while he kept standing near the complainant. He said, the appellant then asked the complainant as to whether he had brought witnesses, on which he gave answer in affirmative and said that he had brought two witnesses. He said, the appellant asked the complainant as to whether he(the panch) is a witness, on which he replied in negative. He said, the appellant then asked him to go outside for some time. He said, he halted outside the office. He then said, the complainant came outside and gave a signal to the raiding party. He again stated that after appellant had asked him to go outside, the complainant told the appellant that he had brought Rs.1000. He said, he then halted in front of door of office of the appellant and saw the complainant giving tainted currency notes as well as the documents to the appellant. He said, thereafter the raiding party was signaled and arrived in the office of the appellant. He also reiterated that he told the Investigation Officer that it was the appellant, who had demanded and received the tainted currency notes. In the cross examination, this witness however turned hostile to the prosecution. He point blank stated that when appellant learnt that he was not one of the witness in the case, he asked him to go outside and he said, he went out and halted on ota. He said, thereafter the complainant came out and gave signal. He said, thereafter he entered the office of the appellant along with raiding party and found the appellant holding papers in folded condition in his hand. This witness thus pleaded ignorance of events that took place inside the room in between the appellant and the complainant while he was standing outside on ota. He also stated that when the complainant came out of the office of the 5 appellant he saw him in giving signal to the raiding party. This version of this witness may not be completely untruthful because as said above, even the complainant admitted in the examination- in-chief, that when he came out of the office of the appellant, the he found the shadow panch standing outside. This admission supports the deposition of the shadow panch. His deposition, thus, is quite believable when he said that before the relevant talk took place between the complainant and the accused, he was asked to go out of the office and was asked to wait outside. Thus, he has no occasion to see what transpired between the appellant and the accused in side the office. 7. Third witness, the Investigation Officer (P.W.4) naturally supported the prosecution case. 8. The question is whether the prosecution has proved the demand and acceptance of the bribe amount by the appellant. The answer is in negative. As said above, the prosecution witness no.3 shadow panch admitted in his cross examination that at the relevant time, he was standing outside the office of the appellant and thereby suggested that there is no occasion to see that the appellant demanding bribe and accepting the same. It is, thus, only the prosecution witness no.1-complainant who is narrating as to how the appellant has demanded the bribe and accepted the same. He has not been corroborated by the panch witness. The question is whether uncorroborated testimony of complainant is sufficient to uphold the conviction of the appellant. The answer is found in the Judgment of the Supreme Court in the case of "Panalal Damodar Rathi V/s State of Maharashtra" { AIR 1979 Supreme Court 1191}. The Supreme Court held, " there could be no doubt that the evidence of the complainant should be corroborated in material particulars. After introduction of Section 165-A of the I.P.C. making the person who offers bribe 6 guilty of abetment of bribery, the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon." 9. The law laid down by the Supreme Court in this judgment is, so for, not changed. The prosecution has thus failed to bring on record corroboration to the complainant's case and should therefore fail in this case. 10. Appeal stands allowed. The judgment of conviction and sentence against the appellant stands set aside. The appellant is acquitted. In view of the disposal of the appeal, nothing survives in Criminal Application No. 1268 of 2010, hence same stands disposed of. (A.V. NIRGUDE) JUDGE gas/cria584.09/ok