crapl375.99 -1- On 24.02.2011, the Office produced this matter in chamber pointing out that in the judgment dated 4.2.2011 delivered in Criminal Appeal No. 375 of 1999, there appears typographical errors while typing the amount on page No.2 as "Rs.3000/-" instead of "Rs.300/-" and also the words "altra-violate" at page 5 instead of words "ultra violet" and also the word “violate" instead of "violet” on page nos.3, 11, 39, 40 and 41. The corrected copy of the judgment reads as under:- "IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 375 OF 1999 Dr. Smt. Usha w/o Dhondiram Sarwade Age 35 years, Occ. Medical Officer (Under suspension) R/o. Shahaganj, Aurangabad ...Appellant Versus The State of Maharashtra Copy to be served on the Public Prosecutor, High Court Bench at Aurangabad ...Respondent ..... Mr. S.P. Brahme, advocate for the appellant Mrs. Yogita M. Kshirsagar (Thorat), A.P.P. for respondent ..... CORAM: S. S. SHINDE, J. DATE OF RESERVATION OF JUDGMENT : 20.01..2011 DATE OF PRONOUNCEMENT OF JUDGMENT : 04.02.2011 JUDGMENT:- 1 This appeal is filed challenging the judgment and order passed by the learned Special Judge (A.C.). Aurangabad in Special Case No. 20 of 1997, thereby convicting the appellant for the offence punishable under Section 13(1) (d) r.w. 13(2) of the Prevention of Corruption Act crapl375.99 -2- and sentenced her to suffer S.I. for one year and pay fine of Rs.300/-. The appellant is also convicted for the offence punishable under Section 7 of the Prevention of Corruption Act and sentenced her to suffer S.I. for six months and to pay fine of Rs.200/- in default S.I. for two months. The trial court has ordered that the substantive sentence shall run concurrently. 2 The prosecution case, in nutshell, is as under:- The appellant accused Dr. Smt. Usha Sarwade on 6.2.1996 was working as “Casualty Medical Officer” in Government Medical College and Hospital Aurangabad and so she was a public servant. The complainant Deelip Shelar, r/o Witkheda alongwith his parents on 3.2.1996 was assaulted by one Parbhat Dapke and his children. After assault, he lodged a complaint in Deogaon Rangari police station. The police referred him and his father to the Medical Officer for treatment in Government College and Hospital Aurangabad and for injury certificate. He, as well as his father were admitted in the said Hospital commonly known as “Ghati Hospital”, Aurangabad. The accused being C.M.O. was dealing with the case of the complainant and his father. The complainant had requested her to keep his father for two days more in Ghati Hospital Aurangabad but his request has not considered by the appellant-accused and his father was discharged crapl375.99 -3- from the hospital. It is the contention of the prosecution that when the complainant Deelip Shelar had been to the accused for his injury certificate as well as the injury certificate of his father, the accused demanded Rs.400/- from him by way of bribe. It is the allegation of the prosecution that the accused refused to issue injury certificate unless the amount of bribe was paid by the complainant Deelip Shelar. She was also told him that on 6.2.1996 up to 8.00 p.m. she would be at her chamber for her official work and he may collect the injury certificate from her in the evening of the same day. The complainant Deelip Shelar was not inclined to give bribe to the accused. Therefore, he came to the office of A.C.B. Aurangabad and met to Dy. Superintendent of Police Shri Kulkarni. His complaint was reduced into writing in the office of A.C.B. Aurangabad. The Investigating Officer Shri. Kulkarni called two panchas namely Shri Munge and Shir Lad. They gave consent to act as panchas in the trap. They also read the complaint of Shri Deelip Shelar. Thereafter, demonstration of use of anthracene powder and Ultra violet lamp was shown to the complainant and both panchas. Then as per the instructions of Dy. S.P. Shri Kulkarni the complainant Deelip Shelar produced four currency notes of Rs.100/- each. The anthracene crapl375.99 -4- powder was applied to the said notes and the same were kept in the left pocket of shirt of the complainant. Shri Kulkarni instructed to complainant not to touch the said notes unless the money was demanded by the accused. The panch Shri Munge was also instructed to remain with the complainant at the time of trap and to listen the conversation between the complainant and the accused. Then the pre- trap panchnama was prepared in the office of A.C.B. Aurangabad in which the number of marked currency notes were mentioned and the bottle of anthracene powder was sealed and kept in cupboard. Shri Kulkarni gave directions to another panch Shri Lad and his other staff regarding movements at the time of trap. In this way the trap was arranged against the accused. Shri Kulkarni, both panchas and his staff at about 7.00 p.m. came to Panchakki by police jeep. From there, the complainant Shri Deelip Shelar and panch witness Shri Munge proceeded to Ghati, Aurangabad. Thereafter, they met the accused at her chamber in C.M.O. Room in Ghati Hospital Aurangabad. She asked the complainant whether the money was brought and as the complainant told her that money was brought, she asked him to give the said money to her peon. In the meantime, she gave discharge card to her peon for bringing its xerox copy. As peon was not found at his place, the complainant and panch Shri Munge again came to the room of the crapl375.99 -5- accused. The accused told the complainant to keep the said amount in the drawer of her table. Accordingly, tainted currency notes were put in the drawer of the table of the accused by the complainant. Then he came out of the room and gave signal to the raiding party by waiving his scarf. Shri Kulkarni ad his raiding party rushed on the spot. Shri Kulkarni asked the accused, where the amount was kept and she pointed out at the drawer of her table. The panch Shri Lad removed the said notes from the drawer of the table of the accused. The said notes were seen in the light of ultra-violet lamp and blue shining of the anthracene powder was noticed on the said notes. The number of the said notes were tallied with the numbers mentioned in the pre-trap panchnama. Thereafter, said notes were seized for the purpose of investigation. The form on which the notes were kept in the drawer of the table of accused had also tainted with anthracene powder and so it was also seized. Then the true copies of the injury certificate of M.L.C. 1133 discharge card with xerox copies of M.L.C. and the original certificate of M.L.C. were also seized. The detailed panchnama was also made on the spot and its copy was given to the accused. The signature of the accused was obtained on the original panchnama by way of acknowledgment. Shri Kulkarni thereafter came to city Chowk police station, Aurangabad and lodged the complaint against the accused. On the crapl375.99 -6- basis of his complaint, the offence crime No. II-4 of 1996 was registered under Sections 7, 13(1) (d) r.w. 13(2) of the Prevention of Corruption Act. 3 During the course of investigation the prosecution has collected certain material. Mr. Kulkarni has drawn panchnama in the office of A.C.B. He also searched the house of the accused and prepared search panchnama. Shri Kulkarni recorded the statements of various witnesses. On 9.2.1996, he arrested the accused. He also collected the copy of appointment order of the accused. Similarly, the copy of transfer and posting on the accused as C.M.O. On 7.3.1996 he submitted the report to the Government through his superiors Officer for launching the prosecution against the accused. 4 The learned Special Judge after framing necessary points and recording evidence and after hearing the parties convicted the appellant for the offence punishable under Section 13(1) (d) r.w. 13(2) of the Prevention of Corruption Act and sentenced to suffer S.I. for one year and pay fine of Rs.3000/-. The appellant is also convicted for the offence punishable under Section 7 of the Prevention of Corruption Act and sentenced her to suffer S.I. for six months and to pay fine of Rs. 200/- in default S.I. for two months. Hence, the judgment of the learned Special Judge is under challenge in this appeal. crapl375.99 -7- 5 Learned counsel for the appellant submitted that the prosecution has failed to prove the ingredients of offence i.e. demand, acceptance and alleged recovery of the amount. The prosecution did not adduce the reliable evidence. In support of his contention learned counsel for the appellant relied on the reported judgment of this Court in the case of Panalal Damodar Rathi Vs. State of Maharashtra, reported in AIR 1979 SC 1191 and more particularly para 6 and 7 of the said judgment. Relying on the said judgment, counsel would submit that in the instant case, like in the said case, the demand has not been proved by the prosecution. It is further submitted that the prosecution has examined in all five witnesses. Out of them, only P.W.1 complainant, P.W.2 Mr. Munge and P.W.7 Mr. Kulkarni are relevant. The other two witnesses i.e. P.W.3 and P.W.6 did not support the prosecution case. According to counsel for the appellant, P.W.1 and P.W.7 are interested witnesses and P.W.2 is only independent witness, who was panch. It is further submitted that for demand and acceptance, there was no corroboration to the evidence of P.W.1. So called corroboration by P.W.2 is untrustworthy and thus the prosecution case appears to be doubtful. In support of his contention, counsel placed reliance on the reported judgment of the Supreme Court in the case of State of Maharashtra Vs. Dnyaneshwar Laxmanrao Wankhede, reported in 2010 (1) Bom. C. R. (Cri.) 247 crapl375.99 -8- and more particularly para 16 to 20 of the said judgment. Learned counsel further submitted that in absence of demand, the prosecution under Section 20 is not attracted. The prosecution failed to prove the evidentiary facts. In support of his contention, counsel placed reliance on the reported judgment of the Supreme court in the case of V. Venkata Subbarao Vs. State, reported in AIR 2007 SC 489 and more particularly para 12 of the said judgment. He further submitted in the said judgment the Hon'ble Supreme Court has held that the unless evidentiary facts are led by the prosecution, the prosecution under section 20 is not attracted. It is further submitted that the demand made on 5.2.1996 is not proved by the prosecution. P.W.1 did not disclose the said demand in his examination in chief but in cross examination he mentioned the same. Exh.35 is the duty arrangement which falsifies the demand. Counsel further submitted that it has come on record through the prosecution witnesses that the appellant was not entrusted with any duty on 5.2.1996. It is further submitted that evidence of P.W.1 and P.W.2 do not inspire confidence and is doubtful. P.W.1 had grudge against the appellant because she did not accede to his unlawful demand. According to counsel for the appellant, there are discrepancies in the evidence of P.W.1, P.W.2 and P.W.7. Counsel further submitted crapl375.99 -9- that P.W.1 in his deposition stated that he himself and his father was admitted in the hospital. However, in complaint at Exh.13, he has stated that only father was admitted. Counsel submitted that the evidence of P.W.1 before the Court that he was also admitted in the hospital is falsified because the prosecution has only brought on record the discharge card of the father. In case the complainant was admitted in the hospital, his discharge card should have been placed on record. It is further submitted that P.W.1 had admitted in cross examination that he was in hospital on 6.2.1996 at about 3.00 p.m. Learned counsel invited my attention to the document at Exh.52 which shows that only the father of the complainant was admitted in the hospital. However, the complainant in his complaint at Exh.13 is silent about at what time he was in hospital on 6.2.1996. Learned counsel further submitted that P.W.2 in his cross examination admitted that he received requisition from ACB office at 12.30 p.m. However, P.W.7 Investigating officer admitted that P.W.1 came to ACB office at 2.30 p.m. Therefore, counsel for the appellant submitted that there is vital contradictions and it makes evidence of prosecution witnesses doubtful. Counsel further submitted that if the evidence of P.W.1, P.W. 2 and P.W.3 is read about the alleged demand, his presence in the ACB office and requisition received by P.W.2 from ACB office would lead to only conclusion that the prosecution case is afterthought and concocted. crapl375.99 -10- It is further submitted that P.W.1 in his statement stated that a lady doctor started preparing certificate and gave him the same and took his signature. However, P.W.2 is silent on that count. Therefore, counsel for the appellant would submit that even evidence of P.W.1 and P.W.2 at the time of actual alleged trap is not consistent with the evidence of each other. It is further submitted that P.W.1 in his evidence before the Court has stated that on 5.2.1996 appellant- accused demanded money when he went to hospital. He did not have Rs.152/- to pay. However, he has not mentioned the same fact in his complaint. P.W.2 has not mentioned this fact in his statement. It is submitted by the counsel for the appellant that there is improvisation by P.W.1 about demand on 5.2.1996 which is not corroborated and proved, as she was not on duty on 5.2.1996. It is further submitted that P.W.2 Munge has not given details of distance from where he heard the conversation between the accused and the P.W.1 nor he has stated that he was inside the cabin. It is submitted that the prosecution story is not supported by P.W.2 in material particulars on demand and acceptance. It is further submitted that P.W.2 in his deposition has stated that accused removed discharge card and delivered it to peon and asked him to bring its xerox copy, however, P.W.1 has not mentioned this fact in his statement. Therefore, evidence of P.W.2 is inconsistent with the deposition of P.W.1. It is crapl375.99 -11- further submitted that preparation of certificate by accused and giving the same to P.W.1 is not mentioned by P.W.2 in his evidence, which is stated by P.W.1. Therefore, there is no corroboration to the evidence of P.W.1 that certificate was already given and the said fact is consciously missing in the evidence of P.W.2. Therefore, counsel would submit that there are material discrepancies in the evidence of P.W.1 and P.W.2 which makes prosecution story untrustworthy. It is further submitted that P.W.2 has stated in his evidence that the office employee from ACB office came to his office at 12.30 p.m. however, P.W. 1 in his deposition, more particularly, in cross examination stated that they went to the hospital i.e. to the accused at 3.00 p.m. and P.W.7 stated that P.W.1 came to his office between 2.00 to 2.30 p.m.. Therefore their evidence is full of contradiction and there are material discrepancies in the evidence of P.W.1, P.W.2 and P.W.7. It is further submitted that evidence of Investigating Officer P.W.7 reveals many lapses during the course of investigation. There is no explanation as to why Manorama and Anil, were not examined. There is no explanation as to why Mr. Lad and Mr. Asaram Shelar, uncle of P.W.1 are not examined though they were available at the material time. This also contradicts the evidence of P.W.2. Though it is stated by P.W.7 that the bottle of anthracene powder and ultra violet lamp were kept in his cupboard in the office of A.C.B. however, crapl375.99 -12- no explanation is offered as to how the said articles were taken to the hospital. The pre-trap panchnama is at Exh.23 as well as the post trap panchnama. However, there is no separate panchnama prepared by the prosecution. It is further submitted that P.W.7 lodged F.I.R. at Exh. 46 and also he has conducted the investigation and therefore investigation was biased and untrustworthy. In support of his contention, counsel placed reliance on the reported judgment of the Hon’ble Supreme Court in the case of Megha Singh Vs. State of Haryana, reported in AIR 1995 SC 2339. Learned counsel further submitted that the prosecution failed to prove that already injury certificate was issued as per the deposition of P.W.1. panchnama at Exh.23 discloses that certificate was recovered from PW.1, thus there was no reason to demand bribe. The prosecution case is doubtful and the evidence of P.W.1, P.W.2 and P.W.7 is unreliable. It is further submitted that the sanction under Section 197 of Cr.P.C. was not proved. P.W.8 was not empowered to accord sanction. He admits that no document was placed on record in respect of grant of sanction. He stated that he was under Secretary of the said department and the Secretary is empowered to grant sanction. Therefore, relying on judgment of this Court in the case of State Inspector of Police Vs. Surya Sankaram Karri, reported in (2006) 7 SCC 172, counsel for the appellant would submit that benefit crapl375.99 -13- of doubt is required to be given to the appellant. It is further submitted that defence of the plantation is probable. The table of the accused was accessible. It was in emergency ward and the accused was required to attend the patients. Accused was not in the cabin when P.W.1 and P.W.2 went to meet her first. P.W.2 stated so. Another occasion of plantation was when P.W.1 alleged to have gone to signal raiding squad. Learned counsel further submitted that mere recovery is not sufficient. The recovery of amount is from the drawer of the table and not from the person of the appellant. Learned counsel further placed reliance on the following judgments:- i) Smt. Meeta Vs. State, reported in 2000 Bom.C.R. (Cri.) 865 ii) (2010) 4 SCC 450 Banarasi Vs. State iii) 2002 (Cri. Supp.) Bom.C.R. 601 Chintaman Vs. state iv) 2006 (Supp.) Bom.C.R. 1021 Nilkantha Vs. State It is further submitted that the defence of the appellant taken under Section 313 of Cr.P.C. while answering the questions No.100 and question No.108 is plausible defence. There was access to the cabin of the accused. Evidence of P.W. 4 that the injury certificate does not tally with entries in M.L.C. register is insignificant. The allegations against the appellant were not to the effect of corrections of crapl375.99 -14- certificate. Therefore, counsel for the appellant relying on the grounds taken in the appeal and also pleading in the appeal would submit that the appellant be acquitted from all charges by allowing this appeal by setting aside the impugned judgment and order passed by the Special Court. 6 On the other hand, learned A.P.P. appearing for the respondent- State submitted that the prosecution has proved beyond doubt the demand, acceptance and recovery of the bribe amount. Learned A.P.P. submitted that evidence of P.W.1, P.W.2 and P.W.7 lead to conclusion that there was demand of amount of Rs.400/- by the appellant and the said was accepted and accordingly by following proper procedure, trap was arranged and amount has been recovered from drawer of the table of the accused. Learned A.P.P. invited my attention to the evidence of complainant P.W.1, P.W.2 and P.W.7 and also other evidence in the nature of panchnama etc. and submitted that the prosecution has convincingly proved its case beyond reasonable doubt. Therefore, the Special Court has rightly convicted the appellant-accused and no interference is warranted in the impugned judgment and order, which is passed after appreciation of clinching evidence brought on record by the prosecution. 7 With the assistance of the learned counsel appearing for the crapl375.99 -15- appellant and the learned A.P.P. appearing for the respondent-State, I have carefully perused the grounds taken in the appeal memo, annexures thereto as also the judgments cited by the counsel for the appellant and also the other evidence brought on record and which is received from the trial court. 8 P.W.1 Deelip Bhaulal Shelar is the complaint, who had given the complaint on 6.2.1996. The said complaint is at Exh.13. In his complaint he has stated that on 3.2.1996 he was beaten by one Parbhat Bhaurao Dapke, his wife, children and daughter-in-law. Even his father and mother were also beaten up. He further stated that the said quarrel took place on account of some land dispute. The said Mr. Bhaulal and his other family members assaulted the complainant and also his father by means of axe, sticks etc. He has further stated in his complaint that the offence was registered at Deogaon Rangari police station on the complaint of his father Bhaulal Gangaram Shelar. Accordingly his mother was sent to Deogaon hospital for medical treatment. His father and himself had been to Ghati Hospital, Aurangabad and to that effect written letter was given by the concerned police Officer. He has specifically stated that he was given only pills and his father was admitted in ward No.11 in Ghati Hospital, Aurangabad. crapl375.99 -16- 9 He has stated that on 5.2.1996 his father was discharged from ward No.11. On 6.2.1996, in the afternoon at about 2.30 p.m. he himself and his uncle Asaram Gangaram Shelar, resident of Vitkheda had been to Ghati Hospital in casualty ward for obtaining injury certificate of his father. They met the appellant herein, who was in ward No.11 as Medical Officer at the relevant time and requested her to issue injury certificate, since the appellant has examined his father on 3.2.1996. However, the lady doctor i.e. the appellant herein demanded Rs.400/- for issuing such certificate. He replied to the lady doctor that he does not have money and he would pay Rs.150/- and requested her to issue injury certificate. However, the appellant- accused replied that the work cannot be done as she has to go even to the court for giving evidence. The complainant left the Ghati hospital by telling the appellant that he will make arrangement for Rs.400/-. At that time, the appellant replied that her duty is up to 8.00 p.m. She further asked the appellant to pay Rs.400/- and then she will issue injury certificate. The complainant further stated in the complaint that since the amount of Rs.400/- was demanded by the accused-appellant to issue injury certificate in respect of his father Bhaulal Gangaram Shelar, however, since he was not inclined to pay Rs.400 to the appellant, he has come to lodge the said complaint. He has stated in his complaint that he is not acquainted with said Dr. Sarwade earlier, he had not entered in any financial transaction with the appellant- crapl375.99 -17- accused or he has no any enmity with the appellant. Accordingly he lodged the complaint in the office of Deputy Superintendent of Police- II, ACB Aurangabad. 10 P.W.1 complainant, in his deposition before the court has narrated the incident dated 3.2.1996, took place in the village. He further stated that his father and he himself were sent to Ghati hospital by the concerned police Officer. In his examination in chief, he stated that he met Dr. Usha Sarwade. He and his father were admitted in ward No.11. They were in the hospital for two days and thereafter they were discharged. They had requested doctor that his father may be kept in the hospital for another two days but the doctor did not take cognizance of his request and discharged them. He asked for certificate from the doctor. The doctor told him to give amount of Rs. 400/- and unless the said amount is paid, no certificate can be issued as she has to attend the court. 11 In his statement he further stated the time of visit to the office of P.I. Kulkarni i.e. office of ACB and the procedure followed in preparing for trap. In detail he has stated about what has happened