1 Apeal-945-03 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPEAL NO. 945 OF 2003 Lalaso Balu Shaikh Aged : 45 years, R/o Nej, Tq. Hatkanangale, Dist. Kolhapur, At present : Room No. 66, Juna-Budhwar Police Line, Kolhapur. ..APPELLANT -VERSUS- The State of Maharashtra. ..RESPONDENT ..... Shri Shekhar A. Ingawale, advocate for the appellant. Shri K.V. Saste, A.P.P. for respondent/State. ..... (CORAM : A.M. THIPSAY , J.) DATE OF RESERVING THE JUDGMENT : 14th November, 2011 DATE OF PRONOUNCING THE JUDGMENT : 9th December, 2011 JUDGMENT : 1. This appeal is directed against the judgment and order dated 23rd July, 2003 passed by the Special Judge, Kolhapur, in Special Case No. 8 of 1999, convicting the appellant, who was the sole accused in the said case, of the offences punishable under Sections 7 and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988. The learned Special Judge sentenced the 2 Apeal-945-03 appellant to suffer R.I. for one year and to pay a fine of Rs. 1,000/- with respect to the offence punishable under Section 7 and to suffer R.I. for two years and to pay a fine of Rs. 2,000/- with respect to the offence punishable under Sections 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. (Hereinafter referred to as "the said Act", or “the P.C. Act”). The learned Special Judge imposed default sentences in the event of failure to pay the amount of fine. The substantive sentences were directed to run concurrently. The appellant (Hereinafter referred to as "the accused" for the sake of convenience), being aggrieved by the said order of conviction and sentences, has approached this Court. 2. The case of the prosecution as revealed from the column no. 16 of the prescribed proforma of the Final Report Form, as was put forth before the trial Court, was as follows :- That, the accused- a Police Constable-was attached to Shahupuri Police Station, Kolhapur at the material time. That, he had been entrusted with the duties of looking after the investigation papers, applications etc. and of assisting the investigation in respect of the various offences as might be 3 Apeal-945-03 registered at the said Police Station. That, a crime vide C.R. No. 139 of 1998 had been registered at the said Police Station against one Bipin Yeshwant Mane and five others. That, in that case, the accused had favoured the said Mane and other accused, by not taking action under the provisions of Section 151 of the Code of Criminal Procedure; and that, due to such `co-operation' extended by the present accused to the said Bipin Mane and others in the said crime report, the present accused on 22.10.1998, demanded a bribe of Rs. 10,000/- for himself from them, and later on, settled for Rs. 5,000/-. The said Bipin Yeshwant Mane reported the matter to the Anti Corruption Bureau, Kolhapur on 23.10.1998, pursuant to which a trap was arranged. That, in the presence of the panch witness Girish Gangatirkar (PW-2), the accused demanded and accepted the bribe of Rs. 5,000/-, on 23.10.1998 at the residence of said Bipin Mane and as per the trap laid, he was caught red handed. On completion of investigation and after obtaining sanction under Section 19 of the said Act, which was duly granted by Raghur Kuppuswami Padmanabhan (PW-5), the accused was prosecuted on the allegation of having committed the offences punishable under Section 7 and Section 13(2) r/w Section 13(1)(d) of the said Act. The trial, as aforesaid, resulted in conviction of the accused. 4 Apeal-945-03 3. I have heard Mr. Shekhar Ingawale, the learned Advocate for the accused. I have also heard Mr. Saste, the learned Additional Public Prosecutor for the State. With the assistance of the learned counsel, I have gone through the entire evidence adduced before the trial Court, the impugned judgment and all other relevant record. 4. The prosecution examined six witnesses in the trial Court. The first witness Bipin Mane is the person, who reported the matter to the Anti Corruption Bureau and got laid a trap for apprehending the accused. The second witness Girish Gangatirkar, an employee in the office of the Joint Charity Commissioner, is a panch witness in respect of reporting of matter by Bipin Mane to the Anti Corruption Bureau, laying of trap and the acceptance of the bribe by the accused. Third witness Hemchandra Kshirsagar is a Police Officer, who, at the material time, was attached to Shahapuri Police Station. He is the one, who was investigating into C.R. No.139/1998, which was in respect of the offence punishable under Sections 147, 148, 149, 363, 348 and 469 of the Indian Penal Code as also the offences punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, that had been registered against said Bipin Mane and five others. It is with this witness, that 5 Apeal-945-03 the accused was working as orderly. The fourth witness Liyaqat Mujawar is a friend of the said Bipin Mane and one of the accused in the said C.R. No. 139/1998. The fifth witness Raghur K. Padmanabhan, is the Sanctioning Authority, who had granted sanction as contemplated under Section 19 of the said Act. The sixth witness Sudhir Chougule, was working as a Deputy Superintendent of Police, Anti Corruption Bureau, Kolhapur at the material time and is the Investigating Officer in the matter. 5. It is contended by Mr. Ingawale, the learned Advocate for the appellant that the appellant had been falsely implicated by said Bipin Mane. According to him, the evidence adduced before the trial Court was not at all satisfactory. He submitted that there were various inconsistencies and contradictions in the evidence of said Bipin Mane (PW-1), Girish Gangatirkar-panch witness (PW-2), Liyaqat Mujawar (PW-4), Sudhir Chougule-Investigating Officer (PW-6) on crucial aspects such as demand and acceptance of the bribe. He submitted that said Bipin Mane (PW-1), as well as said Liyaqat Mujawar (PW-4), were highly influential persons and that, by reason of being involved in the said C.R. No. 139/1998, their ego was hurt; and that, as the accused was associated with the investigation of the said case, they bore a grudge against him and falsely implicated him for ulterior motives. He submitted, that the 6 Apeal-945-03 case of the accused was clearly put forth by him from the very beginning, which was to the effect that he had gone to the house of said Bipin Mane in connection with the investigation of the said C.R. No. 139/1998 and that, this case of the accused was supported by the evidence of the prosecution itself. He submitted that in any case, the accused was entitled to get the benefit of reasonable doubt, which arises on considering the evidence adduced by the prosecution and to be acquitted. 6. Mr. Saste, the learned Additional Public Prosecutor, on the other hand, contended that the witnesses had no motive to falsely implicate the accused and that, their evidence is reliable and acceptable. He submitted that the appreciation of the evidence of the prosecution witnesses as done by the learned Special Judge does not suffer from any infirmities and that, the conclusion arrived at by the learned Special Judge is proper and legal. He, therefore, submitted that the appeal deserves to be dismissed. 7. The evidence of Bipin Mane (PW-1) shows that he, Liyaqat Mujwar (PW-4), one Mahesh Chavan, one Sangram Jadhav, one Nasirkhan Pathan and one Devendra Patil are close friends and meet every day. That, some person used to make telephone calls to the wife and sister of Mahesh Chavan and used 7 Apeal-945-03 to harass them by using filthy language. That, Bipin Mane and his friends decided to trace that person and ultimately found that he was one Amar Kamble, working as a `Canteen Boy' in the Income Tax office. The version of Mane is that when they took said Amar Kamble to Police Station, he lodged a report with the Police against Mane and his friends, on the basis of which, a crime (i.e. C.R. No. 139/2011) was registered against them. His evidence also shows that the investigation of that case was being done by P.S.I.-Kshirsagar (PW-3) and that, the accused was assistant of Mr. Kshirsagar. 8. Mane states that in the course of investigation, the accused had come to his house on 2-3 occasions and that, on one occasion, he told Mane that he had helped Mane and his friends in the investigation of the said C.R. According to Mane, the accused demanded Rs. 10,000/- from him and also gave threats that if the said amount would not be paid, he would file proceedings under Section 151 of the Code of Criminal Procedure against Mane and others. Mane states that he did not pay any heed to such demand and threats. Though, such demands and threats were again made on 2-3 occasions, he did not pay any heed thereto. 9. That, on 22.10.1998 at about 11.30 a.m., Mane had 8 Apeal-945-03 gone to the house of Liyaqat Mujawar (PW-4) to invite him for breakfast. That, that time accused made a telephone call on the telephone at the residence of said Liyaqat but as Liyaqat was inside, Mane answered the call. The accused, at that time, on telephone, told Mane to bring Rs. 10,000/- on the next day in the evening and that, he would tell later to Mane, the place where the money should be brought. Since Mane told him that he could not afford the amount of Rs. 10,000/-, the matter was got settled at Rs. 5,000/-. Mane then asked him as to when he should hand over the money, then the accused said that he would come to Mane's house and take the money. Mane informed about this to Liyaqat (PW-4). 10. That, on 23.10.1998, Mane approached the Anti Corruption Bureau office and told about his grievance. His complaint was recorded (Exhibit-16). Mane has given the details of the laying of the trap in his evidence. According to him, he had gone to the office of the Anti Corruption Bureau at 11.30 a.m. on 23.10.1998 and after making a complaint to the Officer, he was asked to come to the Anti Corruption Bureau again at 4 p.m. with bribe money. That, accordingly he went there with an amount of Rs. 5,000/- consisting of 10 currency notes of Rs. 500/- denomination. That, when he reached there, two panchas were 9 Apeal-945-03 already present to whom he was introduced and that, they were Girish Kamlakar Gangatirkar (PW-2) and one Maruti Tukaram Suryawanshi. Mane explained his grievance against accused to the panchas. The panchas were asked to go through the contents of the complaint of Mane, that had been recorded in morning. 11. Serial number of the currency notes were noted in the panchanama, which was being drawn simultaneously. That, the Officer from the Anti Corruption Bureau explained the use and the properties of anthracene powder and thereafter applied the anthracene powder to the currency notes that had been brought by Mane. The technical details of the trap need not be mentioned here, but what needs to be mentioned is that instructions were given to Mane to sit in the drawing room of his house with panch Girish Gangatirkar (PW-2) and that, upon enquiry, if any, by the accused, he should be told that Gangatirkar was a relative of Mane. 12. Mane was specifically instructed to have talks with the accused regarding his work, that he should not be entangled with the criminal case, and that, if the accused would demand the money, then-and then only-it should be given to him. That, if and after the bribe would be accepted by the accused, Mane was to 10 Apeal-945-03 give a signal to the members of the raiding party by uttering the words `Choti Chaha Kar'. 13. Regarding the actual trap, according to Mane, he went to his house at about 5.30 p.m. with panch Gangatirkar (PW-2) and that, after 5 to 10 minutes thereafter the other panch and members of the raiding party also reached there. About 5 to 10 minutes thereafter, the accused came there and made enquires as to whether `Bipin’ was present. Mane then asked him whether he would like to take `breakfast', but the accused refused. According to Mane, he had a talk with the accused that accused should not give any trouble to Mane and his other friends, and that, no case should be filed against them. That, the accused then demanded the money by making sign by crossing his thumb and first finger. That, thereafter, Mane took out the currency notes from his shirt pocket by his right hand and handed over the same to the accused, who accepted them by his right hand. That the accused then kept those currency notes in the left side chest pocket of his shirt. As per the instructions given to him, Mane then gave a signal to the raiding party by saying `Choti Chaha Kar'. That, immediately the members of the raiding party, who had been sitting on the first floor came to drawing hall and on Mane's pointing out towards the accused, the accused was caught. Mane was then asked to wait 11 Apeal-945-03 outside and was again called inside after some time. Darkness was created and the person of Mane was examined in the light of ultraviolet lamp. Bluish glitter on the right hand finger and left side pocket of shirt of Mane was noticed. 14. Mane was extensively cross examined. It is revealed in the cross examination, that he had studied upto B.E. (Mechanical) and was, at the material time, a Lecturer in a college at Kagal. It is also revealed, that the college is named after Bipin Mane's great grand father. It is also revealed, that father of Bipin Mane-Shri Y.D. Mane-was the President of Kagal Municipality and that, he belonged to the political group of Shri Mandlik, who was the then a sitting M.P. from Kolhapur. It is also revealed that the State Minister Mr. Mushrif also belonged to the political group of Mane's father. It was suggested to him that about 65 ladies had filed a complaint against him and his friends, but he expressed ignorance about any such complaint. 15. There is some cross examination of this witness on the point of the facts relating to the said C.R. No. 139/1998, the object of which seems to be to point out that Mane and his friends are not of good character. It does not appear necessary to go into that aspect. It is, however, a fact that Mane and his friends had 12 Apeal-945-03 been arrested in the said C.R. of Shahupuri Police Station and that, the complaint against Mane and others made by said Amar Kamble was to the effect that he was beaten up and that, his hair and one side moustache was partially cut. It is also revealed that the news of the case filed against Mane and others was flashed in the local news paper. 16. Mr. Ingawale, the learned Advocate for the appellant contended that the character of the complainant appears to be not good in view of the complaint made by about 65 ladies against him and his friends, and that, therefore, the evidence of Mane needs to be examined with caution. Since Mane has denied that any such complaint was made against him and others by ladies, I am not inclined to give much importance to this aspect. The registration of a crime against Mane, Liyaqat (PW-4) and their other friends, is however relevant in the context of the case against the accused, though not relevant as showing bad character of the complainant. The relevancy of registration and pendency of the crime against Mane lies in the fact that the accused was associated with the investigating Officer in that case. In the light of the peculiar facts of this case and the specific contention taken by the accused, it would be necessary to examine the evidence carefully from the point of view of ascertaining what could be the purpose of visit of the 13 Apeal-945-03 accused to the house of Mane. 17. Shri Shekhar Ingawale, the learned Advocate for the accused has pointed out certain discrepancies in the evidence of the witnesses with respect to the details, such as, demand of bribe by the accused, time, place and nature of such demand, the details regarding the reporting of the said matter to the A.C.B. and the actual trap, etc. According to him, these infirmities in the prosecution evidence create a doubt about the truth of the prosecution case. 18. In my opinion, such discrepancies in the evidence and the other infirmities therein, if any, need to be examined only in the backdrop of the basic case of the prosecution against the accused. It is only by keeping the case of the prosecution as such in mind, that effect of the infirmities in the prosecution evidence can be properly interpreted and appreciated. 19. One of the ingredients of the offence punishable under Section 7 of the P.C. Act is that the gratification must have been received by the accused as `a motive or reward', for- "(a) doing or forbearing to do an official act; or (b) showing or forbearing to show favour or disfavour to someone in the exercise of his official 14 Apeal-945-03 functions; or (c) rendering, or attempting to render, any service or disservice to someone, with the Central or any State Government or Parliament or the Legislature of any State, or with any public servant." 20. Thus, there must be an understanding between the accused and the person aggrieved, that the bribe was being given in consideration of some specific official act or acts, or conduct. Now, in the instant case, such official act or omission in respect of which the bribe was being demanded, was the act of not dealing with Mane and the others under the provisions of Section 151 of the Code of Criminal Procedure and this is the case of the prosecution itself. In other words, the bribe was being demanded by the accused as a consideration for not taking action against Mane and his friends under the provisions of Section 151 of the Code of Criminal Procedure. It is in this context, it is contended by the learned counsel for the accused that the accused being a mere Head constable had no power or authority either to take any such action or to prevent such action from being taken and that, therefore, there would be no question of the accused demanding or receiving any amount as a motive or reward in consideration of any such official act or omission. Undoubtedly, incapacity of the public servant to show any favour or render any service to Mane and 15 Apeal-945-03 others would not take the matter out of the purview of the penal provisions in question. Explanation (d) to Section 7 of the P.C. Act itself lays down that receipt of gratification by a public servant as a motive or reward for doing what he is not in a position to do, is also covered within the penal provision laid down in Section 7. Thus, the contention that the accused could not have initiated or dropped any action under Section 151 of the Code against Mane and others and that, if such action was intended to be taken against them by the superiors of the accused, the accused could in no way prevent it, is not relevant from exonerating the accused of the alleged offences. Nevertheless, such incapacity of the accused is an important factor bearing on the question as to what was the understanding with which the money was to be given and this would be relevant in deciding whether the money was received or being received, as a motive or reward as contemplated under Section 7 of the P.C. Act. 21. The contention that Mane and his friends are highly influential persons and that, the accused, therefore, would not have dared to demand any money from them as a bribe, which is closely connected with the previous contention may now be examined. Indeed, factually, this contention appears to be correct. In the cross examination of Mane, he admitted that his father Y.D. Mane 16 Apeal-945-03 was a known politician and that, he was the President of Kagal Municipality. Mane also admitted that his father was from the political group of Shri Mandlik, the then sitting M.P. from Kolhapur. He also admitted that Shri Hasan Mushrif, the then Minister in the State Government, was also from the political group of Mane's father. Even Liyaqat Mujawar (PW-4) appears to be quite influential, in as much as, admittedly the said Minister Hasan Mushrif is his maternal uncle. What is further relevant is that, admittedly. another maternal uncle of Liyaqat Mujawar- Shri Shamsuddin- was the Superintendent of Police of Kolhapur District at the material time. Thus, there can be no hesitation in concluding that Mane and Liyaqat Mujawar were certainly having sufficient influence so as to be able to, at least, approach and convince the superior police officers in case of any illegal or unlawful demand made by a police head constable or in respect of threats given by him. 22. There is great substance in the contention advanced by the learned counsel for the accused that under the circumstances, it was quite unlikely that a Police Head Constable like the accused would expect to get any bribe from Mane and others under the threat of otherwise taking an action under Section 151 of the Code against them. Unless the accused would feel that 17 Apeal-945-03 he could legitimately create such a threat in the mind of Mane and others, he would not go ahead and negotiate with them for the bribe by stating that if the same would be given, he would not take the said action. 23. According to the accused, he had gone to Mane’s house, to collect `Bonafide Certificates' in connection with C.R. No. 139 of 1998 the investigation into which was being done by P.S.I.- Kshirsagar (PW-3). It is not in dispute that the said crime was, inter alia, also in respect of offences punishable under the Atrocities Act, and therefore, the caste of the accused persons in that case, as also the caste of the aggrieved person, were the crucial aspects on which evidence needed to be collected in the course of investigation. Apparently, `Bonafide certificates' issued by the School Authorities contain the caste, and therefore, obtaining of such bonafide certificates would be a step in investigation for ascertaining the caste. It is for that purpose, that bonafide certificates were required by the P.S.I.-Kishirsagar (PW-3), who was investigating the said case. The evidence shows that, the certificates in respect of Mane himself, Mahesh Chavan and Devendra Patil had been collected but the certificates in respect of the other accused in the said case were not collected. The case of the accused is that he had agreed to visit the house of 18 Apeal-945-03 Mane for collecting the remaining certificates and that, Mane took disadvantage of this and lodged a false report against the accused. According to the accused, Mane tried to insert the amount in the pocket of the accused, when the persons from the raiding party caught hold of the accused. 24 Mane, in his evidence (in examination-in-chief) stated that he was instructed by A.C.B. Officer that when he would meet the accused in his house, he should open talk with the accused regarding his work (i.e.,-regarding 151 proceedings) and that, he should not be entangled with any criminal case; that if the accused would demand money, then and then only, he should give it to the accused. This is supported by the contents of the pre-trap panchanama Exhibit-21, which reflects that Mane was instructed to open the topic regarding the case filed against him and his friends and to then request the accused not to