- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO.557 OF 1996 APPEAL NO.557 OF 1996 APPEAL NO.557 OF 1996 The State of Maharashtra ...Appellant vs. Mahadev Shivappa Patil ...Respondent Mr.J.P.Yagnik A.P.P. for State Mr.N.M.Unnikrishnan for the respondent. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 23,2009 : MARCH 23,2009 : MARCH 23,2009 JUDGMENT: JUDGMENT: JUDGMENT: 1. I have heard the submissions of the learned counsel for the parties. The submissions were heard on 18th March 2009. The respondent was present in the court after bailable warrant was served to him. 2. This appeal is directed against the impugned Judgment and Order dated 29th February 1996 by which the respondent has been acquitted of the offence under section 7, 13(2) of the Prevention of Corruption Act,1988. 3. The case of the prosecution is that P.W.1 complainant was born in the State of Tamil Nadu and he came to Bombay in the year 1984. He is the complainant who made an allegation of demand of illegal gratification by the respondent. It will be necessary to refer to the evidence of P.W.1 K.Murugeaan Karapayya Amalar. He was serving as a canteen boy in the - 2 - ships of Shipping Corporation of India. He was given breaks from time to time in his service. Initially, he used to be appointed for three months and used to be given a break of two months. Thereafter, he used to be appointed for six months was given the breaks of 2 1/2 months. The relevant portion of his evidence reads thus : ".... On that day I learnt that Mariam and Jevraj the resident of Sahar Technical Area had assaulted Narayan Reddy. On 23-12-89 as usual after visiting my office I had gone to Dharavi and returned home at about 7.00 p.m. Narayan Reddy was my adjoining neighbour and he was admitted in the Cooper hospital and I was thinking in my mind to go to the hospital to see him. Tow policemen who claimed to be from Gunda-Staff of Sahar Police station came to my house and they took me to Sahar Police station. At about midnight I was brought by the police to Dharavi. While taking from my home the police told me that I myself, Mani and Yelisa had assaulted Jevraj. After i was taken to Dharavi I was bet up by the police and they asked me to give the address of Marium. On the same night I was taken to Ghatkopar from Dharavi. I was brought back to Sahar Police station at about 3.30/4 a.m. On 24-12-89 I was taken to Bandra Court. I was remanded to police custody by the court and I was brought back to Sahar police station. On 26-12-89 I was again taken to the - 3 - Bandra Court. On the same day at about 12 noon Mani and Alisa were also brought to Bandra Court. We all were ordered to be released on bail of Rs.1000/-. We were brought back to the police station and were released at about 3 p.m. after the bonds were filled in. 2. On 27.12.89 at about 11 a.m. when I was at my residence and when I was to go to attend my office a police constable from Gundas staff of Sahar police station had called me at Sahar police station. I accompanied the said constable to Sahar police station. The Senior P.I. Pail was standing within the compound of the Sahar police station. I was produced before him. He directed the constable to detain me at the police station. I continued to sit there. I continued to sit there at Sahar police station for about 3 days. On 28-12-89 I wanted to see Sr.P.I.Patil but the constables did not allow me to enter his cabin. On 28-12-89 itself I enquired with a constable there as to why I was made to sit at the police station and that constable told me that I should enquire with Mr.Patil orderly of Sr.P.I. of Sahar police station. On that day I could not meet the orderly because he was not found at the police station. On 29-12-89 at about 11.30/12 noon the accused before the court met me at the Sahar police station. I enquired with him as to why I was made to sit at the police - 4 - station. He told me then to wait, he would go and enquire with Sr.P.I. as to why I was made to sit at the police station. The place where I was made to sit is quite close from the cabin of Sr.P.I. and I saw the accused going inside the cabin of the Sr.P.I. He came out of the cabin after about 10 minutes thereafter. There is a canteen outside the Sahar police station. The accused took me to that canteen. He told me that he had enquired with the Bada Sahab i.e. the Sr.P.I. and the Bada Sahab needed Rs.1000/- for himself and the accused needed Rs.500/- for him. I told him that I had no money with me even money from others and would pay the same. Thereafter, I went in a autorikshaw to chandran Nadar who lived inthe Sahar Technical Area and took Rs.1500/- from him. I returned to the police station in the same rikshaw. It was some more than than 2 p.m. There is one Saibaba Mandir near the Sahar Police station near the canteen. The accused was sitting there only near the canteen. I stopped the rikshaw near the canteen. I got up from the rikshaw and went towards the Saibaba Mandir. I hinted the accused by raising my hand to follow me and the accused also came to with me. I gave Rs.1200/- to him and kept Rs.300/- with me. The accused questioned me then as to why I was paying the less amount. I told him that I did not have the money then and will pay the same within one weeks time after I joined the duty. I - 5 - reported the office on 2-1-90 and thereafter I went to my duty on the ship ’Set Up Tripura’, on 3-1-1990. I used to go on duty at 7.30/8 a.m. and returned home at 2/2.30 pm. On 3-1-90 at about 5 p.m. I got down on the bus stop in Sahar Technical Area after discharging my duty on the ship. On hawaldar met me there and told me that he had visited my house on 2/3 occasions to convey the message that the orderly of the Sr.P.I. had asked me to seek him. Then I went from there to Sahar police station. It was 5.30 p.m. then. I contacted the accused. The accused questioned me where was the money. I told him that I will pay the money on the next day. The accused then questioned me by what time would you pay the money on the next day. I told him that I will pay the money between 5 p.m. to 6 p.m. Thereafter, i returned home." 4. Thereafter, the applicant approached Anti Corruption Bureau and lodged a complaint. On the basis of the said complaint a trap was laid. Necessary procedure was followed before laying the trap. As far as trap is concerned, P.W.1 deposed in paragraph 5 which reads thus : "5. After the proceedings as stated above were over I myself, the two panchas, PI Chutke and other members of the raiding party boarded a police van. We were 16 persons - 6 - in the van. It was the time of about 3/4 pm. We went in the said van twoards Sahar Airport. The van was made to halt at the corner of Sahar Airport road and Sahar Link Road. There was one petrol pump nearby. It was the time of about 5.15 pm then. I got down from the van. Panch witness Patkar also got down. I myself panch Patkar then went on towards the Saibaba temple. The other members of the raiding party followed us from behind. We reached near Saibaba Temple, which is there adjoining to the compound wall of Sahar police station. We required about 5/10 minutes to reach the Saibaba Temple. When we reached there, the accused was not there at the Saibaba temple. I sent a word through Varghese Joseph who conducted a tea stall near the said temple to call the orderly of the Sr.P.I. Verghese Joseph went towards the Police station. Within five minutes thereafter the accused came there at the Saibaba temple. I raised my right hand towards my head and wished the accused by saying ‘Namaste’. Patil then told me ‘Tum aaya nahi’ let ho gaya’ (True translation of this in English would be ‘You did not come in time. You are late’ I replied then ‘Paisa milneko late ho gaesliye time laga’ (true translation of this in English would be I required time to collect the money and therefore I came late’) By posing the panch witness Patkar the accused questioned me ‘Ye kaun hai’ (True translation of this in English would - 7 - be ‘Who is this person’). I replied him saying ‘Mere saath kaam karta hai’ (true translation of this in English would be ‘He worked with me’) The accused then told me ‘Paisa do’ (true translation of this in English would be ‘Give me the money’). I then inserted my right hand inside the left side chest pocket of my shirt and took out the notes and extended my right hand towards the accused when he collected the amount in his right hand and kept the said amount in his left side chest pocket of his shirt. I asked the accused then Gunda staff mere gharko aake paisa puchhta hai’ (True translation of this in English would be Gunda staff visits my house and asks me to pay the money’). the accused then told me ‘Mai saab ko btayega, tumhare ghar koinahi aayega, tum daro mat’. (true translation of this in English would be ‘I will tell the officer, none will visit your house, you need not be scared’). The accused asked me to wait for five minutes there telling that after he entered the police station I should go. The accused started proceeding towards Sahar police station. I gave the predetermined signal by pointing my index finger of my right hand and by folding the right hand sleeve with my left hand. Thereafter one hawaldar came from behind and caught the accused by holding his one arm. At the same time another hawaldar also rushed there and caught his another arm. I was also quite close. The accused then - 8 - turned his neck behind and looked towards me and I uttered the words ‘Anticorruption’. Thereafter the accused gave a jerk to his arms, got himself freed from the clutches of hawaldar and started running towards Sahar police station building. I myself the policemen and other members of the raiding party followed him all running. The accused entered into the cabin of Sr.P.I. of Sahar police station. We all also went in the said cabin. The accused then took out all the contents of his left chest pocket of his shirt and threw them in the corner of the cabin. Then two constables caught the accused each one catching his hands at the wrists...." 5. It will be necessary to refer to the evidence of Jaywant Patkar, a panch witness who accompanied P.W. 1 complainant. The said witness also deposed the procedure followed before laying a trap. He stated in his deposition as follows : "2....A little time thereafter the accused before the court came there. The complainant Murgesan wished Mr.Patil by uttering the words ‘Namaste’ and shook hand with him. Murgesan and the accused had a talk there. Murgesan complained in Hindi ‘Gunda staffka bahot taklif hai’ (True translation of this in English would be ‘Gunda staff harassed me’) The accused Patil then had told the complainant by saying ‘who to mai dekhunga’ (True - 9 - translation of this in English would be ‘I will look into the matter’). All this talk took place near the temple and thereafter we went behind the temple. The accused then questioned complainant ‘Bakika paisa laya kya’? I again say that the complainant Murgesan then told the accused ‘Bakika paisa laya hoon’ (true translation of this in English would be ‘I have brought the remaining money’). The accused then told the complainant to pay the money by uttering the words in Hindi ‘De do’. The complainant then by inserting his right hand inside the left chest pocket took out the money and gave it to the accused who collected in his right hand and kept it in his left side chest pocket of the shirt worn by him. Thereafter, I myself, the complainant and the accused went towards the police station. Complainant then gave the predetermined signal by unfolding the right hand sleeve of his shirt. Two policemen rushed there towards the policemen. The policemen caught the hands of the accused. One policeman caught one hand and like this the two constables had caught the two hands of the accused. The accused then gave a jerk and freed the grip and went running towards the police station. All others rushed behind him. The accused then entered one cabin. The cabin had a nameboard of the officer. It was the nameplate of the Sr.Inspector of the police station. I saw the money lying on the platform of the window frame. - 10 - Copanch Teli was also with me then. Complainant, accused Patil were there in the cabin. PI.Chutke was also there. The two policemen had caught the accused by holding his wrists. The accused Patil was a made to stand outside the cabin. However, I do not recollect this correctly. Because of the long lapse of time I do not recollect all the happenings...." 6. The learned A.P.P has taken me through the notes of evidence and other relevant documents on record. His submission is that the evidence of P.W.1 and 2 and the panchnama merely prove the demand and acceptance of bribe by the respondent. He submitted that the learned Judge was influenced by the contradictions which are not at all relevant. He submitted that the learned Judge was influenced by the inconsequential discrepancies and contradictions in the evidence on record. He submitted that the money was demanded by the respondent under threat that if he did not give money, he would be arrested for any other offence. He submitted that undue importance was given by the learned Judge to the fact that the marking on the shirt of the respondent by blue ink was not precisely at the place where bluish glow was seen. He submitted that marking was made by drawing circle around the portion where bluish glow was seen. He submitted that in the face of the evidence of P.W.1 and 2, the demand of bribe amount and acceptance of bribe has been duly proved. The - 11 - factors considered by the learned Judge are inconsequential and the guilt of the accused was proved beyond reasonable doubt. 7. The learned counsel for the respondent supported the impugned Judgment and order. He invited my attention to the sketch at Exh.15 which was drawn by the P.W.2. He submitted that if the said sketch is considered as true, entire prosecution case becomes vulnerable and suspicious. He submitted that there is no reason to interfere with the finding recorded by the learned Judge. 8. I have considered the submissions. I have perused the notes of evidence and other material documents on record. Perusal of the Judgment shows that the learned Trial Judge has considered the evidence of the witnesses in detail. 9. In paragraph 12 of the Judgment, the learned Special Judge has himself noted the submission of the learned Special P.P that as in Special Case No.2 of 1989, the learned Special Judge came to the conclusion that the P.W. 3 Mr.Patkar is not a trustworthy withness, his evidence will have to be kept out of consideration. Therefore, the evidence of P.W. 3 Mr.Patkar cannot be considered in support of prosecution. As narrated above, P.W. 3 Patkar is a witness who accompanied the complainant at the time of trap. - 12 - 10. The first demand according to the P.W. 1 was on 29th December 1989. At that time, P.W.1 was made to sit in the police station. P.W.1 called upon the respondent to explain as to why he was made to sit in the police station. The case of the P.W.1 was that the respondent asked him to wait for some time. According to P.W.1 he went inside cabin of the Senior P.I. and came out after 10 minutes. Admittedly, this statement does not find place in the F.I.R. After the first demand made on 29th December 1999, P.W.1 collected amount of Rs.1,200/- and paid the said amount to the respondent near Saibaba Mandir. The third instance is of 3rd January 1990 when it is stated that one hawaldar conveyed message that the orderly of Senior P.I. had asked him to meet him. Thereafter, the complainant visited the respondent and assured to give balance amount of Rs.300/-. It was agreed that the balance amount was to be paid between 5 pm to 6 pm. on the next day. 11. According to the evidence of P.W.2 Chutke (I.O.), on the shirt which was on the person of the respondent, he had encircled the entire portion of the pocket. He was asked specific question as to whether on the encircled portion of the shirt of the respondent anthracene powder was put. The learned Judge found that it is not mentioned in the post trap panchnama that he had put big circle to locate the portion on - 13 - the shirt pocket where anthracene power was applied. 12. In paragraph 34 of the Judgment, the learned Judge has held thus : "34. There are material circumstances on record which create a further doubt in the mind of the court telling that the money really had entered the pocket of the accused. The fact is that a big encircling is put by the lining around the entire chest pocket of the shirt. It is mentioned in the post trap panchanama that the encircling was made wherever a bluish glow was seen. For the first time, a case is being made out at the time of the trial that the said blue encircling was made to focus the attention as to where the small circle could be found. If that be so, it was necessary for the Investigator to state so in the post trap panchchanama. P.W.4 Madhukar Teli states that he did not remember if all the places enclosed by a big circle covering the entire pocket emitted the bluish glow. P.W.2 P.I. Chutke is a trained Police Officer. When he had put a big circle around the entire pocket, it was necessary for him to mention in the post trap panchanama that such a big circle was put with a view to draw an attention that the bluish glow was seen at the place at the smaller circle from inside. The post trap panchanama does not mention that the bluish glow was seen - 14 - from the inner side of the outer flap, but the marking of the ink was made from the outer side. Not only this, it is the prosecution case that the bluish glow was also seen at the entrance of the pocket of the shirt, but no marking was done on that portion. These lacunas in the prosecution case go to the root of the case to say that probably the money did not go inside the pocket of the shirt worn by the accused." 13. Considering the aforesaid aspects, the learned Special Judge came to a conclusion that the guilt of the respondent is not proved beyond reasonable doubt. If the evidence of P.W.2 and 3 is considered, it is obvious that the said finding is certainly a possible finding which could have been recorded on the basis of the evidence on record. Considering the facts and circumstances of the case, it is obvious that the view taken by the learned Special Judge is a possible view. Even if it is established that another view is possible to be taken, it is no ground for interference. 14. The appeal is accordingly dismissed. JUDGE JUDGE JUDGE