1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.105 OF 2004 Sudhakar s/o Jalindar Dound Age: 37 Yrs., occu. Service, Police Constable, B.No. 133, Peth Beed Police station, Now working at police station Ambhora, Tq. Ashti, Dist.Beed. - APPELLANT VERSUS The State of Maharashtra - RESPONDENT ***** Mr.SP Brahme,Advocate for Appellant; Mr.SD Kaldate, APP for Respondent/State. ----- CORAM : SHRIHARI P.DAVARE,J. DATE : 22nd June, 2010. JUDGMENT : 1) Challenge in this appeal is to the conviction and sentence rendered by way of judgment and order dated 30th January, 2004 passed by learned Additional Sessions Judge/Special Judge, Beed in Spl.Case No.51 of 1997, convicting the appellant for the offence punishable under Section 7 of the Prevention of Corruption Act and sentencing him to suffer R.I. for one year and to pay a fine of Rs.1,000/- and in default payment 2 of fine, to suffer S.I. for three months, and also convicting him for the offence under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and directing him to suffer R.I. for one year and to pay a fine of Rs.1000/-, with default condition of non-payment of fine to suffer S.I. for three months and both the afore stated substantive sentences were to run concurrently. 2) The prosecution case, which can be summarized, is as under : (i) The appellant, viz. Sudhakar s/o Jalindar Daund, i.e. original accused, was a police constable attached to police station Peth, Beed at the relevant time, i.e. from 5.11.1993 to 19.1.1995 and the complainant, viz. Vijaykumar Abarao Waghmare, is an Ex-Serviceman and was having a grocery shop at Balbhimnagar on Idgah Road, at Beed, which was near to Peth Beed Police station. It is alleged that on 12.1.1995, one Bhagwan Narayan Veer and 8 to 10 other persons had assaulted complainant’s younger brother, viz. Prakash, hence a complaint was lodged in that respect with Peth Beed Police station and the police personnel referred Prakash for medical examination. Accordingly, Prakash was admitted into the hospital and was discharged on 3 16.1.1995. (ii) It is further alleged that in the evening of 16.1.1995, the accused went to the house of the complainant and conveyed him that PSI Phad had called the complainant and his family members to the police station. Accordingly, the complainant and his brother Prakash went to the Police station along with the accused. PSI Phad informed the complainant that he has filed chapter cases against the complainant and all others and he went to arrest the complainant and his family members including ladies and children and stated that if the complainant wishes that they should not be arrested, he has already told accused Dound as to what the complainant would have to do for that and he asked the accused to explain the complainant what he meant. Accordingly, the accused stated to the complainant in presence of PSI Phad that other party had given Rs.2,000/- and, therefore, the complainant should also pay that much amount. After negotiations, the said amount was settled at Rs.500/-. Accordingly, PSI Phad insisted upon the complainant to pay said amount of Rs.500/- immediately. However, the complainant stated that he had not that much amount and after going at home, he would manage the same, but he would give whatever amount 4 possible for him immediately and assured that balance amount would be paid later on. Accordingly, on instructions of PSI Phad, accused Dound accompanied with the complainant to his house. The complainant found Rs.200/- in his house. Accused demanded the said amount, but complainant stated that he would give the said amount in presence of PSI Phad and hence both of them came back to police station and complainant told PSI Phad that he had managed Rs.200/- and promised that he would pay the balance amount later on, to which PSI Phad agreed and asked the complainant to give the said amount to accused Dound. Accordingly, complainant gave Rs.200/- to accused Dound. On instructions of PSI Phad, accused Dound asked the complainant to manage the balance amount at the earliest and to get his work done with the tehsil office. (iii) It is further alleged that on 17.1.1995 at about 7.00 a.m. accused Dound went to shop of the complainant and asked about the balance amount. Thereupon, the complainant stated that he had yet to manage the said amount and and he would come himself to inform to the accused when the amount is managed. Again in the evening, the accused went to the complainant and asked as to what had happened about the balance amount and 5 why the complainant had not come to inform about it. Thereupon, the complainant stated that he had been to Pimpalner, since he had received a message of death of maternal uncle and he was just returning, hence the accused went away. Again on 18.1.1995 at about 10.30 a.m., the accused went to the complainant’s shop and asked him to take out time on that day and bring his persons at the Tehsil office and manage for the amount. The complainant agreed for the same and, therefore, the accused went away. Thereafter at about 12.00 noon, the complainant sent his younger brother Subhash to police station, asking him to meet the accused and to tell him that the complainant had gone to Pimpalner and he would be late in returning back. However, at about 2.00 p.m., Subhash came back and informed the complainant that the accused did not allow him to see PSI Phad and accused asked the complainant and others to come to police station till 5.00 p.m. and he would wait for them. Thus, since the accused Dound was insisting for the balance amount and the complainant was not willing to give it to the accused, the complainant -Vijaykumar went to the office of Anti-corruption Bureau (ACB), Beed and lodged his complaint. (iv) It is also the case of the prosecution that PW 3 – Sk.Hakkani Mohd.Hussain, was Deputy 6 Superintendent of Police in January 1995 and on 18.1.1995, the complainant Vijaykumar Waghmare came to his office and informed his complaint orally, hence, PW 3 - SK. Hakkani recorded his complaint (Exh.15) and contents thereof were read over to him and obtained his signature thereon. PW 3 – Sk. Hakkani sent a request letter to Special Account Officer, Beed and called two employees, viz. Suryakant Gaikwad and Jairam Kamble, to act as panchas and PW 3 – Sk. Hakkani introduced himself and obtained their consent to act as panchas. The complainant narrated his complaint in presence of the panchas and the panchas also read and recorded the complaint and signed on it as having correctly recorded. (v) The prosecution case further recites that, on instructions of PW 3 – Sk. Hakkani, the complainant kept his belongings and the amount with him on the table. He put Rs.310/- with one handkerchief on the table. His search was taken through panchas, but nothing was found with him. The properties of anthracene powder was explained to him as well as his notes were examined under an ultraviolet lamp and powder was not detected anywhere. Moreover, the notes were examined under the ultra-violet lamp and anthracene powder was taken out from the coubourd, which was in sealed packet, and same was opened and 7 demonstration of the powder was shown. Thereafter, note of Rs.10 and handkerchief were returned to the complainant, which he kept in the pocket of pant. Numbers of those three notes of Rs.100/- denominations given by the complainant, were noted and anthracene powder was applied on both sides of those notes and fold/bunch of the notes was kept in the left side shirt pocket of the complainant. After giving proper instructions to the panchas; complainant and staff, that if the amount is demanded and accepted, the complainant was asked to give signal by taking out his handkerchief and clean his face by it. The anthracene powder was again sealed and was kept in sealed cover and pre-trap panchanama (Exhibit-19) was drawn on 19.1.1995 to that effect and panchas have signed it. Thereafter at about 1.10 p.m. the complainant, both the panchas and PW 3 – Sk. Hakkani and staff proceeded to Tehsil office. (vi) Accordingly, at about 1.30 p.m., trap was arranged in the tehsil office and the complainant, panch – Gaikwad went inside, whereas the ACB personnel remained scattered. At about 3.30 p.m., the complainant gave agreed signal. Complainant, panch no.1 and one constable in uniform, were standing in the open place at the eastern gate of the Tehsil office. PW 3 -Sk. 8 Hakkani asked panch no.1 – Gaikwad as to who accepted the bribe money, whereupon he pointed out towards the appellant/accused. His wrist was caught hold by PW 3 – Sk.Hakkani, who gave his introduction himself, whereupon the accused was frightened and started sweating and on asking his name, he told his name as Sudhakar Dound, police constable attached to police station Peth, Beed. On asking as to where he kept the amount of bribe, initially he kept silence, but on repeatedly asking, he pointed out towards his right side pant pocket by his neck. It is alleged that since it was open space and people started assembling there, PW 3 – Sk. Hakkani, brought the accused to his office by an auto rickshaw, holding his hand. The hands of the accused were checked and during the course of checking, antracene powder was detected on his right hand finger. On instructions of PW 3 – Sk. Hakkani, panch no.2 – Kamble took search of the accused and he found bundle of notes, amounting to Rs.300/- in his right side pant pocket and another Rs.220/- and also found keys in his left side pant pocket. Papers of Chapter cases were also found in right side shirt pocket. The notes of Rs.300/- were checked and found smeared with antracene powder under ultra-violet lamp; numbers of notes were tallied with the numbers noted under the panchanama. Accordingly, said notes 9 were seized for investigation. (vii) Thereafter the complainant was called and his hands were checked and antracene powder was seen on his right hand fingers as well as antracene powder was also seen on inner side of the left side shirt pocket and on the chest of his shirt. On instructions of PW 3 – Sk. Hakkani, panch no.1 – Gaikwad took search of the accused and handkerchief and Rs.10/- were found and those were checked and returned to him. PW 3 – Sk. Hakkani asked panch no.1 about the occurrence of the incident and he narrated the same and on asking the complainant he corroborated it. Then PW 3 – Sk. Hakkani asked the accused his say about the amount and he gave his explanation in writing. Post trap panchanama (Exhibit-18)of all the events was drawn. (viii) It is the further case of the prosecution that necessary formalities were observed and complied with and PW 3 – Sk. Hakkani prepared his complaint (Exhibit-22) and lodged it at City Police station, Beed and PSI Rathod registered the crime on that basis and handed over the investigation to PW 3 – Sk. Hakkani. Thereafter, PW 3 – Sk. Hakkani recorded the statements of the complainant; both the panchas; brothers and wife of the complainant and others. He also called record from Superintendent of 10 Police, Beed as regards the information of first appointment and service book of the accused. Moreover, PW 3 checked the Arrest Register, Chapter Case Register and Weekly Diary of PSI Phad. He also recorded statement of more witnesses and obtained copies of 11 documents. Accordingly, after completion of the investigation, he sent the investigation papers to Superintendent of Police (ACB), Aurangabad on 4.2.1995 for sending the said papers to D.I.G. for seeking sanction against PSI Phad, since he felt from the investigation papers that PSI Phad was also involved in the crime, and also against the accused Dound. However, Superintendent of Police (ACB), returned back the file on 21.2.1995, pointing out some defects therein for additional investigation against PSI Phad. After making further investigation, PW 3 – Sk. Hakkani sent the file again to Superintendent of Police (ACB) Aurangabad. Meanwhile, he obtained a map of scene of offence from D.I.L.R., Beed. However, on 26.5.1997, Deputy Inspector of General (DIG) sent back the file through Superintendent of Police, suggesting that there was no sufficient evidence against PSI Phad. However, sanction was received against accused Dound on 10.9.1997. Thereafter, PW 3 – Sk. Hakkani submitted the charge sheet against the accused before the court. 11 3) Thereafter, it appears that the learned 2nd Additional Sessions Judge/Special Judge, Beed, framed a charge (Exhibit-6) against the accused in Special Case No.51 of 1997 on 16.10.1998. To substantiate the afore stated charges levelled against the accused Dound under the Prevention of Corruption Act, the prosecution examined inasmuch as four witnesses, viz. i) PW 1 - Vijaykumar Waghmare, the complainant ii) PW 2 - Suryakant Kondiram Gaikwad, panch to pre-trap panchanama 1 and 2 and post-trap panchanama 1 and 2 (Exhibits – 17, 18, 19 and 21 respectively.); iii) PW 3 - Sk.Hakkani Mohd. Hussain, Dy.S.P.(ACB), the Investigating\ Officer.; iv) PW 4 - Madhav Karve, Dy. Director, DTS,Nasik ,the Sanctioning Authority. 4) The defence of the accused is of total denial and his defence is revealed from the cross-examination and the statement recorded under Section 313 Cr.P.C, wherein, he stated that brother of the complainant Vijaykumar, viz. Prakash had quarreled with PSI Phad and therefore in order to bring PSI Phad in trouble, such false complaint was lodged against him, involving PSI Phad in it, but ultimately, since no sanction was 12 accorded against PSI Phad, the accused is unnecessarily harassed by filing false case by Anti-corruption Bureau and he denied the demand of any amount to the complainant and acceptance of any amount from him. 5) In order to deal with the submissions advanced by learned Counsel for the parties effectively, it is necessary to advert to the material evidence adduced and produced by the prosecution. 6) In the said context coming to the deposition of PW1 – Complainant – Vijaykumar Waghmare, who has stated that he is having a grocery shop at Balbhimnagar at Beed and on 12.1.1995 Bhagwan Narayan Veer and 8 to 10 persons assaulted his younger brother, viz. Prakash. Hence, PW 1- Vijaykumar went to police station for lodging the complaint and his brother was referred for medical examination and accordingly he wad admitted in the hospital and was discharged on 16.1.1995. He also stated that on 16.1.1995 at about 6.00 to 7.00 p.m., accused Subhash Dound, a police constable, came to his shop and stated to him that Chapter case was lodged against him and his family members and he was called in the police station by PSI Phad. Accordingly, PW 1- Vijaykumar and his brother 13 Prakash went along with the accused Dound to Police station. PW 1 – Vijaykumar was called inside whereas his brother Prakash waited outside. PSI Phad stated to PW 1 -Vijaykumar that he has filed the chapter case against them and he wanted to arrest him and further stated that, if PSI Phad should not arrest him, he has already told about it to accused Dound and other party has already given Rs.2,000/- and if PW 1 – Vijaykumar had any doubt, he should ask accused Dound about it. Since PSI Phad has told everything to accused Dound, thereupon PW 1 – Vijaykumar stated that he did not have so much amount and accordingly the said amount was settled at Rs.500/-. PW 1 – Vijaykumar further stated that Psi Phad asked him to give amount immediately, but PW 1 said that he has not brought the amount and he will manage the amount after going to home. Hence, Saheb PSI Phad sent the accused Dound with him and asked him to bring the amount from home. PW 1 – Vijaykumar stated that after going to home he could find only Rs. 200/- and accused Dound asked him to give the amount, but he said that he would give the amount to Phad Saheb. Accordingly, PW 1 – Vijaykumar and accused Dound went to the police station and on instructions of PSI Phad, accused Dound accepted the amount of Rs.200/- from PW 1 – Vijaykumar and P?W 1 – Vijaykumar was asked to 14 manage the remaining amount. 7) PW 1 – Vijaykumar further stated that on the next day, i.e. on 17.1.1995 at about 7.00 to 7.30 a.m. accused Dound came to his shop and asked to arrange th remaining amount to get bailed out and thereafter PW 1 - Vijaykumar said to him that he will manage the amount till the afternoon. Thereafter PW 1 went to Pimpalner as his maternal uncle had expired and he returned late and he came back at about 5.00 to 6.00 p.m. in the evening. Again in the evening, accused Dound came to him and asked him why he did not come since he had waited for him. Thereupon PW 1 told him that he had been to Pimpalner hence accused stated that they would do the work tomorrow and he would come again on the next day. 8) It is further stated by PW 1 - Vijaykumar that on the next day, i.e. on 18.1.1995, again PW 1 went to Pimpalner, asking his brother Prakash to go to Police station and to inform the accused Dound and PSI Phad that he had gone to Pimpalner and would return back late. Accordingly, it was informed to accused Dound and PSI Phad by brother of PW-1. In the evening of his return, accused Dound met him outside the police station and asked him where he had gone and also stated that he might have tired so he 15 should go home and come again on the next day and do the work. 9) Accordingly, PW 1 stated that on the next day,i.e. on 19.1.1995, accused Dound came to his shop at about 10.00 to 10.30 a.m. and asked him to spare time to get bailed out. Thereupon, PW 1 replied in the affirmative and stated to him that he would come to police station and ask him to go ahead. Thereafter, in the evening at about3.00 to 4.00 p.m., he went to police station, where Subhash was already standing there and accused Dound asked him from where he came and thereupon he told that he came from Pimpalner and one guest was with him and accused asked him, who was that person and PW 1 replied that he was his co-brother and accused then stated that PW 1 might have tired and asked him to come again on the next day. On the next day, accused Dound had come to PW 1. Accordingly, he had visited the complainant’s shop for 3- 4 days. PW 1 further stated that he asked accused Dound to go ahead and he will come with younger brother Prakash and he will manage for his amount. He further stated that, thereafter he went to ACB office and lodged the complaint (Exhibit-15). 10) PW 1 further stated that Saheb called two employees from another office, viz. Gaikwad 16 and Kamble and Gaikwad was sent along with PW 1 to go to police station and to ascertain about money dealing to report accordingly. Accordingly, PW 1 and panch Gaikwad went to police e station and accused Dound was standing outside Peth Beed Police station and PW 1 wished him. Thereupon accused asked him as to when he would find out time and asked about the person, who accompanied with PW 1 whereupon he stated that he was his co- brother. Thereafter they went back to ACB office and narrated about the same to Saheb. Thereafter, on instructions of Saheb, PW 1 and panch Gaikwad went to ACB office next day at 9.30 a.m. Both of them again went to Peth police station Beed to tell the accused to do the work of his bail that day. PW 1 stated that accused Dound asked that they should get themselves bailed out that day and also to manage for the amount, whereupon, PW 1 replied in the affirmative and stated that he wanted to get his bail and he has come with the amount. Thereafter accused Dound stated that they all would go in a rickshaw to Tehsil office for doing their work of bail and asked to take one more person with his 7/12 extract with them. Accordingly, PW 1 sent his brother Subhash and the lady members in a rickshaw to Tehsil office and stated to accused that he would come by another rickshaw to Tehsil office taking his brother with him. From them PW 1 and Gaikwad 17 again went to ACB office. 11) Thereafter PW 1 stated that necessary formalities were observed. His search was taken and sealed bottle containing anthracene powder was taken out and they were told that when the powder is seen under ultra violet lamp, it shines blue. Then demonstration of that powder was given and the paper was destroyed. Another paper was taken in which Rs.300/- were put and anthracene powder was applied to the notes of both the sides, then those powdered/tainted notes were kept in left side shirt pocket of PW 1 and he was told not to touch the notes again and when the amount is demanded, PW 1 should give those notes. Accordingly, at about 1.15 p.m. PW 1 was told to go Tehsil office and PW 1 and panch Gaikwad reached the tehsil office at about 2.00 p.m. Subhash and Prakash were standing near the gate of Tahsil office. They waited for accused Dound, who came at about 3.00 to 3.10 p.m. in a rickshaw. At about 4.00 p.m. Tahsildar came and the bail work of PW 1 was done and they came outside the tehsil office and were standing in veranda near water tap of the tank. PW 1 asked both the brothers to go home. Thereafter, PW and panch Gaikwad and accused Dound only were standing there. Accused Dound stated that he has done his work and now PW 1 should do his work. 18 PW 1 further stated that now accused must be expecting the amount and he said to accused Dound that his work is done and PW 1 took out the notes from his shirt pocket and gave it to accused Dound and Dound has taken the amount. PW 1 stated that let them go out side and have a cup of tea, but accused stated that he had no time and he said let them go to police station and take tea there and PW 1 could accompany if he desires. On coming near the gate PW 1 made the pre-determined signal told by ACB Saheb and took out the handkerchief from his left side pocket, cleaned his face and gave jerk to it. ACB people came there and caught hold accused Dound. 12) PW 1 further stated that Saheb started taking search of accused Dound and asked as to where was the amount. He asked Gaikwad where accused Dound has kept the amount. Gaikwad told by gesture that accused Dound has kept the amount in pant pocket. Then accused Dound was taken in a rickshaw to ACB office. Then PW 1, panch Gaikwad and Kamble and other staff all went to ACB office. There PW 1 was asked to wait outside. Gaikwad and Kamble were called inside. After some time, i.e. half an hour, PW 1 was also called in. His pocket and fingers were checked under the ultraviolet lamp. Blue shining was observed. The amount was retained by ACB people and PW 1 19 was asked to wait outside. The bail bonds were found with the accused. Those were also seized. PW 1 identified the accused Dound in the court. 13) During cross-examination, omission has been elicited in respect of statement of PW 1