1 crap5048.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 5048 OF 2010 The State of Maharashtra ...Applicant VERSUS Ashok s/o Aabasaheb Anantre and anr. ...Respondents ..... Smt. Y.M.Kshirsagar, A.P.P. for the applicant/State Shri N.L.Jadhav, advocate for respondent no.1 Shri V.D.Sapkal, advocate for respondent no.2 ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 25 th March, 2011 PER COURT : 1 Heard the learned counsel for the respective parties. 2 This is an application, preferred by the applicant/State, seeking leave to file appeal, challenging the judgment and order of acquittal, dated 6.9.2010, rendered by the learned Special Judge, Latur, in Special Case (ACB) No. 4 of 2008, thereby acquitting respondent nos. 1 and 2 (original accused nos. 1 and 2), for the offences punishable under Sections 7, 12 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988. 2 crap5048.10 3 Accused no.1 Ashok Aabasaheb Anantre was serving as Police Sub-Inspector; whereas accused no.2, namely Laxman Gangaram Komwad was serving as Police Head Constable at the relevant time, and they were charged for having demanded and accepted amount of Rs. 11,000/- and Rs.14,000/- from the complainant Dhananjay Patil for not filing the gambling and chapter cases against them and also for abetting each other for commission of the said offence. 4 To substantiate the said charges against the accused, the prosecution has examined, in as much as 7 witnesses, as mentioned below :- PW1 Dhananjay Patil-Complainant – turned hostile. PW2 Hanmant Sundarranna Darweshwar-Panch PW3 Dy.S.P.-Ambadas Kashinathrao Sawai PW4 I.G.-Sharada Prasad Yadav-Sanctioning Authority PW5 Laxman Anantrao Zunzare, who prepared the map. PW6 Ishtling Gurlingappa Todkari-Friend of Complainant, who turned hostile PW7 Dy.S.P.-Mukund Namdeorao Hatote-Investigating Officer 5 The defence of the accused is that they are falsely implicated in this case. They have also filed their written statements during the course of recording their statements under Section 313 of the Code of Criminal 3 crap5048.10 Procedure. According to accused no.1, complainant Dhananjay Patil lodged complaint on 31.1.2007 and on that day Anti Corruption Bureau Officer, Nanded, laid trap on him. He was called by one P.S.I. Murkute, but neither there was any talk between the complainant and the accused, nor he had demanded any amount, and therefore, trap was failed, and subsequently, he came to know about the trap from P.S.I. Murkute. He also submitted that as he filed some gambling cases against the complainant, the complainant falsely implicated him in this case. 6 According to accused no.2 since he filed gambling cases against the complainant, the complainant had grudge against him, and therefore, he falsely implicated accused no.2 in the present case, by showing the incident of 7.1.2007. He also stated that he has not received any amount from the complainant and claimed to be innocent. 7 Admittedly, PW1 Dhananjay Patil i.e. complainant turned hostile and has not supported the case of the prosecution, and therefore, he was cross-examined by the learned A.P.P. On perusal of the testimony of PW1 Complainant Dhananjay Patil, and more particularly, the cross- examination conducted by learned A.P.P. after declaring him hostile, it appears that nothing beneficial to the case of prosecution could be elicited therefrom, and hence, the testimony of PW1 Dhananjay Patil-the complainant, cannot be of any aid and assistance to the case of prosecution. Hence, it is apparently clear that the basis and foundation of the prosecution case i.e. the testimony of PW1 Complainant Dhananjay Patil collapses. 4 crap5048.10 9 Moreover, it also appears that PW6 Ishtling Gurlingappa Todkari also turned hostile and has not supported the case of the prosecution. It appears that the learned A.P.P. cross-examined the said witness after declaring him hostile and even considering the said cross- examination, it is seen that nothing beneficial could be elicited to the case of prosecution therefrom, and therefore, also his testimony cannot be of any help to the case of prosecution. 10 As regards the sanction order Exh. 61, the prosecution examined PW4, Special I.G.-S.P.Yadav, Nanded and it has come in his cross-examination that accused no.1 was selected through M.P.S.C. and on 20.2.2008, letter was sent to D.G.P. Mumbai for receiving sanction to prosecute the accused, but there is no explanation why the said witness accorded the sanction. He also admitted that he gave sanction on 6.5.2008, but the sanction order Exh. 61 bears the date as 28.4.2008, but the date below his signature appears to be 3.5.2008. Hence, even after perusal of the contents of the said sanction order Exh. 61, it cannot be gathered, on which date the said sanction was accorded i.e. whether on 28.4.2008 or on 3.5.2008, or on 6.5.2008 as stated by PW4 I.G.-Sharada Prasad Yadav in his deposition. 11 Hence, considering the testimony of PW4 I.G.-Sharada Prasad Yadav and contents of the said sanction order and also considering the testimony of PW3 Dy.S.P.-Ambadas Kashinathrao Sawai, the Trial Court observed that there does not appear to be application of 5 crap5048.10 mind, and therefore, sanction does not seem to be proper, and the reasoning given for the said finding cannot be faulted with. 12 Moreover, after scrutinizing and assessing the evidence on record, the Trial Court observed that the accused have probablised their defence, and therefore, the alleged demand and acceptance of the amount of bribe towards gratification has come into cloud of suspicion, and consequently, acquitted the accused persons for the charges levelled against them and the view adopted by the Trial Court is a possible view after assessing the evidence on record, and same does not appear to be perverse, and hence, no interference therein is called for in the appellate jurisdiction. 13 In the circumstances, having the comprehensive view of the matter, there are lacunae in the prosecution case, as discussed herein above, and therefore, present application deserves to be rejected. 14 In the result, present application, which is sans merits, stands dismissed and leave to file appeal is refused. R. and P. be sent back to the concerned court, and the present application stands disposed of accordingly. (SHRIHARI P. DAVARE), JUDGE. dbm/crap5048.10