* 1 * Cri.Appeal. 276.1991 8.2.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 276 OF 1991 The State of Maharashtra .... Appellant (Orig. complainant) VERSUS Dr. Narayan Ramdas Chavan Age: 48 yrs, Service. Medical College & Hospital Nagpur .... Respondent (Orig. accused) * * * * * Mrs. P.P. Bhosale, APP for appellant-State. Mr. Shirish Gupte, Senior Advocate i/by Ms. Sharmila Kaushik Advocate for the respondent. * * * * * Coram : Smt. R.P. SondurBaldota, J. Judgment Pronounced on : 8th February, 2011. JUDGMENT : 1. This appeal by the State is against the judgment of acquittal vide the judgment and order dated 5th March 1991 passed by the learned Special Judge, Kolhapur in Special Case No.4 of 1988 acquitting the respondent of the offences punishable under Section 161 Indian Penal Code and Sections * 2 * Cri.Appeal. 276.1991 8.2.2011 5(1)(a) and 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947. During the period 17th May 1985 to 16th June 1986, the respondent was working as a Civil Surgeon at CPR Hospital, Kolhapur. According to the prosecution, during that period, he had, by abusing his position as a public servant and the head of Health Department in the district, obtained illegal gratification other than legal remuneration by corrupt means. 2. The details of the prosecution case are as follows : One Maruti (PW-8), a labourer, while serving as the Head Moulder in Bharat Cement Pipes Company, Shiroli met with an accident, in which he lost his right hand thumb and index finger resulting into permanent disability. The factory owner, Deelip Lagade (PW-9) had got Maruti admitted to the hospital of Dr. Shahapurkar (PW-7) on the same day. In the hospital, Maruti was treated by Dr. S.D. Khot, an expert (PW-5). Dr. Khot had issued certificate (Exhibit 27) dated 6th May 1986 to Maruti certifying that Maruti had suffered permanent disability to the extent of 30%. One Sudama (PW-2, the complainant) cousin brother of Maruti, who was at the relevant time serving in * 3 * Cri.Appeal. 276.1991 8.2.2011 Central Police Force had been to village Ninche to see Maruti. Both Maruti and Sudama felt that the correct extent of permanent disability of Maruti was of 40%. Therefore, on 6th June 1986, both met the respondent at his bungalow and showed him the certificate issued by Dr. Khot. The first response of the respondent to the certificate was that it showed inflated disability of 30% and that the actual disability was of only 5%. The respondent, however, assured to issue certificate of 40% disability for payment of sum of Rs.600/-. He asked Sudama to come with the money on 13th June, 1986. But, Maruti was unable to collect that amount by 13th June, 1986. He could get the amount by borrowing from one Jagannath (P.W.6) on 18th June, 1986. On very day Sudama and Maruti went to CPR Hospital. Sudama asked Maruti to wait near the hospital and he himself reached the office of Anti-Corruption Bureau and lodged the complaint at Exhibit-6 with P.I. Mandlik (P.W.17). He produced the Medical Certificate at Exhibit-27 issued by Dr. Khot to Maruti. 3. After recording the complaint, P.W.17 made all the arrangements for laying a trap. He collected 2 panch witnesses, * 4 * Cri.Appeal. 276.1991 8.2.2011 Sharad Tipugade (P.W.3) and one Satish Karekar and narrated the incident to them. He identified Sudama and prepared a plan to trap the respondent. The currency notes of Rs.600/- were marked by sprinkling with anthracene powder. The pre-trap panchanama (Exhibit-30) was prepared. After completing all the formalities and after giving suitable instructions to all the panchas and the complainant, the raiding party reached CPR Hospital. Sudama & P.W.3-panch, Tipugade also reached the hospital separately. They alongwith Maruti entered the residential premises of the respondent. Maruti and the raiding party remained outside. Sudama and panch, Tipugade entered the bungalow into a waiting room where 4 to 5 patients were waiting. The respondent was busy with examination of patients in his examination room. After all the patients left when Sudama and panch Tipugade were alone, they entered the patients examination room, where the respondent was sitting at his table. After the initial pleasantries, when Sudama handed over the disability certificate, the respondent demanded an amount of Rs.600/- from him. Sudama took out the amount with his right hand and kept the six marked currency notes of Rs. * 5 * Cri.Appeal. 276.1991 8.2.2011 100/- denomination on the table just in front of the respondent. Thereafter, the respondent wrote a fresh certificate (Exhibit-28) certifying 40% disability of Maruti and also modified the certificate issued by Dr. Khot (Exhibit-27) by altering the disability from 30% to 40%. He handed over both the certificates to Sudama who took them and left the room. Sudama handed over both the certificates to Maruti and gave the predetermined signal to the waiting raiding party. 4. In the meantime, panch-Tipugade who was posing as P.B. Kamble feigned stomach ache. The respondent therefore examined him. When he was writing the case papers for panch Tipugade, the raiding party came inside. P.I. Mandlik (P.W.17) disclosed his identity to the respondent and seized from the table of the respondent, marked currency notes (Exhibit-31) and the stamp pad. He also seized a currency note of Rs. 50/- denomination from one of the case-papers on the table. Then post-trap panchanama (Exhibit-32) was prepared in the presence of panchas. Thereafter on completing all the necessary formalities P.W.17 lodged a detailed report with Lakshmipuri Police Station vide Exhibit-77 and FIR came to be registered * 6 * Cri.Appeal. 276.1991 8.2.2011 vide Crime no.82 of 1986. 5. During the investigation, it was found that the respondent habitually accepts illegal gratification for issuing various certificates. Therefore, the statements of P.W. 10 Sou. Anusaya Shankar Patil, P.W. 11 Shri. Ganpat Bhau Dange, P.W. 12 Shri. Ananda Ramchandra Sutar, P.W. 13 Shri. Nanasaheb Laxman Suryavanshi, P.W. 14 Shri. Shirish Rupchand Gandhi, and P.W. 15 Shivaji Parasu Jogi were recorded. There were further reports lodged by these persons against the respondent. After completion of the investigation, the papers were forwarded to D.C.P. Anti Corruption Bureau, Pune for obtaining necessary sanction from the Government of Maharashtra to prosecute the respondent. The sanction was received vide Exh. 35. 6. The prosecution examined in all 17 witnesses to bring home the guilt of the respondent. P.W.1 Shri. Gulab Husen Chandsaheb is the surveyor from the City Survey Office who had drawn the map of scene of offence. The map is at Exh. 23. P.W.2 is the complainant Shri. Sudam Narayan Kambale who had filed the complaint at Exh. 26. P.W. 3 Shri. Sharad Laxman Tipugade is a pancha of pre-trap panchanama at Exh. 30 and * 7 * Cri.Appeal. 276.1991 8.2.2011 trap panchanama at Exh. 32. He is also a panch for sealed articles at Exh. 33. P.W.4 and P.W. 5 are the government officers who were concerned with the sanction granted by the Government to prosecute the respondent. P.W.5 is Dr. Shivprasad Dattatraya Khot who had examined and operated upon Maruti Kambale, Shri. Jagannath Yallappa Kamble PW 6 is cousin brother of Sudama who had advanced loan of Rs.600/- to Sudama. P.W.7 Shri. Prakash Shripad Shahapurkar is the doctor in whose hospital Maruti was admitted and treated. P.W. 8 is Maruti himself. P.W. 9 is Dilip Shrikant Ladage, the employer of Maruti. P.W. 10 to P.W.15 are the other persons who had identical grievance against the respondent. P.W.17 is the Investigating Officer. Dr. Mule, Deputy Director of Health department for Kolhapur at the relevant time, was examined as the Court witness. 7. Respondent pleaded to be innocent to the charges. He claimed to have been falsely implicated in the case. According to him, the entire case was planned against him because of his rivalry with the then District Superintendent of Police and the doctors of CPR hospital. He alleged that the doctors of CPR * 8 * Cri.Appeal. 276.1991 8.2.2011 Hospital had made grievance in writing against him to the Chief Minister on 11th June, 1986. The enquiry report held that the respondent used to behave in rude and insulting manner with his doctor colleagues. According to respondent sanction was, therefore, accorded by the authority with prejudiced mind. 8. In the impugned judgment, the trial court framed seven points of determination. The first two points are about the respondent being a public servant and the validity of the sanction granted to prosecute him. For the reasons stated in the impugned order, the first two points were answered in the affirmative. In the absence of a challenge to these findings, the same must be accepted as proved. The last two points framed are formal in nature. The points for determination on merits of the case at serial no. 3, 4 and 5 read as follows : "3. Do the prosecution prove that the accused habitually accepted or obtained or agreed to accept or attempted to obtain for himself any gratification other than legal remuneration as a motive, or reward from different persons? 4. Do the prosecution prove that the accused by corrupt or illegal means abusing his position as a public servant obtained for himself a pecuniary advantage of Rs.600/- from complainant, Rs.100/- from Nanasaheb Suryawanshi * 9 * Cri.Appeal. 276.1991 8.2.2011 and Rs.1600/- from Shivaji Jogi? 5. Do the prosecution prove that the accused being a public servant obtained from complainant Sudam Rs.600/- Nanasaheb Suryawanshi Rs.100/- and Shivaji Jogi Rs. 1600/- for himself as a gratification other than legal remuneration as a motive or reward for doing an official act in exercise of his official functions?" All the three points came to be answered in the negative in the impugned judgment. With these findings, the trial court acquitted the respondent of the offences punishable under Section 161 Indian Penal Code and under Section 5(1)(a) and 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947. 9. The State challenges the impugned judgment and order contending inter-alia that the same is perverse in as much as the finding of fact is contrary to the evidence on record. It also contends that the entire judgment is based on mere conjectures and surmises. 10. Before entering into the arena of dispute, it will be convenient to take note of the undisputed facts of the case. Paragraph-12 of the impugned Judgment, records some of the facts as undisputed facts. The same read as under : "12......... It is not disputed that, PW 8 Maruti Kamble Exh. 45, is a brother of complainant Sudama PW 2. It is also not challenged that, said Maruti * 10 * Cri.Appeal. 276.1991 8.2.2011 Kamble was working as a Head Moulder in Bharat Cement Pipe Company owned by PW 9 Dilip Lagade and unfortunately met with an accident to 13-3-86 while discharging his duty. it is also no where disputed that, said Maruti lost his right hand thumb and the index finger was also damaged and turned disable, because of the fatal accident. It is admitted by both the sides that, immediately after the incident said Maruti Kamble was admitted to the hospital of P.W. 7 Dr. Shahapurkar and was treated by PW 5 Dr. Khot. It is an admitted fact that, Dr. Khot gave treatment to said Maruti vide case papers Exh. 37 to 40 and issued a certificate to Exh. 27 alleging 30% disability. The carbon copy of Exh. 27 is at Exh. 41 filed by Dr. Khot. There is no dispute that, in the hospital for Dr. Shahapurkar said Maruti took treatment and the case paper Exh. 44 is pertaining to the treatment given to said Maruti Kamble." The above facts remain undisputed event today. 11. Perusal of the record however shows that there are further facts which are not controverted by the respondent. They relate to the fact of the trap laid by Anti Corruption Bureau and recovery of marked currency notes of Rs.600/- from the table of the respondent during the trap. Response of the respondent to questions no. 44,51, 52, 54, 55, 58 to 61, 67 and 74 in his statement under section 313 of Code of Criminal Procedure supports these facts. The record shows that the respondent has in fact tried to explain the marked currency notes found on his * 11 * Cri.Appeal. 276.1991 8.2.2011 table by saying that the same were kept there by P.W.2 behind his back. Therefore, these facts can also be safely taken as admitted facts. 12. The dispute then remains about the demand of bribe made to P.W.2 earlier as well as on the date of the trap and actual acceptance of the money in fulfillment of the demand. The dispute is also about the statements in evidence by the other persons i.e. P.W.10 to P.W.15 in respect of the complaints lodged by them of similar incidents that had taken place earlier. In the circumstances, the only evidence that needs to be scrutinised in depth in the appeal is the evidence of Sudama (P.W.2) the complainant, P.W. 3 panch Tipugade and P.W.10 to P.W.15. 13. As regards the demands made earlier, the prosecution evidence consists of deposition of P.W.2 and P.W.8. The relevant portion of evidence of P.W.2 reads as under : "......... On 6.6.86 at noon, I went to a cabin where accused Dr. Chavan used to sit in a Government hospital. I was told there that the accused is at his bungalow and I can meet him there. I went to the bungalow and met with accused Dr. Chavan. I showed the certificate issued by Dr. Khot to accused doctor Chavan. After seeing the certificate of Dr. Khot the accused said that it is a case of 5%. The accused said that how Dr. Khot issued a certificate of 30%. I asked the accused that a thumb of my brother * 12 * Cri.Appeal. 276.1991 8.2.2011 is already cut and other finger is dead and therefore, how he should work. The accused Doctor said to me that I should give him Rs.600/- and he would issue a certificate of 40%. I said to Dr. Chavan that I am going to collect the amount. The accused asked me to come on 13th. Thereafter Dr. Chavan asked me where I am serving. I told him that I am serving in C.R.P." The only question on this evidence in the cross examination of the witness was whether the witness has stated in his complaint as well in his statement that on 6th June, 1986 he had first gone to Government Hospital and thereafter to the bungalow of the respondent. It was not even suggested to the witness that on 6th June, 1986 he and P.W.8 had not met the respondent and no talk as alleged had taken place. The above evidence of P.W.2 is fully corroborated by P.W.8. The cross-examination of P.W.8 was limited to giving suggestions that the respondent did not demand Rs.600/- from P.W.2 and he did not call them on 13th. Both the suggestions were stoutly denied. Thus the evidence of PW 2 and PW 8 establishes beyond reasonable doubt the demand made by the respondent on 6th June, 1986. This aspect is seen to be completely ignored by the trial court. 14. Coming to the evidence of the prosecution for the incident of trap on 16th June, 1986, the material witnesses are PW 2 and * 13 * Cri.Appeal. 276.1991 8.2.2011 PW 3. As already seen above, all the facts relating to laying of the trap are undisputed and the dispute is limited to what had transpired when PW 2 and PW 3 were with the respondent at the relevant time. Since the impugned judgment at some places observes that there is variance in the evidence of the two witnesses, it will be worthwhile to quote the relevant evidence. P.W. 2 Examination-in-chief : "I and Tipugade entered in the bungalow. We both entered in a room which is meant as a waiting room for the patients. There were 4-5 patients in that room. There is one room touching to this room for the examination of the patients. The accused Doctor was in patients examination room. After examination of the patients I and Tipugade entered in the room of patients. In that room the accused doctor was on a chair. We said Namaskar to the accused Doctor immediately entering in the room. The accused doctor demanded the certificate issued by Dr. Khot to me. The accused made enquiries from me about Tipugade. I said to the accused that he is in my relation. The accused asked me why I failed to see him on 13th. I said to the accused that today I came there. The accused enquired from me whether I brought the amount. The accused asked me about the quantum of amount brought by me. The accused doctor demanded the amount from me. The accused gone through the contents of the certificate issued by Dr. Khot. The accused asked me how much percent I required. I said to the accused that I want 40%. accused doctor demanded Rs.600/- from me. The accused said to me that I should pay Rs.600/- and he would issue a certificate of 40%. I took out Rs.600/- from my pocket with my right hand and kept them on the table of the accused. Thereafter the accused wrote one certificate stamped it and * 14 * Cri.Appeal. 276.1991 8.2.2011 thereafter signed it. Thereafter the accused wrote something on the certificate issued by Dr. Khot. The accused put his stamp and signed on the certificate issued by Dr. Khot. Exh. 28 is a certificate issued and signed by the accused. The accused put his seal and signature on the back side of Exh. 27. The accused handed over Exh. 27 and Exh. 28 certificates to me. While coming out along with two certificates the accused advised me to take zerox copies of both the certificates. Panch Tipugade remained in the room of the accused and I alone came outside." 15. In the cross examination after suggesting to the witness that there was no demand made by the respondent it was put to him that he had kept the amount on the table by entering in the room when the respondent was examining PW 3 and that it was kept there behind the back of the respondent. The suggestions were denied. Then an explanation was sought from him for not placing the money in the hands of the respondent. P.W.2 explained that the certificates of disability handed over by him were in the hands of the respondent and therefore, he kept the amount on table. P.W.-3 examination-in-chief : "........... I and the complainant went in the bungalow to the room assigned for examination of the patient. There was separate room of the accused to examine the patients. There was separate waiting room for the patients. There were 4-5 patients in that room. No patient came there, after us. After examination of the * 15 * Cri.Appeal. 276.1991 8.2.2011 patients I and the complainant entered in the room for examination of the patients. We both gave our regards to the accused. The accused was on the chair. We both stood in front of the table of the accused. The accused after seeing me asked the complainant who am I. The complainant said that I am his relative. The accused demanded the certificate from the complainant to see it. The complainant took out a certificate from the right side pocket of his pant and handed over it to the accused. The accused asked the complainant why he failed to visit him on 13th. The complainant said that he came today. The accused enquired from the complainant whether he brought the amount and how much he has brought. The complainant said that he has Rs.600/-. The accused said to the complainant to give. The complainant took out the currency notes of Rs.600/- with powder from his left side pocket with his right hand and kept the money on the table of the accused. The accused asked the complainant whether he had been with the patient on day before yesterday. The complainant replied in the affirmative. The accused asked the complainant how much percentage he required. The complainant said that he needs 40 per cent. The accused recorded his certificate on his own letter pad, stamped it and then signed on it. That certificate is at Exh. 28. Thereafter the accused wrote something on the certificate Exh. 27 and signed on it after putting his stamp. The back side of Exh. 27 bears the signature of the accused. The accused returned those two certificates to the complainant, who took them in his left hand. When the complainant was coming out from the room of examination of patients, the accused, instructed him to have a zerox copies of those certificates. The complainant went out of that room." P.W. 3 further deposed that then he told the respondent that he had stomach ache. The respondent therefore examined him. Thereafter when the respondent was at his table and PW3 was standing * 16 * Cri.Appeal. 276.1991 8.2.2011 near the table, the raiding party and the other panch entered the room. The cross examination of this witness is limited to giving suggestions that what he had stated was not correct. All such suggestions were denied by him. 16. The evidence of P.W.2 and P.W.3 quoted above exhibits consistency in almost every aspect. Both P.W.2 and P.W.3, on perusal of their evidence are seen to be trustworthy witnesses. There is nothing in their entire evidence to suggest that they are speaking falsehood. Both the witnesses have stated that they entered the examination room of the respondent together. At that time, the respondent was sitting at the table. He first demanded the certificate for disability from PW 2. Then he enquired about the quantity of the amount brought by PW 2. PW 2 told him that it was Rs.600/-. Respondent then demanded the money. The money was kept on the table by PW 2. Thereafter, the respondent modified the disability certificate issued by Dr. Khot and also issued a fresh disability certificate certifying permanent disability of P.W.8 as of 40%. The two certificates then were handed over by the respondent to P.W.2 after which PW 2 left the room. 17. Evaluation of the above record and evidence of the witnesses by * 17 * Cri.Appeal. 276.1991 8.2.2011 the learned trial Judge has resulted into his holding that the evidence of P.W.2 is not corroborated by P.W.3. According to him, the evidence of these two witnesses exhibits "material irregularities, improbabilities as well as unnatural behaviour". He found the prosecution case to be absurd and unbelievable and accepted the argument of the defence that the money was "planted" by P.W.2. The learned Judge is also seen to have drawn upon his general knowledge on how an educated person holding a high government post would behave. 18. The reason given by the trial Court for holding that the evidence of P.W.2 is not corroborated by the evidence of P.W.3 is that the sequences of a couple of statements made by the witnesses do not match. The trial court does not find any contradiction in terms or any glaring omission in the evidence of the two witnesses. What is disapproved is the lack of sequence in the statements. The sequence missed is also not in respect of any facts in issue. The first sequence missed is in respect of the enquiry by the respondent about the identity of PW 3 and the demand of the certificates of disability issued by Dr. Khot. As per the deposition of P.W.2, first the certificate was demanded and then enquiries about P.W.3 made, whereas, P.W.3 has stated that the enquiry about him was made first and then the * 18 * Cri.Appeal. 276.1991 8.2.2011 certificate demanded. The second difference in the sequence is about keeping of the marked currency notes demanded by the respondent on