1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 367/2001 Rajendra s/o Sitaram Kamble, Age : 35 years, Occu. Service, R/o Aurangabad ...Appellant. Versus The State of Maharashtra, through the Government Prosecutor, High Court of Bombay, Bench at Aurangabad. ...Respondent. Mr. N.S. Ghanekar, Advocate for appellant. Mr. S.G. Nandedkar, A.P.P. for respondent/State. WITH CRIMINAL APPEAL NO. 375/2001 Suresh s/o Ramchandra Jire, Age : 36 years, Occu. Servioce, R/o Aurangabad. ....Appellant. Versus The State of Maharashtra, through P.P. Office, Aurangabad. ..Respondent. Mr. Rajendra Deshmukh, Advocate for appellant. Mr. S.G. Nandedkar, A.P.P. for respondent/State. CORAM : A.V. NIRGUDE, J Date : 25th November, 2010. ORAL JUDGMENT:- 1 Both these appeals can be disposed of by this common judgment because both the appellants are 2 challenging the judgment and order dated 28/08/2001 passed by the learned Special Judge, Aurangabad in Special Case No. 12/1996 convicting the appellant in appeal No. 375/2001 (Original accused No.1, henceforth referred to as the accused No.1) under Section 13(1) (d) read with Section 13(2) of Prevention of Corruption Act, 1988 (henceforth referred to as the P.C. Act) and under Sections 353, 201 read with Section 511 of Indian Penal Code. The appellant in appeal No. 367/2001 the original accused No.2 (henceforth referred to as the accused No.2) was also convicted under Section 12 read over Section 7 of the P.C. Act. Both the appellants were sentenced to suffer various terms of imprisonments with fine with default clauses. 2 The case of the prosecution in short can be stated as under. 3 In 1995,the accused No.1 was a Police Head Constable attached to Begumpura Police Chowki, Aurangabad and the accused No.2 was working there as a Police constable. On 12th June, 1995 a theft case was registered with the accused No.1 and he started investigating the same. He started calling (the complainant) Pandharinath in connection with the theft case to his Police Chowki almost every day 3 after 12/06/1995. Pandharinath pleaded with the accused No.1 that he had not committed theft but in vain. His visits to the police chowki continued. On 30/06/1995, the accused No.1 demanded Rs.500/- from Pandharinath as bribe to leave him alone. Pandharinath then lodged a complaint with the A.C.B. and the A.C.B. laid a trap. As per the trap, on 1st July, 1995 at about 6.30 p.m. or so, the complainant Pandharinath and the shadow panch met the accused Nos. 1 and 2. Accused No.1 demanded the agreed sum of Rs.500/- as bribe to the complainant. The complainant took out the tainted currency notes and as per the direction of the accused No.1, handed them over to the accused No.2. The accused No.2 kept those currency notes folded in a piece of paper in a drawer. Soon thereafter the members of the raiding party rushed and apprehended the accused Nos. 1 and 2. While the members of the raiding party were completing the formalities of the raid and panchanama of the raid, suddenly the accused No.1 pounced on the Dy. S.P. of the A.C.B. and tried to snatch away from his hand the paper in which the tainted currency notes were wrapped. The other members of the raiding party intervened and soon over powered the accused No.1. In the scuffle, at least 4 three members of raiding party sustained minor injuries so also the accused Nos. 1 and 2. They also sustained minor injuries. After completion of the formalities of the raid, a formal complaint was filed by one of the members of the raiding party and the offence was registered against the accused Nos. 1 and 2. 4 As said above, accused Nos. 1 and 2 were convicted by the learned judge of the trial Court. 5 The prosecution recorded evidence of six witnesses. For the purpose of proving the trap, the depositions of prosecution witness No.1 the complainant and the prosecution witness No. 2 the shadow panch, are more pertinent. The complainant deposes that the accused No.1 demanded Rs.500/- as bribe from him on 30/06/1995 and then he made a complaint to the A.C.B.. He also stated as to how the trap was arranged with the currency notes smeared with anthracene powder. He then said that he and shadow panch went to the Begumpura Police chowki and found the accused No.2 present in the chowki. He said, he waited for the accused No.1 to come. He said, at about 6.00 or 6.30 p.m. the accused No.1 came to the chowki. He said, thereafter he and shadow panch went and sat in front of the 5 accused No.1. He said, the accused No.1 asked as to who the shadow panch was. To this, he said that he was his son. But the accused No.1 asked the shadow panch to leave the police chowki. Accordingly, he said, the shadow panch left the police chowki. He said, thereafter the accused Nos. 1 asked whether he had brought the agreed sum of Rs.500/- as bribe. To this, the complainant answered in affirmative. He said, the accused No.1 then asked him to hand over the amount to the accused No.2 who was sitting in the same room. He said, thereafter he went near the accused No.2, who took him away in a rear room of the chowki and asked him to hand over the amount. He said, accordingly he tried to hand over the tainted currency notes to the accused No.2. He said the Accused No.2 took a piece of paper and accepted the tainted currency notes on that piece of paper, without touching the notes. He said, the accused No.2 then folded the notes in the paper and kept it in a table drawer. He said, he thereafter came out and gave signal to the raiding party and the raiding party rushed in. 6 As regards this important aspect of the raid, the shadow panch had following narration. He said, when he and the complainant went inside the police chowki and sat 6 in front of the accused No.1, who asked him to go away. He said, accordingly he came out of the police chowki and stood in the door of the chowki so as to see what was going on inside the chowki. He admitted that he could not hear what was being spoken by the accused Nos. 1 and 2 and the complainant. All that he said that he saw that the complainant along with accused No.2 went towards the rear room of the chowki and thereafter he saw them coming out. He said that the accused No.2 then kept some folded papers in the drawer of the table. He said, thereafter the complainant came out and gave signal to the raiding party. 7 It is thus clear that the shadow panch could not get an opportunity to see and hear what had taken place between the accused and the complainant. He did not hear as to whether the accused No.1 enquired with the complainant as to whether the bribe amount was brought and he could not hear the complainant telling him that the arrangement was made for it and that he had brought the amount with him. He neither heard the accused No.1 asking the accused No.2 to accept the bribe from the complainant. He neither saw what happened between the complainant and the accused No.2 when they went inside the rear side 7 room of the chowki. He did not see that the accused No.2 held a paper in his hand and asked the complainant to place the currency notes on that paper and that the complainant did accordingly. All that he saw was that the accused No.2 kept folded certain papers in the drawer. No doubt, after the raiding party arrived, the folded papers and currency notes inside were found in the drawer. However, the shadow panch could not corroborate the narration of the complainant on material particulars. In view of the judgment of Supreme Court in case Pannalal Damodar Rathi Vs. State of Maharashtra reported in AIR 1979 Supreme Court, 1191 corroboration in a case like this in all material particulars of the prosecution case is necessary and if it is lacking, the accused would be entitled to the benefit of doubt. The Supreme Court in that judgment observed as under. “There could be no doubt that the evidence of the complainant should be corroborated in material particulars. After introduction of Section 165-A of the I.P.C. making the person who offers bribe guilty of abetment of bribery the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon”. 8 In view of this, both the accused Nos. 1 and 2 are entitled to acquittal of the offences punishable under the Prevention of Corruption Act. 8 The prosecution also alleged that while the raiding party were completing the formalities of the raid in the Police chowki in presence of the accused Nos. 1 and 2, the accused No.1 assaulted and try to snatch away the tainted currency notes from the hand of the Dy. S.P., A.C.B.. As regards this incident, all the prosecution witnesses except the prosecution witnesses No.1 and 5 supported the prosecution case. The prosecution witness No.4, the Dy. S.P. of A.C.B. Shri Shaikh, the prosecution witness No.3 Police Head Constable Dattu and prosecution witness No.6 P.S.I. More encore narrate as to how the accused No.1 initiated the assault. They stated that after the hands of the accused No.2 were checked with the ultraviolet lamp, he was asked to sit in a corner. So also, the accused No.1 was also asked to sit in a corner. Thereafter, they stated that, the prosecution witness No. 6 More enquired with the accused No. 2 as to where the amount was kept. To this, they said that the accused No.2 pointed out towards the table. They stated that in the first drawer of the table, the currency notes folded in a piece of paper were found. They stated that the paper and the currency notes were checked in ultraviolet lamp and found anthracene powder on them. They stated further that the notes then were given in charge of the prosecution witness No.4 Dy. S.P. Shaikh. No sooner he took the currency notes wrapped in the paper in his hand, they said, accused No.1 attacked the prosecution 9 witness No.4 and tried to snatch away the tainted currency notes wrapped in the paper but they stated that prosecution witness No.4 did not lose control over the currency notes which he held in his hand. In the mean time, they stated that the police constable including prosecution witness No.3 over powered the accused No.1. They also admitted that in the scuffle, the accused No.1 as well as the three constables sustained injury. They further admitted that after the formality of writing of panchanama was over, the Investigating officer prosecution witness No.6 arranged to send the accused Nos. 1 and the three constables including the prosecution witness No.3 to the Government hospital for treatment and medical certificates. After few days, it seems the medical certificates were received and they were sent with the charge sheet. However, it seems the prosecution was not keen to prove the medical certificates, before the Court. The case was pending from October, 1996 to August, 2001 and yet it seems, there was no attempt to call the medical officer for proving the medical certificates. Therefore, the Court is left with only oral evidence about the incident of assault and using criminal force etc.. In the defence, accused Nos. 1 and 2 tried to suggest that at about 7.00 p. m. on that day the accused No.1 was in the policy chowki and some unknown persons entered the chowki and assaulted him. Hearing his alarm, accused No.2 rushed to his help and he too was beaten up. They later on found out that the assailants were police officers of the Anti corruption bureau. I am not inclined to believe the case of the accused even on 10 probabilities. However, had the prosecution been keen to prove this later incident as against accused No.1 alone, they could have certainly proved the medical certificates, which could have supported and corroborated their case. In absence of the Medical evidence and the corroboration, I am not inclined to believe this part of the prosecution case and I am inclined to give benefit of doubt to the accused No.1. The appeals should therefore succeed. ORDER a) The appeals are allowed. b) The judgment and order passed by the learned Special Judge, Aurangabad in Special Case No. 12/1996 on 28/08/2001 stands set aside. c) Both the accused are acquitted. d) Their bail bonds are cancelled. e) The fine amount if deposited shall be refunded to the appellants. [A.V. NIRGUDE, J.] ts k/ok