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STATE OF MAHARASHTRA

NARSINGRAO GANGARAM PIMPLE

 October 27, 1984

Prevention of Corruption Act~S. 5(1) (a) and 5(2) and •· 161. of 1-P.C:- . Accused prosecuted/or demdndlng and accepting Illegal gratification..:CTrial Court

convicted and sentenced the accused~High Court a, cquitted the accused-Whether and when Supreme Court should interfere.

What ; hould be judicial .approaeh to ev.ldence of witnesses in a trap ca4e. _ ... ,

. . . The respondent,~· Sublnpeto~ of Police, \Vas charged under s. 161 , of . ihe Indian Penal Code and also under. SS. 5(1) (a) and 5(2) of the Prevention of

Corruption Act. .The prosecution case was that one Rego had filed a complaint D

. ainst his tenant Walawalker, that_ he:. was running a distillary. ·· On. a narch of Walawalker's house made by P.W .. 8 Gangure, a police officer subordinate. to. the respondent~ no trace Of distillary was found. The respondent", told . RcgC that sijl.ce.ihe complaiJlt made by him was prima_facie fou_nd to: be fillse

he waS liable to:be prosecuted under-the Bombay Prohibition Act. The nspon .. dent demanded froln Rege Rs. 2000 on9-4-1972 as aratification for not taking E

_a11yaction againt--him and rcpe8ted the same demand on 13-4:.1972. R, ege Was

directed to see the respondent nearabout thC poliCe-.statiOn at a .place calICd padavi. Rege out of despeation .. corit3.cted PW ll, M.S. haCnkar and.after narrating his story requested hirll to iay a trap in.order to catch the ccuscd, R.ege also gave 20 hun(fred-rupee notes _to PW 11-which _he proposed ·, to hand~ over to the accused-at the .. time of' the trap .. The raiding party. reached padavi , r.Ound iibout 7.c:>O P.M. and waited -for tho; respondent to come .. The respondent F appeared on tQe_scene- t about 8.30 P.M. and o~ seeing Reie. repeated hiS demand for the 3rd time, Rege gaye the mOney to tho repOndent. nits was watched by P.W. 11, P.W. 3 and soino others pf the raiding pacy. Thereafter Khamkar, PW 11, went into the room and tried fo hold the hands of the rcspon 4ent who had inad_e an attempt tb take-out the nte~ from the right sidC pOcket, - of hii pant but desi>fte this tbe re!pondon~.succeeded in throwing out t\le notes: As the moi:iey tlius passed'had, already' been treated With 8.ntbracbie powder, the

- .G handS and the fiSht side pocket of th~ Rccused were put before the ultra violet lamp and were found o bestaine'd wih-tbe said powder;

The trial court convicted and aentenced the respondent. under a:5(1)(ay and 5(2) of tho Prevention of Corruption Act. In appeal tho . High Court set .aside the conviction aria serit(lnces. imposed upon the respondent. HCnce this appeal J>y the State. The State argued that tliere was .. no real and meaningful <liscu•.sion of the important evidence produced by tbe prosecution in .•upport or

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SUPREMB COURT REPORTS (1984j I s.c.R.

frs cae and.the mgh, CoUft had mfely .Darrited-the !'Yiden~ without exaffiinina Hs intrinsic inerit and had sidetrac.ked an issue which was not at all germane for deciding this case. the respondent argued that the High Court having acquitted the accused. this Court should very rclrely interfere withthe judgment of the Hiah court and sh_otild do so only in cases where there was a grave error of law ot serious miscarriage of justice and that' too when the accused faced a trial for several years and had been reinstated and prompted as an Inspector.

Allowing tho appeal,

• HELD : The iudiment of the High Court suffers from serious and

sbstanti81 errors of Jaw-:3.nd Jegai infirmities. This is-one.of those farestof rare cases where this:Court would be failing'. in jts duty if it did not interfere .with the order of acquittal and set aside the judgment.of the High Court. on a full and complete discussion of the facts and circumstances of the case the Court. is of the opiniOn tbaf thC Charges against the respondent-accused have .. been .clca~JY proved and his acquittal by the High Court was wrong both on law and, on facts.· [644 E, FJ

.The resporident took .ao ingeq.ious though improbable defence that Rege attempted to thrust the notes intO his pocket in .the prcsencC of Khamkar but he pvea push and.the notes fell ori the ground; thereby he tried to explain the stains of.the.anthracine pow_der on.- his hands. While P.utting forward. this defence th~ respondent seems to have.forgotten that the notes bad. been taKen out of his pocket which was also .smeared with the powder 8.nd it is impo:ssible to

-'acept that an ordinary person like Regi;-wouJd have the ourage and audacity to forcibly thrust as many as 20 notes of rupees 100 denomi'n3tion each into the pockCt Of the resporident when he knew that the respoilden.t was a police officer armed with a revolver. It is difficult to believe that Rege Would take such a grave risk an.d do so in tbe presence of Khani.kar and others. The testimony of. two _indepcnd_ent witnesses and one clerk hClwever reveals a different story which fulJy corroborates the prosecution version.- (63.o D-FJ "'

The High Court seems to have devoted a major part of it$ judgmen~ tQ the varicius case diaries produced before the court in order to establish that the ae:(:used was n6t-pres\:nt at ihe police statio~ either on the 9th~. or -on the 13th April 1972 when the first .two demands were made. According .to the High . Court this gave a sufficint alibi to _the respondent fro~ which "it could be safety

inferred that if he was not present at the J?ohcc statiori, there.could :be' no ocassion for. hiin to make any demand for bribe from the cotDplainant. Assuming that.the'recitl.s .in.the said case diaries are adinissible (though there Is serious doubt about, it) yet it dOes not at all exclude the presence of the respondent at the Aoibarnaih police station_ on the 9th and 13th because iiC" Was not ent away to a pla'ce situated far from Bombay but .was in some other police station within a radius of a few miles only. Even if he Was deputed to. some other place he was in possession of a jeCp and he could visit the An1barnath police station for a few minutes on any of th'ese da(es.· Ii is well settled .that a.plea of alibi must be Pra:ved with certainty so as to completely exclude the possibility' of the presence Of the person concerned at the place of oc(furrcnce. Such,

hwevcr, is .no_t the case here. Therefofe,. the discussion of the cae diaries, which enpled a . substantial portfon of the Hiah Court judgment was really •n omefst lo futility. [632 D-GJ ·

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MAHAl\ASHTRA V. N.G, PIMPLE 623

We have 8:one-tbrOugh the ~tire evidence. led by the prosecution and~ in its opinion, the prosecuti_on cas~ was Fully proved because it has been supported by at least two indepnderi.t witnesses, v.iz., PW s 3 and 11 arid -to a great extent ~~~m .

This Court is' unable to be convinced by iny reason why the evidence of FWs 3 and 11 should be discarded parficularly. wheil neither of these wit-" nesSes bore any grudge or animus against the respondent nor was any such .suggestion made to any or" these witnesses. Certain mino~ contrad_ictions or inconsistencies have been Pointed out in the statements qf PWs 1 and 3 but-on. close examination they de) not appear to be material and, therefore, not suffi cient to throw_ out the prosecu.tion-case. pws 1 and 3 have fully supported.the prosecution case. [636 E-H] .

The High Curt was greatIY iprCssed by what it Calls a seriOus lacuna .in the prosecution casethat although both Rege ind Khamkar, along with"the

raidii:ig party, came to the Municipal. octroi Naka the first thing which Khamkar ciid was to ask Rege to stand outside (padavi)" where. the [aiding party was also present. The lfigh coUrt further held thafitfrom the evidence of Rege it appears that after ihe raiing party came.there. Kharnkar' caught hold, ofihe hands of the accused and took pim inside the r6orn. The High Court has come to this finding .on a complete mjsreading of he evidence of PWs 1. and ll overlo.cikillg and ignoring_ the logic<il sequerice of events starting from the morning of 14th April up to the time when the money pas.sed. [637D-638C] "

Th.i: High Court seems to have been under the impression that PW 1 was not_sµbjected to the ultia Violet lamp light test which in fact was done and.here -the I-Iigh Court again con1mitted .an .error of record. {638 DJ

The High Cou1l did. _not make any attempt to scari and appreciate the intdnsic merits of the evidence of PWs 1 and 3 as corroborated by PW 7, which . by itselfwi_ls sufficient to prove the prosecution case.regarding the acceptance

, and recovery of money, [638H-639A]

The High Court failed to consider" as to What motive could Rege have fo . 'faJsely implicate tl)t a_ccused when he had not conducted the search nor Was he

_, ircctl~ Connecte~.with the chagesheet which WaS going to-be_fiJed against hiµi.

Jndecd, the dominant question which the court should have put to itself-would l1a\'e-been a:s to why a cOmplaint under s. 89 of thEi Prohibition. Act ¥.'as not filed i:igainSt Rege even though the chargeSheet was ready. The evidence of G8.ftgurcl!', PW 8 shows that he wets ready to file the chargesheet but the.accused directed him not to do so until the receipt of further instructions from hiin. _ .Thai bing_ th~ position w_by did. the ac'?used asked Gangu; de to dely the filing of the c, hargcs'heet ? This qucstioii has neither befn answered by thC High Court nor by the accused. It Seems that tle approach made by the High Court_ lo- war.ds the prosecution has not been independent but one with a .tainted eye and . aµ. innate. prejudice .. Jn .fact, the High COurt appears tci have been sO lnuch prejudiced aga.inst the J)roseCution that it magnified evry ffiinor detail or omission to falsify or throw even a shadow of doubt on the prosecution evidence. This is -the very ante-thesis of a e<;>rrect judicial approa-; h-o the eviden.;; e ·

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SUPREME COURT REPORTS

(19S4) 1 S.C.R.

of witnesses in a-ti'ap ca~.' Indeed, if_such a harsh touchstOnc is prescribed tQ Prove a case-it Will be impossfble' for the prosecutioD to est3blish any case at

•!I. (639 D-F; 640H-641BJ .

The Hih Court reiected vi.ta! evideneeof PWs I, 3, 8 and II on frivolous grounds and it did not make any attempt -to di cuss 'their evidence on itltrinsic merits and the superficil manner. i,; which it has dealt with the evidence and circllnistances in order io demolish the prosecution caSe is Wholly unacceptable and leaves.much to be desired. (644 B-CJ ·

CRIMINAL APPELLATE JuR1soic'r10N : Criminal Appeal No. 127 of 1977

Appeal by Special Jeave from the Judgment and . Order dated the 22nd/23rd ian., 1976 of the Bombay High Court in Criminal

Appeal No. I 02 of !974. . • •

O.P. Rana, and M. N.Shrff, for the Appe1/oirt.

 S.B.Bhasme,

0 Rom Jethmolani, and V.N; Ganpule, for .the. ·.Respondent. • ~

The Judgment of the Court was. delivered by

FAZAt ALI,' .i. This appeal by special leave is directe\I against a judgment dated 22/i3rd, January 1976 of (he <Bombay High Court . acquitting the respondent of the charges framed against him under s.161 Indian Pert.al Code and also under s.5(1) (a) and. 5(2) of. the Prevention of Corruption Act (hereinafter referred to as the 'Act').

The trial court after very detailed consideration of theevidence held that the charges under the aforesaid sections had been fully proved and the respondent-accused was accordingly sentenced to u11dergo two years rigorous imprisonment under. s.5(1) (a) and 5(2). of the Act and a fine of Rs. 2000 was also imposed and in . default of pay~

ment of fine further six month R.I. was imposed. The High Court . in appeal disagreed . with the cone] usion of the trial court allowed the

appeal oft.he accused, and set aside the convictiOn and sentences imposed on him.

We have heard Mr. Jethmalani, ·.counsel for 'the respondent-· accused and Mr. Rana for the appellant and . have gone through the_, entire evidence and the Judgment of the High Court.. '

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MAHARASHTRA v. N.G. PIMPLE (Fazal Ali, J.) 625

This seems to. be a very strange case where. truth has been SO much polluted that falsehood has taken.its 'place and truth buried under deep debris. This.has been. possible by a clever polic.e officer. like the respondent, who tried to kill two bird.s with one stone, being . _)-. seized of an opportu

0nity_ which .. came to him through a . complaint . filed by Pandharinath Shivram Rege ·(hereinafter. :_referred to as 'Rege')against his tehant.Govind Shantaran Wal!Lwalkar (for short, to be referred to as 'Walawalkar') to the effect that. the complaint

suspeced tha.t his tenant, Walawalkar, was running a distillary .. On a report by the police that on , searching the' premises no . trace of

•. distillary was found, presumably an infere,1ce could be drawn that the said complaint was false, though the said complaint was yet to be tested in a court of law in a pr0seution under s.89 of the Bombay Prohibition Act (for facillity, to bi\ referred to as 'Prohibition Act'); The police report -obviously made Rege .extermely" nervous for fear

of impending prosecution. Rege, as his background would show, was not an ordinary man in the street but a highly educated person who had got a M.Sc. degree and retired as a s_enio.r chemist before . settling down in his own -house called Prapanch, Therefore,, being

a respectabie person be attirally get perturbed by the adverse police report.: It was here that 'the acctised, having got an opportunity of his life through his dice, by aningenious device invit.ed the complain- ' ant to offer him bribe by.putting him in a tight corner on the one . hand; and in an inextricable _dilemma on the other.

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To begin with, the respondent-accused sensing the nervousness Rege staried by" showing huinan sympathy that no harm would come - 'to hitri.

Finding that he had cough! Rege in the net, he took undue J!:dvantage of Rege's helplessness and frustration and played his game by gradually making an offer to extricate him (Rege) if he could pay him a suni of Rs,. 2,000. .The demand was repeated and poor Rege found himself bween the d'evil and the 'deep sea. These repeated . '1 demands of the respondent drove Rege into desperation which took him to PW 11, M.S. Khamkar, to whom he narrated his st<ify _and - . requested him to lay a trap in order to catch the accused.

Here; before narrating the facts, we might:tnention a few words about the nature of the approach made by. the High Court. Far from probing into the truth and heart of the matter the learned Judge , appears to have readily accepted the visibly ·attractive argument of the counsel for the Respondent. that by foisting a false charge of bribery on the rsp'ondent the coml'lainant displayed a cliabolica! ·

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SUPREME COURT REPORTS [1984] I s.c.R.

character in rendering the step taken by the police against Walawalkar nugatory and stal.led any further action.

This argument was reiterated before us by the counsel with all the force at his command but on.closer examination, in our opinion, thl: argument is completely witout substance. The learned Judge seems to have over- •·\~ looked two importjnt.circumstances which completely negative the reasoning given by" him. Jn the first place, assuming that the aUe- .l gation of bribery made by the complainant against the respondent . was false, how could it stop any action on the complainL which was being looked after and investigated by PW 8 Gangurde who categori- : cally states that he had prephred the chargesheet (Ex.66) on 11.(72 and sought permission from dte accused to take Rege to the court in order to present !he chargesheet but the accused directec! him not not to preceed with the chargesheet and' asked him not to file t!te . . " same untilfurther orders from him: Therefore, it was. the accused who had stalled the prosecution of Rege.

In this connection Gangurde $lated as follows : . · ·

"On 13.4. 72 I again approached the accused and asked him whether the charge-sheet against ·. Rege should . be forwarded to the court. . He 'told me that there was no hurry about it and thai I should keep those papers with me .. He further told me that I should keep those papers till.he instructed:".

• It maythus be noticed that by the time Gangrude wanted to file the charge; heet the first demand for bribery had already been made on 9.4.72 and the second dcmad was yet .to be made on )3.4~72 which clearly shows that there was some "method in the madness'.' on the part of .the respondent in directing his subordinate to withhold submission of the. chargesheet util. further instruction from Ji

hi~ or there .was some hidden. oecn:it which compefled the iiccused to. give.such a direction. And.by a process of elimination it would appear that the only consideration which inspired the accused to take such.an' extraordinary step was to wait until he was able to get the money demanded so that after receiving the money he would get the matter dropped. Thi! inforence is fully supported by the state- ·) . ment of PW l who has stated. in categorical terms that on orie occasion he was assured by the accused that he would sec that Rege : would be acquitted and even on the 14th . when the . demand' .wa& • '- firially m'ade the accused had assured him in the following words:

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. MAHARASHTRA V, N.G. P1MrLE (Faia/A/i, J.) . 627

"You should not worry, I am arranging for the with•· drawal of that case, arid that I should not harbour any worry on that count.

I said _that he should see to it."

)---r. . There would therefore be no other earthly reason why the respondent should have kept the chargesheet pending even though it was ready.

Furthermore, the. possibility that the allegations made

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' by Rege against. his tenant may have been true cannot be rea§onably ' excluded because the complainant categorically states that . he used to get smell of liquor and_ see lot _of people. going and coming into.

Walawalkar's house. It may be that Walawalkar having got sense of the matter, as he lived i, n the .same place, removed all the traces_ of the distillary before the police could reach the premises. Aftet 'an the compfaint filed by Walawalkar against Rege had yet to stand

the test of judicial scrutiny and remained in the domain of only an allegation n the basis of which a charge sheei was to be submitted to the .Court.· Thi<· inference is fully fortified, reinforced and rendered ve; y probable by the subsequent conduct of Wala.walkar who knowing full well that the complaint filed against him by Rege was false and baseless which seriously and adversely harmed his reputation and the police contemplated to take action .under section 89 of the Prohibition Act at his instqnce agains(Rege,

he kept quiet and made no aitempt.whatsoever to pursue his complaint or take proceeding nnder section 182 I.P.C. or for that matter file a snit for malicious prosecution: against Rege.

In view of such a meaningful silence on the part of Walawalkar a fair possibility of the allegation made by Rege against Walawalkar may have been afterall true, could not reas.onably be excluded. This, therefore, completely knocks the _bottom out _of the reasoning adopted by the Judge and the argunient pui forward by Counsel.

Further, it is not understandable why the accused after being infermed that the charge-sheet of Rege was ready to be submitted, > directed Gangurde, Ws subordinate. officer, to let it lie over until further instructions. TWs is, therefore, something more than meet's the

eye and provides an intrinsic, nay, a conclus_ive proof of the fctum . of the demand of bribe from Rege ai:td infereniially suggests that _the accused wished to wait until his demand was complied with by Rege in which case the proceeding against Rege might be dropped.

This is fully corroborrated by the evidence of Rege w(lo states that after the two demands on 9th & 13th April 1972, .even on 14.4'72 , the accused ass_urefl Rege that he would be acquitted. The fact,·

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628' SUPREME COuRT REPORTS

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however, remains that the chrge shtet to be submitted against Rege • was put in a cold storage, vanished into . thin air and was never revived thereafter, which still remains ari unsolved m'ystery. Jn these circumstances to dub the complainant as a person of a. dubious or a diabqliCal character as :he. H!gh Cqu:t has clone .i; as most.' urifor- .... \,. tunate and .amounted to, mfitctmgon.h1m,"an unkmd cut mdeed.".

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The story of this dextrous drama staged by the respondent ith complete adroitness and alacrity begins wit)1 . a .complaint filed by Rege on the 25th of March 1972 at police station Ambarnath at 8.30 am. under the Prohibition Act. ·. Before the complaint was reduced .. in Writing Rege had narrated the facts to . the . respondent. who had .

asked liim to give a written complaint. On tlie basis of the complaint, PW 8, Gangurde carri.ed out a search after.· prepadng a pancbnama and re.ported that. nothing was found in the house cif Walawalkar connecting him with the offence under s'.89 of the Prohibition Act.

On 4.4.72 Rege was sent for and in pursuance of the call from the police station )le'reached'there by about 8;30 a, in. where Gangurde was present but the accused was not there. Being fotally unaware. of the i.ngenious plan of .the responent, :Gangurde told Rege that.a case. under the Prohibition Act had been registered agai.nst hi'll and be was. to be prosecuted; arrested and couid be released ori bail on · furnishing a surety.

Rege. se'nt for PW 4, dr.V.'B. Sardar, to. stand . surety for him so that he could be released on bail. Before Dr. Sardar . . ' . came to the police station,.the accused, who had reached the police station by that time, impressed upon Rege that .since he had given a false complaint against Walawalkarwho was a. respectable man, a case had been registered against him. This seems to be the first' step taken the accued for spreading the het in order to catch his prey.

Oil 9.4.72 while Rege bad gone to play tennis .he. was · .summoned to the police station where he, ac.companied by. Sukh- .4 tankilr, reached at about 8.00 p.m. and saw the accused there. The . accusd then took Rege on the roaq and told hi~ that if he could pay Rs• 2o00 to him . h~ would see that he (Rege) was acquitted. It might be noticed here that PW 8 Gangurde has clearly .stated that he . had made a search of Walawalkar's house on 25.3.72 and recorded his statement on 28.3.72 on which date a case was regist.cred. against Rege under the oral orders cif the respondent .. The witness further . goes on to state that he had already pFepared the chargesheet against

Rege and even after the complai_nant was sent for to come to.the

MAliARA; HTR,< i>. N.o. PiMPLE (Fazal All, J.) 629 ·.

police station and released on bail no chargesheet was subm.itted.

Gangurde states that the charge sheet was prepared on 1.1.4. 72 but as he wanted a clearance from. the respondent for submitting the " ... charge-sheet h~ was told th.at there. was no hurry and that the.· ... . _/ papers . should be kept with hini till further . instructi.; ms. No

). ..

explanation has been giveri by the respondent .for staying .the sub- . missipn of tbe chargeshet after it was fully ready in a case whic)l

ought tci have been put up before. the court immediately. This important factor intrinsically supports the case of Rege that the respondent Was holding up the chargesheet in order to make his drama complete -. by obtaining the.money demanded from him as illegal gratification: It is obvious that the respondent wanted to keep Rege within bis . control and allow the sword of damoclesto hang over him until the . . deal was completely finalised.

, focidentally, we might mention that this .circums.tance completely . demolishes the argulDet of t:Ciunsel for the respondent that having filed a false complaint and having made a false representation io Kham.kar that the accused was damanding bribe and that a trap should be laid, t.he complainant succeded in sl!elving the cbargesheet from .being filed. In vjew of the aforesaid admited circumstances,"

the argument cannot be acceptd even for a: moment. In 'fact, t'his argument as made the sheet anchor of the defence of the repondent, . hut we feel that so splendidly was the defence set up that even the experienced judicial .eye of th~ learned High Court Judge was. unable .

- - . . to pierce or. penetrate, through the smokescreen . thrown by tl!e respondent (to concear his guilt) to . discover the bright star or the truth concealed behind the darkness of the smoke.

The trial court was wise enough to see through the game and refused to. be d11ped by . the visibly charming and beautifol picture of falsehood and convicted hi.m of the charges as indicated above. ·

Jn fact, one of the fundamental argumentsthat have been

adva11ced before us by Mr. Rani, counsel for the State, is that there Gis no.real_ and .Illeaninegful discussion of the impoitant evidence produced by the prosecution in support of its. case and the High .

Court . has . merely narrated the evidence without examining. its intrinsic merit and has sidetracked an issue which was not at all germane for deciding this case -an aspect with which we shall deal H with a little later, ·. ·

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630 SUPREME COURT llBPOR TS · 1i984l 1 s.c.lt

Coming back now. to the sequence of events the prosecution case- . was that after the first demand was made on 9.4. 72 and repeated on

 13.4.72, Rege was directed to see the respondent ilearabout the police station at a place -called padavi. Rege then approaced PW .1.1 . Khamkar for laying a trap, and gave twenty I 00 rupee notes to _PW 11

which he proposed to hand0ver to the accused at .the time of the trap.

The raiding party reached padavi. round about 7.00 p.m. and waited for the respondent to come who appeared on the scene at about 8.30 p.m. and on seeing Rege. repeated his demand for the 3rd time and after the money had been given to the accused, PW 11, PW 3 and some ot!ters of the raiding party watched the same.

Thereafter Khamkar went into the room and tried to hold the hands of the respondent who had made .an attempt to. take out the notes "from the right side pocket of his pant but despite this the respondent succeded iri throwing oµt the notes. As the moriey thus passed had already been treated with anthracine powder, the. hands and the right' side pocket of the accused were put before the ultraviolet lamp and were found to be stained with the said powder .. The respondent took an ingenious though improbable defene .that Rege attempted to thrust the notes into his pocket in the presence of Khamkar btit he gave a push and • the notes fell on the ground; thereby be tried to explain the stains of." the anthracine powderon his hands. While putting forward this defence the respondent seems to have forgotten that the. notes had been taken out ofhis pocket which was also smered with the powder and it is impossible to accept that .. ati ordinary person like Rege would bave the courage and audacity to forcibly thrust as many as twenty notes of Rs. JOO de.nomination each into the pocket of the respondent when he knew that the respondent was a police officer armed with a revolver., . It is difficult to believe that Rege would take such a grave risk and do so in the presence of Khamkar and others •. . The testimony of two independent witnesses and one clerk. however.· reveals a different story which fully corroborates the prosecution version . . . . .

PW-3 who was in no way connected with the police .and.was drawn from the zila parishad where he was working 11s a stati.stical officer had no axe to grind against the respondent so as to give false e.vidence to implicate him, As. previously. arranged,· Rant, PW 3, witnessed the entire inCident from a distance of a few feet as he was . sta.nding very near to the place where the van was parked. This witness fully supports the prosecution case and states that Rege took out the wad of notes from his . pocket and the accused took those

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' . ; )

MAllARASllTRA v. N.G. Pl!APtiE (Fazal Ali, J.) 63i . ' notes in his righlihand and put them in his.right hand side pqcket of his pant. Immediately thereafter Rege made the· settled signal by tl!king out his spectacles and trying to wipe the saine. On seeing. this signal Khamkar and other members of the party a, rrived there.

Kbamkar then . disclosed his identity as an . Inspector of the. Anti Corruption Branch and a panchnama (Ex.51) was immediately. made ..

We have gone through .his entire cross-examination and we are . unable to find any material discrepancy to 'discredit bis evidence.

The only circumstance which seenis to have been taken against him

is that about two years before the_ occurrence he was an accused ina maramari case which was ultimately compromised. Merely on this account he could not be "held to be. an unreliable or ii.competent witness.

Shorn of minor contradictions or omissons, the evidence of this witness appears to contain a tinge.· of truth. Even PW-7, K.A.

Patil, of the octoroi Department who was present _in the room, has testified that the aceused had taken out the notes from his

0 pocket and then tried to throw them dowti, In this connection his statement may be extracted thus : . ·

"It also happen that accused took out the currency .. notes from bis right side P.ant pocket and threw it down.

It is not true that I made the first. statement on account of pressure from the accused."

" It is true that the statement was made after the public prosecutor was permitted to cross-examine the witness although he was not declared _hostile but that does not in apy way belie or weaken his evidence.

He was present at the Naka where the money was paid . and was, therefore, fully competent to depose to what he.had actually seen. There is nothing to show from his cross-examination that he made no such statement in the earlier stages of investigation when ke was examined by the Invesiigating Officer.

Apart from this there is the evidence of PW IJ, M.S. Khamkar an Inspector of police in the. Anti-corruption Department. Ther; . is no evidence to show that he bore. any animus against the respodent.

He was_subjected to a very searching cross-examination _but nothing. of any vital importance seems tO have be.en elicited from him so as to throw doubt n bis testimony .. In the sessions court some

Insinuations were made in the course of cross-examination but in. · the High Court and before this (; burt learned defence counsel expressly abandoned the insinuations.

• ..

632 SUPiU!Mil ·.COtiRT REPORTS t1984J 1 s.c.ll .

 T)l.e frontal attack 111, ade by th.e learned counsel for the respon dent against the prosecution was tliat all the members .of the raiding party were subjeted to the anthracine powder test in the glow .0f the bulb.which must have taken about 10·15 minutes and yet e star witness, viz., the complainant, did not say anything about this <jemoµstrati6n which was held by PW II, Khamkar. That circums- tance even if it be true is not, lri our opinion, sufficient to throw the prosecution out of court,· So far as Rege is concerned. his test had alfeady been taken earlier and therefore he was not intere.sted in a secpnd test which. was ta((en. to exclude (he possibility of inter pofation. llence, if he did not see or remember the demonstraiion at'

the Naka tl\at by itself Will not be a circumstance to discredit his entire testimony particularly when it has been .corroborated by two independent witnesses; viz., PW 3, 11 and also by PW 7 ...

The High .court seems to have devoted a major part of its judgment to the various case• diaries produced before the court in . order to esfablish that the accused was not present af the polic~ station either on the 9th or on the 13th ofAp.ril 1972 when the firsi two demands wer~ made. According to the .fligh Court this gave a sufficient alibi to the respondent from, which it . could be safely. inferred that if he was not present at the police station, there• could be no.occasion for hirn to make any dell!and for bribe from the complainant. Assuming that the recitals in the said case diaries are.· admissible (though.we have serius doubts about it) yet it does.not .at all exclude the presence of the respondent .at ihe Ambarna(h police station on Hie 9th.and 13th because be was not sent away to a

placesituated far from Bombay but was in some either police station within a radius of a few miles only. Even if he was deputed to .. some other place he was in possession of a jeep and he could visit . the Ainbarnath police .station for a few minutes on any of these dates. It is )Veil .settled that a . plea of alibi. m.ust be. proved with .. absolute. certainty so as to completely. exciude the possibility of the presence of the person concerned at the place of occurrence. Such; however, iS not the case here. Therefore, the .discussion of the case diaries, which engaged a substantial portion of the High Court judgment was really an exercise in futility.

 This bri.ngs us to certai~ ·.circumstances, evidence and reasons relied on by the High Court to reject' the prosecution case and reverse the order of conviction pass¢ by the tfial court. ·

~.

. '

. ,';----p ;) .

. . MAHAll.ASHtRA \>. N.G. PIMPLE (Pazal Ali, J.) 693 . . .

Before approaching this problem, een at the risk of repetition, we might give a brief resume of the interesting drama starting from t\le demand of illegal gratification by the accused and endin& with the passing of money and his subsequent arrest. The prosecution case is that Rege had filed a complaint" against his: tenant, Walawalkar, and the same was prima facie .found to befalse because on a search of Walawalkar'.s house no trace of distillary was found.

According to the prosecution, this furnished the ilil.f\lediate. motive and the golden opportunity for the respondent.to demand money as•. illegal gratification from the complainant.

While the investigation of the complaint was pending the respondent on .9.4:72 mada a demand of Rs. 2o00 from. Rege to shelve the case. This . demand was repeated.on 13.4.72 and ultimately the complaiant had agreed to pay him R:s. 2000. as bribe. Ii was settled that .the respondent was. ,10 receive the money at Ainbarirnth police station nearabout 7 .30 . p iii. on 14.4:72.

Being fed up with the persistent demands of the accused .and

.I) the impending prosecution unders. 89 of the Prohibition. Act the complainant solicited the help of PW .11; Kbamkar and narrated rhe entire incident to him After hearing tile story of the complainant, Khamkar rang up Desbmukh, DSP, Anti corruption Branch., Bombay, . but as he was out he himself recorded the complaint of Rege. which E is Ex. 44 and sent a letter to District llealth Officer to depute two . persons from his office for the purpose of actfo.g as paiiches. Kham- . kar then. prepared an app.lication, addressed it to :the concerned

authorities for obtaining sanction to . investi.gate the matter .. 'file .. sanction was accorded after the Magistrate ha<I interrogated Rege,

PW .l l, Khamkar then returned to his office and found two .persons,

.. F viz. Raut (PW3) and Karve, :who had been. sentto him from the Zila Parishad office .. He introduced Rege to the panches and asked him to narrate his story which he. did.· Thereafter search of Rege

was taken in the presence ofthe panches and. besides' many othe.r articles; which are not . necessary .to be detailed, a sum of Rs. 2000 G was found from the prson .of Rege and the numbers of the notes were noted in the panchnama.

PW l l then handed over . th~ notes .to constable Wagti an"d directed him to hold demonstration as to how those notes would appear in the. usual light.· and in ultrviolet . lamp light after ihe notes are treated with anthracin•; powder. . The H constable performed .the said process and thereafter Rege was directed to 'put those notes in the left pocket of his pant. . The bottle containing the anthracitie powder was then sealed in order to obliterate

StJPl\EMil COURT REPORTS

(1984) 1 S.c:i.:

the traces of the said powder. PW I I as also . the panch witnesses were then subjected _to the same process before proceeding to .the Ambarnath octroi Naka near the poiice station to which the accused was attac\led as sub-inspector. It was also settled that while Ra.ut . wimld constantly remain with Rege to witness the talk and the

passing of the money, the complainant would take out his spectacles and make a show'to wipe out his glasses which would. amount to a signal , for the raiding .party that .the money had been accepted by the acicused and they may at once reach the spot.. The panchnama con- tairiing all these facts was completed and signed by the . panches and cduntersigncd by the .witnesses. This seems to be the fi, rst and the preparatory stage to lay the trap.

The rai_ding party was directed to take a train bound foi Ambarnath and _get down there at about 6.35 p.m becanse the complainant had informed Khanikar that the accused was .not likely to. come to 'the police station before 7.00 p.m. The second stage. consists of the arrival' of the ra.iding party near the said police station and.waiting there upto 7.00 p.m: At that time Rege a'lld Rauf proceeded towards Tilak Road and after passing through the railway crossing kept waiting at'a convenient place at a distance of 40•50 ft. from the gate. PW 11, Khamkar and other members of the raiding party waited at the inner side . of the railway corner gate near

the railway track. -PW ! I further directed two constables of the raiding party to wait near the Canara restaurat which was just in front of the octroi Naka towards _the east.

" • The third stage starts with the arrival of. the police van from the side of Wimco Road, carryi'ng the accused, which halted near the octroi Naka al about 8.40 p.m. There were no constables inthe van and the only occupants appeared to be the accused himSelf anil the driver of ihe van. After getting down from the van the accused came to the 1\ aka and sat on the chair in the padavi (veralldah). ·

G . . The last stage_ of th~ show staffs when Rege and , Raut, who was introducedto the accused as one of his relations, approached • the accused who asked them to sit on the two stools on. the right side of the cbair occupied by the. accused. He funher requested

).I_ Raut to find out the whereabouts of the driver of the van;. obviously H because he did not want that Rant should hear any talk between . Rege and himself.· Raut thereafter went towards the van but stood i . in. an angular fashion towards the accused and Rege so that he •

• ).

- - ., J

MAHARASHTRA v. N.G. PIMPLE;(Faza/ All.' J.) , l)3:5 . could see what was happening there.

The accused inade a gesture by putting his right palm and twisting his finger, indicating thereby that he was demanding the money.· Thereupon Rege took outtbe currency.notes from the left pocket of bis pan( and .gave them to the accused, who after taking-the amount inserted lhe same in the fight side pocket of bis pant. Immediately thereafter. ege gave. the prearranged signal by taking .out bis spectacles ahd wiping the same with his handkerchief. On seeing tbe'signal, PW II, pancbes and. other members of the r'!iding party rushed to the verandah of the Municipal octroi Naka where PW 11 disclosed bis identity at which the accused rose up from. the chair and wanted to move about but be was caught hold of bis wrist. PW fl then informed him that. since be bad-accepted the bribe from Rege be wanted .to test bis hnds and clothes to ascertain whether traces of anthracine powder were there or not. Meanwhile he asked Rege to wait aside who went at the corner of the padavi. We might state here .that a mountain of a mole hill appears to have been made by the learned, High Court Judge of the factum of Rege being sent out to the padavi instead of remaining there or .in the room where the accused was taken. There- . after, the band and clothes of the accused were put in the light of the ultraviolet lamp which revealed traces of' anthracine powder on the handkerchief, the palm of bis hands, on . the right side of his pant and a portion of the busbcoat overlapplngon the right side of his pant. PW 11 then asked the accused' to produce -the money which he bad just accepted as bribe.

At the request of th~ accused -he was taken to the room of.the Naka where lie agreed to produce the money. On eniering the room, however, the accused took .out the wad of notes from his.right pocket and threw 'them down on the ground.

PW 11 state~ that.a Naka clerk was sitting in the room and be may b; lVe seen the throwing down of the notes .by. the accused.

Manifestly, the accused threw down the note_s in ordei to make .out a defence that the notes were forcibly foisted on him which be resi sted and in that process threw the notes on tbe . ground. without allowing the .ntes to enter bis pocket . and which also is his niain

defnce i_n this case. Thereafter, the usual formalities of preparation of pancbnama, etc., were co.mpleted. It may also be.· mentioned that the. accused was armed with one country made two-.barrel pistol as also a service pistol which were also recovered from him. Arter all this ba4 bappen., d, Rege was summoned and on his search all the articles which had been recovered during the day in the presence of PW _I l were recovered, except the notes of Rs. 2000 which had ben passed on to. the acoused. PW 11 then recorded bis complaint ad

636 i1984i I s.c.R.. ·

forwa:tded it to the Ambarnath police station. Statem.ents of PWs Ganguide, tlaut, Rege and Karve were recorded by PW 11 and a challan was pesented before the court aftet obtai.ning the necess.ary ·

sanction.

This in. brief constituted.the various stages of the occurrence starting from the demand of bribe to the payment of the. same and . recovery r; om the. person of the respondent-accused. In order to . understand. the sum and substance of.the prosecution case the same Diay be divided into four parts. - II) the. origin and genesis, (2) the • · first demand made by ihe. respondent on the 9ih, (3) tbe second demand made by the accused on the 13th, and ( 4) the passing of t!te money and it~ acceptance . by the accused and the incidents followhig . • .

We have gone through the entjre evide!lce. led by the prose- ·. .cution and, in our opinion,· the prosecution case was fully proved because it has been supported by at.least two independent witnesses,. .. vi~.,.PWs 3 and 11 and to a great extent by PW 7.

Mr. llhisme, who was followed by Mr. Jethmalani addressed the. mairi arguments,.· tried to support the judgment. on .various grouds but we are unable to be convinced by any reason why the . evidence of PWs 3 and 11 should be discarded particularly when ·

neither of these witnesses .ho.re any grudge or animus against the . respondent nor was any such suggestion made to any . of these •witnesses. In fact the learned Judge , of the High Court himself had . . clearly helci that PW. 7 was a throughly .in<!ependent. witness but commented that he was not made a witness to .the actual passing of the money though he bas-fully supported the subsequent incident . that the respondent took out the notes from his pocket and . threw

them on the ground which lends a colour. of truth to the evidence of PW 1 ai1d other members. of. the . raiding party. Certain minor contradictions or inconsistencies have been pointed oiit by the counselo .in the statements f. PWs rnd 3 but on close examinatiol1 they do not appear to be materil and, therefore, not sufficient to throw out the prosecution case. PWs. I and 3 have fully supported the prosecution case but Mr. Jethma1ani was unable to urge any cogent reason for noi accepting the evidence of PW i -even though it was fully corroborated by the direct evidence of PW 3 as also by the circumstantial evidence which consists of the various stages ftom which the prosecution case has emerged. ,.

. ,

', -"

'MAHARASHTRA' N.G; PIMPLE (Fazal Ali, J.) 637

ThiS now brings us to examine the important. circumstances &!ld evidence elied on by the learned High Court Judge t() disbeliev, e the prosecution version. . . . -

The learned Judge was greatly impressed by what he calls a serious lacuna in the prosecution case-that although both Rege and .

Khamkar, alongwith the raiding party, came to the Municipal ociroi Naka the first thing which Khamkar did was to ask Rege to stancl . outside (padavi) where the raiding . party was also present. The High Court further held from the evidence of Rege it appears that after the raiding party came there Khalllkar caught hold.of the hands . of the acc'used and tookhiin inside the room. With due respect to

. the learned Judge he has come to this finding on a complete ini, s-· ·

reading of ihe evidence .of PWs I and 11 overlooking and ignoring 'the logical sequence of events' starting from the morning of ,14th' April up to' the time when the money passed, Both PWs I and 11 have categorically stated. regarding 'the morning incident. and the arrangemenis !l1>ide t~ raid the police station for Jaylng a trap to • catch.the accused while taking the money. It is notat all cle; idrom the .observations of the High Court whether he was referring to the morning incident or to the evening incident or to the last part of the incident when after the passing of the money Rege was asked by PW 11 to go aside and he stood in . the padavi. . The matter having been settled and pre-arranged in the morning, various parts were allotte.d to the members of the raiding party. Neither Khamkar nor Rege says that immediately the raiding party approached the Naka, he (Rege) was asked to go out and stand in the Padavi which would mean that .he did not pass the notes to the accused, a fact which would completely destroy the very object of raiding the 'police 'siation ..

> .

.The learned Judge overlooked that the raidil)g party had reached llear .the police station. long before' the arrival of the accused and .when the accu.sed ardved at 8.30 p.m. Khamkar did not go. to the

padavi nor , did he ev.en show his face t" the accused. In fact, as narrated above, Rege and Rant together met the accued to exchange some talks and Raul was asked to look for the driver of the van and,. after his departure the accused deinnded, the money which was paid to hiin by PW L It was thereafter thanhe sigrial .was given which brought Khamkar and liis party for the first time at the padavi. As Rege's part to pass on the notes to the accused had been accomplished; there was no point in his remainiOg in the padavi. At any rate, no useful purpose would have been served if Rege was asked to . be present there after . tJie incid.ent was 'over •. He was, however,

A ..

. SUPREME COURT RBPORTS . il9S4j i s.C.R • ' called wheri the demonstratfon was to be done and the search taken in the presence of the panch witnesses. Perhaps the High Court was un<ler the impression that Rege, Khamkar and oilier members of the raidi!lgparty arrived atthe.padavi as.soon an the accused had come there and PW 11. caught holdof tile hands of'the accused and took him into the room. These observations are based on a gross misreading of the evidence of PWs I and 11.. Even the incident of catching the hands of the accused took place after the money had passed and the notes had been put in his pocket by the accused: • According to the evidence of PW 11 It was at the instance of the accused himself who iri order io avoid disgrace requested him to take hill! (accused) inside the roo.m where he would hand over the money.

Thus, the whole argument of the learned Ju_dge is based Oil a pack of cards or on circumstances which never existed. .

The learned Judge also seems to have been under the impre ssioil that PW l was not subjected to the . ultraviolet lamp light test which in fact was done and here the Ju.dge again committed an error •. of record. .. .

The next circumstance relied oil by the High Court is ihat evn after examining the notes and clothes of the accused in the ultraviolet lamp light which took place in the padavi outs.ide .the room and

which must have taken about 10-15 minutes; this was not seen by PW 7, the clerk who was sitting in the room. The High Court seems to suggest that PW 7 himself being a .Naka clerk and an independent witness should have been included as one . of the persons to watch . the demonstration which had taken 10·15 minutes. It is difficult to . believe that the demonstratiol) of a few persons who were merely exposed to the ultraviolet lamp light would take more than 5 minutes.

Even so; the non-inclusion of PW 7 becomes wholly irrelevant when he himself makes a positive statment in the court that he did see the . accused taking out the notes from , his.pocei and throWing them on the grou11d and, therefore, substantially supports the prosecution version. • .. \

Thereafter, on the basis of conclusions arrived at by the learned Judge in t~ 11foresa!d. manner, which are purely speculative, he .tries to give' a sort of a sermon as to what should or not have been done.

It seems that the High Court did not make any attempt to scan and . appreciate the intrinsic merits .of the evidence of PWs I and 3 as

MAHARASHTRA v. N.G, PIMPLE (Fazal Ali, J.) 639

corroborated by PW 7, which by itself was sufficient to prove the prosecution case regarding the acceptance and recovery of money. In coming to this speculative finding the learned Judge completely ignored as to what had happened previous to the raid, viz., the circumstances, the manner and the numberof times which led the accused to. make consistent demands from PW I as also the conduct of the accused in trying to delay the submission of the cbargesheet despite repeated requests by PW 8 (Gangurde) to permit him to file the same .. We have dealt with this aspect of the matter in an earlier part of our judgment and we do not want to repeat the same.

\ It is interesting to note that the learned Judge himelf puts the question as to what was the reason for falsely implicating the accused when be had actually made the demands on the 9th and 13th • of April 1972, yet he readily accepts respondent's argument that this was because PW i was a person of diabolical character and undesirable credentials in whose trap the accused easily fell.

In accepting this argument the High Court failed to consider as to what motive could Rege have to falsely implicate the accused when he had not conducted the search nor was he directly counected with the charge-

Rheet which was' going to be filed against him. Indeed, the dominant question which the Court should have put to itself would have been as to why a complaint under s.89 of the Prohibition Act was not filed against Rege even though the chargeseet was ready. If this was due to any fault or lapse on the part of . Gangurde, who was a subordinate official of the accused, as an honest officer the accused. should have taken him' to task fo•trying to. dilly-dallying the matter instead of filing the chargesheet immediately.

But the evidence to Gangurde shows that he was ready to file the chargesheet but the accused directed him not to do so until the receipt of further instructions from him, as indicated by us earlier. That being the position, why did the accused ask Gangurde to delay the filing of the chargesheet? Thus question has neither been answered by the High Court nor by the accused.

The next circumsance relied on by the High Court was regarding the credibility of the evidence about the meeting on 9th and 13th between Rege and the accused. According to the prosecution the first time Rege was summoned by the accused was on the 9th and some police constable went to his house but as he was. not there he told Mrs, Rege that the complainant was required at the police

640 SUPREME COURT RBPOR'rS (1984] 1 s.c.a.

station. On coming back home, the complainant along with Sukhtankar saw the accused at the police station at g, OO p.m. Although this . part of the case has been fully proved by P.W I, Rege and Sukhtankar

(PW 6) but.their testimony has been disbelieved by the High.Court merely on the ground that tlie constable who had gone to call Rege was not identfied either by Mrs. Rege or by Sukhtankar. This is indeed a most extraordinary process of reasoning.

Obviously, both Mrs. Rege and Sukhtankar saw the constable for a split second and were only asked to convey the message to Rege on his returning home. It was extremely difficult in such circumstance either for Mrs.

Rege or Sukhtankar to have identified the constable. Nevertheless, the fact remains that PW 10, B.L. Jadhav, has testified on oath that. while he was on duty at the Naka on the 9th of April 1972, the accused came to the Naka at 5. JO p.m. and directed him to go to the • house of Rege and summon him to the police Station. Acco, dingly, he went to the house of Rege where he found Mrs. Rege to whom he conveyed the message and thereafter he informed the accused that his message has been conveyed to PW 1. Thus, the evidence of this constable who •appears to be an independent witness is fully corro\l.orated by the evidence of PWs 1 and 6.

Nothing has been elucidated in his cross-examination to show as to why PW 10 should depose falsely on this important link of the case which is an intrinsic circumstance to prove that the demand was made on the 13th April when the accu.sed came to the Naka. The only suggestion made to this witness was that the accused bad sent an application to the Circle Inspector on April 20, 1972 against him, Kachela and Gangurde to the effoot that these three persons were in league with bootleggers. This suggestion puts the cat out of the bag bec.ausc what the learned Judge completely missed was that the application to the Circle Inspector was made by the accused six days after accepting the money from Rege, the trap was laid and a challan was about to be Submitted before the court. It is obvious that if any such belated report was made by the accused it was merely to create evidende in order to throw out the testimony of PW 10.

In these circumstances the only reasonable inference that can be drawn is that Rege and Sukhtankar met the accused on the 9th at 8. 30 p. m.

Presuming that Rege was a person of diabolical .character, the learned Judge without any evidence refused to blieve the incident of the night in the absence of any legal warrant for the same, It seems

.MAHARASHTRA v. N.G. PIMPLE (Fazal Ali, J.) 641

to us that the approach made 'by the learned Judge towards the prosecution has not been independent but one with a tainted eye and an innate prejudice. It is ibanifest that if one wears a pair of pale glasses, everything which he sees would appear to him to be pale. In fact, the learned Judge appears to have been so much prejudiced against the proseccution that he magnified every minor detail or omission to falsify or throw even a shadow of doubt on the prosecution evidence: This is the very ante-.thesis of a correct judicial a_pproach to the evidence of witnesses in a trap case. Indeed, if such a harsh touchstone is prescribed to prove a case it will be difficult for the pro.secution to establish any case at all.

During the course Of discussion of the reasons given by the learned Judge we shall endeavour to show that the advcerse inferences against the prosecution with respect to small matters could have been easily ignored as they did not affect the credibility of the prosecution case. The glaring instances of such a wrong approach is to be found in.the criticism levelled against the prosecution by the learned Judge that PW 11 asked Rege tc" stand in the padavi and sought to convey the impression that Rege never came to the padavi in order to give the money to the accused or that the raiding party arrived just before the arrival Of the accused. This is far from the truth as we have shown above. We have already held that the stroy unfolded by PW 1 about the incident of the 14th April was a very short and simple one and after having completed his assignment whether PW 1 was asked to stand in the padavi or was not. called into the roon are matters of no consequnce whatsoever so far as the acceptance of money as bribe was concerned.

Jn fact, the High Court seems to have cased its reasons not on the evidence which was given. by PW 1 on oath but merely on suggestions . which were categorically denied by him from which no inference could be drawn at all.

Another serious comment to falsify the incident of raid and payment of money was that Rege did not see the throwing down of the notes.

Here again, the High Court completely misdirected itself because from the evidence itself it is clear that Rege had said that the accused had a talk with him and he then paid currency notes of Rs. 2000 to him ·(accused) which he inserted in his pant pocket, made a signal which brought the raiding party at the verandah and thereafter he went to the padavi. Whethet be Witnessed the s\lbsequent throwing. down 9f the n9tes 9r !lot was

• 642

SUPREME COURT REPORTS [1984) l S, C.!I.

totally irrelevant because as we hav~ shown above this incident took place after the accused was taken by Khamkar inside the room as desired by him (accused).

Another infirmity pointed out iu the protsecution was that PW 3 (Raut) was asked to stand near the van by the accused .instead of going to the padavi with the raiding party, It is ob'vious from the evidence of PW 11 that the previous arranaement was that PW 3 should also be present when the money was to be paid to the accused so that he may be a witness to the passing of the notes. In view, however, of the direction given by the accused to Raut to find out the driver of the van it was only natural that the previous arrange-· ment would have to undergo some change lest the accused may become cautious and suspicious which would have led to the failure of the trap. Therefore, PW 3 had to obey the order of the accused but he did it in a very adroit manner so that while standing near the van be selected a place from where he could see the accused and the passing of the money, to which he has clearly_ deposed. After the money had passed he returned to the padavi because bis purpose for leaving the padavi had been served. ·

Some comment bas also been made by the High Court that the place from which PW 3, while standing near the van, witnessed the passing of the potes was so distant that he could not have witnessed the passing of the money. This is also a pure conjecture because PW 3 .has clearly explained that he was at a very short distance and not at 90 ft. as the learned Judge seems to think, and in that position he could easily see the passing of the money. No suggestion appears to have been made to PW 3 that be was standing at a place from which the accused was not visible or that he would not have been in a position to see the passing of the money.

Another disturbing feature of the High Court judgment is the adverse comments made 011 the evidence of PW 8 (Gangurde). To disbelieve this witness the High Court has readily accepted certain facts which could not possibly be true or even if true were wholly irrelevant and were made only for castigating a truthful and an honest officer. PW 8 was a bead constable who, on the complaint of Rege, was entrusted with the charge of conducting a search in the house of Walawalkar. There is no reliable evidence-to show that he was in any way friendly to or connected "with the complainant.

If this was so, he could not have .conducted the scarab as he did.

.. -

MAHARASHTRA v. N.ci. PIMPLE (Fazal Ali, J.) 643

The High Court seems to disbelieve this witness only on the ground

that he states in his evidence that when he went to the house of Walawalkar the accused was not there although his name finds place in the panchnama. The panchnama is hurridely prepared and a number of names may find mention. He may not have recollected whether some of the persons mentioned were there or not.

In the instant case, this was a non-issue and therefore could not be considered. F11rthermore; PW 8 does not appear to have shown any kind of favour to Rege but he himself reported that the allegation made by Rege was false and as a result of which Walawalkar filed a complaint (Ex.66) which was investigated by this very witness and ultimately he decided to file a chargesheet against Rege under s.89 of the Prohibition Act. If he was in any way favourably inclined towards Rege he would have shelved the complaint of Walawalkar an:d submitted a final report saying that no prima facie case had been made out because Rege had not made a complaint in the real sense of the term but only expressed his suspicion. Therefore, there was no justification for the learned Judge to conclude that this witness was in any way in league with Rege.

In fact, what was really missed by the High Court was that PW 8 was extremely anxious to file chargesheet against Rege but it was the accused himself who directed him not to file the same and to keep the same pending till further instructions from him. If the accused, who was his superior officer, had not given this instruction there does not appear to be any explanation why the chargesheet though ready on 11.4.72 was not filed at all. Ifthe'liccused was that honest or innocent he would have taken PW 8 to task for not filing the chargesheet after it was ready.

This speaks _volumes against the case of the respondent.

The learned Judge then.drew support from some insignificant and minor circumtances to discredit the evidence of PW 8.

For > instance, he observed that tltere were some irregularities or that PW

8 was absent without taking any leave. These are pure routine matters which happen in every office but this would not falsify the evidence of PW 8.

So far as the question of remaining absent without leave is concerned. PW 8 has positively stacted that he had taken leave for being absent and no attempt was made by the accused to call for the attendance register to show that the witness had absented himself without taking any leave nor was any action taken by the higher authorities for this lapse on his part. We are really baffled and amazed to find that the learned Judge went.to the extent of castigating PW 8 on the basis 'of such frivolous and flippant

644 sui>ilBMS couil'i' ilEPOilTS (J 984J l S.C.R.

allegations merely because the witness had stated the truth in the court, viz., that the chargesheet was ready for submission but the accused had stayed its .submission.

.....

These are the main reasons and circumstances given by the learned Judge in disbelieving the entire prosecution case which we have already found to be wholly unsustainable in law. We regret to observe that the learned Judge has rejected the vital e".idence of

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. PWs 1,3,8 and 11 on frivolous grounds and he did not make any attempt to discuss their evidence on intrinsic merits and the superficial manner in which he has dealt with the evidence and circumstances in order to demolish the prosecution case is wholly unacceptable to us and leaves much to be desired.

Mr. Jethmalani vehemently argued before us that the High Court having acquitted the accused, this Court should .very rarely interfere with the judgment of the High Court and should do so only in cases w"here there is a grave error of law or serious miscarriage of justice and that too when the accused faced a trial for several years and had been reinstated and promoted as an Inspector.

From the reasons that we have given it is manifest that the juqgment of the High Court suffers from serious and substantial errors of law and legal infirmities. This is one of those rarest of rare cases where this Court" would be failing in its duty if it did not interfere with the order of acquittal and set aside the judgment of th~ High Court. On a full and complete discussion of the facts and circumstances of the case we are clearly of the opinion that , the charges against the respondent-accused have been clearly proved and his acquittal by the High Court was wrong both on law and on facts. Once this is so, the other consideration mentioned by Mr, Jethmalani would be no answer to mai11taining the acquittal of the respondent. It may be rather unfortunate but the law must take its ' course and th.e accused himself is to be blained for having commlited such a daring offence and with such llextetity that even an experienced Judge of the Hign Court could not see.through the skilful game of the accused. '

In view of the seriousness of the offence and the blatant mariner in which it was committed we find it difficult to make a substantial reduction in _the sentence and we are afraid, having found. the respo_ndent guilty of the offences charged against him, it is not

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)-Y

MAHARASHTRA ' N.G. PIMPLE (Fazal Ali, J.). 645

possible for us to show any leniency.

However, in view of the facts and circumstances of the case and having regard to the fact that the respondent would have to lose his service we would sentence him to six months' rigorous imprisonment. The result is that the appeal is allowed and the respondent is .convicted under s.161, I.P.C. and . s.5 (I) (a) and 5 (2) of the Act and sentenced to si_x months R.l. under each count to run concurrently and a fine of Rs. 2,000 and in default of the payment of fine, further six weeks' R.I. The accused must now surrender and be taKen into custody to serve out the sentence imposed.

H.S:K.

Appeal allowed .