panch witness, learned Counsel for the accused submitted that evidence of
complainant Khannubhai on the point of demand and acceptance of bribe on
28121993 do not find trustworthy corroboration from this witness and by
referring to his admission given in the fag end of his crossexamination that
the officers of Ante Corruption Bureau Officers asked him to prepare notes to
give evidence in the Court and that accordingly he had prepared the notes as
per say of Ante Corruption Bureau Officer and further admitting that he had
gone through all such notes before giving evidence, learned Counsel for the
accused submitted that since said witness was not stating the facts from his
memory, his entire evidence would be inadequate to provide any
corroboration to the evidence of complainant. As against this, learned
Additional Public Prosecutor has submitted that since the incident was more
than ten years old, there was nothing wrong in the witness refreshing his
memory before deposing about the incident giving minute details. In that
view of the mater, I find that there would be nothing wrong in the witness
refreshing his memory, but that ought not to be done before the Court or
outside the Court. In order to test veracity of a witness, he would be
required to recollect the incident out of his memory and should he falter on
some material aspect, in that case, he could be allowed to refresh his memory
with regard to the contemporaneous records of the incident created by the
police and it would not be permissible for such a witness to stealthily refresh
his memory before entering the Court and deposing about the entire
evidence giving minute details. Under these circumstances, I find much
substance in the submissions advanced on behalf of the accused.
24. In the light of above submissions, I find it necessary to
reproduce subsection (1) of Section 162 of the Criminal Procedure Code,
1898, which lays down as follows.
“No statement made by any person to a police officer in the
course of an investigation under this Chapter, shall, if reduced
to writing, be signed by the person making it; nor shall any
such statement or any record thereof, whether in a police diary
or otherwise, or any part of such statement or record, be used
for any purpose, save as hereinafter provided at any inquiry or
trial in respect of any offence under investigation at the time
when such statement was made :
Provided that when any witness is called for the prosecution in
such inquiry or trial whose statement has been reduced into
writing as aforesaid, any part of his statement, if duly proved,
may be used by the accused, and with the permission of the
Court, by the prosecution to contradict such witness in the
manner provided by S. 145 of the Evidence Act, 1872 (1 of
1872); and when any part of such statement is so used, any
part thereof may also be used in the reexamination of such
witness, but for the purpose only of explaining any matter
referred to in his crossexamination.”
In the backdrop of above provisions, I further find it useful to
refer to the decision in the case of Zahiruddin v. Emperior reported in AIR
1947 PC 75, wherein with regard to use of the statement for refreshing
memory, their Lordships observed as follows :
“The use by a witness while he is giving evidence, of a statement
made by him to the police raises different considerations. The
categorical prohibition of such use would be merely disregarded
if reliance were to be placed on the evidence of a witness who
had made material use of the statement when he was giving
evidence at the trial. When, therefore, the Magistrate or
Presiding Judge discovers that a witness has made material use
of such a statement it is his duty under the Section to disregard
the evidence of that witness as inadmissible.”
25. In the light of above, very little value needs to be attached to
the evidence of P.W.3 Vishnu because he appears to have deposed the
particular incident not by recollecting the evidence of that incident but what
has been read out by him from the police statement, short time before he
deposed. Under these circumstances, in the first place, entire evidence of
this witness becomes inadmissible and even if it be held that it is admissible
evidence, no value whatsoever can be attached to his evidence, which
evidence even otherwise as already stated aforesaid does not appear to be
convincing and is contrary to the evidence of complainant on the material
aspect of demand and acceptance.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.149 OF 1999
Rustam s/o Ukarda Jadhav,
V
State of Maharashtra,
CORAM : P.N. DESHMUKH, J.
DATED : 8th OCTOBER, 2014.
Citation;2016 ALLMR(CRI)248
1. This appeal has been preferred against the judgment and order
dated 1341999 passed in Special Case No.1/1995 by the learned Special
Judge, Washim, by which appellant/accused came to be convicted under
Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act,
1988 and is sentenced to suffer rigorous imprisonment for three years on
both these counts and to pay a fine of Rs.3,000/, in default to suffer
rigorous imprisonment for three months.
Briefly, prosecution case can be stated as under :
2. On 26121993 accused was posted as Police Constable, B.No.
1766 to Police Station Karanja and on that day had demanded bribe from
complainant Khannubhai, resident of Mangrulpir for not issuing challan in
respect to vehicle Metador bearing registration No.MH30/A9280 as the
same was found carrying passengers illegally. Said fact of vehicle being
detained by accused was informed to complainant by his servant, upon
which, on contacting accused, he enquired about detention of his vehicle and
as to why same was challaned, when accused demanded Rs.1,000/ for
releasing the vehicle and to drop the prosecution which amount was
negotiated to Rs.600/, out of which Rs.200/ was paid to accused on the
same day and it was agreed to pay balance amount of Rs.400/ on
28121993 in Chawre Market Area, Karanja.
3. Complainant since was not intending to make payment of said
amount, attended office of Ante Corruption Bureau, Akola on 27121993
and lodged his report. Complainant was directed to attend the office on the
following day. Accordingly, he remained present, when he was introduced to
two panch witnesses and panch witnesses were introduced to him. They
were given demonstration of effect of phenolphthalein powder with sodium
carbonate solution by which they realised that when said powder comes into
contact with sodium carbonate solution, solution turns into violate colour.
Complainant thereafter produced bribe amount of Rs.400/ consisting three
notes of Rs.100/ each in denomination and two notes of Rs.50/ each in
denomination. Serial numbers of these notes were noted in the pretrap
panchanama. Phenolphthalein powder was smeared upon these notes from
both of its sides and those were kept in shirt pocket of complainant with
instructions to complainant to not to touch the same and to make payment
only on demand by accused. He was further instructed to give signal by
scratching his head on paying the bribe money.
4. One of the panchas was instructed to accompany the
complainant and copanch was instructed to remain with the raiding team.
Accordingly, trap came to be laid at Chawre Market, Karanja on the same day
on 28121993.
5. It is the case of prosecution that complainant Khannubhai along
with P.W.3 Vishnu Bhad, the first panch visited the spot in the market where
accused arrived on his motorcycle and demanded bribe money, which was
paid to accused and on receiving the proposed signal members of raiding
team had arrived on the spot and apprehended accused and recovered bribe
money from shirt pocket of accused. On testing fingers of both hands of
accused as well as of complainant independently in the freshly prepared
solution of sodium carbonate, it turned violate. On sprinkling solution on
the recovered notes violate colour dots appeared on the notes. The currency
notes were accordingly seized along with shirts of accused and complainant
respectively. Posttrap panchanama of above facts was drawn. P.W.8
Keshaorao Idoley, Deputy Superintendent of Police (ACB), Akola, the
Investigating Officer lodged report on the basis of which offence came to be
registered. During the course of investigation, necessary correspondence was
made with the Commissioner of Police through the office of Deputy
Superintendent of Police, Ante Corruption Bureau for grant of sanction to
prosecute the accused and on receipt of same chargesheet came to be filed
before the learned Special Judge.
6. Charge is framed vide Exhibit 14 against the accused for the
offences punishable under Sections 7, 13(2) read with 13(1)(d) of the
Prevention of Corruption Act, 1988, which he denied and claimed to be tried.
It is the specific case of accused that he had no occasion to challan the
vehicle nor demanded bribe, in fact accused had no power to challan the
vehicle and that the family members of complainant were earlier prosecuted
in several criminal cases instituted by accused for which complainant had
grudge against him and in order to settle this score complainant has lodged
false report. It is also the case of accused that in fact complainant owed
Rs.400/ to P.W.4 Mohd. Rafiq and in fact said amount was virtually foisted in
the shirt pocket of accused and he came to be falsely implicated by
complainant.
7. Learned Special Judge considering the evidence on record and
all material documents convicted accused as aforesaid. Hence, this appeal.
8. Heard Shri A.S. Mardikar, learned Senior Counsel for the
accused and learned Additional Public Prosecutor Mrs. Rashi Deshpande for
the State. To effectively evaluate the submissions advanced by learned
counsel for both the sides, I with their assistance has scrutinized the evidence
on record.
9. P.W.1 Kishore Kadam has stated that five to six months prior to
the incident he had entered into an agreement with complainant Khannubhai
to jointly run transport business and accordingly complainant was looking
after the entire transaction of Metador involved in this case bearing
registration No.MH30/A9280.
10. According to P.W.2 Khannubhai Khetiwale, complainant, he
along with P.W.1 Kishore were running the transport business while the
vehicle numbered above was registered in the name of Kishore Kadam. Said
business was run on the basis of agreement on that count.
11. On the point of incident complainant has stated that it was a
weekly bazaar at Karanja and the Metador was sent by him which was driven
by one Prakash Bhoyar and was conducted by Babbu Hiriwale, while one
Satish Sharma had accompanied them to Karanja. The vehicle started from
Mangrulpir at around 630 a.m. loaded with goods and reached Karanja at
900 a.m. Satish Sharma informed that the vehicle was challaned by police
alleging that it was used for carrying passengers and thus he arrived in the
market. On his arrival, driver informed that the documents in respect of
vehicle were taken away by police constable from Karanja. At that moment,
accused arrived on the spot with whom complainant enquired and informed
that he was owner of the vehicle, upon which accused told him that vehicle
was challaned by him for above reason. Upon which complainant informed
accused that same was not used for carrying passengers and thus requested
not to challan the same and informed the accused that he will inform this
fact to the Senior Police Officer, when accused threatened him that he will
have to pay double the amount if he reports the matter to Senior Police
Officer and informed the complainant that he should pay Rs.1,000/ and
then he will tear the challan. Said amount was however negotiated to
Rs.600/ out of which Rs.200/ was paid by complainant while balance
amount of Rs.400/ was agreed to be accepted by accused on Tuesday i.e. on
28121993 at Chawre Market, thereafter accused returned back the
documents of the vehicle and informed that challan will be torn off on
paying Rs.400/on 28121993.
12. Complainant further stated that in the background of above
incident, he visited office of Ante Corruption Bureau on 27121993 and
lodged his report Exhibit 30 as he was not interested to pay the bribe. After
lodging his report, he was instructed by Officer of Ante Corruption Bureau to
attend the office on the following day. Complainant thereafter has stated
about his visiting the office of Ante Corruption Bureau and about P.W.8
Keshaorao Idoley, Investigating Officer introducing him to P.W.3 Vishnu Bhad,
the panch as well as copanch. He further stated about the demonstration of
chemical reaction of phenolphthalein powder with sodium carbonate
solution from which he learnt that when the phenolphthalein powder comes
into contact of sodium carbonate solution, solution turns into purple colour.
He further deposed that upon his producing bribe amount of Rs.400/
consisting three notes of Rs.100/ each in denomination and two notes of
Rs.50/ each in denomination and about staff of Ante Corruption Bureau
applying phenolphthalein powder to said currency notes and about keeping
these notes in his shirt pocket. He has further deposed about instructions
given to him to not to touch the notes and to pay the same on demand by the
accused and to give signal by scratching his head. It is further stated that
instructions were given by Investigating Officer to P.W.3 Vishnu to accompany
him and the copanch to accompany the members of raiding party.
13. On the point of incident complainant has stated that he along
with two panchas went to Chawre Market and accused arrived on
motorcycle. On seeing accused, he stood up and informed that he has
brought cash amount and told the accused to accept the same and to tear the
challan. He has further stated that accused informed him to first pay the
amount and thereafter he will tear the challan and accordingly he tendered
the amount which was accepted by accused, which was kept in his shirt
pocket and thereafter he gave the proposed signal when the officers of the
raiding team arrived and apprehended the accused.
14. Complainant further stated about testing of his hands in the
solution of sodium carbonate when it changed into violate colour and about
seizure of currency notes.
15. In the crossexamination, complainant stated to have
mentioned in his statement recorded by police about his partnership
agreement entered into with P.W.1 Kishore Kadam, however could not put
forth any reason as to why said fact is not mentioned in his statement.
Defence has duly got proved said omission in the evidence of P.W.8
Keshaorao Idoley, who has recorded statement of complainant. In that view
of the matter, complainant appears to have materially improved case to
establish that on the date of incident he was running transport business in
partnership with P.W.1 Kishore. In the background of above omission, I find
much substance when it is suggested to complainant that there was no any
partnership between him and P.W.1 Kishore in respect of running of vehicle
though said suggestion is denied by him. Admittedly, the partnership
agreement as alleged by complainant is not registered nor complainant or
P.W.1 Kishore has given any information with reference to their alleged
transport business to Regional Transport Office. Moreover complainant is
even otherwise not the registered owner of Metador bearing registration No.
MH30/A9280.
16. Similarly, complainant though claims to have stated before
police that on 26121993 vehicle was sent from Mangrulpir to Karanja,
which was driven by Prakash Bhoyar and conducted by one Babbu Hiriwale
and was occupied by one Satish Sharma, is unable to put forth any reason as
to why said facts are not mentioned in his statement. In fact neither of these
persons are examined by prosecution nor any reason is put forth by
prosecution for nonexamination of these witnesses though they appeared to
be material in view of the case of prosecution to the effect that after the
vehicle reached Karanja, same was alleged to be detained by accused
alleging that it was illegally used for carrying passengers and though
according to further case of prosecution, after the detention of vehicle, Satish
Sharma by visiting complainant to his shop at Mangrulpir at 10.30 a.m. gave
information of detention of vehicle. In fact, case of prosecution about
complainant receiving information of detention of vehicle as above also does
not appear to be convincing as it has come in the evidence of complainant
that on 26121993 said vehicle having been driven by above named driver
and conducted by Babbu Hiriwale as well as occupied by Satish Sharma and
left for Karanja from Mangrulpir at about 630 a.m. and reached Karanja at
9.30 a.m. Nothing has come on record establishing distance between
Mangrulpir and Karanja. However, from the evidence of complainant it has
come on record that three hours were required for them to reach to Karanja.
However, in contrary to above evidence the complainant has deposed that at
10.30 a.m. Satish Sharma contacted him and informed about the detention.
No explanation is put forth as to how Satish Sharma informed the
complainant in a short period. This aspect in the case of prosecution thus,
also raises sufficient doubt.
17. Further it is material to note that complainant admits to have
not stated in his statement that after the vehicle was detained, he informed
accused that he will report said fact to his superior police officer and has
materially improved his case with reference to demand of Rs.1,000/ by
accused as has admitted to have not stated before police in his statement that
said amount was demanded by accused, which was negotiated to Rs.600/
and that accused on accepting Rs.200/ informed complainant that on
complainant's making payment of balance amount of Rs.400/ he will tear
the challan. Above evidence of complainant, which is found to be full of
omissions clearly establishes that complainant has materially proved his case
so as to falsely implicate the accused. In fact, even on considering the
evidence of complainant on the point of demand and acceptance, same is not
convincing to establish that amount was demanded by the accused upon
which same was paid as what is stated by complainant is that after arrival of
accused on his motorcycle, he stood up while he was sitting on the bridge
and on seeing the accused told him that he has brought cash amount and by
going a step further complainant has stated that he told the accused to
accept the amount and to tear the challan. Above evidence of complainant
thus creates reasonable doubt in the case of prosecution of accused
demanding and accepting bribe as alleged.
18. Similarly, though according to the case of prosecution, P.W.3
Vishnu, the first panch was to accompany complainant, it has come in the
complainant's evidence that at the time of incident he and two panchas were
present at Chawre Market. No explanation is put forth by prosecution with
regard to third person who according to complainant was present with him
and P.W.3 Vishnu at the time of incident.
19. In the light of above evidence of complainant, when evidence
of P.W.3 Vishnu, the independent panch is considered on the point of demand
and acceptance, same appears to be totally contrary to the evidence of
complainant on this material aspect when he has stated that after accused
stopped his vehicle near Pan Stall, he along with complainant went to the
accused. At that time one unknown person gave some amount to accused in
their presence and thereafter accused asked complainant if he has brought
the amount to which complainant informed that he has brought the amount
and asked accused to return the challan, upon which accused told
complainant that he had not challaned the vehicle and demanded amount,
upon which complainant took out bribe money from his shirt pocket and
paid to accused, which accused counted and kept in his shirt pocket.
According to P.W.3 Vishnu, accused thereafter removed one diary from his
pocket and made some entry and thereafter complainant gave the proposed
signal. All this conversation as stated by P.W.3 Vishnu is not found
corroborated by the evidence of complainant. In fact, in the evidence of P.W.
3 Vishnu, it has come on record that when complainant informed the accused
that he has brought the amount and thus accused should return the challan,
accused has informed him that he had not challaned the vehicle. Even
otherwise on the day of incident accused admittedly was not attached to the
Traffic Branch of Karanja Police. In the circumstances, since evidence of both
these witnesses does not inspire confidence, being contrary to each other on
material aspect, cannot be acted upon. On the contrary, the probable case as
set out by the accused appears to be more reasonable when it is suggested to
complainant that prior to the incident accused was working as Police
Constable at Mangrulpir, which fact is denied by complainant for want of
knowledge, however has admitted that twelve to thirteen cases under the
Bombay Prohibition Act were instituted against his father by Mangrulpir
Police. Though the complainant has further denied for want of knowledge
that in six or seven of cases accused was raiding party member. Complainant
further denied to know Kaliprasad Pande, Head Constable and has denied to
have been prosecuted for commissions of offence under Bombay Prohibition
Act. He has further denied that accused was writer constable of Head
Constable Kaliprasad, who had lodged cases against him under Bombay
Prohibition Act. Complainant has admitted that police had filed twothree
cases under Bombay Prohibition Act against his brother Natthu, however,
denied that in these cases accused was one of the witness. Complainant has
admitted that he has many relatives at Karanja and riot cases are instituted
against them on the report of accused by Karanja Police Station.
20. In view of above stated evidence of complainant having no
material corroboration from the evidence of P.W.3 Vishnu on the point of
demand and acceptance, I find it useful to rely upon the case of
M.K. Harshan .vs. State of Kerala reported in 1995 Cri.L.J. 3978, wherein
the evidence of complainant was not having any corroboration and was
suffering from infirmities. The plea of accused, on the other hand, was that
the money was planted in the drawer without his knowledge which case of
accused was held to be more probable and the accused was acquitted giving
him benefit of doubt.
21. At this juncture, when evidence of P.W.4 Mohd. Rafiq is
considered along with the case of accused, he has stated that he is the owner
of a Garage for loading and unloading goods at Karanja and the owners' of
goods vehicle on depositing their goods pay him commission. He has stated
that complainant was having a vehicle and in the year 1993 when the
incident took place, certain amount was due from complainant. In the crossexamination,
P.W.4 Mohd. Rafiq admitted that amount of Rs.400/ towards
commission was due from Khannubhai prior to incident. According to him,
complainant was avoiding to make said payment and thus he had informed
this fact to the knowledge of accused. He has further admitted that on
20121993 i.e. eight days prior to the incident, he, complainant as well as
accused met at Karanja when accused asked complainant to pay the amount
to Mohd. Rafiq, which was due to him and has further instructed
complainant that if he fails to pay said amount, he will prosecute him. P.W.4
Mohd. Rafiq further admitted that complainant told him that he will pay said
amount of commission to accused on 28121993 and has further admitted
that he has asked accused to accept said amount of Rs.400/ on his behalf
from the complainant. It is further admitted that on 28121993 complainant
has informed him that he has paid the amount of Rs.400/ to the accused.
Above discussed evidence of P.W.4, therefore, further creates a reasonable
doubt in the case of prosecution and in fact probabalises the defence of
accused as suggested aforesaid to the complainant.
22. In the background of above evidence, when evidence of D.W.2
Tarasingh Chavan is considered, further probabalises the case of defence
when he has stated that he is also running business of Metador and as such
knows the complainant and has stated that on the day of incident when
accused arrived on the motorcycle, complainant went to him and asked
accused to receive Rs.400/. As per this witness, said amount was accepted
by accused on behalf of P.W.4 Mohd. Rafiq, which was kept by complainant in
the pocket of accused. Nothing material is brought on record to doubt
evidence of this witness in his crossexamination. In the light of above
discussed evidence, I find it useful to refer to the decision in the case of State
of Punjab Vs. Madan Mohan Lal Verma reported in 2013(4) Crimes 41
(SC), wherein in para 7 of the judgment, it is observed that :
“7. The law on the issue is well settled that demand of illegal
gratification is sine qua non for constituting an offence under the
Act, 1988. Mere recovery of tainted money is not sufficient to
convict the accused when substantiative evidence in the case is
not reliable, unless there is evidence to prove payment of bribe or
to show that the money was taken voluntarily as a bribe. Mere
receipt of the amount by the accused is not sufficient to fasten
guilt, in the absence of any evidence with regard to demand and
acceptance of the amount as illegal gratification. Hence, the
burden rests on the accused to displace the statutory
presumption raised under Section 20 of the Act 1988, by
bringing on record evidence, either direct or circumstantial, to
establish with reasonable probability, that the money was
accepted by him, other than as a motive or reward as referred to
in Section 7 of the Act 1988. While invoking the provisions of
Section 20 of the Act, the Court is required to consider the
explanation offered by the accused, if any, only on the touchstone
of preponderance of probability and not on the touchstone of
proof beyond all reasonable doubt. However, before the accused
is called upon to explain, how the amount in question was found
in his possession, the foundational facts must be established by
the prosecution. The complainant is an interested and partisan
witness concerned with the success of the trap and his evidence
must be tested in the same way as that of any other interested
witness. In a proper case, the Court may look for independent
corroboration before convicting the accused person.”
23. Referring back to the evidence of P.W.3 Vishnu, the independent
panch witness, learned Counsel for the accused submitted that evidence of
complainant Khannubhai on the point of demand and acceptance of bribe on
28121993 do not find trustworthy corroboration from this witness and by
referring to his admission given in the fag end of his crossexamination that
the officers of Ante Corruption Bureau Officers asked him to prepare notes to
give evidence in the Court and that accordingly he had prepared the notes as
per say of Ante Corruption Bureau Officer and further admitting that he had
gone through all such notes before giving evidence, learned Counsel for the
accused submitted that since said witness was not stating the facts from his
memory, his entire evidence would be inadequate to provide any
corroboration to the evidence of complainant. As against this, learned
Additional Public Prosecutor has submitted that since the incident was more
than ten years old, there was nothing wrong in the witness refreshing his
memory before deposing about the incident giving minute details. In that
view of the mater, I find that there would be nothing wrong in the witness
refreshing his memory, but that ought not to be done before the Court or
outside the Court. In order to test veracity of a witness, he would be
required to recollect the incident out of his memory and should he falter on
some material aspect, in that case, he could be allowed to refresh his memory
with regard to the contemporaneous records of the incident created by the
police and it would not be permissible for such a witness to stealthily refresh
his memory before entering the Court and deposing about the entire
evidence giving minute details. Under these circumstances, I find much
substance in the submissions advanced on behalf of the accused.
24. In the light of above submissions, I find it necessary to
reproduce subsection (1) of Section 162 of the Criminal Procedure Code,
1898, which lays down as follows.
“No statement made by any person to a police officer in the
course of an investigation under this Chapter, shall, if reduced
to writing, be signed by the person making it; nor shall any
such statement or any record thereof, whether in a police diary
or otherwise, or any part of such statement or record, be used
for any purpose, save as hereinafter provided at any inquiry or
trial in respect of any offence under investigation at the time
when such statement was made :
Provided that when any witness is called for the prosecution in
such inquiry or trial whose statement has been reduced into
writing as aforesaid, any part of his statement, if duly proved,
may be used by the accused, and with the permission of the
Court, by the prosecution to contradict such witness in the
manner provided by S. 145 of the Evidence Act, 1872 (1 of
1872); and when any part of such statement is so used, any
part thereof may also be used in the reexamination of such
witness, but for the purpose only of explaining any matter
referred to in his crossexamination.”
In the backdrop of above provisions, I further find it useful to
refer to the decision in the case of Zahiruddin v. Emperior reported in AIR
1947 PC 75, wherein with regard to use of the statement for refreshing
memory, their Lordships observed as follows :
“The use by a witness while he is giving evidence, of a statement
made by him to the police raises different considerations. The
categorical prohibition of such use would be merely disregarded
if reliance were to be placed on the evidence of a witness who
had made material use of the statement when he was giving
evidence at the trial. When, therefore, the Magistrate or
Presiding Judge discovers that a witness has made material use
of such a statement it is his duty under the Section to disregard
the evidence of that witness as inadmissible.”
25. In the light of above, very little value needs to be attached to
the evidence of P.W.3 Vishnu because he appears to have deposed the
particular incident not by recollecting the evidence of that incident but what
has been read out by him from the police statement, short time before he
deposed. Under these circumstances, in the first place, entire evidence of
this witness becomes inadmissible and even if it be held that it is admissible
evidence, no value whatsoever can be attached to his evidence, which
evidence even otherwise as already stated aforesaid does not appear to be
convincing and is contrary to the evidence of complainant on the material
aspect of demand and acceptance. Evidence of complainant as well as P.W.3
Vishnu, the panch apart from being contrary on the point of demand and
acceptance is further found contrary with reference to sequence of events,
which are alleged to have taken place at the time of incident. When
according to the evidence of P.W.3 Vishnu, as per the instructions given,
complainant had first asked accused about challan to which accused
informed that he had not challaned the vehicle. Similar is the contents of
pretrap panchanama where from it is revealed that complainant was
instructed to first enquire from the accused about the challan and then if
demanded to make the payment of bribe money. However, from the evidence
of complainant, as already aforesaid, what has come on record is that
immediately on arrival of accused on the spot, complainant stood up and on
seeing him informed that he has brought cash amount and has further told
accused to accept the same and to tear the challan. Above contrary evidence
on record thus also establish the probable case of accused.
26. Another material point needs to be considered is the report
lodged by accused on 28121993 immediately after his apprehension in this
crime. With reference to said fact, evidence of P.W.8 Keshaorao Idoley, the
Investigating Officer when perused, it reveals that during the raid, accused
has stated to him that he had not challaned the vehicle and has further
denied for want of knowledge if accused had lodged any complaint to
Karanja Police Station on that day. Investigating Officer further stated to
have not noticed during the course of investigation if accused had lodged any
complaint with Karanja Police Station on 28121993. In view of evidence of
Investigating Officer, defence to establish the innocence of accused has
examined D.W.1 Janardhan Sirsat, ASI, who on the date of incident was
attached to Karanja Police Station and has stated that on 28121993 when
he was Station Diary Incharge of Karanja Police Station, accused had lodged
a written report of which he had obtained station diary entry as per station
diary extract on record Exhibit 93. On considering Exhibit 93, it appears that
at Sr. No.4 on 28121993 at about 740 hours accused had lodged his report
of which station diary is made by D.W.1 wherein accused had in clear terms
reported that on 26121993 complainant’s Metador was found parked on
the road in the evening for which objection was raised and on 28121993 at
200 O’Clock in the afternoon when accused was collecting information in
the town with D.W.2 Tarasingh Chavan, complainant asked accused to accept
Rs.400/ to be paid to P.W.4 Mohd. Rafiq, Garagewala, which he accepted,
however was immediately apprehended by two persons who introduced
themselves as officers of Ante Corruption Bureau. It is further stated in the
report that as the vehicle of complainant was parked on the road on
26121993, the complainant mischievously and falsely involved accused in
this case. In view of above evidence of defence witnesses, accused appeared
to have tendered the explanation of his false involvement by complainant, by
lodging his report to Karanja Police Station, immediately after the incident at
7.45 p.m., as the posttrap panchanama Exhibit 41 appears to have been
commenced at 200 p.m. and is concluded at 730 p.m.
27. The explanation put forth by accused certainly needs
consideration as it is an important circumstance which is found established
from the evidence of D.W.1 Janardhan and station diary entry extract Exhibit
93. For the reasons best known to the prosecution this document is not
brought on record by the prosecution at the time of trial, which was thus
brought on record by defence by examining D.W.1 Janardhan, ASI. It is
material to note that P.W.8 Keshaorao Idoley, the Investigating Officer has not
uttered a single word about the explanation tendered by accused in the form
of his report lodged at Karanja Police Station, which is his first version given
in writing after the trap was sprung and has on the contrary deposed that
nothing transpired to him during the course of investigation that report was
lodged by accused with Karanja Police Station on the day of incident. This
circumstance of prosecution’s suppressing the material version of accused is
an important circumstance which raises a shadow of doubt about the veracity
of the prosecution case. It is material to note that it is the duty of the
prosecution to bring the entire truth before the Court, however it appears
that prosecution has deliberately kept back this vital document during the
trial though it could have been very much available to the investigating
agency and could have placed on record along with the chargesheet or could
have been brought on record at least during the course of trial. However,
since material evidence was not brought on record, I find it necessary to raise
presumption as contemplated under Section 114 of the Indian Evidence Act
that had this document Exhibit 93 been produced, it would not have
favoured prosecution and such has withheld the same. In the circumstance,
useful reference can be made to illustration (g) of Section 114 of the Indian
Evidence Act.
28. In this view of the matter, in my view, the criminal appeal must
succeed. The criminal appeal is allowed. The impugned judgment and order
dated 1341999 passed by the Special Judge, Washim in Anti Corruption
Case No.1/1995 convicting the appellant for the offences punishable under
Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of
Corruption Act and sentencing him to suffer rigorous imprisonment for three
years on both these counts and to pay fine of Rs.3000/ and in default, to
suffer rigorous imprisonment for three months is quashed and set aside. The
appellant is acquitted of the said offences. The bail bond of the appellant
stands cancelled.
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