Ganesh Shankarrao Agle vs State Of Mah Thr Pso,Darwha

The appellant herein was accused no.2 before the trial Court and he has challenged the impugned judgment and order dated 05.02.2009 passed by

the Court of Special Judge, Yavatmal (Trial Court) in Special Case No.5/1995, whereby the appellant has been convicted under Section 12 of the

Prevention of Corruption Act, 1988 and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.5000/Â for having abetted

accused no.1 in committing offence under Sections 7 and 13 of the aforesaid Act. Accused no.1 had also filed an appeal bearing Criminal Appeal

No.123/2009 in this Court against the impugned judgment and order, challenging his conviction, but during the pendency of his appeal, the said accused

no.1 had expired and accordingly, by order dated 16.05.2018, the appeal filed by accused no.1 stood dismissed as abated.

The prosecution case in brief was that accused no.1ÂVasant Pisalkar was working as Head Constable at Police Station, Darwha while the

appellant Ganesh Agle was working as Constable in the said Police Station. It was the case of the prosecution that one Vijay Jaju, the complainant

(PW1 herein) had approached the said accused no.1 in connection with a complaint submitted by one Shevantabai Surjuse against him in respect of an

incident involving his vehicle. It was alleged that the said complainantÂVijay (PW1) met the accused no.1 on 28.08.1994 at Lohi, when he was

asked to attend the Police Station, Darwha on 29.08.1994. Upon the complainant (PW1) reaching the said Police Station on 29.08.1994, accused

no.1 allegedly demanded Rs.1500/ as bribe for hushing up the matter. The bribe amount was finally settled at Rs.700/ of which complainantÂ‐

Vijay (PW1) allegedly paid Rs.200/ to the accused no.1. It was agreed that the balance amount would be paid to the accused no.1 on the next

day i.e. on 30.08.1994.

As the complainant (PW1) did not intend to pay the bribe amount, he approached the office of Anti-Corruption Bureau (ACB) on 29.08.1994 and

submitted a written complaint, on the basis of which, preparations were made by the ACB for executing a trap against the accused no.1. The

preparations for the trap were made on 30.08.1994 in the morning, wherein two witnesses were called and necessary instructions were given for

executing the trap. Shadow witness (Pancha no.1), in the present case, was Vishnu Ranmale (PW2) who was to accompany complainantÂVijay

(PW1) at the time of execution of the trap.

As per the prosecution case, on 30.08.1994, complainantÂVijay (PW1) along with shadow witnessÂVishnu (PW2) went to the police post, where

the accused no.1 was to meet them. Both of them met accused no.1. Shadow witnessÂVishnu (PW2) was sent to bring tea and after he came

back, complainantÂVijay (PW1) requested the accused no.1 to do his work, upon which the said accused demanded the bribe amount. It was the

case of the prosecution that at this time, the appellant (accused no.2) had entered the office of the accused no.1 and that when the demand was made

by accused no.1, the appellantaccused no.2 also said to Vijay (PW1) that he should pay the amount of Rs.700/Â​ for getting his work done. Thereupon,

complainantÂVijay (PW1) gave the smeared currency notes to the accused no.1, who then handed over the said notes to the appellantÂaccused no.2,

who put them on the adjoining wooden rack. Upon the predecided signal being given by complainantVijay (PW1), raiding party rushed to the place

and apprehended both the accused. Thereafter, process of pouring Sodium Carbonate solution on the fingers of both the accused, was undertaken and

samples were collected for being sent for chemical analysis. Panchanama no.2 (postÂtrap panchanama) was prepared and offences were

registered against the appellant and accused no.1.

The appellant was charged with having committed an offence of abetment under Section 12 of the aforesaid Act, for having assisted the accused

no.1 in committing the offence under Sections 7 and 13 of the said Act. The prosecution examined four witnesses in support of its case.Vijay Jaju

(PW1) was complainant, Vishnu Ranmale (PW2) was shadow witness, Ramdas Sonkusare (PW3) was police official who granted sanction for

prosecution of the accused and Sanjay Deshpande (PW4) was the investigating officer. The appellant and the accused no.1 examined defence

witness, a person who was running teaÂstall outside the police post, from where shadow witnessÂVishnu (PW2) had ordered tea at the time of

execution of the trap. It was the defence of the appellant that presence of shadow witnessÂ​Vishnu (PW2) was doubtful.

On the basis of the evidence and material on record, the trial Court held that the prosecution had proved its case beyond reasonable doubt. The

appellant has challenged his conviction under Section 12 of the said Act.

Mr. Sunil Manohar, learned Senior Advocate appearing on behalf of the appellant (accused no.2), submitted that insofar as the appellant was

concerned, there was no evidence on record to show that he had made any demand of illegal gratification from complainantÂVijay (PW1). It was

submitted that even if the appellant was said to have handed over the smeared currency notes, that by itself could not be the basis for conviction of the

appellant for the offence of abetment under Section 12 of the said Act. It was submitted that a perusal of the evidence of complainantÂVijay

(PW1), shadow witnessÂVishnu (PW2), read with evidence of defence witnessÂKeshao Warghat (DW1), demonstrated that the very presence of

shadow witnessÂVishnu (PW2) at the time when the trap was executed, was rendered doubtful. In this situation, only the evidence of

complainantÂVijay (PW1) remained and his uncorroborated version was not sufficient to uphold the conviction and sentence imposed by the trial

Court against the appellant. It was submitted that there was no evidence of demand made by the appellant and, therefore, the impugned judgment

and order was unsustainable.

Per contra, Mr. Vishal Gangane, learned A.P.P. appearing on behalf of the State, submitted that when the appellant had been caught red handed

and both; complainantÂVijay (PW1) and shadow witnessÂVishnu (PW2) had deposed regarding the utterances made by the appellant at the time of

execution of the trap, it could not be said that the conviction and sentence imposed by the trial Court against the appellant was not tenable. It was

submitted that there was sufficient evidence on record to prove the guilt of the appellant of having abetted the accused no.1 in committing offence

under Sections 7 and 13 of the said Act and, therefore, the appeal deserved to be dismissed.

Having heard counsel for the parties and upon perusal of the evidence and material on record, it becomes evident that in the present case, the

prosecution has attributed a marginal role to the appellant and according to the prosecution, the appellant cameto the police post where the accused

no.1 was to meet complainantÂVijay (PW1) and that when the demand of illegal gratification was made by the accused no.1, the appellant supported

the said demand by his utterances, thereby abetting the accused no.1 in committing the offence. Even as per the prosecution, the appellant had no role

in the alleged first demand made by the accused no.1 on 29.08.1994. In fact, the appellant was not in picture at all as regards the alleged demand of

illegal gratification by the accused no.1 for hushing up the case that was sought to be initiated by a lady against complainantÂVijay (PW1). As per the

prosecution case itself, the appellant appeared on the scene when the trap was being executed on 30.08.1994. In this context, the evidence of the

prosecution witnesses and that of defence witness needs to be appreciated.

A perusal of the evidence of complainantÂVijay (PW1) shows that insofar as the appellant is concerned, it was claimed that after the accused

no.1 had made demand of illegal gratification at the time of execution of the trap, the appellant had said to complainantÂVijay (PW1) that his work

would be done if he pays Rs.700/Â. This witness claimed that thereafter he gave Rs.500/ to the accused no.1 as Rs.200/ had been already paid

to him. Thereafter, the accused no.1 handed over the said currency notes of Rs.100/ denomination amounting to Rs.500/ to the appellant who

kept them on a wooden rack. It is strange that when complainantÂVijay (PW1), did not attribute any role to the appellant when the first demand of

illegal gratification was made by the accused no.1 on 29.08.1994 and the bribe amount was settled, how could he claim that the appellant, without any

prior knowledge of the figure of the bribe amount settled between the accused no.1 and complainantÂVijay (PW1), specifically stated that

complainant should pay Rs.700/ to the accused no.1 for getting his work done. This witness has further stated that he had sent shadow witnessÂ‐

Vishnu (PW2) for ordering tea and that shadow witness ordered tea and came back in two minutes, but in crossexamination, this witness has admitted

that police post was about two furlong from sugar factory and that the canteen, from where tea was ordered, was near main gate of the sugar

factory. Thus, if shadow witnessÂ​Vishnu (PW2) had indeed gone out and ordered tea, it was not possible for him to come back within two minutes.

A perusal of the evidence of shadow witnessÂVishnu (PW2) shows that he has also attributed role to the appellant, similar to that stated by

complainantÂVijay (PW1). This witness has also stated that the appellant specifically directed complainantÂVijay to pay Rs.700/ to the accused

no.1. In the crossÂexamination, shadow witnessÂVishnu (PW2) conceded that he did not know as to what was the conversation between

complainantÂVijay (PW1) and the accused no.1 when he had gone to order tea. He further admitted in crossÂexamination that the boy, who

brought the tea, followed him with a kettle of tea. This shows that shadow witnessÂVishnu (PW2) had indeed walked down to the canteen which

was about two furlongs away, waited for the tea to be prepared and came back with the boy carrying kettle of tea to the police post.

In this context, the evidence of defence witnessÂKeshao (DW1) becomes significant. He is the very person who carried kettle of tea and

followed shadow witnessÂVishnu (PW2) to the police post. In his crossÂexamination, Keshao (DW1) clearly stated that the police post was about

two furlongs away from the sugar factory. He deposed that the person, who ordered tea, came to his stall and that he prepared five cups of tea in

ten minutes and that he then accompanied the said person with the kettle of tea and they reached the police post. Thus, as per the evidence of this

witness, shadow witnessÂVishnu (PW2) walked the distance of two furlongs from the police post to his stall, waited for about ten minutes for tea to

be prepared and then both of them walked back to the police post. This shows that shadow witnessÂVishnu (PW2) was away from the police post

at the time of execution of trap for at least twenty minutes. But complainantÂVijay (PW1) claimed in his evidence that shadow witnessÂVishnu

(PW2) was away for only two minutes while ordering tea. This shows that there is a major discrepancy in the evidence of complainantÂVijay

(PW1) when compared to that of shadow witnessÂVishnu (PW2) and the very presence of shadow witness is rendered doubtful. If the evidence

of shadow witnessÂ​Vishnu (PW2) is discarded then only the evidence of complainantÂ​Vijay (PW1) survives against the appellant.

It has been noted above that complainantÂVijay (PW1) himself has not attributed any role to the appellant till the time when the trap was

executed. It was not the case of complainantVijay (PW1) that the appellant, along with accused no.1, had made the initial demand of illegal

gratification or that they had consulted with each other about final negotiation of the amount of Rs.700/Â towards illegal gratification, allegedly

demanded by the accused no.1. In this situation, the claim made by complainantVijay (PW1) that at the time of execution of the trap, the appellant

asked complainantÂVijay (PW1) to pay Rs.700/Â to the accused no.1 for getting his work done, is not acceptable. Although, the very presence of

shadow witnessÂVishnu (PW2) has been rendered doubtful, even the said witness has stated that the appellant had told complainantÂVijay (PW1) to

pay amount of Rs.700/Â to the accused no.1. As the entire story of the prosecution witnesses regarding role of the appellant in the present case is

rendered seriously doubtful, the benefit of doubt must go to the appellant.

But, the trial Court has failed to appreciate this aspect of the matter while passing the impugned judgment and order. It appears that the trial

Court has rejected the contention about shadow witnessÂVishnu (PW2) having remained away from the police post for a long period of time while

ordering tea, on the basis that there was nothing to show that there was no other tea stall in the vicinity of the police post. In this regard, the trial

Court has failed to take into account the evidence of the defence witness, who categorically stated that tea was ordered and that he had accompanied

the person to the police post with kettle of tea. A defence witness is required to be given the same respect and value as that of the prosecution

witness, particularly when the evidence of the defence witness does carry ring of truth. The trial Court failed to appreciate this aspect of the matter,

while rejecting the contention raised on behalf of the appellant that the very presence of shadow witnessÂ​Vishnu (PW2) was rendered doubtful.

Apart from this, the trial Court failed to appreciate that there was lack of cogent evidence to show that the appellant had abetted the accused no.1

for committing offence under Sections 7 and 13 of the aforesaid Act. The trial Court did not appreciate the fact that demand of exact amount of

Rs.700/Â being stated by the appellant was wholly unbelievable, even if the depositions of complainantÂVijay (PW1) and shadow witnessÂVishnu

(PW2) were taken into consideration. Therefore, evidence of appellant having only handled the smeared currency notes, remained on record. But, the

appellant could not be held to be liable for abetment only because he had handled the currency notes and placed them on the wooden rack. The

total absence of cogent evidence to show involvement of the appellant in demanding the illegal gratification or in assisting or provoking the accused

no.1 in making demand for such illegal gratification, shows that the appellant could not be held liable under Section 12 of the said Act.

The trial Court completely failed to appreciate this aspect of the matter and it rendered a perverse finding against the appellant on the basis of

erroneous appreciation of the evidence and material on record. It is the settled law that in the absence of any evidence of demand or material to

show abetment by an accused for commission of an offence under the aforesaid Act, proof of mere acceptance or handling of bribe amount, would

not fasten liability on the accused. Therefore, the conviction and sentence imposed by the trial Court against the appellant in the present case is

rendered wholly unsustainable.

In the light of above, the present appeal is allowed. The impugned judgment and order convicting and sentencing the appellant is quashed and

set aside and the appellant is acquitted of the offence for which he was charged. Bail bonds of the appellant stand cancelled.