Santosh s/o Sagoji Gedam vs State of Maharashtra

Exception is taken to the judgment and order dated

23-2-2006 rendered by the learned Special Judge, Nagpur in Special

Case 2/2000, by and under which the appellant-accused is convicted

for offence punishable under Section 7 of the Prevention of Corruption

Act, 1988 ("Act" for short) and is sentenced to suffer simple

imprisonment for one year and to payment of fine of Rs.1,000/- and is

further convicted for offence punishable under Section 13(2) read with

Section 13(1)(d) of the Act and is sentenced to suffer simple

imprisonment for three years and to payment of fine of Rs.1,500/-.

The gist of the prosecution case is thus :

The accused was attached to Police Station Jalalkheda as

Police Constable. One Rajendra Yeole lodged report dated 23-3-1999

that he was assaulted by one Raja and others and suffered injuries.

The accused was investigating the said complaint. The accused

demanded illegal gratification of Rs.500/- from Rajendra Yeole, who

paid Rs.200/- to the accused. Rajendra Yeole was not inclined to pay

the balance amount of Rs.300/- and lodged complaint (Exhibit 49) to

Anti Corruption Bureau, Nagpur (ACB). The ACB decided to trap the

accused. Panchas were summoned. Usual demonstrations were given.

Panchanama 1 Exhibit 28 was recorded and the trap was successfully

executed on 25-3-1999.

Shri J.H. Mahajan, learned Counsel submits that the

prosecution failed to prove not only the initial demand and acceptance

of part amount of bribe, the prosecution failed to establish the demand

and acceptance of the amount on the day of the trap. The complainant

Rajendra Yeole could not be examined since he expired before

recording of the evidence. The shadow panch Bhaiyya Raut (P.W.5)

initially did not support the prosecution. He was declared hostile and

cross-examined by the learned Additional Public Prosecutor. P.W.5 did

support the prosecution to certain extent in the cross-examination by

the learned Additional Public Prosecutor, but then the effect of the

cross-examination is wiped out in the admissions extracted from P.W.5

in the cross-examination on behalf of the accused. Shri J.H. Mahajan,

learned Counsel would submit that it is elicited from the shadow panch

(P.W.5) that he did not witness the demand or acceptance of illegal

gratification. The panchanama 2 was recorded in the police station

and the admission of P.W.5 is that he was not present when

panchanama 2 was recorded, is the submission.

Shri J.H. Mahajan, learned Counsel relying on the

judgment of the Hon''ble Apex Court in Mukhtiar Singh (Since

Deceased) through his Legal Representative v. State of Punjab

reported in (2017)8 SCC 136, submits that proof of demand of illegal

gratification is the gravamen of offence under the Act. If the

prosecution fails to prove a decisive and conclusive demand, the

acceptance or recovery of currency notes is of scant relevance. The

statutory presumption is not activated unless the demand is duly

proved, is the submission.

Per contra, Smt. S.V. Kolhe, learned Additional Public

Prosecutor would submit, relying on the judgment of the Hon''ble Apex

Court in State Represented by CBI, Hyderabad v. G. Prem Raj

reported in (2010) 1 SCC 398, that the acceptance of tainted currency

notes is sufficient to activate the statutory presumption under Section

20 of the Act. Smt. S.V. Kolhe, learned Additional Public Prosecutor

invites my attention to the judgment of the Hon''ble Apex Court in

Bhagwan Singh v. The State of Haryana reported in (1976)1 SCC

389, to contend that the evidence of a hostile witness cannot be

brushed under the carpet. The evidence remains admissible in the trial

and there is no legal bar to base a conviction upon the testimony if

corroborated by other reliable evidence, is the submission. Smt.

S.V. Kolhe, learned Additional Public Prosecutor would further rely on

the judgment of the Hon''ble Apex Court in Vinod Kumar v. State of

Punjab reported in 2015(1) Scale 542 and in particular on paragraph

29, which reads thus :

"29. The next aspect which requires to be adverted to is whether testimony of a hostile evidence that has come on record should be relied upon or not. Mr. Jain, learned senior counsel for the appellant would contend that as PW-7 has totally resiled in his cross-examination, his evidence is to be discarded in toto. On a perusal of the testimony of the said witness, it is evincible that in examination-in-chief, he has supported the prosecution story in entirety and in the cross- examination he has taken the path of prevarication. In Bhagwan Singh V. State of Haryana, 1976 1 SCC 389 it has been laid down that even if a witness is characterised has a hostile witness, his evidence is not completely effaced. The said evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence. In Khuji @ Surendra Tiwari V. State of Madhya Pradesh, 1991 3 SCC 627, the Court after referring to the authorities in Bhagwan Singh, Rabindra Kumar Day Vs. State of Orissa, 1976 4 SCC 233 and Syad Akbar V. State of Karnataka, 1980 1 SCC 30 opined that the evidence of such a witness cannot be effaced or washed off the record altogether, but the same can be accepted to the extent it is found to be dependable on a careful scrutiny thereof."

Shri J.H. Mahajan, learned Counsel submits that although

the evidence of a hostile witness cannot be washed of the record

altogether, the evidence can be accepted only to the extent the

evidence is implicitly reliable and corroborated by other dependable

evidence. Shri J.H. Mahajan places into service the observations of the

Hon''ble Apex Court in Suraj Mal v. The State (Delhi Administration )

reported in 1979 Cri.L.J. 1087, which read thus :

"2. The defence of the appellant was that he was falsely implicated and nothing was recovered from him nor did he make any demand for bribe. The Special Judge on the basis of the evidence led before the Court held that the evidence was extremely shaky and unconvincing and was not sufficient to convict Ram Narain but nevertheless the trial court convicted the appellant on that very evidence. In upholding the conviction of the appellant the High Court completely overlooked the fact that the very evidence on which the conviction of the appellant was based, had been rejected with respect to the same transaction and thus if one integral part of the story given by witnesses was not believable, then the entire case failed. In other words, the position was that while P.Ws. 6, 8 and 9 were disbelieved both in regard to the factum of payment of the bribe and the recovery of the money, regarding Ram Narain, the very same witnesses were believed so far as the appellant was concerned. It is well- settled that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses. For these reasons, therefore, when the Special Judge disbelieved the evidence of P Ws. 6 8 and 9 in regard to the complicity of Ram Narain, It was not open to him to have convicted the appellant on the same evidence with respect to the appellant, which suffered from same infirmities for which the said evidence was disbelieved regarding the complicity of Ram Narain. If the witnesses drew no distinction in the examination-in-chief regarding acceptance of bribe by Ram Narain and by the appellant and the witnesses were to be disbelieved with respect to one, they could cot be believed with respect to the other. In other words, the evidence of witnesses against Ram Narain and the appellant was inseparable and indivisible. Moreover, there is an additional circumstance which throws a serious doubt on the complicity of the appellant Suraj Mal, Although, in his statement of page 71 of the paper-book, the complainant has clearly stated that all the three accused including the appellant had met him and demanded bribe of Rs. 2000/, the

appellant having demanded Rs. 100/-, yet in the report which he lodged before Mr. Katoch, there is no mention of the fact that the appellant at any time demanded any bribe at all. Even the presence of the appellant at the time when the demand was made by Devender Singh has not been mentioned, in this document. This report, undoubtedly contains reference to a demand having been made by the S.H.O. Devender Singh on behalf of the appellant, but there is no statement in this report that any demand was made by Suraj Mal directly from the complainant. If, in fact, the appellant would have demanded bribe from the complainant just on the previous evening, it is not understandable why this fact was not mentioned in the report which the complainant submitted to the D.S P. Katoch and which is the F.I R. constituting the evidence. We have perused the statements of P.W. 6, 8 and 9 and we find that while in the examination- in-chief they have tried to implicate all the three accused persons equally without any distinction in their cross examination, they have tried to save Ram Narain and made out a different story so far as Ram Narain is concerned and have even gone to the extent of stating that he did not demand any money and that he refused to accept the money which was offered to him. In this state of the evidence, we feel that the High Court was not right in convicting the appellant. Mr. Lalit appearing for the State vehemently submitted that whatever be the nature of the evidence in the case, it is an established fact that money had been recovered from the bush-shirt of the appellant and that by itself is sufficient for the conviction of the accused. In our opinion, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Moreover, the appellant in his statement under Section 342 has denied the recovery of the money and has stated that he had been falsely implicated. The High Court was wrong in holding that the appellant had admitted either the payment of money or recovery of the same as this fact is specifically denied by the appellant in his statement under Section 342 Cr.P.C Thus mere recovery by itself cannot prove the charge of the prosecution against the appellant, in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money. For these reasons, therefore, we are satisfied that the prosecution has not been able to prove the case against the appellant beyond reasonable doubt. We, therefore, allow the appeal, set aside the conviction and sentences passed against the appellant. The appellant will now be discharged from his bail bonds." (emphasis supplied)

Concededly, in view of the death of the complainant, there

is no evidence on record to prove the initial demand or acceptance of

Rs.200/- as part amount of bribe. The only material witness to prove

that the accused demanded and accepted illegal gratification on the

day of the trap is the shadow panch (P.W.5). It would be apposite to

consider the testimony of P.W.5, with extreme caution, due to his

vacillating stands. Be it noted, that he initially did not support the

prosecution, then supported the prosecution to a certain extent when

he was cross-examined by the learned Additional Public Prosecutor and

again made a volte-face and gave admissions destructive of the

prosecution version. The prosecution version is that on the day of the

trap, the complainant, the shadow panch and the ACB squad searched

for the accused. Initially, the trap squad went to the market square,

they searched for the accused in the liquor shop, the accused was not

located and since a friend of the complainant disclosed that the

accused was sitting in the shop of a blacksmith near the Hanuman

Temple, the complainant and the shadow panch (P.W.5) went inside

the shop where the accused allegedly demanded illegal gratification

and accepted the same. In the cross-examination on behalf of the

accused, P.W.5 admits that he did not enter the shop of the blacksmith.

The relevant portion reads thus :

It did happen that complainant went to the shop of

blacksmith I stayed outside, It is true suddenly members of

trap party rushed towards shop alongwith them I entered in

the shop. The proprietor of shop Gajanan was running over

using local devise. It is true after entering in blacksmith

shop member of trap party caught hands of accused. When I

entered the shop I noticed 10 rupees note was lying at floor.

It is not true that bunch of notes was lying at the floor, but I

did not notice other note.

In the teeth of the said admission, it would be extremely

unsafe to rely on the evidence of P.W.5 to hold that the demand is

conclusively established. Different and mutually inconsistent

statements are made by P.W.5 at various stages in the evidence. P.W.6

Gajanan Dhole, the blacksmith in whose premises the trap was

executed did not support the prosecution. The learned Counsel for the

accused is justified in submitting that the prosecution failed to establish

the very sine qua non ingredient for constituting offence under the

provisions of the Act.

It is trite law that panchanama is an important document

which lends assurance to the credibility of the panch witness. The

absence of the panch during the recording of the panchanama is a

grave lacuna. P.W.5 admits that he was not present when

panchanama 2 was recorded. The relevant portion in the cross-

examination on behalf of the accused reads thus :

It is true at the time of trap it had become dark,

therefore, we went to P.St. It is true the writing about

proceeding of trap was done at P.St. It is true when

panchanama and seizure memo were written I was sitting

near tree in P.St.

The prosecution has failed to establish not only the

demand but also the acceptance and recovery of the tainted currency

notes. The evidence that the sodium carbonate test was positive, is not

sufficient to record a finding that the tainted currency notes were

accepted and recovered. The prosecution must establish that the

tainted currency notes were voluntarily accepted and it is not sufficient

that the accused handled the currency notes. The fingers of the

accused may as well come into contact with the tainted currency notes

attempting to prevent thrusting of the currency notes while throwing

away the currency notes. The submission of the learned Additional

Public Prosecutor Smt. S.V. Kolhe that the moment acceptance is

proved the statutory presumption is activated, is even otherwise

untenable. Smt. S.V. Kolhe, learned Additional Public Prosecutor relies

on paragraph 18 of State Represented by CBI, Hyderabad v. G. Prem

Raj, which reads thus :

"18. The High Court, without going into the details of the evidence, has merely come to the conclusion that no demand was made. Now, if no demand was made, there was no reason for the respondent- accused to accept the money offered by the complainant. The respondent-accused cannot deny that the money was actually touched by him. There is absolutely no cross-examination on the fact that when he dipped his finger in the solution of sodium carbonate, same turned pink, which was clear indication that he touched the money and handled it. There is no explanation, whatsoever, of this second fact as to how the fingers of the respondent- accused were soiled with phenolphthalein. This is the second circumstance, which was a very major circumstance, that the High Court has failed to note and explain, which shows that the High Court has taken a very casual attitude."

It need not be overemphasized portions of the judgment

must not be read like statutory provisions. The observations in

paragraph 18 are in the backdrop of the finding recorded in paragraph

17 that the demand is proved. Paragraph 17 of the judgment reads

thus :

"17. When Preetpal Singh Sodhi (the complainant) was waiting for the respondent-accused at Taj Mahal Hotel and when the respondent-accused came to the Hotel, the respondent-accused asked as to whether the complainant had got the money. This could not be said to be a demand, but was merely an assurance that the money was available. It must be noted here that it took almost 3-4 hours for them to prepare the agreement and work schedule and to get the signatures. What has to be noted is that even after the signatures, the agreement was not handed over to Preetpal Singh Sodhi (PW-1), and instead, the respondent-accused took it near the scooter and it was there that the demand for money was made. There is undoubtedly some mix-up as to where the demand was made because it has not come specifically in the examination-in-chief of Preetpal Singh Sodhi (PW-1) that the respondent-accused demanded the money near the scooter. The learned counsel for the respondent-accused tried to take advantage of this situation. However, we are not impressed by this at all, as the respondent-accused had already demanded the money and even this witness mentioned about the demand of money as soon as he met the respondent-accused."

With due respect, in my opinion, the judgment of the

Hon''ble Apex Court in State Represented by CBI, Hyderabad v. G .

Prem Raj cannot be construed as propounding that even if the demand

is not proved, on proof of acceptance of tainted currency notes, the

presumption under Section 20 of the Act is activated.

In the light of the discussion supra, the prosecution has

failed to prove the offence punishable under Sections 7, 13(2) read

with Section 13(1)(d) of the Act beyond reasonable doubt. The failure

of the prosecution to prove the initial demand and acceptance of part

bribe amount and the fragile evidence on the demand and acceptance

on the day of the trap creates reasonable doubt about the credibility of

the prosecution version. The benefit of the doubt must necessarily be

given to the accused.

The judgment and order impugned is set aside and the

accused is acquitted of the offence punishable under Sections 7, 13(2)

read with Section 13(1)(d) of the Act.

The bail bond of the accused shall stand discharged and

the fine paid by the accused, if any, be refunded to him.

The appeal is allowed.