Criminal Appeal No.84 of 1996

22nd February, 2005

Petitioner Counsel: Mr. A. V. GUPTA
Respondent Counsel: Mr. DEEPAK THAKRE

Cases Cited:
Pannalal Damodhar Rathi Vs. State of Maharashtra, AIR 1979 SC 1191 [Para 6]
Bismillakha Salarkha Pathan Vs. State of Maharashtra, 2004 ALL MR (Cri) 1341 [Para 7]
Ashok Kumar Bhagchand Wardhani Vs. State of Maharashtra, 2003 ALL MR (Cri) 88=2003(1) Mh.L.J. 131 [Para 8]
Gulam Mahmood A. Malek Vs. State of Gujarat, A.I.R. 1980 SC 1558 [Para 9]
Dudh Nath Pandey Vs. State of U. P., AIR 1981 SC 911 [Para 10]
Panalal Damodar Rathi Vs. State of Maharashtra, AIR 1979 SC 1191 [Para 19]

JUDGMENT

JUDGMENT :- This criminal appeal is directed against the judgment and order of conviction dated 30/1/1996 passed by the learned Special Judge in Special Case No.1/94, whereby the appellant-accused has been convicted for the offence punishable under Section 161 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs.1,000/-, in default to suffer further rigorous imprisonment for one month and he is also convicted for the offence punishable under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and is sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs.1,000/- in default to suffer further rigorous imprisonment for one month.

2. Brief facts required to be stated are as under :

(A) Dinkar Onkar Bhise (PW 2) is resident of Ukadgaon (Manardi). He along with his father and brother Kailash (PW 4) were living jointly. Pralhad Bhise has two brothers by name Bhimrao Bhise and Kashiram Bhise and they are the uncles of the complainant Dinkar Bhise. On 22/11/85, these three persons; Pralhad, Bhimrao and Kashinath were collecting cotton from the agricultural land of the complainant and because of that exchange of hot words took place between them. On 23-11-85 at about 6.30 O'clock all the aforesaid accused had entered into the house of the complainant and assaulted him. Pralhad Bhise had gone to the Police Station, Tamgaon and lodged the first information report against the complainant at about 13.15 hrs. on the basis of which offence bearing Crime No.136/85 for the offence punishable under Sections 452, 324 read with Section 34 of the Indian Penal Code was registered against Dinkar Bhise (PW 2). The counter report was also lodged by complainant Dinkar at the Police Station on the same day, i.e. on 23-11-85. The appellant - accused was working as Police Head Constable at Police Station, Tamgaon and he took up the investigation of this crime and visited village Ukadgaon (Manardi). He demanded Rs.3,000/- from the accused, i.e. the complainant Dinkar, his father and brother and told them that he would not handcuff them and they would be released on bail and also assured that he would institute the chapter proceedings under Section 107 of Cri.P.C. The complainant Dinkar had agreed on negotiations to pay Rs.2,000/- and he paid the amount of Rs.1,600/- to the appellant - accused, some time in the noon. The complainant had also gone to the Police Station, Tamgaon and lodged the counter report and thereafter he was referred to the Medical Officer for the purpose of medical examination and the Medical Officer had examined him at 16.30 hrs. and the Medical Officer issued the medical certificate (Exh.20).

(B) On 26/11/85 the complainant Dinkar, along with sureties including Kashiram (PW 5) and his brother Kailash had gone to the Court of Judicial Magistrate, First Class, Jalgaon-Jamod at about 10.00 a.m. and at that time the accused also demanded Rs.100/- from Dinkar which was the amount to be paid to the Court duty constable and the clerk of the Court. Complainant Dinkar and his brother were produced before the Magistrate's Court. They were formally arrested and then released on bail after presentation of the charge-sheet against them in Crime No.136/85.

(C) On 28/11/85 i.e. on Thursday Dinkar went to Tamgaon at about 12.00 p.m. and enquired as to when the accused was to file a chapter proceeding under Section 107 Cri.P.C. The accused demanded remaining amount of Rs.400/- and assured that when such payment will be made, he will file a chapter proceeding against both the parties. The accused also told that in the next 2-3 days he will be on leave and gave clear cut understanding to the complainant Dinkar that if the amount of Rs.400/- is paid, then only he will file chapter proceeding, otherwise he will file a chapter proceeding against one party only. Then the complainant Dinkar assured that he would pay the balance amount of Rs.400/- on 30/11/85.

(D) On 30/11/85 at about 11.00 a.m. complainant Dinkar went to Tamgaon Police Station and enquired about the accused. However, it came to know that the accused had proceeded on leave. On 8/12/85 during evening hours the complainant Dinkar along with one Shridhar Bhende went to Tamgaon and met the accused and at that time the accused had demanded the amount of Rs.400/- and it was agreed that on the next Tuesday at about 12 noon the payment will be made. Thereafter the complainant went back to his village and made arrangement for the remaining amount. On 9/12/85 he reached at Anti Corruption Bureau and lodged the complaint (Exh.20) which was reduced into writing by Deputy Superintendent of Police Prakash Rade (PW 7). The accused had agreed to receive the amount of Rs.400/- on 10/12/85. Mr. Prakash Rade (PW 7) secured the presence of panch witnesses including Shivram (PW 3). Thereafter the Investigation Officer drew pre-trap panchanama (Exh.32) in presence of the panch witnesses and directions were given to the complainant that six currency notes having denomination of Rs.50/- each and one currency note of Rs.100/- denomination on which phenolphthalein powder was applied, should be handed over to the accused, on demand. The numbers of the currency notes were then noted down in the pre-trap panchanama and the same were then kept in a concealed pocket of baniyan of the complainant Dinkar. Panch witness Shivram (PW 3) was asked to accompany with the complainant.

(E) Thereafter, on 10/12/85 the raiding party reached Sangrampur in between 10.00 to 10.30 a.m. The accused was not present at the headquarters, and therefore, the trap which was to be laid on 10/12/85 had to be withdrawn. The members of the raiding party went to the office of the investigating officer where the baniyan of the complainant wherein marked currency notes were kept have been packed and sealed. Then, members of the raiding party laid the trap on 11/12/85 by going to Sangrampur, but on that day also the accused was not present as he had gone to the court of Judicial Magistrate, First Class at Malkapur. The accused had left the message with one Shridhar Bhende for the complainant to come on 13/12/85, and therefore, the trap which was to be laid on 11/12/85, was withdrawn and again the same procedure was followed by going to the office of the investigating officer.

(F) Thereafter, on 13/12/85 the baniyan having same currency notes was given to the complainant Dinkar with the same directions that he should hand over the marked currency notes to the accused on demand and should make a signal by keeping his hand over his head after the amount is accepted by the accused. The members of the raiding party then came to know that on 13/12/85 the accused had gone to the J.M.F.C. Court at Jalgaon - Jamod, and therefore, the members of the raiding party went there in jeep. The complainant and members of the raiding party got down from the jeep at the rest house and then the complainant and the investigating officer came to know that the accused was present in New Auto Garage which was situated in front of the police station at Jalgaon Jamod. The complainant Dinkar along with panchas Sahdeo Kokane and Shridhar Bhende were waiting in front of the S. T. Stand. The accused came to them on Hero Majestic (two wheeler moped) and he was wearing uniform. The accused asked the complainant Dinkar to sit on his moped as his pillion rider and then they went to New Auto Garage. The accused asked the complainant to pay Rs.10/- to the proprietor of New Auto Garage. Then the accused expressed a desire to have a cup of tea and, therefore, complainant Dinkar, panchas Sahdeo and Shridhar Bhende along with the accused had gone to Ganesh Hotel and had a cup of tea. In the hotel, the accused asked the complainant Dinkar as to whether he had brought the remaining amount on which he replied in the affirmative and also said that he was waiting to pay the said amount since 10/12/85. Thereafter all the aforesaid four persons went to Panthela and had a pan and from panthela, they went to New Auto Garage and in New Auto Garage accused demanded Rs.400/- from the complainant Dinkar. The complainant then took out the currency notes amounting to Rs.400/- from the pocket of his baniyan with the help of his right hand and gave it to the accused in his left hand. The accused kept those currency notes in the left pocket of his pant. Immediately thereafter the members of the raiding party rushed to the spot and caught the accused red-handed. Both the hands of the accused were caught hold by police personnel of the raiding party and then the search of accused was taken and the currency notes were got removed from his pant pocket. Then, solution of sodium carbonate was prepared in a glass in which the fingers of left hand of the accused were dipped and the colour of the solution turned to violet. Similarly, the fingers of the complainant also turned violet when they were dipped into another separate solution of sodium carbonate. Then solution of sodium carbonate was sprinkled on the currency notes and the colour of the currency notes turned to purple. The liquid solution was collected in separate bottles and the bottles were then forwarded to the Chemical Analyser for the purpose of analysis and the report of Chemical Analyser was received in due course of time which would indicate that Exh. Nos.1 and 2 in which a pink coloured liquid was sent in a bottle for examination contain phenolphthalein and sodium carbonate and phenolphthalein was also detected in Exh.No.3, the full-pant of the accused.

(G) Investigating Officer Mr. Ahmed Javed (PW 6) who was working as Dy. Commissioner of Police, the competent authority, issued the sanction order (Exh.46) and granted sanction for prosecution of the accused who was working as Police Head Constable. On completion of the investigation, the charge-sheet against the accused was filed before the Special Judge. The Special Judge framed and explained the charge to the accused to which he pleaded not guilty and, therefore, the trial proceeded with. The prosecution, in order to bring home the guilt at the doors of the accused has examined as many as seven witnesses including Jaiprakash Navlakhe (PW 1) who was the Surveyor and who drew the map of the spot of incident (Exh.18), the complainant Dinkar (PW 2), panch Shivram Mankar (PW 3), Kailash Bhise (PW 4), the younger brother of the complainant Dinkar, Kashiram Damodhar (PW 5) who was present in the village when the first demand for Rs.3,000/- was satisfied partly by making payment of Rs.1,600/- on settlement that remaining amount will be paid in due course, Ahmed Javed (PW 6) who was the Superintendent of Police and the competent authority for granting sanction to prosecute the accused and Mr. Prakash Rade (PW 7) who was working as Deputy Superintendent of Police and who has investigated into this offence.

(H) As against this, the accused has examined two defence witnesses namely; Ramdas Bhende (DW 1) who was working in the New Auto Garage through whom the defence is said to have been made out regarding foisting of the currency notes by thrusting it into the pant pocket of the accused and Mohd. Altaf Shekhawat (DW.2) who was working as Court Orderly in the court of learned J.M.F.C., Jalgaon - Jamod on the relevant date and time for whom also the amount of Rs.100/- was accepted by the accused from the complainant Dinkar and the said amount was to be paid to the concerned clerk of the Court.

(I) The learned Special Judge, on appreciation of the evidence on record, recorded the findings that the prosecution has succeeded in establishing the complicity of the accused in demanding and accepting the amount of Rs.400/- as an illegal gratification other than legal remuneration as a motive or reward for initiation of the chapter proceeding against both the parties and that he being public servant, by corrupt and illegal means and by abusing the position as a public servant obtained for himself a pecuniary advantage, i.e. an amount of Rs.400/-. Consistent with these findings, the learned Special Judge convicted the accused for the offence punishable under Section 161 of the Indian Penal Code and under Section 5(1)(d) read With Section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him as mentioned above. This judgment and order of conviction and sentence is under challenge in this appeal.

3. Mr. Gupta, the learned counsel for the accused contended that the complainant Dinkar had lodged the report at Police Station on 23/11/85 at about 4.30 p.m. and thereafter he was sent for medical examination and the medical certificate (Exh.21) issued by the Medical Officer would reveal that he examined the complainant at about 5.30 p.m. at Tamgaon. He contended that village Tamgaon is situated at a distance which requires about two hours for reaching Ukadgaon from Tamgaon and in such circumstances in all probability, Dinkar was not present at his village Ukadgaon, and therefore, his version that on 23/11/85 the accused visited that village and demanded Rs.3,000/- for showing favour of not handcuffing them and that the matter was settled at Rs.2,000/- out of which Rs.1,600/- were paid, is not corroborated by any independent evidence though the complainant Dinkar resides along with his father and brothers. He contended that the report was lodged by Pralhad against the complainant Dinkar and other two co-accused at the same Police Station at 13.15 hrs. on the same day on the basis of which offence bearing Crime No.136/85 was registered, but there is no evidence to show that the accused had ever visited village Ukadgaon on 23/11/85 itself.

4. He contended that the prosecution has examined Kashiram (PW 5) who happens to be the neighbour of complainant Dinkar is a got up witness as his name has not been mentioned in the report (Exh.20) lodged by the complainant with the Anti Corruption Bureau. He contended that Kailash (PW 4) who is the brother of the complainant did not whisper anything about the demand and payment of Rs.1,600/- to the accused. He contended that the witnesses Manohar and Vinayak whose names appear in the report (Exh.20) have not been examined by the prosecution, and in such circumstances, the first alleged demand and acceptance of Rs.1,600/- on 23-11-85 has not been established beyond reasonable doubt.

5. Mr. Gupta, the learned counsel further contended that the evidence of complainant Dinkar is not corroborated in material particulars even in respect of the demand and acceptance of Rs.400/- on 13-2-85 during the trap which was laid at Jalgaon - Jamod near New Auto Garage. He contended that this is a case wherein the raiding party practically chased the accused when the raiding party found that the trap which was arranged on 10/12/85 and 11/12/85 was unsuccessful. He contended that on 13/12/85, the complainant Dinkar, out of frustration has thrusted the currency notes into the pant-pocket of the accused and this fact has been duly established through the testimony of defence witness Ramdas Bhende (DW 1). He pointed out that when the raiding party arrived near the accused and the complainant, they immediately asked the accused to take out the currency notes if he had accepted the same, and therefore, the colour of solution in which his fingers were dipped are bound to change into violet. He contended that there is nothing on record to disbelieve the evidence of defence witness Ramdas who had an opportunity to see as to what was happening because he himself was present in the Garage and the entire trap occurred just in front of New Auto Garage. He contended that even the prosecution has gradually went on improving its case by saying that Dinkar had paid the amount of Rs.10/- to the Garage owner on reaching there at the instance of the accused and also paid Rs.100/- to the Court orderly Mohd. Altaf (DW 2) which was to be shared by the said Court orderly and the concerned clerk of the Court.

6. He contended that the complainant is in no better position than accomplice after introduction of Section 165-A into the Prevention of Corruption Act, and therefore, corroboration in material particulars is essential. He contended that if there is no corroboration of testimony of the complainant regarding the demand for money, the same cannot be accepted. In support of these submissions, the learned counsel for the appellant-accused relied on the decision of the Supreme Court in the case of Pannalal Damodhar Rathi Vs. State of Maharashtra, AIR 1979 Supreme Court 1191.

7. The learned counsel for the accused contended that in order to draw presumption under Section 4(1) of Prevention of Corruption Act, it is necessary for the prosecution to prove the demand and acceptance of gratification other than legal remuneration or any valuable thing from any person. He relied on the decision of the Single Bench of this Court in the case of Bismillakha s/o. Salarkha Pathan Vs. State of Maharashtra - 2004 ALL MR (Cri) 1341.

8. He contended that the material evidence in relation to the demand and acceptance is lacking and the accused had immediately disclosed in the trap itself that he did not accept the amount of Rs.400/- from the complainant and therefore, the presumption has been rebutted in view of the infirmities in the prosecution evidence which was consistent with the defence version. In support of this submission he relied on the decision of this Court in Ashok Kumar Bhagchand Wardhani Vs. State of Maharashtra - 2003(1) Mah. Law Journal 131 : [2003 ALL MR (Cri) 88].

9. The learned counsel for the accused further contended that in fact, the witnesses were available namely; Manohar and Vinayak in whose presence the amount of Rs.1,600/- is said to have been paid, but both of them have not been examined. He contended that one Shridhar Bhende also appears to be the material witness of the prosecution through whom the complainant came to know regarding movements of the accused, but he is also not examined by the prosecution. The learned counsel contended that though the witnesses were available to prove the demand and acceptance of illegal gratification, they have not been examined and, therefore, the presumption, if any is rebutted and the accused is entitled for the benefit of doubt. In support of these contentions he relied on the decision of the Supreme Court in the case of Gulam Mahmood A. Malek Vs. The State of Gujarat - A.I.R. 1980 Supreme Court 1558, wherein it has been observed that; "though the panch witness corroborates the complainant, regarding the recovery, the delay in effecting the recovery of the money, the failure to examine independent witnesses who were admittedly in the court hall and in the next room to which the accused was taken, and the recovery made, makes entire prosecution case unacceptable."

10. The learned counsel for the accused further contended that the evidence of defence witnesses are entitled to equal treatment with those of the prosecution and this Court ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses and for this purpose, the reliance is placed on the decision of the Supreme Court in the case of Dudh Nath Pandey Vs. State of U.P., AIR 1981 Supreme Court 911.

11. The learned Additional Public Prosecutor contended that the evidence of complainant Dinkar (PW 2) has been corroborated in material particulars on all counts by the evidence of panch witness Shriram (PW 3). He contended that the other panch Mr. Kokane was dead and, therefore, cannot be examined. He contended that the evidence of Dinkar would clearly reveal that a report was lodged by Pralhad against him and other two co-accused who are his family members, at 13.15 hrs. on 11/3/85 on the basis of which offence bearing Crime No.136/85 was registered. The accused was entrusted with the investigation of this crime, he visited the village Ukadgaon after receiving the report and not only contacted the complainant Dinkar but also he stayed there for one night. He contended that the accused is required to maintain Petrol Book and the entries recorded in the Petrol Book clearly reveal that the accused had visited Ukadgaon on 23/11/85 for the purpose of the investigation of Crime No.136/85 for the offence punishable under Sections 452 and 324 read with Section 34 of the Indian Penal Code. He contended that these offences were cognizable offences, and therefore, the accused had gone to village Ukadgaon for the purpose of investigation and consequently could have arrested all the three accused but he had demanded from complainant that if the amount of Rs.3,000/- is paid, then the accused persons in that crime would not be handcuffed and would be released on bail immediately. The complainant Dinkar had no option than to accept the demand but the same was settled at Rs.2,000/- out of which Dinkar was able to pay Rs.1,600/-. He contended that the subsequent conduct of the accused in not arresting the complainant Dinkar and other accused on 23/11/85 itself and subsequently filing of the charge-sheet in the Court of learned Judicial Magistrate, First Class, Jalgaon Jamod on 26/11/85 would go to establish that the accused had demanded illegal gratification other than legal remuneration as a motive or reward to show him favour. He contended that, therefore, the first demand and acceptance of Rs.1,600/- has been duly proved through the circumstances.

12. The learned A.P.P. further contended that though the traps were arranged on 10/12/85 and 11/12/85, they had to be withdrawn because of the non availability of the accused at the headquarters Jalgaon - Jamod. He contended that ultimately the complainant and also the Investigating Officer on receiving the information that the complainant was called at Jalgaon - Jamod on 13/12/85 by the accused and, therefore, the members of the raiding party had gone there. He contended that the headquarters of the accused was Tamgaon but he had gone to the Court at Jalgaon - Jamod on that date and he had been to the New Auto Garage for repairing his Hero Majestic moped. He contended that the complainant met the accused when he was going on Hero Majestic moped towards the S.T. Bus stand and the accused asked him to ride on pillion seat. Accordingly the complainant rode on pillion seat and then paid Rs.10/- to the proprietor of New Auto Garage. Thereafter the accused had expressed his desire to have a cup of tea and then they went to the hotel, had a cup of tea and then went to panthela and then they returned in New Auto Garage where the moped of the accused was given for repairs. The complainant, on demand paid the amount of Rs.400/- and then gave signal to the raiding party as directed and thereafter the members of the raiding party arrived on the spot, held the hands of the accused and then found currency notes which were kept by the accused in his pant pocket. He contended that the evidence of complainant Dinkar and the panch Shriram (PW 3) is quite consistent so far as the demand and acceptance of Rs.400/- as illegal gratification is concerned and therefore, there is no reason as to why the said evidence should be discarded. He contended that simply because the trap had failed on earlier consecutive two occasions, it did not follow that Dinkar would get frustrated and would go to the extent of thrusting the currency notes into the pocket of the accused. He contended that Ramdas (DW 1) is a got up witness and no reliance could be placed on his evidence. He contended that statement of this witness was recorded by the Investigating Officer during the course of investigation and he omitted to mention before the police that the complainant had thrusted and foisted currency notes in the pant pocket of the accused.

13. The learned A.P.P. contended that on 26/11/85 the accused called the complainant Dinkar and other co-accused at Jalgaon - Jamod along with surety Kashiram (PW 5) and presented the charge-sheet in Crime No.136/85. He contended that the accused persons were nominally arrested on that day during Court working hours at about 12.10 hrs. through it was the usual practice that the charge-sheet was always to be filed through the Head Constable who was attached to the Court as Court Orderly, but in this case the accused had shown special interest and he himself presented the charge-sheet and produced the accused persons before the learned J.M.F.C., who were released on bail on execution of surety bond of Kashiram (PW 5). He contended that on 26/11/85, at the time of filing the charge-sheet, the complainant Dinkar was required to pay Rs.100/- to the concerned clerk and that amount was to be shared by Head Constable Mohd. Altaf (DW 2) who was the Court Orderly. He further contended that the accused was insisting for payment of remaining amount of Rs.400/- as he had agreed to file the chapter proceedings under Section 107 of Cri.P.C. against both the parties and those proceedings were never filed. The learned A.P.P., therefore contended that the presumption under section 4(1) of the Prevention of Corruption Act is available with the prosecution which has not been rebutted by the defence and the learned Special Judge was justified in basing the conviction on the corroborated testimony of the complainant Dinkar. He contended that there is no dispute that Ahemed Javed (PW 6) who was working as Superintendent of Police, Buldhana had issued the sanction order (Exh.46) and in such circumstances there is no reason for this Court to interfere into the impugned judgment and order of conviction. He contended that in the circumstances the appeal may kindly be dismissed.

14. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is not in dispute that Pralhad Bhise had lodged the first information report at Police Station, Tamgaon on 23/11/85 against the complainant Dinkar, his brother and father on the basis of which the offence bearing Crime No.136/85 punishable under Sections 452, 324 read with Sec.34 of the Indian Penal Code was registered. The said report was lodged by Pralhad Bhise at about 13.15 hrs, whereas the complainant had also gone to the same police Station, Tamgaon on the same day at about 09.00 hrs. It is not in dispute that the incident of Crime No.136/85 had occurred early in the morning at about 6.30 O' clock and thereafter both the parties had gone to the police station and lodged first information report.

15. It is also not disputed that complainant Dinkar was referred to the Medical Officer for the purpose of medical examination and the Medical Officer had examined him and issued medical certificate (Exh.20) which would show the time of examination of complainant Dinkar was 16.30 hrs. It is also true that complainant Dinkar says in his deposition that he paid the amount of Rs.1,600/- at village Ukadgaon (Manardi) in between 4.00 to 5.00 p.m. It appears that complainant Dinkar has no time sense and, therefore, he says that the amount of Rs.1,600/- was paid in between 4.00 to 5.00 p.m. because, in fact during that time he was with the Medical Officer. But, then it did not follow that the accused was not present at village Ukadgaon (Manardi). What is relevant to note is that the accused is required to maintain the Petrol Book and the entries recorded in the Petrol Book would reveal that on 23/11/85 the accused had visited Ukadgaon (Manardi) for the purpose of investigation. He left the police station, Tamgaon at 13.30 hrs. for Ukadgaon for investigation of the Crime No.136/85 under Section 452 of the Indian Penal Code and investigated into the same offence and made night halt at that village. Therefore, the presence of the accused at village Ukadgaon (Manardi) on 23-11-85 has been duly established.

16. Now, the evidence of complainant Dinkar (PW 2) would reveal that on 23/11/85, the accused had come to his house and demanded Rs.3,000/- and said that he would not be handcuffed for the purpose of the aforesaid crime No.136/85 and then he would be released on bail. The complainant was not in a position to pay that much amount, therefore, the matter was settled at Rs.2,000/- for not handcuffing him and also for institution of chapter proceedings under section 107, Cri.P.C. against both the parties. On the very same day he paid Rs.1,600/- and the balance amount of Rs.400/- was agreed to be paid thereafter. The evidence would further reveal that on 26/11/85 complainant Dinkar and co-accused were called at Jalgaon-Jamod for the purpose of filing the charge-sheet and on that day the accused in that case, i.e. in Crime No.136/85 were formally arrested and produced before the Court and the charge-sheet was filed and they were immediately released on bail by the Magistrate.

17. The evidence of Dinkar is said to have been corroborated by the evidence of Kashiram (PW 5) who admittedly stood surety for the complainant. Kashiram belongs to Boudha caste. He claims to have been present at the time when the demand of Rs.3,000/- was put forth and the matter was settled at Rs.2,000/- out of which Rs.1,600/- were handed over by Onkar Bhise to Dinkar and then Dinkar, in turn handed it over to accused Wagh. The evidence of this witness Kashiram does not appear to be trustworthy and does not inspire confidence especially when he has clearly admitted in cross-examination that he had stated the fact to the Dy. S.P. Rade (PW 7) at the time of recording his statement that the accused Wagh had demanded an amount of Rs.3,000/- on 23/11/85, but he cannot assign any reason as to why this fact do not find place in his statement and the date 23/11/85 is also missing in the statement. This is a material omission which amounts to contradiction and the same goes to the root of the case and shakes the basic version of this witness and makes his presence at the house of complainant Dinkar doubtful at the time when the accused is said to have demanded the amount of Rs.3,000/-.

18. In fact, Dinkar (PW 2) is jointly living along with his father Onkar and the brother also and it has come in the evidence of Dinkar that in fact, his father Onkar had given him the amount of Rs.1,600/- which was in turn paid by him to the accused at village Ukadgaon (Manardi). In such a situation, the father and brother of complainant Dinkar would be the material witnesses and their evidence would have been the best evidence to show that the accused had demanded the amount of Rs.3,000/- for not handcuffing the accused persons and that they would be released on bail and that the chapter proceedings would be instituted against both the parties. The witnesses were available to prove the demand and acceptance, but they have not been examined. The prosecution did not examine these material witnesses for the best reasons known to it and, therefore, the shaky evidence of witness Kashiram (PW 5) cannot be pressed into service in order to corroborate the testimony of complainant so far as the payment of Rs.1,600/- is concerned.

19. The learned counsel for the accused rightly relied on the decision of the Supreme Court in the case of Panalal Damodar Rathi Vs. State of Maharashtra - AIR 1979 SC 1191 wherein the ratio has been laid down that; "there could be no doubt that the evidence of the complainant should be corroborated in material particulars. After introduction of S.165-A of the I.P.C. making the person who offers bribe guilty of abetment of bribery the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon." In the present case, the evidence of Kashiram (PW 5) cannot be used as a sufficient corroboration to the testimony of complainant Dinkar and, therefore, it is obvious that the demand of Rs.3,000/- and part payment of Rs.1,600/- to the accused alleged to have been made, has not been established.

20. It is also equally significant to note that the complainant had lodged the complaint (Exh.20) on 9/12/85 with the Anti Corruption Bureau at Akola and then trap was arranged on 10/12/85. On that day, Dinkar went to the office of the Anti Corruption Bureau and in presence of panch witnesses including Shivram (PW 3) the demonstration was given by the Dy. Superintendent of Police Mr. Prakash Rade (PW 7) and the phenolphthalein was applied to the currency notes and the same were kept in the pocket of baniyan of the complainant and he was given direction that he should hand over those currency notes to the accused on demand at Tamgaon-Sangrampur. Thereafter the raiding party reached Sangrampur but found that the accused was not present at the police station as he was required to go to Ladanpur for the purpose of maintenance of law and order and, therefore, the raiding party had to withdraw the said trap on that date i.e. on 10/12/85. They came back to the office and the baniyan, in which pocket the currency notes were kept, was packed and sealed with the direction that they should report the office on the next day.

21. Then on 11/12/85 the raiding party again visited Sangrampur but on that day it was informed by one Shridhar Bhende that the accused left the message for Dinkar that he should come on 13/12/85. Therefore, on 11/12/85 also the trap was withdrawn.

22. Thereafter on 13/12/85 the raiding party including complainant Dinkar (PW 2), Shivram (PW 3) and Dy. S. P. Shri. Rade (PW 7) had gone to Tamgaon-Sangrampur where they came to know from Shridhar Bhende that the accused had gone to the Court of Judicial Magistrate, First Class at Malkapur and is likely to return by 10.00 a.m. to Tamgaon-Sangrampur. Similarly Dy. S.P. Shri. Rade also secretly gathered the information that the accused had gone to Jalgaon - Jamod and, therefore, all the members of raiding party had gone to Jalgaon-Jamod. The evidence of complainant Dinkar would show that while they were waiting for the accused Wagh in Shrikrushna Hotel at Sangrampur, they received message through one person who reached there by Matador that he should go to Jalgaon - Jamod to meet accused Wagh. What is significant to note is that Shridhar Mendhe appears to be a material witness in this case, but he has also not been examined by the prosecution to corroborate the testimony of the complainant. The whole story put forth by the prosecution gives an impression that the members of the raiding party and particularly Dy. S. P. Shri Rade (PW 7) were practically chasing the accused for effecting a successful raid. This conclusion can be safely reached because it is not in dispute that the raid had to be withdrawn on earlier two occasions consecutively.

23. So far as the trap laid at Jalgaon-Jamod on 13/12/85 is concerned, the evidence of panch witness Shivram (PW 3) would reveal that on that day he reached in the office of Anti Corruption Bureau at 4.30 p.m. The sealed packed, in which Baniyan of the complainant along with currency notes were kept, was unwrapped and the complainant was asked to wear his Baniyan and thereafter everybody was asked to dip their fingers in the mixture containing sodium carbonate. However, in spite of dipping, the colour did not change. At about 5.00 a.m. they left the office of A.C.B. and reached Tamgaon at about 7.30 a.m. They parked the jeep in the outskirts of Tamgaon. Dinkar Bhise and Kokane proceeded towards Tamgaon. Dinkar Bhise and Kokane returned back within 15 to 20 minutes as they had received a message that accused Wagh is not present at Tamgaon. They also came to know that accused Wagh was likely to return back from Malkapur at about 9.00 a.m. They received the message from the proprietor of a hotel that Wagh had gone to Jalgaon-Jamod and Dinkar Bhise was called at Jalgaon-Jamod. Therefore, they went to Jalgaon-Jamod and reached there in between 10.00 to 10.30 a.m. Their jeep was parked in the premises of Rest House at Jalgaon-Jamod. Dinkar Bhise and Kokane then proceeded ahead. Panch witnesses and other members of raiding party followed them. Accused and Dinkar Bhise met each other and Kokane was with them. Accused Wagh was at that time riding on Hero Majestic (two wheeler) and this panch witness was with the raiding party. In between 11.00 to 11.15 they received a message i.e. to say a hint, immediately. Thereafter they went to the place where accused Wagh was standing. Dinkar Bhise was asked to wait away from them. The moment they reached up to accused Wagh, the raiding party introduced themselves to accused Wagh. Dy. S. P. Rade asked accused Wagh as to whether he had accepted the money or not. Accused said that he had not accepted the money and thereafter the panch witness was asked to take the search of accused. Prior to taking the search of the accused Wagh, a demonstration with respect to the mixture of sodium carbonate was being shown to accused Wagh. All the member of raiding party were asked to dip their fingers in the solution of sodium carbonate. However, the colour of the sodium carbonate solution did not change. Accused Wagh then was asked to dip his fingers in the said solution of sodium carbonate. When the right hand fingers of the accused Wagh were dipped into the said solution, the colour did not change, whereas when accused Wagh dipped his left hand fingers into the said solution, the colour of the said solution changed. The colour of the said solution changed and it became violet. Said solution of violet colour was then sealed and was attached. Thereafter, this panch witness took the search of accused Wagh. From the left hand pocket of accused Wagh's pant he found currency notes. He found one currency note of rupees 100/- denomination and six notes of Rs.50/- denomination each and these currency notes were taken out by this panch witness from the left pocket of the pant of the accused. Thereafter, testing procedure of phenolphthalein powder on the fingers of the accused as well as the complainant was taken. The solution of sodium carbonate was also sprinkled on the currency notes and the colour of currency notes changed to violet. Similarly when the fingers of the accused were dipped into the solution of sodium carbonate, the colour of solution turned into the violet. Thereafter, the detailed post trap panchanama (Exh.41) was prepared then and there.

24. On close scrutiny of the cross-examination of panch witness Shivram (PW 3), it would clearly reveal that he has stated as under:

"It did not happen that accused Wagh removed the currency noes from his pocket and produced it and then those were attached. A fact mentioned in panchanama Exh.35 to the effect that accused Ninaji Wagh has removed the currency notes from his pocket were seized, is correct. It is true that thereafter the accused was asked to dip his fingers in the sodium carbonate solution. The said solution of sodium carbonate which turned to violet after accused dipped his fingers into it was then sealed."

"It did not happen that accused Wagh at that juncture said that I had not accepted the bribe. However, if you wish to see, you can see in my pocket. Accused Ninaji Wagh did say at that time, I have not taken the currency notes, if such currency notes are in the pocket of my dress, you can see it."

25. Careful appreciation of the evidence of panch witnesses it would clearly reveal that after the complainant gave signal to the members of the raiding party, they immediately arrived near the accused, caught hold both his hands from his back and thereafter the accused was asked to take out the currency notes from his pocket. In such circumstances, the possibility of thrusting the currency notes in the pant's pocket of the accused cannot be totally ruled out and, therefore, the learned Sessions Judge has committed an error in recording the finding that if the currency notes were planted or inserted into the left hand pocket of accused Ninaji Wagh, then there was no reason what so ever as to why his left hand fingers when dipped into the solution, the colour changed into violet and one thing is absolutely clear that accused did accept the payment of Rs.400/- by his own hands and thereafter kept it in his left hand pocket of pant. These findings of the learned Special Judge are erroneous and it would clearly reveal that the possibility of foisting the currency notes into the pant pocket of the accused is strengthened by the fact that the hands of the accused were caught hold by the members of the raiding party on his back and thereafter the accused Ninaji Wagh was asked to take out the currency notes from his pant pocket. In such a situation if the accused had taken out the currency notes from his pant pocket, the colour of solution of sodium carbonate in which fingers of the accused were dipped is bound to change and, therefore, this situation gives rise to a suspicion in the case of prosecution especially when the evidence adduced by the prosecution gives an impression that the members of the raiding party and complainant were practically chasing the accused for effecting a successful raid.

26. Even this is a case wherein the presumption under Section 4(1) of the Prevention of Corruption Act, 1947 cannot be drawn. It is necessary to reproduce Section 4(1) of the Act, 1947 which contemplates as under :

"4. Presumption where public servant accepts gratification other than legal remuneration - (1) Where in any trial of an offence punishable under section 161 or section 165 of the Indian Penal Code (45 of 1860) or of an offence referred to in clause (a) or clause (b) of sub-section (1) of section 5 of this Act punishable under sub-section (2) thereof, it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person it shall be presumed that gratification or that valuable thing as the case may be, as a motive or reward such as is mentioned in the said section 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate."

27. This is a case wherein the presumption under Section 4(1) of the Act, 1947 has been rebutted especially when the demand and acceptance of the gratification other than legal remuneration or any valuable thing from the complainant has not been proved. The material witnesses like, Manohar, Vinayak and Shridhar Bhende have not been examined by the prosecution and there is no material evidence to prove the demand and acceptance of Rs.400/-. However, though on re-appreciation of the evidence Ramdas (DW 1) who was working in the New Auto Garage, cannot be accepted to show that the currency notes were foisted in the pant pocket of the accused for want of his disclosure of this fact before the police while recording his statement, the prosecution case itself becomes doubtful so far as the demand and acceptance of Rs.400/- is concerned especially when there was every possibility and opportunity for the complainant to plant those currency notes in the pant pocket of the accused. In the result, this Court has come to the conclusion that the impugned judgment and order of conviction recorded by the learned Special Judge cannot be sustained in law and the benefit of doubt deserves to be given to the accused. Therefore, the appeal is allowed. The impugned judgment and order of conviction is set aside and the accused is acquitted of the offence with which he was charged. His bail and bond shall stand discharged.

Appeal allowed.