2008 ALL MR (Cri) 2807
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
B.R. GAVAI, J.
Ramrao S/O. Satyanarayan Ramod Vs. State Of Maharashtra
Criminal Appeal No.544 of 2004
8th September, 2008
Petitioner Counsel: Shri. R. N. DHORDE
Respondent Counsel: Shri. K. G. PATIL
(A) Prevention of Corruption Act (1988), Ss.7, 13(1)(d) r/w.13(2) - Evidence Act (1872), S.3 - Appreciation of evidence - Demand and acceptance of bribe - Hostile witness - Merely because a witness is declared hostile, his entire evidence cannot be discarded - However, evidence of the witness neither supporting prosecution case regarding initial demand nor acceptance by accused - Held, conviction on the basis of such dubious evidence would not be sustainable in law. 1991(3) SCC 627 - Ref. to. (Paras 18 & 22)
(B) Prevention of Corruption Act (1988), Ss.7, 13(1)(d) r/w.13(2) - Criminal P.C. (1973), S.197 - Corruption charges - Sanction for prosecution - Sanction granted without applying mind to relevant material - Sanction vitiated in law on ground of non-application of mind by the competent authority while granting sanction - Order of conviction and sentence passed against accused, quashed and set aside. 2007 ALL MR (Cri) 1201 (S.C.) - Ref. to. (Paras 29, 30)
Banshi Lal Yadav Vs. State of Bihar, 1981 SCC 69 [Para 10,23]
State of Andhra Pradesh Vs. T. Venkateswara Rao, 2004 SCC 227 [Para 10,25]
V. Venkata Subbarao Vs. State, 2007 ALL MR (Cri) 1201 (S.C.)=2007 Cri.L.J. 754 [Para 10,25,29]
Tej Bahadur Sing Vs. State of Uttar Pradesh, 1990 [Supp.1] SCC 125 [Para 10,26]
Gangakumar Srivastav Vs. State of Bihar, 2005 Cri.L.J. 3454 [Para 10,26]
Subhash Parbat Sonvane Vs. State of Gujrat, 2002 SCC 86 [Para 10,27]
Khuji @ Surendra Tiwari Vs. State of Madhya Pradesh, 3 SCC 627 [Para 12,22]
JUDGMENT :- By way of present appeal, the appellant challenges the judgment and order passed by the learned Special Judge Beed dated 19th August, 2004 in Special Case No.20/1999 thereby convicting the accused for the offence punishable under Sec.7 of the Prevention of Corruption Act and sentencing him to suffer one year rigorous imprisonment and to pay fine of Rs.5,000/- in default of payment of fine to suffer further rigorous imprisonment for three months. The accused is also convicted for the offence punishable under Sec.13[d] r.w. 13 of the Prevention of Corruption Act, 1988 and sentenced to suffer one year rigorous imprisonment and to pay fine of Rs.5,000/- in default of payment of fine, to suffer further rigorous imprisonment for three months.
Complainant Shaikh Nijam PW-2 had lodged a complaint with Anti Corruption Bureau Beed on 24th July, 1998, stating therein that on 22nd July, 1998 one complaint was lodged by Karnaraj Dharmaraj Waghmare in Beed Police Station. On the basis of said complaint a crime was registered against one Shaikh Akbar, brother of the complainant. It is further stated in the complaint that on 22nd July, 1998 after coming to know about it, he had gone to City Police Station Beed. He met the accused who was the Police Inspector of the City Police Station, Beed at the relevant time. The accused demanded 'Morga Muttan' party and Rs.5,000/- for release of his brother on bail. The complainant states that he agreed to give Rs.2,000/- and also to offer dinner at his house. It is stated that accordingly in the evening of the said day at around 10-00 pm the accused had been to his house to attend dinner. The father of the complainant and one Shahajadkhan @ Shaddo Yar Mohammad Khan the friend of his father were also present for dinner. In presence of said persons, the complainant paid Rs.2,000/- to the accused.
3. It is further stated that while going back after the dinner party, the accused told the complainant in presence of his father and said Shaddu that the other party had also taken the name of his father as accused in the said case and therefore his father will also have to be arrested. It is further stated in the complaint that thereafter the complainant told the accused that when he had come to the police station for recording the complaint against the opposite party, the accused had told him not to lodge the complaint and the accused will settle the matter. It is further stated that the complainant also told the accused that because of this the other side was taking advantage and his father had no concern with the said incident. He stated that on this, the accused told that since the other side had taken the name of his father as accused, he will have to arrest his father. It is stated that because of this the father of complainant got frightened and the complainant therefore asked the accused to find out some way. It is stated that the accused thereafter demanded an amount of Rs.15,000/-. It is stated that however on negotiation, the said amount was settled at Rs.10,000/-.
4. It is further stated that though initially the accused demanded the money immediately, he, however, agreed to accept the amount on next day morning. It is stated that however, as the complainant could not arrange for the funds and could not go to the accused, on next day morning he received phone call from the accused asking him why he did not come with the amount. The complainant, therefore, told that he will arrange for the amount by evening. It is stated that the complainant could not arrange for the amount till evening and as such the accused made another phone call asking him as to why the amount was not brought. The complainant told him that he could not arrange for the amount and he will pay him the amount on next day between 11-00 to 11-30 pm by coming to the police station. However, the accused told him not to come to the police station, but to come to his residence between 03-30 to 05-00 pm. The complainant, therefore, agreed to give him the amount by coming to his house on next day. Since the complainant was not willing to give any bribe amount to the accused, he lodged the complaint in Anti Corruption Bureau, Beed.
5. It is the prosecution case that Dy.S.P., Bhokare recorded the complaint of the complainant and sent requisition to the Collector for making available two Class-II officers to act as panch. Accordingly, Motiram Gaikwad and Shridhar Joshi the officers of the rank of Tahesildar, came to his office. It is the prosecution case that since Dy.S.P., wanted to verify about the allegations of demand, he asked panch no.1 to go along with the complainant to the house of the accused. He stated that accordingly the complainant and PW-1 panch Gaikwad went to the residential quarter of the accused. They came back at about 03-45 p.m. and they disclosed that the accused had demanded and insisted for bribe amount. It is further the prosecution case that the accused had enquired about panch no.1 Gaikwad, who posed himself as a dealer in teak-wood. It is further the case of prosecution that the accused had demanded 'Hafta' from PW-1 of Rs.7,000/- per truck.
6. Thereafter the preparation for laying the trap was made. The raiding party came in the vehicle brought by the complainant at the residential quarter of the accused. The complainant and the panch no.1 went inside the quarter at about 04-30 p.m. The other members of the raiding party were waiting outside. The complainant then took out the tainted notes from his shirt pocket and gave it to the accused. The accused accepted the amount and without counting it, put it in his left side chest pocket of his shirt. The accused promised that he will not arrest his father. Thereafter the complainant came outside to give signal. The members of the raiding party came in the house. Bhokare asked panch no.1 as to who has accepted the bribe amount. Panch Gaikwad pointed out towards the accused. It is the prosecution case that anthracene powder was detected on the right hand fingers of the accused and so also the inner side of his shirt's chest pocket. The notes were taken out from shirt pocket by panch no.2.
7. After completion of investigation the report was submitted to Superintendent of Police Anti Corruption Bureau Aurangabad for obtaining necessary sanction from the Additional Director General of Police PW-4 Shri. Puri. The charge-sheet was filed. The accused pleaded not guilty. The defence of the accused was that there was a competition between him and Bhokare for getting the post of Police Inspector City Police Station, Beed. It was his defence that since he succeeded in getting the said posting, Bhokare had a grudge against him and as such he was falsely implicated. At the conclusion of the trial, the learned trial Court passed the order of conviction and sentenced him as aforesaid and therefore the present appeal.
8. Shri. Dhorde the learned counsel appearing on behalf of the appellant submits that from the entire evidence it could be seen that the present appellant was falsely involved in the case. He submits that from the evidence of PW-2 complainant Shaikh Nijam it reveals that the complainant has not identified the accused. He further submits that from the evidence of PW-1 panch Gaikwad, it could be seen that in his cross-examination he has clearly stated that it is only the complainant who had gone inside the house and that he was waiting outside and as such the demand and acceptance were not proved. He further submits that it could be seen that all the panchanamas were written in the police station and written by said Bhokare and the panchas put their signatures as directed by the said Shri. Bhokare.
9. He further submits that both these witnesses have not been declared hostile by the prosecution and as such there was no evidence of either acceptance or demand against the appellant. He further submits that the investigation of the crime in question regarding which the alleged demand was made, was with PW-3 Kathale. He submits that from his evidence it is clear that the brother of the accused was juvenile offender and as such, he was nominally arrested and released on bail immediately. It is submitted that the charge-sheet in said case was immediately filed on 23rd July, 1998. He further submits that even the name of the father of the complainant was not mentioned in the complaint of said Waghmare. It is therefore submitted that on 24th July, 1998 there was nothing pending before the accused for which the amount could be demanded. It is therefore submitted that there was no motive.
10. He further submits that the evidence against the appellant was of dubious character and as such the conviction could not be based on the basis of such evidence. He further submits that the sanction order is not granted by competent authority and further that the sanction is without application of mind to the facts of the case and as such the conviction is not tenable.
He relies on the judgments of the Apex Court in the cases of Banshi Lal Yadav Vs. State of Bihar reported in 1981 SCC 69, State of Andhra Pradesh Vs. T. Venkateswara Rao reported in 2004 SCC 227; V. Venkata Subbarao Vs. State reported in 2007 Cri.L.J. 754 : [2007 ALL MR (Cri) 1201 (S.C.)]; Tej Bahadur Sing Vs. State of Uttar Pradesh reported in 1990 [Supp.1] SCC 125; Gangakumar Srivastav Vs. State of Bihar, 2005 Cri.L.J. 3454 and in the case of Subhash Parbat Sonvane Vs. State of Gujrat reported in 2002 SCC 86.
11. Shri. Patil learned APP on behalf of the respondent submits that the complainant has deposed about the demand and acceptance by the accused. He submits that from the evidence of PW-3 it is clear that the investigation was done under the supervision of the accused and as such the contention of the appellant that the accused had no role, is without any merit. He therefore submits that from the evidence of PW-2 read with PW-3 it can be seen that the demand is corroborated. He further submits that though the complainant has not identified the accused, in view of the arrest panchanama and the fact regarding the finding of anthracene powder on the finger of the accused, the identity is established. He submits that even if the witnesses have turned hostile, still that part of the testimony of the witness which is found reliable can be based for conviction. He therefore submits that the part of the evidence of PW-1 panch Gaikwad and PW-2 complainant Shaikh Nijam which denotes about the demand and acceptance, is reliable and as such the conviction could be based on the basis of said evidence.
13. The prosecution mainly relies on the evidence of PW-1 panch Motiram Gaikwad, PW-2 complainant Shaikh Nijam, PW-3 Police Head Constable Shankar Kathale, PW-4 S. S. Puri Sanctioning Authority and PW-5 Bhokare, Dy.S.P., the investigation officer.
14. In so far as the evidence of the complainant is concerned, no doubt in his examination-in-chief he states that the accused had demanded initially Rs.5,000/- for release of his brother on bail and that was settled at Rs.2,000/-. He states that one 'Saheb' had demanded money. He further states that he does not remember the name of that officer. He further states that after the mutton party, the said Saheb told him that name of his father was also in that case and therefore he is likely to be arrested. He states that though the accused had demanded an amount of Rs.15,000/-, it was settled at Rs.10,000/- which was to be paid on next day. He further deposed about the receipt of telephone call from the accused on the next day and accused informing him that he will be available at his residence between 03-00 to 05-00 pm. He also states about he going to the house of the accused along with the panch Gaikwad and the accused making a demand in his presence and the accused telling him to come with the amount at earliest. He further states about, thereafter they going to A.C.B. office and coming back with the tainted notes to the residential quarter of the accused along with panch Gaikwad and giving that amount to the accused.
15. However, in the examination-in-chief itself he has stated that he was not in a position to state whether the accused is same person or not. The said witness was declared as hostile only on the point of identification. It could be seen that the said witness has refused to identify the accused and as such the prosecution is relying on the arrest panchanama of the accused for identity of the accused. In that view of the matter the evidence of PW-1 panch Gaikwad would be relevant.
16. Though PW-1 Gaikwad has supported the prosecution case in his examination-in-chief, he has totally turned around in his cross-examination. Even in spite of that, he has not been declared as hostile. He states in his cross-examination that he had neither read the complaint nor the papers produced by PSI Munir Patel. But he had seen those papers. He states that the Collector had asked him to go to A.C.B. Office and to work as per the instructions of Dy.S.P. Bhokare. He stated that such instructions were also given to panch Joshi. He states in his evidence in para 08 as under;
"Bhokare asked me to go with the person who was present there and to see what happen. That person told Bhokare what happened after returning. The panchanamas were already written by Bhokare and he obtained our signatures on it. Bhokare took our five-six signatures."
He further states in his evidence in para 09 as under;
"That person with me went inside the quarter. Before I entered in the quarter that fellow came out side and told me that he gave the amount. Therefore I do not know to whom he had given the amount. Thereafter we all came back to A.C.B. Office. Bhokare prepared the panchanamas and obtained our signatures. We signed those panchanamas as per the letter given by the Collector and we returned to our office. During all this process whatever talk we had it was only with Bhokare. When we returned to office on 24th we returned at about 06.00 to 07.00 p.m. Thereafter I had no occasion to go to A.C.B. office on second or third day."
"Out of these two versions, the later version made in the cross-exam on 20-2-2004 is correct. I have given statement of 2-1-2004 on the say of police. I said so on the say of Bhokare of Anti Corruption. I had no meeting on the date of my deposition, but at the time of panchanama itself Bhokare had stated me to depose like this."
In his re-cross-examination he states thus;
"The collector had given me written directions that I should act as per the directions of Shri. Bhokare and therefore without making any inquiry, I signed the panchanamas and the statements."
19. From the evidence of PW-3 Kathale it could be seen that he has stated that the investigation was carried out by him under the supervision of the present accused. From his evidence it is clear that the brother of the complainant was released on the date of arrest itself, and only his nominal arrest was shown. As such the version of the complainant that an amount of Rs.5,000/- was demanded which was settled at Rs.2,000/- for release of his brother, does not appear to be believable.
20. It is further to be noted that all the investigation in the crime registered on the complaint of Karanraj Dharamaraj Waghmare, on the basis of which crime no.256/1998 was registered, was completed on 23rd July, 1998 itself. The perusal of Ex.29/C would show that the charge-sheet was also filed on 23rd July, 1998. The perusal of complaint would reveal that the name of the father of the complainant is also not mentioned in the said complaint.
21. From the perusal of the aforesaid evidence, it reveals that PW-2 Shaikh Nijam has refused to identify the accused and the only evidence regarding the identity of the accused, on which the prosecution relies, is his arrest panchanama. However, the arrest panchanama itself is in shadow of doubt inasmuch as the panch clearly stated that all panchanamas were written in A.C.B. Office by investigation officer Shri. Bhokare and that he had signed as per the directions of said Shri. Bhokare as he was directed by the Collector to do so.
22. In so far as the reliance placed by Shri. Patil in case of Khuji @ Surendra Tiwari Vs. State of Madhya Pradesh reported in 3 Supreme Court Cases 627 is concerned, no doubt merely because a witness is declared hostile, his entire evidence can not be discarded. The conviction can be based on such of the evidence which could be found to be reliable. However, in the presence case, the complainant has refused to identify the accused and the panch witness has clearly stated that all panchanamas were written in the A.C.B. Office and he had signed them without reading it. I find that the conviction on the basis of such dubious evidence would not be sustainable in law.
Before presumption can be raised under Sec.4 of the Prevention of Corruption Act, the burden lies on the prosecution to prove that the accused has accepted or obtained or has agreed to accept or attempted to obtain, for himself and gratification other than legal remuneration etc.
24. In the present case I find that the prosecution has utterly failed to discharge its burden. As already discussed above, the brother of the accused was nominally arrested on 22nd July, 1998 and the charge-sheet was filed on 23rd July, 1998, there was no name of the father of the complainant in the complaint filed by said Waghmare, as such there was no reason for arresting the father of the complainant.
25. The prosecution version is that on the date of the trap, initially the complainant was sent along with the panch who was the Tahesildar, to the house of the accused, wherein he reiterated his demand and thereafter the complainant and panch returned and again went back to give the amount at the time of trap. Beed town is a small City. The accused was working there as Police Inspector. The said panch was working as Tahesildar. It is difficult to belive that the accused and the panch were not knowing each other and that in the presence of such person a demand would be made, the complainant and the panch would go back and come again after some time with money and the accused would accept the same. Reliance in this respect can be placed on the judgment of the Apex Court in the case of State of Andhra Pradesh Vs. T. Venkateswara Rao cited supra. Reliance in this respect can also be placed on the judgment of the Apex Court in the case of V. Venkata Subbarao Vs. State [2007 ALL MR (Cri) 1201 (S.C.)] cited supra wherein it has been held that the presumption of demand and acceptance under Sec.20 of the Prevention of Corruption Act [49 of 1998] can not be raised when the demand by the accused has not been proved.
26. As already discussed above, the entire circumstances under which the bribe is alleged to be accepted by the accused, are highly suspicious and as such it is difficult to sustain the conviction on the basis of such dubious evidence. Reliance in this respect can be placed on the judgment of the Apex Court in the case of Tej Bahadur Sing Vs. State of Uttar Pradesh reported in 1990 [Supp.1] SCC 125 and also in the case of Gangakumar Srivastav Vs. State of Bihar, 2005 Cri.L.J. 3454.
27. The facts of the present case are somewhat similar with facts before the Apex Court in the case of Subhash Parbat Sonvane Vs. State of Gujrat reported in 2002 SCC 86. It was observed therein as under;
"In the background of aforesaid settled legal position, we would now refer to the relevant part of the evidence before the trial court, it was submitted by the learned APP that complainant has not supported the prosecution case on main ingredients of demand and acceptance and was treated hostile. In cross-examination also, he has not supported the prosecution version on demand or acceptance of the amount. The trial Court has also observed that the complainant deliberately does not support on the points of demand and acceptance. However, the Court relied upon the evidence of Panch Shailesh Devashankar Pandya [PW-2]. We were taken through the evidence of PW-2 Pandya and from his evidence, it is difficult to find out any statement made by him that accused demanded any amount from the complainant. The relevant part of the evidence of this witness suggests that when the prosecution party went at the police chowki, accused asked the complainant as to why he had come there at that time? To that, complainant replied that he was waiting since one 0' clock and that he has brought one witness to be examined. Accused informed him to come in the evening as his writer was not present. When the accused started to go towards toilet, the complainant followed him and he gave something from his pocket to the accused who took the same and put that in his pocket. From this evidence, it cannot be inferred that accused demanded any amount from the complainant or that he had obtained the same. It is apparent that the trial Court and the High Court misread the evidence of PW-2 and held that there was demand by the accused and the amount was paid to him by the complainant. It was unreasonable to hold that accused demanded money from the complainant. Complainant denied the said story and PW2 had not stated so."
PW-4 S. K. Puri, who is Sanctioning Authority has stated in his cross-examination thus;
"I do not recollect that I have perused the record of the case u/s.324 of I.P.C. Not to my recollection at this stage who was investigating the case of the complainant's brother. If I had found it necessary, I would have definitely done so to find out whether the accused was having any concern to contact with the present complainant by going through the investigation papers of case u/s.324 of I.P.C. Not to my recollection whether the papers of that case u/s.324 of I.P.C. were also included in the papers submitted to me."
29. It is thus clear that the said Sanctioning Authority has stated that he was not aware about the papers of crime No.256/1998. The very genesis of the entire case is the said crime. It was the allegation of the prosecution that the accused had demanded and accepted the aforesaid amount so as to avoid the arrest of the father of the complainant in this Crime. From the evidence of said witness, it is clear that he is not sure whether the documents of the said case were either produced before him or as to whether he has perused the said documents. Undoubtedly the said documents were relevant material. The Apex Court in the case of V. Venkata Subbarao Vs. State reported in 2007 Cri.L.J. 754 : [2007 ALL MR (Cri) 1201 (S.C.)] has observed thus;
"It is also accepted that before the Sanctioning Authority, the vital documents showing involvement of the M.R.O., had not been produced. The Sanctioning Authority, therefore, did not have any occasion to apply their mind to the entire materials on record and in that view of the matter, the sanction is, therefore, vitiated in law. Conduct of the officers of the respondent who had taken recourse to suppressio veri deserves serious condemnation."
It can thus be seen that the sanction which has been granted was without applying the mind to the relevant material. As such the appeal also needs to be allowed on the ground of non-application of mind by the competent authority while granting sanction.
30. The appeal is therefore allowed. The order of conviction and sentence passed by the learned Special Judge, Beed dated 19th August, 2004 in Special Case No.20/1999 is quashed and set aside. The bail bonds shall stand discharged. Fine amount, if paid, be refunded to the appellant.