Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 670 OF 2003
The State of Maharashtra
(Through Shri D.R. Nikmar
P.I. ACB, Ahmednagar)
..APPELLANT
VERSUS
Kundlik Sugandhrao Aravade
Age : 33 years, P.C.B. No.699,
Nagar Taluka Police Station,
Ahmednagar, R/o Ahmednagar,
Dist. Ahmednagar.
..RESPONDENT
...
APP for appellant/State : Mr. S.J. Salgare
Advocate for Respondent : Mr. Satej S. Jadhav
...
CORAM : S.S. SHINDE, J.
Dated: May 09, 2017
…
JUDGMENT :
Heard the learned A.P.P. appearing
for the appellant/State and the learned
counsel appearing for the respondent.
2. This appeal is filed challenging the
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rd
judgment and order of acquittal dated 3
July, 2003 passed by the Special Judge,
Ahmednagar in Special Case No. 3 of 1996.
3. The prosecution case, in brief, are
as under :
th
(A) On 20 July, 1995, the tempo trax
bearing No.MH16/9452 owned and driven by the
complainant (PW1) Arvind Dagadu Sontakke,
resident of village Pathardi, Dist.
Ahmednagar met with an accident near Mehekari
Phata, resulting into damage to said vehicle.
In order to claim insurance from the
Insurance Company, the complainant required
the certified copies of the first information
report and the spot panchanama. Therefore, he
approached ASI Dange, Incharge of Kaudgaon
Police Outpost and who directed him to meet
Police Constable Bhalerao and Police
Constable Aravade i.e. the present accused,
who were attached to the said Police Outpost
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and had drawn the spot panchanama. Both these
Police Constables asked the complainant to
come after 8 days to collect the copies, but
when complainant approached them after 8
days, thereafter they asked him to come again
after two days, as the signatures of superior
officer were yet to be obtained on the
copies.
(B) Accordingly, the complainant again
came to meet them after two days, however, at
that time, they demanded the bribe amount of
Rs. 1,000/ for delivering the copies. They
further told him to pay this amount to one
Shri Gunjal, Builder and collect the copies
and driving license from Shri Gunjal only.
The request on the part of the complainant to
reduce the bribe amount was not adhered to.
st
Hence, on 21 August, 1995, the complainant
approached P.I. Shri D.R. Nimkar (PW4) of
Anti Corruption Bureau, who recorded his
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complaint and directed to remain present on
the next day for laying the trap.
(C) On the next day, however, it was
found that both Police Constables Bhalerao
and the present accused were on Bandobast at
Nagar Taluka Police Station and hence, P.I.
Nimkar sent complainant and one of the panch
i.e. Prabhakar Darade to Nagar Taluka Police
Station for verification of demand. There
complainant could meet accused alone, who on
repeated request from complainant in presence
of panch Darade reduced the bribe amount to
Rs.500/ and reiterated his instructions to
pay the bribe amount to Gunjal on the next
day and collect the papers.
(D) Accordingly, on the next day, in the
office of Anti Corruption Bureau in presence
of complainant and panch witnesses Prabhakar
Darade and Namdeo Bhingardive preparations
for trap were made, use of ultra violet lamp
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and anthracene powder was demonstrated. The
anthracene powder was smeared on currency
notes of Rs. 500/ in the denomination of
Rs.100/ each. The instructions were given to
the complainant and panch Darade about paying
of bribe amount on demand only and giving of
signal about acceptance of that demand.
Pretrap panchanama was drawn accordingly and
the raiding party went to Kaudgaon S.T. Stand
in Jeep. The complainant and panch Darade
went there along with others. At Police
Outpost accused was present and at their
gesture Gunjal took complainant and panch
Darade to the Ota of temple in the same
campus. Shri. Gunjal accepted the bribe
amount from complainant and kept it in his
shirt pocket. On giving signal, raiding party
arrived at the spot, caught hold of the
accused and Gunjal and seized currency notes
from Gunjal. They were verified under the
light of ultra violet lamp and blue glaze
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appeared thereon. Their numbers also tallied
with the numbers given in the pretrap
panchanama. Accused and Gunjal were then
given opportunity to give their say in
writing, which opportunity they availed. The
detailed posttrap panchanama was carried out
at the spot itself and they were brought to
Nagar Taluka Police Station.
(E) Thereafter, the F.I.R. bearing C.R.
No. 139 of 1995 came to be registered against
Police Constable Bhalerao, the present
accused and Shri Gunjal. As a part of further
investigation, statements of witnesses were
recorded. The map of spot was drawn, relevant
papers were collected and sent to
Headquarters for obtaining sanction. On
receipt of sanction order, the chargesheet
is filed in Sessions Court against present
accused and Shri Gunjal only. As during the
pendency of trial, Shri Gunjal has expired,
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hence the case is proceeded against present
accused alone.
4. The learned A.P.P. appearing for the
appellant/State invites my attention to the
evidence of the complainant and submits that,
the complainant categorically stated about
the demand and acceptance of Rs.500/ by the
respondent. It is submitted that, the
complainant's version gets corroboration from
the version of Shri Darade, who was
accompanying him as a panch witness. He
submits that, once the demand and acceptance
is proved, the Special Court ought to have
convicted the respondent.
5. The learned counsel appearing for
the respondent submits that, the demand of
gratification is sine qua non for prosecution
to succeed and the prosecution has failed to
prove and establish the demand being a
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prerequisite, hence the proceeding itself
are vitiated. The learned counsel appearing
for the respondent submits that, the
informant in this case is necessarily an
accomplice since he is a participant in the
crime and therefore, his testimony cannot be
relied upon in any circumstances, unless
there is a corroboration to the allegations
and narration in his testimony. He submits
that, the shadow panch in this case i.e. P.W.
2 has no way supported the version of P.W. 1
in respect of the incident of demand and
trap. The learned counsel appearing for the
respondent submits that, the work of
providing the certified copies to the
complainant was not with respondent or any of
the accused and therefore, the complainant
does not inspire confidence in alleging that
he had repeatedly approached the accused for
getting his work done. That, the respondent
was not empowered to provide any certified
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copies to any one. PW1 was aware of this
fact and hence respondent had no chance even
to mislead the complainant/P.W.1.
6. The learned counsel for respondent
submits that, the lapses, irregularities and
favoritism in investigation coupled with the
duplicity, vagueness and unnatural conduct of
the informant P.W.1 goes to show that the
case was not prosecuted with clean hands and
the respondent was victimized and informant
has used law as a tool to satisfy personal
vendetta. The learned counsel further submits
that, proving of demand to the core in this
case assumes utmost importance as presumption
under section 20 cannot be invoked, since the
tainted money was admittedly not accepted and
recovered from the respondent accused.
Therefore, the learned counsel appearing for
respondent submits that, even if two views
are possible the view favouring the accused
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has to be upheld. That, possibility of
another view by itself does not warrant
exercise of discretion by this Court.
Therefore, he submits that, the appeal
deserves to be dismissed.
7. I have considered the submissions of
the learned A.P.P. appearing for the
appellant/State and the learned counsel
appearing for the respondent. With their able
assistance, I have perused the entire notes
of evidence and also the judgment of the
Special Court so as to find out the findings
recorded by the Special Court are in
consonance with the evidence brought on
record by the prosecution or otherwise. It
appears that though main allegation by the
complainant Arvind Dagadu Sontakke (PW1) was
against one Mr. Bhalerao, who was working as
Police Constable, the trial has not proceeded
against him. No reasons are forthcoming from
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the prosecution, why the prosecution was
given up against said Bhalerao.
8. Upon careful perusal of the evidence
of the complainant, his main allegation of
demand was against Shri Bhalerao. It appears
that, the version of the complainant (PW1)
about the demand of bribe amount is not
consistent. If his deposition is carefully
perused, he stated in his deposition that, he
nd
filed the application on 22 August, 1995 for
getting the certified copies of the first
information report and the spot panchanama.
However, if the allegations in respect of
demand are concerned, those are made against
Shri Bhalerao and the respondentherein even
before filing such application for obtaining
the copies of the spot panchanama and first
information report. It further appears that,
neither Bhalerao nor Kundlik Arawade i.e.
respondent herein were authorized to issue
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such copies of the first information report
or the spot panchanama as the case may be. At
one stage, the complainant stated that,
Bhalerao and respondent herein agreed to
accept Rs.500/ and they asked him to bring
the said amount. However, at the second
breath, the complainant has stated in his
evidence that, the respondent herein told him
to give such amount to Shri Gunjal. It has
come on record that, Gunjal is no more and
died before the trial was concluded. In fact,
if the thrust of the allegations by the
complainant either in the complaint or in his
deposition before the Court is taken into
consideration, he had serious grievance
against Bhalerao, who behaved with him rudely
and asked him to come after two days. He has
further stated that, he decided to approach
the office of the Anti Corruption Bureau
because of the Police Constable Bhalerao
behaved with him arrogantly. Even during
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course of recording of his deposition, the
complainant stated that, Bhalerao demanded
money to him, and therefore, he decided to
approach the office of the Anti Corruption
Bureau. Therefore, if it was the grievance of
the complainant that, Bhalerao demanded the
money and because of him, the complainant was
aggrieved, no reasons are brought on record,
why the prosecution did not proceed against
said Bhalerao. Even in his cross examination,
the complainant admitted that, he went to
Nagar Police Station being aggrieved by the
demand of bribe amount by Bhalerao and his
arrogant behaviour. Even in his cross
examination, the complainant has stated that,
when the Police Constable Bhalerao demanded
money, he asked the complainant to give the
said money to Shri Gunjal, and when such
demand was there by Bhalerao only accused
Arwade respondent herein was present.
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9. In a trap case, the prosecution is
obliged to prove the demand by leading
clinching and cogent evidence. The evidence
of the complainant should get corroboration
from the shadow witnesses. In absence of such
corroboration, it is difficult to accept the
case of the prosecution that, there was
demand. In the present case, it was incumbent
for the prosecution to prove demand, which is
sine qua non for proving the prosecution
case, as held by the Supreme Court in the
cases of (i) Panalal Damodar Rathi V/s State
1
of Maharashtra , State of Maharashtra V/s
2
Dnyaneshwar Laxman Rao Wankhede and C.
3
.
Sukumaran V/s State of Kerala ,
10. Coming to the evidence of Darade,
who acted as panch witness, his evidence is
silent about the demand of Rs.1,000/ by the
accused for giving the documents as alleged
1 AIR 1979 SC 1191
2 2009 AIR SCW 5411
3 2015 All MR (Cri) 1200 (S.C.)
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by the complainant. No where he stated
anything about the payment of agreed amount
or the demand or reduction of the bribe
amount from Rs.1,000/ to Rs.500/. At the
most, his evidence only goes to show that,
the accused has told complainant to collect
the papers from Shri Gunjal. But there is no
whisper even for the sake of it in his
testimony that, any such talk relating to the
payment of bribe amount to the tune of
Rs.1,000/ or to Rs.500/ took place in
presence of the accused and the complainant.
Therefore, his evidence is not helpful to the
prosecution, in as much as, he is not saying
anything about the demand. Therefore, the
very case relating to verification, which is
put up by the prosecution loses its
credibility and become impossible to accept
in view of the evidence of panch witness
Shri Darade.
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11. Upon careful perusal of the findings
recorded by the Special Court, it appears
that, there is minute scrutiny of the
evidence of the prosecution witnesses brought
on record. The Special Court has gone to the
root of the evidence of the prosecution
witnesses and found that, the evidence of
complainant suffers from omissions. The
Special Court has done in depth examination
of the contents of the complaint, visavis,
the deposition before the Court and found
that, the evidence of the complainant suffers
from substantial omissions. On the whole, the
Special Court found that, the evidence of the
prosecution witnesses suffers from
contradictions, omissions and exaggerations,
and therefore, makes it unworthy to believe
the same. In my opinion, the findings
recorded by the Special Court are in
consonance with the evidence brought on
record by the prosecution and there is no
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infirmity or perversity in those findings.
The view taken by the Special Court is a
plausible view. Therefore, once the plausible
view is taken by the Special Court, even if
for a moment it is assumed that, an another
view is possible on the strength of evidence
brought on record by the prosecution, the
same is no ground to interfere in the order
of acquittal, in view of the settled position
of law by catena of decisions of the Supreme
Court and various High Courts.
12. In the light of discussion herein
above, the inevitable conclusion is that the
Appeal filed by the State shall fail.
Accordingly the Criminal Appeal stands
dismissed.
( S.S. SHINDE, J. )
…
SGA
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