Full Judgment Text
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PETITIONER:
STATE OF MAHARASHTRA
Vs.
RESPONDENT:
NARSINGRAO GANGARAM PIMPLE
DATE OF JUDGMENT27/10/1984
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
THAKKAR, M.P. (J)
CITATION:
1984 AIR 63 1984 SCC (1) 446
1983 SCALE (2)659
CITATOR INFO :
R 1987 SC1986 (34)
ACT:
Prevention of Corruption Act-S. 5(1) (a) and 5(2) and
s. 161 of I.P.C.- Accused prosecuted for demanding and
accepting illegal gratification-Trial Court convicted and
sentenced the accused-High Court acquitted the accused-
Whether and when Supreme Court should interfere. What should
be judicial approach to evidence of witnesses in a trap
case.
HEADNOTE:
The respondent, a Sub-Inspector of Police, was charged
under s. 161 of the Indian Penal Code and also under ss.
5(1) (a) and 5(2) of the Prevention of Corruption Act. The
prosecution case was that one Rege had filed a complaint
against his tenant Walawalker, that he was running a
distillary. On a search of Walawalker’s house made by P.W. 8
Gangurde, a police officer subordinate to the respondent, no
trace of distillary was found. The respondent told Rege that
since the complaint made by him was prima facie found to be
false he was liable to be prosecuted under the Bombay
Prohibition Act. The respondent demanded from Rege Rs. 2000
on 9-4-1972 as gratification for not taking any action
against him and repeated the same demand on 13-4-1972. Rege
was directed to see the respondent near about the police-
station at a place called padavi. Rege out of desperation
contacted PW 11, M.S. Khamkar and after narrating his story
requested him to lay a trap in order to catch the accused.
Rege also gave 20 hundred rupee notes to PW 11 which he
proposed to handover to the accused at the time of the trap.
The raiding party reached padavi round about 7.00 P.M. and
waited for the respondent to come. The respondent appeared
on the scene at about 8.30 P.M. and on seeing Rege repeated
his demand for the 3rd time, Rege gave the money to the
respondent. This was watched by P.W. 11, P.W. 3 and some
others of the raiding pary. Thereafter Khamkar, PW 11, went
into the room and tried to hold the hands of the respondent
who had made an attempt to take out the notes from the right
side pocket of his pant but despite this the respondent
succeeded in throwing out the notes. As the money thus
passed had already been treated with anthracine powder, the
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hands and the right side pocket of the accused were put
before the ultra violet lamp and were found to be stained
with the said powder.
The trial court convicted and sentenced the respondent
under s. 5(1) (a) and 5(2) of the Prevention of Corruption
Act. In appeal the High Court set aside the conviction and
sentences imposed upon the respondent. Hence this appeal by
the State. The State argued that there was no real and
meaningful discussion of the important evidence produced by
the prosecution in support of
622
its case and the High Court had merely narrated the evidence
without examining its intrinsic merit and had sidetracked an
issue which was not at all germane for deciding this case.
The respondent argued that the High Court having acquitted
the accused, this Court should very rarely interfere with
the judgment of the High Court and should do so only in
cases where there was a grave error of law or serious
miscarriage of justice and that too when the accused faced a
trial for several years and had been reinstated and promoted
as an Inspector.
Allowing the appeal,
^
HELD : The judgment of the High Court suffers from
serious and substantial errors of law and legal infirmities.
This is one of those rarest of rare cases where this Court
would be failing in its duty if it did not interfere with
the order of acquittal and set aside the judgment of the
High Court. On a full and complete discussion of the facts
and circumstances of the case the Court is of the opinion
that the charges against the respondent-accused have been
clearly proved and his acquittal by the High Court was wrong
both on law and on facts. [644 E-F]
The respondent took an ingenious though improbable
defence that Rege attempted to thrust the notes into his
pocket in the presence of Khamkar but he gave a push and the
notes fell on the ground; thereby he tried to explain the
stains of the anthracine powder on his hands. While putting
forward this defence the respondent seems to have forgotten
that the notes had been taken out of his pocket which was
also smeared with the powder and it is impossible to accept
that an ordinary person like Rege would have the courage and
audacity to forcibly thrust as many as 20 notes of rupees
100 denomination each into the pocket of the respondent when
he knew that the respondent was a police officer armed with
a revolver. It is difficult to believe that Rege would take
such a grave risk and do so in the presence of Khamkar and
others. The testimony of two independent witnesses and one
clerk however reveals a different story which fully
corroborates the prosecution version. [630 D-F]
The High Court seems to have devoted a major part of
its judgment to the various case diaries produced before the
court in order to establish that the accused was not present
at the police station either on the 9th or on the 13th April
1972 when the first two demands were made. According to the
High Court this gave a sufficient alibi to the respondent
from which it could be safely inferred that if he was not
present at the police station, there could be no occasion
for him to make any demand for bribe from the complainant.
Assuming that the recitals in the said case diaries are
admissible (though there is serious doubt about it) yet it
does not at all exclude the presence of the respondent at
the Ambarnath police station on the 9th and 13th because he
was not sent away to a place situated far from Bombay but
was in some other police station within a radius of a few
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miles only. Even if he was deputed to some other place he
was in possession of a jeep and he could visit the Ambarnath
police station for a few minutes on any of these dates. It
is well settled that a plea of alibi must be proved with
certainty so as to completely exclude the possibility of the
presence of the person concerned at the place of occurrence.
Such, however, is not the case here. Therefore, the
discussion of the case diaries, which engaged a substantial
portion of the High Court judgment was really an exercise in
futility. [632 D-G]
623
We have gone through the entire evidence led by the
prosecution and, in its opinion, the prosecution case was
fully proved because it has been supported by at least two
independent witnesses, viz., PW s 3 and 11 and to a great
extent by PW 7. [636 D]
This Court is unable to be convinced by any reason why
the evidence of PWs 3 and 11 should be discarded
particularly when neither of these witnesses bore any grudge
or animus against the respondent nor was any such suggestion
made to any of these witnesses. Certain minor contradictions
or inconsistencies have been pointed out in the statements
of PWs 1 and 3 but on close examination they do not appear
to be material and, therefore, not sufficient to throw out
the prosecution case. PWs 1 and 3 have fully supported the
prosecution case. [636 E-H]
The High Court was greatly impressed by what it calls a
serious lacuna in the prosecution case-that although both
Rege and Khamkar, along with the raiding party, came to the
Municipal octroi Naka the first thing which Khamkar did was
to ask Rege to stand outside (padavi) where the raiding
party was also present. The High Court further held that
from the evidence of Rege it appears that after the raiding
party came there Khamkar caught hold of the hands of the
accused and took him inside the room. The High Court has
come to this finding on a complete misreading of the
evidence of PWs 1 and 11 overlooking and ignoring the
logical sequence of events starting from the morning of 14th
April up to the time when the money passed. [637D-638C]
The High Court seems to have been under the impression
that PW 1 was not subjected to the ultra violet lamp light
test which in fact was done and here the High Court again
committed an error of record. [638 D]
The High Court did not make any attempt to scan and
appreciate the intrinsic merits of the evidence of PWs 1 and
3 as corroborated by PW 7, which by itself was sufficient to
prove the prosecution case regarding the acceptance and
recovery of money. [638H-639A]
The High Court failed to consider as to what motive
could Rege have to falsely implicate the accused when he had
not conducted the search nor was he directly connected with
the charge sheet which was going to be filed against him.
Indeed, the dominant question which the court should have
put to itself would have been as to why a complaint under s.
89 of the Prohibition Act was not filed against Rege even
though the chargesheet was ready. The evidence of Gangurde,
PW 8 shows that he was ready to file the chargesheet but the
accused directed him not to do so until the receipt of
further instructions from him. That being the position why
did the accused asked Gangurde to delay the filing of the
chargesheet ? This question has neither been answered by the
High Court nor by the accused. It seems that the approach
made by the High Court towards the prosecution has not been
independent but one with a tainted eye and an innate
prejudice. In fact, the High Court appears to have been so
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much prejudiced against the prosecution that it magnified
every minor detail or omission to falsify or throw even a
shadow of doubt on the prosecution evidence. This is the
very ante-thesis of a correct judicial approach to the
evidence
624
of witnesses in a trap case. Indeed, if such a harsh
touchstone is prescribed to prove a case it will be
impossible for the prosecution to establish any case at all.
[639 D-F; 640H-641B]
The High Court rejected vital evidence of PWs 1, 3, 8
and 11 on frivolous grounds and it did not make any attempt
to discus their evidence on intrinsic merits and the
superficial manner in which it has dealt with the evidence
and circumstances in order to demolish the prosecution case
is wholly unacceptable and leaves much to be desired. [644
B-C]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
127 of 1977
Appeal by Special leave from the Judgment and Order
dated the 22nd/23rd Jan., 1976 of the Bombay High Court in
Criminal Appeal No. 102 of 1974
O.P. Rana, and M.N.Shroff, for the Appellant.
S.B.Bhasme, Ram Jethmalani, and V.N. Ganpule, for the
Respondent.
The Judgment of the Court was delivered by
FAZAL ALI, J. This appeal by special leave is directed
against a judgment dated 22/23rd January 1976 of the Bombay
High Court acquitting the respondent of the charges framed
against him under s.161 Indian Penal Code and also under
s.5(1) (a) and 5(2) of the Prevention of Corruption Act
(hereinafter referred to as the ‘Act’). The trial court
after very detailed consideration of the evidence held that
the charges under the aforesaid sections had been fully
proved and the respondent-accused was accordingly sentenced
to undergo two years rigorous imprisonment under s.5(1) (a)
and 5(2) of the Act and a fine of Rs. 2000 was also imposed
and in default of payment of fine further six month R.I. was
imposed. The High Court in appeal disagreed with the
conclusion of the trial court allowed the appeal of the
accused, and set aside the conviction and sentences imposed
on him.
We have heard Mr. Jethmalani, counsel for the
respondent- accused and Mr. Rana for the appellant and have
gone through the entire evidence and the Judgment of the
High Court.
625
This seems to be a very strange case where truth has
been so much polluted that falsehood has taken its place and
truth buried under deep debris. This has been possible by a
clever police officer like the respondent, who tried to kill
two birds with one stone, being seized of an opportunity
which came to him through a complaint filed by Pandharinath
Shivram Rege (hereinafter referred to as ‘Rege’) against his
tenant Govind Shantaran Walawalkar (for short, to be
referred to as ‘Walawalkar’) to the effect that the
complaint suspected that his tenant, Walawalkar, was running
a distillery. On a report by the police that on searching
the premises no trace of distillery was found, presumably an
inference could be drawn that the said complaint was false,
though the said complaint was yet to be tested in a court of
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law in a prosecution under s.89 of the Bombay Prohibition
Act (for facility, to be referred to as ‘Prohibition Act’).
The police report obviously made Rege extremely nervous for
fear of impending prosecution. Rege, as his background would
show, was not an ordinary man in the street but a highly
educated person who had got a M.Sc. degree and retired as a
senior chemist before settling down in his own house called
Prapanch. Therefore, being a respectable person he naturally
get perturbed by the adverse police report. It was here that
the accused, having got an opportunity of his life through
his dice, by an ingenious device invited the complainant to
offer him bribe by putting him in a tight corner on the one
hand, and in an inextricable dilemma on the other.
To begin with, the respondent-accused sensing the
nervousness Rege started by showing human sympathy that no
harm would come to him. Finding that he had cought Rege in
the net, he took undue advantage of Rege’s helplessness and
frustration and played his game by gradually making an offer
to extricate him (Rege) if he could pay him a sum of Rs.
2,000. The demand was repeated and poor Rege found himself
between the devil and the deep sea. These repeated demands
of the respondent drove Rege into desperation which took him
to PW 11, M.S. Khamkar, to whom he narrated his story and
requested him to lay a trap in order to catch the accused.
Here, before narrating the facts, we might mention a
few words about the nature of the approach made by the High
Court. Far from probing into the truth and heart of the
matter the learned Judge appears to have readily accepted
the visibly attractive argument of the counsel for the
Respondent that by foisting a false charge of bribery on the
respondent the complainant displayed a diabolical
626
character in rendering the step taken by the police against
Wala-walkar nugatory and stalled any further action. This
argument was reiterated before us by the counsel with all
the force at his command but on closer examination, in our
opinion, the argument is completely without substance. The
learned Judge seems to have over-looked two important
circumstances which completely negative the reasoning given
by him. In the first place, assuming that the allegation of
bribery made by the complainant against the respondent was
false, how could it stop any action on the complaint which
was being looked after and investigated by PW 8 Gangurde who
categorically states that he had prepared the chargesheet
(Ex.66) on 11.4.72 and sought permission from the accused to
take Rege to the court in order to present the chargesheet
but the accused directed him not not to precede with the
chargesheet and asked him not to file the same until further
orders from him. Therefore, it was the accused who had
stalled the prosecution of Rege. In this connection Gangurde
stated as follows :
"On 13.4.72 I again approached the accused and
asked him whether the charge-sheet against Rege should
be forwarded to the court. He told me that there was no
hurry about it and that I should keep those papers with
me. He further told me that I should keep those papers
till he instructed."
It may thus be noticed that by the time Gangrude wanted
to file the chargesheet the first demand for bribery had
already been made on 9.4.72 and the second demand was yet to
be made on 13.4.72 which clearly shows that there was some
"method in the madness" on the part of the respondent in
directing his subordinate to withhold submission of the
chargesheet until further instruction from him or there was
some hidden secret which compelled the accused to give such
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a direction. And by a process of elimination it would appear
that the only consideration which inspired the accused to
take such an extraordinary step was to wait until he was
able to get the money demanded so that after receiving the
money he would get the matter dropped. This inference is
fully supported by the statement of PW 1 who has stated in
categorical terms that on one occasion he was assured by the
accused that he would see that Rege would be acquitted and
even on the 14th when the demand was finally made the
accused had assured him in the following words:
627
"You should not worry, I am arranging for the
withdrawal of that case, and that I should not harbour
any worry on that count. I said that he should see to
it."
There would therefore be no other earthly reason why
the respondent should have kept the chargesheet pending even
though it was ready. Furthermore, the possibility that the
allegations made by Rege against his tenant may have been
true cannot be reasonably excluded because the complainant
categorically states that he used to get smell of liquor and
see lot of people going and coming into Walawalkar’s house.
It may be that Walawalkar having got sense of the matter, as
he lived in the same place, removed all the traces of the
distillery before the police could reach the premises. After
all the complaint filed by Walawalkar against Rege had yet
to stand the test of judicial scrutiny and remained in the
domain of only an allegation on the basis of which a charge
sheet was to be submitted to the Court. This inference is
fully fortified, reinforced and rendered very probable by
the subsequent conduct of Walawalkar who knowing full well
that the complaint filed against him by Rege was false and
baseless which seriously and adversely harmed his reputation
and the police contemplated to take action under section 89
of the Prohibition Act at his instance against Rege, he kept
quiet and made no attempt whatsoever to pursue his complaint
or take proceeding under section 182 I.P.C. or for that
matter file a suit for malicious prosecution against Rege.
In view of such a meaningful silence on the part of
Walawalkar a fair possibility of the allegation made by Rege
against Walawalkar may have been after all true, could not
reasonably be excluded. This, therefore, completely knocks
the bottom out of the reasoning adopted by the Judge and the
argument put forward by Counsel.
Further, it is not understandable why the accused after
being informed that the charge-sheet of Rege was ready to be
submitted, directed Gangurde, his subordinate officer, to
let it lie over until further instructions. This is,
therefore, something more than meets the eye and provides an
intrinsic, nay, a conclusive proof of the factum of the
demand of bribe from Rege and inferentially suggests that
the accused wished to wait until his demand was complied
with by Rege in which case the proceeding against Rege might
be dropped. This is fully corroborated by the evidence of
Rege who states that after the two demands on 9th & 13th
April 1972, even on 14.4.72 the accused assured Rege that he
would be acquitted. The fact,
628
however, remains that the charge sheet to be submitted
against Rege was put in a cold storage, vanished into thin
air and was never revived thereafter, which still remains an
unsolved mystery. In these circumstances to dub the
complainant as a person of a dubious or a diabolical
character as the High Court has done was most unfortunate
and amounted to inflicting on him, "an unkind cut indeed."
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The story of this dextrous drama staged by the
respondent with complete adroitness and alacrity begins with
a complaint filed by Rege on the 25th of March 1972 at
police station Ambarnath at 8.30 a.m. under the Prohibition
Act. Before the complaint was reduced in writing Rege had
narrated the facts to the respondent who had asked him to
give a written complaint. On the basis of the complaint, PW
8, Gangurde carried out a search after preparing a panchnama
and reported that nothing was found in the house of
Walawalkar connecting him with the offence under s.89 of the
Prohibition Act. On 4.4.72 Rege was sent for and in
pursuance of the call from the police station he reached
there by about 8.30 a.m. where Gangurde was present but the
accused was not there. Being totally unaware of the
ingenious plan of the respondent, Ganguurde told Rege that a
case under the Prohibition Act had been registered against
him and he was to be prosecuted, arrested and could be
released on bail on furnishing a surety. Rege sent for PW 4,
Dr. V.B. Sardar, to stand surety for him so that he could be
released on bail. Before Dr. Sardar came to the police
station, the accused, who had reached the police station by
that time, impressed upon Rege that since he had given a
false complaint against Walawalkar who was a respectable
man, a case had been registered against him. This seems to
be the first step taken the accused for spreading the net in
order to catch his prey.
On 9.4.72 while Rege had gone to play tennis he was
summoned to the police station where he, accompanied by
Sukhtankar, reached at about 8.00 p.m. and saw the accused
there. The accused then took Rege on the road and told him
that if he could pay Rs. 2000 to him he would see that he
(Rege) was acquitted. It might be noticed here that PW 8
Gangurde has clearly stated that he had made a search of
Walawalkar’s house on 25.3.72 and recorded his statement on
28.3.72 on which date a case was registered against Rege
under the oral orders of the respondent. The witness further
goes on to state that he had already prepared the
chargesheet against Rege and even after the complainant was
sent for to come to thee
629
police station and released on bail no chargesheet was
submitted. Gangurde states that the chargesheet was prepared
on 11.4.72 but as he wanted a clearance from the respondent
for submitting the charge-sheet he was told that there was
no hurry and that the papers should be kept with him till
further instructions. No explanation has been given by the
respondent for staying the submission of the chargesheet
after it was fully ready in a case which ought to have been
put up before the court immediately. This important factor
intrinsically supports the case of Rege that the respondent
was holding up the chargesheet in order to make his drama
complete by obtaining the money demanded from him as illegal
gratification. It is obvious that the respondent wanted to
keep Rege within his control and allow the sword of damocles
to hang over him until the deal was completely finalised.
Incidentally, we might mention that this circumstance
completely demolishes the argument of Counsel for the
respondent that having filed a false complaint and having
made a false representation to Khamkar that the accused was
demanding bribe and that a trap should be laid, the
complainant succeeded in shelving the chargesheet from being
filed. In view of the aforesaid admitted circumstances, the
argument cannot be accepted even for a moment. In fact, this
argument was made the sheet anchor of the defence of the
respondent, but we feel that so splendidly was the defence
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set up that even the experienced judicial eye of the learned
High Court Judge was unable to pierce or penetrate through
the smoke screen thrown by the respondent (to conceal his
guilt) to discover the bright star of the truth concealed
behind the darkness of the smoke. The trial court was wise
enough to see through the game and refused to be duped by
the visibly charming and beautiful picture of falsehood and
convicted him of the charges as indicated above.
In fact, one of the fundamental arguments that have
been advanced before us by Mr. Rana, counsel for the State,
is that there is no real and meaningful discussion of the
important evidence produced by the prosecution in support of
its case and the High Court has merely narrated the evidence
without examining its intrinsic merit and has sidetracked an
issue which was not at all germane for deciding this case-an
aspect with which we shall deal with a little later.
630
Coming back now to the sequence of events the
prosecution case was that after the first demand was made on
9.4.72 and repeated on 13.4.72, Rege was directed to see the
respondent near about the police station at a place called
padavi. Rege then approached PW 11 Khamkar for laying a
trap, and gave twenty 100 rupee notes to PW 11 which he
proposed to handover to the accused at the time of the trap.
The raiding party reached padavi round about 7.00 p.m. and
waited for the respondent to come who appeared on the scene
at about 8.30 p.m. and on seeing Rege repeated his demand
for the 3rd time and after the money had been given to the
accused, PW 11, PW 3 and some others of the raiding party
watched the same. Thereafter Khamkar went into the room and
tried to hold the hands of the respondent who had made an
attempt to take out the notes from the right side pocket of
his pant but despite this the respondent succeeded in
throwing out the notes. As the money thus passed had already
been treated with anthracine powder, the hands and the right
side pocket of the accused were put before the ultraviolet
lamp and were found to be stained with the said powder. The
respondent took an ingenious though improbable defence that
Rege attempted to thrust the notes into his pocket in the
presence of Khamkar but he gave a push and the notes fell on
the ground; thereby he tried to explain the stains of the
anthracine powder on his hands. While putting forward this
defence the respondent seems to have forgotten that the
notes had been taken out of his pocket which was also
smeared with the powder and it is impossible to accept that
an ordinary person like Rege would have the courage and
audacity to forcibly thrust as many as twenty notes of Rs.
100 denomination each into the pocket of the respondent when
he knew that the respondent was a police officer armed with
a revolver. It is difficult to believe that Rege would take
such a grave risk and do so in the presence of Khamkar and
others. The testimony of two independent witnesses and one
clerk however reveals a different story which fully
corroborates the prosecution version.
PW-3 who was in no way connected with the police and
was drawn from the zila parishad where he was working as a
statistical officer had no axe to grind against the
respondent so as to give false evidence to implicate him. As
previously arranged, Raut, PW 3, witnessed the entire
incident from a distance of a few feet as he was standing
very near to the place where the van was parked. This
witness fully supports the prosecution case and states that
Rege took out the wad of notes from his pocket and the
accused took those
631
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notes in his right hand and put them in his right hand side
pocket of his pant. Immediately thereafter Rege made the
settled signal by taking out his spectacles and trying to
wipe the same. On seeing this signal Khamkar and other
members of the party arrived there. Khamkar then disclosed
his identity as an Inspector of the Anti Corruption Branch
and a panchnama (Ex.51) was immediately made. We have gone
through his entire cross-examination and we are unable to
find any material discrepancy to discredit his evidence. The
only circumstance which seems to have been taken against him
is that about two years before the occurrence he was an
accused in maramari case which was ultimately compromised.
Merely on this account he could not be held to be an
unreliable or incompetent witness. Shorn of minor
contradictions or omissions, the evidence of this witness
appears to contain a tinge of truth. Even PW-7, K.A. Patil,
of the octoroi Department who was present in the room, has
testified that the accused had taken out the notes from his
pocket and then tried to throw them down, In this connection
his statement may be extracted thus :
"It also happen that accused took out the currency
notes from his right side pant pocket and threw it
down. It is not true that I made the first statement on
account of pressure from the accused."
It is true that the statement was made after the public
prosecutor was permitted to cross-examine the witness
although he was not declared hostile but that does not in
any way belie or weaken his evidence. He was present at the
Naka where the money was paid and was, therefore, fully
competent to depose to what he had actually seen. There is
nothing to show from his cross-examination that he made no
such statement in the earlier stages of investigation when
he was examined by the Investigating Officer.
Apart from this there is the evidence of PW 11, M.S.
Khamkar, an Inspector of police in the Anti-corruption
Department. There is no evidence to show that he bore any
animus against the respondent. He was subjected to a very
searching cross-examination but nothing of any vital
importance seems to have been elicited from him so as to
throw doubt on his testimony. In the sessions court some
insinuations were made in the course of cross-examination
but in the High Court and before this Court learned defence
counsel expressly abandoned the insinuations.
632
The frontal attack made by the learned counsel for the
respondent against the prosecution was that all the members
of the raiding party were subjected to the anthracine powder
test in the glow of the bulb which must have taken about 10-
15 minutes and yet the star witness, viz., the complainant,
did not say anything about this demonstration which was held
by PW 11, Khamkar. That circumstance even if it be true is
not, in our opinion, sufficient to throw the prosecution out
of court. So far as Rege is concerned his test had already
been taken earlier and therefore he was not interested in a
second test which was taken to exclude the possibility of
inter polation. Hence, if he did not see or remember the
demonstration at the Naka that by itself will not be a
circumstance to discredit his entire testimony particularly
when it has been corroborated by two independent witnesses,
viz., PW 3, 11 and also by PW 7.
The High Court seems to have devoted a major part of
its judgment to the various case diaries produced before the
court in order to establish that the accused was not present
at the police station either on the 9th or on the 13th of
April 1972 when the first two demands were made. According
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to the High Court this gave a sufficient alibi to the
respondent from which it could be safely inferred that if he
was not present at the police station, there could be no
occasion for him to make any demand for bribe from the
complainant. Assuming that the recitals in the said case
diaries are admissible (though we have serious doubts about
it) yet it does not at all exclude the presence of the
respondent at the Ambarnath police station on the 9th and
13th because he was not sent away to a place situated far
from Bombay but was in some other police station within a
radius of a few miles only. Even if he was deputed to some
other place he was in possession of a jeep and he could
visit the Ambarnath police station for a few minutes on any
of these dates. It is well settled that a plea of alibi must
be proved with absolute certainty so as to completely
exclude the possibility of the presence of the person
concerned at the place of occurrence. Such, however, is not
the case here. Therefore, the discussion of the case
diaries, which engaged a substantial portion of the High
Court judgment was really an exercise in futility.
This brings us to certain circumstances, evidence and
reasons relied on by the High Court to reject the
prosecution case and reverse the order of conviction passed
by the trial court.
633
Before approaching this problem, even at the risk of
repetition, we might give a brief resume of the interesting
drama starting from the demand of illegal gratification by
the accused and ending with the passing of money and his
subsequent arrest. The prosecution case is that Rege had
filed a complaint against his tenant, Walawalkar, and the
same was prima facie found to be false because on a search
of Walawalkar’s house no trace of distillary was found.
According to the prosecution, this furnished the immediate
motive and the golden opportunity for the respondent to
demand money as illegal gratification from the complainant.
While the investigation of the complaint was pending the
respondent on 9.4.72 mada a demand of Rs. 2000 from Rege to
shelve the case. This demand was repeated on 13.4.72 and
ultimately the complainant had agreed to pay him Rs. 2000 as
bribe. It was settled that the respondent was to receive the
money at Ambarnath police station nearabout 7.30 p.m. on
14.4.772.
Being fed up with the persistent demands of the accused
and the impending prosecution under s. 89 of the Prohibition
Act the complainant solicited the help of PW 11, Khamkar and
narrated the entire incident to him After hearing the story
of the complainant, Khamkar rang up Deshmukh, DSP, Anti
corruption Branch, Bombay, but as he was out he himself
recorded the complaint of Rege which is Ex. 44 and sent a
letter to District Health Officer to depute two persons from
his office for the purpose of acting as panches. Khamkar
then prepared an application, addressed it to the concerned
authorities for obtaining sanction to investigate the
matter. The sanction was accorded after the Magistrate had
interrogated Rege. PW 11, Khamkar then returned to his
office and found two persons, viz. Raut (PW3) and Karve, who
had been sent to him from the Zila Parishad office. He
introduced Rege to the panches and asked him to narrate his
story which he did. Thereafter search of Rege was taken in
the presence of the panches and besides many other articles,
which are not necessary to be detailed, a sum of Rs. 2000
was found from the person of Rege and the numbers of the
notes were noted in the panchnama PW 11 then handed over the
notes to constable Wagh and directed him to hold
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demonstration as to how those notes would appear in the
usual light and in ultraviolet lamp light after the notes
are treated with anthracine powder. The constable performed
the said process and thereafter Rege was directed to put
those notes in the left pocket of his pant. The bottle
containing the anthracine powder was then sealed in order to
obliterate
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the traces of the said powder. PW 11 as also the panch
witnesses were then subjected to the same process before
proceeding to the Ambarnath octroi Naka near the police
station to which the accused was attached as sub-inspector.
It was also settled that while Raut would constantly remain
with Rege to witness the talk and the passing of the money,
the complainant would take out his spectacles and make a
show to wipe out his glasses which would amount to a signal
for the raiding party that the money had been accepted by
the accused and they may at once reach the spot. The
panchnama containing all these facts was completed and
signed by the panches and countersigned by the witnesses.
This seems to be the first and the preparatory stage to lay
the trap.
The raiding party was directed to take a train bound
for Ambarnath and get down there at about 6.35 p.m because
the complainant had informed Khamkar that the accused was
not likely to come to the police station before 7.00 p.m.
The second stage consists of the arrival of the raiding
party near the said police station and waiting there upto
7.00 p.m. At that time Rege and Raut proceeded towards Tilak
Road and after passing through the railway crossing kept
waiting at a convenient place at a distance of 40-50 ft.
from the gate. PW 11, Khamkar and other members of the
raiding party waited at the inner side of the railway corner
gate near the railway track. PW 11 further directed two
constables of the raiding party to wait near the Canara
restaurant which was just in front of the octroi Naka
towards the east.
The third stage starts with the arrival of the police
van from the side of Wimco Road, carrying the accused, which
halted near the octroi Naka at about 8.40 p.m. There were no
constables in the van and the only occupants appeared to be
the accused himself and the driver of the van. After getting
down from the van the accused came to the Naka and sat on
the chair in the padavi (verandah).
The last stage of the show starts when Rege and Raut,
who was introduced to the accused as one of his relations,
approached the accused who asked them to sit on the two
stools on the right side of the chair occupied by the
accused. He further requested Raut to find out the
whereabouts of the driver of the van; obviously because he
did not want that Raut should hear any talk between Rege and
himself. Raut thereafter went towards the van but stood in
an angular fashion towards the accused and Rege so that he
635
could see what was happening there. The accused made a
gesture by putting his right palm and twisting his finger,
indicating thereby that he was demanding the money.
Thereupon Rege took out the currency notes from the left
pocket of his pant and gave them to the accused, who after
taking the amount inserted the same in the right side pocket
of his pant. Immediately thereafter Rege gave the
prearranged signal by taking out his spectacles and wiping
the same with his handkerchief. On seeing the signal, PW 11,
panches and other members of the raiding party rushed to the
verandah of the Municipal octroi Naka where PW 11 disclosed
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his identity at which the accused rose up from the chair and
wanted to move about but he was caught hold of his wrist. PW
11 then informed him that since he had accepted the bribe
from Rege he wanted to test his hands and clothes to
ascertain whether traces of anthracine powder were there or
not. Meanwhile he asked Rege to wait aside who went at the
corner of the padavi. We might state here that a mountain of
a mole hill appears to have been made by the learned High
Court Judge of the factum of Rege being sent out to the
padavi instead of remaining there or in the room where the
accused was taken. Thereafter, the hand and clothes of the
accused were put in the light of the ultraviolet lamp which
revealed traces of anthracine powder on the handkerchief,
the palm of his hands, on the right side of his pant and a
portion of the bushcoat overlapping on the right side of his
pant. PW 11 then asked the accused to produce the money
which he had just accepted as bribe. At the request of the
accused he was taken to the room of the Naka where he agreed
to produce the money. On entering the room, however, the
accused took out the wad of notes from his right pocket and
threw them down on the ground. PW 11 stated that a Naka
clerk was sitting in the room and he may have seen the
throwing down of the notes by the accused. Manifestly, the
accused threw down the notes in order to make out a defence
that the notes were forcibly foisted on him which he
resisted and in that process threw the notes on the ground
without allowing the notes to enter his pocket and which
also is his main defence in this case. Thereafter, the usual
formalities of preparation of panchnama, etc., were
completed. It may also be mentioned that the accused was
armed with one country made two-barrel pistol as also a
service pistol which were also recovered from him. After all
this had happened, Rege was summoned and on his search all
the articles which had been recovered during the day in the
presence of PW 11 were recovered, except the notes of Rs.
2000 which had been passed on to the accused. PW 11 then
recorded his complaint and
636
forwarded it to the Ambarnath police station. Statements of
PWs Gangurde, Raut, Rege and Karve were recorded by PW 11
and a challan was presented before the court after obtaining
the necessary sanction.
This in brief constituted the various stages of the
occurrence starting from the demand of bribe to the payment
of the same and recovery from the person of the respondent-
accused. In order to understand the sum and substance of the
prosecution case the same may be divided into four parts -
(1) the origin and genesis, (2) the first demand made by the
respondent on the 9th, (3) the second demand made by the
accused on the 13th, and (4) the passing of the money and
its acceptance by the accused and the incidents following.
We have gone through the entire evidence led by the
prosecution and, in our opinion, the prosecution case was
fully proved because it has been supported by at least two
independent witnesses, viz., PWs 3 and 11 and to a great
extent by PW 7.
Mr. Bhisme, who was followed by Mr. Jethmalani
addressed the main arguments, tried to support the judgment
on various grounds but we are unable to be convinced by any
reason why the evidence of PWs 3 and 11 should be discarded
particularly when neither of these witnesses bore any grudge
or animus against the respondent nor was any such suggestion
made to any of these witnesses. In fact the learned Judge of
the High Court himself had clearly held that PW 7 was a
throughly independent witness but commented that he was not
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made a witness to the actual passing of the money though he
has fully supported the subsequent incident that the
respondent took out the notes from his pocket and threw them
on the ground which lends a colour of truth to the evidence
of PW 1 and other members of the raiding party. Certain
minor contradictions or inconsistencies have been pointed
out by the counsel in the statements of PWs 1 and 3 but on
close examination they do not appear to be material and,
therefore, not sufficient to throw out the prosecution case.
PWs 1 and 3 have fully supported the prosecution case but
Mr. Jethmalani was unable to urge any cogent reason for not
accepting the evidence of PW 1 even though it was fully
corroborated by the direct evidence of PW 3 as also by the
circumstantial evidence which consists of the various stages
from which the prosecution case has emerged.
637
This now brings us to examine the important
circumstances and evidence relied on by the learned High
Court Judge to disbelieve the prosecution version.
The learned Judge was greatly impressed by what he
calls a serious lacuna in the prosecution case-that although
both Rege and Khamkar, alongwith the raiding party, came to
the Municipal octroi Naka the first thing which Khamkar did
was to ask Rege to stand outside (padavi) where the raiding
party was also present. The High Court further held from the
evidence of Rege it appears that after the raiding party
came there Khamkar caught hold of the hands of the accused
and took him inside the room. With due respect to the
learned Judge he has come to this finding on a complete
misreading of the evidence of PWs 1 and 11 overlooking and
ignoring the logical sequence of events starting from the
morning of 14th April up to the time when the money passed.
Both PWs 1 and 11 have categorically stated regarding the
morning incident and the arrangements made to raid the
police station for laying a trap to catch the accused while
taking the money. It is not at all clear from the
observations of the High Court whether he was referring to
the morning incident or to the evening incident or to the
last part of the incident when after the passing of the
money Rege was asked by PW 11 to go aside and he stood in
the padavi. The matter having been settled and pre-arranged
in the morning, various parts were allotted to the members
of the raiding party. Neither Khamkar nor Rege says that
immediately the raiding party approached the Naka, he (Rege)
was asked to go out and stand in the Padavi which would mean
that he did not pass the notes to the accused, a fact which
would completely destroy the very object of raiding the
police station. The learned Judge overlooked that the
raiding party had reached near the police station long
before the arrival of the accused and when the accused
arrived at 8.30 p.m. Khamkar did not go to the padavi nor
did he even show his face to the accused. In fact, as
narrated above, Rege and Raut together met the accused to
exchange some talks and Raut was asked to look for the
driver of the van and after his departure the accused
demanded the money which was paid to him by PW 1. It was
thereafter that the signal was given which brought Khamkar
and his party for the first time at the padavi. As Rege’s
part to pass on the notes to the accused had been
accomplished, there was no point in his remaining in the
padavi. At any rate, no useful purpose would have been
served if Rege was asked to be present there after the
incident was over. He was, however,
638
called when the demonstration was to be done and the search
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taken in the presence of the panch witnesses. Perhaps the
High Court was under the impression that Rege, Khamkar and
other members of the raiding party arrived at the padavi as
soon an the accused had come there and PW 11 caught hold of
the hands of the accused and took him into the room. These
observations are based on a gross misreading of the evidence
of PWs 1 and 11. Even the incident of catching the hands of
the accused took place after the money had passed and the
notes had been put in his pocket by the accused. According
to the evidence of PW 11 it was at the instance of the
accused himself who in order to avoid disgrace requested him
to take him (accused) inside the room where he would hand
over the money. Thus, the whole argument of the learned
Judge is based on a pack of cards or on circumstances which
never existed.
The learned Judge also seems to have been under the
impression that PW 1 was not subjected to the ultraviolet
lamp light test which in fact was done and here the Judge
again committed an error of record.
The next circumstance relied on by the High Court is
that even after examining the notes and clothes of the
accused in the ultraviolet lamp light which took place in
the padavi outside the room and which must have taken about
10-15 minutes, this was not seen by PW 7, the clerk who was
sitting in the room. The High Court seems to suggest that PW
7 himself being a Naka clerk and an independent witness
should have been included as one of the persons to watch the
demonstration which had taken 10-15 minutes. It is difficult
to believe that the demonstration of a few persons who were
merely exposed to the ultraviolet lamp light would take more
than 5 minutes. Even so, the non-inclusion of PW 7 becomes
wholly irrelevant when he himself makes a positive statement
in the court that he did see the accused taking out the
notes from his pocket and throwing them on the ground and,
therefore, substantially supports the prosecution version.
Thereafter, on the basis of conclusions arrived at by
the learned Judge in the aforesaid manner, which are purely
speculative, he tries to give a sort of sermon as to what
should or not have been done. It seems that the High Court
did not make any attempt to scan and appreciate the
intrinsic merits of the evidence of PWs 1 and 3 as
639
corroborated by PW 7, which by itself was sufficient to
prove the prosecution case regarding the acceptance and
recovery of money. In coming to this speculative finding the
learned Judge completely ignored as to what had happened
previous to the raid, viz., the circumstances, the manner
and the number of times which led the accused to make
consistent demands from PW 1 as also the conduct of the
accused in trying to delay the submission of the chargesheet
despite repeated requests by PW 8 (Gangurde) to permit him
to file the same. We have dealt with this aspect of the
matter in an earlier part of our judgment and we do not want
to repeat the same.
It is interesting to note that the learned Judge
himself puts the question as to what was the reason for
falsely implicating the accused when he had actually made
the demands on the 9th and 13th of April 1972, yet he
readily accepts respondent’s argument that this was because
PW 1 was a person of diabolical character and undesirable
credentials in whose trap the accused easily fell. In
accepting this argument the High Court failed to consider as
to what motive could Rege have to falsely implicate the
accused when he had not conducted the search nor was he
directly connected with the chargesheet which was going to
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be filed against him. Indeed, the dominant question which
the Court should have put to itself would have been as to
why a complaint under s.89 of the Prohibition Act was not
filed against Rege even though the chargeseet was ready. If
this was due to any fault or lapse on the part of Gangurde,
who was a subordinate official of the accused, as an honest
officer the accused should have taken him to task for trying
to dillydallying the matter instead of filing the
chargesheet immediately. But the evidence to Gangurde shows
that he was ready to file the chargesheet but the accused
directed him not to do so until the receipt of further
instructions from him, as indicated by us earlier. That
being the position, why did the accused ask Gangurde to
delay the filing of the chargesheet? Thus question has
neither been answered by the High Court nor by the accused.
The next circumstance relied on by the High Court was
regarding the credibility of the evidence about the meeting
on 9th and 13th between Rege and the accused. According to
the prosecution the first time Rege was summoned by the
accused was on the 9th and some police constable went to his
house but as he was not there he told Mrs. Rege that the
complainant was required at the police
640
station. On coming back home, the complainant along with
Sukhtankar saw the accused at the police station at 8.00
p.m. Although this part of the case has been fully proved by
PW 1, Rege and Sukhtankar (PW 6) but their testimony has
been disbelieved by the High Court merely on the ground that
the constable who had gone to call Rege was not identified
either by Mrs. Rege or by Sukhtankar. This is indeed a most
extraordinary process of reasoning. Obviously, both Mrs.
Rege and Sukhtankar saw the constable for a split second and
were only asked to convey the message to Rege on his
returning home. It was extremely difficult in such
circumstance either for Mrs. Rege or Sukhtankar to have
identified the constable. Nevertheless, the fact remains
that PW 10, B.L. Jadhav, has testified on oath that while he
was on duty at the Naka on the 9th of April 1972, the
accused came to the Naka at 5.30 p.m. and directed him to go
to the house of Rege and summon him to the police Station.
Accordingly, he went to the house of Rege where he found
Mrs. Rege to whom he conveyed the message and thereafter he
informed the accused that his message has been conveyed to
PW 1. Thus, the evidence of this constable who appears to be
an independent witness is fully corroborated by the evidence
of PWs 1 and 6. Nothing has been elucidated in his cross-
examination to show as to why PW 10 should depose falsely on
this important link of the case which is an intrinsic
circumstance to prove that the demand was made on the 13th
April when the accused came to the Naka. The only suggestion
made to this witness was that the accused had sent an
application to the Circle Inspector on April 20, 1972
against him, Kachela and Gangurde to the effect that these
three persons were in league with bootleggers. This
suggestion puts the cat out of the bag because what the
learned Judge completely missed was that the application to
the Circle Inspector was made by the accused six days after
accepting the money from Rege, the trap was laid and a
challan was about to be Submitted before the court. It is
obvious that if any such belated report was made by the
accused it was merely to create evidence in order to throw
out the testimony of PW 10.
In these circumstances the only reasonable inference
that can be drawn is that Rege and Sukhtankar met the
accused on the 9th at 8.30 p. m.
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Presuming that Rege was a person of diabolical
character, the learned Judge without any evidence refused to
believe the incident of the night in the absence of any
legal warrant for the same. It seems
641
to us that the approach made by the learned Judge towards
the prosecution has not been independent but one with a
tainted eye and an innate prejudice. It is manifest that if
one wears a pair of pale glasses, everything which he sees
would appear to him to be pale. In fact, the learned Judge
appears to have been so much prejudiced against the
prosecution that he magnified every minor detail or omission
to falsify or throw even a shadow of doubt on the
prosecution evidence. This is the very ante-thesis of a
correct judicial approach to the evidence of witnesses in a
trap case. Indeed, if such a harsh touchstone is prescribed
to prove a case it will be difficult for the prosecution to
establish any case at all.
During the course of discussion of the reasons given by
the learned Judge we shall endeavour to show that the
adverse inferences against the prosecution with respect to
small matters could have been easily ignored as they did not
affect the credibility of the prosecution case. The glaring
instances of such a wrong approach is to be found in the
criticism levelled against the prosecution by the learned
Judge that PW 11 asked Rege to stand in the padavi and
sought to convey the impression that Rege never came to the
padavi in order to give the money to the accused or that the
raiding party arrived just before the arrival of the
accused. This is far from the truth as we have shown above.
We have already held that the stroy unfolded by PW 1 about
the incident of the 14th April was a very short and simple
one and after having completed his assignment whether PW 1
was asked to stand in the padavi or was not called into the
roon are matters of no consequence whatsoever so far as the
acceptance of money as bribe was concerned. In fact, the
High Court seems to have cased its reasons not on the
evidence which was given by PW 1 on oath but merely on
suggestions which were categorically denied by him from
which no inference could be drawn at all.
Another serious comment to falsify the incident of raid
and payment of money was that Rage did not see the throwing
down of the notes. Here again, the High Court completely
misdirected itself because from the evidence itself it is
clear that Rege had said that the accused had a talk with
him and he then paid currency notes of Rs. 2000 to him
(accused) which he inserted in his pant pocket, made a
signal which brought the raiding party at the verandah and
thereafter he went to the padavi. Whether he witnessed the
subsequent throwing down of the notes or not was
642
totally irrelevant because as we have shown above this
incident took place after the accused was taken by Khamkar
inside the room as desired by him (accused).
Another infirmity pointed out in the protsecution was
that PW 3 (Raut) was asked to stand near the van by the
accused instead of going to the padavi with the raiding
party, It is obvious from the evidence of PW 11 that the
previous arrangement was that PW 3 should also be present
when the money was to be paid to the accused so that he may
be a witness to the passing of the notes. In view, however,
of the direction given by the accused to Raut to find out
the driver of the van it was only natural that the previous
arrangement would have to undergo some change lest the
accused may become cautious and suspicious which would have
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led to the failure of the trap. Therefore, PW 3 had to obey
the order of the accused but he did it in a very adroit
manner so that while standing near the van he selected a
place from where he could see the accused and the passing of
the money, to which he has clearly deposed. After the money
had passed he returned to the padavi because his purpose for
leaving the padavi had been served.
Some comment has also been made by the High Court that
the place from which PW 3, while standing near the van,
witnessed the passing of the notes was so distant that he
could not have witnessed the passing of the money. This is
also a pure conjecture because PW 3 has clearly explained
that he was at a very short distance and not at 90 ft. as
the learned Judge seems to think, and in that position he
could easily see the passing of the money. No suggestion
appears to have been made to PW 3 that he was standing at a
place from which the accused was not visible or that he
would not have been in a position to see the passing of the
money.
Another disturbing feature of the High Court judgment
is the adverse comments made on the evidence of PW 8
(Gangurde). To disbelieve this witness the High Court has
readily accepted certain facts which could not possibly be
true or even if true were wholly irrelevant and were made
only for castigating a truthful and an honest officer. PW 8
was a head constable who, on the complaint of Rege, was
entrusted with the charge of conducting a search in the
house of Walawalkar. There is no reliable evidence to show
that he was in any way friendly to or connected with the
complainant. If this was so, he could not have conducted the
search as he did.
643
The High Court seems to disbelieve this witness only on the
ground that he states in his evidence that when he went to
the house of Walawalkar the accused was not there although
his name finds place in the panchnama. The panchnama is
hurriedly prepared and a number of names may find mention.
He may not have recollected whether some of the persons
mentioned were there or not. In the instant case, this was a
non-issue and therefore could not be considered.
Furthermore, PW 8 does not appear to have shown any kind of
favour to Rege but he himself reported that the allegation
made by Rege was false and as a result of which Walawalkar
filed a complaint (Ex.66) which was investigated by this
very witness and ultimately he decided to file a chargesheet
against Rege under s.89 of the Prohibition Act. If he was in
any way favourably inclined towards Rege he would have
shelved the complaint of Walawalkar and submitted a final
report saying that no prima facie case had been made out
because Rege had not made a complaint in the real sense of
the term but only expressed his suspicion. Therefore, there
was no justification for the learned Judge to conclude that
this witness was in any way in league with Rege. In fact,
what was really missed by the High Court was that PW 8 was
extremely anxious to file chargesheet against Rege but it
was the accused himself who directed him not to file the
same and to keep the same pending till further instructions
from him. If the accused, who was his superior officer, had
not given this instruction there does not appear to be any
explanation why the chargesheet though ready on 11.4.72 was
not filed at all. If the accused was that honest or innocent
he would have taken PW 8 to task for not filing the
chargesheet after it was ready. This speaks volumes against
the case of the respondent.
The learned Judge then drew support from some
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insignificant and minor circumstances to discredit the
evidence of PW 8. For instance, he observed that there were
some irregularities or that PW 8 was absent without taking
any leave. These are pure routine matters which happen in
every office but this would not falsify the evidence of PW
8. So far as the question of remaining absent without leave
is concerned. PW 8 has positively stated that he had taken
leave for being absent and no attempt was made by the
accused to call for the attendance register to show that the
witness had absented himself without taking any leave nor
was any action taken by the higher authorities for this
lapse on his part. We are really baffled and amazed to find
that the learned Judge went to the extent of castigating PW
8 on the basis of such frivolous and flippant
644
allegations merely because the witness had stated the truth
in the court, viz., that the chargesheet was ready for
submission but the accused had stayed its submission.
These are the main reasons and circumstances given by
the learned Judge in disbelieving the entire prosecution
case which we have already found to be wholly unsustainable
in law. We regret to observe that the learned Judge has
rejected the vital evidence of PWs 1,3,8 and 11 on frivolous
grounds and he did not make any attempt to discuss their
evidence on intrinsic merits and the superficial manner in
which he has dealt with the evidence and circumstances in
order to demolish the prosecution case is wholly
unacceptable to us and leaves much to be desired.
Mr. Jethmalani vehemently argued before us that the
High Court having acquitted the accused, this Court should
very rarely interfere with the judgment of the High Court
and should do so only in cases where there is a grave error
of law or serious miscarriage of justice and that too when
the accused faced a trial for several years and had been
reinstated and promoted as an Inspector.
From the reasons that we have given it is manifest that
the judgment of the High Court suffers from serious and
substantial errors of law and legal infirmities. This is one
of those rarest of rare cases where this Court would be
failing in its duty if it did not interfere with the order
of acquittal and set aside the judgment of the High Court.
On a full and complete discussion of the facts and
circumstances of the case we are clearly of the opinion that
the charges against the respondent-accused have been clearly
proved and his acquittal by the High Court was wrong both on
law and on facts. Once this is so, the other consideration
mentioned by Mr. Jethmalani would be no answer to
maintaining the acquittal of the respondent. It may be
rather unfortunate but the law must take its course and the
accused himself is to be blamed for having committed such a
daring offence and with such dexterity that even an
experienced Judge of the High Court could not see through
the skilful game of the accused.
In view of the seriousness of the offence and the
blatant manner in which it was committed we find it
difficult to make a substantial reduction in the sentence
and we are afraid, having found the respondent guilty of the
offences charged against him, it is not
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possible for us to show any leniency. However, in view of
the facts and circumstances of the case and having regard to
the fact that the respondent would have to lose his service
we would sentence him to six months’ rigorous imprisonment.
The result is that the appeal is allowed and the respondent
is convicted under s.161, I.P.C. and s.5 (1) (a) and 5 (2)
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of the Act and sentenced to six months R.I. under each count
to run concurrently and a fine of Rs. 2,000 and in default
of the payment of fine, further six weeks’ R.I. The accused
must now surrender and be taken into custody to serve out
the sentence imposed.
H.S.K. Appeal allowed.
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