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IN THE HIGH COURT OF BOMBAY
V.M. KANADE, J.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Arjun Bajirao Kale - Appellant
Vs.
The State of Maharashtra - Respondent
CRIMINAL APPEAL NO.62 OF 2007
Decided On: 12-11-2008
Prevention of Corruption Act, 1988 - Sections 7 and 13 - Illegal gratification - Demand of bribe - Accused, a Police Officer having unblemished service record - Complainant and witnesses, history sheeters having an axe to grind against accused - Complainant turned hostile - Two contrary statements regarding demand of bribe - Sole uncorroborated testimony of Panch witness regarding - Not sufficient to convict accused - Accused entitled to acquittal. - In the present case, the complainant had resiled from his earlier testimony. PW 1-Shriniwas Madam also has turned hostile. PW 9-Rajkumar Shriman, admittedly, was initially named as an accused but, subsequently, when charge-sheet was filed, his name was dropped from the array of the accused and he was examined as witness. This witness does not state as to what transpired in the cabin of the accused but has stated about the demand made by the accused before the pre-trap panchanama. No reliance, therefore, could be placed on the testimony of this witness, firstly because he is an interested witness and, secondly, because the Police have obliged him by dropping his name from the list of the accused in the case. The only other witness who has deposed about the demand of bribe is PW 5-Madan Kulkarni. Madan Kulkarni has, in his evidence, stated that he, along with the complainant, had gone inside the cabin of the accused and, at that time, the accused demanded bribe and the complainant had paid the said amount in his presence. Apart from this evidence, there is no evidence of any other witness on the question of demand of illegal gratification. Thus, there are two contrary versions which are given by two witnesses. The complainant PW 4-Bharat Pandurang Jadhav has, in his evidence, categorically stated that he alone went inside the cabin. This admission has been given by him in his cross-examination. Trial Court, erred in accepting the version given by this witness in his examination-in-chief which was totally demolished by the defence by getting on admission from him in the cross-examination. Therefore, it was not open for the trial Court to have relied on that part of the examination-in-chief which has been demolished in cross-examination. Finding recording by the trial Court in para 39 of its judgment, therefore, is clearly illegal and is not supported by any authority or provision of law.
Another aspect which has to be taken into consideration is that the prosecution witnesses viz. PW 4 and PW 9 are history-sheeters and has a good reason for implicating the appellant who was the Senior Police Inspector. PW 4 in his cross-examination has admitted that, initially, he was carrying on business of manufacturing and selling illicit liquor. He and his three brothers all were involved in number of cases of extortion, murder and other serious offences. He also admitted that some of the cases against him were pending in the Court. PW 9 also was sailing in the same boat. PW 5-Madan Kulkarni, on the other hand, who is panch witness, has stated in his evidence that he, along with the complainant, had gone inside the cabin of the accused and, at that time, the accused demanded bribe and the complainant had paid the said amount in his presence. The question is whether on the sole testimony of panch witness, it could be held that the demand has been proved? In Court’s view, benefit of doubt will have to be given to the appellant/accused. Therefore, on the sole uncorroborated testimony of PW 5-Madan Kulkarni, it cannot be held that the demand has been established by the prosecution. The Apex Court in the case of Sat Paul, AIR 1926 SC 294, has observed that if, in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.
Prevention of Corruption Act, 1988 - Sections 7, 13(1)(d) and 2 - Appeal against conviction - Allegation that appellant took bribe - Complainant turned hostile - Conviction on basis of uncorroborated evidence of panch challenged - Held - Conviction cannot be based on sole uncorroborated evidence of panch - Appeal allowed. - The prosecution witnesses are history-sheeters and had a good reasons for implicating the appellant who was the Senior Police Inspector in his cross-examination has admitted that, initially, he was carrying on business of manufacturing and selling illicit liquor. Net and his three brothers all were involved in number of cases of extortion, murder and other serious offences. He also admitted that some of the cases against him were pending in the Court. PW 5 who is a panch has stated to his evidence that he along with the complainant had gone inside the cabin of the accused and at that time the accused demand bribe and the complainant had paid the said amount in his presence benefit of doubt will have to be given to the appellant/accused on the sole uncorroborated testimony of PW 5 cannot be held that the demand has been established by the prosecution.
1. Heard the learned Counsel appearing on behalf of the appellant and the learned APP appearing on behalf of the State.
2. Appellant has filed this appeal, challenging the judgment and order passed by the Special Judge, Solapur dated 07/12/2006 whereby the learned Judge was pleased to convict the appellant for the offence punishable under section 7 of the Prevention of Corruption Act, 1988 and sentenced him to suffer rigorous imprisonment for two years and to pay fine of Rs 20,000/- and, in default of payment of fine, to suffer further rigorous imprisonment for one year and the learned Judge also convicted him for the offence punishable under section 13(1)(d) and 13(2) of the Prevention of Corruption Act and sentenced him to suffer rigorous imprisonment for three years and to pay fine of Rs. 30,000/- and, in default of payment of fine, to suffer further rigorous imprisonment for one and half years.
3. Prosecution case, in brief, is that the appellant was serving as a Senior Police Inspector in Vijapur Naka Police Station at Solapur. Prosecution case is that he demanded an amount of Rs 50,000/- from the complainant by threatening to arrest him and his servant in counterfeit currency case. Prosecution case is that, initially, some amount was paid by the complainant and the accused demanded balance amount of Rs. 25,000/-. Complainant – Bharat Pandurang Jadhav filed a complaint with the Anti Corruption Bureau. The currency notes of Rs 25,000/- were covered with anthracene powder and the pre-trap panchanama was prepared. The Investigating Officer took raiding party to the Police Station and the complainant and the panch witness Madan Kulkarni entered the cabin of the accused. Prosecution case is that the accused demanded money from the complainant and, thereafter, the complainant handed over the said tainted money to the accused in the presence of panch witness and, thereafter, gave prearranged signal. The accused put the said amount in his pocket and, as a result, impressions of anthracene powder were found on his hand. The accused was, thereafter, arrested. Sanction to prosecute the accused was granted by the Additional Director General of Police.
4. Prosecution examined in all 11 witnesses. P.W. 4 - Bharat Pandurang Jadhav who was the complainant, in crossexamination did not support the prosecution case and he was declared hostile with the leave of the Court. P.W. 8 – Shriniwas Madam also turned hostile. The panch witness P.W. 5 – Madan Kulkarni, however, supported the prosecution case and stated that the money was demanded in his presence and it was accepted in his presence by the accused.
5. Trial Court relied on the testimony of P.W. 5 – Madan Kulkarni who was the panch witness, though P.W. 4, who was the complainant, turned hostile and on the basis of the said evidence held that the demand had been established by the prosecution and that the acceptance also was proved beyond reasonable doubt. On the basis of this evidence, Trial Court convicted the accused.
6. Shri Patil, the learned Counsel appearing on behalf of the appellant submitted that the demand was the foundation of the case under the Prevention of Corruption Act and unless demand is conclusively established by the prosecution, mere acceptance of money was not sufficient to convict the accused. In support of the said submission, Counsel for the appellant relied upon two judgments; one of the Supreme Court in Sat Paul v. Delhi Administration reported in AIR 1976 SC 294 and the another of this Court in Pandharinath Shelke v. State of Maharashtra reported in 2005(2) Bom. C.R. (Cri) 940. He submitted that the complainant P.W. 4 had turned hostile and, therefore, no reliance could be placed on his testimony. He further submitted that P.W. 9 - Rajkumar Shriman, initially, was named as an accused by the prosecution. However, no charge5 sheet was filed against him and, subsequently, the prosecution has examined him as prosecution witness. He submitted that, therefo
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