IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 539 of 2007
Appellant : State of Maharashtra, through Police Station Officer, P. S. Gondia (City), Gondia.
Respondent : Gunwant son of Patiram Dhumbhare, aged about 56 years, occ: service, resident of Gondia.
Mr K. L. Dharmadhikari, Addl. Public Prosecutor for State Mr M.I. Dhatrak, Advocate for respondent
Coram : A. P. Bhangale, J
Dated : 16th August 2012
1. Feeling aggrieved by the judgment and order dated 7th August 2007 passed by the Special Judge (under Prevention of Corruption Act), Gondia in Special Criminal Case No. 1 of 2005 whereby respondent/accused has been acquitted of the offences punishable under Sections 7, 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, the appellant-State has preferred the present criminal appeal.
2. Facts of the prosecution case are that complainant Kamalkumar 2
Nagpure wanted to get his agricultural land measured since a dispute had arisen between him and adjacent land owner as to in whose field, two teak trees were standing. According to complainant, when measurement was to be carried out on 24.9.2004, accused Dhumbhare who was to perform the actual activity of measuring, demanded Rs. 5000/- from complainant to show him favour. On 24.9.2004 accused along with one Kaware came to the house of complainant. Land was measured and thereafter accused again came to the house of complainant and demanded Rs. 5000/- to show in his report that two teak trees were standing in the field of complainant. Complainant was called in his office by accused on 27.9.2004. Complainant approached the office of Anti-corruption Bureau and lodged his complaint.
3. On receiving complaint, ACB Officer Mr Kore called two panchas for pre-trap panchanama from the Public Works Department, Zilla Parishad, Bhandara. When pancha witnesses came to the office of ACB, their consent was obtained to act as panchas. They were explained the purpose of trap and given demonstration of phenolphthalein powder and sodium carbonate. Pre-trap panchanama was drawn. The raiding party then proceeded to the spot where trap was led after it received requisite signal. Amount of bribe was seized. Report was lodged against the accused with Gondia (City) Police Station for the offences punishable under Sections 7, 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act. Seized articles were sent to Chemical Analyser for analysis and report. Statements of pancha witnesses came to be recorded. Panchanamas were prepared and after completion of investigation, sanction was 3
obtained and charge-sheet was filed in the Court for trial according to law.
4. Charge was framed against the accused. It was explained to him in vernacular to which accused pleaded not guilty and claimed to be tried. His defence is that of total denial.
5. Learned Special Judge after taking into consideration the evidence led on record and hearing parties, acquitted the accused/respondent of the offences with which he was tried.
6. Learned Additional Public Prosecutor strenuously argued that the learned Special Judge did not appreciate the evidence in its proper perspective. According to learned APP, observation of the learned Special Judge that except Kaware, no other person was present to say that accused demanded Rs. 5000/- from the complainant, is contrary to record. According to learned APP, finding of the learned Special Judge that non-examination of said Kaware was fatal to prosecution, is perverse. He submits that demand and acceptance has been duly proved in the present case and impugned judgment & order of acquittal is liable to be converted into the order of conviction and sentence according to laws.
7. Learned counsel for the respondent/accused, on the other hand, supports the impugned judgment and order of acquittal.
8. Complainant Kamalkumar deposed that as directed by accused, he 4
went to the office of accused on 27.9.2004 with money along with pancha no.1. Dhumbhare then by making gesture asked as to whether amount was brought. When he tried to give money, accused asked him to accompany him to a hotel and in the hotel, amount of Rs. 5000/- was handed over to the accused which he accepted.
9. P. W. 2 Sanjay who allegedly acted as pancha, deposed that when he was taking snacks in Delhi Hotel, accused and complainant went to counter where complainant paid the bill. He further deposed that he did not know as to whether complainant gave money to accused or not. He was declared hostile and he answered the questions put up by APP in the affirmative. When he was subjected to cross-examination by counsel for the accused, he deposed that till reaching Gondia, he was not given to understand as to on whom trap was being laid and further deposed that no talks about money transaction took place in his presence.
10. As regards evidence of pancha no. 2 viz. P. W. 3 Vinaykumar, he deposed that complainant Nagpure was instructed not to give money unless demanded by the accused. He further deposed that when accused Dumbhare was caught hold by the police, panch no. 1 was asked as to whether accused had demanded money, but panch no. 1 did not say anything. This witness deposed that pancha no. 1 had not stated that amount was paid by complainant to accused in his presence. This witness was also declared hostile and was cross examined at length. The prosecution evidence suffered for want of corroboration 5
from independent source as both the panchas did not support the prosecution case.
11. Prosecution then examined PW 4 Sevakram Kore, Investigating Officer and PW 5 Parsuram Rathod, sanctioning authority. The prosecution case being on very weak foundation, could not be strengthened by them.
12. According to complainant, when first demand was made, one Kaware was with the accused. Prosecution did not examine said Kaware. There does not appear even an attempt on the part of prosecution to do so. The prosecution has chosen not to examine him and it appears that even his statement was not recorded during the curse of investigation and no attempt was made by the Investigating Officer to get himself satisfied regarding the complainant's assertion of demand having come from the accused for illegal gratification. While considering the evidence of prosecution, it is necessary to bear in mind the importance of evidence of the prior demand which, if trustworthy, can make the trap legitimate to eradicate corruption, otherwise it could be a fruitless exercise or an empty formality.
13. In the light of evidence of pancha no. 1 and pancha no. 2 which does not support the version of complainant, it is impossible to hold in the present case that prosecution has been able to prove demand, acceptance and recovery of alleged bribe amount from the accused. The findings rendered by the Special Judge are thus proper and need no interference.
14. It is to be borne in mind that the presumption of innocence is fortified in the order of acquittal which ought not to be disturbed unless view of the trial Court is wholly unreasonable, perverse and unsustainable. It is well settled principle of law that that the jurisdiction of the Appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, perverse. Therefore, I do not find any plausible ground to interfere with the impugned judgment and order of acquittal. The appeal is devoid of merit.
15. In the result, appeal fails and is dismissed. A. P. BHANGALE, J