State of Maharashtra Vs. Narsingrao
Gangaram Pimple [1984] INSC 200 (27 October 1984)
FAZALALI, SYED MURTAZA 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 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 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 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 discuss 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]
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 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 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." 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 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 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 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
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 634 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 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 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 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 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.
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 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
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 645 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) 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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