State of
Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede [2009] INSC 1326 (29 July 2009)
Judgment
REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL
NO. 1350 2009 [Arising out of SLP (Crl.) No. 211 of 2006] State of Maharashtra
... Appellant VERSUS Dnyaneshwar Laxman Rao Wankhede ... Respondent
S.B.
Sinha, J.
1.
Leave granted.
2.
The State is before us being aggrieved by and dissatisfied with a
judgment and order dated 19.07.2005 passed by a learned Single Judge of the
High Court of Judicature at Bombay, Nagpur Bench, Nagpur whereby and where under
a judgment of acquittal was recorded in favour of the respondent herein who was
convicted by the Special Judge, Wardha in Special Case No. 4 of 1996 under
Section 7(1) of the Prevention of Corruption Act, 1988 (for short "the
Act").
3.
Respondent was, at all material times, serving as a Head Constable
in Police Station, Karanja in the District of Wardha. Madhukar Dhote,
hereinafter referred to as the complainant, was a resident of village Taroda in
the Tehsil of Karanja (Ghadge). He had lodged a report against Dhanaraj Mohod
and his servant Sudhkar Borkar for allegedly allowing their cattle to graze
orange plants. Sudhkar Borkar's mother, however, lodged a report against the
complainant that he had assaulted her son. In his capacity as a Head Constable,
the respondent visited the village for making an enquiry.
4.
Respondent informed that having regard to the complaint made by
the mother of Sudhakar Borkar, he and his three brothers were to be proceeded
for commission of an offence under Section 448 of the Indian Penal Code. He
allegedly demanded a sum of Rs. 2,000/- for releasing him on bail.
5.
On or about 14.07.1995, Ramesh Dhote, brother of the complainant
and his servant had taken the cow of Dhanraj Mohod to the cattle - pound as the
cow had damaged the crops in the complainant's field. On 31.07.1995, the
respondent is said to have again demanded a sum of Rs. 1500/- for releasing
Ramesh Dhote and his servant on bail in the aforementioned matter. Allegedly, a
sum of Rs. 100/- and thereafter a sum of Rs. 200/- was paid to him.
6.
The complainant thereafter on the premise that he was unwilling to
pay the balance sum of Rs. 1200/- to the respondent lodged an oral report
before the Anti Corruption Bureau against the respondent on or about 8.08.1995.
A raid was conducted but allegedly the same was not successful. On 21.08.1995,
the complainant lodged additional report stating that the respondent told that
he should come to Karanja on 22.08.1995 with remaining amount of Rs. 1200/-.
The
entire procedure was repeated again on 22.08.1995. Complainant and one panch
witness Ashok Waghade went to the police station. Respondent was not present at
the police station. Then they went to his house. He is said to have again
demanded the amount and asked them to come near the Veterinary hospital.
Allegedly, nearabout the Veterinary Hospital, on demand of the amount of bribe
by the respondent, the same was paid. He was apprehended by the raiding party.
Upon obtaining sanction for the prosecution of the respondent, a case under
Sections 7 and 13(1)(d) was initiated against him.
7.
Respondent entered the plea of innocence. Charges were framed
against him. Ashok Waghade, panch witness No. 1, died during pendency of the
said proceeding. The other panch witness Gajanan Ambatkar although was not
present when the respondent purported to have made a demand of the amount of
gratification, deposed to the said effect. He was declared hostile and was
permitted to be cross-examined by the prosecution. The complainant, however,
examined himself as a prosecution witness and supported the prosecution case.
8.
Respondent, on his part, examined a defence witness, Ramesh Kinkar
who was an autorickshaw driver. According to the said witness, the complainant
and a person accompanying him stopped his autorickshaw and the former allegedly
requested the respondent to see a buffalo which was brought near the hospital
in an injured condition. Respondent got down from his autorickshaw. Complainant
is said to have thrust the amount in question on the left hand of the accused
whereafter the raid was conducted by the official of the Anti Corruption
Bureau.
9.
The learned Special Judge held the respondent guilty of commission
of the said offence and sentenced him to undergo rigorous imprisonment for six
months and to pay a fine of Rs. 1000/- in default whereof he was sentenced to
undergo further rigorous imprisonment of two months.
10.
Aggrieved by and dissatisfied with the said judgment of conviction
and sentence, the respondent preferred an appeal before the High Court, which
was marked as Criminal Appeal No. 155 of 2000. Inter alia on a finding that the
prosecution has failed to prove any demand on the part of the accused as also
payment thereof and opining that the recovery of the purported amount of bribe
was not sufficient to bring home the charge under Section 7(1) of the Act 5
reversed the said judgment of conviction and sentence recorded by the learned
Special Judge and, thus, allowed the appeal of the respondent.
11.
The State is, thus, before us.
12.
Ms. Madhavi Divan, learned counsel appearing on behalf of the
appellant, would contend that keeping in view the materials brought on record
by the prosecution, the High Court committed a serious error in opining that
all the three ingredients of commission of an offence under Section 7 of the
Act have not been proved. It was urged that having regard to the provisions of
Section 20 of the Act, the burden of proof was on the accused and he having
failed to explain as to how the amount of Rs. 1200/- was found in his pocket,
the High Court ought not to have recorded a judgment of acquittal in his
favour.
13.
The learned counsel furthermore would contend that the
discrepancies in the depositions of the prosecution witness were not sufficient
to record the judgment of acquittal.
14.
Mr. Manish Pitale, learned counsel appearing on behalf of the
respondent, on the other hand, would contend that the sole-surviving panch
witness PW-1 6 having been disbelieved and in fact having been declared
hostile, no reliance could be placed on his evidence. It was pointed out that
the prosecution had earlier made several raids and at least two other incidents
have been brought on record, it is improbable that the respondent had demanded
any amount by way of bribe or otherwise.
15.
Before embarking on the rival contentions raised before us, it is
our duty to remind ourselves that we are dealing with a judgment of acquittal
and, thus, it is absolutely essential to keep in mind the well-settled
principles of law that in the event two views are possible to be taken, this
Court shall not interfere with a judgment of acquittal. There cannot be any
doubt that in the event, having regard to the materials brought on record, the
court comes to the conclusion on the basis thereof that only one view is
possible, a judgment of acquittal may be interfered with. [See Shivappa and
Ors. v. State of Karnataka (2008) 11 SCC 337, State of Maharashtra v. Rashid B.
Mulani (2006) 1 SCC 407 and State through Inspector of Police, A.P. v. K.
Narasimhachary (2005) 8 SCC 364]
16.
Indisputably, the demand of illegal gratification is a sine qua
non for constitution of an offence under the provisions of the Act. For
arriving at the conclusion as to whether all the ingredients of an offence,
viz., demand, acceptance and recovery of the amount of illegal gratification
have been satisfied or not, the court must take into consideration the facts
and circumstances brought on the record in their entirety. For the said
purpose, indisputably, the presumptive evidence, as is laid down in Section 20
of the Act, 7 must also be taken into consideration but then in respect
thereof, it is trite, the standard of burden of proof on the accused vis-`-vis
the standard of burden of proof on the prosecution would differ. Before,
however, the accused is called upon to explain as to how the amount in question
was found in his possession, the foundational facts must be established by the
prosecution. Even while invoking the provisions of Section 20 of the Act, the
court is required to consider the explanation offered by the accused, if any,
only on the touchstone of preponderance of probability and not on the touchstone
of proof beyond all reasonable doubt.
17.
Indisputably, the complainant took with him two panch witnesses.
One of them Ashok Waghade was a witness in respect of the alleged demand of
illegal gratification on the part of the respondent. He having died during
pendency of the matter before the learned Special Judge, no other independent
witness was available to prove the prosecution case in that behalf. The second
panch witness was not a witness of demand. Despite the said fact, the
prosecution sought to prove the demand purported to have made by the respondent
through him. It is of some significance to notice that although by the said
process PW-1 did not support the accused, he was declared hostile and
permission to cross-examine him was sought for by the prosecution.
18.
Initially, an amount of Rs. 2000/- was demanded. A sum of Rs.
1800/- was said to have been paid against the aforementioned demand. Another
criminal case was instituted on 14.07.1995. An amount of Rs. 1500/- was said to
have been demanded on 31.07.1995. Only a very small part of the said amount had
been paid, viz., Rs. 100/- and Rs. 200/- on two different occasions.
Keeping
in view the fact that the respondent enquired about the correctness or
otherwise of the First Information Reports lodged by the complainant and the
mother of said Sudhakar Borkar after a long time, it is doubtful that the
respondent had been coming to the village again and again. Even complaint was
made only on 8.08.1995. Indisputably, at least two attempts have been made, one
on that date and another later on. The entire procedure for making a raid was
repeated on 22.08.1995. This itself casts a serious doubt about the prosecution
case. The matter does not end here. Complainant with Ashok Waghade went to the
police station. Then, they went to their residence. If the respondent intended
to take the amount, he would have accepted the same in his house itself and
there was no reason to ask the complainant and the witness to meet him at a
public place, i.e., near the Veterinary Hospital. Even the details of the said
purported raid, viz., time of the complainant's visit to the police station,
the residence of the respondent and Veterinary Hospital, have not been
disclosed.
19.
It is, therefore, highly doubtful that the version of the complainant
was true. It is in the aforementioned backdrop only the evidence of DW-1 is to
be considered. Even otherwise, in our opinion, the prosecution has failed to
prove its case. It is, therefore, not a case where the High Court, as has been
contended by Ms. Divan, has failed to take into consideration the legal
implication of the provisions of Section 20 of the Act and/ or placed too much
reliance on the minor inconsistencies in the statements of the prosecution
witnesses.
20.
Even in a case where the burden is on the accused, it is
well-known, the prosecution must prove the foundational facts. [See Noor Aga v.
State of Punjab 2008 (9) SCALE 691 and Jayendra Vishnu Thakur v. State of
Maharashtra and Anr. 2009 (7) SCALE 757]
21.
It is also a well-settled principle of law that where it is
possible to have both the views, one in favour of the prosecution and the other
in favour of the accused, the latter should prevail. [See Dilip and Another v.
State of M.P. (2007) 1 SCC 450 and Gagan Kanojia and Another v. State of Punjab
(2006) 13 SCC 516]
22.
For the reasons aforementioned, there is no merit in this appeal,
which is dismissed accordingly.
.....................................J. [S.B. Sinha]
.....................................J. [Cyriac Joseph]
New Delhi;
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