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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

J U D G M E N T

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

whereunder 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”).

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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.

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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.

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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

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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

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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,

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must also be taken into consideration but then in respect thereof, it is trite, the

standard of burden of proof on the accused vis-à-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.

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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.

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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.

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……………………………….J.

[S.B. Sinha]

..…………………………..…J.

[Cyriac Joseph]

New Delhi;

July 29, 2009