IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO.586 OF 2015

The State of Maharashtra, Through

Deputy Superintendent of Police,

Anti Corruption Bureau, Jalna,

Tq. and Dist. Jalna.

… Appellant

… Versus …

Ramesh Tukaram Wagh,

Age 48 yrs., Occ. Service,

Police Head Constable, B. No.586,

Police Station Taluka Jalna,

Dist. Jalna.

… Respondent

...

Mrs. Vaishali Patil-Jadhav, AGP for appellant

Mr. Joydeep Chatterji, Advocate for respondent

...

CORAM :SMT. VIBHA KANKANWADI, J.

DATE :07

th

SEPTEMBER, 2020

JUDGMENT :

1 Present appeal has been filed by the prosecution challenging the

acquittal of the respondent in Special Case (PCA) No.4/2012 by learned

Adhoc Additional Sessions Judge-3, Jalna on 04.03.2015, thereby acquitting ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::

2 Cri.Appeal_586_2015_Jd_

him from the offences punishable under Section 7, 13(1)(d) read with

Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred

to as, “P.C. Act”).

2 The present respondent i.e. original accused is a Police Head

Constable, serving with Jalna Taluka Police Station in October, 2011.

3 Original complainant Gunappa Babuappa Barshe was resident of

village Mandwa, Tq. Badnapur, Dist. Jalna. He is an agriculturist. He lodged

complaint with Anti Corruption Bureau, Jalna on 12.10.2011 contending,

that he has five brothers, who are residing separately with their respective

family members. The wife of the complainant is the owner of 35 R land

bearing Gat No.143 in village Mandwa. In the same Gat number, 92 R land is

in the name of father of the complainant and it was in possession of

Ramappa-brother of the complainant. The complainant contended, that he

had dispute with his brother, in connection with the boundary of the lands

from the said Gat number. When such dispute arose on 05.10.2011 and he

was abused by his brother Ramappa and sons of brother Ramappa, the said

dispute was resolved by other brothers and nephew. Complainant had gone

to Jalna Police Station and lodged complaint against his brother Ramappa

and his three sons, which was in respect of non cognizable offence. When he

was coming out of the Police Station, his brother Ramappa went inside the ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::

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Police Station. Thereafter, when he was in Jalna city itself, at that time, the

present accused gave a phone call to him and disclosed that offence has been

registered against him by Ramappa and he should come to Police Station,

however, he did not go. Accused went to complainant’s house in Mandwa at

about 8.00 p.m. on 06.10.2011 and asked, as to why he has not visited the

Police Station though informed on phone. It was also informed that

Ramappa has given complaint against him, his two brothers and nephew.

Accused then asked all those four persons to come to Police Station on the

next day. Complainant and his younger brother Bhimappa went to Police

Station on 07.10.2011 and they met accused. It was told, that it was a trifle

dispute, however, Ramappa has given a false complaint. But then accused

told, that since offence has been registered they would be required to be

arrested. When complainant requested that the accused shall not arrest

them, then accused told, that the way out is, that if they pay Rs.20,000/- to

him, he would produce them before the Court immediately after arrest and

immediately they would be released thereafter on bail. Complainant told,

that they are poor persons and cannot afford to give amount. Then accused

told, that the said amount can be negotiated. The complainant left Police

Station by stating, that he would make arrangement for money within 4-5

days. Accused had thereafter given phone call on the mobile of Bhimappa 4-

5 times and demanded the amount. However, as the amount was not ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::

4 Cri.Appeal_586_2015_Jd_

arranged they did not contact accused. Complainant then met accused in

Police Station on 12.10.2011 and told, that they cannot arrange for the

money as told by him, and therefore, he should lower the amount. Initially

the accused lowered it to Rs.10,000/- and thereafter the amount was settled

at Rs.7,000/-. It was told by the accused, that minimum amount should be

given to him then only he would show their arrest and send them for bail to

the Court. He threatened, that if amount is not given then after arrest they

would be put in lockup and would be produced only on the next day. As no

option was left, the complainant agreed to give the amount. But promised

that it would be given till 11.00 a.m. on the next day. In the meanwhile the

complainant approached Anti Corruption Bureau and lodged the complaint.

4 After the complaint was lodged, two panchas were arranged and

in their presence verification panchnama was carried out. At the time of

verification the complainant had given phone call in presence of ACB officer

Mr. Pagare and the two panchas. The recording of the conversation has been

done. After the verification was done it was decided to carry out raid. ACB

officer explained the entire procedure, as to how the raid would be carried

out, gave instructions to complainant and both the panchas. It was also

explained to them, as to how the anthracene powder applied on the amount

brought by the complainant would act and demonstration was shown. Pre ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::

5 Cri.Appeal_586_2015_Jd_

trap panchnama was carried out.

5 After the complainant went along with panch No.1 to the Police

Station, there was conversation. It is the prosecution story that the accused

accepted the amount, which was an illegal gratification for showing the

arrest of the complainant and his brothers nominally and then helping then

in getting bail before the Court. After the raid was completed, panchnama

was carried out. The accused was found with the tainted money. ACB officer

Mr. Pagare lodged complaint against the accused on behalf of State and

carried out further investigation.

6 During the course of the investigation the statement of witnesses

were recorded, accused came to be arrested, sanction was obtained and after

the completion of investigation charge sheet was filed.

7 After the accused had appeared before the Special Judge, charge

was framed at Exh.10 against the accused. The contents of the charge were

read over and explained to him in vernacular. He pleaded not guilty and his

trial has been conducted. In all six witnesses have been examined. After

considering the evidence on record and hearing both sides the present

respondent-original accused came to be acquitted. The said acquittal is

under challenge in this appeal. ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::

6 Cri.Appeal_586_2015_Jd_

8 Heard learned APP Mrs. Vaishali Patil-Jadhav for appellant-State

and learned Advocate Mr. Joydeep Chatterji for respondent-accused. Perused

the paper book and evidence.

9 It has been vehemently submitted by the learned APP, that

learned Trial Judge has not appreciated the evidence properly. The demand

and acceptance of the amount, which was definitely an illegal gratification,

was proved by the prosecution beyond reasonable doubt. The learned Trial

Judge went wrong in even issuing notice to the complainant for taking action

under Section 344 of the Code of Criminal Procedure, however, he failed to

even discuss regarding demand and acceptance. In fact, complaint was well

supported by oral evidence. PW 1 Gunappa has proved the contents of his

complaint. The only fact, which prevailed upon the learned Special Judge,

was the alleged admission by the complainant, that he had forcibly put the

amount into the pocket of accused and accused had not demanded it.

Learned Judge said, that when he had thrusted the amount in the pocket of

the accused, it does not prove the demand and acceptance. The testimony of

the complainant was well supported by PW 2 Eknath Pawar. It was

categorically stated by him, that the said amount was offered on the demand

of the accused by the complainant, and therefore, there is no question of

thrusting. The panch witness has proved the verification panchnama, pre ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::

7 Cri.Appeal_586_2015_Jd_

trap panchnama and post trap panchnama. It was specifically brought on

record, that the fingers of the accused, the pocket of the shirt of the accused

had glittering and the tainted money was recovered from the accused. There

is absolutely no explanation in his statement under Section 313 of Cr.P.C. by

the accused. In question No.35, which was to the tune, that why the

witnesses were deposing against him, the accused had stated, that the

complainant had tried to keep the amount without his permission in his

pocket and at that time ACB had arrested him. If the said explanation of the

accused is to be accepted, then he wants to paint a picture that he had not

touched the tainted currency notes. But then he is not explaining the

anthracene powder found on his fingertips, palm etc.. The sanctioning

authority has been examined and there is no illegality found in the sanction

order. There was proper application of mind by the sanctioning authority.

No doubt, the hotel owner, whose hotel is in front of the Police Station and in

his hotel the acceptance and demand had taken placed, was examined. He

has turned hostile. Yet, the corroboration was sufficient from PW 2, the

panch witness. The learned Trial Judge has failed in appreciating evidence in

proper manner and given importance to those trifle admissions. Therefore,

the acquittal of the accused is wrong and illegal, it deserves to be set aside.

She prayed for allowing the appeal and convicting the respondent. ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::

8 Cri.Appeal_586_2015_Jd_

10 Per contra, the learned Advocate for respondent supported the

reasons given by the learned Judge while acquitting the accused and further

submitted, that the important point that is required to be considered is, that

in clear words the complainant has admitted that he had thrusted the amount

in the pocket of accused. Further evidence of PW 2 Eknath Pawar, panch

witness would show, that the complainant was not having amount of

Rs.7,000/- with him, and therefore, that amount was taken from the office of

ACB. This fact has been told by the panch witness in his examination-in-chief

itself. This shows, that by any means Anti Corruption Officer wanted to show

that the raid was successful. Even if we accept that there was anthracene

powder on the hands of the complainant; yet, these admissions given by both

the witnesses are sufficient to acquit the accused. There is absolutely no

necessity to interfere with the Judgment and order passed by the learned

Special Judge. He prayed for the dismissal of the appeal.

11 Taking into consideration the above submissions, following

points arise for determination, findings and reasons for the same are as

follows.

POINTS

1 Whether the prosecution has proved demand and

acceptance of the bribe by the accused from the

complainant ? ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::

9 Cri.Appeal_586_2015_Jd_

2 Whether interference is required in the decision of

acquitting the present respondent ?

REASONS

12 At the outset, while deciding any case involving the offence

under Anti Corruption Laws, the fact is required to be borne in mind, that the

complainant’s evidence will have to be scrutinized meticulously. Giving bribe

is also an offence but then in order to arrest a person, who has demanded

and then would be accepting the bribe, it has to be given; then the testimony

of such person requires to be carefully tested. In Pannalal Damodar Rathi vs.

State of Maharashtra, AIR 1979 SC 1191; it has been held that “There could be

no doubt that the evidence of the complainant should be corroborated in material

particulars After introduction of Section 165-A of the Indian Penal Code making the

person who offers bribe guilty of abetment of bribery, the complainant cannot be

placed on any better footing than that of an accomplice and corroboration in material

particulars connecting the accused with the crime has to be insisted upon”.

12.1 Further, in M.O. Shamsudhin vs. State of Kerala, (1995) 3 SCC

351; wherein it has been held that “the word ‘accomplice’ is not defined

under the Indian Evidence Act. It is used in its ordinary sense, which means

and signifies a guilty partner or associate in a crime. Reading section 133 ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::

10 Cri.Appeal_586_2015_Jd_

and illustration (b) to section 114 of the Evidence Act together, the courts in

India have held, that while it is not illegal to act upon the uncorroborated

testimony of accomplice, the rule of prudence so universally followed has to

amount to rule of law, that it is unsafe to act in the evidence of accomplice

unless it is corroborated in material aspects so as to implicate the accused”.

In this case the Hon’ble Supreme Court has thoroughly discussed as to how

the evidence of bribe giver is required to be appreciated.

12.2 Further, reliance can be placed on the decision in Bhiva Doulu

Patil vs. State of Maharashtra, AIR 1963 SC 599; wherein it has been held

that “the combined effect of section 133 and 114, illustration (b) may be

stated as follows : according to the former, which is a rule of law, an

accomplice is competent to give evidence and according to the latter which is

a rule of practice is almost always unsafe to convict upon his testimony alone.

Therefore, though the conviction of an accused on the testimony of an

accomplice cannot be said to be illegal, yet the courts will, as a matter of

practice, nor accept the evidence of such a witness without corroboration in

material particulars”.

12.3 Further, reliance can be placed on the decision in Gulam

Mahmood A. Malek vs. State of Gujarat, 1980 (Supp) SCC 684; wherein it

has been held that “the complainant himself is in the nature of an accomplice ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::

11 Cri.Appeal_586_2015_Jd_

and his story is prima-facie suspect for which corroboration in material

particulars is necessary”.

13 Now, after taking note of the legal requirement as to how the

evidence of complainant is required to be appreciated, we would see the

testimony of PW 1 Gunappa in this case. He has stated each and every fact as

per his complaint and the happenings thereafter, however, there appears to

be some change in the chronology of events. We need not give importance to

the same, since his entire evidence will have to be considered. On the basis

of his examination-in-chief the learned APP has submitted, that the demand

and acceptance was proved. However, in order to appreciate evidence of a

witness his entire testimony i.e. examination-in-chief, then cross-examination

by the other side and re-examination, if any, is required to be considered. In

his cross-examination he has admitted, that the police had given him a

mobile phone having recording facility. The complainant has further

admitted, that all the conversations between him and accused, since the filing

of the complaint till accused was apprehended, were recorded in the said

mobile. However, perusal of the entire evidence would show, that the

prosecution has not led any evidence to bring that recording on record and

get the tape recorded evidence proved. The discussion on the point of

appreciation of tape recorded version and how the panchnama to that effect; ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::

12 Cri.Appeal_586_2015_Jd_

though stated to have been proved through PW 2 Eknath Pawar the panch

witness, could be appreciated, would be dealt with later. However, it can be

seen further that the complainant has admitted, that he had insisted that the

accused should have arrested his brother on the basis of his report. The

accused has refused that offer and there is categorical admission, that he had

forcibly put that amount into the pocket of accused and accused had not

demanded it. On the basis of this evidence the learned APP submits, that in

fact, when the ‘demand and acceptance’ has been proved the accused ought

to have been convicted. The learned Trial Judge has specifically observed,

that after the last admission was given regarding thrusting, the prosecution

has not taken permission for re-examination and has not sought any kind of

clarification from the witness. Those observations are correct. In fact, when

there was ambiguity between the examination-in-chief and the cross, the

prosecution ought to have taken re-examination. The complainant in his

examination-in-chief has stated, that after the amount was demanded by the

accused he had given it to him, thereby trying to convey indirectly that there

was no thrusting. But in the cross he has, then by taking somersault

admitted, that though the money was not demanded by the accused he

himself has thrusted the said amount in the pocket of the accused.

14 At this stage itself, the another point that is required to be ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::

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considered is, that the amount, which the complainant was asked to give or

he has shown his readiness to give, was to get some favour from the accused,

which was not legal. Important point to be noted is, that the copy of First

Information Report lodged by the nephew of the complainant PW 1 Gunappa

with the police has been produced. Crime No.303/2011 was lodged against

the complainant on 05.10.2011 regarding the incident, that had occurred on

the same day. Offence was registered under Section 341, 323, 504 read with

Section 34 of the Indian Penal Code. All these offences are bailable. The

complainant says, that the present accused had informed him about the

lodging of the report against him on the same day i.e. on 05.10.2011.

Thereafter, the accused is stated to have met the complainant at his residence

on the next day i.e. on 06.10.2011. Yet, it appears that the complainant has

not sought legal advise and no attempt was made to get bail. If the

parameters were satisfied, he could have then avoided his arrest by legal

mode. But then the entire evidence of the complainant would show, that he

wanted to avoid his arrest by the accused, by some illegal means, and then he

says, that the accused had then insisted on him, that he should pay the

amount settled. No doubt, corruption is a menace to the society and now it is

so deeply rooted, that it would be only a dream to see a corruption free

society. But unless people stop giving bribe or asking for the favours and

then adopt legal method or mode, we cannot curb corruption. Here, when ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::

14 Cri.Appeal_586_2015_Jd_

the offences against the complainant were bailable, the complainant and his

co-accused would have been released on bail by the Court immediately and

in fact, there was nothing in the hands of the accused or he would not have

showed any leniency to the complainant and his co-accused. We cannot

forget that the complainant is a rustic villager and agriculturist, and therefore

would have believed the accused in whatever manner he was conveying. But

then we cannot forget that there was an element in the mind of complainant,

that he and his brothers, who are the accused in that rival complaint, should

not be put to any harassment, and therefore, he agreed to give bribery, and

therefore, in view of the aforesaid decisions further minute scrutiny is

required while appreciating the evidence of the complainant and to see

whether the prosecution has brought on record corroboration.

15 Now, turning towards the testimony of PW 2 Eknath Pawar, who

is the panch witness No.1 and was under instructions from the Investigating

Officer to watch and hear the conversation between complainant and

accused. In his examination-in-chief itself he has stated, he and complainant

went to Taluka Police Station and met the person, who allegedly had

demanded the amount from the complainant. But then he says that on

inquiry abut the location, opposite party had stated that he is in Taluka Jalna

Police Station. However, when the location of the complainant was asked, ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::

15 Cri.Appeal_586_2015_Jd_

complainant told, that he is in Mondha. Accused asked the complainant to

come, but complainant told, that he has short of some amount. The

complainant also stated, that he would reach Police Station after making

adjustment of the amount. Then the panch says, that there was demand of

Rs.7,000/-. He has stated that the verification panchnama Exh.18 was then

carried out. At this stage, if we consider the verification panchnama Exh.18

then we can see, that the mobile phone of one of the police having facility of

recording was made available to the complainant and the complainant was

instructed how to operate it. Thereafter, phone call was given to accused and

there was conversation, which was recorded. The said conversation has been

reproduced in verification panchnama Exh.18. It is also stated, that the

recorded conversation was played again and it was tallied with the

conversation, that was physically heard and reduced to writing. This

conversation has not been told as substantive evidence neither by

complainant nor by PW 2 Eknath Pawar. It is also to be noted, that the

testimony of the Investigating Officer is also short of giving details about the

verification panchnama. The prosecution has not produced the said

conversation in any form before the Trial Court. It was the best corroborative

piece of evidence to support the oral testimony. When such corroborative

piece of evidence was available, yet it was not produced by the prosecution,

then definitely adverse inference is required to be drawn. When the ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::

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prosecution has come with a case, that conversations were recorded from

time to time, however, neither they are produced nor they were played in

Court room and their verification was not got done, when the trial was in

progress, then a best piece of evidence can be said to have been withheld by

the prosecution for the reasons best known to it. Mere production of the

extract of the recorded version is not sufficient. Each time when the

conversation has been reproduced, it is stated, that it has been got verified

from the recorded conversation, then even before the trial Court it ought to

have been produced and proved by admissible mode. Hon’ble Supreme

Court in Ziyauddin Burhanuddin Bukhari vs. Brijmohan Ramdas Mehta, AIR

1975 SC 1788 clearly laid down that “The tape recorded speeches were

“documents” as defined by Section 3 of the Evidence Act, which stood on no

different footing than photographs”. Further, in R.M. Malkani vs. State of

Maharashtra, AIR 1973 SC 157, it has been held that “tape recorded

conversation is held admissible if it is relevant, if the voice is identified and

the accuracy of the tape recorded conversation is proved by eliminating the

possibility of erasing the tape recorded conversation”. Here, in this case the

prosecution has not come with a case that there was some technical difficulty

in producing and proving the recorded conversation, and therefore, it does

not want to rely upon the same. If after production of such evidence if it is

rejected or held to be inadmissible, that does not mean that it would affect ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::

17 Cri.Appeal_586_2015_Jd_

the substantial evidence. Evidence in the form of tape-recorded conversation

is corroborative piece of evidence, therefore, admissibility and proof of

substantial evidence would definitely on a different footing. Here in this case,

when evidence of the complainant necessarily requires corroboration, then

such corroborating evidence can not be withheld by the prosecution without

any genuine reason. When there is intentional suppression of evidence,

though available, then the substantial evidence, to which that corroborated

evidence would have corroborated, will have to be viewed with doubts. In

Ram Singh vs. Col. Ram Singh, AIR 1986 SC 3, following guidelines have

been laid down by the Hon’ble Supreme Court for admissibility of tape

recorded conversation :

1) The voice of the speaker must be duly identified by the maker of

the record or by others who recognize his voice. Where the maker

has denied the voice it will require very strict proof to determine

whether or not it was really the voice of the speaker. 2) The accuracy

of the tape recorded statement has to be proved by the maker of the

record by satisfactory evidence directly or circumstantial. 3) Every

possibility of tampering with or erasure of a part of the tape recorded

statement must be ruled out otherwise it may render the said

statement out of context and, therefore, inadmissible. 4) The

statement must be relevant according to the rules of Evidence Act. 5)

The recorded cassette must be carefully sealed and kept in safe or

official custody. 6) The voice of the speaker should be clearly audible

and not lost or distorted by other sounds or disturbance. ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::

18 Cri.Appeal_586_2015_Jd_

16 Here, the mobile phone of a Police Constable has been used to

record the conversation, and therefore, that being an electronic device and

the fact, that Section 65-A and and 65-B were inserted by Act, 21 of 2000

w.e.f. 17.10.2000 and the date of incident in this case is 13.10.2011, there

ought to have been a compliance of Section 65-B of the Indian Evidence Act.,

if that recorded conversation would have been produced and relied by the

prosecution. At the costs of repetition, the prosecution has not come with a

case, that since there is no compliance under Section 65-B of the Indian

Evidence Act, the prosecution does not want to place that piece of evidence

on record. Thus, it can be seen that though the Investigating Officer had

taken help of modern technique; yet the said piece of evidence has not been

produced nor tried to be proved. Oral evidence of panch about hearing of

conversation, hearing of recorded conversation by him verifying those

contents and statements in the panchnama to that effect, are not sufficient to

prove the recorded evidence, unless the voice of maker is identified before

the Court and the parameters laid down in Ram Singh’s case (supra) are

fulfilled, we cannot accept the said piece of evidence. Further, the act of

getting the conversation stored in CD had taken place and a panchnama to

that effect has been produced at Exh.23. However, the testimony of PW 6 Mr.

Pagare is silent on the point, that the said CD or copy of the same was sent to ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::

19 Cri.Appeal_586_2015_Jd_

Forensic Laboratory for analysis and also for verification. It also appears that

sample of voices were not taken. Then for what purpose earlier, at the time

of verification panchnama, the said recording was got done is rather

unanswered. Perusal of the pre trap or post trap panchnama does not show,

that again the same mobile was given to the complainant and he was asked

to record the conversation. After taking into consideration all these aspects it

will have to be observed that the prosecution story itself is doubtful, as there

is suppression of piece of evidence.

17 PW 2 Pawar has further deposed in his chief, that amount of

Rs.7,000/- was taken from office. In his cross by accused he has further

stated, that the said amount of Rs.7,000/- was given by Mr. Pagare i.e.

Investigating Officer to the complainant. This shows the fact, that

complainant was not having that much amount with him and the amount

was then supplied by the Investigating Officer himself. This fact has been

revealed in the examination-in-chief of the panch witness. Yet, clarification

was not further sought on behalf of the prosecution, as to why he has made

that statement. This fact, that the Investigating Officer himself had supplied

the amount to the complainant, is required to be viewed very seriously. It

cannot be the job of the Investigating Officer to supply amount to the

complainant from his office just to make the raid successful. PW 6 Mr. ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::

20 Cri.Appeal_586_2015_Jd_

Pagare, the Investigating Officer has stated, that the said amount of

Rs.7,000/- was in fact brought by the complainant himself. Thus, it can be

seen, that there is a contradiction between these two witnesses of the

prosecution regarding the source of the amount, which was to be offered as

bribe. Further, in the examination-in-chief, PW 2 Pawar has stated, that the

complainant had put those currency notes of Rs.7,000/- in the right side

pocket of his trouser, after the anthracene powder was applied to them, when

they were about to proceed to police station. That means, at that stage itself

the complainant had glittering on his fingers. In his cross-examination, the

panch witness has stated, that complainant had counted the amount after

applying the anthracene powder. This is also contrary to the contents of the

panchnama, wherein it is stated, that the complainant had not handled the

amount after the anthracene powder was applied to it till he had offered that

amount to accused and then accused had accepted it.

18 Now, as regards the thrusting of the amount is concerned, no

doubt, PW 2 and PW 3 are not saying the said fact, that the complainant had

thrusted the amount in the pocket of accused. However, when the APP,

conducting the case before the Trial Court, had not taken pains to get the

clarification in re-examination of the complainant, then the said fact will

have to be viewed against the prosecution. ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::

21 Cri.Appeal_586_2015_Jd_

19 As aforesaid, though the electronic evidence was not at all

proved, yet, if we consider the contents of verification panchnama Exh.18,

the conversation mentioned therein will not show, that there was utterence of

words ‘Rs. 7000/-’ by the accused. It is rather by the complainant and not by

accused. From the said recitals about the conversation, it cannot be said that

'demand' was proved beyond reasonable doubt. As regards the acceptance is

concerned, definitely the amount was found from the pocket of the accused.

But at the costs of repetition, it can be said, that though two witnesses are

saying that after acceptance the accused had put that amount in his pocket;

yet, the complainant himself is saying, that he has thrusted that amount in

the pocket of the accused. The accused has given a clarification in his

statement under Section 313 of Cr.P.C., that while he was resisting the

thrusting he got anthracene powder of his hand. Thus, he has tried to

explain the circumstance, which appears to be a probable circumstance,

taking into consideration the admission given by the complainant.

20 Taking into consideration all the above said evidence, scanning

thereof and the reasons aforesaid, it will have to be held, that the prosecution

has miserably failed in proving the charge levelled against the accused, and

therefore, the first point is answered in the negative. Point No.2 is also

required to be given in negative, as interference in the Judgment and order ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::

22 Cri.Appeal_586_2015_Jd_

passed by the Special Judge is absolutely not called for. There is no merit in

the present appeal, it deserves to be dismissed. Accordingly, it is dismissed.

( Smt. Vibha Kankanwadi, J. )

agd ::: Uploaded on - 14/09/2020 ::: Downloaded on - 30/08/2025 22:02:21 :::