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PETITIONER: SMT.  MEENA W/O BALWANT HEMKE

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT:       17/04/2000

BENCH: Doraiswamy Raju, R.C.Lahoti

JUDGMENT:

     Raju, J.

     The  appellant  in  this appeal, who  was  working  as Revenue  Record Keeper (Senior Clerk) in the Collectorate at Wardha  District,  was  charged before  the  Special  Judge, Wardha,  of the offences punishable under Section 161,  IPC, and  Sections  5(1)(d)  read  with   Section  5(2)  of   the Prevention  of Corruption Act, 1947 [hereinafter referred to as  ‘‘The Act].  The case of the prosecution was that  the appellant  demanded  and  accepted  on 20.8.1986  a  sum  of Rs.20/-  from  one Magorao Tarale (PW-1),  as  gratification other  than legal remuneration for doing an official act  of sending  the  relevant  records to the copying  section  for providing  copies of maps and Khasra Patrak, applied for  by him.  The appellant pleaded not guilty and sought for trial.

     The prosecution examined PWs 1 to 7 and marked several documents  in support of the charges.  The appellant  denied the  charges and asserted that she was falsely implicated on the  machinations of PW-3, PW-1 and one Jagdish Bokade, Shri Devanand  was examined as DW-1.  The crux of the prosecution case,  leaving  aside the unnecessary details is  that  PW-1 made  an  application  on  13.8.86  for  copies  of  records relating  to  lands  held  by his grand father  and  on  the suggestion  of  PW-3,  the Head Copyist, he  approached  the accused  and  requested her to make available  the  relevant record  for  preparation of copies.  The accused,  allegedly demanded Rs.20/- for making available the records.  PW-1 was not  prepared  to pay the money and he sought the advise  of one  Jagdish Bokade who gave the idea of complaining to  the Anti-Corruption  Bureau.   On  receipt of a  complaint  from PW-1,  orally  PW-6  reduced  the  same  in  writing.   Then Inspector,  PW-6 called for two panchas PWs 2 and 5 from the Forest  Department  as  well  as   a  lady  constable  named Victoria.   A  pre-trap  panchnama was stated to  have  been drawn  after  explaining  the details of the  trap  and  the characteristics of phenolphthalein powder as well as its use in  a trap.  PW-1, the complainant was said to have produced a  currency note of the denomination of Rs.20/- before  PW-6 who  applied  the  chemical  powder on either  side  of  the currency  note  and made it kept in the side pocket  of  the trouser  of  the  complainant.  PW-1 was instructed  not  to touch  the  currency note till the accused makes the  demand and  only thereafter give it to her.  PW-2, one of the panch witnesses,  was instructed to accompany the complainant  and

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not  only hear the conversation between the accused and  the complainant  but  also keep a watch as to where the  accused keeps the amount, after receiving the same.  The other panch witness,   PW-5  and  the   lady  constable  Victoria   were instructed  to remain present nearby the side of the  record room  and rush to the spot on receipt of the signal from the complainant.    The  lady  constable   was   instructed   to immediately  catch the hands of the accused and the rest  of the trap party would follow them by remaining at a distance.

     The complainant was said to have gone ahead with PW-2, while  the  other members of the trap party  took  positions outside  the  room  waiting for the agreed signal  from  the complainant of rubbing his mouth with his handkerchief.  The further  case of the prosecution is that things happened the way  it  was planned and the complainant not only  paid  the amount  by  handing over the currency note on a demand  then made by the accused but he came out of the room and made the signal  for  the  trap party to play  their  respective  and allotted roles.  The lady constable was said to have arrived first,  immediately  and held both the hands of the  accused who  by then seems to have thrown the currency note from her hands  on the table.  Thereafter, PW- 6 prepared a  solution of  sodium carbonate in a glass tumbler and when the accused dipped  her  hands  in  the  glass  tumbler  containing  the solution  the colour of the solution was said to have turned to  purple  and  the collection of the same was  sealed  for being  sent  to chemical analyser.  The solution  of  sodium carbonate when sprinkled on the currency note and the pad on the  table on which the currency note has been thrown purple colour  appeared  on both and they were duly seized under  a mahazar,  for further action.  Immediately, thereafter, PW-6 was  said  to  have lodged a report against the  accused  at Police  Station,  Wardha,  and  thereafter  carried  on  the investigation which resulted in laying of the charge against the accused.

     The  Special Judge, after considering the materials on record,  held the charges proved and sentenced the appellant to  undergo  rigorous imprisonment for a period of one  week and to pay a fine of Rs.200/-, in default of which to suffer further  rigorous  imprisonment  for fifteen  days  for  the offence  under  Section  161, IPC.  For  the  offence  under Section  5(1)(d)  read  with Section 5(2) of  the  Act,  the appellant  was sentenced to suffer rigorous imprisonment for a  period of one month and to pay a fine of Rs.500/-, and in default  to  suffer further rigorous imprisonment for  three weeks.  Both the sentences were ordered to run concurrently, on 30.10.1993.

     On  an appeal filed before the High Court at Mumbai, a learned  Single Judge also affirmed the findings recorded by the  Trial  Judge.   On the question of sentence  also,  the learned  Judge  in  the  High Court was  of  the  view  that leniency had already been shown by the Trial Judge and there was  no further scope for interference.  The appeal came  to be rejected on 18.10.1994 resulting in filing of this appeal by special leave.

     The  learned  counsel  appearing   for  the  appellant strenuously  contended that the courts below committed grave errors  of  law  in  returning a finding  of  guilt  on  the perfunctory  materials on record and that no court  expected to  objectively analyse and evaluate evidence reasonably and rationally could have held the charges proved.  It was urged

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that  necessary  and  essential  ingredients  to  constitute offences  as  statutorily defined could not be held to  have been proved.  The non-examination of the lady Constable, who first  reached the spot after the alleged acceptance of  the amount  as  well  as  of Jagidsh Bokade, who  had  played  a pivotal  role  in the trap alongwith PW-1 and PW-3,  renders the case of the prosecution self-condemned.

     The  learned  counsel, at length, took us through  the evidence  of PW-1, PW-3, PW-4, PW-5 and DW-1 to substantiate the  grievance  of the appellant.  Reading the  evidence  of PW-1,  it  was  endeavoured  to  show  that  he  had  spoken altogether   a  different  version   in   the   departmental proceedings  against  the  appellant  where  he  deposed  in respect  of the very incident earlier on 30.9.1987 rendering him   totally  an  unreliable   witness  and  his   evidence uncreditworthy.  The controversy in respect of the manner of handing  over the currency and its receipt was said to  have been  belittled  and ignored when, according to the  learned counsel, it cuts at the very root of the vital ingredient of acceptance  of  the  money  itself and  on  the  other  hand sufficiently  proved  the claim that PW-1 only attempted  to thrust the currency into the hands of the appellant and when the appellant refused the same by pushing with her hand, not only  the currency note came into contact with her hand  but in  the process fell on the pad on the table from where only it  was  taken and seized.  The several admissions  made  by PW-1  and  PW-3 were said to substantiate the position  that they  and  one  Jagdish Bokade, who was the  author  of  the application submitted on 13.8.1986 and who was with PW-1 all through, were in hand in glove in this venture to harass the appellant  since the staff in the Collectorate, particularly PW-3,  did not like the appellant to be in the  Collectorate and that they were offended on account of the refusal of the appellant  to  participate in the periodical liquor  parties held  by them by making contribution, as desired.   Finally, it  was submitted that the materials on record are not  safe to  be  relied  upon  or sufficient in law  to  condemn  the appellant  of  the offences of the nature  levelled  against her.

     The  learned  counsel for the respondent-State,  while strongly  placing reliance upon the judgments of the  courts below,  contended that the concurrent findings of the courts below, recorded on a proper appreciation of the evidence, do not  suffer from any infirmities or irregularities, to  call for  an interference in this appeal and that, therefore, the appeal  does  not merit our acceptance.  Our  attention  has been  drawn to such findings of the trial court, which  were in  extenso quoted and approved by the learned judge in  the High Court also, in support of his stand.

     The  essential ingredients to be established to indict a  person of an offence under Section 5(1)(d) of the Act are that  he should have been a public servant;  that he  should have  used corrupt or illegal means or otherwise abused  his position  as  such public servant, and that he  should  have obtained a valuable thing or pecuniary advantage for himself or  any other person.  Likewise, Section 161, IPC,  requires that  the  person  accepting the gratification should  be  a public servant;  that he should accept the gratification for himself  and  the  gratification should be as  a  motive  or reward for doing or forbearing to do any official act or for showing  or  forbearing  to  show, in the  exercise  of  his official  function, favour or disfavour to any person.  Like

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any other criminal offence, the prosecution has to prove the charge  beyond  reasonable  doubt   and  accused  should  be considered  innocent,  till it is established  otherwise  by proper proof of acceptance of the illegal gratification, the vital  ingredient, necessary to be established to procure  a conviction for the offences under consideration.

     We   have   bestowed  our   careful  thought  to   the submissions  made  on  either  side, in  the  light  of  the evidence  on  record.  We are of the view that  neither  the quality   of  the  materials   produced  nor  their   proper evaluation  could,  in  this  case, be  held  sufficient  to convince   or  satisfy  the   judicial  conscience  of   any adjudicating Authority to record a verdict of guilt, on such slender  evidence.   Indisputably,  the   currency  note  in question was not recovered from the person or from the table drawer,  but  when the trap party arrived was found only  on the  pad on the table and seized from that place only.   The question  is  as  to whether the appellant accepted  it  and placed it on the table or that the currency note fell on the pad on the table in the process of the appellant refusing to receive  the same by pushing away the hands of PW-1 and  the currency, when attempted to be thrust into her hands.  PW-2, one  of  the  panch witnesses, who accompanied  PW-1,  as  a shadow  witness,  when he tried to give the bribe,  did  not support  the prosecution case.  He has been treated  hostile and  his evidence eschewed from consideration by the  courts below.   The  lady  Constable,   Victoria,  another   shadow witness,  who first arrived on the spot after the signal was given  by  PW-1,  was not examined at the  trial.   Law  has always  favoured  the  presence and importance of  a  shadow witness  in  the  trap party, not only  to  facilitate  such witness  to  see but also overhear what happens and  how  it happens  also.   In this case, the role of Victoria  was  to enter  first  and hold the hands of the accused  immediately after  the acceptance of the bribe amount and she was stated to have done that, as planned.  For reasons best known, such a  vital  and  important witness has been  withheld  by  the prosecution,  from  being  examined.   Jagdish  Bokade,  who scribed  the application dated 13.8.1986 for getting  copies and  who admittedly was all alongwith PW-1 and gave even the idea of lodging a complaint with the Anti-Corruption Bureau, has  also  been  withheld from being  examined.   The  other person,  who  was present at the place of occurrence  though cited  initially  as  witness,  was   not  examined  by  the prosecution  but later was got examined as DW-1 and evidence of this person completely belies the prosecution story.  The corroboration  essential  in  a  case  like  this  for  what actually  transpired  at the time of the alleged  occurrence and  acceptance of bribe is very much wanting in this  case. Even  the other panch witness, PW-5, categorically  admitted that  even  as the Inspector of Police, PW-6,  arrived,  the appellant  gave  the same version that PW-1 tried  to  force into  her  hands the currency note which she turned down  by pushing  it  away,  and  his evidence  also  does  not  lend credibility   to   the  case  of   the   prosecution.    The contradictory  version  of  PW-1 of the very  incident  when earlier  examined  in departmental proceedings  renders  his testimony  in  this  case  untrustworthy.   PW-3,  the  Head Copyist,  seems  to be the brain behind all these  and  that PW-1  as  well as Jagdish Bokade appear to be working  as  a group  in this affair and despite the blunt denial by  PW-3, his  closeness  to  PW-1  and   Jagdish  Bokade  stand  well substantiated.   All these relevant aspects of the case seem to have been completely overlooked by the courts below.

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     The  learned  Judge  in the High Court seems  to  have mechanically  affixed his approval to the findings  recorded by  the  trial Judge by profusely extracting such  findings. Mere  recovery of the currency note of Rs.20/- denomination, and that too lying on the pad on the table, by itself cannot be  held to be proper or sufficient proof of the  acceptance of  the  bribe, in the peculiar circumstances of  this  case which  lend also credence to the case of the appellant  that it fell on the table in the process of the appellant pushing it  away with her hands when attempted to be thrust into her hands  by PW-1.  The results of phenolphthalein test, viewed in  the context that the appellant could have also come into contact  with the currency note when she pushed it away with her  hands  cannot  by  itself be considered to  be  of  any relevance  to  prove that the appellant really accepted  the bribe amount.  With such perfunctory nature of materials and the  prevaricating  type of evidence of PW- 1 and PW-3,  who seem  to  have  strong prejudice against the  appellant,  it would  be  not only unsafe but dangerous to rest  conviction upon  their testimony.  PW-1, if really was keen on  getting the  copy of the record urgently, could have made an  urgent application  to have them delivered within 3 days instead of making  an ordinary application and going on such an errand, which  makes  it even reasonable to assume that the trio  of PW-1,  PW-  3 and Jagdish Bokade were attempting to weave  a web around the appellant to somehow get her into trouble and victimise her.

     The  fact that the judgments of the courts below  were rendered concurrently cannot dissuade us from interfering in a  case  like this where such findings and  conviction  have been  recorded on mere conjectures and erratic evaluation of the evidence on record.  Consistency for the mere sake of it is no virtue.  It is an obligation of judicial conscience to correct  errors, where the same are manifest.  The judgments of  the  courts  below suffer from serious  infirmities  and manifest  errors  on  account   of  unwarranted   inferences liberally  drawn by the courts below against the  appellant, overlooking  the  fundamental  principle of  presumption  of innocence  of  an accused till the charge levelled  and  his guilt  is  established  beyond all  reasonable  doubt.   The courts  below have failed to consider the adverse impact  on the  prosecution  case  from the evidence of  PW-2  and  the withholding  of  the lady constable and Jagdish Bokade,  two material  witnesses.  The appellant cannot be, on the  basis of  available  evidence, held to have tacitly  accepted  the illegal  gratification as alleged.  The materials on  record in  this case are not sufficient to bring home the guilt  of the  appellant.   Consequently, the appeal is allowed.   The conviction  and  sentence of the appellant is set aside  and the fine, if any, paid shall be refunded to the appellant.