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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