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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: NARSINGRAO GANGARAM PIMPLE

DATE OF JUDGMENT27/10/1984

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA THAKKAR, M.P. (J)

CITATION:  1984 AIR   63            1984 SCC  (1) 446  1983 SCALE  (2)659  CITATOR INFO :  R          1987 SC1986  (34)

ACT:      Prevention of  Corruption Act-S.  5(1) (a) and 5(2) and s. 161  of I.P.C.-  Accused  prosecuted  for  demanding  and accepting illegal  gratification-Trial Court  convicted  and sentenced the  accused-High  Court  acquitted  the  accused- Whether and when Supreme Court should interfere. What should be judicial  approach to  evidence of  witnesses in  a  trap case.

HEADNOTE:      The respondent,  a Sub-Inspector of Police, was charged under s.  161 of  the Indian  Penal Code  and also under ss. 5(1) (a)  and 5(2)  of the Prevention of Corruption Act. The prosecution case  was that  one Rege  had filed  a complaint against  his  tenant  Walawalker,  that  he  was  running  a distillary. On a search of Walawalker’s house made by P.W. 8 Gangurde, a police officer subordinate to the respondent, no trace of distillary was found. The respondent told Rege that since the  complaint made by him was prima facie found to be false he  was liable  to  be  prosecuted  under  the  Bombay Prohibition Act.  The respondent demanded from Rege Rs. 2000 on 9-4-1972  as gratification  for  not  taking  any  action against him  and repeated the same demand on 13-4-1972. Rege was directed  to see  the respondent  near about the police- station at  a place  called padavi.  Rege out of desperation contacted PW  11, M.S. Khamkar and after narrating his story requested him  to lay  a trap in order to catch the accused. Rege also  gave 20  hundred rupee  notes to  PW 11  which he proposed to handover to the accused at the time of the trap. The raiding  party reached  padavi round about 7.00 P.M. and waited for  the respondent  to come. The respondent appeared on the  scene at about 8.30 P.M. and on seeing Rege repeated his demand  for the  3rd time,  Rege gave  the money  to the respondent. This  was watched  by P.W.  11, P.W.  3 and some others of  the raiding pary. Thereafter Khamkar, PW 11, went into the  room and tried to hold the hands of the respondent who had made an attempt to take out the notes from the right side pocket  of his  pant but  despite this  the  respondent succeeded in  throwing out  the notes.  As  the  money  thus passed had  already been treated with anthracine powder, the

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hands and  the right  side pocket  of the  accused were  put before the  ultra violet  lamp and  were found to be stained with the said powder.      The trial  court convicted and sentenced the respondent under s.  5(1) (a)  and 5(2) of the Prevention of Corruption Act. In  appeal the  High Court set aside the conviction and sentences imposed  upon the respondent. Hence this appeal by the State.  The State  argued that  there was  no  real  and meaningful discussion  of the important evidence produced by the prosecution in support of 622 its case and the High Court had merely narrated the evidence without examining its intrinsic merit and had sidetracked an issue which  was not  at all germane for deciding this case. The respondent  argued that  the High Court having acquitted the accused,  this Court  should very  rarely interfere with the judgment  of the  High Court  and should  do so  only in cases where  there was  a grave  error  of  law  or  serious miscarriage of justice and that too when the accused faced a trial for several years and had been reinstated and promoted as an Inspector.      Allowing the appeal, ^      HELD :  The judgment  of the  High Court  suffers  from serious and substantial errors of law and legal infirmities. This is  one of  those rarest of rare cases where this Court would be  failing in  its duty  if it did not interfere with the order  of acquittal  and set  aside the  judgment of the High Court.  On a  full and complete discussion of the facts and circumstances  of the  case the  Court is of the opinion that the  charges against  the respondent-accused  have been clearly proved and his acquittal by the High Court was wrong both on law and on facts. [644 E-F]      The respondent  took  an  ingenious  though  improbable defence that  Rege attempted  to thrust  the notes  into his pocket in the presence of Khamkar but he gave a push and the notes fell  on the  ground; thereby  he tried to explain the stains of  the anthracine powder on his hands. While putting forward this  defence the respondent seems to have forgotten that the  notes had  been taken  out of his pocket which was also smeared  with the powder and it is impossible to accept that an ordinary person like Rege would have the courage and audacity to  forcibly thrust  as many  as 20 notes of rupees 100 denomination each into the pocket of the respondent when he knew  that the respondent was a police officer armed with a revolver.  It is difficult to believe that Rege would take such a  grave risk  and do so in the presence of Khamkar and others. The  testimony of  two independent witnesses and one clerk  however   reveals  a   different  story  which  fully corroborates the prosecution version. [630 D-F]      The High  Court seems  to have  devoted a major part of its judgment to the various case diaries produced before the court in order to establish that the accused was not present at the police station either on the 9th or on the 13th April 1972 when  the first two demands were made. According to the High Court  this gave  a sufficient  alibi to the respondent from which  it could  be safely  inferred that if he was not present at  the police  station, there  could be no occasion for him  to make  any demand for bribe from the complainant. Assuming that  the recitals  in the  said case  diaries  are admissible (though  there is  serious doubt about it) yet it does not  at all  exclude the  presence of the respondent at the Ambarnath  police station on the 9th and 13th because he was not  sent away  to a  place situated far from Bombay but was in  some other  police station  within a radius of a few

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miles only.  Even if  he was  deputed to some other place he was in possession of a jeep and he could visit the Ambarnath police station  for a  few minutes on any of these dates. It is well  settled that  a plea  of alibi  must be proved with certainty so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence. Such,  however,   is  not  the  case  here.  Therefore,  the discussion of  the case diaries, which engaged a substantial portion of the High Court judgment was really an exercise in futility. [632 D-G] 623      We have  gone through  the entire  evidence led  by the prosecution and,  in its  opinion, the  prosecution case was fully proved  because it  has been supported by at least two independent witnesses,  viz., PW  s 3  and 11 and to a great extent by PW 7. [636 D]      This Court  is unable to be convinced by any reason why the  evidence   of  PWs   3  and   11  should  be  discarded particularly when neither of these witnesses bore any grudge or animus against the respondent nor was any such suggestion made to any of these witnesses. Certain minor contradictions or inconsistencies  have been  pointed out in the statements of PWs  1 and  3 but on close examination they do not appear to be  material and,  therefore, not sufficient to throw out the prosecution  case. PWs  1 and 3 have fully supported the prosecution case. [636 E-H]      The High Court was greatly impressed by what it calls a serious lacuna  in the  prosecution case-that  although both Rege and  Khamkar, along with the raiding party, came to the Municipal octroi  Naka the first thing which Khamkar did was to ask  Rege to  stand outside  (padavi) where  the  raiding party was  also present.  The High  Court further  held that from the  evidence of Rege it appears that after the raiding party came  there Khamkar  caught hold  of the  hands of the accused and  took him  inside the  room. The  High Court has come to  this  finding  on  a  complete  misreading  of  the evidence of  PWs 1  and  11  overlooking  and  ignoring  the logical sequence of events starting from the morning of 14th April up to the time when the money passed. [637D-638C]      The High  Court seems to have been under the impression that PW  1 was  not subjected to the ultra violet lamp light test which  in fact  was done  and here the High Court again committed an error of record. [638 D]      The High  Court did  not make  any attempt  to scan and appreciate the intrinsic merits of the evidence of PWs 1 and 3 as corroborated by PW 7, which by itself was sufficient to prove the  prosecution case  regarding  the  acceptance  and recovery of money. [638H-639A]      The High  Court failed  to consider  as to  what motive could Rege have to falsely implicate the accused when he had not conducted  the search nor was he directly connected with the charge  sheet which  was going  to be filed against him. Indeed, the  dominant question  which the  court should have put to itself would have been as to why a complaint under s. 89 of  the Prohibition  Act was  not filed against Rege even though the  chargesheet was ready. The evidence of Gangurde, PW 8 shows that he was ready to file the chargesheet but the accused directed  him not  to do  so until  the  receipt  of further instructions  from him.  That being the position why did the  accused asked  Gangurde to  delay the filing of the chargesheet ? This question has neither been answered by the High Court  nor by  the accused.  It seems that the approach made by  the High Court towards the prosecution has not been independent but  one  with  a  tainted  eye  and  an  innate prejudice. In  fact, the  High Court appears to have been so

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much prejudiced  against the  prosecution that  it magnified every minor  detail or  omission to  falsify or throw even a shadow of  doubt on  the prosecution  evidence. This  is the very ante-thesis  of a  correct  judicial  approach  to  the evidence 624 of witnesses  in a  trap  case.  Indeed,  if  such  a  harsh touchstone  is  prescribed  to  prove  a  case  it  will  be impossible for the prosecution to establish any case at all. [639 D-F; 640H-641B]      The High  Court rejected  vital evidence of PWs 1, 3, 8 and 11  on frivolous grounds and it did not make any attempt to  discus  their  evidence  on  intrinsic  merits  and  the superficial manner  in which  it has dealt with the evidence and circumstances  in order to demolish the prosecution case is wholly  unacceptable and  leaves much to be desired. [644 B-C]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 127 of 1977      Appeal by  Special leave  from the  Judgment and  Order dated the  22nd/23rd Jan.,  1976 of the Bombay High Court in Criminal Appeal No. 102 of 1974      O.P. Rana, and M.N.Shroff, for the Appellant.      S.B.Bhasme, Ram  Jethmalani, and  V.N. Ganpule, for the Respondent.      The Judgment of the Court was delivered by      FAZAL ALI,  J. This appeal by special leave is directed against a  judgment dated 22/23rd January 1976 of the Bombay High Court  acquitting the  respondent of the charges framed against him  under s.161  Indian Penal  Code and  also under s.5(1) (a)  and 5(2)  of the  Prevention of  Corruption  Act (hereinafter referred  to as  the ‘Act’).  The  trial  court after very  detailed consideration of the evidence held that the charges  under the  aforesaid sections  had  been  fully proved and  the respondent-accused was accordingly sentenced to undergo  two years rigorous imprisonment under s.5(1) (a) and 5(2)  of the Act and a fine of Rs. 2000 was also imposed and in default of payment of fine further six month R.I. was imposed.  The  High  Court  in  appeal  disagreed  with  the conclusion of  the trial  court allowed  the appeal  of  the accused, and  set aside the conviction and sentences imposed on him.      We  have   heard  Mr.   Jethmalani,  counsel   for  the respondent- accused  and Mr. Rana for the appellant and have gone through  the entire  evidence and  the Judgment  of the High Court. 625      This seems  to be  a very  strange case where truth has been so much polluted that falsehood has taken its place and truth buried  under deep debris. This has been possible by a clever police officer like the respondent, who tried to kill two birds  with one  stone, being  seized of  an opportunity which came  to him through a complaint filed by Pandharinath Shivram Rege (hereinafter referred to as ‘Rege’) against his tenant  Govind   Shantaran  Walawalkar  (for  short,  to  be referred  to   as  ‘Walawalkar’)  to  the  effect  that  the complaint suspected that his tenant, Walawalkar, was running a distillery.  On a  report by  the police that on searching the premises no trace of distillery was found, presumably an inference could  be drawn that the said complaint was false, though the said complaint was yet to be tested in a court of

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law in  a prosecution  under s.89  of the Bombay Prohibition Act (for  facility, to be referred to as ‘Prohibition Act’). The police  report obviously made Rege extremely nervous for fear of impending prosecution. Rege, as his background would show, was  not an  ordinary man  in the  street but a highly educated person  who had got a M.Sc. degree and retired as a senior chemist  before settling down in his own house called Prapanch. Therefore, being a respectable person he naturally get perturbed by the adverse police report. It was here that the accused,  having got  an opportunity of his life through his dice,  by an ingenious device invited the complainant to offer him  bribe by putting him in a tight corner on the one hand, and in an inextricable dilemma on the other.      To  begin  with,  the  respondent-accused  sensing  the nervousness Rege  started by  showing human sympathy that no harm would  come to  him. Finding that he had cought Rege in the net,  he took undue advantage of Rege’s helplessness and frustration and played his game by gradually making an offer to extricate  him (Rege)  if he  could pay  him a sum of Rs. 2,000. The  demand was  repeated and poor Rege found himself between the  devil and  the deep sea. These repeated demands of the respondent drove Rege into desperation which took him to PW  11, M.S.  Khamkar, to  whom he narrated his story and requested him to lay a trap in order to catch the accused.      Here, before  narrating the  facts, we  might mention a few words  about the nature of the approach made by the High Court. Far  from probing  into the  truth and  heart of  the matter the  learned Judge  appears to  have readily accepted the visibly  attractive argument  of  the  counsel  for  the Respondent that by foisting a false charge of bribery on the respondent the complainant displayed a diabolical 626 character in  rendering the step taken by the police against Wala-walkar nugatory  and stalled  any further  action. This argument was  reiterated before  us by  the counsel with all the force  at his  command but on closer examination, in our opinion, the  argument is  completely without substance. The learned  Judge  seems  to  have  over-looked  two  important circumstances which  completely negative the reasoning given by him.  In the first place, assuming that the allegation of bribery made  by the  complainant against the respondent was false, how  could it  stop any action on the complaint which was being looked after and investigated by PW 8 Gangurde who categorically states  that he  had prepared  the chargesheet (Ex.66) on 11.4.72 and sought permission from the accused to take Rege  to the  court in order to present the chargesheet but the  accused directed  him not  not to  precede with the chargesheet and asked him not to file the same until further orders from  him. Therefore,  it was  the  accused  who  had stalled the prosecution of Rege. In this connection Gangurde stated as follows :           "On 13.4.72  I again  approached the  accused  and      asked him  whether the charge-sheet against Rege should      be forwarded to the court. He told me that there was no      hurry about it and that I should keep those papers with      me. He  further told me that I should keep those papers      till he instructed."      It may thus be noticed that by the time Gangrude wanted to file  the chargesheet  the first  demand for  bribery had already been made on 9.4.72 and the second demand was yet to be made  on 13.4.72  which clearly shows that there was some "method in  the madness"  on the  part of  the respondent in directing his  subordinate to  withhold  submission  of  the chargesheet until  further instruction from him or there was some hidden  secret which compelled the accused to give such

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a direction. And by a process of elimination it would appear that the  only consideration  which inspired  the accused to take such  an extraordinary  step was  to wait  until he was able to  get the  money demanded so that after receiving the money he  would get  the matter  dropped. This  inference is fully supported  by the  statement of PW 1 who has stated in categorical terms that on one occasion he was assured by the accused that  he would  see that Rege would be acquitted and even on  the 14th  when the  demand  was  finally  made  the accused had assured him in the following words: 627           "You should  not worry,  I am  arranging  for  the      withdrawal of  that case, and that I should not harbour      any worry  on that  count. I said that he should see to      it."      There would  therefore be  no other  earthly reason why the respondent should have kept the chargesheet pending even though it  was ready.  Furthermore, the possibility that the allegations made  by Rege  against his  tenant may have been true cannot  be reasonably  excluded because the complainant categorically states that he used to get smell of liquor and see lot  of people going and coming into Walawalkar’s house. It may be that Walawalkar having got sense of the matter, as he lived  in the  same place,  removed all the traces of the distillery before the police could reach the premises. After all the  complaint filed  by Walawalkar against Rege had yet to stand  the test  of judicial scrutiny and remained in the domain of  only an allegation on the basis of which a charge sheet was  to be  submitted to  the Court. This inference is fully fortified,  reinforced and  rendered very  probable by the subsequent  conduct of  Walawalkar who knowing full well that the  complaint filed  against him by Rege was false and baseless which seriously and adversely harmed his reputation and the  police contemplated to take action under section 89 of the Prohibition Act at his instance against Rege, he kept quiet and made no attempt whatsoever to pursue his complaint or take  proceeding under  section 182  I.P.C. or  for  that matter file  a suit  for malicious prosecution against Rege. In view  of  such  a  meaningful  silence  on  the  part  of Walawalkar a fair possibility of the allegation made by Rege against Walawalkar  may have  been after all true, could not reasonably be  excluded. This,  therefore, completely knocks the bottom out of the reasoning adopted by the Judge and the argument put forward by Counsel.      Further, it is not understandable why the accused after being informed that the charge-sheet of Rege was ready to be submitted, directed  Gangurde, his  subordinate officer,  to let  it  lie  over  until  further  instructions.  This  is, therefore, something more than meets the eye and provides an intrinsic, nay,  a conclusive  proof of  the factum  of  the demand of  bribe from  Rege and  inferentially suggests that the accused  wished to  wait until  his demand  was complied with by Rege in which case the proceeding against Rege might be dropped.  This is  fully corroborated  by the evidence of Rege who  states that  after the  two demands  on 9th & 13th April 1972, even on 14.4.72 the accused assured Rege that he would be acquitted. The fact, 628 however, remains  that the  charge  sheet  to  be  submitted against Rege  was put  in a cold storage, vanished into thin air and was never revived thereafter, which still remains an unsolved  mystery.   In  these   circumstances  to  dub  the complainant as  a  person  of  a  dubious  or  a  diabolical character as  the High  Court has  done was most unfortunate and amounted to inflicting on him, "an unkind cut indeed."

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    The  story   of  this  dextrous  drama  staged  by  the respondent with complete adroitness and alacrity begins with a complaint  filed by  Rege on  the 25th  of March  1972  at police station  Ambarnath at 8.30 a.m. under the Prohibition Act. Before  the complaint  was reduced  in writing Rege had narrated the  facts to  the respondent  who had asked him to give a  written complaint. On the basis of the complaint, PW 8, Gangurde carried out a search after preparing a panchnama and  reported  that  nothing  was  found  in  the  house  of Walawalkar connecting him with the offence under s.89 of the Prohibition  Act.  On  4.4.72  Rege  was  sent  for  and  in pursuance of  the call  from the  police station  he reached there by  about 8.30 a.m. where Gangurde was present but the accused  was   not  there.  Being  totally  unaware  of  the ingenious plan of the respondent, Ganguurde told Rege that a case under  the Prohibition  Act had been registered against him and  he was  to be  prosecuted, arrested  and  could  be released on bail on furnishing a surety. Rege sent for PW 4, Dr. V.B. Sardar, to stand surety for him so that he could be released on  bail. Before  Dr. Sardar  came  to  the  police station, the  accused, who had reached the police station by that time,  impressed upon  Rege that  since he  had given a false complaint  against Walawalkar  who was  a  respectable man, a  case had  been registered against him. This seems to be the first step taken the accused for spreading the net in order to catch his prey.      On 9.4.72  while Rege  had gone  to play  tennis he was summoned to  the police  station where  he,  accompanied  by Sukhtankar, reached  at about  8.00 p.m. and saw the accused there. The  accused then  took Rege on the road and told him that if  he could  pay Rs.  2000 to him he would see that he (Rege) was  acquitted. It  might be  noticed here  that PW 8 Gangurde has  clearly stated  that he  had made  a search of Walawalkar’s house  on 25.3.72 and recorded his statement on 28.3.72 on  which date  a case  was registered  against Rege under the oral orders of the respondent. The witness further goes  on   to  state   that  he  had  already  prepared  the chargesheet against  Rege and even after the complainant was sent for to come to thee 629 police station  and released  on  bail  no  chargesheet  was submitted. Gangurde states that the chargesheet was prepared on 11.4.72  but as he wanted a clearance from the respondent for submitting  the charge-sheet  he was told that there was no hurry  and that  the papers  should be kept with him till further instructions.  No explanation  has been given by the respondent for  staying the  submission of  the  chargesheet after it  was fully ready in a case which ought to have been put up  before the  court immediately. This important factor intrinsically supports  the case of Rege that the respondent was holding  up the  chargesheet in  order to make his drama complete by obtaining the money demanded from him as illegal gratification. It  is obvious  that the respondent wanted to keep Rege within his control and allow the sword of damocles to hang over him until the deal was completely finalised.      Incidentally, we  might mention  that this circumstance completely  demolishes  the  argument  of  Counsel  for  the respondent that  having filed  a false  complaint and having made a  false representation to Khamkar that the accused was demanding  bribe  and  that  a  trap  should  be  laid,  the complainant succeeded in shelving the chargesheet from being filed. In  view of the aforesaid admitted circumstances, the argument cannot be accepted even for a moment. In fact, this argument was  made the  sheet anchor  of the  defence of the respondent, but  we feel  that so splendidly was the defence

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set up that even the experienced judicial eye of the learned High Court  Judge was  unable to pierce or penetrate through the smoke  screen thrown  by the  respondent (to conceal his guilt) to  discover the  bright star  of the truth concealed behind the  darkness of  the smoke. The trial court was wise enough to  see through  the game  and refused to be duped by the visibly  charming and beautiful picture of falsehood and convicted him of the charges as indicated above.      In fact,  one of  the fundamental  arguments that  have been advanced  before us by Mr. Rana, counsel for the State, is that  there is  no real  and meaningful discussion of the important evidence produced by the prosecution in support of its case and the High Court has merely narrated the evidence without examining its intrinsic merit and has sidetracked an issue which was not at all germane for deciding this case-an aspect with which we shall deal with a little later. 630      Coming  back   now  to   the  sequence  of  events  the prosecution case was that after the first demand was made on 9.4.72 and repeated on 13.4.72, Rege was directed to see the respondent near  about the  police station at a place called padavi. Rege  then approached  PW 11  Khamkar for  laying  a trap, and  gave twenty  100 rupee  notes to  PW 11  which he proposed to handover to the accused at the time of the trap. The raiding  party reached  padavi round about 7.00 p.m. and waited for  the respondent to come who appeared on the scene at about  8.30 p.m.  and on  seeing Rege repeated his demand for the  3rd time  and after the money had been given to the accused, PW  11, PW  3 and  some others of the raiding party watched the  same. Thereafter Khamkar went into the room and tried to  hold the  hands of  the respondent who had made an attempt to  take out the notes from the right side pocket of his pant  but  despite  this  the  respondent  succeeded  in throwing out the notes. As the money thus passed had already been treated with anthracine powder, the hands and the right side pocket  of the  accused were put before the ultraviolet lamp and  were found to be stained with the said powder. The respondent took  an ingenious though improbable defence that Rege attempted  to thrust  the notes  into his pocket in the presence of Khamkar but he gave a push and the notes fell on the ground;  thereby he  tried to  explain the stains of the anthracine powder  on his  hands. While putting forward this defence the  respondent seems  to have  forgotten  that  the notes had  been taken  out of  his  pocket  which  was  also smeared with  the powder and it is impossible to accept that an ordinary  person like  Rege would  have the  courage  and audacity to  forcibly thrust  as many as twenty notes of Rs. 100 denomination each into the pocket of the respondent when he knew  that the respondent was a police officer armed with a revolver.  It is difficult to believe that Rege would take such a  grave risk  and do so in the presence of Khamkar and others. The  testimony of  two independent witnesses and one clerk  however   reveals  a   different  story  which  fully corroborates the prosecution version.      PW-3 who  was in  no way  connected with the police and was drawn  from the  zila parishad where he was working as a statistical  officer   had  no  axe  to  grind  against  the respondent so as to give false evidence to implicate him. As previously  arranged,  Raut,  PW  3,  witnessed  the  entire incident from  a distance  of a  few feet as he was standing very near  to the  place where  the  van  was  parked.  This witness fully  supports the prosecution case and states that Rege took  out the  wad of  notes from  his pocket  and  the accused took those 631

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notes in  his right hand and put them in his right hand side pocket of  his pant.  Immediately thereafter  Rege made  the settled signal  by taking  out his  spectacles and trying to wipe the  same. On  seeing this  signal  Khamkar  and  other members of  the party  arrived there. Khamkar then disclosed his identity  as an  Inspector of the Anti Corruption Branch and a  panchnama (Ex.51)  was immediately made. We have gone through his  entire cross-examination  and we  are unable to find any material discrepancy to discredit his evidence. The only circumstance which seems to have been taken against him is that  about two  years before  the occurrence  he was  an accused in  maramari case  which was ultimately compromised. Merely on  this account  he could  not  be  held  to  be  an unreliable  or   incompetent   witness.   Shorn   of   minor contradictions or  omissions, the  evidence of  this witness appears to  contain a tinge of truth. Even PW-7, K.A. Patil, of the  octoroi Department  who was present in the room, has testified that  the accused had taken out the notes from his pocket and then tried to throw them down, In this connection his statement may be extracted thus :           "It also happen that accused took out the currency      notes from  his right  side pant  pocket and  threw  it      down. It is not true that I made the first statement on      account of pressure from the accused."      It is true that the statement was made after the public prosecutor  was   permitted  to  cross-examine  the  witness although he  was not  declared hostile  but that does not in any way  belie or weaken his evidence. He was present at the Naka where  the money  was paid  and was,  therefore,  fully competent to  depose to  what he had actually seen. There is nothing to  show from  his cross-examination that he made no such statement  in the  earlier stages of investigation when he was examined by the Investigating Officer.      Apart from  this there  is the  evidence of PW 11, M.S. Khamkar, an  Inspector  of  police  in  the  Anti-corruption Department. There  is no  evidence to  show that he bore any animus against  the respondent.  He was  subjected to a very searching  cross-examination   but  nothing   of  any  vital importance seems  to have  been elicited  from him  so as to throw doubt  on his  testimony. In  the sessions  court some insinuations were  made in  the course  of cross-examination but in  the High Court and before this Court learned defence counsel expressly abandoned the insinuations. 632      The frontal  attack made by the learned counsel for the respondent against  the prosecution was that all the members of the raiding party were subjected to the anthracine powder test in the glow of the bulb which must have taken about 10- 15 minutes  and yet the star witness, viz., the complainant, did not say anything about this demonstration which was held by PW  11, Khamkar.  That circumstance even if it be true is not, in our opinion, sufficient to throw the prosecution out of court.  So far  as Rege is concerned his test had already been taken  earlier and therefore he was not interested in a second test  which was  taken to  exclude the possibility of inter polation.  Hence, if  he did  not see  or remember the demonstration at  the Naka  that by  itself will  not  be  a circumstance to  discredit his entire testimony particularly when it  has been corroborated by two independent witnesses, viz., PW 3, 11 and also by PW 7.      The High  Court seems  to have  devoted a major part of its judgment to the various case diaries produced before the court in order to establish that the accused was not present at the  police station  either on  the 9th or on the 13th of April 1972  when the  first two demands were made. According

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to the  High Court  this gave  a  sufficient  alibi  to  the respondent from which it could be safely inferred that if he was not  present at  the police  station, there  could be no occasion for  him to  make any  demand for  bribe  from  the complainant. Assuming  that the  recitals in  the said  case diaries are  admissible (though we have serious doubts about it) yet  it does  not at  all exclude  the presence  of  the respondent at  the Ambarnath  police station  on the 9th and 13th because  he was  not sent  away to a place situated far from Bombay  but was  in some  other police station within a radius of  a few  miles only. Even if he was deputed to some other place  he was  in possession  of a  jeep and  he could visit the  Ambarnath police station for a few minutes on any of these dates. It is well settled that a plea of alibi must be proved  with  absolute  certainty  so  as  to  completely exclude the  possibility  of  the  presence  of  the  person concerned at  the place of occurrence. Such, however, is not the  case  here.  Therefore,  the  discussion  of  the  case diaries, which  engaged a  substantial portion  of the  High Court judgment was really an exercise in futility.      This brings  us to  certain circumstances, evidence and reasons  relied   on  by   the  High  Court  to  reject  the prosecution case  and reverse the order of conviction passed by the trial court. 633      Before approaching  this problem,  even at  the risk of repetition, we  might give a brief resume of the interesting drama starting  from the  demand of illegal gratification by the accused  and ending  with the  passing of  money and his subsequent arrest.  The prosecution  case is  that Rege  had filed a  complaint against  his tenant,  Walawalkar, and the same was  prima facie  found to be false because on a search of Walawalkar’s  house no  trace of  distillary  was  found. According to  the prosecution,  this furnished the immediate motive and  the golden  opportunity for  the  respondent  to demand money  as illegal gratification from the complainant. While the  investigation of  the complaint  was pending  the respondent on  9.4.72 mada a demand of Rs. 2000 from Rege to shelve the  case. This  demand was  repeated on  13.4.72 and ultimately the complainant had agreed to pay him Rs. 2000 as bribe. It was settled that the respondent was to receive the money at  Ambarnath police  station nearabout  7.30 p.m.  on 14.4.772.      Being fed up with the persistent demands of the accused and the impending prosecution under s. 89 of the Prohibition Act the complainant solicited the help of PW 11, Khamkar and narrated the  entire incident to him After hearing the story of the  complainant, Khamkar  rang up  Deshmukh,  DSP,  Anti corruption Branch,  Bombay, but  as he  was out  he  himself recorded the  complaint of  Rege which  is Ex. 44 and sent a letter to District Health Officer to depute two persons from his office  for the  purpose of  acting as  panches. Khamkar then prepared  an application, addressed it to the concerned authorities  for   obtaining  sanction  to  investigate  the matter. The  sanction was  accorded after the Magistrate had interrogated Rege.  PW 11,  Khamkar  then  returned  to  his office and found two persons, viz. Raut (PW3) and Karve, who had been  sent to  him from  the Zila  Parishad  office.  He introduced Rege  to the panches and asked him to narrate his story which  he did.  Thereafter search of Rege was taken in the presence of the panches and besides many other articles, which are  not necessary  to be  detailed, a sum of Rs. 2000 was found  from the  person of  Rege and  the numbers of the notes were noted in the panchnama PW 11 then handed over the notes  to   constable  Wagh   and  directed   him  to   hold

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demonstration as  to how  those notes  would appear  in  the usual light  and in  ultraviolet lamp  light after the notes are treated  with anthracine powder. The constable performed the said  process and  thereafter Rege  was directed  to put those notes  in the  left pocket  of his  pant.  The  bottle containing the anthracine powder was then sealed in order to obliterate 634 the traces  of the  said powder.  PW 11  as also  the  panch witnesses were  then subjected  to the  same process  before proceeding to  the Ambarnath  octroi Naka  near  the  police station to  which the accused was attached as sub-inspector. It was  also settled that while Raut would constantly remain with Rege  to witness the talk and the passing of the money, the complainant  would take  out his  spectacles and  make a show to  wipe out his glasses which would amount to a signal for the  raiding party  that the  money had been accepted by the accused  and they  may  at  once  reach  the  spot.  The panchnama containing  all  these  facts  was  completed  and signed by  the panches  and countersigned  by the witnesses. This seems  to be the first and the preparatory stage to lay the trap.      The raiding  party was  directed to  take a train bound for Ambarnath  and get  down there at about 6.35 p.m because the complainant  had informed  Khamkar that  the accused was not likely  to come  to the  police station before 7.00 p.m. The second  stage consists  of the  arrival of  the  raiding party near  the said  police station  and waiting there upto 7.00 p.m. At that time Rege and Raut proceeded towards Tilak Road and  after passing  through the  railway crossing  kept waiting at  a convenient  place at  a distance  of 40-50 ft. from the  gate. PW  11, Khamkar  and other  members  of  the raiding party waited at the inner side of the railway corner gate near  the railway  track. PW  11 further  directed  two constables of  the raiding  party to  wait near  the  Canara restaurant which  was just  in  front  of  the  octroi  Naka towards the east.      The third  stage starts  with the arrival of the police van from the side of Wimco Road, carrying the accused, which halted near the octroi Naka at about 8.40 p.m. There were no constables in  the van and the only occupants appeared to be the accused himself and the driver of the van. After getting down from  the van  the accused  came to the Naka and sat on the chair in the padavi (verandah).      The last  stage of  the show starts when Rege and Raut, who was  introduced to  the accused as one of his relations, approached the  accused who  asked them  to sit  on the  two stools on  the right  side of  the  chair  occupied  by  the accused.  He   further  requested   Raut  to  find  out  the whereabouts of  the driver  of the van; obviously because he did not want that Raut should hear any talk between Rege and himself. Raut  thereafter went  towards the van but stood in an angular fashion towards the accused and Rege so that he 635 could see  what was  happening there.  The  accused  made  a gesture by  putting his  right palm and twisting his finger, indicating  thereby   that  he   was  demanding  the  money. Thereupon Rege  took out  the currency  notes from  the left pocket of  his pant  and gave them to the accused, who after taking the amount inserted the same in the right side pocket of  his   pant.  Immediately   thereafter  Rege   gave   the prearranged signal  by taking  out his spectacles and wiping the same with his handkerchief. On seeing the signal, PW 11, panches and other members of the raiding party rushed to the verandah of  the Municipal octroi Naka where PW 11 disclosed

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his identity at which the accused rose up from the chair and wanted to move about but he was caught hold of his wrist. PW 11 then  informed him  that since  he had accepted the bribe from Rege  he wanted  to  test  his  hands  and  clothes  to ascertain whether  traces of anthracine powder were there or not. Meanwhile  he asked  Rege to wait aside who went at the corner of the padavi. We might state here that a mountain of a mole  hill appears  to have  been made by the learned High Court Judge  of the  factum of  Rege being  sent out  to the padavi instead  of remaining  there or in the room where the accused was  taken. Thereafter,  the hand and clothes of the accused were  put in the light of the ultraviolet lamp which revealed traces  of anthracine  powder on  the handkerchief, the palm  of his  hands, on the right side of his pant and a portion of the bushcoat overlapping on the right side of his pant. PW  11 then  asked the  accused to  produce the  money which he  had just  accepted as bribe. At the request of the accused he was taken to the room of the Naka where he agreed to produce  the money.  On entering  the room,  however, the accused took  out the wad of notes from his right pocket and threw them  down on  the ground.  PW 11  stated that  a Naka clerk was  sitting in  the room  and he  may have  seen  the throwing down  of the  notes by the accused. Manifestly, the accused threw  down the notes in order to make out a defence that the  notes  were  forcibly  foisted  on  him  which  he resisted and  in that  process threw the notes on the ground without allowing  the notes  to enter  his pocket  and which also is his main defence in this case. Thereafter, the usual formalities  of   preparation  of   panchnama,  etc.,   were completed. It  may also  be mentioned  that the  accused was armed with  one country  made two-barrel  pistol as  also  a service pistol which were also recovered from him. After all this had  happened, Rege  was summoned and on his search all the articles  which had been recovered during the day in the presence of  PW 11  were recovered,  except the notes of Rs. 2000 which  had been  passed on  to the  accused. PW 11 then recorded his complaint and 636 forwarded it  to the Ambarnath police station. Statements of PWs Gangurde,  Raut, Rege  and Karve  were recorded by PW 11 and a challan was presented before the court after obtaining the necessary sanction.      This in  brief constituted  the various  stages of  the occurrence starting  from the demand of bribe to the payment of the  same and recovery from the person of the respondent- accused. In order to understand the sum and substance of the prosecution case  the same  may be divided into four parts - (1) the origin and genesis, (2) the first demand made by the respondent on  the 9th,  (3) the  second demand  made by the accused on  the 13th,  and (4)  the passing of the money and its acceptance by the accused and the incidents following.      We have  gone through  the entire  evidence led  by the prosecution and,  in our  opinion, the  prosecution case was fully proved  because it  has been supported by at least two independent witnesses,  viz., PWs  3 and  11 and  to a great extent by PW 7.      Mr.  Bhisme,   who  was   followed  by  Mr.  Jethmalani addressed the  main arguments, tried to support the judgment on various  grounds but we are unable to be convinced by any reason why  the evidence of PWs 3 and 11 should be discarded particularly when neither of these witnesses bore any grudge or animus against the respondent nor was any such suggestion made to any of these witnesses. In fact the learned Judge of the High  Court himself  had clearly  held that  PW 7  was a throughly independent  witness but commented that he was not

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made a  witness to the actual passing of the money though he has  fully   supported  the  subsequent  incident  that  the respondent took out the notes from his pocket and threw them on the  ground which lends a colour of truth to the evidence of PW  1 and  other members  of the  raiding party.  Certain minor contradictions  or inconsistencies  have been  pointed out by  the counsel  in the statements of PWs 1 and 3 but on close examination  they do  not appear  to be  material and, therefore, not sufficient to throw out the prosecution case. PWs 1  and 3  have fully  supported the prosecution case but Mr. Jethmalani  was unable to urge any cogent reason for not accepting the  evidence of  PW 1  even though  it was  fully corroborated by  the direct  evidence of PW 3 as also by the circumstantial evidence which consists of the various stages from which the prosecution case has emerged. 637      This  now   brings  us   to   examine   the   important circumstances and  evidence relied  on by  the learned  High Court Judge to disbelieve the prosecution version.      The learned  Judge was  greatly impressed  by  what  he calls a serious lacuna in the prosecution case-that although both Rege  and Khamkar, alongwith the raiding party, came to the Municipal  octroi Naka the first thing which Khamkar did was to  ask Rege to stand outside (padavi) where the raiding party was also present. The High Court further held from the evidence of  Rege it  appears that  after the  raiding party came there  Khamkar caught  hold of the hands of the accused and took  him inside  the room.  With  due  respect  to  the learned Judge  he has  come to  this finding  on a  complete misreading of  the evidence  of PWs 1 and 11 overlooking and ignoring the  logical sequence  of events  starting from the morning of  14th April up to the time when the money passed. Both PWs  1 and  11 have  categorically stated regarding the morning incident  and the  arrangements  made  to  raid  the police station  for laying a trap to catch the accused while taking  the   money.  It  is  not  at  all  clear  from  the observations of  the High  Court whether he was referring to the morning  incident or  to the  evening incident or to the last part  of the  incident when  after the  passing of  the money Rege  was asked  by PW  11 to go aside and he stood in the padavi.  The matter having been settled and pre-arranged in the  morning, various  parts were allotted to the members of the  raiding party.  Neither Khamkar  nor Rege  says that immediately the raiding party approached the Naka, he (Rege) was asked to go out and stand in the Padavi which would mean that he  did not pass the notes to the accused, a fact which would completely  destroy the  very object  of  raiding  the police  station.  The  learned  Judge  overlooked  that  the raiding party  had reached  near  the  police  station  long before the  arrival of  the accused  and  when  the  accused arrived at  8.30 p.m.  Khamkar did  not go to the padavi nor did he  even show  his face  to the  accused.  In  fact,  as narrated above,  Rege and  Raut together  met the accused to exchange some  talks and  Raut was  asked to  look  for  the driver of  the van  and  after  his  departure  the  accused demanded the  money which  was paid  to him  by PW 1. It was thereafter that  the signal  was given which brought Khamkar and his  party for  the first  time at the padavi. As Rege’s part  to   pass  on  the  notes  to  the  accused  had  been accomplished, there  was no  point in  his remaining  in the padavi. At  any rate,  no useful  purpose  would  have  been served if  Rege was  asked to  be present  there  after  the incident was over. He was, however, 638 called when  the demonstration was to be done and the search

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taken in  the presence  of the  panch witnesses. Perhaps the High Court  was under  the impression that Rege, Khamkar and other members  of the raiding party arrived at the padavi as soon an  the accused had come there and PW 11 caught hold of the hands  of the  accused and took him into the room. These observations are based on a gross misreading of the evidence of PWs  1 and 11. Even the incident of catching the hands of the accused  took place  after the  money had passed and the notes had  been put  in his pocket by the accused. According to the  evidence of  PW 11  it was  at the  instance of  the accused himself who in order to avoid disgrace requested him to take  him (accused)  inside the  room where he would hand over the  money. Thus,  the whole  argument of  the  learned Judge is  based on a pack of cards or on circumstances which never existed.      The learned  Judge also  seems to  have been  under the impression that  PW 1  was not  subjected to the ultraviolet lamp light  test which  in fact  was done and here the Judge again committed an error of record.      The next  circumstance relied  on by  the High Court is that even  after examining  the notes  and  clothes  of  the accused in  the ultraviolet  lamp light  which took place in the padavi  outside the room and which must have taken about 10-15 minutes,  this was not seen by PW 7, the clerk who was sitting in the room. The High Court seems to suggest that PW 7 himself  being a  Naka clerk  and an  independent  witness should have been included as one of the persons to watch the demonstration which had taken 10-15 minutes. It is difficult to believe  that the demonstration of a few persons who were merely exposed to the ultraviolet lamp light would take more than 5  minutes. Even  so, the non-inclusion of PW 7 becomes wholly irrelevant when he himself makes a positive statement in the  court that  he did  see the  accused taking  out the notes from  his pocket  and throwing them on the ground and, therefore, substantially supports the prosecution version.      Thereafter, on  the basis  of conclusions arrived at by the learned  Judge in the aforesaid manner, which are purely speculative, he  tries to  give a  sort of sermon as to what should or  not have  been done. It seems that the High Court did  not  make  any  attempt  to  scan  and  appreciate  the intrinsic merits of the evidence of PWs 1 and 3 as 639 corroborated by  PW 7,  which by  itself was  sufficient  to prove the  prosecution case  regarding  the  acceptance  and recovery of money. In coming to this speculative finding the learned Judge  completely ignored  as to  what had  happened previous to  the raid,  viz., the  circumstances, the manner and the  number of  times which  led  the  accused  to  make consistent demands  from PW  1 as  also the  conduct of  the accused in trying to delay the submission of the chargesheet despite repeated  requests by  PW 8 (Gangurde) to permit him to file  the same.  We have  dealt with  this aspect  of the matter in an earlier part of our judgment and we do not want to repeat the same.      It is  interesting  to  note  that  the  learned  Judge himself puts  the question  as to  what was  the reason  for falsely implicating  the accused  when he  had actually made the demands  on the  9th and  13th of  April  1972,  yet  he readily accepts  respondent’s argument that this was because PW 1  was a  person of  diabolical character and undesirable credentials in  whose  trap  the  accused  easily  fell.  In accepting this argument the High Court failed to consider as to what  motive could  Rege have  to falsely  implicate  the accused when  he had  not conducted  the search  nor was  he directly connected  with the  chargesheet which was going to

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be filed  against him.  Indeed, the  dominant question which the Court  should have  put to  itself would have been as to why a  complaint under  s.89 of  the Prohibition Act was not filed against  Rege even though the chargeseet was ready. If this was  due to any fault or lapse on the part of Gangurde, who was  a subordinate official of the accused, as an honest officer the accused should have taken him to task for trying to  dillydallying   the  matter   instead  of   filing   the chargesheet immediately.  But the evidence to Gangurde shows that he  was ready  to file  the chargesheet but the accused directed him  not to  do so  until the  receipt  of  further instructions from  him, as  indicated by  us  earlier.  That being the  position, why  did the  accused ask  Gangurde  to delay the  filing of  the  chargesheet?  Thus  question  has neither been answered by the High Court nor by the accused.      The next  circumstance relied  on by the High Court was regarding the  credibility of the evidence about the meeting on 9th  and 13th  between Rege and the accused. According to the prosecution  the first  time Rege  was summoned  by  the accused was on the 9th and some police constable went to his house but  as he  was not  there he  told Mrs. Rege that the complainant was required at the police 640 station. On  coming back  home, the  complainant along  with Sukhtankar saw  the accused  at the  police station  at 8.00 p.m. Although this part of the case has been fully proved by PW 1,  Rege and  Sukhtankar (PW  6) but  their testimony has been disbelieved by the High Court merely on the ground that the constable  who had  gone to call Rege was not identified either by  Mrs. Rege or by Sukhtankar. This is indeed a most extraordinary process  of reasoning.  Obviously,  both  Mrs. Rege and Sukhtankar saw the constable for a split second and were only  asked to  convey  the  message  to  Rege  on  his returning  home.   It  was   extremely  difficult   in  such circumstance either  for Mrs.  Rege or  Sukhtankar  to  have identified the  constable. Nevertheless,  the  fact  remains that PW 10, B.L. Jadhav, has testified on oath that while he was on  duty at  the Naka  on the  9th of  April  1972,  the accused came to the Naka at 5.30 p.m. and directed him to go to the  house of  Rege and summon him to the police Station. Accordingly, he  went to  the house  of Rege  where he found Mrs. Rege  to whom he conveyed the message and thereafter he informed the  accused that  his message has been conveyed to PW 1. Thus, the evidence of this constable who appears to be an independent witness is fully corroborated by the evidence of PWs  1 and  6. Nothing  has been elucidated in his cross- examination to show as to why PW 10 should depose falsely on this important  link of  the  case  which  is  an  intrinsic circumstance to  prove that  the demand was made on the 13th April when the accused came to the Naka. The only suggestion made to  this witness  was that  the  accused  had  sent  an application to  the  Circle  Inspector  on  April  20,  1972 against him,  Kachela and  Gangurde to the effect that these three  persons   were  in   league  with  bootleggers.  This suggestion puts  the cat  out of  the bag  because what  the learned Judge  completely missed was that the application to the Circle  Inspector was made by the accused six days after accepting the  money from  Rege, the  trap was  laid  and  a challan was  about to  be Submitted  before the court. It is obvious that  if any  such belated  report was  made by  the accused it  was merely  to create evidence in order to throw out the testimony of PW 10.      In these  circumstances the  only reasonable  inference that can  be drawn  is that  Rege  and  Sukhtankar  met  the accused on the 9th at 8.30 p. m.

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    Presuming  that   Rege  was   a  person  of  diabolical character, the learned Judge without any evidence refused to believe the  incident of  the night  in the  absence of  any legal warrant for the same. It seems 641 to us  that the  approach made  by the learned Judge towards the prosecution  has not  been independent  but one  with  a tainted eye  and an innate prejudice. It is manifest that if one wears  a pair  of pale glasses, everything which he sees would appear  to him  to be pale. In fact, the learned Judge appears  to   have  been  so  much  prejudiced  against  the prosecution that he magnified every minor detail or omission to  falsify   or  throw  even  a  shadow  of  doubt  on  the prosecution evidence.  This is  the very  ante-thesis  of  a correct judicial  approach to the evidence of witnesses in a trap case.  Indeed, if such a harsh touchstone is prescribed to prove  a case it will be difficult for the prosecution to establish any case at all.      During the course of discussion of the reasons given by the learned  Judge we  shall  endeavour  to  show  that  the adverse inferences  against the  prosecution with respect to small matters could have been easily ignored as they did not affect the  credibility of the prosecution case. The glaring instances of  such a  wrong approach  is to  be found in the criticism levelled  against the  prosecution by  the learned Judge that  PW 11  asked Rege  to stand  in the  padavi  and sought to  convey the impression that Rege never came to the padavi in order to give the money to the accused or that the raiding  party  arrived  just  before  the  arrival  of  the accused. This  is far from the truth as we have shown above. We have  already held  that the stroy unfolded by PW 1 about the incident  of the  14th April was a very short and simple one and  after having  completed his assignment whether PW 1 was asked  to stand in the padavi or was not called into the roon are  matters of no consequence whatsoever so far as the acceptance of  money as  bribe was  concerned. In  fact, the High Court  seems to  have cased  its  reasons  not  on  the evidence which  was given  by PW  1 on  oath but  merely  on suggestions which  were categorically  denied  by  him  from which no inference could be drawn at all.      Another serious comment to falsify the incident of raid and payment  of money was that Rage did not see the throwing down of  the notes.  Here again,  the High  Court completely misdirected itself  because from  the evidence  itself it is clear that  Rege had  said that  the accused had a talk with him and  he then  paid currency  notes of  Rs. 2000  to  him (accused) which  he inserted  in his  pant  pocket,  made  a signal which  brought the  raiding party at the verandah and thereafter he  went to  the padavi. Whether he witnessed the subsequent throwing down of the notes or not was 642 totally irrelevant  because as  we  have  shown  above  this incident took  place after  the accused was taken by Khamkar inside the room as desired by him (accused).      Another infirmity  pointed out  in the protsecution was that PW  3 (Raut)  was asked  to stand  near the  van by the accused instead  of going  to the  padavi with  the  raiding party, It  is obvious  from the  evidence of  PW 11 that the previous arrangement  was that  PW 3  should also be present when the  money was to be paid to the accused so that he may be a  witness to the passing of the notes. In view, however, of the  direction given  by the  accused to Raut to find out the driver  of the van it was only natural that the previous arrangement would  have to  undergo  some  change  lest  the accused may  become cautious and suspicious which would have

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led to  the failure of the trap. Therefore, PW 3 had to obey the order  of the  accused but  he did  it in  a very adroit manner so  that while  standing near  the van  he selected a place from where he could see the accused and the passing of the money,  to which he has clearly deposed. After the money had passed he returned to the padavi because his purpose for leaving the padavi had been served.      Some comment  has also been made by the High Court that the place  from which  PW 3,  while standing  near the  van, witnessed the  passing of  the notes  was so distant that he could not  have witnessed  the passing of the money. This is also a  pure conjecture  because PW  3 has clearly explained that he  was at  a very  short distance and not at 90 ft. as the learned  Judge seems  to think,  and in that position he could easily  see the  passing of  the money.  No suggestion appears to  have been made to PW 3 that he was standing at a place from  which the  accused was  not visible  or that  he would not  have been in a position to see the passing of the money.      Another disturbing  feature of  the High Court judgment is the  adverse comments  made  on  the  evidence  of  PW  8 (Gangurde). To  disbelieve this  witness the  High Court has readily accepted  certain facts  which could not possibly be true or  even if  true were  wholly irrelevant and were made only for  castigating a truthful and an honest officer. PW 8 was a  head constable  who, on  the complaint  of Rege,  was entrusted with  the charge  of conducting  a search  in  the house of  Walawalkar. There  is no reliable evidence to show that he  was in  any way  friendly to  or connected with the complainant. If this was so, he could not have conducted the search as he did. 643 The High  Court seems to disbelieve this witness only on the ground that  he states  in his evidence that when he went to the house  of Walawalkar  the accused was not there although his name  finds place  in the  panchnama. The  panchnama  is hurriedly prepared  and a  number of names may find mention. He may  not have  recollected whether  some of  the  persons mentioned were there or not. In the instant case, this was a non-issue   and   therefore   could   not   be   considered. Furthermore, PW  8 does not appear to have shown any kind of favour to  Rege but  he himself reported that the allegation made by  Rege was  false and as a result of which Walawalkar filed a  complaint (Ex.66)  which was  investigated by  this very witness and ultimately he decided to file a chargesheet against Rege under s.89 of the Prohibition Act. If he was in any way  favourably inclined  towards  Rege  he  would  have shelved the  complaint of  Walawalkar and  submitted a final report saying  that no  prima facie  case had  been made out because Rege  had not  made a complaint in the real sense of the term  but only expressed his suspicion. Therefore, there was no  justification for the learned Judge to conclude that this witness  was in  any way  in league with Rege. In fact, what was  really missed  by the High Court was that PW 8 was extremely anxious  to file  chargesheet against  Rege but it was the  accused himself  who directed  him not  to file the same and  to keep the same pending till further instructions from him.  If the accused, who was his superior officer, had not given  this instruction  there does not appear to be any explanation why  the chargesheet though ready on 11.4.72 was not filed at all. If the accused was that honest or innocent he would  have taken  PW  8  to  task  for  not  filing  the chargesheet after  it was ready. This speaks volumes against the case of the respondent.      The  learned   Judge  then   drew  support   from  some

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insignificant  and  minor  circumstances  to  discredit  the evidence of  PW 8. For instance, he observed that there were some irregularities  or that  PW 8 was absent without taking any leave.  These are  pure routine  matters which happen in every office  but this  would not falsify the evidence of PW 8. So  far as the question of remaining absent without leave is concerned.  PW 8  has positively stated that he had taken leave for  being absent  and no  attempt  was  made  by  the accused to call for the attendance register to show that the witness had  absented himself  without taking  any leave nor was any  action taken  by the  higher authorities  for  this lapse on  his part. We are really baffled and amazed to find that the  learned Judge went to the extent of castigating PW 8 on the basis of such frivolous and flippant 644 allegations merely  because the witness had stated the truth in the  court, viz.,  that the  chargesheet  was  ready  for submission but the accused had stayed its submission.      These are  the main  reasons and circumstances given by the learned  Judge in  disbelieving the  entire  prosecution case which  we have already found to be wholly unsustainable in law.  We regret  to observe  that the  learned Judge  has rejected the vital evidence of PWs 1,3,8 and 11 on frivolous grounds and  he did  not make  any attempt  to discuss their evidence on  intrinsic merits  and the superficial manner in which he  has dealt  with the  evidence and circumstances in order  to   demolish  the   prosecution   case   is   wholly unacceptable to us and leaves much to be desired.      Mr. Jethmalani  vehemently argued  before us  that  the High Court  having acquitted  the accused, this Court should very rarely  interfere with  the judgment  of the High Court and should  do so only in cases where there is a grave error of law  or serious  miscarriage of justice and that too when the accused  faced a  trial for  several years  and had been reinstated and promoted as an Inspector.      From the reasons that we have given it is manifest that the judgment  of the  High Court  suffers from  serious  and substantial errors of law and legal infirmities. This is one of those  rarest of  rare cases  where this  Court would  be failing in  its duty  if it did not interfere with the order of acquittal  and set  aside the judgment of the High Court. On  a   full  and  complete  discussion  of  the  facts  and circumstances of the case we are clearly of the opinion that the charges against the respondent-accused have been clearly proved and his acquittal by the High Court was wrong both on law and  on facts.  Once this is so, the other consideration mentioned  by   Mr.  Jethmalani   would  be   no  answer  to maintaining the  acquittal of  the  respondent.  It  may  be rather unfortunate  but the law must take its course and the accused himself  is to be blamed for having committed such a daring  offence   and  with  such  dexterity  that  even  an experienced Judge  of the  High Court  could not see through the skilful game of the accused.      In view  of the  seriousness of  the  offence  and  the blatant  manner  in  which  it  was  committed  we  find  it difficult to  make a  substantial reduction  in the sentence and we are afraid, having found the respondent guilty of the offences charged against him, it is not 645 possible for  us to  show any  leniency. However, in view of the facts and circumstances of the case and having regard to the fact  that the respondent would have to lose his service we would  sentence him to six months’ rigorous imprisonment. The result  is that the appeal is allowed and the respondent is convicted  under s.161,  I.P.C. and s.5 (1) (a) and 5 (2)

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of the Act and sentenced to six months R.I. under each count to run  concurrently and  a fine of Rs. 2,000 and in default of the  payment of fine, further six weeks’ R.I. The accused must now  surrender and  be taken  into custody to serve out the sentence imposed. H.S.K.                                       Appeal allowed. 646