Sadashiv Mahadeo Yavaluje & Gajanan Shripatrao Salokhe Vs. The State of Maharashtra
EmailAppeal: Criminal Appeal Nos. 622 & 623 of 1979.
Petitioner: Sadashiv Mahadeo Yavaluje & Gajanan Shripatrao Salokhe
Respondent: The State of Maharashtra
Apeal: Criminal Appeal Nos. 622 & 623 of 1979.
Judges: G.L. OZA & M. FATHIMA BEEVI, JJ.
Date of Judgment: Dec 06, 1989
Head Note:
CRIMINAL LAW
Criminal Trial
Evidence – Bribe – Trap laid against Accused No.1 – Money recovered from Accused No.2 – Failure of trap against Accused No.1 – Inference from subsequent conduct of the Accused No. 1 after the trap laid could not be justified – Evidence not established any ingredients of the offence against Accused No. 1 – Accused No.2 could not also be held guilty merely because he was entrusted with sum money to be passed on to Accused No.1 – IPC, sections 161 and 165-A – Prevention of Corruption Act, sections 5(1)(d) and 5(2).
Held:
The learned courts below so far as the accused No.1 is concerned have drawn an inference from the subsequent conduct of the accused after the trap was laid. Apparently such an inference could not be drawn because if the accused was really involved in the matter after the trap was laid and money was recovered from accused No.2 it will be nothing but failure of the trap against accused No.1. To take the application or the statement made by the complainant afterwards may be nothing but curiosity and the inference drawn could not be justified. Admittedly there is no evidence at all against accused No.1 except the story given out by complainant Pandurang on 29.11.75. The evidence about the incident of 2.12.75 only indicates that this accused avoided the complainant whenever he approached him. On this evidence the conviction of the appellant could not be sustained as this does not establish any of the ingredients of the offence. (Para 10)
(ii) As regards accused No.2 merely because he was entrusted with some money to be passed on to accused No.1 it could not be held that he was guilty of any one of these offences unless it is established that he was a party to the arrangement and the arrangement arrived at was that the money would be handed over to accused No.2 to be given over to accused No.1. Apparently accused No.2 was not expected to help the complainant. The assurance to the complainant to settle the matter, according to the prosecution was given by accused No.1 and according to the prosecution own case and the evidence of complainant Pandurang this arrangement was finally settled on 29.11.75 at the house of accused No.1. Admittedly accused No.2 was not there nor it is alleged that he had any knowledge about this settlement. The incident of 29.11.75 is said to be between accused No.1 and Pandurang alone and the only evidence is that of Pandurang. Under these circumstances it could not be held that accused No.2 accepted this amount for any purpose. At best as the complainant told him to pass this money on to accused No.1 he accepted it but on that basis it could not be held that he was sharing the intention with accused No.1 or was acting on his behalf. (Para 11)
JUDGEMENT:
OZA, J. :
1. These two appeals arise out of the conviction of the two appellants by learned Special Judge, Kolhapur wherein appellant accused No.1 Gajanan Shripatrao Solokhe, a Head Constable of Police was convicted under Section 161 I.P.C. and sentenced to suffer rigorous imprisonment for 9 months and fine of Rs.100/- in default, rigorous imprisonment for one month whereas accused No. 2 Sadashiv Mahadeo Yavaluje, a Constable of Police was convicted under Section 165-A I.P.C. and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act and sentenced to suffer rigorous imprisonment for four months for the offence under Section 165 I.P.C. and rigorous imprisonment for one year and fine of Rs.200/- in default of fine further rigorous imprisonment for two months for the offence under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act by Special Judge, Kolhapur in Special Case No.2 of 1975 and on appeal the High Court of Bombay confirmed the conviction and sentence so far as accused No.1 the Head Constable is concerned and confirmed the conviction and sentence of accused No.2 under Section 165-A but modified the sentence under Section 5(2) read with Section 5(1)(d) and reduced to rigorous imprisonment for 9 months and fine of Rs.100/- in default of fine further imprisonment for one month.
2. The prosecution case was that the complainant one Pandurang Narayan Bhosale at the relevant time was a Mukadam serving in the Municipal Corporation of Kolhapur. As a Mukadam he had to supervise the work of cleaning carried out by the lady sweepers in the town. One of such in his charge was Laxmibai Rajaram. Some incident is alleged to have taken place between this complainant Pandurang and the said sweeper Laxmibai. As a result of which on 30.3.1975 Laxmi Bai’s husband filed an application with the Laxmipur Police Station alleging that Pandurang had enticed away his wife Laxmi Bai. This application was inquired into by Head Constable Kamble of the Laxmipur Police Station. Kamble recorded the statement of Rajaram but since Pandurang was residing within the jurisdiction of Juna Rajwada Police Station in Kolhapur City this application of Rajaram was forwarded to the said Police Station for recording the statement of Pandurang. This application, which is Ex.24, was received in Juna Rajwada Police Station on 14.7.75. At that time PW 8 Ramchandra Maradur was the Police Inspector in charge of the said Police Station. On receipt of the aforesaid application, it was entrusted to accused No.1 who was a Head Constable attached to the Police Station for the purpose of recording the statement of Pandurang. At that time accused No.2 was a Constable attached to the said Police Station. Admittedly he was one amongst many at the Police Station. On 25.11.75 it is alleged that Pandurang went to Juna Rajwada Police Station where his statement was recorded by accused No.1. It is alleged that when he was coming out he asked accused No.2 who was known to him, according to his own version, whether he could go and it is said that accused No.2 asked accused No.1 whether he could go and accused No.1 told him that he could go and saying this accused No.1 went inside the Police Station. It is alleged that thereafter accused No.2 told Pandurang that accused No.1 was demanding Rs.200/- to compromise the matter and to file the application of Rajaram and that he has asked Pandurang to see accused No.1 and settle with him. Pandurang told him that he did not have so much of money but he would see accused No.1 later.
3. It is alleged that on 29.11.75 i.e. four days after this incident on 25.11.75 Pandurang went to the house of accused No.1 in the morning and enquired from him as to what has happened to his work. It is alleged by Pandurang that accused No.1 had demanded Rs.200/- and told him that if he pays the amount the application of Rajaram will be filed and when Pandurang expressed his inability to pay Rs.200/- the demand was reduced to Rs.100/- and after the bargain was settled Pandurang told accused No.1 that he would pay the amount on the Ist or 2nd after he receives his salary. According to the prosecution this arrangement was fixed up when accused No.1 was alone and it is alleged that accused No.1 told him to see him at the Juna Rajwada Police Station. Thereafter, according to the prosecution, Pandurang went to the Office at Vasant Belasare, P.S.I. Anti Corruption and informed him of the aforesaid facts. His complaint was recorded and he was called on the next day. After recording of the Statement, Vasant Belasare informed the Deputy Superintendent of Police Anti Corruption Pune but he was informed that the Deputy Superintendent of Police was busy in other work and therefore it will not be possible for him to come. Pandurang went to the office of the Anti-corruption Police on 1.12.75 when the P.S.I. Anti Corruption Belasare took Pandurang to the resident of the Chief Judicial Magistrate Kolhapur who after verifying the facts granted permission to Belasare to lay a trap and investigate into the offence. After obtaining permission Belasare requested the Deputy Engineer of Public Health Project, Sub-Division No.1, Kolhapur to spare the services of two officers from his office to act as Panchas on the next day i.e. 2.12.75.
4. On the morning of the next day 2.12.75, two persons viz. Airan and Kagale, both working as Junior Engineers in Public Health Project, went to the office of the Anti Corruption Police as per the directions of the Deputy Engineer. At the said office the complainant Pandurang also came and he was asked to narrate the facts to the Panchas. Subsequently Pandurang produced Rs.50/- consisting of five currency notes of Rs.10/- each. He was unable to bring more money as initially the settlement was for Rs.100/-. Belasare P.S.I. produced Rs.50/- currency notes consisting of five currency notes of Rs.10/- each from his office, number of these notes were noted by the Panchas and the P.S.I. Anthracene powder was applied to the currency notes. The currency notes were kept in a small packet and given to Pandurang and he was instructed to pay the amount to accused No.1 and the Panch Airan was instructed to remain with the complainant. They were further instructed that when the amount is received by accused No.1, the complainant should give a signal to the police by moving his left hand on his head. Panchnama of these facts also was drawn up. Thereafter the complainant Pandurang alongwith Panch Airan left ahead on foot, while the P.S.I. Belasare, the other Panch Kagale and Heddur, Police Inspector, Anti corruption, and the other policemen followed the complainant and the Panch Airan at some distance.
5. It is alleged that when the complainant reached the Juna Rajwada Police Station at about 9.30 A.M. accused No.1 was standing near the Police Station and the complainant asked accused No.1 as to what had happened about his work and informed that he had brought the money but according to the complainant himself accused No.1 pointed at a Constable standing there Jaysingh Kale who was at some distance in plain clothes and saying this accused No.1 left the police station in the Police Wireless Van. According to the prosecution the complainant did not give the money to the Constable as the complainant did not know him nor he knew whether he was a Constable or some one else. After about an hour accused No.1 came back to the Police Station in the Wireless Van at about 10.30 A.M. when again the complainant Pandurang approached him and again accused No.1 told Pandurang to go and hand over the money to the tea vendor by pointing out to him the tea stall outside the Police Station and saying so, according to the prosecution, accused No.1 went inside the Police Station. The money was not handed over to the tea vendor in the tea stall but the complainant and the Panch waited outside the Police Station. After some time accused No.1 came out of the Police Station, sat in the Police Wireless Van and again went away. It is alleged that after some time Jaysingh Kale came out of the Police Station and he, complainant Pandurang and Panch Airan went to the Cafe Alankar situated in front of the Police Station. It is alleged that the complainant Pandurang inquired from Kale as to what has happened about his work and also told him that accused No.1 had asked Pandurang to give the money in the hands of Kale. Thereupon it is alleged that Kale replied that he would go inside the Police Station, see the papers and find out what had happened about the work. Kale then went to the Police Station. Complainant Pandurang and Panch Airan also came out of the Cafe. It is alleged that when they came out they noticed accused No.2 standing near the Police Station and accused No.2 called Pandurang. Pandurang and the Panch Airan approached him and told him about his work and also told accused No.2 that he had brought the money and that Kale had gone into the Police Station to see the papers and find out what had happened to the complainant’s work. It is alleged that accused No.2 told him that he would go inside and see the papers and so accused No.2 also went inside the Police Station. He came out thereafter and went to the Cafe Alankar alongwith complainant Pandurang and the Panch Airan. There it is alleged that he told the complainant that Kale was inside the Police Station and told him to give the amount. It is alleged that complainant handed over the currency notes to accused No.2 and he placed them in his pant pocket. When they came out of the Hotel, a signal was given and it is alleged that the police party which was waiting apprehended accused No.2. From the pocket of accused No.2 the said currency notes were recovered.
6. It is on this evidence that the two courts below convicted the two appellants for the offences alleged against them.
7. Learned counsel appearing for appellant accused No.1, contended that although, according to the prosecution, the arrangement arrived at on 29.11.75 by complainant Pandurang was with accused No.1 to pay Rs.100/- but in fact when the complainant Pandurang approached accused No.1 he did not receive the money. On the contrary as the prosecution own evidence clearly indicates that he once pointed out towards a Constable and second time pointed out at the tea vendor and every time doing this he left the Police Station and went away in the Wireless Van of the Police Station. This clearly indicates that this appellant not only did not accept the money nor anything is established against him. Even about the arrangement it is alleged to have been arrived at between this appellant and the complainant when it is alleged that the complainant approached him at his house on 29.11.75. Even for that there is no other evidence except the evidence of Pandurang the complainant decoy whose testimony without independent corroboration could not be accepted and the manner in which according to the Pandurang own testimony this appellant avoided the complainant Pandurang when he attempted to hand over money to him even makes his testimony about the earlier agreement or arrangement arrived at on 29.11.75 doubtful. Learned counsel therefore contended that so far as accused No.1 the Head Constable is concerned there is nothing in evidence to connect him with the crime. It is unfortunate that the two courts below by considering extraneous circumstances and drawing inferences which are nothing but mere suspicions connecting this appellant with the crime convicted him.
8. The counsel appearing for accused No.2 contended that it is no doubt true that according to the complainant Pandurang he was known to him. So far as the story of 25.11.75 is concerned there is no evidence to corroborate the testimony of complainant Pandurang and apart from it it is nothing more than that this accused No.2 told the complainant to approach accused No.1. Thereafter, according to the prosecution case, the complainant Pandurang independently approached accused No.1 on 29.11.75 and settled the bargain with him and there is nothing in evidence to indicate that this accused No.2 has anything to do with settlement or bargain on 29.11.75 nor there is anything to indicate in the evidence that he had any knowledge thereto.
9. It was contended by the learned counsel that what transpired on 2.12.75 clearly shows that as this decoy complainant Pandurang failed twice to hand over the money to accused No.1 for whom the trap was laid, practically the trap failed and it appears that ultimately in order to save his face before the Anti Corruption Officers he just handed over the money to this accused when there was no demand made by him and there was no arrangement arrived at between them nor there was any representation made by this accused to help this complainant in his affair. It was contended by the learned counsel that this all indicates that the story given out by this complainant Pandurang to the Anti Corruption office was not based on facts and somehow when he thought that the trap was laid for accused No.1 and accused No.1 always avoided this complainant and virtually the trap failed when this complainant approached accused No.2 to pass on this money to accused No.1. Although this was not the arrangement arrived at between the complainant and accused No.1 nor it was the case of prosecution when the statement of this complainant Pandurang was recorded by the Anti Corruption Officer. Under these circumstances it is contended that this accused appellant also could not be convicted.
10. The learned courts below so far as the accused No.1 is concerned have drawn an inference from the subsequent conduct of the accused after the trap was laid. Apparently such an inference could not be drawn because if the accused was really involved in the matter after the trap was laid and money was recovered from accused No.2 it will be nothing but failure of the trap against accused No.1. To take the application or the statement made by the complainant afterwards may be nothing but curiosity and the inference drawn could not be justified. Admittedly there is no evidence at all against accused No.1 except the story given out by complainant Pandurang on 29.11.75. The evidence about the incident of 2.12.75 only indicates that this accused avoided the complainant whenever he approached him. On this evidence the conviction of the appellant could not be sustained as this does not establish any of the ingredients of the offence.
11. As regards accused No.2 merely because he was entrusted with some money to be passed on to accused No.1 it could not be held that he was guilty of any one of these offences unless it is established that he was a party to the arrangement and the arrangement arrived at was that the money would be handed over to accused No.2 to be given over to accused No.1. Apparently accused No.2 was not expected to help the complainant. The assurance to the complainant to settle the matter, according to the prosecution was given by accused No.1 and according to the prosecution own case and the evidence of complainant Pandurang this arrangement was finally settled on 29.11.75 at the house of accused No.1. Admittedly accused No.2 was not there nor it is alleged that he had any knowledge about this settlement. The incident of 29.11.75 is said to be between accused No.1 and Pandurang alone and the only evidence is that of Pandurang. Under these circumstances it could not be held that accused No.2 accepted this amount for any purpose. At best as the complainant told him to pass this money on to accused No.1 he accepted it but on that basis it could not be held that he was sharing the intention with accused No.1 or was acting on his behalf.
12. Under these circumstances the evidence as it stands does not establish the offences even against accused No.2 beyond reasonable doubt. In the light of the discussions above therefore the conclusions reached by both the courts below could not be sustained. The appeals are therefore allowed. The conviction and sentence passed against both the appellants are set aside. They are on bail. Their bail bonds are directed to be discharged. In the event of fine having been already paid, it shall be refunded.
1. These two appeals arise out of the conviction of the two appellants by learned Special Judge, Kolhapur wherein appellant accused No.1 Gajanan Shripatrao Solokhe, a Head Constable of Police was convicted under Section 161 I.P.C. and sentenced to suffer rigorous imprisonment for 9 months and fine of Rs.100/- in default, rigorous imprisonment for one month whereas accused No. 2 Sadashiv Mahadeo Yavaluje, a Constable of Police was convicted under Section 165-A I.P.C. and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act and sentenced to suffer rigorous imprisonment for four months for the offence under Section 165 I.P.C. and rigorous imprisonment for one year and fine of Rs.200/- in default of fine further rigorous imprisonment for two months for the offence under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act by Special Judge, Kolhapur in Special Case No.2 of 1975 and on appeal the High Court of Bombay confirmed the conviction and sentence so far as accused No.1 the Head Constable is concerned and confirmed the conviction and sentence of accused No.2 under Section 165-A but modified the sentence under Section 5(2) read with Section 5(1)(d) and reduced to rigorous imprisonment for 9 months and fine of Rs.100/- in default of fine further imprisonment for one month.
2. The prosecution case was that the complainant one Pandurang Narayan Bhosale at the relevant time was a Mukadam serving in the Municipal Corporation of Kolhapur. As a Mukadam he had to supervise the work of cleaning carried out by the lady sweepers in the town. One of such in his charge was Laxmibai Rajaram. Some incident is alleged to have taken place between this complainant Pandurang and the said sweeper Laxmibai. As a result of which on 30.3.1975 Laxmi Bai’s husband filed an application with the Laxmipur Police Station alleging that Pandurang had enticed away his wife Laxmi Bai. This application was inquired into by Head Constable Kamble of the Laxmipur Police Station. Kamble recorded the statement of Rajaram but since Pandurang was residing within the jurisdiction of Juna Rajwada Police Station in Kolhapur City this application of Rajaram was forwarded to the said Police Station for recording the statement of Pandurang. This application, which is Ex.24, was received in Juna Rajwada Police Station on 14.7.75. At that time PW 8 Ramchandra Maradur was the Police Inspector in charge of the said Police Station. On receipt of the aforesaid application, it was entrusted to accused No.1 who was a Head Constable attached to the Police Station for the purpose of recording the statement of Pandurang. At that time accused No.2 was a Constable attached to the said Police Station. Admittedly he was one amongst many at the Police Station. On 25.11.75 it is alleged that Pandurang went to Juna Rajwada Police Station where his statement was recorded by accused No.1. It is alleged that when he was coming out he asked accused No.2 who was known to him, according to his own version, whether he could go and it is said that accused No.2 asked accused No.1 whether he could go and accused No.1 told him that he could go and saying this accused No.1 went inside the Police Station. It is alleged that thereafter accused No.2 told Pandurang that accused No.1 was demanding Rs.200/- to compromise the matter and to file the application of Rajaram and that he has asked Pandurang to see accused No.1 and settle with him. Pandurang told him that he did not have so much of money but he would see accused No.1 later.
3. It is alleged that on 29.11.75 i.e. four days after this incident on 25.11.75 Pandurang went to the house of accused No.1 in the morning and enquired from him as to what has happened to his work. It is alleged by Pandurang that accused No.1 had demanded Rs.200/- and told him that if he pays the amount the application of Rajaram will be filed and when Pandurang expressed his inability to pay Rs.200/- the demand was reduced to Rs.100/- and after the bargain was settled Pandurang told accused No.1 that he would pay the amount on the Ist or 2nd after he receives his salary. According to the prosecution this arrangement was fixed up when accused No.1 was alone and it is alleged that accused No.1 told him to see him at the Juna Rajwada Police Station. Thereafter, according to the prosecution, Pandurang went to the Office at Vasant Belasare, P.S.I. Anti Corruption and informed him of the aforesaid facts. His complaint was recorded and he was called on the next day. After recording of the Statement, Vasant Belasare informed the Deputy Superintendent of Police Anti Corruption Pune but he was informed that the Deputy Superintendent of Police was busy in other work and therefore it will not be possible for him to come. Pandurang went to the office of the Anti-corruption Police on 1.12.75 when the P.S.I. Anti Corruption Belasare took Pandurang to the resident of the Chief Judicial Magistrate Kolhapur who after verifying the facts granted permission to Belasare to lay a trap and investigate into the offence. After obtaining permission Belasare requested the Deputy Engineer of Public Health Project, Sub-Division No.1, Kolhapur to spare the services of two officers from his office to act as Panchas on the next day i.e. 2.12.75.
4. On the morning of the next day 2.12.75, two persons viz. Airan and Kagale, both working as Junior Engineers in Public Health Project, went to the office of the Anti Corruption Police as per the directions of the Deputy Engineer. At the said office the complainant Pandurang also came and he was asked to narrate the facts to the Panchas. Subsequently Pandurang produced Rs.50/- consisting of five currency notes of Rs.10/- each. He was unable to bring more money as initially the settlement was for Rs.100/-. Belasare P.S.I. produced Rs.50/- currency notes consisting of five currency notes of Rs.10/- each from his office, number of these notes were noted by the Panchas and the P.S.I. Anthracene powder was applied to the currency notes. The currency notes were kept in a small packet and given to Pandurang and he was instructed to pay the amount to accused No.1 and the Panch Airan was instructed to remain with the complainant. They were further instructed that when the amount is received by accused No.1, the complainant should give a signal to the police by moving his left hand on his head. Panchnama of these facts also was drawn up. Thereafter the complainant Pandurang alongwith Panch Airan left ahead on foot, while the P.S.I. Belasare, the other Panch Kagale and Heddur, Police Inspector, Anti corruption, and the other policemen followed the complainant and the Panch Airan at some distance.
5. It is alleged that when the complainant reached the Juna Rajwada Police Station at about 9.30 A.M. accused No.1 was standing near the Police Station and the complainant asked accused No.1 as to what had happened about his work and informed that he had brought the money but according to the complainant himself accused No.1 pointed at a Constable standing there Jaysingh Kale who was at some distance in plain clothes and saying this accused No.1 left the police station in the Police Wireless Van. According to the prosecution the complainant did not give the money to the Constable as the complainant did not know him nor he knew whether he was a Constable or some one else. After about an hour accused No.1 came back to the Police Station in the Wireless Van at about 10.30 A.M. when again the complainant Pandurang approached him and again accused No.1 told Pandurang to go and hand over the money to the tea vendor by pointing out to him the tea stall outside the Police Station and saying so, according to the prosecution, accused No.1 went inside the Police Station. The money was not handed over to the tea vendor in the tea stall but the complainant and the Panch waited outside the Police Station. After some time accused No.1 came out of the Police Station, sat in the Police Wireless Van and again went away. It is alleged that after some time Jaysingh Kale came out of the Police Station and he, complainant Pandurang and Panch Airan went to the Cafe Alankar situated in front of the Police Station. It is alleged that the complainant Pandurang inquired from Kale as to what has happened about his work and also told him that accused No.1 had asked Pandurang to give the money in the hands of Kale. Thereupon it is alleged that Kale replied that he would go inside the Police Station, see the papers and find out what had happened about the work. Kale then went to the Police Station. Complainant Pandurang and Panch Airan also came out of the Cafe. It is alleged that when they came out they noticed accused No.2 standing near the Police Station and accused No.2 called Pandurang. Pandurang and the Panch Airan approached him and told him about his work and also told accused No.2 that he had brought the money and that Kale had gone into the Police Station to see the papers and find out what had happened to the complainant’s work. It is alleged that accused No.2 told him that he would go inside and see the papers and so accused No.2 also went inside the Police Station. He came out thereafter and went to the Cafe Alankar alongwith complainant Pandurang and the Panch Airan. There it is alleged that he told the complainant that Kale was inside the Police Station and told him to give the amount. It is alleged that complainant handed over the currency notes to accused No.2 and he placed them in his pant pocket. When they came out of the Hotel, a signal was given and it is alleged that the police party which was waiting apprehended accused No.2. From the pocket of accused No.2 the said currency notes were recovered.
6. It is on this evidence that the two courts below convicted the two appellants for the offences alleged against them.
7. Learned counsel appearing for appellant accused No.1, contended that although, according to the prosecution, the arrangement arrived at on 29.11.75 by complainant Pandurang was with accused No.1 to pay Rs.100/- but in fact when the complainant Pandurang approached accused No.1 he did not receive the money. On the contrary as the prosecution own evidence clearly indicates that he once pointed out towards a Constable and second time pointed out at the tea vendor and every time doing this he left the Police Station and went away in the Wireless Van of the Police Station. This clearly indicates that this appellant not only did not accept the money nor anything is established against him. Even about the arrangement it is alleged to have been arrived at between this appellant and the complainant when it is alleged that the complainant approached him at his house on 29.11.75. Even for that there is no other evidence except the evidence of Pandurang the complainant decoy whose testimony without independent corroboration could not be accepted and the manner in which according to the Pandurang own testimony this appellant avoided the complainant Pandurang when he attempted to hand over money to him even makes his testimony about the earlier agreement or arrangement arrived at on 29.11.75 doubtful. Learned counsel therefore contended that so far as accused No.1 the Head Constable is concerned there is nothing in evidence to connect him with the crime. It is unfortunate that the two courts below by considering extraneous circumstances and drawing inferences which are nothing but mere suspicions connecting this appellant with the crime convicted him.
8. The counsel appearing for accused No.2 contended that it is no doubt true that according to the complainant Pandurang he was known to him. So far as the story of 25.11.75 is concerned there is no evidence to corroborate the testimony of complainant Pandurang and apart from it it is nothing more than that this accused No.2 told the complainant to approach accused No.1. Thereafter, according to the prosecution case, the complainant Pandurang independently approached accused No.1 on 29.11.75 and settled the bargain with him and there is nothing in evidence to indicate that this accused No.2 has anything to do with settlement or bargain on 29.11.75 nor there is anything to indicate in the evidence that he had any knowledge thereto.
9. It was contended by the learned counsel that what transpired on 2.12.75 clearly shows that as this decoy complainant Pandurang failed twice to hand over the money to accused No.1 for whom the trap was laid, practically the trap failed and it appears that ultimately in order to save his face before the Anti Corruption Officers he just handed over the money to this accused when there was no demand made by him and there was no arrangement arrived at between them nor there was any representation made by this accused to help this complainant in his affair. It was contended by the learned counsel that this all indicates that the story given out by this complainant Pandurang to the Anti Corruption office was not based on facts and somehow when he thought that the trap was laid for accused No.1 and accused No.1 always avoided this complainant and virtually the trap failed when this complainant approached accused No.2 to pass on this money to accused No.1. Although this was not the arrangement arrived at between the complainant and accused No.1 nor it was the case of prosecution when the statement of this complainant Pandurang was recorded by the Anti Corruption Officer. Under these circumstances it is contended that this accused appellant also could not be convicted.
10. The learned courts below so far as the accused No.1 is concerned have drawn an inference from the subsequent conduct of the accused after the trap was laid. Apparently such an inference could not be drawn because if the accused was really involved in the matter after the trap was laid and money was recovered from accused No.2 it will be nothing but failure of the trap against accused No.1. To take the application or the statement made by the complainant afterwards may be nothing but curiosity and the inference drawn could not be justified. Admittedly there is no evidence at all against accused No.1 except the story given out by complainant Pandurang on 29.11.75. The evidence about the incident of 2.12.75 only indicates that this accused avoided the complainant whenever he approached him. On this evidence the conviction of the appellant could not be sustained as this does not establish any of the ingredients of the offence.
11. As regards accused No.2 merely because he was entrusted with some money to be passed on to accused No.1 it could not be held that he was guilty of any one of these offences unless it is established that he was a party to the arrangement and the arrangement arrived at was that the money would be handed over to accused No.2 to be given over to accused No.1. Apparently accused No.2 was not expected to help the complainant. The assurance to the complainant to settle the matter, according to the prosecution was given by accused No.1 and according to the prosecution own case and the evidence of complainant Pandurang this arrangement was finally settled on 29.11.75 at the house of accused No.1. Admittedly accused No.2 was not there nor it is alleged that he had any knowledge about this settlement. The incident of 29.11.75 is said to be between accused No.1 and Pandurang alone and the only evidence is that of Pandurang. Under these circumstances it could not be held that accused No.2 accepted this amount for any purpose. At best as the complainant told him to pass this money on to accused No.1 he accepted it but on that basis it could not be held that he was sharing the intention with accused No.1 or was acting on his behalf.
12. Under these circumstances the evidence as it stands does not establish the offences even against accused No.2 beyond reasonable doubt. In the light of the discussions above therefore the conclusions reached by both the courts below could not be sustained. The appeals are therefore allowed. The conviction and sentence passed against both the appellants are set aside. They are on bail. Their bail bonds are directed to be discharged. In the event of fine having been already paid, it shall be refunded.
