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On 24.02.2011, the Office produced this matter in chamber pointing
out that in the judgment dated 4.2.2011 delivered in Criminal Appeal No.
375 of 1999, there appears typographical errors while typing the amount
on page No.2 as "Rs.3000/-" instead of "Rs.300/-" and also the words
"altra-violate" at page 5 instead of words "ultra violet" and also the word
"violate" instead of "violet" on page nos.3, 11, 39, 40 and 41.
The corrected copy of the judgment reads as under:-
"IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 375 OF 1999
Dr. Smt. Usha w/o Dhondiram Sarwade
Age 35 years, Occ. Medical Officer
(Under suspension)
R/o. Shahaganj, Aurangabad ...Appellant
Versus
The State of Maharashtra
Copy to be served on the
Public Prosecutor, High Court
Bench at Aurangabad ...Respondent
.....
Mr. S.P. Brahme, advocate for the appellant
Mrs. Yogita M. Kshirsagar (Thorat), A.P.P. for respondent
.....
CORAM: S. S. SHINDE, J.
DATE OF RESERVATION
OF JUDGMENT : 20.01..2011
DATE OF PRONOUNCEMENT
OF JUDGMENT : 04.02.2011
JUDGMENT:-
1 This appeal is filed challenging the judgment and order passed
by the learned Special Judge (A.C.). Aurangabad in Special Case No.
20 of 1997, thereby convicting the appellant for the offence punishable
under Section 13(1) (d) r.w. 13(2) of the Prevention of Corruption Act
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and sentenced her to suffer S.I. for one year and pay fine of Rs.300/-.
The appellant is also convicted for the offence punishable under
Section 7 of the Prevention of Corruption Act and sentenced her to
suffer S.I. for six months and to pay fine of Rs.200/- in default S.I. for
two months. The trial court has ordered that the substantive sentence
shall run concurrently.
2 The prosecution case, in nutshell, is as under:-
The appellant accused Dr. Smt. Usha Sarwade on 6.2.1996 was
working as “Casualty Medical Officer” in Government Medical College
and Hospital Aurangabad and so she was a public servant. The
complainant Deelip Shelar, r/o Witkheda alongwith his parents on
3.2.1996 was assaulted by one Parbhat Dapke and his children. After
assault, he lodged a complaint in Deogaon Rangari police station. The
police referred him and his father to the Medical Officer for treatment in
Government College and Hospital Aurangabad and for injury
certificate. He, as well as his father were admitted in the said Hospital
commonly known as “Ghati Hospital”, Aurangabad. The accused
being C.M.O. was dealing with the case of the complainant and his
father. The complainant had requested her to keep his father for two
days more in Ghati Hospital Aurangabad but his request has not
considered by the appellant-accused and his father was discharged
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from the hospital.
It is the contention of the prosecution that when the complainant
Deelip Shelar had been to the accused for his injury certificate as well
as the injury certificate of his father, the accused demanded Rs.400/-
from him by way of bribe. It is the allegation of the prosecution that the
accused refused to issue injury certificate unless the amount of bribe
was paid by the complainant Deelip Shelar. She was also told him
that on 6.2.1996 up to 8.00 p.m. she would be at her chamber for her
official work and he may collect the injury certificate from her in the
evening of the same day.
The complainant Deelip Shelar was not inclined to give bribe to
the accused. Therefore, he came to the office of A.C.B. Aurangabad
and met to Dy. Superintendent of Police Shri Kulkarni. His complaint
was reduced into writing in the office of A.C.B. Aurangabad. The
Investigating Officer Shri. Kulkarni called two panchas namely Shri
Munge and Shir Lad. They gave consent to act as panchas in the trap.
They also read the complaint of Shri Deelip Shelar. Thereafter,
demonstration of use of anthracene powder and Ultra violet lamp was
shown to the complainant and both panchas. Then as per the
instructions of Dy. S.P. Shri Kulkarni the complainant Deelip Shelar
produced four currency notes of Rs.100/- each. The anthracene
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powder was applied to the said notes and the same were kept in the
left pocket of shirt of the complainant. Shri Kulkarni instructed to
complainant not to touch the said notes unless the money was
demanded by the accused. The panch Shri Munge was also instructed
to remain with the complainant at the time of trap and to listen the
conversation between the complainant and the accused. Then the pre-
trap panchnama was prepared in the office of A.C.B. Aurangabad in
which the number of marked currency notes were mentioned and the
bottle of anthracene powder was sealed and kept in cupboard. Shri
Kulkarni gave directions to another panch Shri Lad and his other staff
regarding movements at the time of trap. In this way the trap was
arranged against the accused.
Shri Kulkarni, both panchas and his staff at about 7.00 p.m.
came to Panchakki by police jeep. From there, the complainant Shri
Deelip Shelar and panch witness Shri Munge proceeded to Ghati,
Aurangabad. Thereafter, they met the accused at her chamber in
C.M.O. Room in Ghati Hospital Aurangabad. She asked the
complainant whether the money was brought and as the complainant
told her that money was brought, she asked him to give the said
money to her peon. In the meantime, she gave discharge card to her
peon for bringing its xerox copy. As peon was not found at his place,
the complainant and panch Shri Munge again came to the room of the
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accused. The accused told the complainant to keep the said amount in
the drawer of her table. Accordingly, tainted currency notes were put in
the drawer of the table of the accused by the complainant. Then he
came out of the room and gave signal to the raiding party by waiving
his scarf. Shri Kulkarni ad his raiding party rushed on the spot. Shri
Kulkarni asked the accused, where the amount was kept and she
pointed out at the drawer of her table. The panch Shri Lad removed
the said notes from the drawer of the table of the accused. The said
notes were seen in the light of ultra-violet lamp and blue shining of the
anthracene powder was noticed on the said notes. The number of the
said notes were tallied with the numbers mentioned in the pre-trap
panchnama. Thereafter, said notes were seized for the purpose of
investigation. The form on which the notes were kept in the drawer of
the table of accused had also tainted with anthracene powder and so it
was also seized. Then the true copies of the injury certificate of M.L.C.
1133 discharge card with xerox copies of M.L.C. and the original
certificate of M.L.C. were also seized. The detailed panchnama was
also made on the spot and its copy was given to the accused. The
signature of the accused was obtained on the original panchnama by
way of acknowledgment.
Shri Kulkarni thereafter came to city Chowk police station,
Aurangabad and lodged the complaint against the accused. On the
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basis of his complaint, the offence crime No. II-4 of 1996 was
registered under Sections 7, 13(1) (d) r.w. 13(2) of the Prevention of
Corruption Act.
3 During the course of investigation the prosecution has collected
certain material. Mr. Kulkarni has drawn panchnama in the office of
A.C.B. He also searched the house of the accused and prepared
search panchnama. Shri Kulkarni recorded the statements of various
witnesses. On 9.2.1996, he arrested the accused. He also collected
the copy of appointment order of the accused. Similarly, the copy of
transfer and posting on the accused as C.M.O. On 7.3.1996 he
submitted the report to the Government through his superiors Officer
for launching the prosecution against the accused.
4 The learned Special Judge after framing necessary points and
recording evidence and after hearing the parties convicted the
appellant for the offence punishable under Section 13(1) (d) r.w. 13(2)
of the Prevention of Corruption Act and sentenced to suffer S.I. for one
year and pay fine of Rs.3000/-. The appellant is also convicted for the
offence punishable under Section 7 of the Prevention of Corruption Act
and sentenced her to suffer S.I. for six months and to pay fine of Rs.
200/- in default S.I. for two months. Hence, the judgment of the
learned Special Judge is under challenge in this appeal.
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5 Learned counsel for the appellant submitted that the prosecution
has failed to prove the ingredients of offence i.e. demand, acceptance
and alleged recovery of the amount. The prosecution did not adduce
the reliable evidence. In support of his contention learned counsel for
the appellant relied on the reported judgment of this Court in the case
of Panalal Damodar Rathi Vs. State of Maharashtra, reported in
AIR 1979 SC 1191 and more particularly para 6 and 7 of the said
judgment. Relying on the said judgment, counsel would submit that in
the instant case, like in the said case, the demand has not been
proved by the prosecution. It is further submitted that the prosecution
has examined in all five witnesses. Out of them, only P.W.1
complainant, P.W.2 Mr. Munge and P.W.7 Mr. Kulkarni are relevant.
The other two witnesses i.e. P.W.3 and P.W.6 did not support the
prosecution case. According to counsel for the appellant, P.W.1 and
P.W.7 are interested witnesses and P.W.2 is only independent
witness, who was panch. It is further submitted that for demand and
acceptance, there was no corroboration to the evidence of P.W.1. So
called corroboration by P.W.2 is untrustworthy and thus the
prosecution case appears to be doubtful. In support of his contention,
counsel placed reliance on the reported judgment of the Supreme
Court in the case of State of Maharashtra Vs. Dnyaneshwar
Laxmanrao Wankhede, reported in 2010 (1) Bom. C. R. (Cri.) 247
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and more particularly para 16 to 20 of the said judgment.
Learned counsel further submitted that in absence of demand,
the prosecution under Section 20 is not attracted. The prosecution
failed to prove the evidentiary facts. In support of his contention,
counsel placed reliance on the reported judgment of the Supreme
court in the case of V. Venkata Subbarao Vs. State, reported in AIR
2007 SC 489 and more particularly para 12 of the said judgment. He
further submitted in the said judgment the Hon’ble Supreme Court has
held that the unless evidentiary facts are led by the prosecution, the
prosecution under section 20 is not attracted. It is further submitted
that the demand made on 5.2.1996 is not proved by the prosecution.
P.W.1 did not disclose the said demand in his examination in chief but
in cross examination he mentioned the same. Exh.35 is the duty
arrangement which falsifies the demand. Counsel further submitted
that it has come on record through the prosecution witnesses that the
appellant was not entrusted with any duty on 5.2.1996. It is further
submitted that evidence of P.W.1 and P.W.2 do not inspire confidence
and is doubtful. P.W.1 had grudge against the appellant because she
did not accede to his unlawful demand.
According to counsel for the appellant, there are discrepancies
in the evidence of P.W.1, P.W.2 and P.W.7. Counsel further submitted
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that P.W.1 in his deposition stated that he himself and his father was
admitted in the hospital. However, in complaint at Exh.13, he has
stated that only father was admitted. Counsel submitted that the
evidence of P.W.1 before the Court that he was also admitted in the
hospital is falsified because the prosecution has only brought on
record the discharge card of the father. In case the complainant was
admitted in the hospital, his discharge card should have been placed
on record. It is further submitted that P.W.1 had admitted in cross
examination that he was in hospital on 6.2.1996 at about 3.00 p.m.
Learned counsel invited my attention to the document at Exh.52 which
shows that only the father of the complainant was admitted in the
hospital. However, the complainant in his complaint at Exh.13 is silent
about at what time he was in hospital on 6.2.1996. Learned counsel
further submitted that P.W.2 in his cross examination admitted that he
received requisition from ACB office at 12.30 p.m. However, P.W.7
Investigating officer admitted that P.W.1 came to ACB office at 2.30
p.m. Therefore, counsel for the appellant submitted that there is vital
contradictions and it makes evidence of prosecution witnesses
doubtful. Counsel further submitted that if the evidence of P.W.1, P.W.
2 and P.W.3 is read about the alleged demand, his presence in the
ACB office and requisition received by P.W.2 from ACB office would
lead to only conclusion that the prosecution case is afterthought and
concocted.
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It is further submitted that P.W.1 in his statement stated that a
lady doctor started preparing certificate and gave him the same and
took his signature. However, P.W.2 is silent on that count.
Therefore, counsel for the appellant would submit that even evidence
of P.W.1 and P.W.2 at the time of actual alleged trap is not consistent
with the evidence of each other. It is further submitted that P.W.1 in
his evidence before the Court has stated that on 5.2.1996 appellant-
accused demanded money when he went to hospital. He did not have
Rs.152/- to pay. However, he has not mentioned the same fact in his
complaint. P.W.2 has not mentioned this fact in his statement. It is
submitted by the counsel for the appellant that there is improvisation
by P.W.1 about demand on 5.2.1996 which is not corroborated and
proved, as she was not on duty on 5.2.1996. It is further submitted
that P.W.2 Munge has not given details of distance from where he
heard the conversation between the accused and the P.W.1 nor he
has stated that he was inside the cabin. It is submitted that the
prosecution story is not supported by P.W.2 in material particulars on
demand and acceptance. It is further submitted that P.W.2 in his
deposition has stated that accused removed discharge card and
delivered it to peon and asked him to bring its xerox copy, however,
P.W.1 has not mentioned this fact in his statement. Therefore,
evidence of P.W.2 is inconsistent with the deposition of P.W.1. It is
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further submitted that preparation of certificate by accused and giving
the same to P.W.1 is not mentioned by P.W.2 in his evidence, which is
stated by P.W.1. Therefore, there is no corroboration to the evidence
of P.W.1 that certificate was already given and the said fact is
consciously missing in the evidence of P.W.2. Therefore, counsel
would submit that there are material discrepancies in the evidence of
P.W.1 and P.W.2 which makes prosecution story untrustworthy.
It is further submitted that P.W.2 has stated in his evidence that
the office employee from ACB office came to his office at 12.30 p.m.
however, P.W. 1 in his deposition, more particularly, in cross
examination stated that they went to the hospital i.e. to the accused at
3.00 p.m. and P.W.7 stated that P.W.1 came to his office between
2.00 to 2.30 p.m.. Therefore their evidence is full of contradiction and
there are material discrepancies in the evidence of P.W.1, P.W.2 and
P.W.7. It is further submitted that evidence of Investigating Officer
P.W.7 reveals many lapses during the course of investigation. There
is no explanation as to why Manorama and Anil, were not examined.
There is no explanation as to why Mr. Lad and Mr. Asaram Shelar,
uncle of P.W.1 are not examined though they were available at the
material time. This also contradicts the evidence of P.W.2. Though it
is stated by P.W.7 that the bottle of anthracene powder and ultra
violet lamp were kept in his cupboard in the office of A.C.B. however,
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no explanation is offered as to how the said articles were taken to the
hospital. The pre-trap panchnama is at Exh.23 as well as the post trap
panchnama. However, there is no separate panchnama prepared by
the prosecution. It is further submitted that P.W.7 lodged F.I.R. at Exh.
46 and also he has conducted the investigation and therefore
investigation was biased and untrustworthy. In support of his
contention, counsel placed reliance on the reported judgment of the
Hon’ble Supreme Court in the case of Megha Singh Vs. State of
Haryana, reported in AIR 1995 SC 2339. Learned counsel further
submitted that the prosecution failed to prove that already injury
certificate was issued as per the deposition of P.W.1. panchnama at
Exh.23 discloses that certificate was recovered from PW.1, thus there
was no reason to demand bribe. The prosecution case is doubtful and
the evidence of P.W.1, P.W.2 and P.W.7 is unreliable.
It is further submitted that the sanction under Section 197 of
Cr.P.C. was not proved. P.W.8 was not empowered to accord
sanction. He admits that no document was placed on record in
respect of grant of sanction. He stated that he was under Secretary of
the said department and the Secretary is empowered to grant
sanction. Therefore, relying on judgment of this Court in the case of
State Inspector of Police Vs. Surya Sankaram Karri, reported in
(2006) 7 SCC 172, counsel for the appellant would submit that benefit
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of doubt is required to be given to the appellant. It is further submitted
that defence of the plantation is probable. The table of the accused
was accessible. It was in emergency ward and the accused was
required to attend the patients. Accused was not in the cabin when
P.W.1 and P.W.2 went to meet her first. P.W.2 stated so. Another
occasion of plantation was when P.W.1 alleged to have gone to signal
raiding squad. Learned counsel further submitted that mere recovery
is not sufficient. The recovery of amount is from the drawer of the table
and not from the person of the appellant. Learned counsel further
placed reliance on the following judgments:-
i) Smt. Meeta Vs. State, reported in 2000 Bom.C.R. (Cri.)
865
ii) (2010) 4 SCC 450 Banarasi Vs. State
iii) 2002 (Cri. Supp.) Bom.C.R. 601 Chintaman Vs. state
iv) 2006 (Supp.) Bom.C.R. 1021 Nilkantha Vs. State
It is further submitted that the defence of the appellant taken
under Section 313 of Cr.P.C. while answering the questions No.100
and question No.108 is plausible defence. There was access to the
cabin of the accused. Evidence of P.W. 4 that the injury certificate
does not tally with entries in M.L.C. register is insignificant. The
allegations against the appellant were not to the effect of corrections of
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taken in the appeal and also pleading in the appeal would submit that
the appellant be acquitted from all charges by allowing this appeal by
setting aside the impugned judgment and order passed by the Special
Court.
6 On the other hand, learned A.P.P. appearing for the respondent-
State submitted that the prosecution has proved beyond doubt the
demand, acceptance and recovery of the bribe amount. Learned
A.P.P. submitted that evidence of P.W.1, P.W.2 and P.W.7 lead to
conclusion that there was demand of amount of Rs.400/- by the
appellant and the said was accepted and accordingly by following
proper procedure, trap was arranged and amount has been recovered
from drawer of the table of the accused. Learned A.P.P. invited my
attention to the evidence of complainant P.W.1, P.W.2 and P.W.7 and
also other evidence in the nature of panchnama etc. and submitted
that the prosecution has convincingly proved its case beyond
reasonable doubt. Therefore, the Special Court has rightly convicted
the appellant-accused and no interference is warranted in the
impugned judgment and order, which is passed after appreciation of
clinching evidence brought on record by the prosecution.
7 With the assistance of the learned counsel appearing for the
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appellant and the learned A.P.P. appearing for the respondent-State, I
have carefully perused the grounds taken in the appeal memo,
annexures thereto as also the judgments cited by the counsel for the
appellant and also the other evidence brought on record and which is
received from the trial court.
8 P.W.1 Deelip Bhaulal Shelar is the complaint, who had given the
complaint on 6.2.1996. The said complaint is at Exh.13.
ig In his
complaint he has stated that on 3.2.1996 he was beaten by one
Parbhat Bhaurao Dapke, his wife, children and daughter-in-law. Even
his father and mother were also beaten up. He further stated that the
said quarrel took place on account of some land dispute. The said Mr.
Bhaulal and his other family members assaulted the complainant and
also his father by means of axe, sticks etc. He has further stated in his
complaint that the offence was registered at Deogaon Rangari police
station on the complaint of his father Bhaulal Gangaram Shelar.
Accordingly his mother was sent to Deogaon hospital for medical
treatment. His father and himself had been to Ghati Hospital,
Aurangabad and to that effect written letter was given by the
concerned police Officer. He has specifically stated that he was given
only pills and his father was admitted in ward No.11 in Ghati Hospital,
Aurangabad.
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9 He has stated that on 5.2.1996 his father was discharged from
ward No.11. On 6.2.1996, in the afternoon at about 2.30 p.m. he
himself and his uncle Asaram Gangaram Shelar, resident of Vitkheda
had been to Ghati Hospital in casualty ward for obtaining injury
certificate of his father. They met the appellant herein, who was in
ward No.11 as Medical Officer at the relevant time and requested her
to issue injury certificate, since the appellant has examined his father
on 3.2.1996. However, the lady doctor i.e. the appellant herein
demanded Rs.400/- for issuing such certificate. He replied to the lady
doctor that he does not have money and he would pay Rs.150/- and
requested her to issue injury certificate. However, the appellant-
accused replied that the work cannot be done as she has to go even to
the court for giving evidence. The complainant left the Ghati hospital
by telling the appellant that he will make arrangement for Rs.400/-. At
that time, the appellant replied that her duty is up to 8.00 p.m. She
further asked the appellant to pay Rs.400/- and then she will issue
injury certificate. The complainant further stated in the complaint that
since the amount of Rs.400/- was demanded by the accused-appellant
to issue injury certificate in respect of his father Bhaulal Gangaram
Shelar, however, since he was not inclined to pay Rs.400 to the
appellant, he has come to lodge the said complaint. He has stated in
his complaint that he is not acquainted with said Dr. Sarwade earlier,
he had not entered in any financial transaction with the appellant-
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accused or he has no any enmity with the appellant. Accordingly he
lodged the complaint in the office of Deputy Superintendent of Police-
II, ACB Aurangabad.
10 P.W.1 complainant, in his deposition before the court has
narrated the incident dated 3.2.1996, took place in the village. He
further stated that his father and he himself were sent to Ghati hospital
by the concerned police Officer. In his examination in chief, he stated
that he met Dr. Usha Sarwade. He and his father were admitted in
ward No.11. They were in the hospital for two days and thereafter they
were discharged. They had requested doctor that his father may be
kept in the hospital for another two days but the doctor did not take
cognizance of his request and discharged them. He asked for
certificate from the doctor. The doctor told him to give amount of Rs.
400/- and unless the said amount is paid, no certificate can be issued
as she has to attend the court.
11 In his statement he further stated the time of visit to the office of
P.I. Kulkarni i.e. office of ACB and the procedure followed in preparing
for trap. In detail he has stated about what has happened when he
met Mr. P.I. Kulkarni and thereafter he called two panchas then the
pre-trap procedure was followed. He was given certain instructions.
These are minute details which have been stated by P.W.1 in his
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examination in chief. There is no much dispute about the said version
of the P.W.1 appearing in examination in chief.
12 Therefore, on perusal of the contents of the complaint at Exh.13
and perusal of the above extract from the statement of accused, it is
crystal clear that in his complaint P.W.1 did not state that he was also
admitted in the hospital. He stated in the complaint that only his father
was admitted in Ward No.11 from 3.2.1996 to 5.2.1996. However, in
his deposition before the Court he stated that he was also admitted in
the hospital alongwith his father. It does not appear from his
deposition that when actually initial demand was made by the
appellant, whether the said amount was demanded on 5.2.1996 or on
6.2.1996. (Emphasis supplied).
13 In his complaint he has stated that he went to Ghati hospital on
6.2.1996 at about 2.30 p.m. alongwith his uncle Asaram Gangaram
Shelar and requested the appellant accused for injury certificate of his
father. However, the appellant accused demanded Rs.400/- to issue
such certificate. The said amount was not with the complainant, he
therefore, returned back. It is pertinent to note that the said uncle
Asaram Shelar is not examined by the prosecution. In his deposition
before the court, the complainant has stated that when they were
discharged from the hospital, he requested for injury certificate of his
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father and the demand of Rs.400/- was made by the appellant for
issuing such certificate. Therefore, I find considerable force in the
argument of the counsel for the appellant that the evidence of P.W.1
before the court is ‘substantial improvement’. In his complaint he has
not stated that he was also admitted in the hospital. On the contrary, in
the complaint he has stated that he was given only pills and his father
was admitted in ward No.11 on 3.2.1996 and was discharged on
5.2.1996. There is no doubt that in the complaint the complainant has
stated that he was given only pills and his father was admitted in the
hospital. However, in his deposition before the Court he has stated
that he was also admitted in the hospital. In cross examination also he
has reiterated that he was also admitted in the hospital. However, on
perusal of the evidence brought on record by the prosecution, it
appears that only in respect of father of the complainant discharge
card is placed on record and the discharge card in respect of the
appellant-complainant is not placed on record and this raises
reasonable doubt about the truthfulness in the statement of the
complainant before the Court. It is also pertinent to note that P.W.1
complainant in his examination in chief has specifically stated that he
had requested the doctor that his father may be kept in the hospital for
another two days but the doctor has declined the same. The trial court
while trying the case has also accepted the case of the appellant that
in the complaint the complainant has stated that only father was
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admitted in the hospital, however in his deposition before the court, he
has stated that he was also admitted in the hospital. Upon perusal of
the deposition before the court and the complaint, it does raise
reasonable doubt in mind about assertion of the complainant that there
was demand of Rs.400 by the appellant-accused.
As stated earlier, in the complaint he has stated that he went to
Ghati Hospital on 6.2.1996, however, in his deposition before the court
he has stated that as soon as they were discharged from the hospital,
he requested for injury certificate, however, doctor demanded Rs.400/-
for issuing injury certificate. According to prosecution case they were
discharged from Ghati hospital on 5.2.1996.
14 Coming to the evidence of the complainant about actual demand
of amount by the appellant-accused on 6.2.1996 at 7.30 p.m. is
concerned, the complainant in his evidence has stated that he himself,
P.I. Kulkarni, panch witness, two lady constables proceeded in jeep
towards the Ghati Hospital. They were asked to park the jeep near
Panchakki. Then they went to the place where accused was working.
Accused on seeing the complainant, put question to him whether the
amount is brought by him. The accused thereafter called peon, she
directed peon to bring xerox copy of discharge card. Thereafter, peon
called him. Peon questioned him whether he has brought the amount.
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He told him that he has brought Rs.400/-. Peon thereafter replied that
doctor had asked to bring Rs.500/-. Thereafter complainant went to
doctor. He told doctor that he had brought Rs.400/- as stated by her,
however, peon is demanding Rs.500/-. The lady doctor i.e. appellant
herein told him that he had told him to bring Rs.500/-. The lady doctor
thereafter started preparing certificate. She took his signature on the
copy and gave him certificate. She also told him to pay amount of Rs.
400/- to the peon. He went outside the cabin to see the peon but he
was not present there. Thereafter lady doctor told him to keep the
amount in the drawer. Thereafter, lady doctor questioned him that
whether he has property brought the amount or not?. He told her to
count the same. At that time P.W.2 Mr. Munge was near to him. He
thereafter came out with certificate and signaled with his scarf to
raiding party. Thereafter P.W.7 Mr. Kulkarni came inside and
questioned Mr. Munge as to who had accepted the amount. Mr.
Munge pointed out towards the accused. The lady constable
immediately caught hold both the hands of lady doctor. Thereafter,
P.W.7 Mr. Kulkarni proceeded to prepare panchnama while
complainant was told to go out. After two or two and half hours he was
again called.
15 Before referring to the cross examination of this witness, it would
be appropriate at this juncture to refer to the evidence of P.W.2 Mr.
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Tulshiram Ramchandra Munge, who was Administrative Officer,
Regional Joint Director of Animal Husbandry at the relevant time. The
prosecution has claimed that this witness is independent witness and
his evidence corroborates the evidence of P.W.1. This witness has
stated in his examination in chief that on 6.2.1996 he was working as
Regional Joint Director of Animal Husbandry office at Aurangabad.
There was requisition from the office of ACB to act as panch. One Mr.
Lad and himself went to ACB office to act as panchas. P.W.7 told
them in detail about what they are supposed to do and they prepared
for trap. He has narrated details about what was happened in the
office of ACB. He further stated that all of them went in police jeep at
about 6.45 p.m. and they stopped their vehicle near Panchakki. He
himself and Mr. Shelar, got down and proceeded by walk to Ghati
Hospital. The other raiding party was behind them at some distance.
At around 7.00 p.m. they reached the office of the accused i.e.
casualty department. When they reached the office at first, the
accused was not present on her chair. The accused, on seeing Mr.
Shelar came from another room and sat on her chair and questioned
Mr. Shelar whether he has brought the amount. Thereafter, accused
removed discharge card and told peon to bring xerox copy. Accused
told Mr. Shelar to pay the amount to peon. The peon, who had gone
out to bring xerox called both of them i.e. P.W.1 and P.W.2 and
questioned them as to how much amount Shelar has brought. Shelar
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told that he has brought Rs.400/-. At that time peon told that Shelar
was told to bring Rs.500/-. At that time Shelar again went to meet the
accused. When Mr. Shelar went and told accused that peon is
demanding Rs.500/- at that time accused told that he was told to bring
Rs.500/-. Thereafter accused told Mr. Shelar to pay whatever amount.
When both these witnesses came out peon was not present. They
returned back and told accused that the peon is not present. Accused
thereafter opened the drawer and again questioned that whether
amount is properly brought by Mr. Shelar. Mr. Shelar told the accused
to count the same. At the instance of accused Mr. Shelar put the
amount in the drawer. Thereafter, Mr. Shelar went out and gave signal
to raiding party.
16 The above portion of examination in chief from the evidence of
P.W.1 and P.W.2 is material. As argued by the counsel for the
appellant it is true that P.W.2 has not given details of distance from
whether he heard the conversation between the accused and P.W.1.
He has also not specifically stated that whether he was inside of cabin.
However, it is true that P.W.2 has stated that he accompanied P.W.1
Shelar when actually incident of acceptance of amount has taken
place. So far as the evidence of P.W.1 that the appellant-accused
prepared certificate of injury and handed over the same to P.W.1 has
not been mentioned by P.W.2 in his evidence. In short, P.W.1 has
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stated in his examination in chief that the accused prepared injury
certificate and handed in to the P.W.1 and thereafter P.W.1 has paid
the amount. The preparation of the injury certificate by the accused
has not stated by P.W.2 in his evidence. Therefore, so far as the
preparation of injury certificate at the relevant time and handing over it
to P.W.1, as stated by P.W.1 in his examination in chief is missing in
the evidence of P.W.2 Mr. Munge.
17
Therefore, to the extent of issuing injury certificate it reveals
from examination in chief of this witness P.W.1 and P.W.2 that, P.W.1
in his examination in chief has stated that at the relevant time when
they went to Ghati hospital for actual payment of amount at about
7.30 p.m.. Accused prepared injury certificate and handed in to the
P.W.1 and thereafter, he paid the amount is not stated by P.W.2. In
short, P.W.2 in his evidence has not stated that the accused prepared
injury certificate and handed in to the P.W.1, as stated by P.W.1 in his
evidence. Therefore, to that extent, the submission of the appellant is
required to be accepted.
18 P.W.1 has stated in his examination in chief that when lady
doctor told him to keep the amount in drawer, at that time, Mr. Munge
P.W.2 was near to him. Thereafter, he came out with certificate and
signaled with his scarf to the raiding party. P.W.2 has stated that when
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they returned back to accused and told her that peon is not present,
accused thereafter opened the drawer and questioned to Shelar that
whether amount is properly brought, Shelar told accused to count the
same. At the instance of accused Mr. Shelar put the amount in the
drawer. However, if examination in chief of P.W.1 is perused carefully
he has not stated in his deposition that the accused opened the
drawer. However, the same has been stated by P.W.2. P.W.1 has
stated that lady doctor told him to keep the amount in drawer,
however, he has not stated that the drawer was opened by accused
lady doctor. P.W.1 in his cross examination has asserted that he was
admitted in the hospital alongwith his father. However, as stated
earlier, in his complaint he has not stated that he was also admitted in
the hospital. On the contrary, he has stated that his father was
admitted in the hospital and he was given only pills. Therefore,
assertion of P.W.1 in his cross examination is substantial that he was
admitted in the hospital is substantial improvement and he has not
stated the said fact in the complaint. In his cross examination he has
specifically stated that he had asked for the certificate on 5.2.1996. He
has further stated that it is not true to say that he did not go to the
hospital on 6.2.1996. On 6.2.1996, he went only once to meet doctor
that too in the evening at about 6.00 p.m. On 5.2.1996 when he went
to the hospital, he was accompanied by his uncle Asaram. On
5.2.1996, accused told him that he should get amount and that she
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had duty upto 8.00 p.m. On 5.2.1996 he did not have Rs.150/- to pay
the accused. He had taken Rs.400/- on 6.2.1996 in order to obtain the
certificate. On that day i.e. on 6.2.1996, he did not return to his village.
He had taken Rs.400/- from his uncle Asaram. He had taken this
amount on 6.2.1996. He had taken this amount in the afternoon at
about 3.00 p.m. He further states that he did not remember if he had
gone to meet the accused in Ghati hospital at about 2.30 p.m.
The aforesaid version of P.W.1 complainant creates doubts in
the mind about the prosecution case. P.W.1 in his cross examination
stated that he went to the hospital to ask for the certificate on
5.2.1996. In fact, it has come on record through the prosecution
witnesses that on 5.2.1996 the appellant-accused was not on duty. In
this respect nothing was brought on record by the prosecution to
suggest that the appellant-accused came to the hospital though she
was not on duty. The complainant has also stated that on 6.2.1996
only he went to the hospital to meet the doctor that too in the evening
at about 6.00 p.m. However, prosecution case so far the demand is
concerned is that the complainant met the accused at about 2.30 p.m.
He specifically stated on 6.2.1996 only he went to meet the doctor and
that too in the evening at about 6.00 p.m. He stated that on 5.2.1996
he was accompanied by his uncle Asaram. The accused told him to
get the amount and her duty is upto 8.00 p.m. In fact as stated earlier,
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the appellant accused was not on duty on 5.2.1996. Uncle of the
complainant viz. Asaram is not examined by the prosecution. In fact,
his evidence was material on two points i.e initial demand of amount of
Rs.400/- by the accused on 5.2.1996 and whether amount of Rs.400/-
was borrowed by the complainant from him, as stated by the
complainant in his cross examination.
The complainant has stated in his deposition that he did not
return to his village on 5.2.1996. However, he states that he has taken
Rs.400/- from his uncle Asaram on 6.2.1996. As stated earlier, his
uncle Asaram is not examined by the prosecution. This witness P.W.1
again stated in his cross examination that he does not remember if he
went to Ghati Hospital at about 2.30 p.m. on 6.2.1996. Therefore, the
cross examination of P.W.1 referred to the above extent is full of
contradictions. This P.W.1 has further admitted in his cross
examination that amount was not paid to the accused in her hand.
P.W.1 in cross has admitted that he does not remember the number of
said room where the accused used to sit. It further appears that in
examination in chief he stated that peon asked P.W.1 whether he has
brought Rs.500/- then he went inside the cabin of the appellant and
asked about the amount. Then lady doctor told him he was asked to
bring Rs.500/-. This demand of Rs.500/- by the lady doctor is also
inconsistent with the evidence of P.W.1 himself. Initially he has stated
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that lady doctor asked him to bing Rs.400/- for issuing injury certificate.
He has stated in his evidence that lady doctor started preparing the
certificate. He took signature of the complainant and issued him
certificate. Thereafter, she told him to pay the amount of Rs.400/- to
peon. Therefore, it appears that injury certificate was already issued
even before alleged acceptance of amount by the prosecution.
As stated earlier, P.W.2 has not stated in his evidence that the
lady doctor started preparing certificate, she took signature of the
complaint and handed over copy of certificate to the complainant and
thereafter she told to pay amount of Rs.400/- to peon. P.W.2 has not
stated about issuance of any injury certificate or preparation of the
same by the appellant-accused. It is pertinent to note here that P.W.1
complainant specifically states in his evidence that the lady doctor
started preparing certificate. She took signature and issued injury
certificate and thereafter she told him to hand over Rs.400/- to peon,
who is outside the cabin is not stated by P.W.2. In my opinion, the very
case of the prosecution is that for issuance of injury certificate lady
doctor appellant demanded Rs.400/- from the complainant.
Admittedly, the alleged bribe amount of Rs.400/- was not accepted by
the appellant-accused in her hand. Even according to the prosecution,
the said amount was asked to be kept in drawer of the table of the
appellant-accused. Therefore, in such case where the amount is not
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accepted directly in hand by the accused, the corroboration to the
evidence of complainant assumes importance. Unless there is full
corroboration to the evidence of P.W.1 complainant, it would not be
safe to hold the appellant-accused guilty for the offences charges
against her.
The said peon who is alleged to have asked for Rs.500/- has not
supported the prosecution story. He has stated that said amount was
not demanded and paid. It has also come in the evidence of P.W.2
that when P.W.1 and P.W.2 went to the cabin of the appellant-
accused, she was available in the cabin at about 7.00 p.m. It is the
prosecution case that said cabin is not accessible to all. From entire
material brought on record it seems that nothing has been brought on
record to suggest that said cabin was not accessible to the common
public. It has also come on record that the accused appellant was not
present in her cabin at 7.00 p.m. and she was in casualty ward. There
was every possibility that the medical Officer on duty in casualty ward
is not available in the cabin at all times. Therefore, defence taken by
the appellant-accused in her statement recorded under Section 313 of
Cr.P.C. assumes importance.
19 Question No. 100 which was asked to the appellant-accused in
her statement recorded under Section 313 of Cr.P.C. and the answer
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given to the said question is reproduced herein below:-
“Q No. 100. Why the complainant Deelip Shelar gave evidence
against you?
Ans: On 3.2.1996 he came to me with the letter of police of
Police Station, Deogaon Rangari at 9.30 p.m. and
requested me to give certificate of his father showing
injuries more than the actual injuries on his person and I
told him that I could not give such certificate but I would
admit his father in the hospital and thereafter he came to
me on 6.2.96. There were holidays on 4.2.96 and 5.2.96.
As I was only lady medical officer in well known hospital,
somebody from our staff of hospital, did not like it and
with the help of Shelar has implicated me in the offence. I
had not demanded money for the injury certificate.
Therefore, upon perusal of the answer to the said question, the
appellant-accused has taken a defence that the complainant has
requested the appellant to give certificate of his father showing injuries
more than the actual injuries on his person. However, she declined to
issue such certificate. She has further stated that the complainant
came to her on 6.2.1996. Another question No.108 and answer given
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to the said question by the appellant is reproduced herein below:-
“Q. No.108 : Do you wish to say anything more about the
offence?
Ans:- I had not demanded bribe and not accepted the bribe. I
had also not asked to keep the money in the drawer of my
table. Accordingly, I had given my statement immediately
to the officer of A.C.B. I did not tell anybody to bring
Xerox of any document and had not given money for
xerox. It is false case.
The appellant accused has specifically stated in her reply to
question No.108 that he has not accepted the bribe amount and she
has not asked the complainant to keep that amount in drawer. As
stated earlier P.W.1 has told that lady doctor asked him to keep
amount in drawer. However, P.W.2 stated that the drawer was opened
by lady Doctor and she asked Shelar to keep the amount in drawer.
P.W.1 complainant in his cross examination stated that, “It is not
true to say that I had told the doctor to issue me certificate that my
father had sustained serious injuries and he should be hospitalized for
more days.” This statement in cross examination by P.W.1 runs
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contrary to his statement in examination in chief that ,” We had
requested the doctor that my father may be kept in the hospital
another two days but the doctor did not listen and we were discharged
from the hospital.” Therefore, the evidence of P.W.1 complainant is full
of contradiction and creates serious doubts in the mind about
authenticity of what he stated in the complaint and before the court in
the examination in chief and in the cross examination.
It has also come in the evidence of P.W.1 that he was
accompanied by his father and uncle when he went to ACB office.
However, the prosecution has not examined either father or the uncle
of the complainant. In his cross examination P.W.1 has contradicted
its own statement by which vehicle he went to ACB office at first
moment. He says that he gone to ACB office in a jeep. At very next
moment he says that he went to ACB office by rickshaw. P.W.1 in his
cross examination states that he met doctor in her own chamber. At
that time other patients were sitting in front of her. He and Munge
went to the chamber of accused. The accused told the patients to go
and then questioned them if the amount has been brought. P.W.2 in
his examination in chief has stated that, “When we reached the office
at first, accused was not present on her chair. Accused on seeing Mr.
Shelar came from another room and sat on her chair.” Therefore, the
version of P.W.1 that when he went alongwith P.W.2, the accused was
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in her own chamber and that other patients were sitting in front of her,
however, P.W.2 states that when they reached the office of the
accused at first, she was not present on the chair. On seeing Mr.
Shelar, she came from another room and sat on her chair. This
different version of P.W.1 and P.W.2 creates serious doubt in the mind
about the prosecution case. The evidence of P.W.1 and P.W.2 are not
sure about the agreed amount.
The prosecution story, as reflected through the evidence of the
complainant is that the accused demanded Rs.400/- to issue injury
certificate in respect of father of the complainant. So agreed amount
was Rs.400/-. However, both the witnesses have stated in their
evidence that the accused demanded Rs.500/- at the relevant time.
P.W.1 has stated in his evidence that the injury certificate was already
issued by the accused-appellant and thereafter the amount was
demanded. In fact the complainant throughout has stated that the
appellant-accused demanded Rs.400/- and unless said amount is
paid, she will not issue injury certificate in respect of father of the
complainant. If the injury certificate was already issued in that case
there was no question of agreement as alleged by the complainant
that unless Rs.400/- is paid, the appellant-accused told that she will
not issue injury certificate. P.W.1 in his cross examination has
admitted that the amount was not paid to the accused in her hand.
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P.W.2 has admitted in his examination in chief that anthracene powder
was not seen on the hands of the accused. He has also stated in his
examination in chief that they went to the house of the accused and
search of house panchnama was drawn. Nothing incriminating was
found.
P.W.2 in his cross examination has stated thus:-
“Mr. Kulkarni, was working as my superior as Regional
Joint Director of Animal Husbandry. A.C.B. staff must havecome to my office around 12.30 p.m. My superior did not
tell me about any letter having been received form A.C.B.
Office. I have not received any written letter to act aspanch. We must have reached A.C.B. Office around 2
p.m. or 2.30 p.m.”
If the version of this witness is read in the light of the
prosecution story that the accused appellant demanded Rs.400/- at
2.30 p.m. on 6.2.1996 and thereafter at 3.00 p.m. the complainant
borrowed Rs.400/- from his uncle and then he went to ACB office to
lodge the complaint runs completely contradictory to what is stated by
P.W.2 in his cross examination. Therefore, the evidence of P.W.2 and
the prosecution story creates serious doubt in mind about authenticity
of the evidence of prosecution witnesses and in particular P.W.1, P.W.
2 and P.W.7. This witness has further admitted in his cross
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examination that in routine course whenever he singed, as per habit,
below his signature dates are written but signatures on panchnama
time and dates are not written. It is true that on panchnama at Exhibit
18,23, 24 dates are not put below his signatures. In his cross
examination, he further states that they directly went to casualty ward.
He does not say he alongwith P.W.1 went to the chamber of appellant-
accused. This version runs contrary to what he has stated in
examination in chief when they went to to the chamber of appellant-
accused that she was not there. He has admitted in his cross
examination in front of room/cabin that there is passage of 4 to 5 feet
having benches to sit. He has also admitted in his cross examination
that ward is visible from open space in front of cabin. He has also
admitted that there is lot of rush in the ward and in the open space
which is visible from the room of accused. He has further admitted that
accused was facing towards the east that means towards the passage
side. He has further stated that when the accused was told Shelar to
place the amount in drawer at that time Shelar was standing near the
door. He has further stated that he had not seen Shelar actually
signaled the raiding party, as he was inside the room.
21 The prosecution has examined P.W.3 Kamal Shivanand
Mahajan at Exh.29 on the preparation of map of the spot.
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22 The prosecution has examined P.W.4 Dr. Prabhakar Kisanrao
Phute at Exh.33. In his examination in chief, he has stated that on the
relevant date i.e. on 6.2.1996, the appellant-accused was on duty as a
Medical Officer in casualty. However, he has stated that the appellant-
accused was not on duty on 5.2.1996. Therefore, this prosecution
witness has stated in his evidence that on 5.2.1996 the appellant-
accused was not on duty. Therefore, the version of the complainant as
appeared in the cross examination before the court and also in the
examination in chief that she was on duty on 5.2.1996 is completely
negatived by the evidence of this witness that the appellant-accused
was on duty on 5.2.1996. The prosecution has not brought anything on
record to suggest that the appellant accused came to the hospital on
5.2.1996 though she was on duty on 5.2.1996.
23 The prosecution has examined P.W. 5 Eknath Bhivsan
Gadhekar at Exh.37, who was at the relevant time, was working as
Ward boy. But he has not supported the prosecution story. He has
denied that there was talk between Mr. Shelar and the accused
regrading money. Nothing has been brought on record by the
prosecution in his cross examination, which would support the
prosecution story. On the contrary, in the cross examination he has
admitted that there is always crowd of people in casualty ward. It is
true that there is always crowd in the room of C.M.O. There is M.L.C.
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ward adjoining to the room of R.M.O. and R.M.O. is required to go in
the ward frequently for examination of the patients. He was not
acquainted with Deelip Bhaulal Shelar and Tulshiram Munge.
Therefore, the evidence of this witness does indicate that there is
always flow of crowd and medical officer on duty has frequently visit
the ward for examination of patient. Therefore, the defence of the
accused-appellant that the amount of Rs.400/- has kept in the drawer
of the table in her cabin when she was not in the chamber appears to
be probable.
24 P.W.6 Syed Nawab Syed Gani, whose evidence is at Exh.38.
At the relevant time he was working as sweeper in Ghati hospital. He
has stated that his duty was from 4.00 p.m. to 7.00 p.m. He in his
cross examination has stated that his signature was taken on blank
paper by the police. He has denied that the copies of xerox was
brought by him.
25 The prosecution has examined P.W.7 Hanumantrao Panditrao
Kulkarni, who is investigating Officer and also complainant at Exh.43.
In his examination in chief, he has stated that on 6.2.1996 one Deelip
Bhaulal Shelar came to the office of ACB and lodged complaint
against the appellant-accused alleging that she has demanded Rs.
400/- for the injury certificate, which was required for him in criminal
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case. His complaint was reduced into writing as per his instructions.
His signature was obtained on the complaint. This witness has not
stated at what time the said complainant came to his office. In fact,
since he is investigating Officer in the case he could have stated at
what time the complainant came to his office. He further stated that he
called two employees from the office of Animal Husbandry to act as
panchas by letter. However, it is pertinent to mention here that P.W.2
has stated in his deposition that no such letter was received by him to
act as panch. This witness has further stated about preparation of pre-
trap panchnama and also other details as to how the complainant and
panchas were instructed to prepare themselves for their role at the
time of actual trap. He further stated that at about 6.50 p.m. alongwith
the panch and his staff and complainant they proceeded to Ghati
Hospital. The complainant and panch Munge went ahead to the office
of accused. However, this witness and others were behind them and
they followed Mr. Munge and complainant at some distance. This
witness has stated that at about 7.00 p.m. the complainant gave signal
to this witness and thereafter they went to the spot. Mr. Munge P.W.2
told that accused had accepted the money. This witness has also
stated the role played by panch Mr. Lad. However, it is pertinent to
note that said panch Mr. Lad is not examined by the prosecution.
According to this witness Mr. Lad removed currency notes from drawer
of the table. In fact, the prosecution should have examined Mr. Lad
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whether actual currency notes were removed from the drawer of the
table of the appellant-accused. P.W.7 has stated that the their hands
and the hands of the accused were examined in light of ultra-violet
lamp but no blue shining was found on the hands. Therefore, it is
prosecution story that no blue shining was found on the hands of the
appellant-accused.
P.W.7 in his cross examination stated that on 6.2.1996 the
complainant came to his office at about 2.00 to 2.30 p.m. On that day,
their office was at Jalna road. This statement of P.W.7 that
complainant came to his office between 2.00 to 2.30 p.m. required to
be examined in the light of the statement of the complainant. The
complainant has stated that at about 3.00 p.m. he borrowed Rs.400/-
from his uncle. P.W.2 in his cross examination before the Court has
stated that some persons from ACB office came to his office at 12.30
p.m. requesting him to act as panch. Therefore, the evidence of P.W.1
complainant, P.W. 2 and P.W.7 about timing of events on 6.2.1996 are
required to be taken seriously. In the case like one in hand, the
prosecution is bound to explain the material contradictions in the
evidence of the star witnesses i.e. P.W.1, P.W.2 and P.W.7 about the
timing of the events, which creates serious doubt in the mind about the
prosecution story. In short, P.W.2 in his examination in chief stated
that at 12.30 p.m. the persons from ACB office came to his office
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requesting him to act as panch. In case of the complainant, the
complainant stated in his evidence that he borrowed Rs.400/- from his
uncle at 3.00 p.m. The complainant has stated in his deposition before
the Court that on 6.2.1996 he went once in Ghati Hospital and that too
at 6.00 p.m. However, P.W.7 in his cross examination stated that the
complainant came in his office at about 2.00 to 2.30 p.m. on 6.2.1996.
P.W.7 has stated further that panch came to his office at about 3.30 to
4.00 p.m. However, the evidence of P.W.2 shows that he alongwith
another panch who is employee of his office went to the office of ACB
between 2.00 2.30 p.m.
26 P.W.8 Mr. Gangaram Ippewar, was under Secretary, Public
Health Department, is examined and his evidence is at Exh.51. In his
cross examination he has admitted that there is notification of the
government empowering him to grant sanction for prosecution but on
that day he has not brought its copy on record and his statement came
to be recorded.
27 As stated earlier, so far as the evidence of prosecution
regarding pre-trap panchnama Exh.18 and demonstration of use of
anthracene powder and ultra violet lamp in case of trap is concerned, it
is not seriously contested by the defence since it was in the office of
the ACB. However, counsel for the appellant has argued that
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according to P.W.7 ultra violet lamp was in the cupboard in the office
of ACB However, no explanation has come on record how the said
lamp was used immediately in the hospital. In short, there is no
evidence on record to show that as to how the said ultra violet lamp
was taken from cupboard to the hospital.
28 Therefore, as discussed herein above, in detailed, the evidence
of P.W.1 complainant before the court contradicts with his statement in
the complaint. The evidence of P.W.1 and P.W.2 at the time of actual
trap suffers from material contradictions and more particularly about
demand and acceptance of the alleged amount of Rs.400/- towards
bribe by the appellant-accused. It is not necessary to repeat what
P.W.1 and P.W.3 have stated in their evidence. As stated earlier, the
evidence of P.W.1 and P.W.2 cannot be believed and trusted so as to
sustain the conviction of the appellant accused. It is an admitted
position that the alleged amount of bribe amount of Rs.400/- was not
accepted by the appellant in her hand. P.W.1 has stated in his
evidence that when he alongwith P.W.2 went to the chamber of
accused, she was sitting in her chair and patients were sitting in front
of her. However, P.W.2 has stated that when they went to the
chamber of the appellant at 7.00 p.m. she was not there. On seeing
the complainant Shelar, she came to her chamber. P.W.1 has stated
that the appellant accused prepared injury certificate when P.W.1 and
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P.W.2 were present in her chamber and after preparation of certificate,
his signature was taken on copy and the said injury certificate was
handed in to the complainant. Thereafter she did ask for Rs.400/-, as
agreed. However, P.W.2 has not stated in his evidence that the
appellant-accused prepared injury certificate and then signature of the
complainant was obtained and certificate was handed in to the
complainant. P.W.1 in his statement has stated that the accused
appellant told to keep the amount in drawer of the table. However,
P.W.2 stated that drawer of the table was opened by the appellant-
accused and the complainant was told to keep the amount in the
drawer of the table. At one point, the complainant stated that the
agreed amount of Rs.400/- and after payment of said Rs.400/- the
accused told him that she will give injury certificate of his father to him.
However, in his evidence, he has stated that certificate was issued and
thereafter the amount was demanded.
29 As stated earlier, so far as the timing of events taken place
before actual incident on 6.2.1996 are concerned, there are material
contradictions in mentioning the time by P.W.1, P.W.2 and P.W.7
which makes prosecution story doubtful. Prosecution story is not
supported by other witnesses i.e. Ward Boy and Sweeper. On the
contrary, one of the witness has stated that there is always crowed in
the casualty ward where the appellant-accused has to go frequently in
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the ward to check the patients. The important witness Mr. Lad is not
examined by the prosecution and also the uncle of the complainant is
not examined by the prosecution who was accompanied the
complainant when initial demand was made by the appellant-accused.
It has come in the examination in chief of the complainant that he was
requesting the appellant to keep his father in the hospital for two more
days but the doctor did not listen and she discharged his father. In my
opinion, this version of the complainant in his examination in chief
does indicate that he has some grudge against the appellant-accused
in his mind since the appellant-accused did not accede to his request
to keep his father in the hospital for another two days.
30 As already stated, the prosecution story is full of contradictions,
omissions, improvements and lacks from sufficient convincing
evidence, which would prove the prosecution case beyond reasonable
doubt. It is settled position of law that if there is room for doubt, the
benefits should go to the accused.
31 The Hon’ble Supreme Court in the case of Panalal Ramodar
Rathi (supra) in para 7 has considered the said case on the facts
brought before the court and held that if the version of the complainant
is lacking corroboration and if marked notes are not recovered from
the appellant, the prosecution case should fail. If there is any
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suspicion in the prosecution case, then the benefit should go to the
accused. The prosecution has to prove ingredients of the offence. In
that case also the appellant-accused therein did not accept the money
in hand and therefore, in the facts of that case, the Hon’ble Supreme
Court held that unless there is corroboration to the evidence of the
complainant about actual demand and acceptance, the benefit of
doubt is required to be given to the accused.
32
In the case of State of Maharashtra vs. Dnyaneshwar
(Supra), in para 7, the Hon’ble Supreme Court held that the demand
of illegal gratification is sine qua non for constitution of an offence
under the provisions of Prevention of Corruption Act. For arriving at
conclusion as to whether all ingredients of illegal gratification viz.
demand, acceptance and recovery have been satisfied or not, facts
and circumstances brought on record must be considered in their
entirety. Presumptive evidence as laid down under Section 20 must
also be considered, but, in respect thereof, it is trite law that, standard
of burden of proof on accused vis-a-vis standard of burden of proof on
prosecution would differ. Even in a case where burden is on accused,
prosecution must prove foundational facts. Before calling an accused
to explain as to how amount in question was found in his possession,
foundational facts must be established. While invoking provisions of
section 20, explanation offered by accused, if any, is required to be
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considered only on touchstone of preponderance of probability, not on
proof beyond all reasonable doubt.
33 Yet in another case in case of V. Vyankat Subbarao (supra)
the Hon’ble Supreme Court held that in absence of a proof of demand
the question of raising the presumption would not arise. Section 20 of
the Prevention of Corruption Act provides for raising of a presumption
only if a demand is proved.
34 In case of Ramprkash Arora (supra) the Hon’ble Supreme
court held that there should be independent witness from which
corroboration could be found of the evidence given by the prosecution
witnesses.
35 Yet in another case in the case of State Inspector of Police
Vishakhapatnam (supra), the Hon’ble Supreme Court held that when
authority of person to carry out investigation is questioned on the
ground that he did not fulfill statutory requirements laid down, burden
is on the prosecution to prove the same as contemplated in terms of
second proviso of Section 17 i.e. power to grant sanction has been
conferred by the authority.
In the instant case, one of the point argued by the counsel for
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the appellant is that under Secretary who stepped into witness box to
contend that he is authorized to grant sanction, did not produce
anything on record before the court showing that he is authorized to
give sanction to prosecute the accused.
37 In case of Banarasi Dass (supra) the Hon’ble Supreme court
held that it is a settled cannon of criminal jurisprudence that conviction
of accused cannot be founded on the basis of the inference. The
offence should be proved against accused beyond reasonable doubt
either by direct evidence or even by circumstantial evidence if each
link of chain of events is established pointing towards guilt of accused.
38 Therefore, in the instant case, admittedly the alleged amount of
Rs.400/- to issue injury certificate was not accepted by the appellant-
accused in her hand. Therefore, corroboration to the evidence of P.W.
1 that at the relevant time, the amount was demanded by the
appellant-accused was required to be corroborated by the material
particulars by the evidence of P.W.2. However, as stated earlier, the
evidence of P.W.1 and P.W.2 is full of contradictions and which makes
the evidence of both the witnesses untrustworthy. Even if the
evidence of P.W.1 in respect of demand is believed, the said does not
find corroboration in material particulars. On the contrary, there is
variance between the evidence of P.W.1 and P.W.2 about demand
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and acceptance of amount of Rs.400/- to issue injury certificate. If
the evidence of prosecution is considered in its entirety, it does not
lead to only conclusion that the appellant accused is guilty of offence
alleged against her. The evidence is full of contradictions, omission,
improvements and far from satisfactory required for sustaining the
conviction.
39 As stated in the earlier part of this judgment, the appellant
accused has stated in her statement recorded under Section 313 of
Cr.P.C. that on 3.2.1996 the complainant came with letter of police of
police station Deogaon Rangari at 9.30 p.m. and requested her to give
certificate of his father showing the injuries more than the actual
injuries on his person and she told him that she could not give such
certificate. She has also stated that she was the only Medical Officer
in well known hospital and somebody from her hospital did not like it
and with the help of Mr. Shelar, impleaded her in the said offence.
40 As stated earlier, at the cost of repeatation it is to be stated that
it has come in the evidence of P.W.1 complainant that he requested to
the appellant to keep his father in the hospital for some more days,
however, the appellant accused did not accede to the said request.
41 Therefore, viewed from any angle, in my opinion, the benefit of
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doubt is required to be given to the appellant-accused Dr. Usha w/o
Dhondiram Sarwade. The prosecution has utterly failed to prove its
case beyond reasonable doubt. Therefore, the criminal appeal is
allowed. The impugned judgment and order of conviction and
sentence is quashed and set aside. The appellant-accused Dr. Usha
w/o Dhondiram Sarwade is acquitted from all charges levelled against
her. Bail bonds shall stand cancelled. Original record should be sent
back to the concerned Court.
( S. S. SHINDE. J.)
rlj/”
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