HARI RACHU KANADI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal filed by the original accused Nos. 2, 3 and 4 'who have been convicted, by the learned Special Judge, Greater Bombay, oil offences under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947, and Section 161 read with Section 34 of the Indian Penal Code.

(2.) THE prosecution case is that accused No. 1 was, at the material time which would be January 17, 1968, working as a Sub -Inspector in the Railway Protection Force (hereinafter referred to as E.P.F.) on probation, and accused Nos. 2 and 3 were Rakshaks in the R.P.F. under him, whilst accused No. 4 was a head -rakshak working under him, all of them being at the material time posted at Bimsaval railway station. The prosecution case is that Shivaji Ogale was a merchant dealing in timber and Shahabad stones at Bhusaval, and a wagon load of Shahabad stones ordered out by him arrived at Bhusaval railway station on January 16, 1968. Some of the goods were unloaded and removed by Shivaji in two bullock carts on that very day, and on January 17, 1968 Shivaji engaged two trucks, one of which was driven by witness Kalandar, to remove the remaining goods from the railway station. When Kalandar drove his truck into the railway goods yard for his second trip, Shivaji as well as his sons Madhukar and Sarjerao were present in the goods shed. At about 4.30 p.m., first a Rakshak of the R.P.F., and then original accused Nos. 1 and 2 came to the place where Kalandar had parked his truck a little on the platform for the purpose of facilitating the loading of the' Shahabad stones into his truck, and objected to his having parked the truck there. The prosecution case is that accused No. 2 then took Kalandar to the office of accused No. 1 in which accused Nos. 3 and 4 were sitting, that accused Nos. 1 and 2 threatened Kalandar, that Shivaji followed Kalandar to the office of accused No. 1, that accused No. 1 had Kalandar handcuffed and his arms tied with a rope at about 5.30 p.m., that Shivaji protested to accused Nos. 1 and 2 and even entreated them to let Kalandar go, that accused No. 1 then threatened to handcuff Shivaji himself, that Shivaji's son Madhukar and Sarjerao as well as his nephew Visbwanath arrived in the office of accused No.1 at that time and intervened but accused No.1 did not relent and had a memo written out by accused No.4 to the railway police to put Kalandar in the police lock -up and then ordered accused Nos. 2 and 3 to take Kalandar and Shivaji to the railway police station, that accused No.2 then told Shivaji that if he paid Rs. 200 they would be released and accused No.1 also demanded the said amount from him for releasing them, and that ultimately Shivaji agreed to pay Rs. 100 for saving himself and freeing Kalandar to which accused Nos. 1 and 2 agreed. The prosecution case is that Shivaji then sent his son Sarjerao to his shop and Sarjerao' brought the sum of Rs. 100 in cash from Shivaji's son Vasant who was at the shop at that time, and handed over the amount to Shivaji who, in his turn, handed it over to accused No.1. According to the prosecution accused No.1 then handed over the said sum of Rs. 100 to accused No. 2, telling him to keep the amount and stating that it would be divided subsequently between them. The prosecution case is that accused No. 1 then ordered accused No. 2 to free Kalandar and that was done and the memo which accused No. 4 had written out under the directions of accused No. 1 was turn and set fire to. The prosecution story is that Kalandar, Sarjerao, Madhukar. Vishwanath and Shivaji then went to the chief goods clerk, one Ganpati Sakhalkar, at about 6 p.m. the same evening, mid narrated to him that a bribe had been demanded from them and that Kalandar had been handcuffed, and the next morning Shivaji actually filed a complaint setting out all the facts, which has been tendered and marked exh. 10 in the present proceedings. On these facts, the four accused persons were charged under Section 120B read with Section 161, Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, as well as under Section 161 read with Section 34 of the Indian Penal Code, and under Section 5(7)(d) read with Section 5(2) of the Prevention of Corruption Act read with Section 34 of the Indian Penal Code, and were tried by Mr. V. R. Talashikar, Special Judge, Greater Bombay, who convicted and sentenced all of them to various terms of imprisonment and fine, directing the substantive sentences of imprisonment to run concurrently in respect of each of the accused persons. All the four accused persons thereafter filed the present appeal. The same was summarily dismissed by the learned Chief Justice as far as accused No. 1 was concerned, but was admitted as far as accused Nos. 2, 3 and 4 were concerned, on October 13, 1970.

(3.) TURNING to the evidence in the case, this is one of those rare cases under the Prevention of Corruption Act and Section 161 of the Indian Penal Code in which no trap was laid for the accused, but the prosecution rests on the evidence of witnesses who claim to have been present at the time and place where the bribe was demanded and taken by the accused persons. That, however, whilst making the task of the prosecution somewhat heavier, cannot affect the ultimate decision of this appeal. There is, in my opinion, abundant evidence led by the prosecution in the present case to prove the guilt of accused Nos. 2 and 3, though I have come to the conclusion that the conviction of accused No. 4 by the trial Court cannot be sustained. The first and the most important witness for the prosecution is naturally Shivaji himself. He is an old man 70 years of age who has been a timber merchant at Bhusaval for the last over 40 years. He has deposed to the prosecution story in the same terms in which I have set it out above and I need not repeat the same. Suffice it, to say that, apart from minor discrepancies to which it is unnecessary to refer, there is not a title of evidence to show that Shivaji was not deposing truthfully in the trial Court. He has not been shaken at all in the course of the protracted cross -examination to which he was subjected, and the only point, that is sought to be made out by way of a discrepancy is that whereas Shivaji deposed that he gave the currency notes to accused No. 1 who in his turn handed them over to accused No. 2, Inspector Hanotia of the R.P.F. has deposed that Shivaji identified accused No. 2 as being the person to whom he had given the money at the time when the identification parade was held by Hanotia. I am afraid, however, this discrepancy may be due to a defective understanding of what Shivaji may have told Hauotia, or to a defective understanding by Shivaji of the questions put to him by Hanotia. After all, there is a very thin line between saying that the money was given directly to accused No. 2, and saying that it was given to accused No. I who immediately handed over the same to accused No. 2. I, therefore, do not attach any importance to this discrepancy. What is most important is that, apart from being corroborated by his own sons and the nephew, Shivaji is corroborated, first and foremost, by the complaint (exh. 10) which he filed before the chief goods clerk Sakhalkar the very next morning - as early as 8 a.m. He is corroborated still more strongly by the evidence that on the very evening of January 17, 1968, immediately after the incident in this case, he had gone to the said Sakhalkar and had told him that a bribe had been demanded and Kalandar had been handcuffed and that he, was being harassed, facts which appear unmistakably from the evidence of the said Sakhalkar. Shivaji is also corroborated materially, though not in regard to the actual passing of the money, by the evidence of another independent witness, and that is Sayad Abdul Jaffar, Assistant Sub -Inspector of the E.P.F. at the material time, who has stated that at about 6 p.m. he saw accused Nos. 1, 2 and 3 in the E.P.F. office, that he actually saw accused Nos. 2 and 3 taking the driver of the truck to the office of accused No. 1, and that when that driver was brought to his own room from the room of accused No. 1, he had seen that the driver was in handcuffs and his arms were tied with a rope. This evidence, in my opinion, also affords valuable corroboration to the testimony of Shivaji, coming as it does, from an independent source.