ACHYUTRAO DATTATRAYA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) AN important angle of procedural law has come into focus in this appeal. In a variety of prosecutions, notably corruption cases such as the present one, the law envisages that independent reliable evidence be forthcoming as a safeguard against witnesses who are interested in the success of the prosecution. It is for this purpose that the evidence of panchas assumes crucial significance and that evidence in turn rests heavily on the panchanama. It is, therefore, essential that the requisite procedural precautions be adhered to at all stages relating to the recording of the panchanama in question.

(2.) IN trap cases, much more than any other ones, the complainant is in the position of an accomplice for, it is he who in offering the bribe. The raiding party is not present when the transaction takes place and, therefore, the pancha who accompanies the complainant is not a formal witness but is virtually the star witness for the prosecution for, it is he who is required to witness the demand and acceptance of the bribe by the public servant and it is he who is required to depose primarily about the presence of anthracene powder on the hands, clothes, etc. , of the accused. The presence of the pancha right through the period when the incident takes place and more importantly, the importance for the physical presence of the pancha and the complainant when the panchanama is scribed, cannot be under-scored. Where it is demonstrated that the pancha has left the room where the trap was laid more than once during the transaction and it emerges at the trial that both the pancha and the complainant were absent at different points of time when the panchanama was recorded, a grave lacuna is disclosed. Such an infirmity is not a mere procedural error for it casts doubt on the very correctness of the panchanama which, in turn, happens to be the basis for the panchas evidence and everything else. The evidence of the police officer however trustworthy, can never overcome the fatal defect in such cases because the police officer admittedly, was not present when the greater part of the transaction took place. A scrupulous observance of correct procedures in these cases is absolutely essential and the prosecution cannot be excused for such a lapse. First, however, the material details.

(3.) THE appellant in this case alongwith the appellant in the companion Appeal No. 696 of 1985 stood trial before the learned Special Judge, Thane, on corruption charges in respect of offences punishable under section 5 (2) of the Prevention of Corruption Act and section 161 read with section 34 Indian Penal Code. The learned trial Judge convicted both the accused and awarded them a sentence of rigorous imprisonment for one year and to pay a fine of Rs. 1500/- in default rigorous imprisonment for six months under the first charge and rigorous imprisonment for one year and to pay a fine of Rs. 500/- in default rigorous imprisonment for six months under the second head of charge.