Supreme Court of India
STATE OF MAHARASHTRAversusDNYANESHWAR LAXMAN RAO WANKHEDE
- Citation
- 2009 INSC 964
- Decided
- 29 July 2009
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The prosecution failed to prove the demand of illegal gratification; consequently, the High Court’s acquittal was justified and the appeal was dismissed.
Summary
The State of Maharashtra appealed the acquittal of Head Constable Dnyaneswar Laxman Rao Wankhede, who was convicted by a Special Judge for demanding illegal gratification under Section 7(1) of the Prevention of Corruption Act, 1988. The prosecution’s case rested on two panch witnesses; one died during trial and the surviving witness was declared hostile and not a direct witness to the alleged demand. The High Court held that the prosecution had not proved the essential ingredients of demand, acceptance and recovery of the bribe and therefore acquitted the accused. The Supreme Court examined the burden of proof under Section 20 of the Act, emphasizing that the prosecution must first establish the foundational facts and that any explanation by the accused is assessed on a pre‑ponderance of probability, not beyond reasonable doubt. Finding the evidence insufficient and the sole surviving witness unreliable, the Court upheld the High Court’s judgment and dismissed the appeal. The decision reaffirmed the principle that when two plausible views exist, the court should not interfere with an acquittal.
Issues considered
- Whether the High Court was justified in acquitting the accused under Section 7(1) of the Prevention of Corruption Act, 1988.
- How Section 20’s presumptive evidence and the allocation of burden of proof apply when the prosecution’s case is based on hostile or unavailable witnesses.
- Whether the prosecution proved the three essential ingredients—demand, acceptance and recovery—of the offence of illegal gratification.
Legislation cited
- Indian Penal Code, 1860s. 448
- Prevention of Corruption Act, 1988s. 20, s. 7(1)
Subjects
Prevention of Corruption Actillegal gratificationburden of proofSection 20 presumptive evidenceacquittalcriminal appealbriberyhead constable
Judgment
[2009) 11 S.C.R. 513
STATE OF MAHARASHTRA A
v.
DNYANESHWAR LAXMAN RAO WAN'<HEDE
(Criminal Appeal No. 1350 of 2009)
JULY 29, 2009
B
[S.8. SINHA AND CYRIAC JOSEPH, JJ.]
Prevention of Corruption Act, 1988- s. 7(1) - Conviction
•
under, of head constable for demand of illegal gratification -
However, acquittal by High Court - Justification of - Held: C
Justified - Prosecution failed to prove its case - Sole surviving
panch witness was not witness of demand and was
disbelieved; and was also declared hostile - High Court
considered the legal implication of s. '20 and did not place
too much reliance on the minor inconsistencies in the D
statements of prosecution witnesses.
Criminal law - Appeal against acquittal - Interference with
- Held: When two views are possible, one in favour of
prosecution and other in favour of accused, the court shall not E
interfere with a judgment of acquittal.
The question.which arose for consideration in this
appeal is whether the High Court was justified in
acquitting the respondent-head constable for
-· commission of offence of demand of illegal gratification F
under section 20 of the Prevention of Corruption Act,
1988.
Dismissing the appeal, the Court
HELD: 1.1. The demand of illegal gratification is a G
sine qua non for constitution of an offence under the
-~ provisions of the Prevention of Corruption Act, 1988. For
arriving atI the conclusion as to whether all the ingredients
513 H
514 SUPREME COURT REPORTS (2009] 11 S.C.R.
A of an offence - demand, acceptance and recovery of the
amount of illegal gratification have been satisfied or not,
the court must take into consideration the facts and
circumstances brought on the record in their entirety. For
the said purpose, the presumptive evidence, as is laid
B down in section 20 must also be taken into consideration
but then in respect thereof, it is trite, the standard of
burden of proof on the accused vis-a-vis the standard of
burden of proof on the prosecution would differ. Before,
however, the accused is called upon to explain as to how
c the amount in question was found in his posses$ion, the
foundational facts must be established by the
prosecution. Even while invoking the provisions of
section 20, the court is required to consider the
explanation offered by the accused, if any, only on the
touchstone of preponderance of probability and not on
0
the touchstone of proof beyond all reasonable doubt.
[Para 16] [520-G-H; 521-A, 8]
Noor Aga v. State of Punjab 2008 (9) SCALE 691;
Jayendra Vishnu Thakur v. State of Maharashtra and Anr.
E 2009 (7) SCALE 757, referred to.
1.2. The complainant took with him two panch
witnesses. One of them was a witness in respect of the
alleged demand of illegal gratification on the part of the
F respondent. He having died during pendency of the
matter before the Special Judge, no other independent
witness was available to prove the prosecution case in
that behalf. The second panch witness was not a witness
of demand. Despite the said fact, the prosecution sought
G to prove the demand purported to have been made by
the respond.ent through him. It is of some significance to
notice that although by the said process PW-1 did not
support the accused, he was declared hostile and
permission to cross-examine him was sought for by the
H prosecution. [Para 17] [521-C-E]
STATE OF MAHARASHTRA v. DNYANESHWAR LAXMAN 515
RAO WANKHEDE
'
1.3. Initially, an amount of Rs. 2000/- was demanded. A
A sum of Rs. 1800/- was said to have been paid against
the said demand. Another criminal case was instituted on
14.07.1995. An amount of Rs. 1500/- was said to have
been demanded on 31.07.1995. Only a very small part of
the said amount had been paid, viz., Rs. 100/- and Rs. 200/ B
- on two different occasions. Keeping in view the fact that
the respondent enquired about the correctness or
otherwise of the FIR lodged by the complainant and his
mother after a long time, it is doubtful that the respondent
• had been coming to the village again and again. Even c
complaint was made only on 8.08.1995. Indisputably, at
least two attempts have been made, one on that date and
another later on. The entire procedure for making a raid
was repeated on 22.08.1995. This itself casts a serious
doubt about the prosecution case. The complainant with
D
the witness went to the police station. Then, they went
to their residence. If the respondent intended to take the
. amount, he would have accepted the same in his house
itself and there was no reason to ask the complainant and
the witness to meet him at a public place, i.e., near the
Hospitat Even the details of the said purported raid, viz., E
time· of the complainant's visit to the police station, the
residence of the respondent and Hospital, have not been
disclos.?d. Therefore, it is highly doubtful that the version
of the complainant was true. It is in the said backdrop
. only the evidence of DW-1 is to be considered. Even F
otherwise, the prosecution failed to prove its case. It is,
therefore, not a case where the High Court, has failed to
take into consideration the legal implication of the
provisions of s. 20 of the Act and/or placed too much
reliance on the minor inconsistencies in the statements G
of the prosecution witnesses. [Paras 18 and 19] [521-F-
H; 522-A-D]
·~
2. While dealing with a judgment of acquittal, it is
absolutely essential to keep in mind that in the event two H
516 SUPREME COURT REPORTS [2009] 11 S.C.R.
A views are possible to be taken, one in favour of
prosecution and other in favour of accused this Court
shall not interfere with a judgment of acquittal. There
cannot be any doubt that in the event, having regard to
the materials brought on record, the court comes to the
B conclusion on the basis thereof that only one view is
possible, a judgment of acquittal may be interfered with.
[Paras 15 and 21] [520-D, E; 522-G]
Shivappa and Ors. v. State of Kamataka (2008) 11 SCC
337; State of Maharashtra v. Rashid B. Mulani (2006) 1 SCC •
C 407; State through Inspector of Police, A.P. v. K.
Narasimhachary (2005) S SCC 364; Dilip and Anr. v. State
of M.P. (2007) 1 SCC 450 and Gagan Kanojia and Anr. v.
StatEl of Punjab (2006) 13 SCC 516, relied on.
D Case Law Reference:
, (2008) 11 sec 337 Relied on Para 15
(2006) 1 sec 407 Relied on Para 15
(2005) 8 sec 364 Relied on Para 15
'E
2008 (9) SCALE 691 Relied on Para 20
2009 (i) SCALE 757 Relied on Para 20
(2001) 1 sec 450 Relied on Para 21
F
(2006) 13 sec 516 Relied on Para 21
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1350 of 2009.
G From the Judgment & Order dated 19.7.2005 of the High
Court of Judicature at Bombay, Nagpur Bench in Criminal
Appeal No. 155 of 2000.
Madhavi Divan and Ravindra Keshavrao for the
H
STATE OF MAHARASHTRA v. DNYANESHWAR LAXMAN 517
RAO WANKHEDE
1 Appellants. A
Manish Pitale and Chander Shekhar Ashri for the
Respondents.
,.
The Judgment of the Court was delivered by
B
S.B. SINHA, J. 1. Leave granted.
2. The State is before us being aggrieved by and
dissatisfied with a judgment and order dated 19.07.2005
passed by a learned Single Judge of the High Court of
Judicature at Bombay, Nagpur Bench, Nagpur whereby and
c
whereunder a judgment of acquittal was recorded in favour of
the respondent herein who was convicted by the Special Judge,
Wardha in Special Case No. 4 of 1996 under Section 7(1) of
the Prevention of Corruption Act, 1~88 (for short "the Acl").
D
3. Respondent was, at all material times, serving as a
;. Head Constable in Police Station, Karanja in the District of
Wardfla. Madhukar Dhote, hereinafter referred to as the
complainant, was a resident of village Taroda in the Tehsil of
Karanja (Ghadge). He had lodged a report against Dhanaraj E
Mohod and his servant Sudhkar Borkar for allegedly allowing
their cattle to graze orange plants. Sudhkar Borkar's mother,
however, lodged a report against the complainant that he had
assaulted her son. In his capacity as a Head Constable, the
respondent visited the village for making an enquiry. F
4. Respondent informed that having regard to the
complaint made by the mother of Sudhakar Borkar, he and his
three brothers were to be proceeded for commission of an
offence under Section 448 of the Indian Penal Code. He
G
allegedly demanded a sum of Rs. 2,000/- for releasing him on
bail.
<I
5. On or about 14.07.1995, Ramesh Dhote, brother of the
complainant and his servant had taken the cow of Dhanraj
Mohod to the cattle - pound as the cow had damaged the crops H
518 SUPREME COURT REPORTS [2009] 11 S.C.R.
A in the complainant's field. On 31.07.1995, the respondent is
said to have again demanded a sum of Rs. 1500/- for releasing
Ramesh Dhote and his servant on bail in the aforementioned
matter. Allegedly, a sum of Rs. 100/- and thereafter a sum of
Rs. 200/- was paid to him.
B
6. The complainant thereafter on the premise that he was
unwilling to pay the balance sum of Rs. 1200/- to the respondent
loE:!ged an oral report before the Anti Corruption Bureau against
the respondent on or about 8.08.1995. A raid was conducted
but allegedly the same was not successful. On 21.08.1995, the
C complainant lodged additional report stating that the respondent
told that he should come to Karanja on 22.08.1995 with
remaining amount of Rs. 1200/-. The entire procedure was
repeated again on 22.08.1995. Complainant and one panch
witness Ashok Waghade went to the police station. Respondent
D was not present at the police station. Then they went to his
house. He is said to have again demanded the amount and
asked them to come near the Veterinary hospital. Allegedly,
nearabout the Veterinary Hospital, on demand of the amount
of bribe by the respondent, ffiesame was paid. He was
E apprehended by the raiding party. Upon obtaining sanction for
the prosecut!on of the respondent, a case under Sections 7 and
13(1)(d) was initiated against him.
7. Respondent entered the plea of innocence. Charges
F were framed against him. Ashok Waghade, panch witness No.
1, died during pendency of the said proceeding. 1he other
panch witness Gajanan Ambatkar although was not present
when the respondent purported to have made a demand of the
amount of gratification, deposed to the said effect. He was
G declared hostile and was permitted to be cross-examined by
the prosecution. The complainant, however, ex(!mined himself
as a prosecution witness and supported the prosecution case.
8. Respondent, on his part, examined a defence witness,
Ramesh Kinkar who was an autorickshaw driver. According to
H the said witness, the complainant and a person accompanying
STATE OF MAHARASHTRA v. DNYANESHWAR LAXMAN 519
RAO WANKHEDE [S.B.SINHA, J.]
him stopped his autorickshaw and the former allegedly A
requested the respondent to see a buffalo which was brought
near the hospital in an injured condition. Respondent got down
from his autorickshaw. Complainant is said to have thrust the
amount in question on the left hand of the accused whereafter
the raid was conducted by the official of the Anti Corruption B
Bureau.
9. The learned Special Judge held the respondent guilty
of commission of the said offence and sentenced him to
undergo rigorous imprisonment for six months and to pay a fine
of Rs. 1000/- in default whereof he was sentenced to undergo
c
further rigorous imprisonment of two months.
10. Aggrieved by and dissatisfied with the said judgment
of conviction and sentence, the respondent preferred an
appeal before the High Court, which was marked as Criminal D
~ Appeal No. 155 of 2000. Inter alia on a finding that the
prosecution has failed to prove any demand on the part of the
accused as also payment thereof and opining that the recovery
of the purported amount of bribe was not sufficient to bring
home the charge under Section 7(1) of the Act reversed the E
said judgment of conviction and sentence recorded by the
learned Special Judge and, thus, allowed the appeal of the
respondent.
11. The State is, thus, before us.
F
12. Ms. Madhavi Divan, learned counsel appearing on
behalf of the appellant, would contend that keeping in view the
materials brought on record by the prosecution, the High Court
committed a serious error in opining that all the three
ingredients of commission of an offence under Section 7 of the G
1'
Act have not been proved. It was urged that having regard to
the provisions of Section 20 of the Act, the burden of proof was
on the accused and he having failed to explain as to how the
amount of Rs. 1200/- was found in his pocket, the High Court
ought not to have record~d a judgment of acquittal in his favour. H
520 SUPREME COURT REPORTS [2009] 11 S.C.R.
A 13. The learned counsel furthermore would contend that
the discrepancies in the depositions of the prosecution witness
were not sufficient to record the judgment of acquittal.
14. Mr. Manish Pitale, learned counsel appearing on behalf
of the respondent, on the other hand, would contend that the
8
sole-surviving panch witness PW-1 having been disbelieved
and in fact having been declared hostile, no reliance could be
placed on his evidence. It was pointed out that the prosecution
had earlier made several raids and at least two other incidents
have been brought on record, it is improbable that the
C respondent had demanded any amount by way of bribe or
otherwise.
15. Before embarking on the rival contentions raised
before us, it is our duty to remind ourselves that we are dealing
D with a judgment of acquittal and, thus, it is absolutely essential
to keep in mind the well-settled principles of law that in the event
two views are possible to be taken, this Court shall not interfere
'
with a judgment of acquittal. There cannot be any doubt that in
the event, having regard to the materials brought on record, the
E court comes to the conclusion on the basis thereof that only one
view is possible, a judgment of acquittal may be interfered with.
[See Shivappa and Ors. v. State of Kamataka (2008) 11 SCC
337, State of Maharashtra v. Rashid 8. Mulani (2006) ·1 SCC
407 and State through Inspector of Police, A.P. v. K.
F Narasimhachary (2005) 8 SCC 364]
16. Indisputably, the demand of illegal gratification is a sine
qua non for constitution of an offence under the provisions of
the Act. For arriving at the conclusion as to whether all the
ingredients of an offence, viz., demand, acceptance and
G recovery of the amount of illegal gratification have been
satisfied or not, the court must take into consideration the facts >
and circumstances brought on the record in their entirety. For
the said purpose, indisputably, the presumptive evidence, as
is laid down in Section 20 of the Act, must also be taken into
H consideration but then in respect thereof, it is trite, the standard
STATE OF MAHARASHTRA v. DNYANESHWAR LAXMAN 521
RAO WANKHEDE [S.B.SINHA, J.]
of burden of proof on the accused vis-a-vis the standard of A
burden of proof on the prosecution would differ. Before,
however, the accused is called upon to explain as to how the
amount in question was found in his possession, the
foundational facts must be established by the prosecution. Even
while invoking the provisions of Section 20 of the Act, the court B
is required to consider the explanation offered by the accused,
if any, only on the touchstone of preponderance of probability
;o
and not on the touchstone of proof beyond all reasonable doubt.
17. Indisputably, the complainant took with him two panch
witnesses. One of them Ashok Waghade was a witness in
c
respect of the alleged demand of illegal gratification on the part
of the respondent. He having died during pendency of the matter
before the learned Special Judge, no other independent
witness was available to prove the prosecution case in that
behalf. The second panch witness was not a witness of D
,I
demand. Despite the said fact, the prosecution sought to prove
the demand purported to have been made by the respondent
through him. It is of some significance to notice that although
by the said process PW-1 did not support the accused, he was
declared hostile and permission to cross-examine him was E
sought for by the prosecution.
18. Initially, an amount of Rs. 2000/- was demanded. A
,. sum of Rs. 1800/- was said to have been paid against the
aforementioned demand. Another criminal case was instituted
F
on 14.07.1995. An amount of Rs. 1500/- was said to have
been demanded on 31.07.1995. Only a very small part of the
said amount had been paid, viz., Rs. 100/- and Rs. 200/- on
two different occasions. Keeping in view the fact that the
respondent enquired about the correctness or otherwise of the
G
First Information Reports lodged by the complainant and the
~
mother of said ·sudhakar Borkar after a long time, it is doubtful
that the respondent had been coming to the village again and
again. Even complaint was made only on 8.08.1995.
Indisputably, at least two attempts have been made, one on that
date and another later on. The entire procedure for making a H
522 SUPREME COURT REPORTS (2009] 11 S.C.R.
A raid was repeated on 22.08.1995. This itself casts a serious
doubt about the prosecution casR The matter does not end
here. Complainant with Ashok Waghade went to the police
station. Then, they went to their residence. If the respondent
intended to take the amount, he would have accepted the same
8 in his house itself and there was no reason to ask the
complainant and the witness to meet him at a public place, i.e.,
near the Veterinary Hospital. Even the details of the said
purported raid, viz., time of the complainant's visit to the police •
station, the residence of the respondent and Veterinary
c Hospital, have not been disclosed.
19. It is, therefore, highly doubtful that the version of the
complainant was true. It is in the aforementioned backdrop only
the evidence of DW-1 is to be considered. Even otherwise, in
our opinion, the prosecution has failed to prove its case. It is,
D therefore, not a case where the High Court, as has been
contended by Ms. Divan, has failed to take into consideration
the legal implication of the provisions of Section 20 of the Act
and/ or placed too much reliance on the minor inconsistencies
in the statements of the prosecution witnesses.
E
20. Even in a case where the burden is on the accused, it
is well-known, the prosecutron must prove the foundational facts.
[See Noor Aga v. State of Punjab 2008 (9) SCALE 691 and
Jayendra Vishnu Thakur v. State of Maharashtra and Anr.
2009 (7) SCALE 757]
F
21. It is also a well-settled principle of law that where it is
possible to have both the views, one in favour of the prosecution
and the other in favour of the accused, the latter should prevail.
[See Oi!ip and Another v. State of M.P. (2007) 1 SCC 450
G and Gagan Kanojia and Another v. State of Punjab (2006) 13
sec 5161
22. For the reasons aforementioned, there is no merit in
this appeal, which is dismissed accordingly.
H N.J. Appeal dismissed.
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