Evidence to be corroborated beyond doubt to establish offence – Bombay High Court
Mere production of the extract of the recorded version or even such verification of voice of the accused only is not sufficiently held by Hon’ble Justice Smt.Vibha Kankanwadi in the case of Devidas Vs State of Maharashtra [Criminal Appeal No 918 of 2015]. The original complainant Deepak Laxman Wadnere is the brother of one Mangala Hari Sonar, who was employed as a security guard with District Prison at Jalgaon. She has undergone a heart operation and the medical bills needed to be sanctioned for reimbursement. The accused was assigned to give the sanction and he demanded fifty thousand but later settled on twenty-five thousand. The complainant decided to lodge a complaint as he was not ready to give a bribe. The Anti- Corruption Bureau conducted a raid and the money given as bribe was recovered. The appeal has been filed by the original accused challenging his conviction wherein he has been sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.25,000/-, in default, to suffer simple imprisonment for one year for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988. He has been further sentenced to undergo simple imprisonment for two years and to pay fine of Rs.25,000/-, in default, to suffer simple imprisonment for one year for committing an offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The issues for consideration before the Court was that whether the prosecution has proved demand and acceptance of the bribe by the accused from the complainant and whether interference is required in the decision of convicting the present appellant. Court placed reliance on the decision in Gulam Mahmood A. Malek vs. State of Gujarat, [1980 (Supp) SCC 684]; wherein it has been held that- “The complainant himself is in the nature of an accomplice and his story is prima-facie suspect for which corroboration in material particulars is necessary.” Further, in Ajit Savant Majagavi vs. State of Karnataka [AIR 1997 SC 3255], it was observed that – “Therefore, despite no legal bar to judge using his eyes, the judge should hesitate to base his findings with regard to the identity of handwriting solely on the comparison made by himself.” It was observed that “Here, the learned Special Judge ought to have been slow, rather refrained himself from playing the CD on his laptop in his chamber, when by that time, it had already come on record that the Investigating Officer had not collected the voice sample of the complainant as well as panch No.1.” Court further held that – “Here, in this case, though the CD’s were produced, voice sample of the accused was also taken and the certificate of the expert was also taken, yet, as aforesaid it cannot be said as complete evidence in the form of electronic record, as voice sample of complainant and panch No.1 was not taken and was not got compared/verified from the expert. Further, the said conversation was not played in the Courtroom at the relevant time during the proceedings. Each time when the conversation has been reproduced, it is stated that it has been got verified from the recorded conversation, then even before the trial Court it ought to have been produced and proved by admissible mode.” Court further observed that “The accused is the Class-III employee and he is not the sanctioning authority/verification authority of the medical bills. His job was to scrutinize the bills and place those bills before the Civil Surgeon for according sanction only. Therefore, there is no substance in the say of the complainant that he unwillingly gave consent to give a bribe as he believed that the bills of his sister would not be sanctioned. Under such circumstance, merely because the tainted amount was found with the accused, it cannot be said that offence has been proved against the accused beyond a reasonable doubt.” Finally, the accused stands acquitted of the offence punishable under Sections 7, 13(1) (d) read with Section 13(2) of the PC Act. His bail bonds stand cancelled. Click here to read the judgement
 on 06 10 2020 on 07 10 Apeal 918 2015.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.918 OF 2015Devidas s o Harichandra BhaskarJalgaon. Tq. and Dist. Jalgaon.… AppellantVersusThe State of Maharashtra Through Police Inspector Anti Corruption Bureau JalgaonDist. Jalgaon.… Respondent ….Mr. M. A. Tandale Advocate for appellant.Mr. S. W. Munde APP for respondent State. ….CORAM : SMT. VIBHA KANKANWADI J.RESERVED ON : 11th September 2020PRONOUNCED ON : 6th October 2020JUDGMENT :.Present appeal has been filed by the original accused challenging hisconviction in SpecialCase No.112 by learned Additional SessionsJudge Jalgaon on 26 11 2015 wherein he has been held guilty of committingoffence under Sections 7 13(1)(d) read with Section 13(2) of the Prevention ofCorruption Act 1988on 06 10 2020 on 07 10 Apeal 918 2015.odt2.Appellant was serving as Assistant Superintendent at Civil Hospital Jalgaon and it is not in dispute that he is a public servant. The originalcomplainant Deepak Laxman Wadnere is the brother of one Mangala Hari Sonar who was employed as security guard with District Prison at Jalgaonon 06 10 2020 on 07 10 Apeal 918 2015.odtcomplainant requested him to get the work done regarding sanction of the bills.Initially he was told to come again but thereafter the accused started avoiding bysaying that he should come again and again. When the complainant visited thehospital on 17 07 2012 and met accused upon inquiry by the complainant accused told that the complainant will have to give amount of Rs.50 000 forpresenting the said bills to the District Civil Surgeon and gettingcertificate sanction from him. Complainant then told accused that since alreadyhuge amount has been spent by them for treatment of her sister it will not bepossible for him to give the amount demanded. Accused then told thecomplainant that he will have to give amount of Rs.25 000 for getting the saidsanction. Complainant told accused that he would inform the said fact to hissister and taking affirmation from her he would give the amount. Complainantgot assured that the amount of Rs.25 000 demanded by accused is nothing butbribe. He decided to lodge complaint as he was not ready to give bribe.Accordingly he went to Anti Corruption Bureau Jalgaon and lodged complaint on17 07 2012.3.After the complaint was lodged two panchas were arranged and intheir presence verification panchnama was carried out. At the time of verificationthe complainant had given phone call in presence of ACB officer Mr. Garud andthe two panchas. The recording of the conversation has been done. After the on 06 10 2020 on 07 10 Apeal 918 2015.odtverification was done it was decided to carry out raid. ACB officer explained theentire procedure as to how the raid would be carried out gave instructions tocomplainant and both the panchas. It was also explained to them as to how theanthracene powder applied on the amount currency notes brought by thecomplainant would act and demonstration was shown. Pre trap panchnama wascarried out.4.After the complainant went along with panch No.1 to the cabin of theaccused there was conversation. It is the prosecution story that the accusedaccepted the amount which was an illegal gratification for presenting the medicalbills submitted by the sister of the complainant for reimbursement for sanction.After the raid was completed panchnama was carried out. The accused wasfound with the tainted money. ACB officer Mr. Garud lodged complaint againstthe accused on behalf of State and carried out further investigation.5.During the course of the investigation the statement of witnesses wererecorded accused came to be arrested sanction to prosecute him was obtainedand after the completion of investigation charge sheet was filed.6.After the accused appeared before the learned Special Judge chargewas framed at Exhibit 2 against him. The contents of the charge were read over on 06 10 2020 on 07 10 Apeal 918 2015.odtand explained to him in vernacular. He pleaded not guilty and thereafter the trialhas been conducted. In all five witnesses have been examined by the prosecutionto bring home the guilt of the accused. After considering the evidence on recordand hearing both sides the accused came to be convicted. He has been sentencedto undergo simple imprisonment for two years and to pay fine of Rs.25 000 indefault to suffer simple imprisonment for one year for the offence punishableunder Section 7 of the PC Act. He has been further sentenced to undergo simpleimprisonment for two years and to pay fine of Rs.25 000 in default to suffersimple imprisonment for one year for committing offence under Section 13(1)(d)read with Section 13(2) of the PC Act. Both the sentences have been directed torun concurrently. This order of conviction is under challenge in this appeal.7.Heard learned Advocate Mr. M. A. Tandale for appellant and learnedAPP Mr. S. W. Munde for respondent prosecution. Perused the paperbook andevidence.8.It has been vehemently submitted on behalf of the appellant thatthere is no dispute that the accused is a public servant however it is required tobe seen as to whether the evidence that has been adduced by the prosecution wassufficient to prove the guilt of the accused beyond reasonable doubt. Thecomplainant has stated that the medical bills of his sister were sent through her on 06 10 2020 on 07 10 Apeal 918 2015.odtoffice for verification and to get them sanctioned for reimbursement. The accusedhad demanded amount of Rs.50 000 as bribe however it was settled toRs.25 000 . Whether this demand and acceptance is proved or not is required tobe seen. Further whether the prosecution could have adduced evidence ofindependent witness and whether the sanction that has been accorded by P.W.3 Dr. Bhaskar Pawar is legal are the points on which the appellant intends to insist.P.W.3 Dr. Bhaskar Pawar has deposed that he was holding additional charge ofthe post of Deputy Director Health Services Nashik from 01 07 2012 to05 12 2012. Thereafter he is working in that capacity since 06 12 2012 after hispromotion to the said post. He has accorded sanction on 30 10 2012. He therebyintends to say that on the day when the sanction was accorded he was holdingthe post of Deputy Director Health Services Nashik by way of Additional Charge.In his cross examination he has stated that his original post was Civil Surgeon Nashik on 30 10 2012. The person holding the post of Civil Surgeon was notcompetent to accord sanction for prosecuting a Class III employee. Prosecutionhas not brought on record the document showing that P.W.3 Dr. Bhaskar Pawarwas holding charge of Deputy Director of Health Services on 30 10 2012. Inabsence of that document it cannot be stated that the sanction which he hasaccorded i.e. Exhibit 34 is legal. It has been further submitted on behalf of theappellant that the evidence would show that there were in all three attempts tomake the trap successful. Same panchas have been used on all the three on 06 10 2020 on 07 10 Apeal 918 2015.odtoccasions. This fact itself throws doubt over the prosecution story and there isroom to believe that just to make that raid successful everybody has acted.Prosecution has not examined any independent witness when it has come in theevidence of P.W.2 panch No.1 that other staff members were sitting in the cabinof the accused at the relevant time. No explanation has been given by theInvestigating Officer as to why he has not recorded statements of thoseindependent witnesses or the staff members. In the examination in chief of P.W.2 he has stated that it was the de facto complainant who had asked the accused asto whether he should give the amount to him at that time itself. That means there was no demand by the accused. In fact the said amount was thrusted withthe accused which does not amount to acceptance. Mere possession of taintedcurrency notes or recovery of the same from the accused is not sufficient to convictthe accused when he has given proper and probable explanation. The testimonyof the complainant ought not to have been believed when he himself is like anaccomplice. Taking into consideration these aspects the learned Special Judgeought not to have come to the conclusion that the offence has not been provedbeyond reasonable doubt. As the learned trial Judge has committed error the saidconviction deserves to be set aside.9.Learned Advocate for the appellant has relied on some authorities.Those are categorized here on the basis of ratio involved. They are as follows: on 06 10 2020 on 07 10 Apeal 918 2015.odt(1)On the point of proof of Demand and Acceptance : i)P. Satyanarayana Murthy Vs. The Dist. Inspector of Police and Anr.P. Satyanarayana Murthy Vs. Dist. Inspector of Police and Anr.Mukhtiar Singhthrough His Legal Representative Vs. State of Punjab8 SCC 136] “Proof of demand and acceptance of bribe amount is mandatory.Mere recovery of tainted money is not sufficient to conclude infavour of prosecution. There should be corroboration to theevidence about demand and acceptance.”(2)On repeated attempts of raid : i)State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede1837]“When attempts of raid are repeated then serious doubts areraised on the prosecution.”(3)On the point of Sanction : i)Mansukhlal Vithaldas Chauhan Vs. State of Gujarat(8) on 06 10 2020 on 07 10 Apeal 918 2015.odtiii) State of Karnataka Vs. Ameerjan11 SCC 273]iv)C.B.I. Vs. Ashok Kumar Aggarwal3318“Sanctioning authority should apply mind while according sanction toprosecute. It can be done only after proper and complete scrutiny ofdocuments of investigation. Such authority cannot be delegated to anyother authority. If there are doubts about sanction order then accusedshould be acquitted.”10.Per contra learned APP submitted that the demand and acceptance ofthe amount which was absolutely not due from the complainant to the accused has been proved and the said amount is nothing but illegal gratification. P.W.1 hascategorically stated that the money was demanded for placing those bills beforethe Civil Surgeon and getting those bills sanctioned for reimbursement. In fact notheory of thrusting was put forward by the appellant and no suggestion to thateffect has been put to P.W.1 in his cross taken on behalf of the accused. Earlier twotimes the trap could not get succeeded because the accused was not present in theoffice. Therefore the trap could only be successful on third occasion cannot betaken as adverse circumstance. It has rather come on record in the testimony ofthe complainant as well as panch No.1 that as the accused was not present in theoffice there was no attempt to give that amount of bribery on that day. Whenever on 06 10 2020 on 07 10 Apeal 918 2015.odtthey met at that time the demand and acceptance has taken place. Therefore failure on earlier two occasions cannot be taken as an adverse circumstance. Theamount has been accepted in the cabin of the accused when there was nobodypresent there. Accused has not given satisfactory explanation about the taintedmoney found in his possession. Whatever lame explanation is tried to be given itis required to be discarded as it does not amount to proper explanation. All thepanchanama’s have been proved properly which includes the pre trap and post trap panchanama. Further if the amount would have been thrusted then thehands of the accused would not have glittered in Ultraviolet Lamp focus. Thepanchas are the independent witnesses as they are the government servants andwhen they have supported the prosecution they are definitely reliable. Thesanction has been properly accorded. Additional charge of Deputy Director wasgiven to the accused till 05 12 2012. There was no necessity to produce the saiddocuments on record as in the sanction order when the present witness hassigned then definitely it was with an authority and therefore with the saidauthority he got the power to appoint as well as remove an employee of Class IIIfrom his department. There was proper application of mind by him beforeaccording sanction. Accused had demanded the said amount for placing the billsfor getting reimbursement sanction before the Civil Surgeon. It amounts to illegalgratification and therefore he has been rightly convicted as the offence has beenproved beyond reasonable doubt. on 06 10 2020 on 07 10 Apeal 918 2015.odt11.Taking into consideration the above submissions following pointsarise for determination findings and reasons for the same are as follows. POINTS1Whether the prosecution has proved demand and acceptance of the bribe by the accused from the complainant 2Whether interference is required in the decision of convicting the present appellant REASONS12.At the outset while deciding any case involving the offence underAnti Corruption Laws the fact is required to be borne in mind that thecomplainant’s evidence will have to be scrutinized meticulously. Giving bribe isalso an offence but then in order to arrest a person who has demanded and thenwould be accepting the bribe it has to be given then the testimony of such personrequires to be carefully tested. In Pannalal Damodar Rathi vs. State ofMaharashtra AIR 1979 SC 1191 it has been held that : “There could be no doubt that the evidence of the complainantshould be corroborated in material particulars After introductionof Section 165 A of the Indian Penal Code making the person whooffers bribe guilty of abetment of bribery the complainant cannotbe placed on any better footing than that of an accomplice and on 06 10 2020 on 07 10 Apeal 918 2015.odtcorroboration in material particulars connecting the accused withthe crime has to be insisted upon”. 12.1Further in M.O. Shamsudhin vs. State of Kerala 3 SCC 351 wherein it has been held that : “the word ‘accomplice’ is not defined under the Indian EvidenceAct. It is used in its ordinary sense which means and signifies aguilty partner or associate in a crime. Reading section 133 andillustrationto section 114 of the Evidence Act together thecourts in India have held that while it is not illegal to act upon theuncorroborated testimony of accomplice the rule of prudence souniversally followed has to amount to rule of law that it is unsafeto act in the evidence of accomplice unless it is corroborated inmaterial aspects so as to implicate the accused”. In this case the Hon’ble Supreme Court has thoroughly discussed as tohow the evidence of bribe giver is required to be appreciated.12.2Further reliance can be placed on the decision in Bhiva Doulu Patilvs. State of Maharashtra AIR 1963 SC 599 wherein it has been held that : “the combined effect of section 133 and 114 illustrationmaybe stated as follows : according to the former which is a rule oflaw an accomplice is competent to give evidence and according tothe latter which is a rule of practice is almost always unsafe to on 06 10 2020 on 07 10 Apeal 918 2015.odtconvict upon his testimony alone. Therefore though theconviction of an accused on the testimony of an accomplice cannotbe said to be illegal yet the courts will as a matter of practice noraccept the evidence of such a witness without corroboration inmaterial particulars”.12.3Further reliance can be placed on the decision in Gulam Mahmood A.Malek vs. State of Gujarat 1980SCC 684 wherein it has been held that : “the complainant himself is in the nature of an accomplice and hisstory is prima facie suspect for which corroboration in materialparticulars is necessary”.13.P. W. 1 Deepak Wadnere is the complainant. In his examination in chief he has reiterated his complaint and thereafter went on to narrate thehappenings events at the time of pre trap as well as post trap panchanama.However the first thing that has not been corroborated is that he was therepresentative of his sister. The prosecution has not examined Mangala Hari Sonar sister of P.W. 1 Deepak for whose work the alleged bribe was demanded.Independently P.W. 1 Deepak had no work with the accused but then he says thatas his sister is heart patient and even had problem with hearing capacity he wastaking the follow up of the bill proposals of his sister. The corroboration ought tohave been brought on record by the prosecution that Mangala was incapacitated on 06 10 2020 on 07 10 Apeal 918 2015.odtto take the follow up. Without any authority by the sister P.W. 1 Deepak could nothave been authorized to demand sanction of the medical bills for reimbursement.We can understand that helping the sister who has difficulty would be the moralduty of the brother but when it comes to the legal aspects involved there shouldhave been atleast oral confirmation about the entrustment of the work of followup by Mangala to the complainant. When that basic aspect is missing thenagreeing to give bribeunder constrained circumstances loses its legal sanctity.14.According to the complainant the bills which were submitted by hissister were to the tune of Rs.5 04 051 and 10% of the same i.e. Rs.50 000 wasasked as bribe. Thereafter he says that the said amount was settled forRs.25 000 . Here also it is not his case nor it is extracted from him in theexamination in chief that he had informed the said fact to his sister to whom theamount was to be reimbursed and then she had also agreed to give that muchamount as bribe through brother. Here the important question is that not only theaccused is a public servant but Mangala is also a public servant. She is serving aslady constable in Sub Jail Jalgaon. One public servant cannot give bribe toanother public servant. It is also an offence as demand of bribe by the publicservant is also an offence. On this point also examination of Mangala by theprosecution was very much important. In his cross examination P.W. 1 Deepak on 06 10 2020 on 07 10 Apeal 918 2015.odthas stated that his sister never went to Civil Hospital in connection with medicalbills. She never accompanied him to Civil Hospital in connection with said bills.In this connection therefore the question arises whether she would have beenready to give bribe even if it would have been demanded.15.According to the complainant he went to the office of accused 5 6times in connection with the bills submitted by his sister. In his cross examination he has stated that he had not made complaint with Civil Surgeon alleging that themedical bills of his sister were not being sanctioned as the person occupying thetable of accused had told him that medical bills of his sister were not received byhis office. He had not made complaint against Civil Surgeon in connection withsanctioning of medical bills of sister. On the contrary he admits that at the time ofhis all 5 6 visits he was told that the medical bills of his sister were not receivedby the office of Civil Surgeon. Therefore if those medical bills had not received where was the question of sanctioning or processing those bills for sanction.16.As regards the events those had taken place just before the raid hehas stated that there was rush in the cabin of accused and therefore the accusedhad asked them to wait for some time. After some time he and panch No.1 werecalled by the accused and therefore they went near the accused. Accused toldhim that he will give certificate and then he says that he had demanded themoney from him. He took out the bribe amount kept in the left pocket of his shirt on 06 10 2020 on 07 10 Apeal 918 2015.odtby his right hand and gave it to the accused. Accused counted the amount andthen kept it in the right pocket of his trouser. If we see the testimony of P.W. 1 tothis effect then it is to be noted that he has told that when they were entering thecabin of the accused at that time 4 5 persons were discussing with the accusedand later on they went outside the cabin. Thereafter de facto complainant askedaccused whether he should give the bribe amount. Thereafter de factocomplainant took out the bribe amount from his pocket by his right hand andasked the accused to count those notes. Accused then counted the notes. Thediscrepancy in the testimony of these two witnesses is that as per the complainantaccused had demanded the amount first and then he handed over whereas thepanch No.1 said that the complainant himself had asked the accused whether heshould give the bribe amount. That means he is negativating the demand by theaccused. Both of them have stated that they were instructed by the InvestigatingOfficer that unless the amount is demanded by the accused that should not begiven. If this is so then as per the testimony of panch No.1 the complainant hasnot acted as per the instructions. Under this circumstance the demand at the timeof raid cannot be said to have been proved beyond reasonable doubt. Another factthat is required to be noted is that as per the prosecution story as well as thetestimony of P.W. Nos.1 and 2 voice recorder has been used to record thevoice conversation. It appears that the same has not been played in Court whenthe evidence of both these witnesses was recorded. The record does not show it in on 06 10 2020 on 07 10 Apeal 918 2015.odtthat way. The aspects involved in the tape recorded evidence electronic evidencewould be dealt with separately. But at this stage suffice it to say that thetestimony of the complainant as well as panch No.1 could have been wellcorroborated if the said voice recording would have been played at the time oftrial.17.The prosecution has come with the case and it has been tried to beproved through P.W. 1 P.W. 2 and the investigating officer that there wasverification of the demand and panchanama to that effect has been prepared which is at Exhibit 21. Panch No.1 has been posed as nephew of the complainantat that time. If we see the evidence of complainant as well as accused as regardsthe contents of Exhibit 21 then it can be seen that one Gaikwad had intervenedand on his say the amount was reduced to Rs.25 000 . It has not been broughton record by the prosecution that as to who is that Gaikwad and what role he hasplayed. Complainant has not told in his complaint or in his examination in chiefthat he had disclosed about demand that was earlier made by the accused to theextent of Rs.50 000 and then he had asked Gaikwad to help him. Therefore thequestion arises as to how this person can intervene. The prosecution has notplaced all the facts on record. It is stated that even at the time of event underpanchanama Exhibit 21 the voice recorder was used however the prosecutionhas not played it at the time of trial. Another point that had been harped upon by on 06 10 2020 on 07 10 Apeal 918 2015.odtthe appellant is the sanction accorded by P.W. 3 to prosecute accused. P.W. 3 hasstated that he was holding additional charge of post of Deputy Director when heissued sanction Exhibit 34. His original post on that day was Civil Surgeon Nashik and in clear terms he has stated that the person holding post of CivilSurgeon is not competent authority to appoint and remove Class III employee. Hesays that he had accorded sanction on the basis of delegated power by theGovernment. He has not produced any document showing delegation of suchpowers along with sanction order Exhibit 34 nor those documents were producedat the time of his deposition. When his original post was not competent to accordsanction and only on the basis of delegated powers if he is according thesanction then it was mandatory for him to attach that document which gives himauthority to accord the sanction along with the sanction order itself. Theprosecution has not taken pains to get that document on record at the time oftrial. Under such circumstance taking into consideration the fact that theauthentic source to delegate the power has not been brought on record thesanction order Exhibit 34 will have to be held as illegal and improper. On thiscount also the accused ought to have been acquitted. The learned Special Judgehas not considered this aspect that production of that document is necessary inorder to authenticate or legalize the sanction order. In other words withoutproduction of the document of delegation of power to P.W. 3 Dr. Bhaskar thesanction accorded by him Exhibit 34 becomes illegal. The ratio in the bunch of on 06 10 2020 on 07 10 Apeal 918 2015.odtauthorities in para 9above on the point of sanction are applicable here.18.P.W.4 Garud is the Investigating Officer cum informant. He hasgiven the details of the events by and large as per his First Information Report. Heis corroborating the testimony of complainant and panch No.1 yet for theaforesaid reason that corroboration cannot prove the offence against accusedbeyond reasonable doubt. In fact he has not stated as to why he has not evenrecorded the statement of Mangala. Another fact that is required to be noted isthat he has taken voice sample of accused only. Panchanama to that effect hasbeen produced at Exhibit 49 and it appears that the script of the earlierconversation was given to read to the accused. The said recording has been donein the music studio of All India Radio Station Jalgaon. In clear words P.W. 4 hasadmitted that he has not taken the voice sample of complainant. The logic behindtaking voice sample of accused only has not been explained by him. Another factis that the said audio series were sent to Forensic Science Laboratory Kalina Mumbai and the certificate has been given at Exhibit 53 about its examinationstating that the specimen voice matches with the voice in two CD’s i.e. Exhibit 1and Exhibit 2. This certificate has been exhibited in view of Section 293 of theCode of Criminal Procedure and thereafter P.W. 5 Nupur Kirkise has been crossexamined by the accused. She has stated that as per the guidelines issued by theCentral Forensic Science Laboratory Chandigarh it is necessary to record the voice on 06 10 2020 on 07 10 Apeal 918 2015.odtsample in presence of two panchas and the recording of voice samples of thosepanchas is also necessary along with its voice samples. She was unable toremember whether the voice samples of panchas were sent to her laboratory ornot. If we see the conversations which are stated to be recorded through voicerecorder then it should have contained the voice of complainant panch No.1 andthe accused. But here voice sample of only accused is taken. This cannot be thecompliance of the legal requirements. Further her cross examination would showthat the original recording was not sent to her but a copied CD was sent. Not onlyher evidence is believed by the learned Special Judge but he himself has alsoplayed those recordings most probably in his chamber and it is stated that it wasplayed on the laptop provided to him by the Indian Judiciary. He then certifies inthe judgment that the script starting from demand of the bribe amount verification panchanama Exhibit 21 is perfectly written as per the saidconversation and thereafter he went on to discuss the contents of the saidconversation. The basic fact is that unless it is proved by adopting all legalrequirements that the voice is that of accused then only it can be said that thedemand is proved and later on the acceptance to be proved. The learned SpecialJudge was not expected to play the said CD’s on his laptop and come to theconclusion which was not in presence of the parties. This can be equated to thepractice that is adopted by some of the judicial officers to compare the signatureson disputed documents with the signatures on the admitted documents themselves on 06 10 2020 on 07 10 Apeal 918 2015.odtby resorting to the provisions of Section 73 of the Indian Evidence Act. It will notbe out of place to mention here the ratio laid down in State of Maharashtra Vs.Sukhdeo Singh and anotherwherein it has been held that : “Court should be slow to compare disputed document withadmitted document for comparison although Section 73empowers the Court to compare disputed writings with thespecimen admitted writings shown to be genuine prudencedemands that Court should be extremely slow in venturing anopinion on the basis of mere comparison more so when thequality of evidence in respect of specimen admitted writings isnot of high standard”Further in Ajit Savant Majagavi Vs. State of Karnatakait was observed that : “Therefore despite no legal bar to judge using his eyes thejudge should hesitate to base his findings with regard to identityof handwriting solely on comparison made by himself”19.Here the learned Special Judge ought to have been slow ratherrefrained himself from playing the CD on his laptop in his chamber when by thattime it had already come on record that the Investigating Officer had notcollected the voice sample of the complainant as well as panch No.1. on 06 10 2020 on 07 10 Apeal 918 2015.odt20.Here in this case though the CD’s were produced voice sample ofthe accused was also taken and the certificate of the expert was also taken yet asaforesaid it cannot be said as complete evidence in the form of electronic record as voice sample of complainant and panch No.1 was not taken and was not gotcompared verified from the expert. Further the said conversation was not playedin Court room at the relevant time during the proceedings. Mere production of theextract of the recorded version or even such verification of voice of the accusedonly is not sufficient. Each time when the conversation has been reproduced it isstated that it has been got verified from the recorded conversation then evenbefore the trial Court it ought to have been produced and proved by admissiblemode. Hon’ble Supreme Court in Ziyauddin Burhanuddin Bukhari vs. BrijmohanRamdas Mehta AIR 1975 SC 1788 clearly laid down that : “The tape recorded speeches were “documents” as defined bySection 3 of the Evidence Act which stood on no differentfooting than photographs”. Further in R.M. Malkani vs. State ofMaharashtra AIR 1973 SC 157 it has been held that “taperecorded conversation is held admissible if it is relevant if thevoice is identified and the accuracy of the tape recordedconversation is proved by eliminating the possibility of erasingthe tape recorded conversation”. 21.In Ram Singh vs. Col. Ram Singh AIR 1986 SC 3 following on 06 10 2020 on 07 10 Apeal 918 2015.odtguidelines have been laid down by the Hon’ble Supreme Court for admissibility oftape recorded conversation : “1) The voice of the speaker must be duly identified by themaker of the record or by others who recognize his voice.Where the maker has denied the voice it will require very strictproof to determine whether or not it was really the voice of thespeaker. 2) The accuracy of the tape recorded statement has tobe proved by the maker of the record by satisfactory evidencedirectly or circumstantial. 3) Every possibility of tamperingwith or erasure of a part of the tape recorded statement must beruled out otherwise it may render the said statement out ofcontext and therefore inadmissible. 4) The statement must berelevant according to the rules of Evidence Act. 5) The recordedcassette must be carefully sealed and kept in safe or officialcustody. 6) The voice of the speaker should be clearly audibleand not lost or distorted by other sounds or disturbance.”22.One more important fact is that accused is the Class III employee andhe is not the sanctioning authority verification authority of the medical bills. Hisjob was to scrutinize the bills and place those bills before the Civil Surgeon foraccording sanction. It is not the case of the complainant that the said amount wasdemanded by the accused for giving it to Civil Surgeon rather he says that he hasno complaint against the Civil Surgeon. Therefore there is no substance in thesay of the complainant that he unwillingly gave consent to give bribe as he on 06 10 2020 on 07 10 Apeal 918 2015.odtbelieved that the bills of his sister would not be sanctioned. Under suchcircumstance merely because the tainted amount was found with the accused itcannot be said that offence has been proved against the accused beyondreasonable doubt. The evidence also shows that the raid was tried on threeoccasions. Even if we consider that as the accused himself was not present in theoffice that cannot be strictly termed as failed attempt yet the circumstancecreates doubt over the prosecution story.23.Taking into consideration in totality the reasons aforesaid this Courtcomes to the conclusion that the offence is not proved against the accused beyondreasonable doubt. The conclusion drawn by the learned Special Judge is wrongand conviction awarded to the accused therefore deserves to be set aside. Theappeal deserves to be allowed. Hence the following order : ORDERI)Appeal stands allowed.II)The conviction awarded to the appellant in Specialof the PC Act on 26 11 2015 by learned SpecialJudge Additional Sessions Judge Jalgaon is hereby set aside.III)The accused stands acquitted of the offence punishable under on 06 10 2020 on 07 10 Apeal 918 2015.odtSections 7 13(1)(d) read with Section 13(2) of the PC Act. His bail bondsstand cancelled.IV)Fine amount deposited if any be refunded to the appellantafter statutory period.V)No change in the order of disposed of Muddemal.SCM 