LexSTATE OF MAHARASHTRA versus DNYANESHWAR LAXMAN RAO WANKHEDE
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• [2009) 11 S.C.R. 513 STATE OF MAHARASHTRA v. DNYANESHWAR LAXMAN RAO WAN'<HEDE (Criminal Appeal No. 1350 of 2009) JULY 29, 2009 [S.8. SINHA AND CYRIAC JOSEPH, JJ.] A B 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 at the conclusion as to whether all the ingredients I 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 0 touchstone of preponderance of probability and not on 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
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