STATE OF MAHARASHTRA v. DNYANESHWAR LAXMAN RAO WANKHEDE

Citation: [2009] 11 S.C.R. 513

Court: Supreme Court of India

Bench: S.B. SINHA, CYRIAC JOSEPH

Case summary

STATE OF MAHARASHTRA v. DNYANESHWAR LAXMAN RAO WANKHEDE.pdf

Judgment text

[2009) 11 S. C. R. 513 STATE OF MAHARASHTRA v. DNYANESHWAR LAXMAN RAO WAN' 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 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 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 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 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 ,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 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 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 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 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 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, 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. 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] 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 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. N. J. Appeal dismissed.