High Court
Case Details
Crl.A. 167/2011 BEFORE HON’BLE MR JUSTICE P K MUSAHARY This appeal is directed against the judgment dated 21.9.2011 passed in special c ase No.17(A)/04 by the learned special Judge, Assam, Guwahati convicting the app ellant under Section 420 IPC and section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentencing him to undergo rigorous impr isonment for 4(four) years and to pay fine of Rs.50,000/-each, in default to un dergo rigorous imprisonment for one year in default for both sections and direct ing the sentence would run concurrently.
Legal Reasoning
2. The prosecution case, in brief, is that on 27.7.2000 one Sri K K achari, Vigilance and Anti Corruption, Assam, Christianbasti, Guwahati lodged a written FIR before the officer-in-Charge of Anti Corruption Branch, P.S. stating inter alia that on the basis of the report submitted in RE No.26(5)/98 it was f ound that the appellant, while posted as a Sectional Officer at Mashimpur, Ferr y Service under Silchar IWT Division, took illegal gratification from one (1) Sa limuddin Borbhuiya of village-Rajpur, PS- Silchar (2) Bipul Chandra Das of Dakhi n Manikpur PS-Silchar, (3) Sabir Ahmed Laskar of village- Niz Fulbari PS- Katigh ora, Hailakandi (4) Anandi Paul of village- Bhairab Nagar, PS- Silcahr for their enrolment as Muster Roll workers in IWT Departmnet and they were engaged as Mus ter Roll workers at Mashimpur and Jantinga Ferry service without salary. On the basis of the said written FIR, a case being ACB P.S.Case No.8/2000 was registere d under Section 420 IPC read with Sections 13(1)(d) and 13 (2) of the Prevention of Corruption Act, 1988 ( in short, P.C.Act). The police after completion of in vestigation submitted charge sheet under the aforesaid sections of law. The further case of the appellant is that after receipt of summo ns from the court of learned Special Judge, Assam at Guwahati, the appellant en tered appearance through his counsel and he was allowed to go on bail and therea fter on 20.4.2005 the learned Special Judge, Assam at Guwahati framed charges un der Section 420 IPC and Section 13(1)(d)(ii) read with Section 13(2) of the P.C. Act. The appellant was charged for cheating Bipul Chandra Das, Sabir Ahmed and Salimuddin Borbhuiya and Anandi Paul for dishonestly inducing them to deliver Rs .16,000/-Rs.14,000/- Rs.16,000/- and Rs.18,000/- only promising them to give emp loyment in IWT Department. 3. During the course of trial the prosecution examined as many as 1 5 witnesses while defence examined 3 witnesses including one Handwriting expert as DW-1. PW-1 is one Diganta Chandra Das, who made a payment of Rs.16,000/- to t he appellant vide Ext.1 for arranging a job for his son Bipul Das. PW-2, Khagend ra Chandra Das was also present at the time of giving the payment and he further stated that vide Ext.1 the accused himself, in his own handwriting, had given a receipt and thereafter put his signature in presence of the witness. PW-3, Bipu l Das, also corroborated the evidence on the said payment and stated further tha t he was engaged as muster roll worker from 22.12.1995 till May, 1996 at Masimpu r Ferryghat but he was not paid any salary. 4. Sabir Ahmed Laskar was examined as PW-4 and he also stated that he gave a sum of Rs.14,000/- to the accused for procuring a job as Muster Roll w orker in IWT Department at Mashimpur Ferryghat. He worked there for three months but he did not receive any salary. Ext.3 is the receipt issued by the accused a ppellant, Ext.3(1) is the signature of accused appellant. PW.5, Kalimuddin Laska r, father of PW-4 was also present at the time of transaction and according to h im Ext.3(1) was signed in his presence. PW 6 is Anandi Paul, who gave a sum of R s.18,000/- for engagement as Muster Roll worker. However, he joined at Mashimpur Ferryghat on 1st of March, 1996 and continued to work upto August, 1996 but he also did not receive any salary. PW-7 is Farizuddin Borbhuiya, who was also pres ent when PW 6 made the payment. 5.
Legal Reasoning
Sri S K Dhar, PW.8, is the Magistrate who recorded the statement of witnesses under Section 164 Cr.P.C.vide Ext.2,4,5 and 7. PW 9 is Salimuddin Borbhuiya, who was declared as a hostile witness by the prosecution. He denied t hat he paid Rs.16,000/- to the appellant for engagement as Muster Roll worker. Rather, he paid the said amount to A K Fazal who worked at Mashimpur Ferryghat a s a Muster Roll worker and supported the defence version. PW 10 is one Prafulla Sharma, who was the sanctioning authority. PW 11, Shri K Kachari is the informan t, who lodged the FIR after enquiry. PW.12, Jitendra Das submitted charge sheet vide Ext.12. PW.13, Dhirendra Sinha conducted the enquiry as directed by the Sup erintendent of Vigilance and also seized the money receipts issued by the accuse d appellant. PW 14 is Anjali Paul, mother of PW 6, who was present at the time o f payment of Rs.18,000/- to the appellant. PW 15 is the IO of the case who colle cted the FSL report, Ext.15. 6. The appellant on being examined under Section 313 Cr.P.C., denie d the allegations made against him. Further he stated that he has been falsely i mplicated in the case and money receipt Ext.1,3 and A are not issued by him rath er the same were issued by one Nazimuddin Borbhuiya, a reporter, along with his nephew Shri A K Fazalul Islam Borbhuiya, who approached him for giving employmen t as Muster Roll worker at Mashimpur Ferryghat. He flatly refused the said offer as he was not the appointing authority. Thereafter, an altercation took place, as a result of which he has been falsely implicated in this case. DW 1 is the handwriting expert, who proved his opinion, Ext 15. 7. According to him no definite opinion regarding authorship of red encircled signa tures marked Y, Y1, Y2 could be given on the basis of comparison with the standa rd material at hand. DW 2 is Dipak Kumar Chaliha who was the Executive Engineer, IWT department posted at Silchar. He proved the personal file of the appellant marked as Ext.B. According to him, as per note sheet maintained, Ext.B, a depart mental proceeding was initiated against the appellant, which, for want of satisf actory evidence, was dropped. It has also been stated that the money receipts we re thoroughly examined and it appeared that the signature of Section Officer, Ar if Mohammed and the stamps used were not available in the office record and so i t seemed to be doubtful. He further stated that for engagement of muster roll wo rker, the application was required to be duly forwarded by the SO, through the D ivisional Office, to the Director and only after obtaining approval of the Direc tor, the muster roll worker could be engaged and after such engagement only thei r names would find place in the muster roll sheets and thereafter payment of sal ary would be made from treasury on presentation of copies of order of approval o f engagement in the treasury office. 8. ring the parties convicted and sentenced the appellant as indicated above. The learned trial court on appreciation of evidence and upon hea 9. I have heard Mr. P Kataki, learned counsel for the appellant and also Mr. K Munir, learned Addl. Public Prosecutor, Assam for the State-Responde nt. The evidence of PW 1,2 and 3 is that a sum of Rs,16,000/- was pa 10. id to the appellant vide Ext.1 and the appellant put his signature which was pro ved and marked as Ext.1(1) but the handwriting expert gave his opinion that Ext .1(1) is not the signature of the appellant. From this evidence it is found that the genuineness of the appellant’s signature has not been established. As the g enuineness of the appellant’s signature has not been proved, the presence of the appellant at the time of acceptance of bribe or making any demand have become d oubtful and the fact of acceptance of bribe has not been proved by the prosecuti on beyond all reasonable doubt. The evidence of PW 1,2 and 3 is found to be unt rustworthy and unreliable on the basis of which no conviction could be ordered. PW 4 and 5 in their evidence stated that a sum of Rs.14,000/- wa 11. s paid to the appellant vide Ext. and Ext.3(1) is the signature of the appellant , but the handwriting expert opined that it was not the signature of the appell ant and therefore, the genuiness of the appellant’s signature has not been prove d. Since the genuiness of the appellant’s signature could not be proved, the pre sence of the appellant at the time of acceptance or making demand of the bribe h as become doubtful. For the said reason the evidence of PW 4 and 5 cannot be tre ated as trustworthy and reliable so as to convict the appellant. 12. Similarly, PW 6, in his deposition, stated that a sum of Rs.18,0 00/- was paid to the appellant in his residence in presence of PW-7 and PW-14 bu t PW 17 stated that PW-6 made the payment in his shop in his presence. Contradic ting it, PW-14 stated that the said payment was made in the house of PW-6. There is inconsistency in the evidence of prosecution with regard to the place where the payment was made and therefore the evidence of the aforesaid witnesses is fo und to be untrustworthy and unreliable under the law. In the evidence it is foun d that the muster roll worker namely PW-3,4 and 6 failed to produce any document to show that they were engaged as muster roll workers at Mushimpur Ferryghat. T hey have also failed to show that the procedure for engagement of muster roll wo rker as deposed by PW-2, has not been complied with and the prosecution failed t o seize any document regarding engagement of the said witnesses as muster roll workers and therefore, the evidence of these witnesses is to be treated as untru stworthy and unreliable and insufficient to pass an order of conviction. 13. The findings of the learned trial court that the accused, handed over the already written receipts and that the accused persons pretended to hav e signed the receipts after taking the amount from them, for which the signature on the receipts could not be ascertained, are not based on evidence on record i nasmuch as the prosecution witnesses namely PW 3,4 and 5, categorically stated t hat the appellant put his signature on the receipts in their presence. On the fa ce of categorical statement/evidence of PW 3, 4 and 5 that the appellant put hi s signature on the receipts in their presence, I am of the considered view that such finding of the learned trial court is not sustainable under the law.
Decision
14. As per the evidence of PW 3, 4 and 6 that they were engaged as m uster roll workers for certain period of time without any salary but they coul d not produce any document regarding their engagement. Moreover, DW -2 deposed t hat the seal and signature found on the receipts are not genuine and, therefore, there arose a doubt, as to whether, in fact, they were engaged as muster roll w orkers. The said doubt has been intensified due to opinion of the handwriting ex pert, according to whom, the disputed signatures on the money receipts namely Ex t. 1, 2 and A, compared with the genuine signatures of the appellant as well as the admitted official writings of the appellant, were not authored by the appell ant. In view of the above, I am of the considered view that the charge that the appellant took or demanded the bribe money for engagement of muster roll worker s has not been proved. The said oral testimony of the witnesses runs contrary to evidence of the expert who corroborates the evidence of the defence that he nev er demanded money and accepted the amount in question. In this regard it is apt to refer to the case of Juwar Singh -VS- State of M.P., reported in AIR 1981 SC 373, wherein the Apex Court held that if the oral testimony of certain witnesse s is contrary to the proved facts their evidence might well be discarded on that ground. The testimony in such case stands unacceptable. In view of above settle d position of law, the evidence of PW 1, 2, 3, 4 5 and 14, which runs contrary t o the opinion of the experts, is liable to be discarded inasmuch as the saying g oes that the witness may lie but the document may not lie and it will speak itse lf. The defence case has further been corroborated by the findings of the enquir y officer in the departmental proceeding in which it is found that the signature s appearing on the money receipts are not genuine and the stamp put on the money receipts do not belong to the office of the IWT. The prosecution, in my conside red view, miserably failed to produce any document and prove that the witnesses namely PW 3, 4 and 6 were engaged as muster roll workers. What is rather found i s that prosecution witnesses have supported the case of the defence and rendered themselves wholly unreliable. The testimony of such witnesses is liable to be r ejected and on the basis of the evidence of such unreliable witnesses, no convic tion could be recorded. 15. In the result, this appeal succeeds. The impugned judgment of co nviction and sentence is quashed and set aside. Appellant stands acquitted on be nefit of doubt. Appeal stands allowed. 16. 17. Bail bond stands discharged. Return the LCR.