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2013 DIGILAW 226 (GAU)

Md. Arif Mohammed v. State of Assam

2013-03-22

P.K.MUSAHARY

body2013
JUDGMENT P.K. Musahary, J. 1. This appeal is directed against the judgment dated 21.9.2011 passed in special case No. 17(A)/04 by the learned special Judge, Assam, Guwahati convicting the appellant 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 imprisonment for 4(four) years and to pay fine of Rs. 50,000/- each, in default to undergo rigorous imprisonment for one year in default for both sections and directing the sentence would run concurrently. The prosecution case, in brief, is that on 27.7.2000 one Sri K. Kachari, 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 found that the appellant, while posted as a Sectional Officer at Mashimpur, Ferry Service under Silchar IWT Division, took illegal gratification from one (1) Salimuddin Borbhuiya of village-Rajpur, PS Silchar (2) Bipul Chandra Das of Dakhin Manikpur PS-Silchar, (3) Sabir Ahmed Laskar of village-Niz Fulbari PS-Katighora, Hailakandi (4) Anandi Paul of village-Bhairab Nagar, PS-Silchar for their enrolment as Muster Roll workers in IWT Department and they were engaged as Muster Roll workers at Mashimpur and Jantinga Ferry service without salary. On the basis of the said written FIR, a case being ACB PS. Case No. 8/2000 was registered under Section 420, IPC read with Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (in short, PC. Act). The police after completion of investigation submitted charge sheet under the aforesaid sections of law. The further case of the appellant is that after receipt of summons from the Court of learned Special Judge, Assam at Guwahati, the appellant entered appearance through his counsel and he was allowed to go on bail and thereafter on 20.4.2005 the learned Special Judge, Assam at Guwahati framed charges under 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 employment in IWT Department. 2. During the course of trial the prosecution examined as many as 15 witnesses while defence examined 3 witnesses including one Handwriting expert as DW-1. 16,000/- Rs. 14,000/- Rs. 16,000/-and Rs. 18,000/- only promising them to give employment in IWT Department. 2. During the course of trial the prosecution examined as many as 15 witnesses while defence examined 3 witnesses including one Handwriting expert as DW-1. P.W. 1 is one Diganta Chandra Das, who made a payment of Rs. 16,000/- to the appellant vide Ext.1 for arranging a job for his son Bipul Das. P.W. 2, Khagendra 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. P.W. 3, Bipul Das, also corroborated the evidence on the said payment and stated further that he was engaged as muster roll worker from 22.12.1995 till May, 1996 at Mashimpur Ferryghat but he was not paid any salary. 3. Sabir Ahmed Laskar was examined as P.W. 4 and he also stated that he gave a sum of Rs. 14,000/- to the accused for procuring a job as Muster Roll worker 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 appellant, Ext.3(1) is the signature of accused appellant. P.W. 5, Kalimuddin Laskar, father of P.W. 4 was also present at the time of transaction and according to him Ext.3(1) was signed in his presence. P.W. 6 is Anandi Paul, who gave a sum of Rs. 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. P.W. 7 is Farizuddin Borbhuiya, who was also present when P.W. 6 made the payment. 4. Sri S.K. Dhar, P.W. 8, is the Magistrate who recorded the statement of witnesses under Section 164, Cr.P.C. vide Ext. 2, 4, 5 and 7. P.W. 9 is Salimuddin Borbhuiya, who was declared as a hostile witness by the prosecution. He denied that 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 as a Muster Roll worker and supported the defence version. P.W. 10 is one Prafulla Sharma, who was the sanctioning authority. He denied that 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 as a Muster Roll worker and supported the defence version. P.W. 10 is one Prafulla Sharma, who was the sanctioning authority. P.W. 11, Shri K. Kachari is the informant, who lodged the FIR after enquiry P.W. 12, Jitendra Das submitted charge sheet vide Ext. 12. P.W. 13, Dhirendra Sinha conducted the enquiry as directed by the Superintendent of Vigilance and also seized the money receipts issued by the accused appellant. P.W. 14 is Anjali Paul, mother of P.W. 6, who was present at the time of payment of Rs. 18,000/- to the appellant. P.W. 15 is the IO of the case who collected the FSL report, Ext.15. 5. The appellant on being examined under Section 313, Cr PC, denied the allegations made against him. Further he stated that he has been falsely implicated in the case and money receipt Ext. 1, 3 and A are not issued by him rather 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 employment as Muster Roll worker at Mashimpur Ferryghat. He flatly refused the said offer as he was not the appointing authority Thereafter, an altercation look place, as a result of which he has been falsely implicated in this case. 6. DW 1 is the handwriting expert, who proved his opinion, Ext 15. According to him no definite opinion regarding authorship of red encircled signatures marked Y, Y1, Y2 could be given on the basis of comparison with the standard 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 departmental proceeding was initiated against the appellant, which, for want of satisfactory evidence, was dropped. It has also been stated that the money receipts were thoroughly examined and it appeared that the signature of Section Officer, Arif Mohammed and the stamps used were not available in the office record and so it seemed to be doubtful. It has also been stated that the money receipts were thoroughly examined and it appeared that the signature of Section Officer, Arif Mohammed and the stamps used were not available in the office record and so it seemed to be doubtful. He further stated that for engagement of muster roll worker, the application was required to be duly forwarded by the SO, through the Divisional Office, to the Director and only after obtaining approval of the Director, the muster roll worker could be engaged and after such engagement only their names would find place in the muster roll sheets and thereafter payment of salary would be made from treasury on presentation of copies of order of approval of engagement in the treasury office. 7. The learned trial Court on appreciation of evidence and upon hearing the parties convicted and sentenced the appellant as indicated above. 8. I have heard Mr. P. Kataki, learned counsel for the appellant and also Mr. K. Munir, learned Addl. Public Prosecutor, Assam for the State-Respondent. 9. The evidence of P.W. 1, 2 and 3 is that a sum of Rs. 16,000/- was paid to the appellant vide Ext.1 and the appellant put his signature which was proved 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 genuineness 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 doubtful and the fact of acceptance of bribe has not been proved by the prosecution beyond all reasonable doubt. The evidence of P.W. 1, 2 and 3 is found to be untrustworthy and unreliable on the basis of which no conviction could be ordered. 10. P.W. 4 and 5 in their evidence stated that a sum of Rs. 14,000/- was 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 appellant and therefore, the genuineness of the appellant's signature has not been proved. Since the genuineness of the appellant's signature could not be proved, the presence of the appellant at the time of acceptance or making demand of the bribe has become doubtful. Since the genuineness of the appellant's signature could not be proved, the presence of the appellant at the time of acceptance or making demand of the bribe has become doubtful. For the said reason the evidence of P.W. 4 and 5 cannot be treated as trustworthy and reliable so as to convict the appellant. 11. Similarly, P.W. 6, in his deposition, stated that a sum of Rs. 18,000/- was paid to the appellant in his residence in presence of P.W. 7 and P.W. 14 but P.W. 17 stated that P.W. 6 made the payment in his shop in his presence. Contradicting it, P.W. 14 stated that the said payment was made in the house of P.W. 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 found to be untrustworthy and unreliable under the law. In the evidence it is found that the muster roll worker namely P.W. 3,4 and 6 failed to produce any document to show that they were engaged as muster roll workers at Mashimpur Ferryghat. They have also failed to show the procedure for engagement of (sic) roll worker as deposed by P.W. 2, (sic) been complied with and the prosecution failed to 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 untrustworthy and unreliable and insufficient to pass an order of conviction. 12. The findings of the learned trial Court that the accused, handed over the already written receipts and that the accused persons pretended to have 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 inasmuch as the prosecution witnesses namely P.W. 3,4 and 5, categorically stated that the appellant put his signature on the receipts in their presence. On the face of categorical statement/evidence of P.W. 3, 4 and 5 that the appellant put his 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. 13. On the face of categorical statement/evidence of P.W. 3, 4 and 5 that the appellant put his 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. 13. As per the evidence of P.W. 3, 4 and 6 that they were engaged as muster roll workers for certain period of time without any salary but they could not produce any document regarding their engagement. Moreover, DW-2 deposed that 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 workers. The said doubt has been intensified due to opinion of the handwriting expert, according to whom, the disputed signatures on the money receipts namely Ext. 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 appellant. 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 workers 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 never demanded money and accepted the amount in question. In this regard it is apt to refer to the case of Juwar Singh v. State of M.P., reported in AIR 1981 SC 373 , wherein the Apex Court held that if the oral testimony of certain witnesses 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 settled position of law, the evidence of P.W. 1, 2, 3, 4 5 and 14, which runs contrary to the opinion of the experts, is liable to be discarded inasmuch as the saying goes that the witness may lie but the document may not lie and it will speak itself. The defence case has further been corroborated by the findings of the enquiry officer in the departmental proceeding in which it is found that the signatures 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 defence case has further been corroborated by the findings of the enquiry officer in the departmental proceeding in which it is found that the signatures 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 considered view, miserably failed to produce any document and prove that the witnesses namely P.W. 3, 4 and 6 were engaged as muster roll workers. What is rather found is that prosecution witnesses have supported the case of the defence and rendered themselves wholly unreliable. The testimony of such witnesses is liable to be rejected and on the basis of the evidence of such unreliable witnesses, no conviction could be recorded. 14. In the result, this appeal succeeds. The impugned judgment of conviction and sentence is quashed and set aside. Appellant stands acquitted on benefit of doubt. Appeal stands allowed. 15. Bail bond stands discharged. Return the LCR.