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2018 DIGILAW 156 (GAU)

Rubul Gogoi v. State of Assam

2018-01-29

HITESH KUMAR SARMA

body2018
JUDGMENT AND ORDER : 1. The Crl. A. No. 187/2011 and Crl. A. No. 214/2011 are taken up together as both of these appeals arose out of the judgment, dated 28.10.2011, passed by the learned Special Judge, Assam, Guwahati m Special Case No. 4/2008. 2. Vide the said judgment, the learned trial court of Special Judge, Assam, Guwahati, convicted the accused-appellant Sri Rubul Gogoi of Crl. A. No. 187/2011 to rigorous imprisonment for 3 years and 6 months and to pay a fine of rs. 25,000 with a default clause for commission of offence under section 7 of the Prevention of Corruption Act (PC Act) and also convicted the accused-appellant Sri Pranab Jyoti Bhorali, in Crl. A. No. 214/2011, to rigorous imprisonment for 3 months and to pay a fine of Rs. 2,000 with a default clause under section 12 of the PC Act in Special Case No. 4/2008. 3. None appears for the appellant in Crl. A. No. 187/2011. Mr. T.J. Mahanta, learned senior counsel appears for the accused-appellant in Crl. A. 214/2011. In both the appeals, State respondent is represented by red Additional Public Prosecutor, Mr. N.K. Kalita. 4. In respect of Crl. A. No. 214/2011, I have heard learned senior counsel for the appellant Mr. T.J. Mahanta and for both the appeals I have heard learned Additional Public Prosecutor Mr. N.K. Kalita, for the State respondent. 5. As none appears for the appellant in Crl. A. No. 187/2011, this court proposes to dispose of the appeal on merit on perusal of the trial court court's record as well as the impugned judgment including the evidence on record. 6. The fact leading to the case is that, on 28.3.2011, Mr. G.M. Hazarika, Additional Deputy Commissioner, Sivasagar, lodged an FIR with the Sivasagar Police Station, alleging therein that on receipt of reliable information, as to corrupt practices indulged in passing nil-bill of school teachers, Executive Magistrate, Sri Ankur Bhorali was asked to keep vigil in the bill scrutiny room of the Office of the Deputy Commissioner, Sivasagar. At about 3:30 p.m. the accused-appellant Sri Rubul Gogoi, Audit Officer, Local Fund, was caught red-handed while receiving illegal gratification of Rs. 1,000 from Assistant Teacher of Kalugaon Girls ME School, Sri Pranab Jyoti Bhorali. 7. At about 3:30 p.m. the accused-appellant Sri Rubul Gogoi, Audit Officer, Local Fund, was caught red-handed while receiving illegal gratification of Rs. 1,000 from Assistant Teacher of Kalugaon Girls ME School, Sri Pranab Jyoti Bhorali. 7. On receipt of such information, Sivasagar Police Station registered a case, being No. 79/2001, investigated into it, and after completion of the investigation, laid charge sheet against the accused-appellants of both the aforesaid appeals. During investigation, the accused-appellants were arrested and they were sent to judicial custody. 8. After exhausting all the required legal formalities, charge was framed against the accused-appellant, Sri Rubul Gogoi, under section 7 of the PC Act and against accused-appellant, Sri Pranab Jyoti Bhorali under section 12 of the said Act. 9. The prosecution examined as many as 8 witnesses. 4 witnesses were examined by court as court witnesses. 10. After closure of the prosecution evidence, statements of both the accused-appellants were recorded under section 313 of the Cr PC and in their such statements, they were heard denying the allegations made against them. 11. Now, on the basis of the allegations as well as the evidence on record, this court is called upon to decide whether accused-appellant, Sri Rubul Gogoi, being the Audit Officer of the Local Fund, Sivasagar, accepted illegal gratification of Rs. 1,000 from accused- appellant Sri Pranab Jyoti Bhorali for passing his arrear bill and thereby committed an offence under section 7 of the PC Act and, whether accused-appellant, Sri Pranab Jyoti Bhorali, being Assistant Teacher, abetted the Audit Officer/appellant Rubul Gogoi, to receive illegal gratification of Rs. 1,000 as reward for passing his arrear nil-bill and thereby committed an offence punishable under section 12 of the PC Act. 12. I have meticulously examined the evidence on record. 13. The evidence of PW-1, who was an Extra Assistant Commissioner in the Office of the Deputy Commissioner, Sivasagar, is heard saying in his evidence that at the instance of Additional Deputy Commissioner, Sri G.M. Hazarika, he was keeping vigil on accused-appellant, Sri Rubul Gogoi as there was an allegation of taking gratification by him for passing nil-bill of teachers. While keeping vigil, he found the accused-appellant, Sri Pranab Jyoti Bhorali paid an amount of Rs. 1,000 in 10 rupee denomination notes for favouring him with passing of his arrear nil-bill. He caught accused-appellant, Rubul Gogoi red-handed. The accused-appellant, Rubul Gogoi confessed before him and prayed for mercy. While keeping vigil, he found the accused-appellant, Sri Pranab Jyoti Bhorali paid an amount of Rs. 1,000 in 10 rupee denomination notes for favouring him with passing of his arrear nil-bill. He caught accused-appellant, Rubul Gogoi red-handed. The accused-appellant, Rubul Gogoi confessed before him and prayed for mercy. Thereafter, he took both the accused-appellants to the aforesaid Additional Deputy Commissioner, Sri G.M. Hazarika, who is examined by the prosecution as PW-3, and thereafter, police arrived at the place and the bundle of currency notes was seized from the possession of the accused-appellant, Rubul Gogoi. The FIR was lodged by PW-3 vide Ext.1. 14. The evidence of PW-3 makes it appear that the accused-appellant, Pranab Jyoti Bhorali gave the amount of Rs. 1,000 to the accused-appellant, Rubul Gogoi for passing his bills, and at that point of time, he was caught red-handed by PW-1. 15. The evidence of PW6, who is the Investigating Officer of the case, shows that the money which is claimed to have been used in gratification was seized on being produced by PW-3 and not from the possession of the accused-appellant, Rubul Gogoi meaning thereby that the seized money which was allegedly given as bribe by the accused-appellant, Pranab Jyoti Bhorali to the accused-appellant, Rubul Gogoi was not seized from the possession of the accused-appellant, Rubul Gogoi and rather, it was seized from the possession of PW-3, Sri G.M. Hazarika. 16. On meticulous examination of the evidence of all the witnesses, it does not appear that there is any evidence of demand of gratification by the accused-appellant, Rubul Gogoi and acceptance thereof has also not been proved, as indicated above. 17. The learned counsel for the appellant has referred to the decision of the Hon'ble Supreme Court in the case of V. Sejappa v. State by Police Inspector Lokayukta, Chitradurga, (2016) 12 SCC 150 , particularly, paragraphs 10 and 18 thereof. Both the paragraphs of the aforesaid decision are quoted below for proper understanding of the matter at hand. "10. In order to constitute an offence under section 7 of the Prevention of Corruption Act, 'proof of demand' is a sine quo non. This has been affirmed in several judgments including a recent judgment of this court in B. Jayaraj v. State of Andhra Pradesh, (2014) 13 SCC 55 , wherein this court held as under: 7. "10. In order to constitute an offence under section 7 of the Prevention of Corruption Act, 'proof of demand' is a sine quo non. This has been affirmed in several judgments including a recent judgment of this court in B. Jayaraj v. State of Andhra Pradesh, (2014) 13 SCC 55 , wherein this court held as under: 7. Insofar as the offence under section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. (2010) 15 SCC 1 and C.M. Girish Babu v. CBI, (2009) 3 SCC 779 ." "18. It is well settled that the initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the accused and a presumption would arise under section 20 of the Prevention of Corruption Act. In the case at hand, all that is established by the prosecution was the recovery of money from the appellant and mere recovery of money was not enough to draw the presumption under section 20 of the Act." 18. The Hon'ble Supreme Court has categorically laid down that it is a settled position of law that demand of illegal gratification is sine qua non to constitute the offence under section 7 of the PC Act and mere recovery of currency notes cannot constitute offence under section 7 of the PC Act unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money as gratification. The Hon'ble Supreme Court further held in the said decision that it is the burden of the prosecution to prove that the accused accepted or obtained the amount other than legal remuneration. 19. The Hon'ble Supreme Court further held in the said decision that it is the burden of the prosecution to prove that the accused accepted or obtained the amount other than legal remuneration. 19. In view of the above position, settled by the Hon'ble Supreme Court, it is the burden upon the prosecution to establish that the gratification was demanded and accepted by the accused-appellant, which burden the prosecution has not been able to discharge in the instant case as the person from whom the gratification was demanded also faced the trial in the same case and in his statement under section 313 of the Cr.PC he is heard denying the allegations of gratification by him to the accused-appellant, Rubul Gogoi. Since, such statement is made by the accused-appellant Pranab Jyoti Bhorali under section 313 of the Cr.PC this court visited the entire evidence on record to find out whether there is any evidence led by the prosecution as to the gratification alleged by the prosecution, its demand and acceptance. But, none of the witnesses are found leading evidence to the effect that they saw the accused-appellant, Rubul Gogoi demanding and accepting or obtaining gratification from the accused-appellant, Pranab Jyoti Bhorali. Therefore, the prosecution failed to discharge its initial burden regarding demand and acceptance of illegal gratification and consequently failed to prove the offence against the accused-appellant, Rubul Gogoi under section 7 of the PC Act. 20. This being the position in respect of the accused-appellant, Rubul Gogoi, the question of abating the offence under section 7 of the PC Act by the accused-appellant, Pranab Jyoti Bhorali to rope him in for commission of an offence under section 12 of the said Act cannot be said to have been proved by the prosecution because section 12 of the PC Act provides punishment for abetment of an offence defined under sections 7 and 11 of the said Act. When the accusation under section 7 of the PC Act fails, the accusation in respect of the co-accused for abetting such offence also fails. 21. When the accusation under section 7 of the PC Act fails, the accusation in respect of the co-accused for abetting such offence also fails. 21. In view of the above discussions on the evidence on record, and the findings recorded during the discussions coupled with the decisions of the Hon'ble Supreme Court, referred to above, this court has no hesitation to hold that the judgment of the learned trial court, convicting both the accused-appellants, is not based on evidence on record necessitate; interference by this court. 22. In view of the above, both the appeals are allowed and the judgment of the learned trial court of Special Judge, Assam, Guwahati, passed in special Case No. 4/2008, dated 28.10.2011, is set aside. 23. Send down the LCR along with a Copy of the judgment.