Decided on August 11,1966

Dayaram Phukan And Anr. Appellant
STATE Respondents


C.S. Nayudu, J. - (1.) THESE two appeals are connected, in that they relate to the same transaction on which the prosecution relied to prove the charges against the appellant, herein - after referred .to as the accused. The appellant in Criminal Appeal 64 of 1964 is one Dayaram Phukan, who is an Assistant Inspector of Excise. He was charged with abetting accused Santi Ram Nath, Inspector of Excise, a publics servant, in the commission of an offence punishable under Section 161 of the Indian Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 as amended in 1958. Santi Ram Nath was also an accused in the case of Dayaram Phukan, appellant in Criminal Appeal No. 64 of 1964, both the persons having been tried together. The accused in Criminal Appeal No. 67 of 1964 is one Ramesh Chandra Deb and he was charged with abetting the public servant Santi Ram Nath, Inspector of Excise, in the commission of an offence punishable under Section 181, Indian Penal Code, thereby committing an offence punishable under Section 165A of the Indian Penal Code.
(2.) IT may be stated at the outset that the charges framed against these two accused persons are hopelessly defective and do not convey any information to the accused persons as to the nature of the abetment committed and as to the nature of the offence that they are said to have abetted. There is nothing to show what that offence is and how that offence was committed, the commission of which they are said to have abetted. The charges are of the vaguest description possible. But what is common to both the charges is that both the accused persons are said to have committed abetment in respect of Santi Ram Nath, Inspector of Excise, who was also tried along with accused Dayaram Phukan, by the Special Judge, Now gong. The two cases were the subject matter of two separate trials before the Special Judge and the learned Special Judge in Special Case No. 2 of 1982 acquitted accused Santi Ram Nath of the charge against him, the charge being that he accepted illegal gratification of Rs. 100/ - from one Ramesh Chandra Deb, the accused in Criminal Appeal No. 67 of 1964, and secondly that he also committed the offence of criminal misconduct within the meaning of the Prevention of Corruption Act. This Santi Ram Nath, was on trial acquitted of the charge" of having taken illegal gratification and also of having committed any criminal misconduct within the meaning of the Prevention of Corruption Act. It must, therefore, be assumed for the purposes of these appeals that Santi Ram Nath did not receive any illegal gratification its alleged against him, This being the case, it is cot understood how the accused Dayaram Phukan in Criminal Appeal No. 64 and the accused Ramesh Chandra Deb in Criminal Appeal No. 67 could ever have been found guilty of abetment. In, the instant case, although the charges did not disclose what was the nature of the abutment that was being alleged against the two accused persons, it is clear from the prosecution case that these two accused persons attempted to aid and assist the acquitted accused Santi Ram Nath to receive an illegal gratification of Rs. 100/ -. Unless the illegal gratification is received how can anybody be said p have aided the receipt of the gratification, Before the charge of aiding can be said to have peen brought home against the accused persons, lit must be established that the principal person, namely Santi Ram Nath, had in fact committed the offence which was sought to be aided by these two accused persons. The whole matter seems to have been completely misunderstood by the learned Special fudge when having acquitted Santi Ram Nath or the charge, he proceeded to convict the other two accused for abetting the offence of illegal gratification by aiding, It is unnecessary to examine the matter from first principles or from the interpretations of toe sections as the whole matter has been Considered by their Lordships of the Supreme Court in more or less an exactly similar case, in the case of Faguna Kanta Nath v. : 1959CriLJ917 . In that the appellant before their Lordships was tried for an offence under Section 165A of the Indian Penal Code for having abetted one Khalilur Rahman in the commission of an of -fence by the latter under Section 161 of the Indian Penal Code. Both the appellant and Khalilur Rahman were convicted of the offence with which they were' charged and sentenced to one year's rigorous imprisonment. But on appeal, the High Court acquitted Khalilur Rahman but maintained the conviction and sentence of the appellant. The complainant in that case, Narendra Nath Brahma was taking two carts carrying paddy for sale to Billashipara bazar along the path which runs by the side of the river Gauranga. When he had gone only a short distance, he was stopped by the paddy -checking Inspector, Khalilur Rahman, who was accompanied by the appellant and three others, Khalilur Rahman demanded Rs. 200 as bribe and threatened the complainant that unless the amount demanded was paid his cart and paddy would be seized. In this he was supported by the appellant and three others. The complainant expressed his inability to give that much amount but ultimately he agreed to pay Rs. 150/ -. He borrowed Rs. 100 from one Surajmal Oswal out of whether he offered Rs. 80/ - to Khalilur Rahman who asked him to hand them over to the appellant who counted the money and made it over to Khalilur Rahman. The complainant was also forced to execute a promissory note for a Sum of Rs. 70/ - in favour of the appellant and he promised that the money would be paid. The complainant learnt later in the bazar that another person who was in a similar position, like him was let off with only Rs. 15/ -, and he came back to the appellant for the refund of his money and the return of his promissory note. On refusal, the complainant presented a written complaint to the Deputy Commissioner which resulted in Khalilur Rahman and the appellant being prosecuted, the former under Section 161 of the Indian Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 (Act 2 of 1947) and the latter under Section 165 -A of the Indian Penal Code and they were convicted and sentenced by the Special Judge as already stated. In that case, the main argument raised on behalf of the appellant was that as Khalilur Rahman had been convicted on the facts and circumstances of the case, the conviction of the appellant for abetment cannot be sustained. As in this case, it was not suggested in the case before their Lordships that there was any instigation by the appellant for the commission of the offence nor was there any suggestion or proof of any conspiracy. The case of the prosecution was that the abetment committed by the appellant in that case was that by aiding. A person abets by aiding when by the commission he intends to facilitate and does facilitate the commission thereof, By the Acquittal of Khalilur Rahman in that case, the High Court must be deemed to have held that there was no offence under Section 161. That being the case, their Lordships observed that there could be no question of intentionally aiding by any act or omission the commission of the offence. This decision is on all fours with the present case and following the same, I hold that the conviction of the appellant in both the appeals is clearly unsustainable in law in view of the acquittal of the principal accused Santi Ram Nath, the Inspector of Excise. There is also another point which requires to be noticed in these appeals. The case of the appellant Ramesh Chandra Deb appear to be that the amount was intended to be given towards the compounding fee for compounding the offence of which the Excise Officer was charging him. If would appear that this offence was compoundable earlier and that it is only recently that there has been a change in the law by which this offence has been made non -compoundable, There is an element of genuine doubt for assuming that appellant Ramesh Chandra Deb in fact offered a sum of Rs. 100 to Santi Ram Nath as the compounding fee, this is a circumstance which throws doubt on the prosecution case that Ramesh Chandra Deb intended to pay this money as illegal gratification, a conclusion which is reinforced by the fact that Santi Ram Nath, who is supposed to have received the money, has been acquitted. I feel that this is a case where the benefit of doubt should be given to both the accused persons and for that reason also, the appellants in my opinion, are entitled to an acquittal.
(3.) IN the result, these appeals, are allows and the conviction and sentence against the appellants are set aside. The accused appellants are discharged from their bail bonds which are hereby cancelled.;

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