P L D 1966 Dacca 269 (PLP)

"Another point which has been raised by the learned counsel for the petitioner is that since the principal offender Yar Muhammad has been acquitted, the conviction of the petitioner for the abetment of the offence cannot be maintained. This contention is not without force. The substantive offence under section 380, P. P. C. was undoubtedly committed but in view of the acquittal of Yar Muhammad, it cannot be held with certainty that the theft had been committed in conse quence of the abetment by the petitioner. It is true that the offence of abetment is a distinct offence, and does not depend upon the actual commission of the crime abetted, but in the circumstances of the present case, I have grave doubts if the conviction of the petitioner under section 380/109, P. P. C. can be upheld. I would, however, like to add that I am not laying down a general rule that in no case an abettor of an offence can be convicted if the principal is acquitted of the substantive offence. There may be a case where an abettor on his own confession or on his plea of guilty to the charge may be convicted of the offence of abetment though the evidence may be insufficient to establish the substantive offence against the principal. Yet another type of such a case may be found, where the Appellate Court may find that the substantive offence had been committed by some unknown person or persons in consequence of the abetment by the culprit." In the decision in Grandhe Sarabhayya and others (A I R 1943 Mad. 408), Horwill, J. observed:‑‑ "The admission of accused 2 in his statement that the document was drawn up by accused 3 at the joint request of himself and P. W. 1 is therefore evidence that accused 2 abetted what has been found to be the forging of the document. It does not follow that because the principal is acquitted no person can be punished for abetment. In the case of Umadasi Dasi v. The King Emperor, (28 C W N 1046) there Lordships of the Culcutta High Court held that it cannot be laid down as a general rule that an abettor if charged with having abetted the principal in the commission of an offence must be acquitted if the principal is acquitted. On the facts of that case, however, the conviction of the appellant and the sentence passed on him on the charge of having abetted the commission of murder by the principal, who had been acquitted, were set aside. It is thus clear from the above authorities that it cannot be laid down as a general rule that in no case can an abettor of an offence be convicted if the principal is acquitted of the substantive offence inasmuch as there may be a case where an abettor on his own confession or plea of guilty to the charge may be convicted of the offence of abetment although the principal is acquitted for insufficient evidence. Another type of such case may be where it is held by the Appellate Court that the substantive offence was committed by an unknown person or persons is consequence of abetment of the culprit. In the instant case, appellant neither made any confession nor pleaded guilty to the charges of abetment. It will, however be presently seen that the substantive offences as alleged by the prosecution were actually committed. Since accused Abdul Jalil Khan who was charged with the substantive offences has been acquitted, it follows that those offences were committed by some unknown person or persons. Thus there is no bar to the conviction of the appellant for abetment provided that it is established as a fact beyond reasonable doubt that offences were committed and that they were committed in consequence of his abetment. The conviction of the appellant has been based mainly on the evidence of P. Ws. 1 to 9 and

21. P. W. 1 Md. Alam, P. W. 2 Darajuddin alias Danu, P. W. 3 Abdul Karim Bhuiya and P. W. 4 Md. Hafezuddin Bhuiya are four of the five persons whose names appear as loanees in the loan bond No. 74 dated 24‑5‑61, Exh.

4. The sum and substance of their evidence is that in May, 1961 they did not receive any urea from the Thana Agricultural Officer, that they never approached the latter for such manure, that they did not receive any urea from the Thana Agricultural Officer, that they never approached the latter for such manure, that they did not put any thumb impression in any application form and that the thumb impres sions purporting to have been put by them in Exh. 4 are not theirs. P. Ws. 1 and 3 have further armed that they can sign their names. P. W. 4 is an educated man having passed I. Com. Examination and he is also a Homeopath. The evidence of the Finger Print Expert P. W. 13 Shamim Reza also lends support to the contention that the impugned thumb impressions including that of appellant Shama alias Jinnat Ali are forged. This fact has not been challenged by either side in this appeal. P. W. 5 Abdul Majeed, who was the Thana Agricultural Officer at Raipura in 1961 and P. W. 6 Md. Babru Mia, who was the Union Agricultural Assistant attached to Belabo Union under the Raipura T. A. O's office, have deposed in substance to the effect that on 24‑5‑61 when P. W. 6 was in the office the appellant with the Loan Bond Exh. 4 and got the names and father's names of the loanees as also a certificate written by P. W. 6 which was signed by accused Abdul Jalil Khan, the certificate having been given to the effect that the loanees put their thumb impressions in his presence. Abdul Jalil Khan produced the appellant and four other persons representing them to be loanees and identified them as such before P. W. 5, the Thana Agricultural Officer. Thereafter P. W. 5 signed the Loan Bond and delivered it to accused Abdul Jalil to go with it to the store‑keeper P. W. 21 Abdul Gani for taking delivery of the urea. P. Ws. 8 and 9 who were a Koyal and a Cooly respectively attached to Raipura Agricultural Seed Store, and P. W. 21, the store‑keeper testified to the effect that on 24‑5‑61, that is, on that very day, the appellant and the other accused came to the store‑keeper and took delivery of 100 maunds of urea in 142 bags worth Rs. 1,050 and deposited the same in the godown of P. W. 7 Nityananda Saba alias Motilal Saba which had been hired earlier by appellant Shama after negotia tion by accused Abdul Jalil. The evidence of P. W. 7 is that the appellant hired his godown at Rs. 96 per month for storing manure and that 2/4 days prior to that accused Abdul Jalil Khan approached him for the purpose, and he agreed to let out the godown to them. He has further stated that the manure was kept in his godown for about a month by the appellant. The credibility or acceptability of the evidence referred to above will depend on whether it bears scrutiny or not. The evidence of P. Ws. 1 to 4 not having been seriously challenged and it having been admitted on all hands that the thumb impressions purported to have been put by them in the Loan Bond Exh. 4 are forged, it is not necessary to subject their evidence to any further scrutiny. It has been proved by evidence already referred to that the thumb impression purporting to be of appellant Shama is also forged. According to the prosecution, accused Abdul Jalilp Khan forged the Loan Bond and in that act he was abetted, by appellant Shama. It is to be borne in mind that Abdul Jalil Khan has already been acquitted of the charge of forgery. P. W. 5 at first stated in his evidence that he did not know the 5 loanees of Exh. 4 personally. Then he made further statement "I know this accused (Points to Shama) as Jinnat Ali who is an Ansar Commandar". This witness nowhere stated earlier that Shama was amongst those who were identified as the loanees by Abdul Jalil Khan. From the context of his evidence, it is quite clear that what he meant was that five strangers were identified before him as the loanees, and then he sought to improve his case by stating that he knew Shama personally. Had Abdul Jalil Khan identified the person known to him as Jinnat Ali as Shama he would have at once protested and said that that man was Jinnat Ali and not Shama but he did nothing like that. This Thana Agricultural Officer was placed under suspension and remained under suspension for six months. The defence contention that it was he who, in collusion with his subordinates and some others such as P. W. 7, forged the loan bond and diverted the manure to the shop of P. W. 7 for black-marketing may not be without foundation. This view finds support in his admission that the Sub‑Divisional Agricultural Officer got some manure at the shop of P. W. 7 although it is the prosecution case that the godown of P. W. 7 was hired for depositing urea. The evidence of P. W. 6 Md. Babru Mia, Union Agricultural Assistant, also suffers from the same defect and inconsistency as that of P. W. 5 in that he has also testified that appellant Jinnat Ali was present when accused Abdul Jalil Khan brought the loan bond to him and asked him to write the names and father's names of the loanees which he did and that at that time he did not know that another name of Jinnat Ali was Shama. If this is correct he wrote the name 'Shama Meah' of a person whom he knew to be Jinnat Ali and not Shama Meah. In that case he would have certainly protested and pointed out that Shama Meah was not there but instead Jinnat Ali represented him as Shama Meah, but this he did not do. It is also significant that this witness did ‑not tell the Investigating Officer P. W. 24 Abdul Kashem, A.

1. D. A. B. that Annat Ali was present when Abdul Jalil Khan came to him and made the request. This Union Agricultural Assistant who was subordinate of P. W. 5 was not attached to Raipura T. A. O.'s office but to Belabo Union which is 7/8 miles from Raipura. It appears to us that he being a man in the confidence of P. W. 5 was specially selected to write not only the names and father's names of the false loanees in the loan bond but also the certificate which was to be signed by the Chairman of the Union Council although he was not attached to Raipura office. This smacks of collusion between the two. The conduct of P. W. 7 Nityananda Saba was also not above board. He deposed that appellant Shama hired his godown and kept some manure in that godown for about a month, but as already observed, the manure was found by the Sub‑Divisional Agricultural Officer not in his godown but in his shop which fact indicates the truth or at least the probability of the defence suggestion that he was in collusion with P. W. 5 and some others, and was in charge of selling the manure at the black market. The evidence of P. Ws. 8; 9 and 21 relates to the alleged taking of delivery of 142 bags of urea by Abdul Jalil and the appellant from the Raipura Thana Agricultural Seed Store by cheating the Store‑keeper P. W. 21 Abdul Gani. P. W. 8 Akbar Ali has stated: "I know both the accused persons identified in dock. Both the accused persons in dock (id) came and accused Abdul Jalil Khan handed over loan bond to Store keeper Abdul Gani and on the order of Store‑keeper I delivered 142 bags of Urea to accused Jahl and Shama (id)". In cross-examination this witness has stated: "Out of Olipura Union I know only accused Abdul Jalil Khan,‑I do not know any other man of Olipura Union". Appellant Shama is a man of Olipura Union and that is why the certificate in Exh. 4 was required from the Chairman of the said Union Abdul Jalil Khan. The evi dence of this witness read as a whole thus leaves hardly any room for doubt that he did not know the appellant and he has spoken anything but the truth in deposing that Shama also went and took delivery of the urea. The material portion of the evidence of P. W. 9 Abdul Hakim, the cooly, runs thus:‑- "I know both the accused persons (id in dock). On being engaged by both the accused persons (id) myself and 8/9 others carried 142 bags of manure from Govt. Godown to the Godown of Mati Lal Saba. We got payment from Shama (id)." In cross‑examination he stated: "We were shown the godown of Matilal by Shama". This witness stated to the Investigating Officer, P. W. 23 Md. Ishaque that Matilal Saba showed them the place and when he was cross‑examined on this point the witness denied having made any such statement to the Investigat ing Officer, to the disregard of truth. In any case, it is obvious that his evidence that they were shown the godown of Matilal by Shama is in direct contradiction to his earlier statement before the police where he stated that Matilal Saba showed them the place. P. W. 21 Abdul Gani, the store‑keeper at first stated that Abdul Jalil and 5 other persons came to him for taking delivery of the manure and then stated: "As five persons came with the bond, I delivered". His evidence is inconsistent with that of P. W. 8 Akbar Ali who stated that only the two accused came to take delivery of the manure and that he did not see any one else except the coolies. Further evidence of P. W. 21 is that manure delivered to the two accused and others under loan bond Exh. 4 was entered by him in the stock registers by him. Those stock registers were not produced by the prosecution. Withholding of such important documentary evidence without any explanation gives rise to a legal presumption that had it been produced it would not have shown that the appellant Shama‑and for the matter of that accused Abdul Jalil Khan also,‑received 142 bags of urea from the said store. For the reasons stated above, we are unable to accept P. Ws. 5 to 9 and 21 as witnesses of truth. It will be observed that the evidence against appellant Shama is similar to the evidence against the acquitted accused Abdul Jalil Khan with slight and negligible difference inasmuch as the same set of witnesses deposed against both of them. It follows from the above scrutiny of the evidence on record that the prosecution has failed to bring home the charges of abetment of the substantive offences by the appellant. In the circumstances, as above, we allow the appeal, set aside the conviction and sentence of the appellant and direct that he be set at liberty forthwith if not wanted in any other connection. A. K. M. BAQUER, J.‑I agree. K. B. A. Appeal allowed.