Criminal Appeal No.375 of 1991

6th August, 2004

Petitioner Counsel: Mr. Y. B. MANDPE
Respondent Counsel: Mr. ABHIJIT DESHPANDE

Cases Cited:
State of Maharashtra Vs. Eknath Yeshwant Pagar, AIR 1981 SC 1571 [Para 2,4]
Ex-Sepoy Hardhan Chakrabarty Vs. Union of India, AIR 1990 SC 1210 [Para 3,4]

JUDGMENT

JUDGMENT :- Heard Mr. Mandpe, learned A.P.P. for the appellant and Mr. Abhijit Deshpande, learned Advocate for Respondent No.2.

This appeal is directed against the Judgment and Order passed on 31-5-1991 by Special Judge, Amravati in Special Case No.4/1983 acquitting the respondents of offence under section 161 read with section 34 of Indian Penal Code and for offence under section 5(1)(d) punishable under section 5(2) of the Prevention of Corruption Act, 1947. It is stated by the learned counsel for Respondent No.2 that Respondent No.1 is dead. Mr. M. M. Agrawal was appearing in this appeal for Respondent No.1. He has filed a pursis on 9-10-1997 informing that Respondent No.1 died on 20-2-1995. The learned A.P.P. has not disputed that Respondent No.1 died during the pendency of this appeal. In this view of the matter, the appeal against Respondent No.1 stands abated.

2. Learned counsel for Respondent No.2 stated that deceased Respondent No.1 was the main accused and the second respondent was merely made accused on the basis of section 34 of Indian Penal Code. Both the accused were acquitted by the trial court of the offences with which they were charged. The learned counsel therefore, submitted that since the appeal abates against the first respondent on account of his death and second respondent has already been acquitted the appeal against the Respondent No.2 becomes infructuous. To substantiate his contention, he placed reliance on decision of Apex Court in AIR 1981 SC 1571, State of Maharashtra Vs. Eknath Yeshwant Pagar & Anr. In that case two accused were acquitted by the High Court. Their acquittal was challenged before the Apex Court. But during the pendency of the appeal the main accused died and as a consequence of that appeal against him stood abated. The Apex Court held that since the appeal against the main accused stood abated and the second accused was already acquitted, the appeal against the second respondent becomes infructuous. Consequently the Apex Court accordingly disposed of the appeal.

3. The Apex Court in AIR 1990 SC 1210, Ex-Sepoy Hardhan Chakrabarty Vs. Union of India, held that when principal offender is acquitted, the accused person who is charged with offence of abetment of conspiracy of commission of offence of theft by the principal offender, has to be acquitted. In other words when principal offender is acquitted, a person who is charged as abettor cannot be convicted. The accusations against the abettor, when principal offender is acquitted of the charge, becomes infructuous.

4. In the case at hand both the respondents were tried on the allegations that they in furtherance of their common intention had accepted illegal gratification as public servant from the complainant than legal remuneration in respect of official act and that both had obtained pecuniary advantage from the complainant by corrupt means, abusing the position of public servant. The trial court while acquitting both the respondents held that the prosecution failed to prove that the accused persons accepted illegal gratification as public servants as also they obtained pecuniary advantage by corrupt means abusing the position of public servants. The trial court also found that the sanction accorded by the Collector to prosecute the accused persons was neither legal nor valid. It was the case of the prosecution that Respondent No.1 in his capacity as public servant as Clerk in Revenue Department accepted illegal gratification from complainant and handed over the amount to Accused No.2 who was employee on contract basis as assistant to Accused No.1. As such trial court found that Accused No.2 was not a public servant. Having regard to the accusation against the respondents, it is crystal clear that the Respondent No.1 [Original Accused No.1] was the main accused and Respondent No.2 was joined as accused, only on the basis of the allegations that the Respondent No.2 received amount from Respondent No.1, his involvement was therefore, only on the basis of provision contained under section 34 of I.P.C. It is not disputed that and that is also in conformity with law laid down by the Apex Court in AIR 1981 SC 1571 (supra) that the appeal against the Respondent No.1 is abated as he died. When both the accused were acquitted by the trial court and as the appeal against the main accused - Respondent No.1 stood abated meaning thereby his acquittal by the trial court is confirmed, the acquittal of Respondent No.2 has to be confirmed. In fact the appeal against him becomes infructuous. Here again on same analogy as laid down by the Apex Court in AIR 1990 SC 1210 when principal offender is acquitted, other accused who is roped in by the force of section 34 of I.P.C. and who has been also acquitted by the trial court, cannot be convicted. Hence the appeal as against Respondent No.2 has to be disposed of as having become infructuous. Hence the order.ORDER

5. Appeal is accordingly disposed of.

Order accordingly.