The Anti-Corruption Commission (ACC) officials are reviewing the High Court’s (HC) judgment on the desuung cases.
ACC officials said they are reviewing both the conviction and acquittal judgements but whether they would appeal on the case or not would depend on the military court’s decision.
“If the military court does not appeal, ACC will have to,” commissioner Jamtsho said.
The three benches of the HC delivered the judgment of the desuung case, acquitting 11 officers and seven non-commissioned officers (NCOs) of the Royal Bhutan Army and reducing sentences for four officers and two NCOs.
The court, in the thick volumes of judgments, explained exclusively why the particular officer or NCO is acquitted or convicted.
Bench I acquitted all five officers – Lt. Col Kinley Dorji, Major Sonam Lhagyel, Major Jurmin, Major Ugyen Nidup and Lieutenant Ugyen Dorji, and NCOs Peljab Wangchuk, Peljab Sonam Dorji, Peljab Sangay Drakpa and Peljab Tashi Phuntsho on October 30.
Bench II acquitted Major Dorji T and NCO Karsang but convicted Major Kinga Norbu, Major Sonam Tshering, Major Tshering Tobgyel, Major Ugyen Lhendup and NCOs Peljab Wangchuk and Tanka on October 26.
Bench II also acquitted all five officers and three NCOs.
Lt. Col Karma Tharchin, Lt. Col Rinzin Yeshey, Lt. Col Ugyen Norbu, Major Lingi Jamtsho and NCOs Peljab Sonam Dendup and Pelpon Zepa were acquitted on October 24.
The court also acquitted Major Sigay Tshewang and Pelpon Nima Gyeltshen in August.
The military court in Lungtenphu convicted all the officers and NCOs but the HC overturned the military court judgment by either acquitting or reducing the sentences of all involved.
Bench I of the HC stated the officers and NCOs adjusted the funds to conduct the desuung programme successfully and did not embezzle the amount.
The court also cited lack of corroborative evidence to prove that the officers and NCOs embezzled the amount besides the statements of the vendors to the ACC, which were later retracted and thereby failing to prove the embezzlement beyond a reasonable doubt.
The court also cited section 66 of the Evidence Act of Bhutan, which states, “Evidence of the habit or routine practice of a person or a corporation is relevant to prove the conduct of that person or corporation on a particular occasion was in conformity with the habit or routine practice,” to state that adjustment was a routine in the desuung training programme to give cash prizes and procure prohibited items, which were served to the guests who attended the programme.
In some summary findings, it was stated that the ACC, while conducting the investigation, did not take into account the actual realities of conducting the programme.
While some officials break down when the judges read out the judgments, relatives were seen carrying khadhars and rejoicing outside the courtroom.
An official involved told Kuensel the judgment was a relief and that they suffered for the last two years. “The judges have used their wisdom.”
In bench II, Major Dorji T and his assistant NCO Karsang were acquitted since the shopkeeper, who had stated to the ACC that he supplied goods to the officer withdrew the statements.
The court also ruled there was no corroborating evidence to prove the charges. It also ruled that there was no supporting evidence to prove shopkeeper Karna Bahadur’s statement to the ACC that he had given Nu 18,000 to Karsang.
The court stated that although the court accepted that adjustments have been regularly made in bills because restricted items had to be served, there was a difference between the adjustment claims made by Major Tshering Tobgay and the total worth of items that shopkeepers had supplied as evidenced by their record books.
In Major Sonam Tshering’s case, the court ruled that he could not prove accounts of how he adjusted Nu 218,282 for the 12th batch and Nu 159,263 for the 21st batch.
Major Ugyen Lhendup was convicted of embezzling Nu 19,457, which is a difference after tallying the bills from shopkeepers and what the defendant provided.
Major Kinga Norbu and his assistant Peljab Wangchuk were convicted of embezzling Nu 348,784 from the Pel Dechog Khorlo Wang (blessing) in Punakha and Nu 286,269 from the 18th batch of DeSuung training.
The court stated that it accepted the amount they adjusted, for instance, the adjustments made for the purchase of restricted items served during the training.
They were convicted for forgery and solicitation under Anti-Corruption Act and the Penal Code sections 302 and 126.
In bench III, the grounds for acquittal in all the cases were the same – that the prosecutor did not produce adequate evidence to convince the court to convict the accused.
The court stated that to deprive somebody’s liberty there has to be proof beyond reasonable doubt as is required to convict a person in criminal cases.
The court stated that there was no corroborative evidence to prove the charges except for the bills, some handwritten, and statements of those involved. “The prosecutor failed to prove how the accused benefited from the adjustments and where the money was used.”
Meanwhile, many, who followed the case closely, are questioning how the case with the same mode of operation could have differing judgments.
A Thimphu resident, who knows all the officers involved personally, said it was a bit confusing, as some officers who the military court convicted of embezzlement with higher amount were acquitted when some with less amounts were convicted.
Some sources said they would deduce that the conviction or acquittal would depend on the justices’ interpretation of the case.
A source, who has a legal background, questioned acquitting the officers based on section 66 of the Evidence Act, reasoning that the provision is a procedural law and not substantive law and thereby not relevant.
He also claimed that adjustment cannot be interpreted as a routine habit and that the section is not applicable in criminal cases. “I would understand if the HC gave different reasons for acquittal. Lack of equality before the law could have been one reason for the acquittal, as the superiors were not charged in the case.”
He, however, agreed that failing to prove the embezzlement beyond a reasonable doubt could be a solid ground for acquittal.
While Kuensel did not contact the HC justices, respecting the fact that judges and justices are not answerable to the judgment they render, a legal practitioner Kuensel talked to said provisions of Evidence Act like section 6 (D), section 8, section 82, 84, 85 and 88, would be applicable in acquitting the defendants.
“I don’t know if the provisions were interpreted but the law mandates such procedures and practices,” the legal practitioner said.
Another legal practitioner said the fact that justices took into account all the adjustments and gave the benefit of the doubt to the defendants prove that justice is being rendered. “Otherwise, they could have simply dismissed the case stating that it does not meet the standard of proof.”
He said that it appears all the defendants were given an opportunity to prove how they adjusted and those who are convicted could not prove where they adjusted. “I am sure the defendants would appeal.”
ACC officials, however, said the courts did not look into the details of the case, as there are elements of forgery.
Officials said that the expenditures reflected for adjustment would not go beyond Nu 56,000 to 60,000.
ACC would take a decision on whether to appeal or not today.