RAGHUBIR PRASAD Vs. THE STATE

JUDGEMENT

(1.) THIS is an appeal against the judgment of the Special Judge of Puri convicting the Appellant under Section 161 I.P.C. and sentencing him to rigorous imprisonment for one year.

(2.) THE prosecution case was that the Appellant was working as Assistant Yard -Master at the goods -shed of Cuttack Railway station in October, 1951. There were some complaints from the merchants of Cuttack to the effect that he was demanding illegal gratification for placing the goods wagons of the merchants at convenient sidings. One Upendra Khuntia. (P.W. 1) who is a contractor attached to the goods -shed had made a complaint to the superior railway authorities on the 7th June, 1951 against the conduct of the Appellant. Apparently some enquiries were made by the railway authorities but no drastic action was taken. On the 11th October, 1951 one M.H. Rahman (P.W. 10) who was then working as Inspector, Special Police Establishment, Puri, came to Cuttack and contacted Upendra Khuntia and the two agreed that a trap should he laid on the next -day for the purpose of catching the Appellant while he was in the act of receiving illegal gratification from Upendra Khuntia. Upendra Khuntia had told this officer that eleven coal wagons of his had been placed at proper places in the goods -shed by the Appellant who was demanding Rs. 20/ - from him as gratification for that purpose. Then the police officer after obtaining the order of the Sub -Divisional Magistrate Cuttack, to investigate the case took the help of another 1st class Magistrate named Narayan Mohapatra (P.W. 11) for the purpose of laying a trap. Upendra Khuntia met the Magistrate at about 7 A.M. on 15 -10 -51 at the District Board Dak Bungalow near the railway station and the Magistrate handed over to him two ten -rupee currency notes after noting down their numbers with instructions to after the same as bribe to the Appellant in the presence of witnesses. It was arranged that Magistrate and the Police party should remain at some distance from the goods -shed near the railway level crossing and that on noticing a pre -arranged signal they should at once proceed towards the goods -shed and search the Appellant. The pre -arranged signal was the smoking of a cigarette by Upendra Khuntia. Accordingly the Magistrate and the police party remained close to the railway level -crossing and Upendra Khuntia proceeded towards the goods -shed along with the railway line. It was about 8 A.M. at that time and the Appellant was then engaged in shunting wagons the dock -yard. On seeing Upendra the Appellant was said to have demanded the bribe as arranged on the previous day between the two and thereupon Upendra Khuntia handed over the two currency notes which the Appellant put into his pocket. One Lokanath Mulia (P.W. 2) was said to have accompanied Upendra Khuntia at the time of giving of the bribe and to have left the place soon afterwards. Having thus given the bribe to the Appellant Upendra handed over a cigarette to the Appellant and smoked one himself. The Magistrate and the police party noticed the signal and at once rushed to line spot and questioned thee Appellant about the Currency notes he had received from Upendra Khuntia, After some prevarication the Appellant produced the currency notes (M.Os. III and IV) and handed them over to the Magistrate. At the time of handing over the currency notes the Appellant was said to have told the Magistrate that he had taken the same by way of loan from Upendra Khuntia. The usual search list for the recovery of the currency notes was prepared and after obtaining sanction of the superior railway authorities the Appellant was placed on trial and convicted and sentenced as stated above.

(3.) AS the recovery of the currency notes from the person of the Appellant has been established beyond doubt, the main question for consideration is whether the notes were accepted by the Appellant from Upendra Khuntia by way of bribe for having placed his wagons a convenient sidings on the previous day or else whether they were accepted merely by way of loan as stated by the Appellant as soon as he was accosted by the Magistrate. Doubtless, Upendra Khuntia has sated that when he approached the Appellant the latter demanded the bribe agreed upon on the previous day. But his evidence can hardly be accepted without adequate corroboration. He went there as a trap witness engaged by the Police to entangle the Appellant. Doubtless, he may nab be an accomplice to the commission of the offence under Section 161 I.P.C. by the Appellant in view of the observations of the Supreme Court in Shiv Bahadur Singh v. State of Vindh. Pra. : A.I.R. 1954 S.C. 322 at 327 where it was pointed out that a trap witness being not a willing party to the giving of the bribe and being actuated with the motive of entrapping the public servant is not in law an accomplice. Hence, his evidence may nab require corroboration by virtue of the provisions of Section 114 of the Evidence Act. But it was also pointed out in that decision that as a trap witness was admittedly a partisan witness his evidence might require corroboration according to the facts of each case. Here, on the finding of the learned lower court P.W. 1 is not very reliable and his evidence cannot be accepted without adequate corroboration. He had a previous grudge against the Appellant as proved by the admissions made by him. There are also other unsatisfactory features in his evidence which have been referred to by the learned lower court. But the court thought that the evidence of P.W. 2 was reliable and that it afforded the best corroboration of the evidence of P.W. 1 regarding the circumstances under which the currency notes were handed over to the Appellant. This witness is a Gumasta of another merchant of Cuttack. He admitted that on previous occasions the Appellant had misplaced the wagons of his master with a view to harass him. Hence, it cannot be said that be was a wholly disinterested witness. There may be some motive for him to join with Upendra Khuntia in attempting to put the Appellant into trouble because they both thought that the Appellant had harassed them on previous occasions. Apart from this circumstance, his sudden disappearance from the spot as soon as the signal was given is mysterious and unexplained. If he was really present at the time of the giving of the bribe he would have remained there till the arrival of the Magistrate and the Police party soon afterwards. On the other hand, the evidence of the Magistrate is to the effect that when he hurried to the spot on noticing the pre -arranged signal there was nobody there except P.W. 1, P.W. 2 was sent for and be came there half an hour later. This sudden disappearance has not been satisfactorily explained. According to the Police Inspector (P.W. 10), clear instructions were give to Upendra Khuntia to have a witness by his side while offering the bribe to the Appellant. Upendra Khuntia has stated that is was in pursuance of these instructions that he took Lokanath Mulia (P.W. 2) with him to the goods -shed and kept him by his side while offering the bribe. Thus if the services of Lokanath Mulia had been specially requisitioned for the purpose of being II witness to the giving of the bribe it is indeed strange that be should nab be present there when the Magistrate ruled to the spot as soon as the offence was complete. Moreover; the place from where the Magistrate and the Police party were lying in wait was not far away from the place where the bribe was said to have been given and it has been admitted by P.W. 1 that the two places were visible to each other. Hence, if Lokanath Mulia was really present at the spot by the side of Upendra Khuntia the Magistrate would have noticed him. At any rate, in the absence of any independent evidence to show that Lokanath was at the spot at the time of giving the bribe I would not plane much reliance on his testimony. He seems to be practically another partisan witness who was specially selected for the purpose of assisting Upendra in lying a trap. His evidence cannot, therefore, be said to be of such a superior calibre as to afford independent corroboration of the evidence of P.W. 1. In fact, the Police Inspector (P.W. 10) in an unguarded moment in cross -examination practically admitted that thought he tried for a disinterested witness to attend the bribe giving he was not successful. The implication of this answer is obvious. The Police were unable to secure the services of a disinterested witness who would accompany Upendra Khuntia for the purpose of witnessing the offer of the bribe. Therefore, they left it to him to choose any witness he liked for that purpose and he chose Lokanath who was practically in the same position as himself. Hence, I would not accept the evidence of Lokanath as corroborative of the evidence of P.W. 1 on the essential question as to whether the money was given to the Appellant as a bribe.