STATE Vs. BASHAMBER DAYAL

JUDGEMENT

(1.) THIS is an appeal by the State against the order of S. Jawala Nath, Magistrate 1st Class, Sangrur, acquitting the respondents M. Bishamba'r Dayal and Parma Nand of the charge of taking illegal gratification. The prosecution case against them briefly summarised was as follows:

(2.) ON the death of one Pakhar Singh of village Nagra, his adopted son Atma Singh claimed to succeed to his property. On the other hand, a similar claim was advanced by the collaterals of the deceased. Mutation of the estate left by Pakhar Singh had been entered in the mutation register at No. 1608, but no final order on it had been passed for about two years after the death of the last owner. M. Bishambar Dayal was a Naib Tehsildar and Parma Nand a field Qanungo in. Tehsil Sangrur. It was stated that they asked Mukand Singh, natural father of Atma Singh, to pay them Rs. 300/ - on receipt of which he was assured that the mutation would be sanctioned in Atma Singh's name. About a fortnight before 7 -2 -1950, Luchhman Dass Patwari Halqa Nagra (Tehsil Sangrur) went to see S. Balindar Singh, Assistant Commissioner, in connection with his transfer. During the course of the talk with him S. Balindar Singh enquired as to how things wore going on in his Circle. Lachhman Dass replied that the accused were in the habit of accepting bribes. S. Balindar Singh asked him to give him a concrete case. On 4 -2 -1950, M. Bishambar Dayal and Parma, Nand went to Nagra in connection with the attestation of mutations. On the morning of 5 -2 -1950 M. Bishambar Dayal asked Lachhman Dass to call Mukand Singh from his village Kamalpur, so that the mutation, relating to the succession of Pakhar Singh could be decided. Lachhman Dass brought Mukand Singh with him to Nagra at about noon. Mukand Singh went up to the Chaubara in which the Naib .Tehsildar was busy with official work and it is alleged that the Naib Tehsildar took him aside and settled the bargain at Rs. 300/ -. Mukand Singh promised to pay that amount at Sangrur on 7 -2 -1950. On meeting Lachhman Dass after interviewing the Naib Tehsildar, he informed him of his talk with M. Bishambar Dayal and further told him that out of Rs. 300/ - Rs. 200/ - would be the share of the Naib Tehsildar and the balance, viz. Rs. 100/ - that of the Qanungo. Lachhman Dass asked Mukand Singh to go and see S. Balindar Singh on 6 -2 -50. Mukand Singh went to the house of S. Balindar Singh at Sangrur and told him that he had been sent by Lachhman Dass and also informed him of what had been settled by him with the accused. S. Balindar Singh asked him to bring the money to him and not to pay it to them. On the next day, i.e., 7 -2 -1950 Lachhman Dass accompanied by Mukand Singh went to the Court of S. Balindar Singh who was officiating as District Magistrate. S. Balindar Singh told Lachhman Dass to meet him at his house at 1 P.M. Both Lachhman Dass and Mukand Singh went to S. Balindar Singh at the appointed time and Mukand Singh made over to him three G.C. Notes of the value of Rs. 100/ - each. S. Balindar Singh took those notes to Major Harpal Singh, Superintendent of Police, Sangrur, and repeated to him the information given by Mukand Singh. S. Harpal Singh after taking down the numbers of the G.C. notes on a chit (Ex. P. B) and putting his initials on them returned them to S. Balindar Singh. The G.C. notes bore the following Nos.:

(3.) THE trial Magistrate has discarded the evidence of Mukand Singh and Lachhman Dass as being that of decoy witnesses who are of the type of accomplices. According to him their testimony cannot be relied upon without independent corroborative evidence. The trial Magistrate has not accepted the evidence of S. Balindar Singh and S. Harpal Singh as corroborative, because they were the trap lagers and consequently interested in the success of the trap. The view taken of these four witnesses' evidence does not appear to me to be sustainable. A distinction has to be drawn between' an Accomplice and a decoy witness, the former being a person who joins another with the intention of aiding the commission of an offence and the latter who is instrumental in provoking the commission of the offence with the object of discovering the offence and detecting the offender. If the object of the giver of the bribe in passing on the bribe to the person who is induced to do favour or secure favour for him, is to gain benefit by that bribe he would evidently fall within the category of persons who associate themselves with the perpetrators of the crime for the purpose of perpetrating the crime. But if he acts only as an agent of the prosecution for detecting a crime he would not be an accomplice for he lacks the necessary mens rea that would make him an offender or participator in a crime. The definition of the word 'accomplice' is not available in the Evidence Act nor in any other enactment. In Wharton's Law Lexicon, 14th Edition, however it has been described to mean one concerned with another or others in the commission of a crime. The word 'accomplice' in my view is interchangeable with an associate in crime who is consciously so connected with the criminal act done by his confederate, that he on account of the presence of the necessary 'mens rea' and his participation in the crime in some way or the other can be tried along with that confederate actually perpetrating the crime. A decoy witness is thus not always or necessarily an accomplice. He would be an accomplice if he induces the acceptor of the bribe to do an act for him or to show him some concession or favour on receipt of the bribe. He would fall out of the accomplice class if his intention is not to secure any benefit for himself by offering the bribe, but to have the offender disclosed and brought to book. To decide whether a person is or is not an accomplice the facts of each particular case have to be borne in mind. The nature of the offence committed has also to be taken into consideration. If a person becomes a spy or a detective of the police or any other authority in the discovery of the crime and the punishment of the offender, he would not be an accomplice in the sense the word is used in legal terminology, even though he may have played an important role as an abettor technically. In every case, it is the mens rea of the witness that would decide his role. In - Emperor v. Chatur Bhuj Sahu, 38 Cal 96 (A), a Division Bench consisting of Holm Wood and Doss JJ. after reviewing the case law on the subject held that