1. In this case Tapeshri Prasad, head constable of Police employed at Police Station Bilhaur, was tried by a Magistrate of the first class at Cownpore on charges framed under Sections 202 and 161, Indian Penal Code. He was found guilty and concurrent sentences of imprisonment were passed. His appeal having been dismissed by the Sessions Judge of Cawnpore, Tapeshri Prasad applied to this Court for revision. The learned Judge of this Court before whom his application was made found on examination of the judgment of the Sessions Court that, if the prosecution story was true, the offence committed was rather on of extortion under Section 384, Indian Penal Code, than one of receiving an illegal gratification under Section 161 of the same Code. From this point of view the sentence passed appeared inadequate, in the event of the facts alleged against the head constable being established. Notice was accordingly issued to Tapeshri Prasad to show cause why the sentence passed upon him should not be enhanced, or other suitable order passed. It facts of the case as disclosed by the evidence and to make up our mind whether the guilt of the accused, either under Section 161 or Section 384, Indian Penal Code, was satisfactorily established. We may say at once that it does not seem to us easy to apply the provisions of Section 202, Indian Penal Code, to the alleged facts of this case. As regards Sections 161 and 384, Indian Penal Code, there can be no doubt that the two offences, when committed by a public servant in the position of a head constable, are apt to shade into one another by a slight gradation. At the game time the distinction between them requires to be borne in mind. In a case under Section 161, Indian Penal Code, on the one hand, it is not necessary for the prosecution to show how the illegal gratification came to be demanded or obtained, so long as it can be clearly established by evidence that it was obtained. At the same time, in a charge under this section, it is to be remembered that the principal witnesses for the prosecution are necessarily guilty of abetment of the offence with which the accused person is charged and their evidence must be put on the footing of the evidence of an accomplice. If, however, the prosecution witnesses seek to evade this position by representing themselves as helpless victims of extortion committed by a person in a position of authority, then what they are seeking to prove is, not an offence under Section 161, but an offence under Section 384, Indian Penal Code, and it becomes material for the Court to satisfy itself that the person accused did put the complainant or complainants in fear of injury, with the object of inducing them to pay him money. That is to say, in connection with a charge under this section, the Court requires to be satisfied, not merely that money passed from the complainant to the accused, but that the prosecution story as to the manner in which the money was demanded and obtained is substantially, true. In the view which I am disposed to take of the facts of the present case, these considerations are material.
2. The essential facts may be stated as follows. It appears that Dwarka and Ganna, residents of a village called Chowbigahi in the neighbourhood of Bilhour Police Station, had entered into a partnership for the cultivation of a certain field. On the 21st about the said field, between Dwarka and Musammat Goura, wife of Ganna, which created a considerable amount of scandal in the village. The woman says what took place was an attempt on her honour on the part of' Dwarka, which was frustrated by her resistance and by the opportune arrival of witnesses. Obviously, in a case of this sort, the woman concerned scarcely says any thing else, and in this particular case one thing which is quite clear from the evidence produced is that Musammat Goura has entirely failed to establish her allegations. The witnesses named by her as having arrived on the scene in time to rescue her either were not produced at all, or flatly contradicted the story told by her. For the purposes of this case, therefore, we are justified in assuming that Musammat Goura's story was untrue, and that what happened in the field on the day in question was something different. The position of the injured husband in a case of this sort is always a difficult one, and obviously Ganna was somewhat at a loss as to what he ought to do. He is said to have spent time in consulting his zemindar, and it is quite possible that the scandal may have been referred to the zemindar for adjustment. It is fairly clear that Ganna was not anxious to invoke the assistance of the Police. There is on the record an admission by Tapeshri Prasad himself, which I think is almost certainly a true admission, to the effect that he happened to visit the village of Chowbigahi somewhere in the course of the night between the 22nd and 23rd October. 1916. He would probably find the whole village full of talk about the scandal regarding Dwarka and Ganna's wife. It is one of the minor difficulties of the administration of justice in this country to persuade Police Officers of a certain class that it is not a part of their official duty to interfere with the illicit amours of the poor; that the head constable Tapeshri Prasad did take it upon himself to interfere is, I think, fairly certain. I think it is satisfactorily proved that Ganna, and some persons put forward by him as witnesses, were directed to come to the Police Station on October the 23rd. Matters then took a curious turn, and one of the points in the case to my mind is that the learned Magistrate, who has tried the case with great care and pains, has failed to appreciate the full significance of the fact that the presence of the Circle Inspector in Bilhour Police Station on the morning of October 23rd was a vital circumstance in determining the subsequent course of events. Whatever may have been Tapeshri Prasad's original intention, when he insisted on this alleged case of assault upon Mttsammat Goura being reported at the Police station, it seems fairly clear that his plans were thrown into confusion by the accidental presence at the Police Station of an officer of the standing of the Circle Inspector. It is presumably for this reason that the parties concerned were kept away from the Police Station and that negotiations took place on the 23rd and 24th October, either at a certain house in the town of Bilhour, or at the private residence of Tapeshri Prasad, opposite the entrance to the Police Station. The story told by the prosecution witnesses is confused and doubtful in a great variety of points. I am quite satisfied that whatever did actually take place has been distorted by the prosecution witnesses out of all real likeness to the facts. I strongly suspect that this distortion of facts begins at the very outset, by ascribing certain events which actually took place in the village of Chowbigahi on the night of October the 22nd to the night of October the 23rd. The proceedings of the head constable in connection with the whole affair are certainly open to adverse comment and such as might be taken proper notice of departmentally. What we have to decide, however, is whether it is proved by reasonably satisfactory evidence that he demanded money from Ganna and two other persons, under threat that if they refused to pay they would be prosecuted under Section 182, Indian Penal Code. The story as told is full of improbabilities. The two witnesses from whom it is alleged that smaller sums of money were extorted must have known that they had done nothing upon which such a charge could possibly be based. Ganna must have known that no formal report on his part had been recorded at the Police Station, and that his prosecution on the strength of any information which he may have laid before the head constable outside the Police Station was extremely unlikely. Ganna stands discredited by the fact that, on a later date, he presented a petition in the Court of a Magistrate exonerating the head constable Tapeshri Prasad from all blame in this matter and protesting that pressure was being brought to bear on him by a Police Officer of superior rank to make a false statement against the said head constable. This part of the case cannot be explained away in the manner in which it was sought to do in the Courts below. The defence endeayoured to obtain the evidence of the Magistrate before whom Ganna's petition was presented. When it was found that this evidence could not conveniently be obtained without a certain amount of delay, the accused was induced not to press for a further adjournment by a sort of undertaking on the part of the Trying Magistrate that everything which he desired to prove by means of the Magistrate's evidence would be assumed in his favour. The prosecution must, under the circumstances, be regarded as bound by this undertaking. If the Trying Magistrate subsequently came to feel any doubts on the point, he should have used his powers under the Code of Criminal Procedure to summon and examine the Magistrate for his own satisfaction. As a matter of fact I have not the slightest doubt that Ganna, was aware of the contents and purport of the petition which he presented before the Magistrate. If Ganna had come into Court and honestly stated that he had paid money to the head constable in order to obtain assistance from the latter by way of favourable consideration of the complaint which he wished to make against Dwarka, and if he had deposed frankly that his petition in the Magistrate's Court was obtained from him by a refund of the illegal gratification thus paid, I should have been very much disposed to believe him. Ganna, however, has deposed to nothing of the sort, and I do not think that it would be fair to convict the accused on mere suspicion that some such theory as the above seems to fit in with the established facts of the case. In my opinion the evidence for the prosecution, as evidence of the commission of an offence punishable under Section 334, Indian Penal Code, is utterly discredited, and I am not prepared to hold that any such offence was in fact committed. On the other hand, it is certainly unsatisfactory that the accused should have been convicted of an offence under Section 161, Indian Penal Code, upon evidence which, if it is true at all, establishes the commission of another and a different offence. For these reasons I would accept this application in revision, discharge the notice issued by this Court in connection with the proposed enhancement of sentence, set aside the orders of the Magistrate and of the Sessions Court and, formally acquitting Tapeshari Prasad of the offences charged, direct his release.
3. I agree. The least one can say about this case is that the facts leave one in a state of doubt. Facts to establish guilt ought to carry conviction. It is for the lower Courts to decide facts and if the reason which the Magistrate has given for his finding had carried conviction, I should have considered that it was a matter for him and not for us. In two respects the judgment of the Magistrate lays itself open to criticism, which I regret to say is not infrequent in this Court. The accused was convicted of two offences. Applied to the facts in this case they involve this finding that under Section 202, Indian Penal Code, he had reason to believe that an offence had been committed by Dwarka, while at the same time under Section 182, it was alleged that he believed that the persons who accused Dwarka was making a false report. These two states of mind are totally inconsistent with one another. They are not impossible, but in alleging them side by side the prosecution committed itself to a somewhat strange proposition. I. fail to find any indication in the judgment that the Magistrate realized that state of things or gave any explanation as to how at the same time the accused had reason to believe that Dwarka had committed an offence and yet believed that the person who made a report against Dwarka was making a false report. The other matter relates to the following sentence which I find in the judgment: Without rebutting the evidence for the prosecution the defence attempted to meet the case by setting up an alibi.' This sentence is a contradiction in terms. If I am charged to day with bribing somebody in Cawnpore, the fact that I am sitting in Allanabad rebuts the case for the prosecution. And to say in this case that the defence did not rebut the evidence for the prosecution is to fall into a complete misapprehension of the issue which the Magistrate had to decide. Having stated, I think incorrectly, that the defence was a mere alibi the Magistrate went on to use an expression, which I deprecate and which is not infrequent in judgments which come up for review in this Court, He proceeded to say that alibi evidence should always be regarded as unsatisfactory. Now it is true that where it is admitted that an offense like dacoity or rape has been committed, that is to say, where it is common ground between the prosecution, and the defence that a crime has been committed, the burden, no doubt, is on the accused to get rid of the evidence for the prosecution which identifies him with the commission of the crime, and it is in that way that the defence which is often put forward is described as a mere question of alibi and which no doubt in. many cases fails. But when the fact alleged by the prosecution, as in this case the bribery itself is in dispute, that is to say, it is not common ground between the prosecution and the defence, it is I think a misdirection on the part of the Magistrate to treat the defence as a mere question of alibi. It was not a mere question of alibi. There was an official record in the diary of the Police Station itself inconsistent with the allegation of the prosecution, and the burden was on the prosecution to establish the fact that bribery had been attempted or committed. It is a little unfortunate that the Magistrate should have thrown the burden on I he defence in the way he has done and rather assuming that the offence had been committed, proceeded to criticise the defence of alibi and to destroy it. He seems to have overlooked the fact that inasmuch as the case for the prosecution involved an assertion that the entries in the diary were false, it also involved an assertion that they were false either to the knowledge of the Circle Inspector or as the result of neglect of duty on his part. It seems to me that this aspect of the case has not been considered on behalf of the defence at all. On this ground I should not adopt the finding of fact of the Court below. The case is so full of doubt that the conviction is unsafe.
4. The application in revision is allowed, the Rule issued by this Court in connection with the proposed enhancement of the sentence is discharged, the orders of the Magistrate and of the Sessions Court are set aside and the applicant, Tapeshri Prasad, is formally acquitted of the offences charged and is ordered to be released forthwith.