1. The petnr. P. Venkata Rao, has been convicted Under Section 161, I. P. C. and sentenced to rigorous imprisonment for three months & to a fine of Rs. 500 & in default to undergo further rigorous imprisonment for three months.
2. The complainant, Radhamohan Subudhi (p. w. 8), is a small trader in Dry Fish. He has certain other co sharers & co-partners in the buainess besides his neighbours & villagers, who also trade in the self-same commodities. It is said that on 19-11-1946, he & one Brabmaohari approached the petnr. (who was then the Station Master of Kalupara Railway Station) to settle with him as to what would be the rate per bag of Dried Pish to be paid to him, as inducement or reward, for indenting a waggon for transporting the Dried Fish from Kalupara Rly. Station to various other stations. Their case was that priviously the Station Master had been receiving Rs. 3 per bag but, of late, was making a higher demand. The prosecution story goes on to say that after some higgling & haggling it was settled that he was to receive Rs. 3 per bag. that is a total sum of Rs. 240, for indenting a waggon for 80 bags of Dried Fish to be transported to Sambalpur Railway Station. P. w. 7, Mr. S. Chatterji, the Special Rly. Sectional Officer, deputed on the special duty of detecting corruption, noticed, from a distance, the higgling & haggling between the P. w. 8 & the petnr. After p. w. 8 came out of the Station Master's room, he contacted him & on enquiry, came to learn what had passed between him & the Station Master. He then persuaded him to file with him a complaint addressed to his superior officer, Mr. A. C. Naik, Special Inspector of Police (P. W. l), Radhamohan, however, did not agree to put in his complaint immediately, but took time to consult his co-partners & other Dried' Fish traders before he could embark upon this proceeding. Later, on 20-11-1946, he wrote out a complaint to the dictation of the Sectional Officer (p. w. 7), who carried this to the Special Inspector of Police (Mr. A. 0. Naik, p. w. 1). The latter came down to Kalupara Rly. Station. There he, Mr. Chatterji, one Mr. Pal, another Special Anti corruption Officer, & Radhamohan conferred together, as a result of which it was settled that Radhamohan should receive twenty four marked ten-rupees currency notes from Mr. A. 0. Naik (p. w. l) & would make over the same to the Station Master, as agreed upon, whereupon the latter should be confronted & searched. Accordingly, Mr. A. C. Naik (p. w. 1) got the services of a First Glass Mag. (Mr. U. N. Patnaik) from the Sub-Divisional Mag. of Puri & got permission from him to investigate into this case, which he had no authority to do it being a non cognizable offence. On 22-11-1946, after the 80 bags of Dried Fish were loaded in a waggon, Radhamohan went to the Station Master to receive R/r on payment of a sum of Rs. 240, as already agreed between them. As soon as he made the payment & came out with the R/R, the Station Master was immediately surrounded by the Deputy Mag. Special Police Inspector & the two Special Sectional Officers & confronted with the question whether he had taken a bribe of Rs. 240. It is said that coming, to know that he was being interrogated by a Mag. & a Police Officer, he attempted to throw away the notes underneath the table but was interrupted from doing so. He looked blank &. ultimately made a statement which was recorded by the Mag. under Section 164, Cr. P. C. In that he said that the money had been kept with him for the sake of safe custody by Radhamohan,. who said that he had to go to his Pentho (seat of collection of Dried Fish) alone in this dark night. After this there was an investigation & the accused was put on trial as a result of which he has been convicted & sentenced as above.
3. Both the Cts. below have believed the prosecution version of the case & have found guilty.
4. It is contended on behalf of the petnr. that the entire prosecution story is based upon the tainted evidence of a number of decoy 'witnesses who are not better than accomplices, which cannot, in law, be held sufficient to bring the charge home to the accused. Looking to the facts of this case, the only part of the prosecution story on which the conviction ought to be based is as to what passed between Radhamohan & the petnr. at the time he delivered the currency notes & secondly, the episode of conversation that had taken place between them on the 19th as a result of which it is said that it was settled between them that Radhamohan should pay Rs. 240 for the waggon. With regard to the rest of the prosecution case, there is no controversy as the Station Master admits receipt of money. The only question to be decided is whether this receipt of money was the result of a previous arrangement & as a reward for the supply of waggon or it was merely for the purpose of safe keeping. True, much can be said against the defence story, but assuming that that story is not established, still the prosecution is not relieved of the burden of establishing the charge against him by independent evidence. No doubt, there is a number of Govt. Officials, including the Deputy Mag. who have figured as prosecution witnesses; but none of them is either competent to speak or has spoken on the essence of the prosecution version which I have already indicated above. Mr. Das, in support of his argument, has invited our attention to two decisions which are in point. One is the decision in the case of Lt. Hector Thomas Huntly v. Emperor, A, I. R. (31) 1944 F. C. 66 : (45 Cr. L. J. 753) in which Zafrulla Khan J , observes as follows :
'A charge under Schedule 61, Penal Code, is One which is easily & may often be lightly made, bat is in the very nature of things difficult to establish, as direct evidence must in moat oases be meagre & of a tainted nature. These considerations cannot however he suffered to relieve the prosecution of any part of the burden which rests upon it to establish the charge beyond seasonable doubt. If after every thing that can legitimately be considered has been given its due weight, room still exists for taking the view that however strong the suspicion raised against the accused every reasonable possibility of innocence has not been excluded, he is entitled to an acquittal.
In this case, as in all cases of this kind, the direct evidence of the guilt of the applt. is that of an accomplice, namely that of P. W. 1,'
5. And the other is the decision in the case of Emperor v. Anwar Ali, 48 Cr. L. J. 964 at p. 965 (A, I. R. (35) 1948 Lah. 27). The passage relied upon reads:
'Naturally, the decoy witness will be extremely keen that his trap should not fail & having in the forefront of his mind that the central thing is that the marked money should be passed to the intended victim, & assuming a certain elasticity of moral character in the decoy witness there is a real danger that he may pass on the money under some pretext which may perhaps not be guilty in the relevant sense or which may even be wholly innocent, but in giving his evidence may represent that he give the money for the purpose relevant in the case, feeling confident that having taken care that the money was passed with as little publicity as possible: the case on this particular point will resolve itself into a conflict between his evidence on solemn affirmation & the statement of the accused person which must necessarily be made without an oath.'
6. Besides the general principles, enunciated above, which go a great way to retract the independence of the evidence, adduced in the case, there is a very important piece of evidence, in support of the defence, namely, that of P. w. 5. (After stating the evidence the judgment proceeds:) The question that immediately confronts us is whether there is anything on record on which it can be declared without any reasonable doubt this evidence is to be discarded as false & unreliable. The learned Cts. below have not seriously applied their minds to this aspect of the case which supports the defence case in its entirety. They have said that P. W. 5 could not be believed as he came from the same district & belonged to the same community as the accused. We find from record that at the time when p. w. 5 was giving his evidence, he was not a subordinate to the petnr. who had been for a long while transferred from Kalupara to another station. That they came from the same district or belonged to the same community could not be good reasons for discarding his evidence. The very fact that the prosecution did not take opportunity to declare him hostile in order to cross-examine him as well leads to the inference that they had no materials in their possession either to establish that the witness was hostile to the prosecution or intimately connected with the welfare of the accused. He is a public servant & has some position in the society. In the absence of establishing any intimacy between him & the accused & in the absence of any motive as to why he should perjure himself, it would be difficult not to act upon his evidence as totally unworthy of credit. Besides, I have noticed certain suspicious features in the surrounding facts & circumstances of the case. The fact that Radhamohan took time to file the complaint bespeaks that he was not such an aggrieved person as ha now poses to be. At present he says that he has been the victim of the Station Master's corrupt habit of taking bribe. Under the circumstances, when he finds before him a person in authority asking him to file a complaint, there should be no good reason for him to hesitate & defer. Secondly, one who takes a bribe never defers actual payment until after he has done all in his official capacity in order to show favour to the party. It is said that in this particular case it was agreed that after the goods are loaded the payment should be made & R/R should be taken. What is the favour that was sought to be purchased at a price from the Station Master It was supplying him a waggon for the purpose of transporting his commodity. After that had been done, suppose Radhamohan refused to pay, could he have prevented him from enjoying the favour that had already bean shown to him? Thirdly, what is more remarkable is that there is not a word in the written complaint to tell us of the conversation that took place between the Station Master & Radhamohan on the 19th. The complaint is a general complaint & made not with reference to any specific incident. Lastly, it appears from the cross-examination of Radhamohan that he has got his Pentha3 for procuring Dried Fish at places, such as Parikud, Soran & Gangadharpur. Out of the three places, Gangadharpur itself is a Rly. Station & according to him the other two places are nearer to Gangadharpur than to Kaluparaghat. As a business man, it is not probable that he should incur greater expenses on cartage in order to bring his goods to a distant Railway Station in preference to a Bearer one.
7. It further appears that he maintains accounts of his Fish business of which the total value is Rs. 4000 or so in a year. He did not produce these accounts at the trial. As against this it is difficult to believe that he should have in his possession 80 bags of Dried Fish worth about as. 3000 to be indented on that single occasion. These circumstances can be reconciled only if it is viewed in the light that the whole thing was stage-managed for the purpose of the police trap. Under the circumstances it becomes very essential that there should be independent evidence as to the talk between Radhamohan & the Station Master on the 19th during the course of which according to Radhamohan it was settled that he was to pay Rs. 240 for getting the R/R after the loading & of the conversation at the time of his delivery of the money to the Station Master. I have already said that these two are the essential facts that could establish the accused's guilt As at present, this has been sought to be established by the tainted evidence of Radhamohan & Brahmaohari, They are either accomplices or spies of the police. One cannot be sure to preclude the idea that they were set up by the police to make out a case against the Station Master who bad probably earned the reputation of corruption, from the beginning to the end. There must be some independent evidence, either direct or circumstantial, to prove the Station Master's guilt. If Radhamohan had accounts, these accounts mast contain entries as to payments made to the Station Master as part of the expenditure incurred for transporting the goods to the various stations. These accounts, if produced, could have, at least, established that he has on previous occasion to pay some bribe to the Station Master or to incur some sort of expenditure otherwise unexplained. Such evidence may not be a direct evidence as to the guilt of this particular Station Master, but it would go a great way to establish that in this particular Station, during this Station Master's tenure of office, such illicit expenses used to be incurred for the purpose of transporting of goods. It would have been a circumstance capable of corroborating the prosecution story. Besides, as has been pointed out by a learned Judge of the Lahore H. C. in the cited case, the police, in contriving to catch the Station Master red-handed, should have posted somebody with an independent status to remain in ambush to hear the conversation that passed between Radhamohan & the Station Master at the time when he delivered the notes. Under the circumstances, the effect of the exculpatory statement of P. W 5 which goes to establish the defence case, cannot be completely ignored. In the result, we are of opinion that the order of conviction & sentence cannot be upheld & must be set aside.
8. We shall not, however, be understood to say that no prosecution can be based upon police traps of the kind. I should agree, with great respect with the observation of Lord Alverstone, C. J. of England, in the case of The King v. Mortimer, (1911) 1 K. B. 70: (80 L. J. K. B. 76).
'The particular transaction of which evidence is given was the result of a police trap, & though I do not like police traps, any more than any one else, still it is only fait to remember that it is almost impossible to detect this class of offence in any other way.'
But at the same time that should not lighten the task of the prosecution that lies upon it under the general principles of Criminal Jurisprudence that the accused's guilt must be established beyond all reasonable doubts. This case, as I have shown, stands on its own facts. Besides the statement of p. w. 5, which we could not persuade ourselves to ignore as unworthy of credit, there were various other suspicious features. It is always to be borne in mind that anybody may be easily taken unawares by the police trap. It may not be completely unfounded that this Station Master was not in the habit of receiving bribes, but what we have to investigate & settle as a fact is whether on this particular occasion he had received the notes as a bribe after having agreed to do so. As we are not satisfied that the evidence is free from suspicion lacking corroboration, as it does, we are bound to quash the conviction &l; sentence.
9. I agree with my Lord the Chief Justice.