1. This is an appeal by the State against an order of acquittal in a bribery case. The resp., S.N. Singh Ray, the accused, was the Station Master of Meramundeli Rly, Station (B. N. Rly.) on 2-2-1947, the date of occurrence. The informant, P. W. 3 (Waiz Mohammad) is an agent of Khan Sahib Muhammad Khan, a merchant dealing in timbers & Kendu leaves with headquarters at Sambalpur. The agent had headquarters at Angul. P. W. 4, Luxmidhar Sahu, is another agent of Khan Sahib, stationed at Meramundeli Rly. Station, who owes subordination to Waiz Mohammad. The latter supplies money to the former for loading & unloading expenses of the goods. Luxmidhar keeps accounts separately relating to transactions in timber Ex. 10, & transactions relating to Kendu leaves, Ex. 10 (l). It is said by both of them that the accused Station Master was in the habit of demanding & receiving bribe @ Rs. 50 for indent & supply of only wagon for consignment of the aforesaid goods.
2. On 28-1-1947, P. w. 3 filed a petn.. of complaint before the Police Inspector of Delhi Special Police Establishment Branch (Govt. of India), Orissa, Sri A. N. Nayak (p. W. l), complaining against the conduct of the Station Master & informing that he had been asked to pay Rs. 100 on 30-1-1947, being the amount of Rs. 80 towards his arrear dues for having supplied wagons on four previous occasions & Rs. 20, the amount to be paid for the supply of a wagon on that date. The Inspector took up investigation & requisitioned the presence of the Mag., Sri B. Sarangi, with him at Meramundeli Station at the material time. After due consultations between the Inspector & P. W. 3, it was settled that the bribe amount of Rs. 100 should be paid in ten ten-rupee G. C. notes of which the denominations were noted by the Inspector & later by the Mag. before they were banded over to the Station Master. The Inspector & the Mag. lay in ambush at a little distance from the Station Master's Office on the morning hours of 2-2-1947 near about the appointed time for payment. P. Ws. 3 & 4, it is said, went into the Station Master's office & handed over the notes. On their coming out & signaling to the Inspector & the Mag. they immediately rushed into the Station Master's room & on the Inspectors demand, the Station Master produced ten ten-rupee notes from the left pocket of his trouser, being the notes delivered to him by the prosecution witness 3. On comparison, the notes were found to bear the same denomination as had been taken note of by the Inspector & the Mag. Due formalities of preparing the seizure list were gone through & the Station Master was charge sheeted.
3. He was tried by the Addl. Dist. Mag. at Cuttack, who, disbelieved the Station Master's defense which was to the effect that the ten ten-rupee notes had been delivered to him by p. w. 3 as he wanted to have one hundred rupee mote in exchange , but left the Station Master's office without waiting for the delivery of the hundred-rupee-note. It may be noted here that the Station Master, at first, produced at the spot a at the spot a hundred rupee note from the office iron chest on Inspector's demand for the sum received from P. W. 3. I shall deal with -the significance of this conduct of his presently.
4. The prosecution, in support of the charge, examined, besides the Inspector & the Mag. 4. witnesses testifying to the occurrence of ''payment by p. w. 3 & receipt by the resp. of the amount as bribe'. The learned Mag., in a well considered judgment has found that the proof, adduced by the prosecution , except raising a grave suspicion against the Station Master, is hardly sufficient to bring the charge home to him. He has, therefore, given him the benefit of doubt. The task before us is whether there are materials enough on record which would enable us to come to a different finding. i would profitably quote from the learned Mag.'s judgment a passage embodying his finding, namely,
'There is no other evidence on the side of the prosecution to show what was the conversation between Waiz Mohammad the Station Master when the former passed the ten ten-rupee note to the latter. Money may be passed from one hand to another on various pretexts. The prosecution evidence throws a good deal of a good deal of doubt on the guilt of the accused & does not preclude every reasonable possibilities of his innocence, I give the benefit of doubt to the Station Master accused & acquit him under Schedule 58, Cr. P. C.'
5. As against this, it has been seriously contended by the learned counsel appearing for the State that the learned Mag. having discarded, in clearest possible terms, the story of exchange of exchange set up by the accused & the latter having given no other explain of his possession of the specified ten ten-rupee notes, the inference of guilt is inevitable. It has. further, been argued that the evidence of p. was. 3 & 4, not being evidence of accomplices, does not require any corroboration.. It is thus argued that the Mag.'s finding of benefit of doubt for the accused is wrong & should be set aside.
6. I am not at one with the learned Mag. relating to the discarding of the defence theory of exchange. The learned Mag.'s view is based upon the Station Master's conduct in response to the Inspector demand of the money received from P. w. 3. He says that the Station Master wanted to evade detection by first producing the 100-rupee note from the iron chest & not asserting immediately the story of exchange & citing witnesses in support thereof. This, in my view, may or may not be sufficient to rule out the story of exchange from the area of bare possibility. The Station Master was confronted with the presence of an Inspector of Police & a Mag. who immediately on their appearance had disclosed their identities. He must have certainly been reminded of the conduct of the prosecution witnesses in rushing out of the office room without taking the l00-rupee note & the previous hostile relationship that existed between him & the P. w. 3. Placed in this position, he would as a matter of right, take recourse to such subterfuge as may strike him. It is a question of one's grit & wit.
7. The rest of the prosecution case depends upon the credibility of the prosecution witnesses. Leaving aside those whose evidence bear on the recovery of the specified G. C. note 8 from the Station Master, the witnesses on the paint are p. ws. 3, 4, 5, 6. Besides, P. Ws. 3 & 4, the other witnesses do not speak about what conversation took place between P. w. 3 & the Station Master. Their evidence, therefore, does not go farther than proving the admitted facts that ten ten-rupee notes had been made over to the Station Master. The mere handing over the notes will not adequately prove that they were paid as bribe.. Prosecution either fails or succeeds according as it is proved that the notes were paid as bribe or not. On this point, there is no other evidence except that of P. Ws. 3 & 4. Both these witnesses are hostile on account of the enmity that exists between their master & the Station Master. On the point of hostility, I would do no more than to quote from the learned Mag's, judgment, a passage set oat hereinbelow:
'As to the payment of ten ten-rupee notes by Waiz Muhammad to the Station Master (accused) on 2-2-47 it will be seen from letter dated 20-9-47 (Ex. C) that Khan Sahib Muhammad Khan made a complaint to the Rly. authorities against the Station Master, Meramundeli for not supplying him wagons according to his indent. The enquiry report dated 30-12-46 (Ex. D) of the Traffic Inspector, Khurda Road, will show that the enquiring officer found the complaint of Khan Sahib unwarranted & observed that the real difficulties in getting supply of wagons were being misrepresented to Khan Sahib by his servants. It is in the evidence at D.W. 6 Shadeb Prasad Panda that sometime before the occurrence the accused Station Master had a quarrel with P. W. 3 Waiz Muhammad for stocking timbers near Meramundeli Rly. Station in such a way as to obstruct motor traffic From these incidents occurring within a month or two prior to the date of entrapping the Station Master (accused) one had to accept with caution the versions of the Khan Sahib's agent (P. Ws. 3 & 4) against the Station Master.'
8. The further defect from which the prosecution suffers is the total absence of any reliable evidence in support of P. W 3's assertion that the Station Master is in the habit of demanding & his master is in the, habit of paying Rs. 20 on each & every occasion of delivery of on Railway Receipt for a wagon load of goods. How the two agents (p. ws. 3 & 4) shift the responsibility on this matter from one another has been dealt with carefully by the learned Mag. in his judgment. The accounts produced do not lend an iota of support to this story.
9. Besides, there are certain improbabilities attached to the prosecution story. After Khan Sahib's complaint against the Station Master & enquiry that followed it, it would be too daring on the part of the station Master to demand money from his agent. Secondly, even if the Station Master was in the habit of demanding money, he should not ordinarily be expected to leave them in arrear so as to accumulate just in the manner one would do in supply of merchantable commodities. Lastly, according to P. W. 6, Ibrahim Mulla there were three or four persons in front of the office of the Station Master when this payment was made & it would be difficult to believe that the Station Master should receive a bribe so openly in broad day light.
10. In the premises aforesaid, it is difficult for me to differ from the learned Addl. Dist. Mag. in his finding that
'Every reasonable possibility of innocence has not been excluded & that ha is entitled to an acquittal.'
11. As the learned counsel of both sides have addressed us at length on certain legal aspects & have cited authorities, in fairness to them, before concluding this judgment, I shall dispose of them briefly.
12. It is contended by the applt's learned counsel that witnesses (p. Ws. 3 & 4) are not accomplices & their evidence does not require corroboration. The rep's counsel contends to the contrary & further urges that the evidence of one accomplice is not available as corroboration of another. He cites the decision of Mahadeo v. The King, A.I.R. (23) 1936 P. C. 242 : (37 Cr. L. J. 914). The point does not require any further elucidation. The only question that presents some nicety is whether, in the circumstances disclosed in the case, p. Ws. 3 & 4 are accomplices. The very fundamental distinction that goes to the root of the matter is that an accomplice is one who was a participant of the second degree or abettor in the matter of commission of the crime & did not extend any aid to the prosecution for its discovery till after its commission. In the case of a bribe giver, he is an accomplice only when he gives it with the intention of gaining some undue official favour, but not one who gives it in order to aid the detection of a crime. he has crime. He has not the mens rea . It has been held in the case of Emperor v. Chatturbhuj Sahu, 38 Cal. 96 : (8 I. C. 119) :
'A person who makes himself an agent for the prosecution with the purpose of discovering & disclosing the commission of an offence, either before associating with wrongdoers or before the actual preparation of the is not an accomplice but a spy, detective or decoy whose evidence do not require corroboration though the weight to be attached to it depends on the character of each individual witnesses in each case. But a person who is associated with an offence with a criminal design, & extends no aid to the prosecution till after its commission is an accomplice requiring corroboration.'
13. Accordingly, P. Ws. 3 & 4 do not require corroboration as accomplice witnesses do. Such witnesses are known as spy or decoy-witnesses. There is a view supported by authority that:
'To establish a case of bribery against the accused for having accepted marked currency notes from a decoy witness employed by the police in furtherance of a trap against the accused, it is not sufficient to prove that marked notes passed from the decoy witness to the accused. It is of the utmost importance in cases of this kind that there should be independent corroboration of the statement of the decoy witness, that the money was received by the accused person for an illegal purpose.'
(See Emperor v. Anwar Ali, A. I. R. (35) 1948 Lah. 27 : (48 Cr. L. J. 964).)
14. I cannot, however, go so far as that. I should, however, lay down a golden mean. The evidence of a spy does not stand in need of corroboration either as a principle of law or as a fundamental rule of practice necessary for safe administration of justice. It is always for the Judge of fact in each particular case to decide whether it is safe to rely & act upon a decoy witness, Each case depends upon its own merits. This much has to be borne in mind, that he has entered into a design with the police to entrap the prisoner & as such his partiality for the prosecution is a factor which can hardly be ignored. The character, position in life & social standing of the witness would go a great way in helping the Judge to appreciate his evidence. Bearing these principles in mind & for reasons already stated, I cannot place reliance on the evidence of p. Ws. 3 & 4 in the absence of corroboration coming from the source of independent witnesses.
15. In the result, the appeal fails & is dismissed.
16. I agree that the appeal should be dismissed. The only witnesses to directly connect the resp. with the crime are p. ws. 3 & 4. The unsatisfactory features in their evidence have been fully discussed by the learned the learned lower Ct. & by my Lord the Chief Justice, In view of these unsatisfactory features it will be unsafe to act upon their evidence & the resp, is thus, in any case, entitled to the benefit of doubt. In this view of the case I do not think it necessary to say whether P.ws. 3 & 4, on their own statements, ere 'spies' or else 'accomplices' who after associating with the resp. for some time in the criminal design, subsequently for some reason or other turned against him & gave information him to the authorities.