K. Sadasivan, J.
1. This appeal is by one Cherian Lukose who was a staff nurse attached to the Taluk Headquarters hospital, Karunagapally He has been convicted by the Special Judge Trivandrum under Section 5(2) read with Section 5(l)(d) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the Act) and under Section 161 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year.
2. The appellant was prosecuted by the Deputy Superintendent of Police, X-Branch, Quilon under the Act on the allegation that while functioning as the Staff Nurse of the above said hospital he demanded a bribe of Rs. 5 from one Raghavan for providing him a bed in the hospital. The demand is stated to have been made at 9.45 a.m. on 26-9-64. Raghavan was being treated as an out-patient for stomach disorder; but later when he was examined by the doctor it was found that he required further treatment and for that he had to be admitted as an inpatient. Accordingly he was provided with admission ticket No. 59081. In the afternoon of 26-9-64 when Raghavan went to the hospital for being admitted as an inpatient the accused is stated to have told him he would get him admitted and provided with a cot in case he gave him a gratification of Rs. 5.
Raghavan then met the Dy. Superintendent of Police ,X-branch at the Kayamkulam Travellers Bungalow at about 2.30 p.m. that day and told him that the accused was demanding illegal gratification for providing him with a bed in the hospital. The Dy. S. P. took a signed statement from him in respect of the matter and also the five-rupee note which was intended by Raghavan to be presented to the accused. A mahazar was prepared showing the number etc., of the currency note The Dy. S. P. then sent two constables (Pws. 11 and 12') to the hospital along with Raghavan to watch what was happening there. Raghavan proceeded in advance with the marked note followed by Pws. 11 and 12. Pw. 11 stood at the entrance of the hospital room and Pw. 12 a little away, in the courtyard.
Raghavan went inside the room from where the medicines are usually supplied to the patients By that time, Pw. 13 the Dy, S. P. also arrived in a car and waited on the road side in front of the hospital. Pw. 1 is a patient who had come to obtain medicine and he was also standing nearby and watching the scene. Raghavan went near the accused and presented him with the marked five-rupee note wrapped in a piece of paper. The accused received it and put it in his shirt pocket. Pw. 11 seeing the delivery of the currency note to the accused signalled to Pw. 12 and the latter in his turn signalled to the Dy. S. P. who was waiting outside. He immediately came to the hospital and the accused was pointed out to him by Pw 11.
The Dy. Director of Health Services also happened to be present in the hospital that day and the Dy. S. P. apprised him of what had happened, and requisitioned the help of a doctor to watch the body search of the accused. Accordingly, Pw. 4 the Lady Doctor of the hospital was deputed to witness the search. The Dy. S. P. then searched the person of the accused in the presence of Pw. 4 and seized from his shirt pocket the five-rupee note that Raghavan had paid him. Pw. 2 Mytheen Kunju is another witness who was present at the time of the search. Ext. P-l is the search list and M. O. 1 Is the five-rupee note recovered from his shirt pocket. The accused had also in his pocket another two-rupee note M. O. 3, which was also wrapped up in a paper and 2 nP. kept in a money purse. After the search the Dy. S. P. returned to Quilon, and registered crime No. 10 of 1664; Ext. P-10 is the F. I. R.
3. The accused when questioned by the learned Judge at the close of the prosecution evidence, denied the charge in toto. He stated that on 26-9-64 he had not even seen Raghavan anywhere in the hospital. He was also not aware of Ext. P-2 prescription slip, having been issued to Raghavan. He has never asked for any money from Raghavan and no amount was ever received from him. The alleged search of his person was also denied by him. M. O. 1 was never recovered from his shirt pocket. He further stated that this false charge was foisted on him at the instance of Mohammed Kunju and Jalal-uddin, both employees of the hospital who were ill-disposed to him. He had no witnesses to be examined on his side. The learned Special Judge accepting the prosecution version in full has entered the conviction.
4. Scanning' the evidence carefully I am not satisfied that the guilt of the accused has been proved beyond doubt. From the materials available, the points that arise for consideration are:
(i) demand by the accused for a bribe of Rs. 5 as motive or reward for doing an official act in the accused's capacity as staff nurse of the hospital;
(ii) actual receipt of the bribe; and
(iii) the recovery from his person of the alleged five-rupee note that was so received. Points 1 and 2 may conveniently be considered together. The case of the prosecution is that a sum of Rs. 5 was demanded by the accused from Raghavan by way of reward for providing him with a bed, he having been admitted as an inpatient of the hospital; but Raghavan does not swear before court that such a demand was made. He was declared hostile and cross-examined by the learned Prosecutor He was confronted with the statement Ex. P-5 given by him to the Dy. S. P., wherein he had stated that the accused had told him that he would be supplied with a cot, provided he gave Rs. 5; but that was denied by him before court. His answer was: (Portion in original script omitted -- Ed.)
The prosecution case is that the 'demand was made in the morning'; but the payment was, however admitted by him, but according to him a five-rupee note was thrust into the accused's shirt pocket in the evening when the accused had given him an injection. This he did without any demand being made by the accused. The complaint Ext. P-5, was made by him to the Dy. S. P. for a different purpose altogether and the purpose as stated by him was: (Portion in original script omitted -- Ed.)
Thus the very foundation of the charge has been shattered. The two witnesses who are stated to have seen the accused receiving the bribe are Pw. 1 a patient who had come to obtain medicine from the hospital and Pw. 11 the police constable who was standing at the entrance; but their evidence is too weak and shaky to stand a critical examination. Pw. 1 for instance stated in his chief examination that Pw. 5 Raghavan was seen by him in the hospital at 10 a.m. that day, and thereafter he was not seen. The alleged payment of the money was made in the evening (at 4.55 p.m. to be exact) and if the witness is to be believed, he could not have been present at the hospital at the time to see the handing over of the money. He stated further that when he saw Pw. 3 in the hospital in the morning he was seen in the injection room.
At this stage the Public Prosecutor who conducted the case, besieged the witness with a volley of leading questions. To quote one or two specimen questions:-- (Q) (Portion in original script omitted -- Ed.).
To this his answer was that he did not 'remember the time.' Then the learned Public Prosecutor began to confront the witness with his statement to the police without treating the witness hostile and without getting the court's permission to confront him with the C. D. statements; But nothing helpful to the prosecution could be elicited from him even then.
The witness stated that at the time the payment was made, there were about 100 persons present in the hospital. According to him, he stood on the verandah along with other persons and it was through the window that he saw the money being delivered. In view of the conflicting statements made by this witness it is impossible to believe him, The next witness to be considered in this case is Pw. 11 who is a police constable deputed by the Dy. S. P. to watch the handing over of the money Being a police witness, much weight cannot be attached to his evidence. According to him he was standing outside, a little away from the hospital room; but at the time of the actual delivery of the money he would say that he was peeping through the door of the room: (Portion in original script omitted -- Ed.)
What he saw was Raghavan handing over the paper cover and the accused receiving it and putting it into his pocket. This of course, is not the case of Pw. 5. We have already seen that according to him the paper cover was thrust into the accused's pocket. There is also another circumstance to be considered in this connection which would also reflect against the truth of the prosecution version. According to the prosecution, Raghavan himself had no money and when the demand came from the accused had had to borrow Rs 10 from Pw. 8 and it was out of that, that Rs. 5 was made over to the accused, but Pw. 8 has denied having lent any money to Raghavan.
The prosecution would rely in this connection on Ext. P-8 the diary entry alleged to have been made by this witness. The entry is to the effect that on 26-9-64 Raghavan had received from him Rs. 10. When the witness was confronted with this he stated that 2 persons had come and asked him to make such an entry in the diary. After making the entry the diary was obtained from him by the said persons. He does not remember the name or address of these persons. The implication, of course, is that those persons were either the police constables or persons sent by the Dy. S. P. to get such a document prepared at the hands of this witness.
5. Demand by the accused for the bribe is an essential ingredient of the offence and that has an important part to play in ascertaining whether the trap laid is legitimate or illegitimate.
'There are two kinds of traps, 'a legitimate' trap where the offence has already been born and is in its course, and an 'ilgitimate trap' where the offence has not yet been born and a temptation is offered to see whether an offence would be committed, succumbing to it, or not. Thus where the bribe has already been demanded from a man, and the man goes out offering to bring the money, but goes to the police and the Magistrate, and brings them to witness the payment, it will be a 'legitimate trap' wholly laudable and admirable, and adopted in every civilized country without the least criticism by any honest man. But where a man has not demanded a bribe and is only suspected to be in the habit of taking bribes, and he is tempted with a bribe, just to see whether he would accept it or not and to trap him, if he accepts it, it will be an illegitimate trap and, unless authorised by an Act of Parliament it will be an offence on the part of the persons taking part in the trap who will all be 'accomplices' whose evidence will have to be corroborated by untainted evidence to a smaller or larger extent as the case may be before a conviction can be had under a rule of court which has ripened into a rule of law' (Vide the Law relating to Bribery and Corruption by Soonavala, 1964 Edn. page 229).
6. In the present case we have already seen that there is no evidence to show that the accused had demanded the bribe. Pw. 5 who was instrumental in trapping the accused has stated before court that the accused had not demanded any bribe from him; but the bribe was put into his pocket by him. Of course, in Ext. P-5 given to the Dy. S. P. the version was different. We have to be guided by the evidence given before court. Under similar circumstances the Supreme Court in Ramjanam Singh v. State of Bihar, AIR 1956 SC 643, held:
'The court could only proceed on the evidence given on oath in the witness box by the witness and not on the statement made in the letter.'
In the matter of laying traps the Supreme Court has made the following observation in the self-same decision cited supra:
'However regrettable the necessity of employing agents provocateurs may be, it is one thing to tempt a suspected offender to overt action when he is doing all he can to 'commit a crime and has every intention of carrying through his nefarious purpose from start to finish, and quite another to egg him on to do that which it has been finally and firmly decided shall not be done. The very best of men have moments of weakness and temptation, and even the worst times when they repent of an evil thought and are given an inner strength to act Satan behind them; and if they do, whether it is because of caution, or because of their better instincts, or because some other has shown them either the futility or the wickedness of wrongdoing, it behoves society and the State to protect them and help them in their good resolve; not to place further temptation in their way and start afresh a train of criminal thought which had been finally set aside.'
7. We have to approach the facts on hand, in the light of the ethical principles adumbrated in the above observation. Pw. 5 has stated in his evidence that his object in complaining to the police was not to trap the accused; but to weed out corruption from the hospital as a whole. Corruption, according to him, was rampant in the hospital and it was to root out the same and purify the atmosphere of the hospital that the cause was champoined by him. In the circumstances the trap laid will have to be characterised as 'illegitimate trap' and all the actors in the drama to be dubbed accomplices; Unless their evidence is corroborated in material particulars, it will be unworthy of acceptance and could hardly be made the sole basis for a conviction. We have already seen that apart from the question of corroboration the discrepant and inconsistent nature of the evidence has itself made it unacceptable.
8. Now coming to the recovery of the amount from the accused's shirt pocket the position is still worse for the prosecution. Pw. 4 has thrown considerable light into this aspect of the prosecution case. She is the Asst. Surgeon who was serving in the hospital at the time. She was deputed by Pw. 3 the then Dy. Director of Health Services to witness the search (Pw. 3 did not admit that the lady doctor was deputed by him, but she has stated in her evidence that she was deputed by him). It has come out from Pw. 4's evidence that the person who conducted the search did not convince her that his hand was empty before it was thrust into the shirt pocket of the accused. It was, therefore, impossible for her to rule out the possibility of the currency note having been planted in the pocket of the accused by the person who inserted his hand into the pocket. The following questions put to Pw. 4 by the Public Prosecutor and the answers elicited will give us the true picture of what had happened. Pw. 4 stated:-
' 'I happened to be there specifically for the purpose of witnessing the search.'
(Q) Did you find any currency note in the C. I's hands when he put them inside the accused's pocket?
Ans I was not convinced that his hands were empty then.
(Q) Did anybody compel you to sign Ext. P-l?
Ans. Since I was asked by the Dy. S. P, to sign it, I did not refuse to sign. The Dy. Director too was then present.'
The learned Judge has criticised the conduct of the lady doctor in having stated that she was not' convinced that the C. I's hands were empty. She has been condemned by the learned Judge in bitter terms. To quote the learned Judge's own words:
'I am constrained to observe that this is one of those unfortunate instances not very infrequent in trials and inquiries relating to corruption cases where the officers working in the office in which the accused or the delinquent officer, as the case may be, has been functioning swerves from the path of rectitude and justice out of a false sense of sympathy towards the accused. In the instant case it is particularly unbecoming of a respectable and responsible officer like Pw. 4 is to have done so.'
These observations are totally out of place and uncalled for. I fail to understand how the lady doctor has swerved from the path of rectitude and justice! She was only stating the bear truth that before the search was made the person who conducted the search did not satisfy her that his hand was empty. The police officer who conducted the search ought to have exposed his hand to the attesting witness before the same was inserted into the shirt pocket of the accused. Without doing that it would be futile now to empty the Phial of wrath on the attesting witness There is also another interesting feature to be noted in this connection The officer who conducted the search was the Circle Inspector of Police and he has not been examined in the case. Instead of that the Dy S. P. was pushed forward as the person who conducted the search and he was examined. This, according to me is a fraud played on the court.
Pw. 4 the lady doctor is positive that the person who conducted the search was the C I and that is further clear from one of the questions extracted above, where the Public Prosecutor has asked: 'Did you find any currency note in the C. I.'s hands when he put them Inside the accused's pocket?'
I do not know why the C. I. has been kept back from the court and the Dy. S. P. hasbeen made to usurp his place. The Dy. S. P. cannot be believed when he says, 'I went to the accused and searched him in the presence of the lady doctor.' The suppression of the C. I's evidence has gone a long way to detract from the bona fides of the prosecution case, especially, when the challenge was thrown out by the attesting witness that the search officer had not convinced her that his hand was empty. In the nature of the case the recovery of the marked currency note from the shirt pocket of the accused is the most important link to connect him with the crime and when the recovery has been shaken like this it cannot serve any purpose in the case. The recovery in the circumstances has to be rejected, since it is shrouded in a cloud of suspicion as seen already.
9. Learned counsel for the appellant argued also that even if the evidence against the accused is accepted, the charge against him is not made out, because according to him mere receiving of money by a public servant even if it be by corrupt means is not sufficient to make out an offence under Section 5(2) read with Section 5(1) (d). The words 'by otherwise abusing his position' read along with the words 'in the discharge of his duty' appearing in Section 5(1) (d) make it quite clear that an offence under that section requires that the public servant should misconduct himself in the discharge of his own duty The point sought to be made out is that allotting of beds to patients is not the normal function of a nurse. So even if it is shown that some money was received by him it could not be said that he has done so by misconducting himself in the discharge of his duty.
Learned counsel invited my attention to a decision of the Madras High Court in in re P. Venkiah, AIR 1924 Mad 851 wherein it was held- 'Receiving a bribe of Rs. 20 from a villager on the understanding that the accused would get him some land on darkhast in his capacity as karama if no offence, as getting darkhast is not the official act of a Karama' In another case, State of Ajmer v Shivji Lal. AIR 1959 SC 847, where a teacher in the service of the government accepted a sum of money from certain person as illegal gratification for securing a job for him in the railway running shed, it was held that:
'It is no part of the duty of a government teacher to make appointments in a railway running shed There would, therefore, be no question of his committing misconduct in the discharge of his duty when he takes money for procuring a job for a person in the running shed.'
I am not impressed by the argument. The present case is distinguishable from the two cases cited, in this way viz. that in the case on hand the accused is one who has at least something to do with the allotment of beds. The lady doctor Pw. 4 has stated that when there is a vacant bed the nurse is bound to allot it to the patient if ordered by the medical officer. Therefore, the function allotting bed is that of the nurse; of-course, it has to be done with the approval of the medical officer. That being the case the public are likely to be misled into thinking that allotment of beds is one of the normal duties of the nurse and so thinking if they have offered any bribe, Section 161 I. P. C. would certainly be attracted.
'The section does not require that the public servant must, in fact, be in a position to do the official act, favour or service at the time. Where the accused offered a bribe to an officer, mistaking him for the one to whom he wanted to offer it, was held that he was guilty of abetment of the offence under Section 161.' (Vide The Law of Crimes by Ratanlal and Dhirajlal, 1966 Edn. page 399).
The argument' therefore that Section 5(2) read with Section 5(1) (d) of the Act or Section 161 I. P. C. is not attracted even if it is proved that money was received by the accused cannot stand. But this question does not directly arise in the present case in view of the fact that the handing over of the money and the receipt of it by the accused etc., have not been proved.
10. About the presumption under section 4(1) of the Act also some arguments were addressed. Learned counsel argued that even though the mere receipt of money to sufficient to raise the presumption, it is not necessary that the accused should establish his case by the test of proof beyond a reasonable doubt. The burden of proof lying upon the accused under Section 4(1) of the act will be satisfied if he establishes his case by a preponderance of probability as is done by a party in civil proceedings: vide Jhingan v. State 'of U, P., AIR 1966 SC 1762. But I do not think this question need engage us in any such detail since I have already found that the factum of payment or acceptance of bribe has not been proved beyond doubt. The presumption will arise only when acceptance of money or money's worth is proved in the case.
11. To sum up, the charge against theaccused has not been proved beyond doubt.The conviction, therefore, has to be setaside and the accused has to be acquitted.The conviction and sentence are hence setaside and the appellant is acquitted. Appealis allowed.