Brett and Stephen, JJ.
1. The petitioner Deo Nandan Pershad was a head-constable of the District Police of Lohardaga stationed at Selli thana. Ha was convicted on trial before the Joint-Magistrate at Ranchi of three offences under Sections 161 and 165 of the Indian Penal Code. The three offences really formed part of one transaction, and though a sentence of one year's rigorous imprisonment was passed for each offence the Magistrate ordered that these sentences should run concurrently; in addition, the petitioner was sentenced to a fine of Rs. 43, or in default rigorous imprisonment for a further period of one month,
2. On appeal to the Judicial Commissioner of Chota Nagpur, the convictions and sentences were upheld.
3. The present rule was obtained from this Court on the main ground that the conviction of the petitioner rests entirely on the evidence of accomplices and that that evidence has not been corroborated as to material particulars connecting the petitioner with the offence.
4. The learned Counsel in supporting the rule has contended that the Judge has misdirected himself as to what persons are accomplices, as to the nature of the evidence necessary to corroborate the evidence of an accomplice, and further that he has erred in law in holding that the person, who gave the bribe, was not an accomplice of the person, who received it.
5. The case for the prosecution, stated briefly, was that the complainant was the lessee of certain jungle in which lac was produced, and that, on the 21st and 22nd April 1905, one Data cut and carried off lac valued at about Rs. 200. The lessee complained at the Selli thana on the 23rd April, but was told to come again on the 24th. On the 24th April the accused, who was head-constable at the thana, demanded Rs. 50 from the complainant as a bribe for enquiring into and sending up the case for trial, and the complainant, after some objection, finally agreed to pay him Rs. 50. The sum of Rs. 20 was paid to the accused on the 27th April, another sum of Rs. 20 on the 28th April, and on the 30th April a goat valued at Rs. 3 was handed over to him.
6. To prove the demand of the bribe by the accused there was the evidence of the complainant and his mother and Sainath Chowkidar. To prove the delivery of the first sum of Rs. 20, there was the evidence of Phand and Gurdyal, who obtained the money from one Chaman and stood security for its repayment, and Budhan chowkidar, who was present with complainant and Grurdyal when the money was handed over to the accused. To prove the payment of the second sum of Rs. 20, there was the evidence of Radhanath, who lent the money to the complainant on pledge of his three bullocks, and of Gurdyal and Budhan, in whose presence the money was handed to the accused. And to prove the delivery of the goat, there was the evidence of Jhumak Ahir, who sold the goat for Rs. 3, and four others, through whose hands the goat passed until it was delivered to the accused.
7. The Sessions Judge accepted this evidence as proving the three charges against the accused. Relying on the authority of the case of Akhoy Kumar Chuckerbutty v. Jagat Chunder Chuckerbutty (1900) I.L.R. 27 Calc. 925 he held that as the bribe was paid by the complainant under compulsion he could not be regarded as an accomplice, and that the ether witnesses to the delivery of the two sums of money and the goat to the daroga were also not accomplices.
8. In support of the rule the learned Counsel has first contended that the Sessions Judge erred in law in holding that the complainant was not an accomplice. He has urged that the case of Akhoy Kumar Chuckerbutty v. Jagat Chunder Chuckerbutty (1900) I.L.R. 27 Calc. 925 is no authority for the view taken by the Sessions Judge, as in that case the person, who paid the money, was in custody and was compelled to pay the money to secure his release, whereas in this case the complainant simply paid the money to the accused in order to secure the return of the property, which had been stolen, and to avoid the expense of a case in Court. He has accordingly contended that both the complainant and his mother were accomplices. In support of this contention he has relied on the case of Queen-Empress v. Moganlal and Motilal (1899) I.L.R. 14 Bom. 115 in which it was held that the limits of the application of the doctrine of necessity, as an excuse for an act otherwise criminal, are those prescribed in Section 94 of the Indian Penal Code.
9. On the authority of the case of Queen v. Chando Chandalinee (1875) 24 W.R. 55 he has next contended that the evidence of Budhan Grurdyal, Sainath and Phand is no better than the evidence of accomplices,, as they are crgnizant of the crime and took no means to prevent or disclose it, and similarly the evidence of the witnesses to the delivery of the goat.
10. Further he has contended that the evidence of Radha Nath cannot be accepted as sufficient corroboration of the evidence of the accomplices as he did not know for what purpose the money was borrowed from him, and therefore his evidence failed to corroborate the evidence of the accomplices on material points connecting the accused with the offence.
11. He has therefore argued that the conviction was unsafe having regard to the rule of practice laid down in It. v. Wilkes and Edwards (1836) 7 C.& P. 272, R. v. Farler (1837) 8 C.& P. 106.
12. The result of these contentions would appear to amount to this that in no case under Section 161 of the Penal Code can there be a conviction, as the person who gives the bribe and all persons present, when the bribe is given are accomplices, and the evidence of all persons who are not present and not cognizant of the purpose for which the money is taken is worthless for the purpose of corroboration We are unable to accept this view as correct.
13. The contention is no doubt correct that under the law the person, who gives the bribe, is an abettor of the offence under Section 161 of the Penal Code, and as such would be punishable under Section 116 of the Penal Code. He must therefore be regarded as an accomplice, and the rule of practice would then apply, Which lays down that it is generally unsafe to convict an accused on the evidence of an accomplice, unless corroborated in material particulars connecting the accused with the offence. But at the same time we agree with the view taken by the Judges of the Bombay High Court in the case of King-Emperor v. Malhor Martand Kulkarni (1901) I.L.R. 26 Bom. 193 that in considering whether this rule of practice applies to any particular case it must be remembered that all persons coming technically within the category of accomplices cannot be treated as precisely on the same footing, and that no general rule on the subject can be laid down.
14. Even though in this case the circumstances are not such as to place it on all fours with the case of Akhoy Kumar Chuckerbutty v. Jagat Chunder Chuckerbuttty (1900) I.L.R. 27 Culc. 925 still it cannot be lost sight of that it was not the complainant, who willingly offered the bribe, but it was the accused, who demanded it, before he would take up the charge lodged by the complainant, and that he made use of his official position to enforce his demands. The mere fact that the accused offered to secure the restoration of the stolen property rather than the conviction of the offender makes little difference. He refused to act at all or even to record the complainant's information till the bribe was paid, and though complainant in the end agreed to pay it, he did it of necessity rather than of his own free will. It is possible that the circumstances of the present case, particularly the fact that the accomplices are not striving to save themselves by throwing the blame for the offence on the accused, but are rather doing,the reverse, and that their guilt, such as it is, is plainly not being used as an instrument to induce them to give evidence, are such as would justify the exceptional treatment mentioned in Queen-Empress v. Chogan Dayaram (1890) I.L.R. 14 Bom. 331 that is, are such as to justify a conviction on the uncorroborated testimony of accomplices. They are certainly such that a much slighter degree of corroboration is needed to establish their credit than would be the , case if they were entirely voluntary accomplices in the offences, which they speak to. And from this point of view the corroboration of the statements of the complainant and his mother is ample.
15. The persons, who lent the money to the complainant and the persons, who were present when it was paid, cannot in our opinion be held to be accomplices of the accused. The circumstances of the present case very much resemble those in Queen v. Deodhor Singh (1899) I.L.R. 27 Calc. 144 where it was held that witnesses to the payment of bribes were not accomplices, unless they had co-operated in the payment of the bribes, or were instrumental in the negotiations for their payment, and they differ materially from those in Queen v. Chandra Chandalinee (1875) 24 W.R. 55 decided in an opposite sense. We also hold that in a case like the present the evidence of the persons, from whom the money was obtained, may be accepted as corroborating the story of the complainant. As to the delivery of the goat the evidence is not in our opinion open to objection as the evidence of accomplices and fully proves it delivery to the accused.
16. Both the lower Courts have tested the evidence of the witnesses with care, and have accepted it as entitled to reliance. Under these circumstances, and having regard to the fact that there is ample corroboration of the evidence of the complainant, we decline to interfere, and discharge the rule.