Asutosh Chaudhari, J.
1. The appellant, a Station Master, was tried jointly with another, a Goods Clerk, before the Sessions Judge of the Assam Valley Districts and a Jury under Section 408, Indian Penal Code, for criminal breach of trust as railway servants. The Goods Clerk was also charged under Section 477A for fabrication of certain entries and the appellant with abetment thereof.
2. The Jury unanimously found the Goods Clerk not guilty of both charges; the majority, however (3 to 2) found the appellant guilty under Section 468. The Judge agreeing with the majority has sentenced him to three years' rigorous imprisonment. Hence this appeal. It was heard by the Criminal Bench, but, owing to a difference of opinion, it has come before me under Section 429, Criminal Procedure Code.
3. The facts are shortly these. One Golap Rai (P.W. No. 3), the Gomasta of a Marwari firm, on the 18th December 191, loaded 135 bags of rise weighing about 254 maunds in a wagon at the Dumduma Station to be sent to Rupai Siding and they were so sent. The proper charge for the consignment was Rs. 20-11-0. The Railway Books show an entry of Rs. 8-4-0 against this item which is put down as 60 bag's weighing 100 maunds. The entry in the Rokur of the Marwari firm shows a debit of Rs. 10-4 0, namely, Rs. 2 more. The actual quantity proved to have been sent was 254 maunds and the railway books at Dumduma contained untrue entries. Rs. 8-4-0 is the proper charge for 100 maunds, bat, having regard to the quantity, the Railway should have been paid Rs. 12.7-0 more, Golap Rai's statement is that the Station Master asked Rs. 10-4-0 from him as freight and he paid that sum. The entries in the Railway Books were made by the Goods Clerk and his statement is that he made them under the directions of the Station Master accused. The Station Master said he had left these matters to the Goods Clerk and knew nothing about them. Under the rules the responsibility rested with the Station Master and applications for wagons are to be made to him. Two Railway witnesses, namely, Binoy Bhusan Das Gupta, Booking Clerk and Signaller (P.W. No. 13), and Khetter Nath Biswas, Trains Clerk (P.W. No. 14), deposed that the practice at that Railway Station was that applications for wagons were made to the Goods Clerk and that he was in charge of booking and loading consignments of goods, but the Station Master received the total amount of the day's receipts in the evening from the Goods Clerk.
4. I agree with Shamsul Huda, J, that the offence in respect of the sum of Rs. 2 was either receiving a bribe, or that of criminal breach of trust. The consignor says that he paid Rs. 10-4-0 altogether. He is benefited to the extent of Rs. 10 7 0 the Railway lost Rs. 12-7-0 and Rs. 2 went into the' pockets of the officer who received the freight, as in the Railway Books Rs. 8 4-0 only was entered. It is difficult to believe that the Gomasta of a Marwari firm who has done business there for eight or nine years did not know or try to find out the correct freight. Either the consignor had to bear the cost or the consignee, but the consignor had to pay it in the first instance. The Railway receipt or invoice would have shown the amount actually paid. It is not forthcoming. Golap Rai says he did not ask for a receipt as it did not occur to him that it was necessary. How did he think the consignee was going to get delivery without a receipt or invoice? He said he had no experience of Railway receipts, but had seen other people using them. Being pressed in cross examination he said he did not ask for Railway receipt but the Station Master said of his own accord that as the goods were going to a siding there was no need for one. He had on a previous occasion sent a milar quantity of rice from the same station to the same Siding and says he paid Rs. 7 then. He says he grumbled when he was asked to pay Rs. 10-4 0 on this occasion and was told that was the right amount. Then he varied the statement and said he did not ask the Station Master why the amount charged was larger on this occasion. I agree with Shamsul Huda, J., that it is difficult to conceive that he was an honest consignor and that he was no privy to the fraud committed on the Railway. His story is that he was asked to pay Rs. 10 40 as freight and paid it and reliance is placed on the entry in his book, which stands thus 'Rs. 10-4 0 in sash for railway freight, Railway receipt for 135 bags.' The mention of Railway receipt in it is noticeable. It does not mention the weight, although other entries in his book such as Exhibits 20(5), 20(1), 20(2), 20(4). mention both the number of bags and weight. He is paid by the weight. These facts do not appear to have been put before the Jury in connection with the credibility of Golap Rai. No doubt the charge is under Section 408 and that depends upon the truth of the statement of the witness Golap Rai that he paid Rs. 10-4 0 as freight, but if he paid Rs. 2 as a bribe to charge him less than the actual freight payable, he was clearly an accomplice in respect of an offence under Section 161, Indian Penal Code, which is clearly an alternative case practically upon the same facts. I think it was incumbent upon the Judge to direct the mind of the Jury to this aspect of the case and his failure to do so is a serious misdirection as the case practically depends upon the evidence of Golap Rai. The learned Judge merely said this: 'It is, however, argued that he must have bribed the accused or one of them to charge less than the correct amount' of freight. This is possible, but there is no evidence to show that he did so and the accused are not being charged with accepting a bribe in consideration of showing favour to Golap Rai. The Jury should, therefore, consider whether Golap Rai can be considered as an accomplice in this case and also whether, if he did give a (sic) either of the accused, he should be regarded as a person of less than average morality and on that account to be disbelieved 'I agree with Mr. Justice Shamsul Huda that 'these observations are open to serious objection: First, if Golap Rai was in the conspiracy, he was an accomplice and it made no difference that the advisers of the Crown instead of charging Suryya Kanta for receiving a bribe Charged him with criminal breach of trust; secondly, the Judge should have distinctly told the Jury that it was not' enought to find that Golap Rai paid Rs. 10-4-0 and the amount credited wad Rs. 3-4 0 but they must be satisfied that the whole amount was paid as freight and if the extra Rs. 2 was paid as bribe the charge under Section 408 could not stand. But, instead of saying this, the learned Judge told the Jury that there was no evidence to show that Golap Rai had paid a bribe. There was no direct evidence but the circumstantial evidence was ample to justify the Jury in doming to the conclusion that the extra Rs. 2 was paid by way of bribe and not as freight. By this expression of opinion the learned Judge shut out the Jury from holding that Golap Rai had really paid a bribe so that the charge under Section 408 was not established.' Newbould, J., also says that if Golap Rai paid Rs. 2 as bribe and not as freight, the ease failed. The evidence of Golap Rai about the payment stands uncorroborated. He said he asked the Station Master for a wagon and was told the freight to be paid. That also is not corroborated by any other evidence. It seems to me also that sufficient attention was not called to the evidence relating to the practice said to have been followed at this Railway Station about the consignment of goods and applications for wagons. If the general rule about applications for wagons can be treated as corroborating the statement of Golap Rai that he applied to the Station Master, it is clear that if the practice as stated by the two witnesses was true, it went against it.
5. I agree with Mr. Justice Newbould that the Judge misdirected when be told the Jury that the statement of one accused might be taken for what it was worth against the other. The Judge, no doubt, added that it was practically of no value as evidence, but in a case where there is so little evidence on the main point consider able value may have been attached to these statements.
6. I think, on the whole, the misdirection's above referred to were serious and have occasioned a failure of justice and the conviction ought to be and is accordingly set aside and the accused discharged.
7. I have been told that the whole of the evidence available has been given in this case, and as it depends upon the evidence of one man who may have been a participator in the fraud on the Railway, and the accused has already been in jail for some months, I do not think that, in the circumstances, a re-trial should be ordered.