Rajoni Kant Bose vs Asan Mullick

The Petitioner in this case is the Head Constable of the Dhanut Out-post. He has been convicted, under sec. 161, of receiving a bribe of Rs. 90, and under secs. of abetment of cheating, in respect of a sum of Rs. 60, and has been sentenced to rigorous imprisonment for a term of six months, for each offence. A subordinate constable was convicted of similar offences, but his case is not before us. The case comes before us in our Revisional Jurisdiction mainly on the grounds that the Petitioner has been convicted on the evidence of accomplices whose evidence is uncorroborated, that the evidence is to a great extent hearsay and, therefore, inadmissible, and that even if it be admissible the inferences which the Courts have drawn from it are not justifiable.

The Complainant''s brother was arrested for cattle-stealing. The Complainant, on hearing of his arrest from the constable, consulted one Akkel Sarkar, a Punchayet of the village, as to the best means of getting his brother off. There was then some conversation between the constable, the Complainant, and Akkel, resulting in the conclusion that if sufficient money was forthcoming the release might be effected. The Complainant then proceeded to raise the necessary funds by selling his cattle and other articles, and it was arranged that the Punchayet Akkel should go to the out-post to bribe the Head Constable, taking for this purpose Rs. 90. As the Complainant was disinclined to trust Akkel alone with the money, it was also arranged, that the three persons, Ashruff, Umed Ali and Irjutullah should accompany him and see that the money was paid to the Head Constable. These persons then went to the out-post, arriving there at about midnight. It is not quite clear whether they saw the Head Constable that night or not, but this is not very material. What took place on the following morning depends entirely upon the evidence of the three persons named above. They say that there was some conversation between Akkel and the Head Constable, who then went into a room together; that after a short time Akkel came out and said that he had given the money to the Head Constable, and that the Complainant''s brother would be released if a further sum of money was paid. None of them had any conversation with the Head Constable. Ashruff did not hear the conversation between the Head Constable and Akkel Irjutullah says he heard only this much of it that the Head Constable said that the Complainant''s brother had been challaned but that he could be brought back. Umed Ali who alone deposes to having seen am thing says that after the Head Constable and Akkel went into the mom he looked through a chink and saw Akkel placing money before the Head Constable. The others were then some little distance off, all having been told not to go into the room. Two of them say that Akkel told them not to follow him, the third uses the plural word "they" meaning apparently the Head Constable and Akkel. Now it is Hear that these three persons were in the position of accomplices. It is true that they did not carry the money or tender it, but they knew full well that the money was to be paid as a bribe, and they went to see and assist in the payment. It may be inferred from the Complainant''s evidence that if he had not got their assistance he would not have sent the money. Neither of the Courts in dealing with the evidence of these witnesses have looked upon them in the light of accomplices. They are regarded as ordinary witnesses, untainted with the offence respecting which they had come to give evidence, and entitled to full credit. If they had been regarded as accomplices, we do not know what view would have been taken of their evidence, nor can we say that considerable weight has not been attached to the statement of Akkel that he had given the money to the Head Constable. Obviously that statement, apart altogether from the fact of its being made by an active accomplice, is not evidence against the Head Constable as it does not appear to have been made in his hearing. The fact that the evidence has not been considered from this point of view, and that hearsay evidence which was not admissible, has been admitted on important points, justifies us, we think, in going into the case in the exercise of our revisional powers although it is not usual to interfere with the decision of the lower Courts when that decision is based upon a consideration of the evidence.

Up to the time of the interview between Akkel and the Head Constable, just before the money is said to have been made over, there is nothing against the Head Constable. The evidence as to what had before taken place in the village between the Complainant, Akkel, the constable and the villagers may be quite true, but it does not implicate him. There is nothing whatever to show that he had any intention, or any expectation of receiving a bribe. He had made no advance towards the demand or acceptance of a bribe, but the witnesses on their own shewing deliberately and of their own accord went to his out post with money to bribe him in order to secure the release of a supposed criminal. Under these circumstances we think their evidence should have been very carefully scrutinized before it was accepted as true.

Apart from hearsay statements, the only evidence which really implicates the Head Constable is the evidence of the witness Umed Ali, and this coming from a person in his position and unsupported as to the payment of the money we are not disposed to accept as true; it is in itself improbable and to some extent inconsistent with that of the two persons who were with him. The story generally may be true except as to the making over of the money which may still be in the pocket of Akkel. Putting Umed Ali''s evidence aside, there is no evidence as to what took place between the Head Constable and Akkel, and the Head Constable said nothing which would implicate himself. After that the witnesses say they went away. On the day following, the Head Constable went to the Complainant''s village ostensibly, it is said, to enquire into the case of theft, but there is nothing to shew that his real object in going there was not to enquire into it. He met Akkel and the Complainant. The Complainant had no conversation with him and does not know what passed between him and Akkel, but Akkel said that 100 rupees more must be paid in order to secure the release of the Complainant''s brother. That statement again is not evidence against the Head Constable. Thereupon the Complainant again endeavoured to raise the money required, and the evidence shews that he did raise the sum of Rs. 60 by the sale of some of his goods; There is nothing to show what the Head Constable did that day, but in the evening he went to the Complainant''s house, and it is said that while he remained in the Palki the sum of Rs. 60 was made over to Akkel in the presence of a number of villagers at the Complainant''s house. The evidence is by no means consistent on the question whether the making over the money could have been seen by the Head Constable. After this it is said Akkel and the Head Constable went away, but where they went 10 is not known. This is the evidence bearing on the charge of the abetment of the offence of cheating the Complainant out of Rs. 60. There is no evidence that the money ever reached the hands of the Head Constable or as to what passed between the Head Constable and the Akkel either before or after the making over of the money to the latter. It is quite possible that Akkel intended to cheat the Complainant, but there is no evidence to shew that the Head Constable knew of this intention, and we think that from his conduct no inference of knowledge can be drawn. Of course if the first charge is established, namely, that the Head Constable had on a previous day received a bribe from Akkel for the release of the Complainant''s brother, and had demanded a further sum, his subsequent presence in the village in the company of Akkel, and the payment of money to Akkel under the circumstances stated might afford ground for inferring a guilty knowledge, but if the first charge is not established, the presence of the Head Constable in the village, and his going to the house of the brother of the supposed thief is not inconsistent with what the Head Constable says he was doing, namely, enquiring into the case of theft. Putting aside the evidence of statements said to have been made by Akkel, the conviction on the second charge rests on inferences drawn from the conduct of the Head Constable.

In our opinion the evidence does not justify the conviction, and we must set it aside on the grounds already stated, namely, that the lower Courts have not considered the evidence from the point of view that the persons giving it on the charge of bribery at least were accomplices; and that hearsay evidence on important points has been improperly admitted. There is no reason to doubt that the Complainant has been defrauded of his money; but it is quite possible that that money is still in the hands of Akkel, who, it is said, has since absconded. It is at least not proved that it has found its way to the pocket of the Head Constable, or that the latter was concerned in a conspiracy with Akkel to cheat the Complainant. The Head Constable, we may add, appears to have made no endeavour to secure the release of the Complainant''s brother. We set aside the conviction and sentence and direct that Petitioner be released.