State vs Bashamber Dayal

Passey, J.—This is an appeal by the State against the order of S. Jawala Nath, Magistrate 1st Class, Sangrur, acquitting the respondents M. Bishamba''r Dayal and Parma Nand of the charge of taking illegal gratification. The prosecution case against them briefly summarised was as follows:

On the death of one Pakhar Singh of village Nagra, his adopted son Atma Singh claimed to succeed to his property. On the other hand, a similar claim was advanced by the collaterals of the deceased. Mutation of the estate left by Pakhar Singh had been entered in the mutation register at No. 1608, but no final order on it had been passed for about two years after the death of the last owner. M. Bishambar Dayal was a Naib Tehsildar and Parma Nand a field Qanungo in. Tehsil Sangrur. It was stated that they asked Mukand Singh, natural father of Atma Singh, to pay them Rs. 300/- on receipt of which he was assured that the mutation would be sanctioned in Atma Singh''s name. About a fortnight before 7-2-1950, Luchhman Dass Patwari Halqa Nagra (Tehsil Sangrur) went to see S. Balindar Singh, Assistant Commissioner, in connection with his transfer. During the course of the talk with him S. Balindar Singh enquired as to how things wore going on in his Circle. Lachhman Dass replied that the accused were in the habit of accepting bribes. S. Balindar Singh asked him to give him a concrete case. On 4-2-1950, M. Bishambar Dayal and Parma, Nand went to Nagra in connection with the attestation of mutations. On the morning of 5-2-1950 M. Bishambar Dayal asked Lachhman Dass to call Mukand Singh from his village Kamalpur, so that the mutation, relating to the succession of Pakhar Singh could be decided. Lachhman Dass brought Mukand Singh with him to Nagra at about noon. Mukand Singh went up to the Chaubara in which the Naib .Tehsildar was busy with official work and it is alleged that the Naib Tehsildar took him aside and settled the bargain at Rs. 300/-. Mukand Singh promised to pay that amount at Sangrur on 7-2-1950. On meeting Lachhman Dass after interviewing the Naib Tehsildar, he informed him of his talk with M. Bishambar Dayal and further told him that out of Rs. 300/- Rs. 200/- would be the share of the Naib Tehsildar and the balance, viz. Rs. 100/- that of the Qanungo. Lachhman Dass asked Mukand Singh to go and see S. Balindar Singh on 6-2-50. Mukand Singh went to the house of S. Balindar Singh at Sangrur and told him that he had been sent by Lachhman Dass and also informed him of what had been settled by him with the accused. S. Balindar Singh asked him to bring the money to him and not to pay it to them. On the next day, i.e., 7-2-1950 Lachhman Dass accompanied by Mukand Singh went to the Court of S. Balindar Singh who was officiating as District Magistrate. S. Balindar Singh told Lachhman Dass to meet him at his house at 1 P.M. Both Lachhman Dass and Mukand Singh went to S. Balindar Singh at the appointed time and Mukand Singh made over to him three G.C. Notes of the value of Rs. 100/- each. S. Balindar Singh took those notes to Major Harpal Singh, Superintendent of Police, Sangrur, and repeated to him the information given by Mukand Singh. S. Harpal Singh after taking down the numbers of the G.C. notes on a chit (Ex. P. B) and putting his initials on them returned them to S. Balindar Singh. The G.C. notes bore the following Nos.:

S. Balindar Singh returned with the initialled notes to his house and gave them to Mukand Singh to be delivered to the two accused at the appointed place. He further told Mukand Singh and Lachhman Dass that S. Harpal Singh and he would be waiting in the office of S. Harpal Singh and that a raid would be made for recovery of the G.C. notes as soon as information of their having actually passed over to the accused would reach them. Major Harpal Singh had also deputed a Constable Mai Singh to inform him and S. Balindar Singh as soon as the notes were accepted by the Naib Tehsildar and the Kanungo Lachhman Dass was asked to mate a signal to Mai Singh immediately the G.C. notes were placed in the hands of the accused so that he could convey the information to S. Balindar Singh and S. Harpal Singh. The story further goes that Mukand Singh, Lachhman Dass and Mai Singh thou came to the Court of the Naib Tehsildar and while Mukand Singh went inside and Lachhman Dass stood in the Verandah in front of the court-room, Mai Singh took his stand near a window. Mukand Singn gave two G.C. notes to M. Bishambar Dayal and the third to Parmanand. Lachhman Dass then made a signal to Mai Singh who hastened to inform Sardar Harpal Singh and S. Balindar Singh. Both S. Balindar Singh and S. Harpal Singh immediately proceeded to the Court of the Naib Tehsildar and just as they were ascending the steps, M. Bishambar Dayal was heard to say to Parma Nand "send these to my house." They asked the accused to deliver up the G.C. notes received by them as illegal gratification adding as a warning that in case they hesitated to do so, their persons would be searched. Parma Nand tried to slip out of the room but was obstructed by S. Balindar Singh and just then he threw two notes Nos. B 40 538890 and B 40 71.745. towards the threshold of the entrance door. The notes so dropped were picked up by S. Balindar Singh and he asked for the third note as well from the Qanungo. Parma Nand then brought out the third note from a pocket of his coat and tried to conceal it under a register lying on the table of the Naib Tehsildar. As he had been seen doing so by S. Balindar Singh, he could not be successful and the note was taken over by S. Balindar Singh. The numbsr of the third note was B 45 031431. The numbers of the three G.C. notes that were thus recovered, were exactly those that had been taken down on the chit (Ex. PB) by S. Harpal Singh. They also bore his initials. In the meantime M. Guryev Singh, A.S.I., happened to arrive there and was asked to prepare a recovery memo which he accordingly did in the presence of Major Harpal Singh and S. Balindar Singh. That memo is Ex. PC. Thereafter S. Balindar Singh wrote out a complaint (Ex. PA) and sent it to the S.P. Sangrur for investigation. The chit (Ex. PB) and the recovery memo (Ex. PC) were also sent along with the complaint. The S.P. sent on the complaint together with the annexures to the S.H.O. Sangrur for necessary action. The accused were put up for trial after necessary further investigation. The above is in main the prosecution story.

The proof of the commission of the offence alleged to have been committed by the accused rests on the statements of Mukand Singh, Lachhman Dass, S. Harpal Singh, S. Balindar Singh and Mai Singh. The accused denied the charge and examined six witnesses in defence. Mukaud Singh, P.W. is the person with whom the amount of the bribe was set-Jed and it was he who paid Rs. 300/- to the two accused at Sangrur, the Naib Tehsildar receiving two G.C. notes of the value of Rs. 100/- each and the Qanungo getting one note of similar denomination. Lachhman Dass was present in the adjoining Verandah of the court-room and could very easily see what was transpiring inside. Both of them have stated that two G.C. notes were given to the Naib Tehsildar and one to Parma Nand Qanungo. Their evidence also shows that the mutation regarding the estate of Pakhar Singh was pending before the Naib Tehsildar and that Atma Singh was one of the claimants to that estate. Mukand Singh, natural father of Atma Singh minor, had been called through Lachh-man Dass by the Naib Tehsildar apparently for making final orders on the mutation. The evidence of Mukand Singh and Lachhman Dass is attacked by the respondents'' counsel as being that of accomplices and therefore, tainted and unreliable. Mukand ''Singh had not complained to anybody against the prolonged course that the mutation in question had taken. He has not stated that he had ever appeared before the Naib Tehsildar in connection with the mutation prior to his being called by M. Bishambhar Dayal to Nagra on 5-2-1050. There was no personal ill-feeling between him and the Naib Tehsildar or the Field Qanungo. Although the accused had demanded Rs. 300/- from him he had of himself no mind to complain against that oppressive demand to any superior officer. It was on the suggestion or instigation of Lachhman Dass that he went and complained to the Assistant Commissioner that the accused wanted him to pay Rs. 300/- as illegal gratification. Lachhman Das patwari had also no cause to concoct a false case against either of the accused under whom he was working. I am unable to agree that he cooked up a false case and made Mukand Singh an instrument to involve the Naib Tehsildar and the field Qanungo only to please S. Balindar Singh for getting himself transferred from Nagra. It was only casually that the talk between him and S. Balindar Singh turned to the reputation of the two accused. As Assistant Commissioner S. Balindar Singh felt that it was his duty to take action against corrupt subordinates, but he refused to move against them unless some concrete case was forthcoming. He bad no personal ill-will, or bitterness towards either of the accused. As stated above the payment of Rs. 300/- to the accused has been sought to be proved by the evidence of Mukand Singh and Lachhman Dass. The recovery of the three G.C. notes that had been initialed by the S.P. from the possession of Parma Nand is proved not only by Mukand Singh and Lachhman Dass but by S. Balindar Singh and S. Harpal Singh also.

The trial Magistrate has discarded the evidence of Mukand Singh and Lachhman Dass as being that of decoy witnesses who are of the type of accomplices. According to him their testimony cannot be relied upon wilhout independent corroborative evidence. The trial Magistrate has not accepted the evidence of S. Balindar Singh and S. Harpal Singh as corroborative, because they were the trap lagers and consequently interested in the success of the trap. The view taken of these four witnesses'' evidence does not appear to me to be sustainable. A distinction has to be drawn between'' an Accomplice and a decoy witness, the former being a person who joins another with the intention of aiding the commission of an offence and the latter who is instrumental in provoking the commission of the offence with the object of discovering the offence and detecting the offender. If the object of the giver of the bribe in passing on the bribe to the person who is induced to do favour or secure favour for him, is to gain benefit by that bribe he would evidently fall within the category of persons who associate themselves with the perpetrators of the crime for the purpose of perpetrating the crime. But if he acts only as an agent of the prosecution for detecting a crime he would not be an accomplice for he lacks the necessary mens rea that would make him an offender or participator in a crime. The definition of the word ''accomplice'' is not available in the Evidence Act nor in any other enactment. In Wharton''s Law Lexicon, 14th Edition, however it has been described to mean one concerned with another or others in the commission of a crime. The word ''accomplice'' in my view is interchangeable with an associate in crime who is consciously so connected with the criminal act done by his confederate, that he on account of the presence of the necessary ''mens rea'' and his participation in the crime in some way or the other can be tried along with that confederate actually perpetrating the crime. A decoy witness is thus not always or recessarily an accomplice. He would be an accomplice if he induces the acceptor of the bribe to do an act for him or to show him some concession or favour on receipt of the bribe. He would fall out of the accomplice class if his intention is not to secure any benefit for himself by offering the bribe, but to have the offender disclosed and brought to book. To decide whether a person is or is not an accomplice the facts of each particular case have to be borne in mind. The nature of the offence committed has also to be taken into consideration. If a person becomes a spy or a detective of the police or any other authority in the discovery of the crime and the punishment of the offender, he would not be an accomplice in the sense the word is used in legal terminology, even though he may have played an important role as an abettor technically. In every case, it is the mens rea of the witness that would decide his role. In - Emperor v. Chatur Bhuj Sahu 38 Cal 96 (A), a Division Bench consisting of Holm Wood and Doss JJ. after reviewing the case law on the subject held that

a person who makes himself an agent for the prosecution with the purpose of discovering and disclosing the commission of an offence, either before associating with wrong doers or before the actual perpetration of the offence is not an accomplice, but a spy, detective or decoy whose evidence does not require corroboration though the weight to be attached to it depends on the character of each individual witness in each case.

But a person who is associated with an offence with a criminal design, and extends no aid to the prosecution till after its commission is an accomplice requiring corroboration. I am entirely in respectful agreement with'' than enunciation of the law. In cases of illegal gratification the uncorroborated evidence of a decoy witness can form the basis of a valid conviction provided it can warrant the safe and unhesitating conclusion that what it divulges is true, convincing and credible. The rule of caution which has become a recognised rule of law that it is unsafe to convict a person on the uncorroborated evidence of an accomplice does not equally apply where the witness is simply a decoy witness. A decoy witness has to be kept apart from the rank of accomplices who are actual criminals as they intentionally and voluntarily participate in the commission of a crime. Mere aiding in the detection of a crime by becoming an instrument of detection without any intention to commit the crime and without any intention to make gain out of the perpetration of the crime, cannot make the person so aiding an associate in crime.

In the present case, Mukand Singh had not given the money to the accused to make any gain out of the payment. His object was not that the mutation be sanctioned in favour of his son at in a Singh. His object in paying Rs. 300/- to the accused was to expose them as criminals. Similar was the object with which Lachhman Dass joined Mukand Singh. Neither of them was, therefore, an accomplice and the view of the trial Magistrate in describing them as accomplices is erroneous. S. Balindar Singh and S. Harpal Singh''s evidence has aiso not been given its due weight. They were not out to see that the trap succeeds by any moans fair or foul. They wanted to lost the veracity of the imputation of dishonesty and corruption levelled by Mukand Singh and Lachhman Dass against the accused and for doing so they planned the necessary way and put Mukand Singh and Lachhman Dass on it. They were doubtlessly responsible officers of the District, one being an Assistant Commissioner and the other a Superintendent of Police. S. Balindar Singh was on the day of occurrence officiating as the District Magistrate. Their statements have impressed me as honest and truthful, free from improvements or exaggerations and any material conflict. Their evidence relates chiefly to the laying of the trap and the recovery of the G.C. notes from the possession of Parma Nand in the court-room of the Naib Tehsildar. Mukand Singh and Lachhman Dass are corroborated by S. Balindar Singh and S. Harpal Singh who have proved the recovery of the three G.C. Notes from Parma Nand respondent. It was Parma Nand who held the G.C. notes with him when the raid was made. In his nervousness he tried to get rid of them by throwing two notes towards the threshold of the entrance door and concealing the third under a register. It is not disputed that the G.C. notes recovered were those that had been initialed by S. Harpal Singh. The contention that Mukand Singh or Lachhman Dass had concocted a false case has apparently no force. None of thorn had any reason to do so and the fact that the payment and recovery wore made in the court belies that suggestion. The evidence of Mukand Singh shows that it was Parma Nand who had originally demanded Rs. 500/- from him and then referred him to the Naib Tehsildar on 5-2-1950. So far as the acceptance of illegal gratification by Parma Nand is concerned, I have thus I, little doubt. The trial Magistrate has in his I judgment pointed out certain discrepancies in the statements of witnesses. Those discrepancies are of an immaterial nature. Mukand Singh has stated that before he made over the money to the two accused, he had seen another person whom he calls a writer, apparently meaning the Reader of the Naib Tehsildar, in the court-room while Lachhman Dass has stated that none except the Naib Tehsildar and Parma Nand were present there. Mukand Singh has also stated that that Reader had been asked by the Naib Tehsildar to quit the room before he paid the bribe. It is thus obvious that in the presence of that person no money had passed nor had any talk in that connection taken place. The raid in the court-room of the Naib Tehsildar had created a sensation all around. If thai person had been present he must have come back to the court-room. He was not seen by any other witness. It appears that Mukand Singh had some incorrect impression about the presence of the Reader of the Naib Tehsildar in the court-room. There is no other material discrepancy worth the name.

So far as M. Bisharnbar Dayal respondent is concerned, the case does not appear to be free from reasonable doubt. When S. Balindar Singh and S. Harpal Singh entered the Court Room and asked the accused to make over the initial led G.C. notes that had been given to him by Mukand Singh he at once replied that he had not received any such money and that he could be searched. No money was covered from him. The only circumstance casting suspicion against him was that he had been heard by S. Balindar Singh to say that ''send these to my house''. These words, it is urged, proved that M. Bisharnbar Dayal had delivered his ''share of the bribe, viz., two G.C. notes to Parma Nand with the direction that they be sent to his house. This is too slender an evidence to hold the Naib Tehsildar guilty particularly when on this very point the evidence of S. Harpal Singh is not so clear. S. Harpal Singh has stated that when he was, along with S. Balindar Singh, ascending the .stairs, he had heard something but he could not recollect as to what that conversation was. Lachhman Dass P.W. has stated that signal to Mai Singh was given after M. Bisharnbar Dayal had made over two. G.C. notes to Parma Nand. This would show that it would have been impossible for S. Balindar Singh or S. Harpal Singh to hear what M. Bisharnbar Dayal had said to Parma Nand. With regard to the words alleged to have been spoken by M. Bisharnbar Dayal to Parma Nand the evidence is not only not uniform but not clear as well. The same amount of corroboration of the evidence of Mukand Singh and Lachhman Dass that is available against Parma Nand is not present against M. Bisharnbar Dayal.

The learned Advocate-General has argued that although nothing incrmiinating was recovered from the Naib-Tehsildar, yet there are circumstances and evidence to indicate his complicity. He has referred to the statements of Mukand Singh and Lachhman Dass and laid stress on the fact that the incident had happened in the court-room of the Naib-Tehsildar. We have held that no part of the amount that was said to have been given as bribe was recovered from M. Bisharnbar Dayal and that should make the receipt of the money by him doubtful. We agree that I lot of suspicion attaches to his conduct but suspicion, however grave concerning the complicity of an accused, cannot take the place of positive proof which must always be insisted upon before he can be convicted of a penal offence. The entire sum of Rs. 300/- was found in the possession of Parma Nand and it perhaps included the share of the Naib-Teh-sildar, but, as stated above, this is not enough proof to hold M. Bishambar Dayal guilty without any hesitation. He may not be innocent but of his guilt doubtless proof is lacking. I would, therefore, give him the benefit of doubt and maintain his acquittal.

So far as Parma Nand is concerned, the charge against him has been proved to the hilt. The State Appeal against him is accepted and he is convicted u/s 161, I.P.C. and sentenced to 6 months'' R.I. and Rs. 200/- fine. If the fine is not paid he would undergo R.I. for three months more.

Chopra, J.

I agree.