P L D 1960 Dacca 727 (PLP)

"To establish a case of bribery against the accused for having accepted marked currency notes from a decoy witness employed by the police in furtherance of a trap against the accused, it is not sufficient to prove that marked notes passed from the decoy witness to the accused. It is of the utmost importance in cases of this kind that there should be independent corroboration of the statement of the decoy witness that the money was received by the accused person for an illegal purpose:"

7. In the case of M. C. Mitra v. The State, it was held as follows :‑ "Ordinarily, the prosecution would be liable to prove the motive or reward under section 161, Penal Code, or absence or inadequacy of consideration under section 165, Penal Code, because such motive or reward or such absence or inadequacy of consideration is part of the very offence under sections 161 or 165, Penal Code, respectively."

8. Mr. M. Fazlul Huq appearing for the State contends that the principles laid down in the aforesaid cases, cited by Mr. B. N. Chowdhury, are broad principles and they cannot be applied without any reservation in every case, as each case should be dealt with on its own facts and circumstances, and, in support of his contention, he has relied on the provisions of sections 133 and 114 (b) of the Evidence Act and also on the cases of Akhoy Kumar Chuckerbutty v. Jagat Chunder Chuckerbutty (I L R 27 Cal. 925 (927) ), Kamala Prasad v,. Sital Prasad (I L R 28 Cal. 339), Papa Kamal Khan v. Emperor (I L R 59 Bom. 486), Abdul Bari Sikdar v. The Crown ((1955) 7 D L R 457), Md. Yusuj v. The Crown ((1955) 7 D L R 302), Muhammad Alauddin v. The State (P L D 1959 Dacca 92) and Hayat Ali v. The State (P LD 1957 Lah. 562).

9. In the case of Akhoy Kumar Chuckerbutty v. Jagat Chunder Chuckerbutti, it was held as follows :‑-- "It is contended before us that the money was an illegal gratification, that, therefore, the offence, if any, committed is under section 213 of the Penal Code, rather than extortion under section

384. In one sense the offence may be so regarded, and in that case Panchu might be regarded as an accomplice, but, on the evidence we think that it is sufficiently shown that the money was not voluntarily given, and it was not given in con sideration of the Sub‑Inspector not proceeding against Jagat Chunder for the purpose of bringing him to legal punishment. It was given to obtain his release from police custody in which he was detained on no 1,easonable or sufficient ground, and it was extorted, because the Sub‑Inspector refused to release him as he was bound to do, unless he were paid that money. A person paying such money under such circumstances cannot be regarded as an accomplice of the Sub‑Inspector in such mis conduct." In Kamala Prasad v. Sital Prasad, it was held as follows :‑

"When a person is only an accomplice by implication or in a secondary sense, his evidence does not require the same amount of corroboration as that of the person who is an actual participator with the principal offender. In dealing with the question what amount of corroboration is required in the case of testimony given by an accomplice, the Courts must exercise careful discrimination and look at the surrounding circumstances, in order to arrive at a conclusion whether the facts deposed to by the per3on alleged to be an accomplice art borne out by these circumstances or whether the circumstances are of such a nature that the evidence purporting to be given by the alleged accomplice should be supported in essential and material particulars by evidence aliunde as to the facts deposed to by that accomplice."

10. In the case of Yusuf v. The Crown, a Division Bench of this Court held that corroboration of an accomplice by circum stantial evidence was sufficient to warrant a conviction ; and in the case of Abdul Bari Sikdar v. The Crown, it was held: "The rule of the Court which requires corroboration of the evidence of an accomplice as against each accused, if it applies at all, applies with very little force to a case in which the accused is charged with extorting a bribe from other persons. The objections which usually arise to the evidence of an accomplice do not really apply where the alleged accomplice, that is the person who pays the bribe, is not a willing participant in the offence, but is really a victim of that offence. In cases of this kind, a slight corroboration may be sufficient to induce the Court to rely upon his evidence." After quoting with approval the cases (A I R 1944 Federal Court 66, and A I R 1918 Lah. 27), cited before me my Mr. B. N. Chowdhury on behalf of the appellant, a Division Bench of this Court held in Muhammad Alauddin v. The State as follows: "These are no doubt very weighty observations and we are in respectful agreement with them. But we would like to point out that such corroboration may be furnished, as has often been held, even by circumstantial evidence and furthermore that, where it is apparent that the bribe‑giver is not a willing party to the payment of the bribe, even a slight corroboration may be sufficient to induce us to hold that the bribe‑giver's evidence is sufficiently worthy of belief and may safely be relied upon".

11. I need not refer to the other cases relied on by the learned Advocate for the State, as they are in the same line with the cases I have stated above.

12. Decisions on the general principles are uniform and there cannot be any question on the principles as laid down in the case of Lieutenant Hector Thomas Huntley v. Emperor. But, in my considered opinion, these principles cannot be applied in toto irrespective of the facts and circumstances of each particular case. Each case should be dealt with in its proper perspective. There should be made a clear distinction between a case of a willing participant or bribe‑giver and that of a unwilling participant or bribe‑giver. In the case of a willing participant or bribe‑giver or accomplice, the general principle may apply without any reservation; but in the case of a unwilling participant or bribe‑giver, a slight corroboration of the testimony of the accomplice will be sufficient to warrant a conviction as laid down in the case of Mohammad Alauddin v. The State. Having this principle in view, I will now dispose of this appeal.

13. To prove the prosecution case, the prosecution has examined as many as 16 witnesses. Of them, the evidence of P. Ws. 1‑7 and 15‑16 are material. The defence has examined none. It is not disputed by the defence that P. Ws. 5‑7 were arrested by the appellant. I have gone through the evidence and I find that there is sufficient evidence on record to show that P. Ws. 5‑7 were arrested by the appellant as alleged by the pro secution.

14. To prove demand of bribe by the appellant, the prosecu tion has mostly relied on the evidence of P. Ws. 5‑7, the arrested persons. They in a body have deposed that bribe of Rs. 200 was demanded by the appellant from each of them in the tom tom while going to the Thana ; that Rs. 200 was subsequently reduced to Rs. 100 by the appellant for their release ; that P. Ws. 5‑7 told P. Ws. 1‑3, the Muktears, of the said demand and the ultimate settlement with the appellant at Rs. 100 to be paid by each of them ; that as they had no money with them, they asked the said Muktears to stand their sureties fir the money which the latter did, and ultimately the three persons were released.

15. These witnesses have been characterised as unworthy of credit as they are alleged to be accomplices. From the evidence on record, it is clear that they were not willing to pay the bribe but they were compelled, in the circumstances, to give the same in order to get their release. So, in my opinion, a slight cor roboration will be sufficient to accept their evidence. These witnesses have been borne out by P. Ws. 1‑3, the Muktears, on material particulars, whose evidence I have been asked to reject, they being decoy witnesses.

16. Then comes the questions of payment to, and recovery of bribe‑money from, the accused‑appellant. The prosecution for this part of the case has relied on the evidence of the trap party, namely, of P. W. 3 (Md. Sultan Muktear), P. W. 4 (Mozammel Toque, S. 1. of Police), P. W. 15 (A. Rahim, Magistrate) and P. W. 16 (F. R. Khan, Assistant Director, D.A.B.) The evidence on record is sufficient to prove that the trap as alleged was laid. The evidence of P. Ws. 3, 4, 15 and 16 is that P. W. 3 was sent with money to the house of the appellant in advance ; that P. Ws. 4, 15 and 16 followed P. W. 3 later on ; that the said P. Ws. 4, 15`and 16 took up their position in different places; and that when P. W. 4 gave signal to P. Ws. 15 and 16, they rushed to the house of the appellant. It is in evidence of P. W. 16 that he was ahead of other P. Ws. and saw a bundle of Pak. currency notes in the right hand of the appellant ; that, as he was going to catch hold of the appellant, the appellant tried to conceal the said notes on the head of the pillars and that, as his (appellant's) hand trembled, the notes fell down. P. W. 15 has deposed that he saw the appellant keeping some notes in rolled condition on the top of the pillars but the said notes fell down. P. W. 4 has deposed that as soon as he heard the appellant saying "where is my money", he gave a signal to the other P. Ws. and that he saw the appellant place the closed fist of his right hand on the flat portion of a pillar and some notes falling down. P. W. 3 has deposed that he handed over Rs. 150 to the appellant. Further, all these witnesses have deposed that after comparing the notes which fell from the top of the pillar, it was found that one hundred‑rupee note was the note whose number was taken for the purpose of giving bribe to the appellant. I have been asked to reject their evidence on the ground that they are decoy witnesses and that their evidence is full of discrepancies and is not trust worthy. It has been contended that excepting P. W. 3 none of the prosecution witnesses has deposed that he saw the payment of bribe to the appellant. It is true that his evidence only cannot be the basis of conviction of the appellant. P. W. 4 has deposed that he heard the appellant, who was known to him from before, asking where was his money. Reasons for enmity have been suggested but the same has been denied. P. W. 15's evidence has been challenged on the ground that a Magistrate, who aligns with a trap party, should not be believed ; and, for this, reliance has been placed on the case of M. C. Mitra v. The State. Mr. M. Fazlul Huq, in order to meet this contention of the learned Advocate for the appellant, has relied on the case of Hayat Ali v. The State. It is contended that the evidence of a Magistrate may be believed though he may be a member of a trap party inasmuch as there is nothing illegal in it.

17. It has been further contended on behalf of the appellant that if the time factor, as deposed to by the prosecution witnesses be considered, it will be seen that the prosecution case is a faked one. In this connection, it has been pointed out that P. W. 1 got money at about 4‑20 p.m. So, according to the learned Advocate, it was not possible for the trap party to reach the house of the appellant before 6‑30 p.m., and further, as the occurrence took place on the 20th of January 1958, it was dark at the time of payment ; so it was not possible for the trap party to see the signal given by P. W. 4 and also the notes in the hands of the appellant. This contention has no substance in it, because there is evidence on record to show that the trap party started at about 4‑45 p.m. and reached the house of the appellant within a short time. It has been further contended that the western side of the verandah is closed and that, if reference be made to the map, it will be seen that none could see the payment of bribe to the appellant. This contention has also no substance because it is not the prosecution case that P. Ws. 4, 15 and 16 saw the payment of bribe to the appellant but that signal was given by P. W. 4 on hearing the demand of bribe by the appellant from P. W. 3.

18. It has been lastly contended that money was transplanted by P. W. 3, which is proved by the fact that, according to the evidence of P. W. 3, the appellant talked with his wife by which time P. W. 3 might have transplanted the money, and, furthermore, if the money had been received by the appellant, then he might have thrown the same through the window or door of his house. I cannot accept this contention, as there is direct evidence on record that the money was seen in a relied condition in the right hand of the appellant and the same fell down from the pillar when the appellant withdrew his hand. It has been satisfactorily proved by the prosecution witnesses that the one‑hundred‑rupee note whose number was taken before and which was sent through P. W. 1 was recovered from the appellant. The recovery of the said note and the circumstances in this case are sufficient corrobor ation of the evidence of the decoy witnesses and also of P. Ws. 5 to

7. The discrepancies suggested by the learned Advocate for the appellant, in my opinion, are not material discrepancies and, furthermore, mere suggestion is no evidence. In my considered opinion, from the evidence on record, namely, the evidence of P. Ws. 5‑7 who did not give bribe willingly and who were not decoy witnesses and also the evidence of the decoy witnesses taken together with the recovery of a hundred rupee note from the appellant, it can safely be held that the guilt of the appellant has been proved beyond reasonable doubt.

19. Lastly, reduction of sentence of the 'appellant has been prayed for on the ground that the appellant has lost his job and suffered imprisonment for some days ; and, in support of this prayer, reliance has been placed on the case of Rash Behari Panday v. State (AIR1955Al1.75). In my opinion, in the facts and circumstances of the case, the ends of justice will be sufficiently met if the sentence of four months' rigorous imprisonment and a fine of Rs. 500, in default, R.I. for one month more, be reduced to the period already undergone.

20. The appeal is, accordingly, dismissed with the modifi cation of the sentence as indicated above. The sentence of fine as set aside and the imprisonment is reduced to the period already undergone.

21. The appellant is discharged from the bail bond furnished by him. K. B. A. Appeal dismissed with modification.