P L D 1961 Dacca 806 (PLP)

7. On a reference to the evidence on record there appear, however, to be some discrepancies which require a close examina tion in the present case.

8. According to the evidence of Mr. Nurul Huq Khan, Magistrate, 1st Class P. W. 2 when the person of the appellant was searched person of the witnesses present on that occasion were not searched. Whereas according to the evidence of P. W. 10 Muhammad Wasilul Huq Officer‑in‑charge of Police Station Barguha, he searched the person of the Magistrate (P. W. 2) and that of the witnesses to the search and he also showed his person to the witnesses to the search before the search was made. The evidence of these two witnesses seems to be contradictory in nature. It is difficult to believe in the absence of any corroboration on this point from other reliable witnesses that any search of the witnesses was made as stated by P. W.

10. There is no reason as to why if I am to choose between the evidence of the Magistrate and the Inspector, the evidence of the Magistrate P. W. 2 should not be accepted on this score. On the other hand, it seems that P. W. 10 was a little over‑zealous when he said that he himself searched the person of the Magistrate P. W. 2 and that of the witnesses to the search. It may, therefore, consistent with the evidence of P. W. 2 be assumed that the witnesses who were present at the time of the search of the person of, the appellant, were not searched. It is very desirable that in a case where the possible defence may be a suggestion of planting that precautions should be taken by way of searching the witnesses who might be expected to give evidence of a clean search of the person of the appellant concerned. This, however, does not appear to have been done in the present case as the evidence of P. W. 10 who was examined about 10 days after P. W. 2, cannot be accepted for reasons already indicated above. It need not be mentioned that there is a suggestion from the defence side in the cross‑examination of P. W. 7 that the G. C. note was planted by that witness Ansaruddin Ahmed. The prosecution has, therefore, to prove beyond reasonable doubt that there could be no room or possibility for any planting as suggested by the defence.

9. It is the definite case of the prosecution that a demand was made by the appellant and that in accordance with such demand a sum of Rs. 10 was paid by P. W. 1 Situ Molla to the appellant while the appellant and P. W. I, P. W. 4 and P. W. 7 were sitting in the cabin where the appellant had already entered. According to P. W. I Situ Molla as already stated, a demand was made for the sum of Rs. 10 as agreed upon and on such demand the amount was paid in the form of a G. C. note. This part of the story that in accordance with some demand the amount was paid, is not, however, corroborated by his companion witnesses P. W. 4, P. W. 5 or P. W.

7. P. W. 4 Hossain Ahmad Noori says :‑ "About half an hour after the accused Ansar Ali ameen came to the stall and took his seat in the cabin. We also entered the cabin. Situ Molla offered Rs. 10 in one ten‑rupee G. C. note to the accused. The accused accepted the G. C. note and put it in his lower pocket of his shirt." He does not say that there was any formal demand by the appellant. P. W. 5 Ansar Ali Kazi says :‑ "The accused was seated in the eastern side facing towards west. Situ Molla without having any talk with the accused offered the ten‑rupee note to the accused who accepted the same and kept it in the right hand side of his wearing jama." This witness, therefore, seems to be definite that there was no talk prior to the passing over the G. C. note from Situ Molla to the appellant. To this extent the evidence of a prior demand as stated in the evidence of P. W. 1 Situ Molla is contradicted by P. W.

5. P. W. 7 Ansaruddin was tendered by the prosecution for cross‑examination and there is nothing in his evidence to show that any demand was made by the appellant for the sum of Rs. 10 as alleged by the prosecution. P. W. 1 Situ Molla is undoubtedly a decoy witness and as such it is difficult to accept his interested testimony without sufficient corroboration from independent or reliable witness. He uncorroborated evidence on the point of demand cannot in my view, be accepted. It, therefore, follows that before the money or the G. C. note in question passed from Situ Molla to the‑appellant, there was no demand from the side of the appellant in respect of the same. It is also difficult to believe that any demand was made by the appellant in the cabin as alleged in view of the evidence of P. W. 1 Situ Molla that he left for the Basha of the appellant after the return of the G. C. note by the‑Deputy Magistrate and the Inspector of Police and he contacted the appellant in the latter's house. If it is true as stated by P. W. 1 that the appellant asked P. W. 1 to go to the sweet‑meat stall of Chittaranjan Ghosh, there is no reason why the appellant if he was so eager for the money and if he was so keen on demand he should not immediately ask for the money when the P. W. I contacted him in the Basha or house of the appellant.

10. The learned Advocate for the State has been frank enough to concede that in a trap case like this mere recovery of the money from the possession of the appellant will not be enough to fix him with the guilt as it has to be shown that the accused actually accepted the amount knowing it to be an illegal gratification. The prosecution has, therefore, to prove successfully that there was a conscious acceptance of the money by the appellant concerned. The learned Advocate for the State has contended that it was for the defence to prove the actual planting as alleged. But in my view, even if the defence fails to prove the actual planting yet the prosecution is not absolved from the duty of proving its own case beyond reasonable doubt.

11. According to P. W. 10, all the papers that were seized, were lying on the table in front of the appellant inside the cabin but P. W. 2 speaks a little differently on this point. According to P. W. 2 some of the papers seized were in the table in front of the appellant inside the cabin and some might be in the pocket of the appellant: If it is believed, as stated by P. W. 2 that some papers might be in the pocket of the appellant, then it tallies with the statement of the appellant under section 342 of the Code of Criminal Procedure in which he has said that the Parchas and the instruments were in his pocket from before because it was settled that he would, go to Shilai village in connection with his work there. The evidence of P. W.9 Chittaranjan Ghose the stall‑keeper also supports the evidence of P. W. 2 in this connection. It is thus clear that the evidence of P. W. l0 cannot be accepted in toto on this point. He has proved to be over‑zealous in regard to this point as well.

12. With regard to the story that P. W. I approached the accused for recording the accreted land in his name and that such accreted land was contiguous to plot No. 708/2033 of Silai mouja, it is, however, difficult to hold that the prosecution has given sufficient evidence to connect either of this khatian seized on the occasion with the alleged Char plot or accreted land. On the other hand, P. W. I Situ Molla states in cross examination that he has got no paper to show that the accreted land belonged to him and that he had no witness to prove that the appellant demanded money from him on previous occasions to get his name recorded in the recent Parchas. He has also stated in his cross‑examination that he has got Parcha to show that the plot in question belonged to him. It is, however, unfortunate that none of the parchas could connect the identity of the plots in question. It is true that Exh. 3 refers to a plot having an area of 40 decimals but there is no evidence that the relevant plot as recorded in E.xh. 3 is the accreted land in which P. W. 1 was interested and in connection with which P. W. 1 asked the appellant to get his name recorded in the revised khatian. It is, therefore, difficult also to believe that the appellant was prompted to do something in connection with an accreted land belonging to P. W. 1 Situ Molla. He, however; frankly admits that he has no paper to show that the accreted lands belonged to him. In the absence of any reliable evidence that there was an accreted land in which P. W. 1 Situ Molla was interested it is not possible to accept the prosecution story that P. W. 1 Situ Molla wanted to have some entries recorded with respect to such a property or that the appellant was prompted to ask for some illegal gratification for doing anything favourable to P. W. 1.

13. It may be noted in this connection that although the appellant was brought out of the cabin and then searched in presence of 30 or 35 people, none of such outsider witnesses have been examined. P. W. 1 Situ Molla has admitted that Lal Mia is his agnate. The defence suggestion is that it is in the interest of Lal Mia that Situ Molla along with others has falsely got the appellant implicated in the present case. P. W. 1 Situ Molla, P. W. 4 Hossain Ahmed Noori P. W. 5 Anwar Ali Kazi and P. W. 7 Ansaruddin Ahmed who have given direct evidence in regard to the story of payment of Rs. 10 to the appellant, are people of the same village. P.W.4 Hossain Ahmed Noori admits that he calls Situ Molla as Chacha by courtesy. According to P. W. 7 Ansaruddin Ahmed P. W. 1 Situ Molla is his Fupa and .P. W. 4 Hossain Ahmed Noori is agnate of Situ Molla. It is thus clear that these co‑villagers, particularly P. Ws. 1, 4 and 7 who were somewhat related to each other and P. W. 1 Situ Molla being related to Lal Mia, combined to lay trap against the appellant person. It is in the evidence of P. W. 2 Mr. Nurul Huq Khan, Magistrate Ist Class that P. W. 7 Ansaruddin Ahmed attended two or three other trap cases. This suggests that this man is a handy witness for the purpose of trap cases like this. P. W. 4 Hossain Ahmed Noori is not definite and says that he does not remember whether this witness P. W. 7 Ansaruddin Ahmed and the appellant Ameen entered the stall together or not. As he companied other witnesses he ought to have been sure as to whether P. W. 7 and the appellant Ameen entered the stall together or not. It is not unlikely that by the time the appellant was entering the cabin or the stall this P. W. 7 Ansaruddin Ahmed might have passed the money on to the pocket of the appellant and that without the knowledge of the latter. There is no evidence on the side of the prosecution that there was no possibility of such planting when the appellant entered the Stall or went inside the cabin or when he came out of the cabin on the binding of P. W.10. It also appears to be very unnatural that the appellant should accept an Illegal gratification to the tune of Rs. 10 in the presence of people other than P. W. 1 Situ Molla inside cabin. It was surely known to him that P. Ws. 4, 5 and 7 were not interested in the matter of recording the relevant khatian. It is, therefore, difficult to believe that the appellant if at all he was intent on taking or accepting bribe, he should take it in the presence of such outsiders. On a reference to the evidence of P. W. 2 Mr. Nurul Huq Khan, Magistrate, 1st class, it seems the Inspector caught hold of the hand of the appellant and enquired of him if he had accepted any amount from Situ Molla P. W.

1. According to his evidence the appellant denied to have received any amount. The challenge thrown to the appellant, therefore, according to the evidence of this witness took place while the appellant was inside the cabin and on the denial of the appellant he was brought out of the cabin and his person was searched. But according to the evidence of P. W. 10 it appears that he caught hold of the appellant by his hand and brought him out of the cabin and then he challenged the appellant. Thus according to this witness, the challenge took place after the appellant was brought out of the cabin and not when he was inside the cabin. This contradictory nature of the evidence of these two witnesses creates enough scope for reasonable doubt as to whether the appellant was challenged inside the cabin or outside it and as to whether there was any possibility or likelihood of planting the G. C. note in between the time when the challenge was made and when the appellant was being taken out of the cabin P. Ws 1, 4, 5 and 7, as already indicated, are interested and the evidence of P. W. 2 and P. W. 10 is contradictory in material respects; the Purchas seized either from the person of the appellant or from the table, do note successfully connect the identity of the plots in question in so far the accreted lands are concerned. All these discrepancies would be enough to raise a doubt as to whether the appellant willingly, voluntarily or knowingly, accepted the sum of Rs. 10 said to have been offered by P. W. 1 Situ Molla. As observed in the decision of Lieutenant Hector Thomas Huntly v. Emperor (A I R 1944 F C 66 (68)). "If after everything that can legitimately be considered has been given its due weight‑room still exists for taking the view that however strong the suspicion raised against the accused every reasonable possibility of innocence has not been excluded, he is entitled to an acquittal." In the present case the evidence of P. W. 1, P. W. 4, P. W. 5 and P. W. 7 being interested and P. W. 10 having been shown to be a little over‑zealous and there being discrepancy in the evidence of P. W. 10 when compared with that of P. W. 2 and there being absence of any possible connection between the seized Parchas and the accreted lands claimed by P. W. I, it may be said that every reasonable possibility of innocence has not been excluded in the present case. In the absence of a proper search as pointed out above and the possibility of planting any G. C note through P. W. 7 being not wholly excluded, it is quite likely that the appellant had no knowledge of the existence of G. C, rote of Rs. 10 in his pocket. His statement under section 342 of the Code of Criminal Procedure clearly explains the position and I am inclined to think that in the circumstances as stated above, he is entitled to the benefit of doubt.

14. In the result this appeal succeeds and is accordingly allowed and the conviction and sentence as passed on the appellant are set aside. The appellant is discharged from his bail bond and if the fine is already paid by the appellant the same be refunded to him. K. M. A. Appeal accepted.