A.N. Mulla, J. - (1.) Sri C. N. Peters has been convicted under Section 161, I.P.Code and sentenced to fifteen months' rigorous imprisonment and a fine of Rs. 300/-, in default further rigorous imprisonment for three months by Sri K. L. Arora, Special Judge, Lucknow. The charge against the appellant is that he demanded and received illegal gratification from Kalapnath Lal Guard on 14-2-1955 at about 4 P. M. in the Guards' Running Room at Gorakhpur Railway station.
(2.) The prosecution story is that the appellant was posted at Gorakhpur as the Claims Prevention Inspector in the North Eastern Railway. Kalapnath Lal was a Guard in the same railway with his headquarters at Gonda. On the 8th February 1955, Kalapnath had taken a goods train from Gonda to Gorakhpur and when the train reached Gorakhpur it was found that some bags were stolen away from one of the wagons in the train. A report was made to the Government Railway Police and enquires were started. The appellant who was present at Gorakhpur joined this inquiry on his own without being directed to do so. On 9-2-1955, the appellant demanded Rs. 300/- from Kalapnath Guard as illegal gratification telling him that he will give a favourable report, but if this money was not paid to him, he will give an adverse report. Kalapnath did not like to part with Rs. 300/- and so he went to Sri D. D. Pathak, a Railway Sectional Officer attached to the Special Police Establishment and he handed a written report to him on 11-2-1955. Sri Pathak contacted the Superintendent of Police, Special Police Establishment and Sri M. A. Ahmad, Inspector of Police was deputed to lay a trap. This trap was accordingly laid on the 14th of February and it was arranged that the illegal gratification should be paid in the Gurads' Running Room at about 4 P. M. In the trap two independent witnesses were also included. The witnesses who were present at the time when this money was handed over to the appellant were (1) Sri Istafa Husain, M. L. A., (2) Sri S. C. Dhar, (3) Sri D. D. Pathak (4) Sri R. B. Singh, (5) Sri K. B. Khare, (6) Sri Nakchhed Tewari and (7) Inspector M. A. Ahmad, Out of the seven witnesses named above, two were Railway Sectional Officers, two were railway guards, one was an inspector of police and two were independent persons. The transaction was watched by these witness ses who also heard the talk that proceeded the transaction. The moment the money was handed over and pocketted by the appellant Sri M.A. Ahmad disclosed his identity and took the search of the appellant. It may be mentioned that the numbers of the notes which constituted Rs. 300/-paid as illegal gratification were noted down earlier and their list was prepared. These Rs. 300/- were recovered from the pocket of the appellant, who produced them himself. When the numbers were compared, they were found to be the same lot. Sri M. A. Ahmad asked the appellant to explain the presence of these notes with him and thereupon the appellant wrote down a statement in his own hand which is marked Ex. P. 3. Sri Istafa Hussain then recorded the recovery Memo, and this was signed by the other witnesses also. Sri M. A. Ahmad then procured the necessary sanction and after investigating the case prosecuted the appellant. 2A. The defence of the appellant is not easy to understand. He has been changing his defence from place to place and from court to court. In Ex. P. 3 the statement which he made spontaneously on first questioning, he took up the stand that these Rs. 300/- were taken by him from Kalapnath as a loan. In his second statement made before Sri Zutshi on 10-4-1956 he took up the following stand: "Q. Is it a fact that you obtained a sum of Rs. 300/- in G. C. Notes from Sri Kalapnath Lal or 14-2-1955 as illegal gratification for showing official favour to him? A. The sum of Rs. 300/- was given to me by Sri Kalap Nath Lal on 14-2-1955 at about 4 P. M. to be given to the Officer who would have dealt with his case. I took that amount under pressure of certain friends to do a good turn to Sri Kalap Nath Lal with definite understanding that it would be returned to him in case the Officer dealing with his case refused to accept that money within two or three days. Q. Did you realize at the time that your acting as go-between was departmentally objectionable and also illegal? A. I did not realize the gravity of receiving such tainted money for payment to another departmental Officer as I had no intention to pay such money to any officer but to return it to Sri Kalap Nath Lal himself. Q. Is it a fact that after counting the G.C. Notes of the total value of Rs. 300/- you put them in the right inner pocket of your coat? A. I never counted the G. C. Notes but I did pocket them. Q. Did Inspector M. A. Ahmad ask you whatever you wanted to say by way of explanation or otherwise about your having accepted the sum of Rs. 300/- from Sri Kalap Nath Lal Guard? A. Yes. Q. Is the statement now marked Z after being shown to you the same statement under your signature and in your writing that you furnished to Inspector M. A. Ahmad on his inquiry? A. Yes." The third statement of the appellant was recorded on 24-5-1956. It is on the same lines as the earlier statement dated 10-4-1956, but certain ether admissions were made by the appellant and I will incorporate the relevant questions and answers. They are as follows: "Q. Is it a fact that after you pocketted the money, Messrs. Istafa Hussain, S. C. Dhar, R. S. O., D. D. Pathak, R. S. O., R. B. Singh Guard, K. B. Khare Guard, Nak Ched Tiwari and Inspector M. A. Ahmad arrived at the spot? A. Yes, it is correct; six or seven persons did reach there about the same time. Out of these 6 or 7 persons, only two were known to me from before and they were R. B. Singh Guard and K. B. Khare guard, others were strangers to me. One of these strangers also disclosed his identity to me as M. A. Ahmad, Inspector Police. D. D. Pathak was also known to me, but he did not reach there immediately, he had come shortly after. I did not know Istafa Husain, S. C. Dhar and Nak Ched Tiwari at that time at all, but now I have come to know them, it is correct as well that these three named persons had also reached there on that day." As regards Ex. Z, (which is now Ex. P. 3) a further question was put at this stage which is also important. "Q. Is this correct as well? A. No (it was not correct. I did not accept this amount of Rs. 300/from Sri Kalap Nath Lal as a loan at all. This mistaken statement was noted by me because of my confusion." The fourth statement of the appellant was recorded on 5-11-1956. The appellant took up an entirely new stand in this statement. I will again quote the relevant questions and answers: "Q. Is it a fact that you obtained a sum of Rs. 300/- in G. G. Notes from Sri Kalap Nath Lal on 14-2-1955 as illegal gratification for showing official favour to him? A. No this is incorrect. I did not obtain any such amount from Kalap Nath Lal as illegal gratification at any time. Kalap Nath Lal did pay Rs. 300/- to me in the Guards Running Room on that very day and this was the amount borrowed by Kalap Nath Lal from, me previously which was so returned by him to me on that day. Q. Can you state when this amount was bor-rowed from you by Kalap Nath Lal? A. Kalap Nath Lal had borrowed Rs. 500/-from me about 1 or 11/2 years previous to this refund of Rs. 300/-. Rs. 200/- had already been refunded to me earlier in instalments, while this amount of Rs. 300/- was refunded to me in full discharge of his liability on that very day." The appellant then admitted that he had placed these Rs. 300/- in his pocket. He also admitted the presence of the prosecution witnesses immediately after he had received this money. He also admitted that when Sri M. A. Ahmad asked him for his explanation, he wrote out Ex. Z (Ex. P. 3) and banded it over to him, I will, however, repeat the question and answer relating to this point because the counsel for the defence objected to the question put by the Court: "Q. Is the statement now marked 'Z' after being shown to you the same statement under your signatures and in your writing that you handed over to Inspector M. A. Ahmad on his enquiry? A. Yes, this written explanation was tendered by me to Sri M. A. Ahmad at that very time. (Note: This question was objected to by the learned defence counsel, but the objection was overruled). Q. Was this explanation of yours correct as well? A. No. This explanation of mine was not correct. This statement shows as if I had borrowed the amount of Rs. 300/- as a loan from Kalap Nath Lal, but the real fact was otherwise; Kalap Nath Lal had borrowed a loan from me, and this amount of Rs. 300/- was refunded by him to myself. This wrong explanation was given by me in writing because of confusion. Q. Were you examined as an accused in the Court of Sri B. N. Zutshi, Special Judge on 10-4-1956? A. Yes, I was examined in that court, but I do not remember the date of that statement. Q. Did you give the statement as shown to you and marked 'A' by this Court? A. Yes, I did give this statement. (Note:-- The attention of the accused was specially drawn to Q. No. 13 and the reply recorded in the above statement, which was specially read over to him.) Q. Do you want to offer any explanation why you have now given a contrary statement in this court today? A. My statement in the court of Sri B. N. Zutshi has been wrong. I had given that wrong statement because of confusion and also because I was given to understand by Sri D. D. Pathak that if I confessed my fault, I will escape punishment. Q. Why this false case has been concocted against you? A. This false case has been concocted against me by Kalap Nath Lal, against whom I was making enquiry, and in order to save his own neck ."
(3.) The last statement of the appellant was recorded on 24-1-1957, but there is nothing in his statement which need be quoted.;