- (1.) THIS is an appeal by Bijailal against the judgment of the Additional Sessions Judge. Jaipur, dated the 30th October, 1953 convicting the appellant under sec. 161 I. P. C. and sentencing him to two months' simple imprisonment and a fine of Rs. 50/ -.
(2.) THE brief facts of the case are that one Tejaram deposited a sum of Rs. 1032/3/- in the Government Treasury as the price for a lease of two villages. Somehow or other the lease could not be accomplished and the property was not delivered to Tejaram by the Government. He, therefore, applied for a refund of this amount. On his application of the 19th of February, 1953 the Collector, Bharatpur, wrote to the Commissioner for according sanction for refund. This letter of the Collector was received in the office of the Commissioner on the 11th of March, 1953. Bijailal who is the accused in this case was Reader to the Commissioner and this paper came to him on the same date, for placing it before the Commissioner. Tejaram met him as his papers had gone to him and requested him for quick disposal of the case. Bijailal asked him to see him the next day. On the next day when Tejaram again met him he pointed out certain defects in the papers that the Accountant General's remarks were not there and that no reference regarding Bank Account in which the money had been deposited appeared from the papers. He, however, demanded some money for disposal of the papers. Tejaram flatly refused to pay anything. THE next day he again approached him and Bijailal said that as he could not find any money for him the papers were lying with him. He then asked for an amount of Rs. 5/- only and Tejaram then came out promising him to pay that amount. Tejaram went to the Anti-Corruption Department's Office and he moved a petition stating these facts along with a five-rupee note which was duly initialled by Mr. Banerjee and was returned to him for giving it to the accused. Mr. L. N. Sharma, Deputy Superintendent, Anti-Corruption Department, also accompanied him. Tejaram went in the Commissioner's Office while Mr. L. N. Sharma kept outside it. After a while it is said the accused came out of the office at about 1-30 P. M. and Tejaram also followed him. While both of them were proceeding towards Ajmeri Gate from the Commissioner's Office near about the traffic constable's post. Tejaram gave that five-rupee note to the accused Bijailal while Mr. L. N. Sharma was looking at them. Soon after this Mr. L. N. Sharma approached the accused and took his search and recovered the five rupee note in the presence of two witnesses Abdul Rahman and Ismail. A case was registered against the accused Bijailal and he was challaned under sec. 161 I. P. C. before the Additional Sessions Judge. The case of the accused was that Tejaram's papers were received by him in the Commissioner's Office on the 11th March, 1953 and the papers could not be put before the Commissioner as the Commissioner was on leave from the 9th so the 17th of March, 1953. Tejaram did not give him any five-rupee note and when he was apprehended by the police he told the Deputy Superintendent of Police that there was no five-rupee note with him and that Tejaram did not give him any such note. However, on a search a five-rupee note was recovered from the lower pocket of his achkan which, it was alleged, must have been planted by some one without the knowledge of the accused. Evidence was led by the accused about his good character. The prosecution examined Tejaram and Mr. L. N. Sharma, Deputy Superintendent of Police, both of whom stated that an initialled five-rupee note was handed over by Tejaram to Bijailal and it was recovered from his possession on a search. The two search witnesses, Abdul Rahman and Ismail, were also produced by the prosecution and according to them the said currency note was recovered from the lower left hand side pocket of the accused's achkan, as alleged by the defence. Abdul Rahman also stated that he was a person with a yellow turban going behind the accused Bijailal and putting something in the latter's pocket. The other witness Ismail did not notice planting anything in the pocket of Bijailal but in his cross-examination said that Abdul Rahman told him that the yellow turbanned man had put something in the pocket of Bijailal. He also stated that he saw Bijailal walking ahead of him before the recovery of five-rupee note was made by the police. Both Abdul Rahman and Ismil were together at the time. Radheyshiam before whom five rupee note was initialled by Mr. Banerjee was also produced by the prosecution as P. W. 8 and he after saying that the said note was initialled by Mr. Banerji stated that he was also asked by the police to keep a watch on Tejaram as the latter wanted to pay it to some one as bribe. He, therefore, kept an eye over Tejaram and he states that Tejaram put a five-rupee note in the lower pocket of Bijailal's achkan, after which the latter was arrested and searched by the police and the recovery was made. The learned trial court disbelieved the evidence of Abdul Rahman, P. W. 2, Ismail P. W. 3 and Radheyshiam P. W. 8 in so far as these witnesses supported the defence version and on the strength of the evidence of Tejaram and Mr. L. N. Sharma it was held that a five-rupee note was paid by Tejaram to Bijailal accused as illegal gratification. He was accordingly convicted and sentenced as noted above. In this appeal, it has been urged on behalf of the accused that Tejaram was prejudiced against the accused because he thought that the accused was sitting over his papers in the Commissioner's Office and he on this account had a motive to implicate the accused rightly or wrongly. His evidence, it is argued, should not be taken on its face value unless it is supported by some other independent witness. As regards the statement of Mr. L. N. Sharma it is argued that his statement that he saw Tejaram handing over a five-rupee note to Bijailal is inconsistent with his note in the recovery memo where he has specified that on receiving information of payment of illegal gratification he arrested Bijailal and recovered the five-rupee note from his search. It is further argued that the lower pocket of Bijailal's achkan was loose enough to render it possible for Tejaram to slip in it a five-rupee note without the knowledge of Bijailal. Abdulrahman and Radheyshiam have supported the version of the defence and their evidence is certainly not in keeping with the statements of Tejaram and Mr. L. N. Sharma. This being so, it is urged that this was a case in which benefit of doubt should have been allowed to the accused. Mr. Bhargava on behalf of the prosecution has pointed out that the trial court was in the best position to judge about the credibility of the witnesses who were produced in that court. The learned trial court, it is said, disbelieved the evidence of Abdul Rahman, Ismail and Radhey Shiam in so far as they supported the defence story and believed the statements of Tejaram and of Mr. L. N. Sharma. It is also argued that Tejaram had no personal motives of his own to falsely implicate Bijailal if no money had been demanded from him. Similarly, Mr. L. N. Sharma also had seen the occurrence with his own eyes and his testimony should not be discarded. The evidence of Tejaram and Mr. L. N. Sharma is a very specific that a five-rupee note was passed by Tejaram to Bijailal accused and if the statements of both these witnesses can be believed, the defence version that the five-rupee note was planted in the accused's pocket would not remain sustainable. The learned counsel of the accused has referred to the case of Lieutenant Hector Thomas Huntley vs. Emperor (1) (A. I. R. 1944 F. C. 67.) where the testimony of a person who gave a bribe was considered no better than that of an accomplice. The relevant observations of his Lordship Zafarullah Khan are as follows: "in this case as in all cases of this kind, the direct evidence of the guilt of the appellants is that of an accomplice, namely that of P. W. 1. We have considered his testimony very carefully and find that on several matters with reference to which the truth of the story told by him could be tested, he has either prevaricated or contradicted himself. " The learned Government Advocate has referred to the cases in The King vs. S. N. Singh Rai (1) (A. I. R. 1951 Orissa, 297.) and In Re: M. S. Mohiddin (2 ). In The King vs. S. N. Rai the learned Chief Justice Ray discussed whether in cases of offences of bribery where a trap was laid against the accused the person who gave bribe will not be regarded as an accomplice, After discussing the case of Emperor vs. Chattarbhuj Sahu (3) and Emperor vs. Anwar Ali (4) (A. I. R. 1948 Lah. , 27.) the following observations were made : - "i cannot however go so far as that, I should lay down a golden rule. The evidence of a spy does not stand in need of corroboration either as a principle of law or as a fundamental rule of practice necessary for safe administration of justice. It is always for the Judge of facts in each particular case to decide whether it is safe to rely and act upon a decoy witness. Each case depends upon its own merits. This much has to be borne in mind, that he has entered into a design with the police to entrap the prisoner and as such his partiality for the prosecution is a factor which can hardly be ignored. The character, position in life and social standing of the witness would go a great way in helping the Judge to appreciate his evidence. " In Re: M. S. Mohiddin (2) the learned Judge draws distinction between cases of legitimate trap and those of illegitimate trap in offering bribes and in cases of illegitimate trap a person offering bribe has been considered to be an accomplice requiring corroboration in support of his evidence, whereas in cases of legitimate trap it has been held that such a person cannot be regarded as an accomplice and in law his evidence does not require to be corroborated by other evidence. After having discussed this aspect of the law the learned Judge further points out a rule of prudence requiring such evidence to be carefully scrutinised and accepted as true before a conviction can be had. According to the decision In re : M. S. Mohiddin (2) (A. I. R. 1952 Mad. , 561.) the present case is one of legitimate trap and the man who offered bribe cannot be considered to be an accomplice, as per observations made in that judgment. A legitimate trap is one where the offence has already been born and is in its course, and an illegitimate trap is one where the offence has not yet been born and a temptation is offered to see whether an offence would be committed, succumbing to it or not. There seems conflict of opinion among the decisions of the various High Courts in India on the point whether a spy or a decoy witness in a case of bribery should be regarded as an accomplice. In Emperor vs. Chattarbhuj Sahu (3) (I. L. R. 38 Cal. , 96.) it has been 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 wrongdoers or before the actual preparation of the offence is not an accomplice but a spy, detective or decoy whose evidence does not require corroboration. At the same time it has been added that the weight to be attached to the evidence of such a witness depends on the character of each individual witness in the particular case. It has further been noticed in this case that 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. The decision in this case was based on some English rulings. In K. H. Bhattarharjee and another vs. Emperor (5) (A. I. R. 1944 Cal. , 374.) Lodge J. observed as follows : - "it is true in a sense that a person who pays bribe is an accomplice of the person who receives the bribe; but the position is essentially different from that of, say, one dacoit deposing regarding the dacoity against his fellow dacoits. In the present case, Kunja Behary Ghosh was not in danger of prosecution. He had nothing to gain by falsely implicating other accused persons. Though technically an accomplice, he was essentially, as the learned Magistrate has pointed out, a victim. There is no hard and fast rule regarding the corroboration of an accomplice. The Legislature has left the courts free to act on the uncorroborated testimony of an accomplice if the courts believe that evidence. '
(3.) IN Hazura Singh vs. Emperor (1) certain observations have been made about the value of the evidence of a spy. It has been observed that such evidence is looked upon with suspicion and should be seldom relied upon in support of a conviction. It may be noted that these are general observations relating to the value of the evidence of spies. This case was not of an offence under sec. 161 I. P. C. and these observations do not directly refer to the case of a spy in a case of bribery. In Emperor vs. Anwarali (1) (A. I. R. 1929 Lah 436.) which was a case of an offence under sec. 161 I. P. C. it has been observed that 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 on illegal purpose. In Des Raj Sharma vs. The State (2) (A. I. R. 1951 Simla 14.) which is also a case of bribery, it has been observed that a decoy witness could not be said to be not interested in entrapping the accused and for this reason conviction should not be based on the evidence of such witness without independent corroboration. A contrary view has been expressed in Mahabirprasad vs. The State (3) (A. I. R. 1951 Punjab 424.) which is against the opinions expressed in the earlier cases of the same High Court referred to above. In that case Bhandari J. after referring to certain observations of Cornelius J. from the case referred to above, observed as follows : - "i regret I find myself unable to accept the proposition that in cases of this kind there should be independent corroboration of the decoy witness that the money was received by the accused person for an illegal purpose. Informers, that is, persons who have joined in, or even provoked, the crime as police spies have not been regarded as accomplices and there are at least two English decisions in which it has been held that the rule requiring the corroboration of accomplices does not apply to this class of accomplices vide (R. V. Bickley 73 J. P. 239 R. V. Heuser, 6 Cri. App. Rep. 77 ). Lam of the opinion that every case in which decoys are used must be decided on its own peculiar facts and no general principles as to corroboration can be laid down". In Surat Bahadur vs. Emperor (4) (A. I. R, 1925 Oudh, 158.) it has been observed that the evidence of a spy requires corroboration practically to the same extent as that of an accomplice. But it may be noted that it was not a case of an offence under section 161 I. P. C. In Bhuneshwari vs. Emperor (5) (A. I. R. 1938 Oudh. 172.) which was a case of an offence sec. 161 it has been noted as follows: - "a person who allies himself with the prosecution before the commission of the offence and before he associates with the accused in the perpetration of the offence cannot be called an accomplice, the object in such case being not the perpetration of the offence but the detection of it. Such a witness is a mere spy or detective and he cannot be regarded as an accomplice. The evidence of such a witness is legally admissible in evidence without corroboration; but some degree of disfavour attaches to the evidence of persons playing the role of a spy or informer. Their evidence must be carefully scrutinised and the weight to be attached to it must depend upon the character of each individual witness. " In T. A. Basheeruddin Ahmed and another vs. Government of Mysore (6) (A. I. R. 1952 Mysore 42.) it has been held that spy witnesses are not accomplices and evidence of such witnesses does not require corroboration in law but in some instances courts may require to he satisfied about the truth of the version given by such witnesses. ;