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Criminal Appeal No. 74 of 1966, decided on 11th April 1968.

-Evidence-Statement of one of many witnesses slightly discrepant with statements of other witnesses‑Slight discrepancy, held, does not affect affirmative statements made on oath by many other witnesses.

S. 161 read with S. 5 (1), Prevention of Corruption Act (II of 1947)‑‑‑Sentence‑illegal gratification involved amounting to Rs. 25.00‑Substantive sentence of one year"s imprisonment reduced to 4 months.

Habibur Rahman Sharif for Appellant.

A. T. M. Afzal for the State.

This appeal is directed against the order of conviction of the accused‑appellant Abdul Kader Talukdar under section 161 of the Pakistan Penal Lode read with section 5, (2) of Act 11 of 1947 and sentence of rigorous imprisonment for one year and a tine of Rs. 100, or in default rigorous imprisonment for one month more by the Special Judge, Faridpur.

The prosecution case is that the accused‑appellant Abdul Kader Talukdar was a Tahsildar of the Acquired Estate in charge of Tapakhola Tahsil‑A and in that capacity lie received an illegal gratification of Rs. 25 front I'. W. 1 Muhammad Ali Howlader in order to show him undue favour to curry can a fuel business in the Government land without payment of any rent or tool to the Government. P. W. 1 reported the matter to the District Anti‑Corruption officer P. W. 14 P. N. Singha Roy, who arranged a trap after making an inventory of two ten‑rupee currency notes and one five‑rupee note. The money was paid to the accused who kept the same in the chest pocket of his shirt in presence of P. W. 8 Osman Mridha and twin watcher con stables. On getting a signal from one of the watcher constables, the Anti‑Corruption men rushed to the spot; then accused then threw the money in front of the door inside the hut. The inspector, Anti‑Corruption Department picked up the money and on verification those notes were found to tally with the notes noted in the inventory. The accused was then arrested by P. W. 14, the District Anti‑Corruption officer.

The defence was that the accused in proceeding against the wrong doers incurred displeasure of some influential persons of the locality and these people in order to harass him concocted this false case.

A point of law raised in this case is whether a conviction under section 161 of the Pakistan Penal Code is maintainable where demand of illegal gratification is root proved by the prosecution. There is no authority for the proposition that making of demand for illegal gratification is an essential ingredient of the offence under section 161 of the Penal Code. A plaint regarding of section 161 of the Code makes it clear that what is important is acceptance of any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to show any official act for showing or forbearing to show, favour or disfavour to any person by a public servant in the exercise of his public functions. Conscious acceptance of any such gratifica tion makes a public servant liable to punishment under section 161 of the Code. It is the duty of the prosecution to prove that there was conscious acceptance of the money by the accused.

Mr. Habibur Rahman Sharif learned Advocate for the appellant has cited the case of Ansar Ali Mia v. Tire State (P L D 1961 Dacca 806). This case supports the above proposition that even if it has been successfully proved by the prosecution that there was conscious acceptance by the accused he is liable to be convicted under section 161 of the Code It has nowhere been held in that case that proof of demand of illegal gratification is a condition precedent to the conviction under the said section. There is thus no substance in the contention of Mr. Sharif that there can be no conviction under section 161 where demand of illegal gratification has not been proved.

Coming to the questions of fact, the prosecution has adduced evidence with regard to three separate stages such as, () demand of illegal gratification by the accused, (2) actual payment of Rs. 25 as illegal gratification by P. W. I to the accused, and (3) recovery of two ten‑rupee currency notes and one five‑rupee currency note numbers whereof had beers entered in an inventory, from the possession of the accused.

As regards the demand, P. W. 1 Muhammad Ali who is a dealer in fuels stated that accused Abdul Kader Talukdar Tahsildar demanded money from him for bringing fuels from Bhumkhara 'and keeping them at the Tapakhola Kutchery Ghat. It appears from his evidence that the first demand was for Rs. 2 per day for his use and occupation of the Ghat and then it was reduced to Rs. 50 per month and ultimately the amount was settled at Rs. 25 per month. This witness further stated that he reported the matter verbally to Inspector of Anti‑Corruption Department. This demand was made on 10^th June 1965. P. W. 14 Mr. P. N. Singh Roy, District Anti -Corruption Officer has borne out him by stating that on that very day, i.e. on 10th June 1965, P. W. I 'Muhammad Ail reported the matter to him. The oral testimony of these two witnesses is further borne out by Exh. 3, a statement made by P. W. 1 before P. W. l4 on the self‑same date. Thus there is no basis fear the argument advanced ors behalf of the appellant that there was no demand. In fact, the demand for illegal gratification has been satisfactorily proved by the prosecution.

So far as the actual payment of Rs. 25 as illegal gratification is concerned, we have the testimonies of P. W. 1 Muhammad Ali Howlader, P. W. 8. Osman Mridha, P. W. 9 Easin Sardar, P. W.10 Abdus Sobhan and P. W. 11 Abdul Aziz P. W. l has testified that he paid Rs. 25 to the accused on 12‑b‑65 in presence of Osman Mridha and the two watcher constables. It has transpired in his evidence that there was another man whom he did not know. His evidence shows further that the accused kept the notes in his chest pocket and on getting a signal from one of the watcher constables, Inspector, Anti‑Corruption Department rushed to the spot and when the accused threw the money to front of the door inside the hut, Inspector picked up the money through another person and on verification found the numbers of these notes to tally with those noted in the inventory.

P. Ws. 8 and 9 have lent substantial corroboration to this story. P. W. 8 denied the defence suggestion that the accused sent a report against him and others complaining of the collection of excess and unauthorised toll to the S. D. O. and for that reason they concocted the case. It has, however, come to light in his cross‑examination that Mofazzal Hossain in their Malik and he took Muhammad to the Anti‑Corruption Office. This witness denied the suggestion that he was made to depose in this case by the Anti‑Corruption Officer. While it is the prosecu tion case and the evidence of other witnesses that the currency notes were thrown in front of the door inside the hut, this witness stated that they were thrown in his presence and they fell under the table. This is not a material discrepancy of which notice should be taken.

P. Ws. 10 and 11 are two watcher constables of the Anti- Corruption Department. They were deputed by the District Anti‑Corruption Officer on 1‑6‑65 to accompany the complainant and watch. These witnesses are independent and disinterested. A general suggestion was made to these witnesses that their statements were false and concocted which they emphatically denied.

The defence examined one witness, namely, Muhammad Ayub who was Circle Inspector of Acquired Estate at Kotwali. The only important part of his deposition is that the accused submitted a report for excess realisation of toll from the boatmen by Mofazzal Hossain Mia and Osman Mridha and that report is Exh. D(1). Exh. D (1) is, of course a report by the accused to the Sub‑divisional Officer, Sadar, Faridpur to the effect that Moffazzal Hossain Mia and his party men Osman Mridha and others were reported by the toll‑givers to have been realising excess tolls from them beyond the Government rate. His recommendation was that the lessees might be instructed not to realise the toll beyond the Government rate and necessary instruction might be given in this behalf. It cannot, therefore, be said that there was any venom in the report for which Mofazzal Hossain should have turned hostile to him. Even assuming that Moffazzal Hossain and Osman Mridha had come grouse against the accused, there is no reason whatsoever to disbelieve the evidence of‑ P. Ws. 10 and 11.

The recovery of two ten‑rupee currency notes and one five‑rupee currency note from the possession of the accused has been testified to by P. Ws. 1, 3, 5, 6, 7, 8, 9 and 10 to 16. The substance of their evidence is that the Anti‑Corruption Officer rushed to the Tahsil Officer where the payment has been made in their, presence and the accused threw away the notes in front of the door and those currency notes were picked up by one of the Anti‑Corruption Officers and on comparison numbers of these notes tallied with those noted in the inventory Exh. 1. The slight discre pancy as where the notes were thrown has already been dealt with. One of so many witnesses may have made a mistake in stating where the notes fell or it may well be that they fell near the table close to the door. Considerable in that light; the statement of 'P. W. 9 that the currency notes fell under the table might be treated as, in any way, discrepant with the statements made by the other witnesses. In any case, such a slight discrepancy does not effect the evidentiary value of the affirmative statements made ors oath by so many other witnesses. It is of importance to notice that the preparation of the inventory has been testified to not only by P. W. 14, the District Anti‑Corruption Officer but also by other independent witnesses P. W. 2 Munshi Habibur Rahman and P. W. 4 Imajuddin Sikdar. These witnesses could not be discredited in any way by the defence. In fact, the defence declined to cross -examine them and this amounts to acceptance of their evidence by the defence. The currency notes recovered were found to be those entered in the inventory. When the inventory is not challenged, it can hardly be contended by the defence that these were not the notes received by the accused.

Proper scrutiny of the evidence on record leaves no room for doubt that the accused‑appellant Abdul Kader Talukdar has been rightly convicted under section 161 of the Pakistan Pena Code read with section 5 (2) of Act 11 of 1947. The sentence, however, seems to be somewhat severe, considering that the amount of illegal gratification involved in this case eras only Rs. 25. The substantive sentence of imprisonment for one year is reduced to four months

Subject to the above modification of sentence, the appeal is dismissed. The appellant shall surrender to his bail bond and serve out the remainder of the sentences now imposed on hire and also pay down the fine.

Appeal dismissed.

Sentence reduced.

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