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ANDERSON i>. MUTTUKARUPEN KANGANY.1899.
P. C.y Kandy, 11,137.'
Master and servant—Ordinance No. 11 of 1865, s. 19—Seducing servants*-.,
Evidence oj seduction—Evidence of accomplice—Evidence Act,- js.
114 (b) and 133.''
• T ancLM, being coolies on N P estate, were Jed at an unusual hourof the night by their kankani to the head kankani of another estate,who was awaiting their arrival at a cattle shed on N P estate,. Herethe latter offered T and M higher wages if they would goto Polgaha-kanda estate. Accordingly they left N P estate.- without notice or.reasonable cause.
Held, that the head kankani’s presence and promise of higherwages was sufficient evidence of seduction under the OrdinanceNo. 11 of 1865, section 19..,-.
Withers. J.—An accomplice's evidence is always, open to thegravest suspicion, not because he-has participated in a crinie^ butbecause his expectation of pardon depended on the conviction ofthe accused.
A person unlawfully seduced from service is not an accomplice ofhis seducer, becatise he cannot participate in the offence of seducinghimself.
The evidence of a seduced cooly does not require to be confirmedin order to support a conviction for seduction.
'T''HE facts of this case are stated in full in the following judgment
of the Supreme Court.
Baica, for appellant.
24th April, 1S99. Withers. J.—
The accused in this case has been convicted of knowinglyseducing from service two servants bound by contract to servethe complainant, and the question for me to decide is whether theconviction is right or wrong.
The ca-se for the prosecution is as follows : On or about the 31stday of Way last year two persons,'Thomas and Muttamma, wereemployed on New Peradeniya estate under the complainant. OneSusai was their kankani, and was also at that time in thecomplainant’s employ. This kankani owed a considerable sumof money to his employer on estate account. Some little timebefore the end of May, Susai had procured a tundu – from hisemployer, but for some reason or another he could find no one tocash it.
He then conceived the idea—not wholly original—of leavinghis estate and liabilities and procuring service elsewhere. Wish-ing to have companions in his flight ho advised Thomas andMuttamma to run away with him. To this proposal they at firstdemurred, but v hen Susai hinted that if they stayed they wouldhave to pay his debts, and when he held out a promise that theywould get better wages at Polgahakanda estate, they gave way.
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Susai had awaked these coolies after their evening meal andproposed that they should run away under cover of the night.On their way through the estate they came upon the accused ata cattle shed, and when Muttamma asked Susai who he was, shewas told he was the head kankani of Polgahakanda. Thomasfurther deposed that the accused then and there told the party—made up of others besides those three—that they would getbetter wages in the place to which he would take them. Theyaccordingly were taken to Polgahakanda estate, where they workedunder France Kankani, who was a leader in the flight from theNew Peradeniya, and assumed the name of Migel in Polgahakanda.
Now, if these facts are true, it seems to me that the Magistratewas clearly justified in regarding Susai as the instrument of theaccused in knowingly seducing Thomas and Muttamma from theemployer’s service. These coolies were leaving the estate withoutnotice or reasonable cause. They were leaving at an unusualhour. When they were taken to the accused in the cattle shedthere was still time for them to repent and return to their lines,but the accused encouraged them to continue their wrongdoingby his presence and promise of higher wages.
The accused has denied upon affirmation that he met the partyon New Peradeniya estate and conducted them to Polgahakanda.He admits no more than this, that Susai came to Polgahakandaand said he had brought coolies to Kadugannawa, and that he (thewitness) agreed to take them. There is good reason to supposethat this arrangement with Susai preceded the flight of cooliesfrom New Peradeniya. If it is a fact that the accused was noton New Peradeniya tea estate the night that Thomas andMuttamma left their lines with Susai to go for work on Polgaha-kanda, then the conviction cannot be supported.
The Magistrate, however, is perfectly satisfied with the evidenceof Thomas and Muttamma to which I have referred, and has nodoubt whatever that the accused was on New Peradeniya thatnight and encouraged those two witnesses to leave their master’sservice. In my opinion his verdict is a legitimate and just one.
It was urged, however, that these two witnesses were accomplices,and that not being corroborated as to the important facts ofaccused’s presence and encouragement on the night of theirflight, there was no evidence to sustain the Magistrate’s verdict.It was this point in the case which I reserved for consideration.The 133rd section of the Evidence Act enacts as follows:—“ An“ accomplice shall be a competent witness against an accused“ person, and a conviction is not illegal merely because it proceeds“ upon the uncorroborated testimony of an accomplice.” Thatconforms to the rule of English Law as I understand it.
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It is a role of English practice, however, for the Judge to advise 1899.the jury not to convict on the testimony of an accomplice only,AP™j24.
not to convict in fact unless the evidence of the accomplice is Wjthkbs, Jconfirmed both to the circumstances of the crime and the identityof tbe prisoner, and it may be that section 114 of the EvidenceAct was intended to bring our practice into conformity with theEnglish practice. According to that section, the Court maypresume that an accomplice is unworthy of credit unless he iscorroborated in material particulars.
Now, an accomplice’s evidence was always open to the gravestsuspicion, not because he had participated in a crime, but becausehis expectation of pardon depended on the accused’s conviction.
But it is not every participation in a crime which stamps a manas an accomplice so that his testimony has to be confirmed.
In Bex v. Hargrave (a C. P. 170) it was held after argumentby Mr. Justice Patterson that persons abetting by their presenceat a prize fight the commission of the offence of manslaughter forwhich one of the combatants was indicted were not such accom-plices as required further evidence to confirm their statements.
Again, in Bex v. Jarvis (2 M. & Bob. 40) it was held that aprisoner who employed another person to harbour the principalfelon might be found guilty on the uncorroborated testimony ofthe person who actually harboured.
But in what sense can a person unlawfully seduced fromservice be said to be an accomplice with Lis seducer ? He cannotparticipate in the offence of seducing himself. His offence, if helistens to the seducer, may be that of quitting the service of hisemployer without leave or reasonable cause before the end of histerm or previous warning; but that is his offence in which hemay perhaps be said to have been abetted by his seducer. Now,
I cannot regard a seduced cooly as such an accomplice of hisseducer that his evidence requires confirmation to support aconviction. If a master forbears to prosecute a runaway servantor holds out some special inducement if he will disclose thename of the person who knowingly seduced him from hisemploy, that would make a servant a very interested witness,and a cautious Magistrate would desire confirmation of histestimony.
But in this case the two coolies were prosecuted and punishedfor quitting their employer’s service, but there was nothing toshow that they were to gain any special advantage by disclosingthe name of the person who really took them away, and the accusedadmits that neither witness had any private grudge to satisfyby testifying against him.
The judgment, in my opinion, is right, and must be affirmed.
ANDERSON v. MUTTUKARUPEN KANGANY