H. V. Perera, for accused-appellant.
August 26, 1932. Jayewardene A.J.—
In this case, two accused, Hendrick Appu and Velu, were charged withcommitting theft of half a Jarrah sleeper of the value of Rs. 5, belongingto the Ceylon Government Railway, and also with dishonestly retainingthe stolen property. The learned Magistrate has convicted the firstaccused and acquitted the second accused holding that the second wasonly the agent of the first and is in an inferior position.
12 C. L. R., page 191.S1 A. C. R., page 72.
JAYEWARDENE A.J.—Iyer v. Hendrick Appu.
The facts in this case seem to be that Police Sergeant Iyer was on avisit to Maligawatta for an inquiry, and on his return at about 9.10 p.m.,he met the two accused at a Railway tunnel near Maligawatta. Thesecond accused was carrying a Railway sleeper and the first accused wasfollowing close behind. He arrested them both. The first accused livesabout 20 yards from where he was arrested and the second accused nearthe level crossing at Dematagoda. The first accused is a Railway Shunterand the scond accused is a Pointsman. According to Sergeant Iyer,after talking to the second accused he took both the accused to the Policestation. He asked for their names only at that time and recorded theirstatements later at night about 2 a.m. at the Police station. He madethis statement in cross-examination by counsel for the first accused.In answer to counsel for the second accused, he said, the second accusedtold him he was carrying the log at the request of the first accused to thefirst accused’s house. I must take it from his previous statement thatat the spot he only asked the accused for their names, but that the state-ments were made and recorded at the Police station later in the night.A peon called Makeen of the Electrical Department gives evidence forthe prosecution. His evidence does not support the case much exceptthat the first accused, he says, was standing behind when the PoliceSergeant was questioning the second accused. He says, however, thatall four of them were coming up on the same side as the Police Sergeantfind following him. At the close of the case for the prosecution no.evidence was called for the first accused, but the second accused gaveevidence saying that the first accused told him to carry this piece of fire-wood to his house and that as he was going to the first accused’s house,the Police Sergeant questioned him and that he said he was taking it tothe first accused’s house. It would seem that the first accused lives onthe other side of the yard and he could have put the firewood over if hewished to on to his compound without the trouble of having to carry it,but the witness says he has to get over a big drain and that there isa watcher.•
At the end of the case Mr. Advocate Jayatilleke contended that therewas no case made out against the first accused. The learned Magistrate,however, convicted the first accused holding that the second accusedat once told the Police Sergeant that he was carrying the log of wood forthe first accused. He states that this evidence was got from the PoliceSergeant in cross-examination by the second accused’s Proctor and is,therefore, not only admissible, but is valuable corroboration of the secondaccused’s evidence in this case. The Magistrate argues that the secondaccused’s evidence, which is that of an accomplice, is thus corroboratedand that, .first, it is proved that the first accused was with him andsecond, that at once he told the Sergeant he was carrying the wood forthe first accused. He says this is sufficient corroboration. He furthersays that the first accused said nothing at the time and he looks uponthis also as a corroborating circumstance.
The question as to what is corroboration of an accomplice is a difficultone. Judges and juries do not usually convict on the evidence of anaccomplice without corroboration. An accomplice’s evidence is taintedand it has become a rule of practice of almost universal application that
332JAYEWARDENE A.J.—Iyer v. Hendrick Appu.
an accomplice’s evidence unless corroborated in material particularsshould not be accepted. The corroboration required has to be inde-pendent of the accomplice or of the co-confessing .prisoner. It has beenheld that previous statements made by the accomplice himself thoughconsistent with the evidence given by him at the trial are insufficient cor-roboration for the reason that his statement whether made at the trial orbefore is still only the statement of an accomplice and is not improvedby repetition or reiteration. In a recent case, The King v. Whitehead',Lord -Hewart, Chief Justice of England, said in the Court of CriminalAppeal, Swift and Branson JJ. agreeing, “ In order that evidence mayamount to corroboration it must ’ be extraneous to the witness who isto be corroborated ”, otherwise an accomplice has only to repeat his storyin order to receive as many corroborations ”. This same idea seems tohave been in the mind of Garvin J. in the case of Dona Carlina v. Jaya-koddy8 where he doubted whether a former statement of a mother wascorroboration of her own evidence. I have myself considered the lawin the case of Bisomemika v. Danby The point has arisen in India.In the Calcutta High Court it was held in the case of Reg. v. BepinBiswas * that the evidence which is used as corroboration must identifythe prisoner with the commission of the offence with which he is chargedand that the mere repetition of the same statement of facts withoutcontradiction or : material discrepancy although no doubt recognizedby section 157 of the Evidence Act as some corroboration, muststill be accepted with the greatest caution, and also that the exactcorrespondence in details even in statements made by an accomplicewas not corroborative evidence such as is ordinarily required to make itsafe to convict. He followed the case of Reg. v.' Malapabin Kapana “-decided in the Bombay High Court where it was held that the evidencerequisite for the corroboration of the testimony of an accomplice mustproceed from an independent source, and previous statements madeby the accomplice himself, though consistent with the evidence given byhim at the trial, are insufficient for such corroboration. The language ofPrinsep J. in Reg. v. Bepin Biswas (supra) is valuable in this connection—“ The mere repetition of the same statement of facts without contradictionor material discrepancy is, no doubt, recognized by section 157 of theEvidence Act, as some corroboration of the truthfulness of that state-ment, but the Judge has lost sight of the fact that, from the positionoccupied by an approver witness, his evidence is necessarily regardedwith very great suspicion as being tainted, and that although he may,on the main facts connected with the commission of the offence, betruthful and reliable, it is when he comes to implicate any particularperson that his evidence should be accepted with the greatest caution.Nothing is easier for a man than to narrate events with accuracy, and yetmore so, when coming to describe the acts of a particular person, to changehis personality so as to exculpate a guilty friend, and to implicate aninnocent person or an enemy.
{1929) L. K. B. 99.3 S. C. M. 18.8.1932.
(1932) 31 N. L. It. ICO.* 10 Cal. 970.
5 11 Bom. H. C. R. 196.
JAYEWARDENE A.J.—Iyer v. Hendrick Appu.
It is for this reason that the rule stated in the case of TheQxceen v. Nawab Jan’ has always been accepted. In that caseMacpherson J. pointed out “ there was no corroboration such as addsto the approver’s evidence, against Nawab Jan; because there is noevidence, apart from that of the accomplice, which identifies the prisonerwith the commission of the offence with which he is charged. Nothingwhich distinctly goes to prove that he was in any way connected with thecommission of the principal offences. Facts which do not show theconnection of the prisoner with the commission of the offence with whichhe is Charged are no corroboration, in the sense in which the word is usedin such cases, although they may tend to show that certain portionsof what the accomplice says is true ”. He also referred to the cases ofThe Queen v. Biakanthanath Banerjee" and The Queen v. Mohesh Biswas3as well as to Reg. v. Malapabin Kapana (supra).
In a case in the Madras High Court, Muthukumaraswami v. KingEmperor there was a difference of opinion amongst the Judges, three ofwhom held that previous statements made legally amounted to corrobora-tion. Benson J. seemed to think that the evidence would be importantto prove that the witness had made a statement to the same effect if asuggestion were made by the defence that he was recently influenced togive his evidence. Some of the Judges, however, were of opinion that itwould be a departure from the ordinary rule to admit such evidence.I do not think the Madras case can be considered an authority, particularlyin view of the opinion of Lord Chief Justice Hewart in the Court ofCriminal Appeal. Further, in the present case the learned Magistrateconsiders the fact that second accused at once told the Sergeant that hewas carrying the wood for the first accused as a corroborating circum-stance. From the evidence of the Sergeant it would seem that the state-ment was made and recorded, as I have already said, later in the nightat 2 a.m., the arrest being at a little after 9 p.m.
I am of opinion that the corroborative evidence must be extraneousto the accomplice, that is to say, it must be the evidence of some person,not the accomplice, in some way implicating the accused and thus cor-roborating the accomplice. Such evidence in this case is wholly wanting.It was held in Rex v. GangappuK that the conviction founded solely onthe confession of a co-accused could not be sustained and where theaccomplice is a co-prisoner the corroboration should be cogent. Rex v.Ganappubhap 6 referred to in Chaudhari on Confessions, p. 415.
The first accused has had long service and I am not at all satisfied thatin this case he was taking part in this theft with the second accused.I could see from the record that the second accused felt, as the case wasproceeding, his chances of escape improved the more he implicated thefirst accused. This is a dangerous feeling for an accomplice to entertainespecially when he is also an accused.
In all the circumstances I do not think it is safe to convict the firstaccused. I set aside his conviction and acquit him.
Set aside.
*35 Mad. 397.
38 Bom. 156.
Unrep. Bom. Q. 456.
> 8 W. R. 19.a 3 B. L. R. 3 F. B.a 19 W. R. G. 16.