HE ARNE J.—Kern, v. Wickremesinghe.
1938Present: Hearne J.
KERN et al. v. WICKREMESINGHE.
774-5—P. C. Colombo, 10,451.
Decoy—Evidence of two decoys—Conviction on uncorroborated testimony.
It is not safe to convict on the uncorroborated testimony of two decoyseven if they agree.
Wijesuriya v. Lye (33 N. L. R. 149) followed.
^^PPEAL from a conviction by the Police Magistrate of Colombo.
J.R. Jayawardana, for accused, appellants.
E. M. T. Gunasekera, C.C., for complainant, respondent.
February 1, 1938. Hearne J.—
Cur. adv. vult.
The two appellants were convicted of offences in contravention ofsection 3 (3) of Ordinance No. 9 of 1930. The chief witnesses in the casewere two decoys. “ It has- been laid down again and again that it isunsafe to convict on the uncorroborated evidence of a decoy ”—Wijesuriyav. Lye but there is nothing in the judgment of the Magistrate to indicatethat he appreciated this. He merely says that it would be wise not to actwithout corroboration because he was satisfied “ the decoys were notspeaking the truth in all particulars ” and because during the adjournmentof the case “ they had compared notes in order to agree ”. He does notappear to have been alive to the danger of acting without corroborationon the evidence of two decoys even if they do agree. They are personswho provoke or instigate the commission of a crime with the object ofenabling the police to secure a conviction and as a rule they rhake it theirbusiness to agree.
The facts of this case are very similar to those in a reported case—Pterisv. Seneviratne In that case and this two decoys were given in additionto marked money two betting slips and the procedure was the same—the
» (1931) 33 N. L. R. 143 at 149.* (1931) 33 W. L. R. 157.
572HKARNE J.—Kern v. Wickremesinghe.
person taking the bet was to accept the money, keep the duplicate slipand hand the other with an identifying mark to the person making the bet.
In both cases the marked money was found with the accused, the originalslips with certain marks on them were found with the decoys, while theduplicate slips, were not found with the accused. But the most importantpoint of similarity is that in each case at least one of the decoys statedthat another person had made away with the slips retained by the accused.In Pieris v. Seneviratne (supra) the decoys do not appear to haveacquainted the Inspector with what they “ had seen In the presentcase one of the decoys says, “ I told the Inspector a gentleman had walkedtowards the sea with the chits ”, but the Inspector took no action. He •certainly made no mention of it in his evidence.
In the case to which I'have referred Akbar J. placed no reliance on thefact that the slips in the possession of the decoys had certain marks uponthem, for a's he correctly remarked “ the marks may well- have beeninserted by the decoys for the purpose of implicating the accused ”. Inregard to the finding of the marked money Akbar J. says, “ This wascorroboration to some extent but the presence of the marked money isexplained by the accused when he says that it- was payment for oil to be. supplied ”.
Now in this case the accused explained the presence of the markedmoney by saying that the decoys had asked for change. The Magistraterejected the explanation for the reason that it was belated and in allprobability untrue. He, therefore, accepted the evidence of the findingof the marked money as’ corroboration of the decoys and convicted theappellants.
There is much to be said for the view taken by the Magistrate. If itwas true that the accused had changed the money of the decoys one would ■have expected them to have informed the Inspector and invited him tosearch the decoys for change on their persons. But' on a considerationof all the facts I am of the opinion that it would be dangerous to holdthat the mere finding of marked money in a case of this nature wouldsupply the element of independent corroboration. If it were so held itmight be possible to contrive the conviction of an innocent person bystratagem—a decoy might surreptitiously introduce marked money intoa shop keeper’s till, or pay an existing debt with marked money, and then,summoning the police, disclose the fact that he. had a betting slip withmarks on it in his possession. Apart from this the disappearance of theduplicate slips is a mysterious feature of the case and the doubt it raiseshas by no means beep resolved by the evidence of Francis Perera, one ofthe decoys, that he had informed the Inspector “ a gentleman had takenthe chits ”, the inconsistent evidence of Andrew Perera, the other decoy,that the Inspector “ took from (second) accused the chit I had given himand said it was the chit he had sent by me”, and the strict silence theInspector maintained in regard to both these alleged incidents.
I allow the appeals.
KERN et al. v. WICKREMESINGHE