P. SIVASAMBU, INSPECTOR OF POLICE v. NUGAWELA

091-NLR-NLR-V-41-P.-SIVASAMBU,-INSPECTOR-OF-POLICE-v.-NUGAWELA.pdf


Sivasambu v. Nugawela.
363
1940Present: Keuneman J.
P. SIVASAMBU, INSPECTOR OF POLICE v. NUGAWELA.
797-8—M. C. Dandagamuwa, 5,700.
Evidence—Offer of bribe to public servant—Evidence of accomplice—Previousstatements made by accomplice—Independent testimony—Duty ofMagistrate before conviction on uncorroborated testimony—EvidenceOrdinance, ss. 133 and 157.
A person who offers a bribe to a public officer is an accomplice.
Where two persons have co-operated in the payment of a bribe theevidence of one is no corroboration of the other.
Previous statements by an accomplice do not constitute independenttestimony, which is necessary for the corroboration of the testimoneyof an accomplice.
Although under section 133 of the Evidence Ordinance a conviction isnot illegal merely because it proceeds upon the uncorroborated testimonyof an accomplice, the Magistrate should have clearly before him the factthat he is dealing with the evidence of an accomplice and he mustgive clear and satisfactory reasons for convicting in the absence ofcorroboration.
A PPEAL from a conviction by the Magistrate of Dandagamuwa.
H. V. Perera, K.C. (with him G. G. Ponnambalam and Cyril E. S.Perera), for accused, appellant in 797.
J. W. R. Ilangakoon, K.C., A.-G. (with him Nihal Gunasekera, C.C.),
for complainant, respondent in 797.
■ (IS!>2) 7 S. C. R. ISO.
1 a007) 10 X. L. R. 234.
(1920) 22 X. L. R. 111.* US96) 2 X. L. It. 40.
364
KEUNEMAN J.—Sivasambu v. Nugaivela.
J. W. R. Ilangakoon, K.C., A.-G. (with him Nihal Gunasekera. C.C.),for complainant, appellant in 798.
H. V. Perera, K.C. (with him G. G. Ponnambalam and Cyril E. S.Perera), for accused, respondent in 798.
Cur. adv. milt.
May 29, 1940. Keuneman J.—
The accused-appellant, who is the Ratemahatmaya of Katugampolahatpattu, was charged under three counts with obtaining gratificationsother than legal remuneration as a motive or reward for doing officialacts, namely,
a gratification of Rs. 5 obtained from K. Peter Fernando on
January 6, 1939, for appointing him as a kangany to supervisethe relief works at Talgammana Wewa ;
a gratification of Rs. 17 obtained from S. H. M. Appuhamy (Jr.)
on January 30, 1939, for appointing him as kangany of therelief works at Dandagamuwa Tank; and
A gratification of Rs. 5 obtained from M. J. M. Kiri Mudiyanse,
Vel-Vidane of Welpalla, on February 10, 1939, for appointinghim as kangany of the relief works, Mankade-oya.
All these offences were punishable under section 158 of the Penal Code.
The learned Magistrate acquitted the accused in respect of counts(1) and (2), and convicted him under count (3). In appeal No. 797.the accused appeals from this conviction, and in appeal No. 798, theAttorney-General appeals against the acquittal so far as it relates tocount (1). I shall deal with appeal No. 797 first.
The accused is admittedly a public servant, and was only interdictedfrom duty on May 12, 1939, after the material dates in this case. It wasestablished in evidence that it was a part of his official duties to appointkanganies and overseers under the scheme for the administration ofrelief which came into force in December, 1938.
The story of the prosecution as. regards the third count is given byKiri Mudiyanse himself and by the witness Deonis Fernando. Boththese witnesses were Vel-Vidanes. Shortly stated, the story amounts tothis. Kiri Mudiyanse and Deonis say that they received informationabout the appointment of Kanganies and overseers fi;om the Korala ofHundirapola, who informed them that payments had to be made in orderto obtain these posts. The scale of charges was variously given by thetwo witnesses ; according to Kiri Mudiyanse Rs. 10 and Rs. 15 was to bepaid to obtain the posts of kangany and overseer Respectively, whileDeonis gives different figures. Beth these witnesses were dissatisfiedwith the amounts demanded, and met later and decided to pay Rs. 5each direct to the accused, in order to obtain the jobs. In pursuance ofthis object, the two witnesses went together to the accused’s walauwaon February 10, 1939, in the morning,' but the accused had left or wasabout to leave on official business. They therefore waited till theaccused returned in the evening, and then went up to him as he wasseated in the verandah. Kiri Mudiyanse handed to the accused Rs. 5
KEUNEMAN J.—Sivasambu v. Nugawela.
365
placed on betel leaves. Deonis also handed him money on betel leaves.Deonis says that he intended to give Rs. 5 in one-rupee notes, but bymistake only Rs. 4 was actually given and one note remained in hispocket. The accused asked them to give their names to the clerk, Perera,and told them they would be appointed kanganies when the new listscame out.
The conviction has been attacked on a number of points.
The first point is that a mass of inadmissible evidence has been ledin the case, which had the effect of prejudicing the Magistrate. Thisevidence falls into two classes :
evidence of offences other than those with which the accused was
changed, and
evidence of statements and complaints made against the accused
by persons not called as witnesses.
As regards (a), it was argued that the evidence given by Deonis that healso gave a bribe on the same occasion was inadmissible. Similarly,there was evidence given relating to the first and second counts bywitnesses who state that on each of these occasions they also offeredbribes. The evidence on the third count is typical of the kind ofevidence led as. regards the first and second counts. On each of theseoccasions, a number of persons met together with the intention of offeringbribes to the accused. They acquainted each other of their intentions,and went in a body to the accused’s house, and there, one after anotheroffered sums of money placed on betel leaves to the accused, whoaccepted them. The acts of each set of witnesses were inextricablymixed together, and if the witnesses other than the ones named in thecharge had remained silent about their offers of bribes, an imperfect andprobably unreal picture of the events of that day would have been given.The Attorney-General argued that these other offers of bribes yere reallya part of the res gestae, and this evidence may well be so regarded. Atthe least, it may afford an explanation of the presence of these witnesseson the occasion in question, and the part that each witness actuallyplayed on that day. In any event, I do not think there has been anyserious prejudice to the accused by the admission of this evidence, andcertainly the evidence elicited strongly fortifies one of the arguments ofCounsel for the defence which will be dealt with later.
As regards (b), it is clear, and not denied, that evidence which shouldhave been excluded has been admitted into the case. A fairly seriousinstance is the letter P 9. This is a letter dated March 18, 1939, writtenby the witness Subasinghe to the Minister for Labour, in which he statesthat representations had been made to him by responsible people that theaccused, his clerk Perera, and the Korala of Pitigal korale have receivedvarious sums of money from various people to obtain the posts of overseersand kanganies under the relief scheme works. The letter continues:“ I made very careful inquiries which have satisfied me as to the truth ofthese allegations ”.
The .torney-Generai has pointed out that no objection was taken tothis doi ament by the accused’s Counsel, and that in fact the existence
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366
KEUNEMAN J.—Sivasambu v. Nugawela.
and some of the contents of this document had been elicited by accused’sCounsel in cross-examination of the prosecution witness Illankoon,before the document was produced. This is correct, but, whatever Aecircumstances, I am of opinion that this document should never havebeen admitted, and that its admission may have had a prejudicialinfluence on the decision of the Magistrate. In fact, I have come to theopinion that the evidence of Subasinghe, the private investigator intothese matters, was unnecessary, where it was not irrelevant. I shall deallater with P 7 and P 22, statements of Kiri Mudiyanse and Deonis.recorded by Subasinghe. At the most, Subasinghe’s evidence may havebeen called merely to show that he had not instigated a false chargeagainst the accused, as alleged by the defence. As far as the prosecutionwas concerned, it was sufficient to get a bare denial of these allegations.In fact, however, in his examination-in-chief, Subasinghe was allowed tospeak not only to the statements made to him by Kiri Mudiyanse andDeonis, but also to say, “ I also had several similar complaints againstthe accused …. I have recorded a number of statements regard-ing general allegations of bribery ”. This evidence was objected to byaccused’s Counsel, but was admitted on the ground that the accused hadalready put his good character in issue. I hold that this ruling waswrong. This is not evidence of bad character under section 54 of theEvidence Ordinance; It is not evidence of “ general reputation ” or of“ general disposition ” within the meaning of the illustration. It isevidence of individual complaints, and it is not shown that any of thesecomplaints resulted in a conviction. The admission of this evidence wascapable of creating prejudice in the mind of the Magistrate.
There is also much other irrelevant matter introduced into the case,but there the whole or the bulk of this evidence has been introducedin the cross-examination by the defence Counsel.
That a certain degree of prejudice may have been imported into, thecase is, I think, possible, for, when the Magistrate deals with the defencewitnesses, one cannot fail to detect a note of over-emphasis. To give asingle example, the witness Pabilis, admitted that the Adigar, accused'sfather, spoke to him in Court about the case, and that later he went tothe Adigar’s house, because he thought the Adigar may be angry becausehe was among the witnesses for the prosecution. The Magistrate thoughtthat this showed not only that the witness had been interfered with,but that he had been suborned. I need only say that as regards the latterfinding, the Magistrate has held as a fact what at the most may havebeen a matter of surmise.
The most serious objection taken by the accused’s Counsel is that theMagistrate has not kept in mind the fact that both Kiri Mudiyanse and- Deonis were accomplices. There is clear evidence that in this matterthe two men were acting in concert, and that the intention to offer bribeswas entertained by them voluntarily, and not as the result of pressureexercised by the accused, or indeed, by onyone else; I think that, iftheir evidence is examined, it is difficult to resist the conclusion that theyabetted the offence committed by the accused. They should have beentreated as accomplices. The Magistrate has undoubtedly failed to takethis fact into consideration.
367
KEUNEMAN J.—Sivasambu v. Nugamela.
Counsel further argued that there was no corroboration of the evidenceof these accomplices. I think this contention is right. The only otherevidence led on the third charge was that of the alleged statements madeby the two witnesses to Subasinghe and to Mr. Ernst, the GovernmentAgent. The statements made to Subasinghe were P 7 by Kiri Mudiyanse,and P 22 by Deonis, and were recorded on March 9, 1939. Subasinghesays that complaints were made to him by these two persons a few daysearlier. It is necessary to have a clear conception as to the value of thesetwo statements. In the language of Lord Hewart C.J. in Rex v. Lowell1such complaints are “ not evidence of the facts complained of ” but aremerely “ matters which may be taken into account …. inconsidering the consistency and therefore the credibility of the story ”.Where, accordingly, the law regards the evidence of one witness sufficientin itself to establish guilt, the evidence of that witness may be testedas to its consistency and credibility by proof of complaints made to thesame effect by the witness earlier. But in the case of an accomplice,the rule of practice requires something more than the mere testing of hisstory. In the language of Lord Reading in Rex v. Baskerville", there“must be independent testimony which affects the accused by connectingor tending to connect him with the crime. In other words, it must beevidence which implicates him—that is, which confirms in some materialparticular not only the evidence that the crime has been committed,but also that the prisoner committed it ”. There is ample authoritythat previous statements made by accomplices do not constitute the“independent testimony” which is needed—vide the judgment of LordHewart C.J. in Rex v. Whitehead 3: “ Corroboration must proceed fromsomething extraneous to the witness who is to be corroborated ”. Headds that otherwise the accomplice would only have to repeat his storytwenty-five times to get twenty-five corroborations. Vide also Iver v.Hendrick Appu * and Dole v. Romanis Appuc.
Further, in this case, the statements P 7- and P 22 and the previousstatements made to Subasinghe cannot in any event be used “ to corro-borate the testimony ” of Kiri Mudiyanse and Deonis under section 157of the Evidence Ordinance. (In passing, I may note that these words,“ to corroborate the testimony ”, appear to bring out the distinctionmentioned in Lowell’s Case.) The offence alleged was committed onFebruary 10, 1939. No statement or complaint was made till early inMarch. At that time Kiri^Mudiyanse was disappointed because he hadnot been appointed kangany,. and Deonis because he had been discontinuedafter a short period of service.. It is clear that complaints were not madeat or about the time when' the fact took place ”, and accordingly thesestatements should not have been admitted even to test the consistencyand credibility of the evidence given by the witnesses.
The reasons I have already mentioned apply with equal force to thestatements P 10 and P 11 recorded by the Government Agent on March27, 1939. I hold that they should not have been admitted.
129 L. T. 63.1.* (1029) 1 K. B. D. 99 ; 139 L. T. G40.
(1916) 2 K. B. D. 63S ; 113 L. T. 433.1 34 A L. R. 330.
“ 40 -V. L. R. 449.
368
KEUNEMAN J.—-Sivasambu v. Nugawela.
It is also clear law that one accomplice cannot corroborate anotheraccomplice. Deonis’ evidence, therefore, cannot be regarded as supple-menting that of Kiri Mudiyanse.
Under section 133 of the Evidence Ordinance, a conviction „ is notillegal merely because it proceeds upon the uncorroborated testimony ofan accomplice. But, it is necessary that the Magistrate should haveclearly before his mind the fact that he is dealing with the evidence of anaccomplice, and he must give clear and satisfactory reasons for convict-ing in the absence of corroboration. The Appeal Court can then assessthe cogency of his reasoning. In this case the Magistrate has clearlynot appreciated the fact that both Kiri Mudiyanse and Deonis wereaccomplices.
I am of opinion that the judgment of the Magistrate cannot be sup-ported. I set aside the conviction, and acquit the accused on the thirdcharge. This disposes of appeal No. 797.
In appeal No. 798, the Attorney-General appeals against the acquittalby the Magistrate of the accused on the first charge. The evidence inrelation to that charge was given by Peter 'Fernando himself and byBandappuhamy and Sunderahamy. All these witnesses say that on January6, 1939, they went^to the accused’s house, accompanied by tlfb HeadmaR. ofDahanagedara and in the society of several other applicants for the postsof kangany and overseer. The Headman introduced the parties to theaccused, and one after another they offered to the accused betel with moneyplaced on it, for the purpose of securing the posts they desired. Theseamounts were accepted by the accused.
The Magistrate considered this evidence and pointed out certaincontradictions in the stories. Some of these contradictions are notwithout a degree of importance. The Magistrate stated : “ I may notordinarily have considered them sufficiently material to create a reason-able doubt in my mind regarding the payment, but in this case, in view ofthe serious consequences which must result from a conviction, I feel thatthe proof must be more cogent than ih other cases. That is to say,it must leave no room for any doubt whatever ”. This is a misdirection,for in this case, as in all criminal cases, the Magistrate should have giventhe accused the benefit of any reasonable doubt, and should not havetaken into account any doubts which he did not consider reasonable.
But, on the other hand, in connection with this charge, the Magistratehas failed to consider whether Bandappuhamy and Sunderahamy wereaccomplices. Clearly, Peter Fernando was an abettor, and therefore anaccomplice. The evidence shows that each of these persons, includingPeter Fernando, independently conceived the intention of offering abribe to the accused in order to secure employment as kangany of theRelief Works. They arrived at this intention voluntarily and withoutany compulsion. At the instance of the Headman of Dahanagedara,they all assembled at the Headman’s house on January 6, 1939. Hereall these men informed each other of the object of their coming, namely,to offer bribes to the accused. They all set out for the accused’s house,some in a cart, some on bicycles. Those who went ^head on bicycleswaited at a boutique till the rest of the party in the cart arrived. The* whole party was then conducted to the house of the accused by the
SOERTSZ S.P.J.—The King v. Fernando,
369
Headman, and, on arrival, one after another offered the bribe placed onbetel leaves to the accused. I think it is clear that, at any rate, from thetime they arrived at the Headman’s house and consulted together, theywere all acting in concert and co-operating with each other in the givingof the bribes. It is not necessary to consider whether they were abettorsof the offence. I think there is evidence that each was an accompliceof the others. “ A person who offers a bribe to a public officer is anaccomplice …. Persons merely present when money is givento a bribe-taker are not accomplices, but the case is different if they haveco-operated in the payment of the bribe, or taken some part in the negotia-tions for its payment. In the latter case they cannot be regarded as inde-pendent witnesses and their evidence is tainted ”—vide Ameer Ali on TheLaw of Evidence, 9tli ed., p. 953. I hold in this case that Bandappuhamyand Sunderahamy should have been treated as accomplices, as well as PeterFernando. Their evidence does not supply corroboration to the story ofPeter Fernando.
There is no other independent evidence which gives the necessarycorroboration.
I think, in view of this fact, that it would be very dangerous to upsetthe acquittal of the accused on this first count. He is entitled to obtainthe benefit of the presumption that these witnesses are unworthy ofcredit.
Appeal No. 798 is dismissed.
Appeal allowed in 797.
Appeal dismissed in 798.
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