045-NLR-NLR-V-49-PEIRIS-et-al-Appellants-and-DOLE-Sub-Inspector-of-Police-Respondent..pdf
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BASNAYAKE J.—f-eiris v. Dole.
1948Present: Basnayake J
PEI BIS et al, Appellants, and DOLE (Sub-Inspector of Police),
Respondent
S. C. 1,344^1,345—M. C. Negcmbo, 52,373
Accomplice—Corroboration of evidence—Who is an accomplice—Evidence Ordinance,section 114 {b).
An accomplice is one who is a guilty associate in crime or who sustains suchrelation to the criminal act that he could be charged jointly with the accused.
Appeal from a judgment of the Magistrate of Negombo.
E. B. Wikramanayake, for 1st accused, appellant.
Boyd Jayasuriya, C.C., for the Attorney-General.
Cur. adv. vult.
January 20, 1948. Basnayake J.—
Five persons including the first and second appellants were chargedwith the theft of a brown bull and a brown cow, the property of onePodiya. After trial the learned Magistrate acquitted the 5th accusedand convicted and sentenced each of the first four accused to a term ofsix months’ rigorous imprisonment.
The first and second accused appealed from their conviction andsentence. The latter was unrepresented at the hearing in appeal, counselappeared for the former.
The facts so far as they are material to this appeal are that the firstaccused-appellant engaged the lorry of one Sydney Goonesekera forthe purpose of transporting cattle from Divulapitiya to Nugegoda. Thelorry owner’s cleaner accompanied the lorry while his driver drove it.The lorry left the owner’s premises at about 5.30 in the evening of thedate of the alleged offence and reached an estate called Assennawatteshortly before 10 p.m. At this place eight head of cattle were loaded intothe lorry, the four convicted accused taking an active and prominent partin bringing the animals and loading them. Two of the animals were thebull and the cow of Podiya.
Counsel contended that there was no evidence to support the conviction.I have examined the evidence and am satisfied that there is sufficientmaterial therein to justify the learned Magistrate’s finding. I do notpropose to disturb it.
Counsel urged as a matter of law that one Aloysius Perera, the cleanerof the lorry and on whose evidence the case largely rested, was an
The King v. Usman.
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accomplice, and that his evidence should be rejected as unworthy of creditin so far as it has not been corroborated in material particulars.
The expression “ accomplice ” is not defined in the Evidence Ordinanceon which Counsel relies (section 114 (6) ) and therefore it must be givenits ordinary meaning. According to the New Standard Dictionary anaccomplice is one of two or more participating in the commission of acrime whether as principal or accessory. The judicial interpretation ofthe expression under the corresponding provision of the Indian EvidenceAct is in accord with the definition I have stated above. Of the manyinterpretations of the Indian Courts the meaning given in the ease ofChelumal Bekumal v. Emperor1 commends itself to me. It is as follows :—
“ An accomplice is one who is a guilty associate in crime or whosustains such relation to the criminal act that he could be chargedjointly with the accused. It is, admittedly, not every participation ina crime which makes a party an accomplice in it so as to require histestimony to be confirmed.”
The evidence in this case does not disclose that Aloysius Perera was aguilty associate in the crime or that he sustained such a relation to thecriminal act that he could be charged jointly with the accused. Heplayed no part in the transaction. What is stated in evidence was whathe saw in the course of his duties as cleaner of his master’s lorry which hewas bound by the terms of his employment to accompany. His evidence,therefore, needs no corroboration. While I am on this point I shouldlike to say a word of caution against the tendency to make the word“ accomplice ” bear, in my opinion improperly, a larger meaning than ispermissible in law. In this connection I think it will not be inappropriateto repeat the words of Chandravarkar J. in Emperor v. Bum2 :—
“ No man ought to be treated as an accomplice on mere suspicionunless he' confesses that he had a conscious hand in the crime or hemakes admission of the facts showing that he had such hand. If theevidence of a witness falls short of these tests, he is not an accomplice ;and his testimony must be judged on principles applicable to ordinarywitnesses.”
The appeals of the first and second appellants are dismissed.
Appeals dismissed.