PEIRIS v. SENEVIRATNE

038-NLR-NLR-V-33-PEIRIS-v.-SENEVIRATNE.pdf


AKBAR J.—Peiris v. Senevtratne.
157
.1931Present: Akbar J.
PEIKIS v, SENEVIBATNE.
820—P. G, Colombo, 30,447,
Evidence—Corroborationof accomplice'sevidence-—Materialparticular—
Nature of corroboration required—Betting on Horse-racing‘ {Taxation)
Ordinance, Wo. 9 o/ 1930.
The corroboration of the evidence of an accomplice cannot be suppliedby another -accomplice.
Such corroboration must be in some material particular tending to6how that the accused committed the offence and may be given by director circumstantial evidence.
^^PPEAL from a conviction by the Police Magistrate of Colombo.
H, V. Perera, for accused, appellant.
Deraniyagala, Acting G, 0., for Crown, respondent.
November 23, 1931. Akbar J.—
The accused was charged with receiving two bets on a horse-race onAugust 6, 1931, in contravention of section 3, sub-section (3), of OrdinanceNo. 9 of 1930, and he was sentenced to pay a fine of Bs. 1,000 or in default:six months’ rigorous imprisonment. Under this Ordinance there is a
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AKBAR J.—»Peiri$ ». Seneviratne.
provision against receiving or negotiating a bet on a horse-race otherthan a *' taxable bet " as defined by the Ordinance. The appeal is onthe facts. It appears that on the day in question, two Inspectors of the
I. D. sent two decoys with marked money to trap the accused in theact of contravening the Ordinance. The two decoys were given in additionto marked money two slips of paper each with the names of three horsesto run in the races that day and they were instructed to make what isknown as “ all on " bets, i.e., a system by which if any horse won its race,the winnings calculated proportionately to the bet from payments made'on the race-course were to be put on the second horse, and so on. Each ofthe decoys was given Be. 1.25 and the procedure ordinarily, it appears,would be for the person taking the bet to accept the money, keep theduplicate himself and hand the other copy with a number or some otheridentifying mark to the person making the bet. According to theevidence for the' prosecution the two Inspectors with Police SergeantSimon (who introduced the two decoys to the Inspectors) and P. C. Bandacame in a car with the two decoys and stopped the car at the junction ofMalay street and De Mel road. The two decoys went to the medical hallof the accused about 10 or 15 fathoms from where the car was stopped.It appears that the -accused is an Ayurvedic physician who has a medicalhall, and that he in addition is an astrologer, and it was suggested for the-prosecution that he was also the keeper of a “ bucket shop ", About 10 or15 minutes later, the two informants came out of the hall and gave thesignal to the police, when the police raided the accused’s medical hall.They found the marked money in the drawer of the accused but theduplicates which the decoys stated they had handed over to the accusedwere nowhere to be found by the police. The two copies of the slipswhich the decoys had with them were handed by them to the police,,hamely, documents marked P 1 and P 2. Pi bears a number 5 writtenin pencil and underlined and there is also an inverted V in pencil. P 2bears number 8 within a circle and a mark X. The' Inspectors also founda bundle of papers on the desk of the accused, namely, newspapers con-taining acceptances and scratchings for the next day's race, a Turf Clubprogramme for the day's racing, and 6lips of paper containing variouscalculations, and also a slip written in Sinhalese containing the names ofthe horses to run in the August races. As a matter of fact there wereseveral slips of paper containing calculations. There were also newspaperscontaining entries for the Indian races and an exercise book marked P 22.The accused in his evidence denied that he had received any bets andthat he was given the slips. He admitted the payment of the Bs. 2.50,but he said that it was payment for two bottles of medicinal oil which he6aid the two decoys had asked for. As several of his patients yerewaiting, he accepted the money and asked the decoys to wait for the oil„but the raid took place before he could give the oil to the decoys. Thecase was thus narrowed down to a very small compass. As pointed outby my Lord the Chief Justice in 8. C. No563, P. C. Colombo, No. 27,643(see 8. C. M. of October 8, 1931), the two informants or decoys wereaccomplices under section 3, sub-section (3), of the Ordinance and thereforeas explained by the Chief Justice the evidence of such accomplices had tobe corroborated.
AKBAR J.—Peiris v. Seneviratne.159
The learned Police Magistrate says that the two decoys corroboratedone another in every respeot. But the law applicable to two accomplicesis the same as the law applicable to one. As Mr. Justice de Sampayostated in the case of Silva v. Wickramasuriya1, the law on the subject wasreviewed by the English Court of Appeal in King v. Baskerville2, in whiohLord Beading C.J. held that there must be corroboration of an accom-plice's evidence in some material particular tending to show that theaccused committed the offence and that it must be by some evidenceother than that of an accomplice and therefore one accomplice’s evidencewas not corroboration of that of another; and that the corroborationneed not be direct evidence but may be circumstantial evidence of the•connection of the accused with the crime, such as the discovery in a caseof theft of any part of the stolen property in the accused’s house or in aplace indicated by the accomplice. These are the usual principles whichhave always been followed in criminal cases and therefore the mere factthat two accomplices gave evidence instead of one makes no difference.The finding of the marked money was corroboration to some extent, butthe presence of the marked money is explained by the accused when hestated that it was payment for oil to be supplied. As a matter of fact,when the police raided there were several persons there and it is a verysignificant fact that the duplicate slips were not found anywhere in thehall. The first decoy, however, in the evidence he gave before theMagistrate stated that the duplicate was handed by the accused to a manon his right hand, and that when the police raided, this man on theaccused’s right hand disappeared through the back door. Similarly, thesecond decoy stated that the accused handed his duplicate slip to a manwho was sitting next to him and that as the C. I. L. officers came in theman who had been sitting by the accused went away by the passage tothe back. The decoys thus hoped to explain the disappearance of the•duplicates, which should have been in the possession of the accused.But it is strange that neither of the Inspectors mentioned this incidentin their evidence and it was only the decoys who referred to the dis-appearance of the stranger apparently for the first time before the -Magistrate. If the decoys are speaking the truth, one would have•expected them to have called the attention of the Inspectors to thestranger disappearing with the incriminating slips by the back door.They seem to have been silent at the time of the raid. If they hadmentioned this fact, if it was a fact, the mdny police officers presentthere might have given chase and arrested this stranger. This is not theonly difficulty. According to the decoys, after the first decoy had madea bet (the slip being No. 5) there were two other bets taken by strangersthere and that was why the second decoy had his slip marked 8. I cannotunderstand why the Inspectors were not told of this fact by the decoysat the time of the raid and if they were told about it why they did notseareh these two other persons, who could have been charged under thesame sub-section independently for contravention of the section. Thesergeant is said to have found another slip marked P 23 which is acancelled slip, containing the names of three horses, but this slip was foundby the sergeant on the floor and might have been dropped by one of
* 20 NJL- R. 165.12 L. Rt, K. B. 658.
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AKBAH J.—Peiris v. Seneviratne.
the persons present there, who according to the suggestion of theaccused may have been a confederate with the two decoys for the purposeof implicating the accused in a false case. If the suggestion for theprosecution is true, namely, that slip P 23 was evidence of another betmade by one of the persons present there, it is all the more strange whythe police did not search everyone present there. Thus it will be seenthat no duplicates were found in the possession of the accused. Moreover,there is some evidence by the accused to prove that he had incurred theenmity , of certain persons owing to a recent election in the ward in con-nection with the State Council. The Police Magistrate, in his judgment,after stating that the two decoys corroborated each other in every respectstates that Inspector Peiris took from the drawer of the table at whichthe accused was sitting " all the paraphernalia of the manager of abetting establishment . This remark of the learned Police Magistrateshows I think that he has not examined the documents that have beenproduced in this case. The Turf Club programme and the newspapercopies containing entries and scratchings are not necessarily evidencethat the accused was running a betting establishment. It may well bethat he himself made bets on the race-course, or in other words that hewas a punter himself; and the calculations may have been in respect ofthe accused's second vocation of an astrologer. I do not think that thevarious documents found are evidence that the accused was the managerof a betting establishment excepting perhaps the exercise book markedP 22, which the accused explained was the property of a clerk of his.who had left his service about two months earlier. But even if it is hisbook it in no way in my opinion corroborates the case for the prosecution.Two sheets of the exercise bookaremarked with variousitems forApril
12, 14, 18, and 21, 1931, and July(no date). Only oneof these items,
viz., the one in Juty, contains the English letter B written in Sinhaleseand the word “ paid " against a sum of Rs. 8.50. It is suggested thatthis entry corroborates the case for the prosecution because the Englishletter B in Sinhalese stands fortheword “ bet ”. TheSinhaleseword,
however, is “ ottuwa ” and evensupposing the letter B stands for “bet ”
the amount is only Rs.-8.50. Is it suggested that this sum of Rs. 8.50represents all the winnings of a successful better? Even then this bookrefers to items previous to August, 1931, and is not corroboration of thecharges against the accused in respect of acts of betting in August, 1931.In my opinion it is entirely unsafe to consider that the items in the bookand the mysterious letter B are sufficient corroboration on materialparticulars of the evidence given by the accomplices. The secondInspector mentions a police constable Karunatileke as being with theparsons near the accused when the police raided accused’s premises.As the first Inspector did not mention this constable’s name as one of theraiding party, I cannot understand why he was not called to corroboratethe prosecution case. There remains one other fact to mention, viz.,No. 5 in pencil and No. 8 also in pencil appear on the two slips which thedecoy handed over, but they may well have been inserted by the decoysfor the purpose of implicating the accused. In my opinion the evidencefalls' short of what is required for a conviction in a case of this kind-I set aside the convictions and acquit the accused.
Set aside.