038-NLR-NLR-V-20-SILVA-v.-WICKRAMASURIYA-et-al.pdf
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Present : De Sampayo J.
SILVA v. WICKBAMASTIBIYA et al851 to 854—P. 0. Badulla, 9>575
Evidence of accomplice — Is corroboration necessary f — Evidence Ordi-nance, ss. 133 and 114m
A conviction based on the uncorroborated testimony of accom-plices is not bad. It iB, however, generally unsafe to convict onsuch tainted evidence. The question whether an ' accused person maybe convicted on such evidence is left for the Court to decide in thecircumstances of each case.
“The rule as to corroboration has no application in the case of anaccomplice who is merely a youthful tool in the hands of one whostands to him in a position of authority. **
^HE facts are fully set out in the judgment.
Bawa, K.C. (with him Candkaratne), for accused, appellants.
Schneider, S.-0.t for respondent'.
Cur. adv. vult.
October 30, 1917. De Sampayo J.—
An important 'point in the law of evidence has to be consideredin this case. The accused have been charged with having aided andabetted one Thevarayan, the tappal cooly of Poonagalla estate, incommitting theft of 100 lb. of tea from Poonagalla estate. Thefirst accused is the son of one Charles Wickramasuriya, who carrieson trade in a boutique at Koslanda, and he no doubt assistedhis father in the business. The second, third, and fourth accusedwere employed as salesmen in the boutique. The. case againstthem may be shortly stated as follows. The accused met Theva-rayan, by appointment, on Poonagalla road, about 1£ miles fromthe boutique, .late at night on April 23 last. Thevarayan, whowas accompanied by another cooly, brought two bags containing,tea, and delivered them to the accused. The tea was weighed in abalance taken for the purpose by the accused, and was then statedto be 84 lb/ in weight. The tea was received by the accused andtaken to the boutique, where the next day Thevarayan was paidthe price agreed upon, viz., Es. 18. The tea was subsequentlyweighed at the boutique, and found to be a little over 100 lb. inweight. On the orders of the. boutique-keeper, Charles Wickrama-suriya, the tea was mixed with inferior tea, and part of it was left inthe front of the boutique for sale, and the balance put in the store.This story is related by Thevarayan himself, who has been chargedwith the main offence and convicted in another case, and by oneHendrick Appu, who accompanied the accused from the boutique onthat might and was present when Thevarayan brought and deliveredthe tea. Hendrick' Appu was employed as a kitchen servant at
1917
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1917.
Da SampayoJ.
Silva v.Wickrama-suri/ya
the boutique, and appears to have accompanied the party at theinstance of the first accused. On April 25 the police searched theboutique and found 28 lb. of the mixed tea; Mr. Coombe, managerof Poonagalla Group, said that the tea found was . broken orangepekoe and broken pekoe inixed with tea of a bad quality. Thegood tea contained tips, and Mr. Coombe produced a similar samplefrom Poonagalla factory. He could not speak of any shortageof tea, but said that, as the factory produced 4,000 to 7,000 lb. oftea daily, a shortage of two bags could not be detected. Thevarayanhimself admitted that the tea he sold to the accused was Poonagallatea, but sought to exculpate himself by saying that the Assistantteamaker gave it to him, and that he and another cooly namedSuppramaniam removed it . in two bags, and delivered it to theaccused at the place and time mentioned.
s
It will be seen that the whole case depends on the evidence ofThevarayan and Hendrick Appu, who are in the position of accom-plices, the former in the fullest sense and the latter in a less degree.The question is whether the conviction based' on their evidencealone can be supported, and, if not, whether the evidence is cor-roborated in material particulars. The English doctrine that anaccused person cannot be convicted on the uncorroborated testimonyof an accomplice is not referable to any positive law, but is a ruleof practice so universally observed that it has acquired the forceof law. It is not necessary to refer to the numerous decisions onthe subject; they were all reviewed recently by the Court of CriminalAppeal in King v. Baskerville, 1 which once for all settled the natureand extent of corroboration required. The following propositionslaid down in the considered judgment delivered by the Chief Justice,Lord Reading, are relevant to the present case. The corroborationmust be in some material particular tending to show that theaccused committed the offence charged; it must be by some evidenceother than that of an accomplice, and, therefore, one accomplice'sevidence is not corroboration of that of another; the corroborationneed not be direct evidence, but may be circumstantial evidence ofthe connection of the accused with the crime, such as the discovery,in a case of theft, of any part of the stolen property in the accused'shouse or' 'any place indicated by the accomplice; the jury beforewhom the accused may be tried should be warned of the danger ofconvicting upon an accomplice's evidence without corroboration,but should, however, be informed of their legal power to convicton such unconfirmed evidence; if after proper warning the jury,convict, the Court of Appeal will not quash the conviction merelyupon the ground that the accomplice's evidence" was uncorroborated;but the Court will review all the facts of the case; and will interfereif, after considering all. the circumstances of the case, it thinks theverdict unreasonable.
1 {2916) L. JJ. 2 K. B. 658
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Before considering the applicability of these principles, it isconvenient to dispose of an argument strongly pressed upon me, onbehalf of the accused, to the effect that the same result should followin this case as in P. 0. Badulla-Haldummulla, No. 9,576, decidedby my brother Ennis on August 2 last. That was a case in whichCharles Wickramasuriya, the proprietor of the boutique at Koslanda,was charged with the offence of theft of tea in the circumstancesabove mentioned, and was convicted by the Police Magistrate.There the same two accomplices, Thevarayan and Hendrick Appu,and certain other witnesses, were called for the prosecution, and theaccused gave evidence on his own behalf, and also called three or fourwitnesses. My learned brother examined the evidence in that case,and considered that there was no proof that the tea found in theaccused’s boutique was stolen tea, and concluded his judgment asfollows: “ And. there are grave reasons against accepting, with-out strong corroboration, the evidence of the two self-condemnedaccomplices, the tappal cooly and the accused’s cook Hendrick, theevidence of an accomplice being always infamous evidence.” It isclear that the judgment in appeal, setting aside the convictionproceeded upon a consideration of the evidence as recorded in thatcase, and the remark with regard to Thevarayan and Hendrickundoubtedly represents the point of view from which the evidenceof accomplices must necessarily be looked at in all cases. Thepresent case was tried before another Magistrate, and before theconclusion of the proceedings the opinion of the Supreme Courtas to the accomplices was brought to his notice. He thensaid that it placed him in a difficult position, as he had alreadyformed a strong opinion, and proceeded to record his reasons atlength for his conclusions of fact, but deferred his. judgment pend-ing the return of the other record from the. Supreme Court.Ultimately he gave judgment convicting the accused, andwith regard to what was said about Thevarayan and Hendrick Appu’sevidence by the Supreme Court, he said that, as already stated,that evidence had impressed him very strongly, and added, thatit found strong corroboration from the facts which he had pre-viously commented on. In the circumstances, I do not think thatI ought to take the judgment in appeal in the previous case as anentire guide. I can only consider the evidence in this case anewmyself. Incidentally I may note that, apart from the actual exist-ence of corroboration, the fact of the Supreme Court judgment beingbrought to the notice of the Magistrate before verdict issomething of the same kind as the warning which it is neces-sary in England to address to a jury, and since the Magistrate, never-theless, convicted the accused, the principle mentioned above,that the Appeal Court will not quash a conviction merely on theground • of want of corroboration, appears to be applicable inthis easp
1917.
Z)b SampavoJ.
Silva v.Wickrama-suriya
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1917.
Db SaupayoJ.
Silva v,Wiokrama-vsurtya
I have so far dealt with the English rule of practice as to corro-boration of an accomplice's evidence. Our law on the subject iscontained in section 133 of the Evidence Ordinance. No. 14 of 1895.which expressly enacts: “An accomplice shall be a competentwitness against an accused person, and a conviction is not illegalmerely because it proceeds upon the uncorroborated testimony ofan accomplice." To hold that corroboration is imperativelynecessary would be to refuse to give effect to the second part of thissection, and it has been so decided in India under the correspondingsection of the Indian Evidence Act. R. V. Ramasami Padayachii1R. v. Gobardham.2 It is no doubt generally unsafe to convict ousuch tainted evidence, and this rule of caution is enforced byillustration (b) to section 114 of the Evidence Ordinance, to theeffect that “ the Court may presume that an accomplice is unworthyof credit, unless he is corroborated in material particulars." It willbe observed that the presumption is not a conclusive one, but maybe met by the circumstances of a particular case. The wholematter is thus reduced to a question of the exercise of discretion bythe Court of trial. It is, therefore, necessary only to considerwhether in this case the Police Magistrate ' rightly exercised hisdiscretion.
It is true, as noted above, one accomplice cannot be said tocorroborate another, if such corroboration is necessary. But,since the evidence of an accomplice is legally sufficient to support aconviction, I think that if one accomplice has a different relation tothe act constituting the offence from another, and, being personally.unconnected with the other, 'he gives independent evidence tendingstrongly to confirm the other, the Court will have less reason torefuse to convict. In this – case Thevarayan and Hendrick Appuhad nothing to do with each other. Thevarayan _was the thief,and Hendrick Appu only assisted the accused in disposing of thestolen property. Hendrick Appu came out with his story quiteapart from Thevarayan. It appears that on the day after thisoccurrence he was beaten by the first accused for some reason or 'other, and he ran away from the boutique. He took his revengeby going at once to the Town Arachchi of Koslanda and makinga disclosure of the whole affair. The details elicited from himsubsequently received remarkable confirmation from Thevarayan. -Moreover, the rule as to corroboration has no application in the case ofan accomplice who is merely a youthful tool in the hands of one whostands to him in a position of authority. Ramasami v. Govenden,3.per Sir S. Subramania Ayar C.J. Now, Hendrick Appu is a youth,of nineteen years of age; he had nothing to do with the business inthe boutique; he was only a kitchen boy, and was on this occasionmore or less a-tool in the hands of the accused. With regard to
1 (2878) I. L. R. 1 Mad. 394.-» (1887) I. L. R. 9 AU. 528, 553.
3 (1903) I. L. R. 27 Mad. 271.
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Thevarayan, he was no doubt the principal accomplice, but thecircumstances in which he gave evidence negative the existence ofthe reasons which usually operate in discrediting an accomplice.The evidence of an accomplice is generally regarded as untrustworthy,beoause he is likely to swear falsely in order to shift the guilt fromhimself, or beoause he hopes to obtain favour from the prosecution andthus escape punishment. Thevarayan in no way attempted to shiftthe guilt from himself on to the accused. His part of the transac-tion was quite distinct from theirs, and involved him in the com-mission of an offence altogether apart from their guilt or innocence.Moreover, his chance of any favour from the prosecution was longpast. He had been charged in another case and convicted, and heactually came from jail to give evidence in this case.. In my opinionthe evidence of these two witnesses should be considered on itsmerits, and after reviewing the whole case I am unable to say thatthe Police Magistrate ought not to have acted on that evidence,or that his judgment is unreasonable, except, perhaps, with regardto the fourth accused, whose case I shall deal with presently.
1917.
De SampayoJ..
Silva v.Wiohnma-euriya
The evidence of Thevarayan and Hendrick Appu, on the otherhand, is not wholly without corroboration. They said, for instance,,that Bs. 18 was paid for the tea on the next day at the boutique.,As a matter of fact, a payment of Bs. 18 is entered bn April 24 inthe account book of the boutique. The payment is entered as forpurchase of “ coconuts,” but this the Magistrate regards as a mereblind. Again, Hendrick- Appu stated that the scales used forweighing the tea at the time of its receipt had a hole with a. nailinserted so as to affect the index, and that the tea, which whenweighed by this false balance in Thevarayan’s presence was 84 lb.,was in fact 105 lb. when weighed at the boutique without the nail. ThePolice actually found in the boutique a pair* of scales of thecharacter spoken of by Hendrick Appu. It is true that the wholequantity of tea was not found at the time of the search, nor was thetea found in the original condition. But it is sufficiently clear fromMr. Coombe’s evidence that the tea, with which some inferior teawas mixed, was not of a kind ordinarily forming the stock in tradein a boutique, and I think there is reasonable ground for inferringthat it was stolen tea. These particulars are corroborative, and insome degree connect the accused with the offence charged, becausethe accused are assistants or salesmen at the boutique.
[His Lordship then dealt with the evidence against the fourthaccused.]
The conviction of the fourth accused is set aside, and the sentenceof the first accused is altered to a fine of Bs. 100, with the alternativeof rigorous imprisonment for three months in default of payment.The appeals are otherwise dismissed.
Varied.