In Re: Krishnan and another

Ramaswami, J.—These are a batch of criminal revision cases preferred against the convictions and sentences of the learned Sixth Presidency Magistrate, Saidapet, in C.C. Nos. 602, 604, 606, 607, 611, 612,615 and 741 of 1954 by accused 1 Krishnan and accused 2 Mohammad John. The sentences of six months rigorous imprisonment awarded in each case have been made to run concurrently with the sentences passed in C.C. No. 604 of 1954. The sentences on accused 1 were in addition to a sentence of six months passed in C. C. Nos. 610 and 616 of 1954 which do not form the subject-matter of these revision cases. The facts are : In and around Nungambakam area several thefts took place from the bungalows of various persons including our learned brother Somasundaram, J. In some cases the owners reported the thefts and in some cases they kept quiet. The Police naturally alerted by the series of burglaries, were making investigations. Subsequently on information received they arrested these two accused. The accused persons pointed out the houses in which thefts took place and regarding which complaints have been made. They also gave information which led to the Police tracing out the receiver Fazlulla to whom they disposed of a considerable number of articles stolen from these various persons and who in turn had disposed of them to various respectable merchants taking care always to be accompanied by these accused persons. The Police got the properties recovered from the persons to whom they have been disposed of and got them identified by the owners as properties stolen from them.

Thereafter both these persons were put up for trial before the Sixth Presidency Magistrate and they have been convicted and sentenced as mentioned above. They have preferred these revision cases.

In these cases it has been established beyond reasonable doubt that thefts took place as alleged from the houses of various persons examined as

P. Ws. and that some time after the commission of the offences properties were recovered on information given by the accused persons which led the Police to Fazlulla, examined as a prosecution witness in all these cases, and who in turn led the Police to the persons to whom the articles had been disposed of by him in the presence of the accused persons and the articles so recovered have been identified with certainty as the properties stolen from the various owners examined as prosecution witnesses.

The short point for consideration in these revision cases is whether the evidence of Fazlulla the receiver, requires corroboration and if so to what extent.

The law relating to accomplices and the corroboration or confirmation of their evidence in material particulars is the same both in England and India.

In India the provisions covering accomplices are to be found in S. 133 and illustration (b) to S. 114 of the Indian Evidence Act. S. 133 states that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Illustration (b) to S. 114 states that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars.

The law in England is the same, viz., the jury has an unfettered right to convict upon unconfirmed evidence and at the same time it has been considered the imperative duty of the Judge to warn the jury of the danger of convicting on the uncorroborated testimony of an accomplice. It will therefore be interesting to trace the development of the English law on the subject.

That Jury could always convict upon the evidence of an accomplice alone has always been held to be an undisputed proposition in England, As far back as 1809 in R. v. Jones (1809) 2 Camp. 131. Lord Ellenborough stated:

No one can seriously doubt that a conviction is legal, though it proceed upon the evidence of an accomplice only, judges in their discretion will advise a jury not to believe an accomplice unless he is confirmed......; but if he is believed, his testimony is unquestionably sufficient to establish the facts which he deposes.

Again, in R. v. Stubbs 1855 Dears C.C. 555, 557, a strong Court consisting of five Judges. Jervis C.J., Parks B, Wightman, Cress well and Willes JJ. declared :

It is not a rule of law that an accomplice must be confirmed in order to render a conviction valid; and it is the duty of the Judge to tell the jury that they may, if they please, act on the unconfirmed testimony of an accomplice.

To the same effect is the statement in Re Meunier (1894) 2 Q.B. 415, by Cave J. who underlined the unqualified discretion of the Jury in these words :

I know of no power to withdraw the case from the jury for want of corroborative evidence, and I know of no power to set aside a verdict of guilty on that ground.

These citations are all taken from cases decided before the creation of the Court of Criminal Appeal, but it will be found that subsequent to 1907 the same principle is accepted with, out any doubts being cast as to its validity. Thus the views expressed in Stubbs and Be Meunier were given unqualified approval by the Court of Criminal Appeal in R. v. Tato (1908) 2 K.B. 680, 682, in R. v. Baskerville (1916) 2 K.B. 658, 663 and again in R. v. Beebe (1925) 19 Crl. A.R. 22. There is, then, no doubt as to the Judge's duty to inform the jury that it is within their legal province to convict upon such unconfirmed evidence, and although the question did not arise in Davies v. D.P.P. (1954) 2 W.L.R. 343, the House of Lords accepted without cavil the principle enunciated above.

In regard to the customary warning given to a jury as to the danger of convicting a prisoner on the uncorroborated evidence of an accomplice in very recent unanimous judgment of the House of Lords in Davies v. D.P.P. (1954) 2 W.L.R. 343. Lord Simonds L.C. has shown how throughout the last century and a half two conflicting schools of thought-describable as the "discretionary" and "peremptory" doctrines respectively-were in vogue in regard to the nature of such warning.

Before the Court of Criminal Appeal was established in 1907 the consensus of judicial decisions in England was that it was a matter for the discretion of the trial Judge to warn the jury or not in particular cases. Thus, in B. v. Jones (1), Lord Ellenborough cited with approval the decision of twelve Judges in R. v. Atwood and Robins (1788) 1 Leach 464, in which case the Judges stressed the discretionary nature of any such directions to the Jury. Thirty years later, in R. v. Farler (1837-8) C and H. 106, Lord Abinger was prepared to go further and declared that the practice of Judges in uniformly telling juries that they ought not to pay any respect to the testimony of an accomplice unless it was corroborated was one "which deserves all the reverence of law." Far less emphatic, however, was the opinion of a strong Court in B. v. Stubbs 1855 Dears C.C. 665. 657, which was content to lay that "It is usual in practice" for the Judge to give such a warning, whilst in B. v. Boyes (1861) 11 B and S

822, Blackburn J. in a manner to which he was accustomed, said that in the event of an accomplice giving testimony the trial Judge ""is not justified in neglecting to caution the jury.

But there was a marked change after the establishment of the Court of Criminal Appeal in 1907 and the first case in which this peremptory doctrine came to be adumbrated was R. v. Tate (1908) 2 K.B. 680, 682, where Lord Alverstone C J. declared that "it is of the highest importance that the jury should be so directed." In that case the Court considered that the trial Judge's omission to warn the jury constituted a miscarriage of justice and proceeded to quash the conviction. A few years later, in the leading case of B. v. Baskervilla (1916) 2 X.B. 658 658, the Court of Criminal Appeal consisting of Lord Reading C.J., Scutton, Avory, Rowlett and Atkin JJ. held that the "rule of practice has become virtually equivalent to a rule of law" citing in support of the decision in B. v. Tale (3) on the opinion of Lord Reading C.J. in the event of the trial Judge failing to give the warning, the Court of Criminal Appeal would be bound to set aside the conviction. Further support for the ""peremptory nature of the warning was forthcoming in R. v. Beebe (1925) 19 Crl. Ap. R. 22, where Lord Hewart, C.J., said that the duty to warn the jury of the danger of acting on the uncorroborated testimony of an accomplice was "not a rule to be neglected in some cases and observed in others, but a rule of universal application." As might be expected the same view was adopted by Lord Hewart, C.J., in R. v. Davies (1980) 22 Cr. Ap. R. 138, and again in R. v. Lewis (1937) 4 AII E. R. 360. In the light of this consistent emphasis on the imperative necessity of warning juries it is significant to note the deodorant opinion expressed in R. v. Garland (1943) 29 Crl. Ap. R. p. 46, by Humphreys, J., who reverted to the discretionary Character of the warning saying, ...... this Court will do nothing to weaken the force of those judgments in which it has been repeatedly said......... that it is most desirable that a Judge......... should remind the jury of the danger of convicting upon the evidence of an accomplice unless corroborated.

A few years later, however, in R. v, Mohamed Farid (1945) 30 Crl. Ap. R. 168, a differently constituted Court upheld the "peremptory" view, Tucker, J., stating that the rule ""which was originally one of practice has now become to all intents and purposes a matter of law.

The House of Lords recently in Davies v. D.P.P. (1954) 2 W.L.R. 343 have laid down as follows: Henceforth accomplice who are participants in crime are to be classified under two categories which for purpose of distinction may be described as ""accomplices in actual crime" and "accomplice in the general criminal transaction." Thus, an "accomplice in the actual crime" covers any person who is particeps criminis in respect of the actual crime charged either as a principal or as an accessory before or after the fact. On the other hand, "an accomplice in the general criminal transaction" describes any person who is not particeps criminis in respect of the actual crime charged but who was criminally implicated in the transaction which gave rise to the actual crime charged. According to the decision in Davies v. D.P.P. (1954) 2 W.L.R. 343 only in the case of evidence given by an "accomplice in the actual crime" is there an imperative duty upon the trial Judge to warn the jury as to the danger of convicting without corroboration. Whilst the House of Lords said nothing as to the position of "accomplice" in the criminal transaction"", it may be presumed that in such a case the Judge is not obliged to give any warning, but may do so in the exercise of his discretionary power.

The law in India is similar and stands thus : Even before the passing of the Indian Evidence Act, 1872, it had been held by a Full Bench of the Calcutta High Court in R. v. Elahee Buksh (1853) 5 W.R. Crl. 80, that the law relating to accomplice evidence was the same in India as in England. Then came the Indian Evidence Act. Reading S. 133 and Illustration (b) to S. 114 together, the Courts in India have held that, whilst it is not illegal to act upon the uncorroborated evidence of an accomplice, it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused; and further that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice. The law in India, therefore, is substantially the same on the subject as the law in England, though the rules of prudence may be said to be based upon the interpretation placed by the Courts on the phrase ""corroborated in material particulars" in Illustration (b) to S. 114 : Bhuboni Sahu v. The King 1949 M.W.N. Crl. 116 =

1849 AIR P.C. 257 = 62 L.W. 664. It is a well settled rule of law that the evidence of an accomplice or an accessory must be corroborated in some material particulars, not only bearing upon the facts of the crime but upon the accuser's implication in it and further that the evidence of one accomplice is not available as corroboration of another. This rule as to corroboration, long a rule of practice is now virtually a rule of law and is a rule of the greatest importance especially where an accomplice gives evidence exculpating himself and fastening the guilt upon the other : Mahadeo

v. King AIR 1936 P.C. 242 = 44 L.W. 253. Both in England and in India it has become a rule of practice and it is now virtually a rule of law that corroboration is required to base a conviction on the evidence of an accomplice : M. K. Thiagaraja Bhagavathar v. Emperor AIR 1946 Mad. 271

= 59 L.W. 22.

Both in England and India under the old as wall as the new definition of "accomplice" receivers have beery held to be accomplices of the thief from whom they received the goods on a trial of the latter for larceny or theft. In two cases R. v. Jennings (1912) 7 Crl. Ap. R. 242, and R. v. Dixon (1925) 19 Crl. Ap. R. 55, receivers were held to be accomplices of the thieves from whom they received goods. According to Lord Simonds in Davies v. D.P.P. (1954) 2 W.L.R. 343, there are special circumstances to justify the extension of the primary meaning of the term accomplice"" to cover the case of receivers. As the Lord Chancellor pointed out a receiver is not only committing a crime intimately allied in character with that of theft; he could not commit the crime of receiving at all without the crime of theft having preceded it. The two crimes are in a relationship of "one-sided dependence." Stated in a different form, it may be said that although the thief or the receiver as the case may be is not necessarily an accomplice in the actual crime charged, both are accomplices in the criminal transaction out of which arises the charge of larceny or theft and the charge of receiving and it is on this account that their respective testimony must be treated with caution and requires corroboration.

Similarly, under our own Codes no doubt the disposal of stolen goods is not necessarily a part of the same transaction as theft and except when there is evidence of a community of purpose or a pre - arrangement the receiver is not an abettor of theft. But Illustration (a) to S. 114 of the Indian Evidence Act and S. 239, Cl. (e) Crl. P.C. create such relationship between the theft and receipt of stolen property with knowledge that the thief and the receiver may be tried jointly for their separate offences or for both in the alternative. Where they are not tried together, each is a competent witness against the other. Where either of them figures as a witness against the other, there can be no doubt that be must be treated as an accomplice witness.

Having come to the conclusion that Fazlullah is an accomplice and that his evidence requires corroboration in material particulars the next question which arises for consideration is the extent to which his evidence should be corroborated. The accepted rule in India is as stated in R v. Baskerville 1916 K.B. 658 reaffirmed in Mahadeo v. King AIR 1986 P.C. 242 = 44 L.W. 253, and accepted as correct law by the Supreme

Court. In R. v. Baskerville (1), it was laid down as follows :

Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it mast be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it. The nature of the corroboration will necessarily vary according to the particular circumstances of the offence charged. It would be in a high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused. The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime. A good instance of this indirect evidence is to be found in Rag v. Birkstt (1839) 8 C. & P. 732. Were the law otherwise, many crimes which are usually committed between accomplices in secret could never be brought to justice.

In this case corroboration in material particulars which confirms the evidence of the accomplice is that the stolen articles were sold by Fazlullah to other persons, that the accused persons were always present and in one or two instances have even received moneys in the presence of those persons from Fazlullah. This evidence of concert is certainly a corroboration in material particular, because as pointed out in R. v. Farler (1927-

30) 178 E.R. 418, by Lord Abinger, C.B. "if they were seen together under circumstances that were extraordinary and where the prisoner was not likely to be unless there was concert, it might be something." This concert has been proved in this case and would confirm the evidence of the accomplice by corroboration within the limits laid down in R. v. Baskerville 1916 K.B. 658. These revision cases devoid of merits are dismissed.