Muthukumarsawmi Pillai and Others vs Emperor

Ralph Benson, J.—In this case fourteen persons were tried by a Special Bench of this Court, constituted u/s 6(b) of the Indian Criminal Law Amendment Act, 1�08, for an offence punishable u/s 121A, Indian Penal Code (conspiring to commit certain offences against the State), and also with abetting the murder of Mr. Ashe. The Special Bench acquitted all the accused on the latter charge. The majority of the Court (Sir Arnold White, C.J., and Ayling, J.,) convicted the first seven and the 14th accused of the offence charged u/s 121A and acquitted the remainder. The third Judge of the Special Bench (Sankaran Nair, J.,) convicted the 1st, 2nd, 6th and 14th accused and acquitted the remainder. The late Advocate-General has given a certificate under Clause 26 of the Amended Letters Patent of 1865 to the effect that the decision of the Court on certain specified points of law requires further consideration. The present Advocate-General, who, as Public Prosecutor, appeared for the Crown at the trial, raises a preliminary objection that the Letters Patent do not authorize the grant of a certificate in a case tried by a Special Bench appointed under the Indian Criminal Law Amendment Act of 1908. His contention is that cases under the Act must be dealt with in accordance with the special procedure prescribed by the Act and that there is no provision in it for a review of judgment either on a certificate from the Advocate-General or otherwise. The Act, however, does not profess to lay down complete rules of procedure: the ordinary procedure has to be followed except in so far as it is modified by the Act: there is nothing in the Act to modify the ordinary procedure in this particular respect: Clause 26 of the Letters Patent gives power to the High Court on the Advocate-General''s certificate to review in every case mentioned in Clause 25 of the Letters Patent, i.e., in "any criminal trial before the Courts of original criminal jurisdiction which may be constituted by one or more of the Judges of the said High Court.", The present trial satisfies these conditions and is, therefore, open to review on a certificate granted by the Advocate-General.

The points of law which are certified as requiring further consideration are stated as follows in the certificate of the Advocate-General:

That in my judgment the opinion of the majority of the Court that the evidence of an accomplice need not be corroborated in material particulars, before it can be acted upon, and that it would be open to the Court to convict on the uncorroborated testimony of an accomplice if the Court was satisfied that the evidence was true, requires to be further considered; and it requires to be farther considered whether Section 133 of the Indian Evidence Act, read with Section 114, illustration (b), does not merely intend to lay down that a conviction upon the uncorroborated testimony of an accomplice is not illegal where the presumption of untrustworthiness attaching to the evidence of an accomplice is rebutted by special circumstances.

That in my judgment the opinion of the majority of the Court that the previous statements of an accomplice can legally amount to corroboration of the evidence given by him at the trial should be further considered.

That in my judgment the opinion of the majority of the Court that the statements made by P.W. No. 6 and P.W. No. 12 to P.W. No. 31 were made to an authority legally competent to investigate the facts within the meaning of Section 157 of the Indian Evidence Act, should be further considered.

That in my judgment the opinion of the majority of the Court that the statements of P.W. No. 6 and P.W. No. 12 to P.W. No. 3 I were not rendered inadmissible by reason of the provisions of Section 25 of the Indian Evidence Act, should be further considered.

That in my judgment the opinion of the learned Judges, that, while the statements made by a person to a Police Officer in the course of an investigation and taken down in writing may not be proved by the production of the writing, they may be proved by oral evidence requires to be further considered.

The facts of the case, so far as is necessary to understand the questions raised, may be briefly stated as follows:

The accused are alleged by the prosecution t) have conspired at various places between January 1910 and 17th June 1911 with certain persons not now before the Court, viz., with one Vanchi Aiyar, who is proved to have shot himself on the 17th June 1911 immediately after murdering Mr. Ashe, (who was then District Magistrate of Tinnevelly), one Dharmaraja Aiyar, who is now dead, (the case for the Grown being that he committed suicide) and one Madasami who has absconded, and also with three others, Arumugam, Somasundaram and Ramaswami Aiyar, who were given a pardon under the visual conditions and taken as approvers and called as witnesses (Nos. 6, 12 and 16) for the prosecution in this case. The approvers have given evidence as to a certain treasonable society founded by the 1st accused, Nilakantam, of which they were all members. They have also given evidence of meetings of thesociety at Tenkasi and Tuticorin and elsewhere attended by the accused, and there is no question but that, if the accused were present at these meetings and took the "blood oath" as alleged by the approvers, they are guilty. The chief evidence against the accused is the evidence of the several approvers. They are admittedly accomplices. The questions of law that have been raised relate to the legal validity of an accomplice''s evidence, if uncorroborated, and to the admissibility and legal effect of certain statements made by two of the accomplices (Arumugam and Somasundaram) in this case prior to the trial. The following are the circumstances under which the statements were made.--Mr. Ashe was murdered for political reasons by. Vanchi Aiyar on the 17th June, and Vanchi immediately afterwards shot himself. When his house at Shenoottah was searched next day, (18th), certain letters were found which showed that Arumugam (P.W. No. 6) was in 3ommunication with him; soon the evening of the next day (19th) immediately after the arrival of Mr. Thomas, the Deputy Inspector-General of the Criminal Investigation Department, a party of Police was despatched to Tuticorin to search his house. The party was in charge of Mr. Johnson, Assistant Superintendent of Polios, a Gazetted Officer of three years'' standing, and of Veeraghava Aiyar (P.W. No. 3i), an Inspector of the C. I D, who had just arrived with Mr. Thomas from Madura. Having arrived at Tuticorin, the party surrounded the house of Arumu?am about two hours after midnight and sealed it with a view to search it after daybreak. Arumugam was awakened and told that his house would be searched in connection with the murder and he was asked if he knew anything about it. He then offered to tell all he knew, and his statement thereupon taken and recordedin thelnspector''s note-book. On information given by Arumugam, the house of Somasundaram (P.W. No. 12) was searched the next day, and he in like manner made a statement to Veeraraghava Aiyar, which was recorded by him. Three days later, both the33 men made statements substantially to the same effect to Mr. Cox, the Magistrate, which he recorded u/s 154, Criminal Procedure Code. At the trial before the Special Bench, which began in the following September and went on for some months, Arumugam and Somasundaram were examined as witnesses for the prosecution and gave evidence, as already stated, involving not only their own guilt, but also the guilt of several of the accused whotook the "blood oath" at the treasonable meetings held at Teakasi and Tuticorin. In order to corroborate this evidence of the accomplices, given at the trial, the prosecution relied on the statements recorded by the Magistrate, Mr. Cox. They also called the Inspector, Veeraraghava Aiyar, to give evidence of the statements made to him by the accomplices. The defence objected to this evidence as inadmissible, but the majority of the Special Bench held that the Inspector might give oral evidence of the statements made to him, but could not use the writing in his note-book as evidence. The learned Judges of the Special Bench state in their judgments that the extent to which, and the conditions under which, the '' evidence of accomplices should be acted upon was the subject of much argument and contention before them, and their judgments show that they considered the various questions raised with the greatest care and came to their conclusions after a full examination not only of the codified law of India, but also of the case-law of the Courts in England and India relating to the questions raised.

I will now turn to the five points of law which the Advocate-General certifies should be further considered.

The fir ft is thus stated,-

"The opinion of the majority of the Court that the evidence of an accomplice need not be corroborated in material particulars before it can be acted upon, and that it would be open to the Court to convict on the uncorroborated testimony of an accomplice if the Court was satisfied that the evidence was true, requires to be further considered; and it requires to be further considered whether Section 133 of the Indian Evidence Act, read with Section 114, illustration (b), does not merely intend to lay down that a conviction upon the uncorroborated testimony of an accomplice is not illegal where the presumption of untrustworthiness attaching to the evidence of an accomplice is rebutted by special circumstances." The substantive provision of the Indian Code law is contained in Section 133 of the Indian Evidence Act, 1872, which, in explicit terms, declares 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." But with this section, it is also necessary to bear in mind Section 114, which provides that, "The Court may presume the existence of any fact which it thinks likely to have happened, regard being bad to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." To assist the Courts in applying the general words of this section, various illustrations are appended to it. One of these relates to accomplices, and it is stated as follow: "The Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. But the Court shall also have regard to such facts as the following, in considering whether such maxim does or does not apply to the particular case before them: A., a person of the highest character, is tried for causing a man''s death by an act of negligence in arranging certain machinery. By a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A. and himself." And again, "a crime is committed by several persons. A., B. and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D. and the accounts corroborate each other in such a manner as to render previous concert highly improbable." In my opinion, there is nothing in the illustration (b) to Section 114 which overrides, or renders nugatory, the plain and explicit declaration contained in Section 133, or which requires us to hold that the evidence of an accomplice must always, and in all circumstances, he regarded as unworthy of credit unless it is corroborated in material particulars, or which requires us to hold that it is not open to the Court to act on such evidence, even when the Court believes it to be perfectly true. The very terms of the illustration itself appear to be intended to guard against such an interpretation. The words are "the Court may presume" (not "the Court shall presume") "that an accomplice is unworthy of credit, unless he is corroborated in material particulars." But it then adds a caution to show that the presumed unworthiness is not a rule of universal application. It styles the presumption "a maxim," not a rule of law, and says, "but the Court shall also have regard to certain facts'' in considering whether such maxim does or does not apply to the particular case before it." It then refers to the case of a person of the highest character giving evidence of an offence committed by the negligence of himself and another person of equally high character. The witness is an accomplice, and he is not corroborated in any particular, still less in material particulars, yet the Court should have regard to various circumstances, viz., the high character of the witness, and of the accused, and the nature of the offence alleged, and would be at liberty to refuse to draw any presumption against the credibility of the witness, even though his evidence stood alone and uncorroborated.

Judges do, no doubt, ordinarily regard the evidence of accomplices with great suspicion, and rightly so, for reasons which are so manifest and so often stated that it is unnecessary to re-state them here, and Judges do ordinarily require corroboration in material particulars before they will act on the evidence of an accomplice, It is the duty of the Judge to explain to the Jury the taint and infirmity which ordinarily attach to the evidence of an accomplice, and to remind them that they may presume that his evidence is unworthy of credit unless corroborated in material particulars. But it is also his duty to refer to any circumstances or facts (such as those referred to in the illustrations to Section 114) which show that the presumption should not be drawn in the particular case or which rebut the presumption, if drawn, and he should instruct them that if, having scrutinised the evidence of the accomplice with care and caution, and having considered it in the light of the circumstances in which it was given, and all other circumstances, tending to show its truth or falsehood, they believe it to be true, they should act upon if, even though there may be no corroboration of it in the strict sense of the word, but that if they are not satisfied of its truth, they should refuse to act upon if.

This is, in effect, how the majority of the Special Bench have laid down the law. In. my opinion they have correctly stated the law as laid down in the Indian Evidence Act, and in the Indian and English cases quoted by them: Beg. v. Ramaswami Padayachi 1 M. K 394; Ramasami Gounden v. Emperor 27 M.K 271 : 14 M.L.J. 226 per Bhashyam Iyengar, J., Queen-Empress v. Goberdhan 9 A.N 528 per Edge, C.J. Reg. v. Boyes 9 Cox. C.C. 32 : 30 L.J.Q.B. 301, per Cockbarn, C.J. Reg. Gallagher 15 Cox. C.C. 291 per Coleridge, C.J., and Rex v. Tate (1908) 2 K.B. 630 : 77 L.J.K.B. 1043 : 99 L.T. 620 per Lord Alverstone, C.J.

The suggestion made in the latter part of the Advocate-General''s first point, if I understand it aright, is that the presumption of untrustworthiness must always, and in all circumstances, first be drawn, and the evidence cannot in any case be acted upon unless "special circumstances" are found which rebut the presumption. I think this way of stating the law is less accurate than that adopted by the majority of the Special Bench and might possibly mislead Juries by leading them to think that circumstances affecting their judgment should be technically divided into two classes, special and non-special or ordinary, and that unless a circumstance could be technically labelled "special" it should not be at all considered by them. Section 114 speaks simply of facts" not "special circumstances," and the caution attached to illustration (b) merely says the Court shall also have regard to such facts as the following "not special" facts or special", circumstances. Any fact which is admissible as evidence, and which is duly proved, may, in my opinion, be considered for what it is worth, without attempting to classify it as a "special" or non-special fact. In this connection however, it may be stated that the majority of the Special Bench do, in fact, refer to a number of what may well be called special circumstances, which powerfully influences their opinion as to the credibility of the accomplice witnesses. It is, therefore, difficult to understand what practical purpose was to be served in the present case by the further consideration of the first question raised by the certificate of the Advocate General.

In dealing with the first point in the Advocate-General''s certificate, Mr. Givindiraghava Iyar, on behalf of the accused, desired to argue that the view of the majority of the Special Bench as to what constitutes "material particulars" in illustration (b) to Section 114is incorrect. We, however, were unanimous in holding that no such question was raise in the certificate of the Advocate-General and that it was not open to the accused''s Pleader to argue any question of law not raised in the certificate. Mr. Govindaraghava Aiyar contended that as soon as a certificate was granted in regard to any point of law, the whole case was opened up for consideration under Clause 26 of the Letters Patent. That Clause is as follows: "On its being certified by the said Advocate-General that, in his judgment, there is an error in the decision of a point or points of law decided by the Court of original criminal jurisdiction, or that a point or points of law, which has or have been decided by the said Court, should be further considered, the said High Court shall have full power and authority to review the case or such part of it as may be necessary, and finally determine such point or points of law, and thereupon to alter the sentence passed by the Court of original jurisdiction, and to pass such judgment and sentence as to the said High Court shall seem right." I do not think that these words can be held to open up the whole case as if on appeal, for Clause 25 enacts that there shall be no appeal. The grant of the certificate, no doubt, gives the Court "power and authority to review the case or so much of it as may be necessary," that is, in my opinion, "necessary" in order to determine the point or points of law raised. This is clear from the words '' and finally determine such point or points of law" which follow the word "necessary"; after the point or points of law have been finally determined, then, or to use the word in Clause 26 "thereupon", the Court may alter the sentence and pass such judgment and sentence as may seem right; and the Court may, of course, then go into the case so far as is necessary in order to enable it to do this correctly. When the case has reached that stage, then the Court has to be guided by Section 167 of the Indian Evidence Act which enacts that "the improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision." This view is in accordance with the judgments of Beaman and Davar, JJ., in the case reported in Emperor v. Narayana Raghunath Patki 9 Bom. L.R. 789 where the question is fully discussed.

Turning now to the second point in the Advocate General''s certificate, it is stated as follows: "In my judgment the opinion of the majority of the Court that the previous statements of an accomplice can legally amount to corroboration of the evidence given by him at the trial, should be further considered." There were two sets of previous statements of Arumugam and Somasundaram admitted at the trial, via., (1) their statements to Inspector Veeraraghava Aiyar and (2) their statements, four and three days respectively later, to the same effect to the Magistrate, Mr. Cox, recorded by him, u/s 164, Criminal Procedure Code. I think that the opinion of the majority of the Full Bench en the question of their admissibilty is right. The law on the subject is contained in Section 157 of the Indian Evidence Act, 1872, which re-produces in a simplified form the provision in Section 31 of Act II of 1855 and enacts that, "In order, to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved." This section, which differs widely from the English law, expressly states that a former statement made by a witness may, if made under the conditions stated in the section, be proved in order to corroborate the evidence of the witness at, the trial. No exception is made in the section, or elsewhere in the Act, so as to exclude such former statements in the case of a witness who is an accomplice. It was contended in the argument that the general rule as to the admissibility of former statements laid down in Section 157 is limited, in the case of accomplices, by a special rule to be inferred from illustration (b) to Section 114. It may, however, be, doubted whether such a method of reasoning is not contrary to accepted canons of interpretation. It seems unreasonable to hold that the express rule of law stated in Section 157 can be limited by a maxim which is not of universal application. The validity of the suggested reasoning depends on an assumption that the Court must always, and in all circumstances, presume that an. accomplice is unworthy of credit, whereas we have seen in dealing with the first point certified by the Advocate-General that there may be circumstances in which the Court would be justified in not drawing the presumption. The illustration itself gives an instance of such a case. In such a case it is impossible to see any reason why the evidence of the accomplice witness should not be corrborated by a previous statement to the same extent and subject to the same conditions as in the case of a witness who was not an accomplice. I do not think that there is anything in the Indian Evidence Act to exclude the evidence of accomplices from the plain and express rule in Section 157, nor can it be suggested that "corroborate" is used in Section 157 in a different sense from that in which it is used in illustration (b) to Section 114. The former statement of an accomplice is, therefore, legally admissible to corroborate his testimony at the trial and the weight to be attached to it, or, in other words, how far it does really corrobotate the evidence given at the trial must vary with the facts of each case. No hard and fast rule, capable of mechanical application, can be laid down. In the great majority of cases, it would, no doubt, be found to be merely the repetition of tainted evidence affording no ground for believing it to be true, and, therefore, adding nothing whatever to its value. On the other hand, if there was evidence, or even a suggestion, put forward by the defence that the evidence given by the witness at the trial was the result of recant influences brought to bear upon him, it would be most important to be able to prove that the witness had made statements to the same effect as his evidence at the trial long before the influ"nc3S relied on by the defence had been brought to bear upon him. For example, take the accomplice, Arumugam, in the present case. He gave evidence at the trial involving several other persons besides himself, and stating various particulars about the treasonable meetings which, they attended. If the prosecution proposed to corroborate that evidence by proof of a former statement made months after his arrest, and when the Police had collected their other evidence, and had, in fact, completed the scheme of the case to be proved against the accused, it is obvious that the former statement would add no strength to, would be no real corroboration at all of the evidence of the witness at the trial. But, is not the case very different when, as was found by the majority of the Special Bench, it appears that Arumugam first told the same story at a time, and under such circumstances, as to entirely negative the idea that it was either falsely concocted by himself or suggested to him by the Police; when it appears that the story told was not what the Police '' wanted at that time nor was such as was supported by the evidence then in their hands, nor was such as would have been concocted by Arumugam either of his own motion, or in consultation with Madasami or Somasundaram, if he was anxious to protect himself or them from prosecution for complicity with Vanchi Aiyar in the murder of Mr. Ashe, nor was such as Arumugam''s previous relations with the persons then named would render probable? Is it not unreasonable to say that those and similar matters referred to by the majority of the Special Bench ought not to have been considered in judging whether Arumugam was a truthful witness or not? So, too, if there was reason to think that owing to the lapse of time the memory of a witness at the time of the trial could not be wholly relied on, the fact that he had made a statement to the same effect when the facts were fresh in his memory would be highly relevant in corroboration of the evidence at the trial. The rule, then, would seem to be that, the former statements are legally admissible, and may be considered for what they are worth, but that the weight to be attached to them depends entirely on the facts of each case. The point raised in the Advocate-General''s certificate is whether such statements "can legally amount to corroboration of the evidence given at the trial." It is not clear whether this means "are legally admissible as corroboration" or whether it means "can legally amount to corroboration in material particulars within the meaning of illustration (b) to Section 114." If it means the former, I have stated the answer above. If it means the latter, I do not think that the question is one that arises in this case.

In the argument before us it was assumed by the Pleaders for the defence that Arumugam and Somasundarm were found by the majority of the Court to be unworthy of credit by reason of their being accomplices, and that it was, therefore, necessary to find that they were corroborated in material particulars within the meaning of Section 114, illustration (b), before their evidence could be relied on, and that the former statements made by them were used as such corroboration. I do not think that this is a correct view of the judgment of the majority of the Special Bench. I do not anywhere find that they arrived at the conclusion that the approvers were untruthful witnesses. On the contrary, they distinctly arrived at the conclusion that they were truthful witnesses. In arriving at this conclusion, they state that they were influenced by the demeanour of the witnesses, and by the way in which they stood the test of cross-examination. They say that each of these witnesses "was subjected to the most rigorous and searching cross-examination at the hands of one after another of the ten learned Counsel and Vakils appearing for the defence for periods extending over two or three days" and that though the cross-examiners had the advantage of being able to compare their evidence at the trial with three prior statements, (viz., those made before Veeraraghava Aiyar, and before Mr. Cox, and before the Committing Magistrate), "the prolonged cross-examination did not succeed in breaking down the evidence of any of the three approvers," and they conclude by saying, "we do not consider that there is anything in the evidence of the witnesses inconsistent with its substantial truth." They had previously referred to the circumstances under which the approvers made their first statements, especially the intrinsic evidence of truthfulness to be derived from the very nature of the facts stated. They pointed out that the circumstances under which the statements were first made strongly negatived the idea that they were the result either of concoction by the witnesses themselves or of suggestion by the Police; that the story told was not what the Police wanted, and that the persons implicated were not those that would probably have been implicated if the Police had suggested the statements or wished to obtain evidence to fit in with the letters then in their hands. They also pointed out that the story told was not such as would have been concocted by Arumugam either by himself or in consultation with Madasami or Somasundaram in order to save themselves from prosecution for complicity with Yauchi Aiyar in the murder of Mr. Ashe. They also considered that the conduct of Arumugam in not destroying the highly seditious literature found in his house, and his previous relations with the persons accused as conspirators negatived the idea of the story having been concocted by the witnesses. In view of all the circumstances in which the statements were made and the inferences to be drawn from the nature of the statements and the conduct of the witnesses themselves, the majority of the Special Bench found it "impossible" to believe that the statements were "tutored" by the Police or concocted" by the witnesses themselves. If the evidence was not "tutored" by the Police or "concocted" by the witnesses themselves, there would be no reason for regarding it as other than truthful in the ordinary sense, that is, truthful so far as the witnesses themselves knew and believed, though, of course, the witnesses might make an unintentional mistake like any other honest witnesses. This view is not inconsistent with the fact that the majority of the Special Bench acquitted the 9th and 13|h accused, though they were apparently implicated by the approvers, Ramasami and Arumugam respectively. It will be seen that they were acquitted, not because the approvers were found to be intentionally giving false evidence against them, but because there was a doubt in each case as to whether the accused was the person really referred to by the approver as present at the meetings. It is clear, then, that the majority of the Special Bench, for reasons stated, came to the conclusion that the accomplice witnesses were truthful witnesses and were not unworthy of credit so as to require corroboration in material particulars, if that phrase is to be interpreted (as some of the cases do interpret it) as requiring that the corroboration should be by the evidence of independent witnesses. We have already seen, in dealing with the first point raised by the Advocate-General, that corroboration is not legally necessary if there are circumstances which lead the Court to the conclusion that the witness though an accomplice is a truthful witness.

The question, then, "whether the previous statement of an accomplice can legally amount to corroboration in material particulars of the evidence given at the trial within the meaning of illustration (b) to Section 114" is one that is not expressly raised by the certificate of the Advocate-General, nor do I think that it is one which it is necessary to consider in order to decide the questions raised by him, or the correctness of the judgment of the majority of the Special Bench. I have already shown how the former statements have been used in their judgment to corroborate the evidence of the witnesses given at the trial, and I have expressed the opinion that they were admissible u/s 157 and were properly used.

If, however, it is necessary in this case to determine whether the phrase "material particulars" in illustration (b) to Section 114 is to be regarded as, in some sense, a technical expression implying corroboration by independent or untainted evidence, I am unable to go so far and to say that as a matter of law the previous statement of an accomplice can never amount to corroboration in material particulars. The Pleader for the defence relies on the cases reported in Reg. v. Malapa bin Kapana 11 B.H.C.R. 196 and Queen-Empress v. Bepin Biswas 10 C. K 970. In the former, it was said, at page 197, that the previous statement of an accomplice "can scarcely be said to answer the purpose for which Juries are advised by Judges to require the evidence of an accomplice to be-confirmed." In the latter, the Judges refer with approval to the Bombay case, but add at page 974: "It is not necessary for us to consider whether the rule should be extended as far as to exclude a statement made before arrest, bat we have no doubt at all that the exact correspondence in details of several statements made by an approver in the course of a trial is not corroborative evidence, such as we ordinarily require to make it safe to convict any particular prisoner." It is clear that the Judges in that case did not lay down any such absolute rule as is now suggested by the Pleaders for the defence. If there are some circumstances in which a prior statement may amount to sufficient corroboration, we cannot say as a matter of law that a prior statement can never be corroboration in material particulars, though, no doubt, in the great majority of cases, it will be found that the prior statements do not add anything to the credibility of the evidence given at the trial. As I have already said, how far a prior statement does corroborate evidence given at the trial is a matter to be determined by the Jury for where there is no Jury, by the Judge), on a consideration of all the facts of the case including the time when, and the circumstances in which, the former statement was made, and the facts related in the statement considered in their relation to the knowledge of the speaker at that time and all the surrounding circumstances.

It may be added that very little light as to the application of Section 157 can be gained from a consideration of English cases since the English law has no rule similar to that in Section 157 and is generally unfavourable to the admission of former statements of a witness to corroborate his evidence at the trial, though permitting it in certain cases.

The 3rd, 4th and 5th points certified by the Advocate-General relate to three objections that were taken to the admissibility of the statements made by the accomplices Arumugam and Somasundaram, to Veeraraghava Aiyar. It may be stated at once that the admissibility or inadmissibility of those statements cannot make any difference in the decision of the present case since the majority of the Special Bench who admitted the statements expressly say that they find it impossible to believe that the statements were either tutored or concocted, even if the witnesses'' statements to Veeraraghava Aiyar are discarded and if regard is paid only to their statements recorded, four and three days respectively later, to the same effect by Mr. Cox the Magistrate, u/s 164, Criminal Procedure Code, the admissibility of which is not, and cannot be, disputed. As, however, the questions are raised in the Advocate-General''s certificate and are of great general importance, I will state my opinion in regard to each of them.

The objection referred to in the fifth point depends on the construction of Section 162 of the Criminal Procedure Code and may be very shortly dealt with. All the Judges of the Special Bench are agreed as to the proper construction of that section. The same construction was placed upon it in the recent, case of Fanindra Nath Baneriee v Emperor 5 M.I.T. 97. The words of the Section are clear. I agree with the conclusion arrived at by all the Judges of the Special Bench, and for the reasons stated in their judgments.

The third point may also be shortly disposed of. The question is whether Veeraraghava Aiyar was an authority "legally competent", within the meaning of Section 157 of the Indian Evidence Act, to investigate the facts in relation to which the former statements of Arumugam and Somasundaram were made, that is, the facts relating to the murder of Mr. Ashe. It was contended before us that the words "competent to investigate" must refer exclusively to the persons competent to hold the Police investigation into an alleged offence under Chapter XIV of the Criminal Procedure Code. But I do not think that this view is correct. The words in the Evidence Act are perfectly general, "competent to investigate the fact". Can it be supposed, for instance, that a statement made before a Civil Court relating to some fact, the existence of which the Court was legally competent to try, and otherwise relevant u/s 157 of the Indian Evidence Act in a subsequent criminal trial, could be shut out on the ground that the word "investigate" would not include a trial by a Civil Court? I take it that the answer must be in the negative. It is unfortunate that there was no adequate inquiry before the Special Bench as to how far Inspector Veeraraghava Aiyar was an authority legally competent to investigate the facts relating to the murder of Mr. Ashe. The Deputy In. spector-General of his Department, Mr. Thomas, was a witness, but he was never asked any question at all as to the Inspector''s competency to investigate. The result is that we are obliged to deal with the case on very imperfect information as to the facts. On the whole, however, I am inclined to hold that the Inspector was legally competent to investigate the facts relating to Mr. Ashe''s murder. He was an Inspector of the Provincial Criminal Investigation Department, a branch of the Police, whose work is not confined to any particular district, but which was created "to assist in the investigation of crimes which are of such a special character that the local officers are unable to deal with them adequately without help." (G.O. No. 913, Judicial, dated 2nd July 1908). He was directed by the head of his own department (the Deputy Inspector-General) and by the local District Superintendent of Police to search certain houses, including the house of Arumugam at Tuticorin, in connection with Mr. Ashs''s murder. It is not contended that his deputation for this duty was other than legal or that he was not legally competent to conduct or take part in the searches. I take it that conducting the searches was an integral part of the investigation, and legal competency to conduct the searches carried with it legal competency to do all things properly incidental to, and connected with, the searches, and included the listening to any statements relating to the murderer those who took part in it, made by the persons whose houses were being searched. I do not think that the words "investigate the fact" in Section 157 of the Indian Evidence Act should be construed in a narrow sense so as to restrict competency to the Police officer who, under Chapter XIV of the Criminal Procedure Code, is charged with the investigation of an offence. I am, therefore, not prepared, on the evidence before me, to dissent from the view of the majority of the Special Bench that the Inspector was an officer legally competent to investigate the facts relating to Mr. Ashe''s murder within the meaning of Section 157 of the Indian Evidence Act. A suggestion was thrown out that "the fact" in this case mu3t be the conspiracy, not the facts generally relating to the murder of Mr. Ashe, and it was argued that, in that view, the Inspector could not investigate it without the order of a Magistrate, as it (the conspiracy) is a non-cognizable offence. This argument, I think, proceeds on an incorrect view. The Inspector was engaged in and upon the investigation of facts relating to Mr. Ashe''s murder, and the statement was made to him by the person whose house was being searched and it wits made as a matter "relating" to the murder. It cannot be regarded as relating only to the conspiracy and not at all to the murder.

It remains to notice the fourth point in the Advocate-Genegral''s certificate which is as follows: "That in my judgment the opinion of the majority of the Court, that the statements of P.W. No. 6 and P.W. No. 12 to P.W. No. 31 were not rendered inadmissible by reason of the provisions of Section 25 of the Indian Evidence Act, should be further considered." Section 25 of the Indian Evidence Act states that "No confession made to a Police officer shall be proved as against a person accused of any offence." The words of Section 25 in their plain and ordinary meaning seem to me to render the statements made by the accomplices to the Police Inspector, Veeraraghava Aiyar, inadmissible. The statements are confessions: they were made to a Police officer and it is now sought to use them as against some of the accused in this case. The majority of the Special Bench point out that in Section 26, the confession, (when made not to a Police officer, but while in his custody), is expressly made inadmissible only as against the person who made it, but may be proved as against other persons and observes that as the "mischief" of the two sections is the same, Section 25 also should be understood as only excluding a confession made to a Police officer from being used as against the person making it. It is difficult to accept this view without putting too great a strain on the plain language of Section 25. It certainly is difficult to see any satisfactory reason why the scope of the two sections should be different, but that is hardly a sufficient reason for not construing each Section so as to give effect to its plain language. It seems to be especially undesirable to extend the language of Section 25 beyond its plain meaning when the effect of doing so might tend to encourage those corrupt practices of the Police in regard to working for confessions which it is the policy of the law to prevent. There is much force in the. observation of Batchelor, J., in the case reported in Emperor v. Hari Singh Ganpt Singh 12 Bom. L.R. 899 that a confession which is inadmissible against the person making it, ought a fortiori to be inadmissible against another person implicated by it. The case in Queen-Empress v. Tribhovan Manekchand 9 B.K 131 cited by Mr. Napier for the prosecution, is hardly an authority for his contention, as the present question did pot arise in that case. The point that West, J. was enforcing was that Section 25 did not refer to the use of a confession in other than a criminal proceeding, that an inquiry u/s 523, Criminal Procedure Code, was not a criminal proceeding, and that a confession could, therefore, be used as an admission in an inquiry under that section.

Since writing the above, I have had the advantage of perusing the judgments which my learned brothers, Wallis and Miller, JJ., are about to pronounce on this question. I am much impressed by the force of the argument that may be drawn against my view from reasoning founded on the history of Sections 24 to 26 which were embodied first in the Code of Criminal Procedure of 1861 and afterwards transferred without material alteration to the Indian Evidence Act of 1872, but I am still inclined, on the whole, to the opinion that effect must be given to the language of Section 25, and that it renders the statements of Arumugam and Somasundaram to Inspector Veeraraghava Aiyar inadmissible.

But, as I have already pointed out, this can make no difference in the decision of this case, since the majority of the Special Bench expressly state that it is impossible to believe that the evidence of the 6th and 12th prosecution witnesses was either "tutored" by the Police or concocted by the witnesses themselves, even if the witnesses'' statements to Veeraraghava Aiyar are discarded and if regard is paid only to their statements made a few days later to the Magistrate, the admissibility of which is not, and cannot be, disputed. In other words, the learned Judges were prepared to act on the evidence of these witnesses as truthful, apart from any corroboration derived from their statements to the Inspector. In these circumstances, it is not open to us as a Court of review to go into the facts and consider whether the learned Judges ought or ought not to have arrived at that conclusion.

I would, therefore, dismiss the petitions that have been presented asking us to set aside the convictions of the accused.

Wallis, J.

This was a case tried before three Judges of this Court, under Act XIV of 1908, and comes before us on a certificate of the then Advocate-General pursuant to Clause 26 of the Letters Patent that certain points of law which in his opinion were decided by the Judges, or, a majority of them, require to be further considered. Objection was taken at the outset by the officiating Advocate-General that Clause 26 does not apply to criminal trials before the High Court under Act XIV of 1908. Reference was made to Clause 24 conferring extraordinary original criminal jurisdiction on this Court and it was contended that the accused before the Court were not persons brought before it on charges preferred by the Advocate-General or by any Magistrate or other officer specially empowered by the Government in that behalf" so as to come within that clause, but were committed to this Court for trial by a Magistrate acting under the powers conferred upon him by Section 6 of Act XIV of 1908. Assuming that to be so, and that the jurisdiction of the Court does not arise under Clause 24 but under an Act of the Indian Legislature to which the provisions of the Letters Patent are subject, I am still of opinion that the objection fails, because Clauses 25 and 26 of the Letters Patent, as to points of law being reserved by the Court or certified by the Advocate General, are perfectly general in their terms and, in my opinion, apply equally to all criminal trials before this Court, whether in the exercise of its ordinary or extraordinary original criminal jurisdiction under Clauses 22 and 24 of the Letters Patent or of any future statutory original criminal jurisdiction that may be conferred upon it by a competent Legislature. Further, Act XIV of 1908, nowhere says that Clauses 25 and 26 of the Letters Patent are not to apply to trials under the Act and the presumption is strongly against any intention on the part of the Indian Legislature to modify by implication provisions of the Letters Patent issued under an Act of Parliament. I think, therefore, we were bound to hear and dispose of the application for review, however much our so doing may tend to defeat the object of this special legislation, which was to ensure the speedy trial of these cases, or may further interfere with the business of the Court by withdrawing five Judges from their ordinary duties.

The Advocate-General''s certificate has been granted under that part of Clause 26 which empowers him to certify that "a point or points of law which has or have been decided by the said Court shall be further considered." The certificate purports to have been granted upon certain representations made to the learned Advocate-General and does not show whether the written judgments of the Court were before him. They are before us and we have to satisfy ourselves, in the first place, as to what was actually decided by the majority or the fall Court as the case may be with reference to each of the points of law and as to whether the decision was erroneous.

The points before us arise on the construction of the Indian Evidence Act, I of 1872, and, as the learned officiating Advocate-General has argued, it is undoubtedly our duty in construing that Act, which is in the nature of a Code, to follow the language of the sections of the Act, so far as they are clear, and, only in cases of ambiguity or obscurity, to fall back upon the English law upon which it was based.

The certificate as to the first point is as follows:

That in my judgment the opinion of the majority of the Court that the evidence of an accomplice need not be corroborated in material particulars before it can be acted upon, and that it would be open to the Court to convict on the uncorroborated testimony of an accomplice if the Court was satisfied that the evidence was true, requires to be further considered and it requires to be farther considered and it requires to be further considered, whether Section 133 of the Indian Evidence Act, read with Section 114, illustration (b), dose not merely intend to lay down that a conviction upon the uncorroborated testimony of an accomplice is not illegal where the presumption of untrustworthiness attaching to the evidence of an accomplice is rebutted by special circumstances.

As to this, I am of opinion that the proposition that it would be open to the Co art to convict en the uncorroborated testimony of an accomplice in the sense and in the terms in which it is stated in the judgment of the majority of the Judges is correct and does not amount to an error in law. Section 114 of the Indian Evidence Act authorises the Court to make certain presumptions of fact. Nine well known maxims are there given as illustrations of the section, the second of which is: "The Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars." They are all presumptions which may naturally arise, bat the Legislature by the use of the word "may" instead of "shall", both in the body of the section and in the illustrations, shows that the Court is not compelled to raise them but is to consider whether, in all the circumstances of the particular case, they should be raised. To make this clearer still, there is the additional provision: "But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it", and then, as to each of these maxims, instances are given of facts in which the maxim is inapplicable, and, in the case of the maxim now in question, there are two such instances. Now, if Section 114 stood alone, I do not see how it could be said that it was not open to the Judges of fact in the particular case, whether Judge or Jury, to apply or not to apply any of these maxims, having regard to all the facts of the case before them; and this is expressly stated by the draftsman, the late Sir Fitzjames Stephen, in his Indian Evidence Act, at page 174: "Finally it declares in Section 114 that the Court may in all cases whatever draw from the facts before it whatever inferences it thinks just." But as regards the particular maxim, Section 114 does not stand alone, because Section 133 provides that "a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice." If the law was so laid down in the Act, it was, I have no doubt, because it was the English Law as understood at the time and had been the law ever since the decision of Atwood''s case 1 C.C. 646 by the twelve Judges at the close of the 18th century and because the draftsman and the Legislature were not prepared with anything I o substitute for it. They were not, of course, unaware of the well-established practice of the Courts in England and India according to which, to use the language of Sir Fitzjames Stepken in Article 121 of his Digest of the Law of Evidence, published in 1876, "when the only proof against a person charged with a criminal offence is the evidence of an accomplice, uncorroborated in any material particular, it is the duty of the Judge to warn the Jury that it is unsafe to convict any person upon such evidence, though they have a legal right to do so," The adoption of the practice in England may be traced in Reg. v. Wells (1829) 1 M. & M. 326 (1884) 6 C. & P. 38; Rex v. Neal (1835) 7 G. & P. 168; Rex v. Moores (1836) 7 C & P. 270 and Reg. v. Farler (1837) 8 C. & P. 103 where it is said to deserve all the reverence of law. In these case?, the Judges told the Jury they ought not to convict on the evidence of accomplices, whether one or more, unless1 it was confirmed or corroborated not only as regards the offence generally but as regards the particular accused, but the decision was invariably left to the Jury; and in Rex. v. Mullins (1848) 7 St. Tr. 1110 Maule, J, pointed this out and observed that these directions to the Jury were not directions on points of law which the Jury were bound to adopt but observations respecting facts to assist the Jury in their endeavour to judge of the facts. Then in Reg. v. Stubbs Dears. 25 L.J.M.C. 16 the Court of Crown Cases Reserved held that the omission of the Court to warn the Jury that they ought not to convict one of the accused, as to whom the evidence of the accomplices was not corroborated, was only a departure from the usual practice, which was again stated by the Judges, and did not involve any question of law on which the Court of Crown Cases Reserved could review the case under 12 Vict. 78. The law was laid down precisely in the same way by the Court of Queen''s Bench in Reg. v. Boyes 9 Cox. C.C. 32 and by Lord Coleridge, L.C.J., sitting with Brett, M.R., and Grove, J., at the Central Criminal Court for the trial of Gallagher Reg. v. Gallagher 15 Cox. C.C. 291 and by Cave and Collins, JJ., in In re Meunier (1894) 2 Q.B. 415: 71 L.T. 403. Under the larger powers now given by the Criminal Appeal Act, 1907, the Court may now treat a failure to comply with the well established practice of directing Juries as to how the evidence of accomplices is to be regarded as having involved a miscarriage of justice within the meaning of Section 4, Rex v. Tate (1908) 2 K.B. 630 but this in no way affects the authority of the above decisions; nor are they affected by the fact stated by Sir Alfred Wills in his "Circumstantial Evidence," at page 365, that in one case Baron Bramwell and in another he himself withdrew the case from the Jury when there was no corroboration and directed an. acquittal. In India, at any rate, such a course would be a direction at variance with the provisions of the Indian Evidence Act.

As regards the practice in India, it has been observed that the danger of acting on the uncorroborated evidence of accomplices is even greater than in England; and before the passing of the Indian Evidence Act, it was held by a Full Bench of the Calcutta High Court in Elahee Buksh''s case 5 W.R. 80, on a review of the English authorities, that a failure to direct the Jury in accordance with the practice was a misdirection on which the conviction could be set aside. With regard to the effect of the Indian Evidence Act or, the practice, I cannot altogether agree with the observation which has been sometimes made that the practice was embodied in Section 114, illustration (b). The Legislature might, of course, have enacted that no one should be convicted on the evidence of accomplices "unless corroborated in some material particular by evidence implicating the accused," as in 48 and 49 Vict., C. 69; but this would have been a serious departure from the law as previously understood both in England and in India and, in my opinion, the legislature were not prepared to go so far but were content with enacting the maxim as ordinarily applicable, whilst leaving it to be applied or not according to the circumstances of the particular case. They must, however, I think, have contemplated that the law as declared rather than newly enacted in the section would continue to be applied under the safegurd of the practice; and it is not, I think, surprising that the practice should have continued unaffected by the passing of the Act, as appears from the Indian cases which are fully reviewed in the judgment of Mr. Justice Sankaran Nair. The practice, it must be borne in mind, was one of advising the Jury not to convict on the uncorroborated evidence of an accomplice, leaving it to them whether to follow the advice or not, a liberty they undoubtedly possess u/s 114 read with Section 133 of the Indian Evidence Act. The same degree of liberty must necessarily be reserved where the Court itself is the Judge of fact instead of the Jury. In such a case, the Judge cannot be required, consistently with the provisions of the Indian Evidence Act, to direct himeslf not to convict on the uncorroborated evidence of an accomplice. All that he can be required to do is to exercise extreme caution in departing from such a well established rule of guidance. In such a case, the learned Judges constituting the majority lay it down that it is the duty of the Court to bear in mind that it is tainted evidence, to scrutinize it with the utmost care, accept it with the greatest caution, consider it in the light of the circumstances in which it is given, and in the light of all the other circumstances in the case of which evidence is legally admissible. Then, if you believe it, act on it, even if there is no corroboration in the strict sense of the word. This direction seems to me in accordance with the law laid down by this Court in Reg. v. Ramaswami Padayachi 1 M.K 394 and Ramasami Gounden v. Emperor 14 M.L.J. 226. If the alternative proposition as to special circumstances put forward in the certificate of the learned Advocate-General means more than this and involves an inquiry as matter of law in each case whether there are special circumstances entitling the Court to act on uncorroborated evidence I am unable to agree with it. I am of opinion that in the judgment of the majority on this point, there is no error of law entitling us to interfere under Clause 26 of the Letters Patent.

The second point is whether the previous statements of an accomplice can legally amount to corroboration of the evidence given by him at the trial. Reading the certificate with the judgment of the majority of the Court, it appears to me that the question for our consideration is whether such previous statements, if proved, can be regarded as amounting to corroboration of the accomplice in material particulars within the meaning of Section 114, illustration (b) of the Indian Evidence Act, as it is scarcely disputed that u/s 157 such statements are admissible in corroboration. I do not think that the Courts in England have ever attempted to define exhaustively what will amount to corroboration, a question which appears to be rather one of fact depending on a consideration of all the circumstances of the case. In India, the evidence of previous statements made in certain circumstances is admissible u/s 157 of the Indian Evidence Act to corroborate, the testimony of the witness. It is, therefore, admissible evidence in corroboration of the evidence even of a witness who is an accomplice, and I am not prepared to say, as the Advocate-General wishes us to say, that the previous statements of an accomplice cannot legally amount to corroboration of the evidence given by him at the trial. I think that previous statements, admissible as corroboration'' u/s 157 of the Indian Evidence Act, may or may not amount to sufficient corroboration and that whether they will be so or not, depends on the facts and circumstances of the particular case. That previous statements may in some cases amount to corroboration, where as in the present case, there are the previous statements of several accomplices was pointed out in Elahee BuksfSs case 5 W.R. 80 , the leading Indian authority. Sir Barnes Peacock, at page 84, observed: "Bat if two or three persons should be apprehended at different places, at long distances from each other, and should each confess and give a similar account as to the persons associated with them in a particular dacoity, the statement of each, if made under such circumstances as not to raise a presumption of collusion, might be proved in corroboration of his evidence; such statement being admissible as corroborative evidence under Act II of 1855, Section 31", which is the same as Section 157 of the present Act. It is, in my opinion, clear that in the opinion of the learned Judge the previous statements of the accomplices in those circumstances would amount to sufficient corroboration of their evidence and this is also in accordance with the dictates of good sense. In England, previous statements of witnesses, whether accomplices or not, are not generally admissible in evidence; but when admissible in exceptional cases as in regard to assaults on women, they are admitted, it is now settled, as evidence of corroboration, Rex v. Osborne (1905) 1 K.B. 551 : 74 L.J.K.B. 311 and it is clear, from the recent decision of the Court of Criminal Appeal in Rex v. Ellsom 76 J.P. 38 that in the opinion of the Court such statements, if properly before the Court, may, when considered in the circumstances in which they were made, amount to strong corroboration of the evidence of an accomplice. Taken by itself the previous statement may, of course, be as tainted and untrustworthy as the evidence in the box and not supply any real corroboration; but, on the other hand, the circumstances in which it was made may afford strong corroboration of its truthfulness apart from the credibility of the accomplice, as in the case put by Sir. Barnes Peacock which has now been inserted as an illustration to Section 114(b) of the Indian Evidence Act "A crime is committed by several persons. A., B., and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D. and the accounts corroborate each other in such a manner as to render previous concert highly improbable." In such a case, the previous statements not only corroborate each other but also the sworn statements in the box, and they are evidently reg