Kamala Prasad v. The Empress.

In this case, the Petitioner Kamala Prasad was convicted by the Deputy Magistrate of Gaya under sec. 381, Indian Penal Code, and sentenced to undergo two years' rigorous imprisonment and to pay a fine of Rs. 100 or, in default of payment, to undergo six months' further imprisonment. He preferred an appeal to the Sessions Judge who has confirmed the conviction and upheld the sentence. A rule was applied for and obtained from this Court calling upon the District Magistrate to show cause why the conviction and sentence should not be set aside on the ground that the evidence of the accomplice upon which the judgment is based has not been sufficiently corroborated in law, and also 011 the ground that there is no sufficient evidence to support the conviction. Mr. Roy for the accused has placed the entire evidence before us and has contended that the witness Dosain was an accomplice and that his statements regarding the identity of the accused and the latter's participation in the offence of theft which, there can be no doubt, took place on the night in question in the house of Brindabnn Prasad have not been corroborated regarding material particulars by outside evidence, and that, if the statements of Dosain be eliminated there is no other evidence to connect the accused with the offence. It appears that, on the night of Monday, the 20th March last, there was a burglary of a serious character in the house of Brindabun. A box or trunk seems to have been taken out of the house. It was broken open afterwards and a considerable amount of money in cash and gold and silver ornaments and clothes were abstracted therefrom. Information was given to the thana on the 27th with a list of the articles missing. The steel trunk was found broken in a corner of the garden towards the north of the house. Naturally suspicion fell upon the servants of the house, but as the learned counsel for the accused points out, Kamala Prasad was not suspected. His position in the house was one of some trust. It is said he was a sort of moshaheb to the complainant and used to take his meals with him. On the 29th of March Dosaiu's house was searched, and two silver bangles were found in his house and identified as part of the articles stolen. Mr. Roy says that the accused himself produced those articles, but it makes no difference whether he himself produced them or they were found in the search. The inquiry into the case proceeded for some time apparently with the object of discovering more articles and connecting the different people whose names Dosain gave as having been perpetrators of the burglary.

The case was sent upon the 18th of April, and on the 19th Dosain was convicted under sec. 411, I.P.C, and sentenced to imprisonment and a small fine of Rs. 5. On the 20th April a warrant was issued against the present accused. Dosain's statements were taken on two previous occasions and, after he had served out his period of imprisonment, his evidence was taken afresh regarding the facts to which he deposes and upon which stress has been laid by the Courts below. His evidence in substance amounts to this: that, on the night in question, he went out of the house of Brindabun where he used to sleep and, hearing some trampling on dry leaves, went towards the spot and found the present accused engaged either in opening a box or standing near the box which had been apparently broken open. Two of his companions had gone a little distance on hearing Dosain's footsteps. He inquired what they were there for and the accused in order to obtain his silence gave him the two bangles which he produced or which were found in his house on the 29th of March. If Dosain's evidence is believed, there can be no doubt that the present accused was concerned in the burglary and has been rightly convicted by the Courts below. The question of law which has been raised before us is, as we pointed out before, that he is an accomplice and that his evidence requires corroboration and that the necessary corroboration has not been furnished. It is contended that the matters which have been used for the purpose of holding that his evidence has been corroborated do not in law afford that corroboration. It is necessary, therefore, to consider what the position of Dosain was, but before doing so, we think it right to state the law bearing upon the admissibility of an accomplice's evidence and the legality of a conviction founded thereupon. Illustration (b) to sec. 114 of the Evidence Act says that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Sec. 133 declares that an accomplice shall be a competent witness against an accused person and that a conviction is not illegal, merely because it proceeds upon the uncorroborated testimony of an accomplice. The principle underlying the rule against the acceptance of an accomplice's evidence without corroboration proceeds upon certain reasons. These reasons have Teen set forth in a number of cases to which it is not necessary for us to refer here. Primarily an accomplice's evidence requires to be accepted with a great deal of caution and scrutiny, because it is naturally supposed that, when a person is concerned in a crime and has been discovered as being so concerned, he is likely to swear falsely in order to shift the guilt from himself. It is also supposed that an accomplice, in other words a participator in the crime is a person of bad character, and that his evidence, although given under the sanction of an oath, is open to suspicion and, thirdly, evidence given in expectation of any hope of pardon is sure to be biased in favour of the prosecution. It is for these reasons, although the law declares that a conviction is not illegal, merely because it proceeds upon the uncorroborated testimony of an accomplice, that the Courts have held that, ordinarily speaking, the evidence of an accomplice should be corroborated in material particulars and the practice which has been laid down has become, one may say, a part of the law itself. At the same time it is quite clear from the cases that the amount of criminality is a matter for consideration. When a person is only an accomplice by implication, or in a secondary sense, his evidence does not require the same amount of corroboration as that of the person who is an actual participator with the principal offender. In dealing with the question what amount of corroboration is required in the case of testimony given by an accomplice, the Courts must exercise careful discrimination and look at all the surrounding circumstances in order to arrive at a conclusion whether the facts deposed to by the person alleged to be an accomplice are borne out by those circumstances or whether the circumstances are of such a nature that the evidence purporting to be given by the alleged accomplice should be supported in essential and material particulars by evidence aliunde as to the facts deposed to by that accomplice. That seems to us to be the general principle and keeping that in view it appears to us that in this case, Dosain Goala is only an accomplice in a secondary sense. He does not say, nor has it been shown, that he was actually concerned in the burglary, that he took any part in the abstraction of the steel trunk, in breaking it open or taking out any of the articles or money. His statement amounts to this that lie saw that night certain persons, whom he names, and one of whom is the accused, committing the robbery. He knew that there was a burglary and knowing of the theft he accepted certain articles which were the proceeds of that theft and, for that, he has suffered imprisonment and has now no hope of reward or expectation of punishment. It is difficult for us to see how the principles to which we have referred apply to him. No doubt, having been a receiver of stolen property with a guilty knowledge and having suffered imprisonment, his character is now such that his evidence requires to be scrutinized and carefully considered in connection with the other circumstances of the case. The Courts below seem to have examined the facts with a great deal of care and they have come to the conclusion that there was no reason to disbelieve the direct testimony of Dosain. They do not ignore the fact that he was a receiver of stolen property or that lie had been in jail, yet the first Court which had the witness before it and the Appellate Court which dealt with the evidence both have come to the conclusion that his evidence may be accepted. It is difficult for us to say that they are wrong in accepting his testimony nor are we in a position to say, giving every consideration to Mr. Roy's argument, that there are circumstances wanting to support the testimony given. On the whole, therefore, after a careful consideration of the case, we are of opinion that the conviction ought not to be interfered with and we accordingly discharge the rule. The accused being on bail must surrender to undergo the remaining portion of his sentence.

H.P.C

Rule discharged.