Sir Lawrence Jenkins, K.C.I.E, C.J:— Naro Bhaskar Sahasrabudhe has been convicted of an, offence under s. 161 of the Indian Penal Code and he has been sentenced to simpie imprisonment of one year and a fine of Rs. 500 or in default to a six months' further simple imprisonment.

2. Shrinivas Krishna Shiralkar has been convicted under ss. 161 and 109 and s. 162 of the Indian Penal Code, and he has been sentenced in respect of each offence to one year's rigorous imprisonment and a fine of Us. 2,500 or in default to six months' further rigorous imprisonment. These two convicted persons now present these appeals which have been heard together.

3. The case for the prosecution may be briefly stated:

Naro Bhaskar Sahasrabudhe was the Mamlatdar in the Kard Taluka. On the 1st of November 1904 a Possessory suit was instituted before him by one Vishnu, and almost immediately rumour reached Sakharam Kusaji, not only of the suit but also that steps had been taken to secure a favours-able result in favour of the plaintiff by bribery of the Mamlatdar.

4. This led Sakharam Kusaji to consult his pleader and as a result he determined to counteract the bribery of which he had heard by himself also bribing the Mamlatdar. And so he went to consult a relative, Aba Shripati, who lives in the neighbouring village of Perla, and in the end the two approached the second accused Shiralkar, a money lender of Umb-raj, with the intention that through him the Mamlatdar might be induced to accept such sum of money as would secure a favourable result in the Possessory suit. Shiralkar, it is said, favourably entertained the overtures, and Rs. 500 was fixed on as necessary to secure the desired result in the litigation.

5. Then, it is said, Sakharam Kusaji went to a money-lender named Shrichand and obtained from him a sum of Es. 500.

6. This sum, it is said, he brought on or about the] 1th of November to Shiralkar and this sum having been handed over to the second accused Shiralkar was in turn paid by him to the first accused Naro.

7. That is shortly the first stage of the case.

8. If it be true, there is no question that an offence was committed.

9. But the case for the prosecution does not rest there, because, it is said that-subsequent to the 15th November, the date fixed for the first hearing of the Possessory suit, further rumours reached Sakharam Kusaji of readiness on the part of his opponents in the Possessory suit to make still further payments to secure the decision in their favour, and to meet that, he again consulted Shiralkar, and it was decided that Sakharam should find Such additional sum as would bring the whole amount to be paid by him up to Rs. 1,000. Accordingly, it is said, he obtained Bs. 350, by way of loan from Shiralkar, the money-lender. On the 28th November this additional sum is said to have been paid by Sakharam to Shiralkar and handed by Shiralkar over to Naro.

10. That is the second stage in the prosecution case.

11. We have indicated in the course of the argument that for reasons then indicated we did not think the evidence under the circumstances sufficient to support the offence alleged to arise out of this second stage of the case.

12. So we will deal with the first stage only.

13. Now with regard to that we start with the fact that the Sessions Judge and both the Assessors consider that charge proved against both the accused; and taking a broad survey of the case it certainly invites the comment made by Mr. Kirkpatrick that there are practically only two alternative views either that the case is substantially true or that there has been a wide-spread conspiracy of a very far-reaching and extraordinary character.

14. Now the evidence as to this charge in respect of the Rs. 500 falls under two heads: First there is that which leads up to the transaction and is explanatory of it, and next there is that whieh deals directly with it.

15. Now the evidence whieh leads up to it—and it may be regarded as explanatory—is that by which it is sought to establish that accused No. 1, Naro, was in embarrased circumstances, and that there was the rumour of bribery proceeding from the side of Vishnu, which led Sakharam Kusaji to take the counter-move to which we have already alluded.

16. It has been contended, and contended with force, by Mr. Binning on behalf of his client that there is not any evidence of impecuniosity on the part of his client.

17. But we have these facts: Naro's income so far as disclosed was only Rs. 200 a month, and in the course of the year in which these events are placed he found it necessary to borrow what we should regard as considerable sums of money for a man of his income. Of course it my be that they were borrowed for other purposes—for the purpose of his brother's estate—but if that be so, we cannot say that this explanation is established by the evidence placed before the Court; and we think we must take it as a fact that accused No. 1 was under necessity in 1904, the year in which this offence is alleged to have been committed, of borrowing very considerable sums of money.

18. No doubt those sums were repaid before the end of the year. How they were repaid we do not know.

19. But then we come to the question as to whether there was this rumour of bribery proceeding from Vishnu and his side; because if that be so, it does furnish a reasonable explanation of the tale advanced by the prosecution that Sakharam, to meet this action on the part of Vishnu, himself en deavoured and was able to induce accused No. 1 to accept the particular gratification charged in this case.

20. Now the evidence to our minds makes it clear that there were those rumours, and further than that we think the evidence justifies the conclusion that there was very good ground for those rumours, and to that extent it may be said that there is a probability in favour of the truth of the case made by the prosecution. But all this of course is not sufficient.

21. We must also be satisfied that the prosecution have by evidence established the charge as to Rs. 500.

22. We have indicated what the outline of the prosecution version is on this point; and it is only necessary for us to now consider whether or not the version accepted by the Sessions Judge and the two assessors is justified by that evidence.

23. In the first place we have the evidence of Sakharam and Aba; and if that evidence is believed, we are of opinion that the charge is brought home to both the accused so far as the sum of Rs. 500 is concerned.

24. Then are these witnesses to be believed?

25. First we will, consider what amount of credit is due to them apart from the alleged circumstances of their being accomplices. There we must have regard to what has been the view of the learned Judge before whom these witnesses were examined, and his comments on their demeanour.

26. The learned Judge has been most careful in this case to indicate the impression that these various witnesses have made on him in the course of giving their evidence, and he has intimated his view both by foot-notes and also by a very clear statement in the course of the judgment.

27. Now we turn in the first place to his estimate of the evidence of Sakharam Kusaji as to whom he says “the demeanour of this witness was satisfactory. He was calm and collected throughout and took time to answer the questions put to him and was never flurried or hasty in his replies”; and with regard to the estimate of witness Aba what he has set forth in the foot-note is this: “On the whole I was favourably impressed by this witness.”

28. Then in the course of his judgment he says with regard to both these witnesses: “On the whole I can see nothing in the evidence of Aba and Sakharam inherently improbable except the former's statement that he saw the actual payment of the money to accused No. 1.”

29. Referring to these witnesses at page 34 the Judge says: “Both of these witnesses were examined at great length and I consider that their demeanour in Court was satisfactory. Nothing can be argued against them by reason of their behaviour in the witness-box and indeed no attempt has been made to do so. I have rarely seen witnesses less confused and upset by very searching cross-examination to which they were subjected.”

30. Therefore the evidence of these witnesses considered apart from their position as accomplices seems to have been such as to commend itself to the Court before whom they were examined; and we think it is impossible for us, sitting here as a Court of Appeal, to disregard this estimate by the Sessions Judge, more especially when we find of the fact that he had the complete accord of both the assessors so far as the evidence in regard to the sum of Rs. 500 is concerned.

31. But then it is said, and rightly said, that they are accomplices. We are in no way impressed by the prosecution's argument urged before us that they were not voluntary agents. It is obvious that they were. They desired to attain certain end, and they deliberately chose the means of attaining it without any kind of compulsion beyond their own urgent wishes.

32. Then how are they to be treated though they may be accomplices?

33. We here in India must follow the Evidence Act; for the Act as its preamble states “is an Act enacted by reasou of its being deemed expedi-ent to consolidate, define and amend the Law of Evidence.”

34. What does the Evidence Act say on this point?

35. Section 133 provides 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.”

36. That, so far as we know, is the only absolute rule of law in the Act on the point.

37. But there is a rule of guidance to which the Court also should have regard: and that rule of guidance is to be found in ill. (b) to s. 114 of the Evidence Act and the supplement to that Illustration.

38. Now s. 114 provides that “The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case,” and among the illustrations we find this: “The Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars.”

“Whenever it is provided by the Act that the Court may presume a fact it may either regard such fact as proved unless and until it is disproved or may call for proof of it.” So Section 4 lays down, and the provision shows, as the language of the illustration indicates, that this is not a hard and fast presumption incapable of rebuttal, a presumptio juris et de jure. This is made clearer by the supplement to the illustration in which it is said “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; as to illustration (b) 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.” The right to raise the presumption as to an accomplice is sanctioned by the Act: and it would in our opinion be an error of law to disregard it. What effect is to be given to it must be determined by the circumstances of each case, and we think the Sessions Judge having rightly apprehended the rule of law equally rightly declined to fetter his conclusion on the facts by an adjudication on a different set of facts in another case.

39. In this case the Sessions Judge deemed corroboration necessary to the extent indicated in the illustration and in this opinion we concur. The reasons why an accomplice's evidence is considered unsatisfactory are summarised in Kamala Prasad v. Sital Prasad (1) where it is said “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 a bad character and that his evidence although given under the sanction of an oath, is open to suspicions, and, thirdly, evidence given in expectation of any hope of pardon is sure to be biased in favour of the prosecution.”

40. The first of these considerations hardly applies to the evidence of one who testifies that he has bribed the accused, for by his own testimony so far from shifting the offence from himself he in fact thereby fastens it upon himself, for it, is by making himself out to be a briber that he shows another has been bribed.

41. But it is needless in the circumstances of this case to pursue these general considerations further, and we shall proceed to consider whether or not there is corroboration in material particulars. For the purpose of this case, therefore, we desire to be satisfied that there is such corroboration in material particular as would induce a prudent man on the consideration of all circumstances to believe that the evidence is true not only as the narrative of an offence committed but also so far as it affects each person thereby implicated.

42. Now is there corroboration in this case?

43. We find corroboration as to the borrowing of Rs. 500 in the evidence of Shrichand. We think it is quite clear from Shrichand's evidence and the evidence of his books that there was an advance of Rs. 500 whereby Sakharam was enabled to make the payment he says he has made, and this affords corroboration.

44. We do not in any way overlook the criticism to which the books have been subjected: nor do we forget the fact that the books do not show Rs. 150, in notes to have been in his possession on that occasion. But we are unable to regard that circumstance as sufficient to counter-balance the clear testimony of Shrichand and his books that Rs. 500 were paid over to Sakharam. The learned Judge on Shrichand's evidence in the course of his judgment says that “This witness displayed a considerable amount of stupidity in the witness-box, but I see no reason to doubt his absolute veracity although the first Assessor who watched the case most closely is not inclined to believe his evidence as to the subsequent loan of Rs. 350.

45. For corroboration of the payment over of the money to the two accused we have to go to the evidence of Mahadu. Now Mahadu is undoubtedly a very important witness in this connection. We can see no such impro-bability in his early rising or in his apparent apathy as to the copies when at Karad as to induce us to say that the estimate of the Judge and the Assessors as to this witness is erroneous. The Judge himself says “I very carefully watched Mahadu's demeanour in Court, and on the whole I am satisfied that he was telling substantial truth.”

46. Now what does he say? If we believe his evidence he brought the money to the spot where the whole transaction is said to have been completed and according to his evidence, he knowing as he says which was the Mamlatdar's tent, states that Aba and accused No. 2 went towards the tent.

47. Well, is that corroboration in material particular?

48. We think it clearly is and we think it would be taking a pedantic view of matters to say that it is not, if that witness is believed; and we do believe him.

49. But the case does not rest there; because we further have the evidence of Bala. Bala, in our opinion, is not an accomplice. He is not an abettor of the offence now under investigation, though he may be a participant in another offence equally objectionable. But though he is not an abettor we quite recognize that he is one whose evidence must be accepted with great caution.

50. Any Court before whom Bala was examined would clearly watch him most carefully, and that is what we understand the learned Judge Mr. Lucas has done in this case, and what, is the impression that he has formed as to Bala. He says as to him “I may at once say that I have never seen a more apparently satisfactory witness in the whole course of my judicial experience. He must either be telling the truth or he must be a consummate scoundrel gifted with the most marvellous powers of circumstantial invention. After hearing his evidence and considering probabilities I have come to the conclusion that he is a perfectly truthful witness.”

51. But so far as: Bala is concerned we have corroboration of the story in the evidence of Vishnu and Sakharam Piraji.

52. According to the evidence of those witnesses a sum of money was paid on their behalf to influence the Mamlatdar, and that sum of money was afterwards returned to them. How came it to be returned to them? They say that it was returned to them through this witness Bala. If Bala obtained money from the Mamlatdar and returned it, surely it must have been by reason of a direction given to him by the Mamlatdar. He says that it was so. His story fits in with the natural sequence of events. We think though it is true that he may not have told these other witnesses that he learnt from the Mamlatdar that the money was to be returned because he (the Mamlatdar) had received money from the other side. We cannot from that reason say that his testimony on that point is not worthy of belief when we bear in mind the estimate of his creditability formed by the District Judge.

53. Undoubtedly the evidence in this ease, as in most cases where the record is as voluminous, is open to much criticism and it has been very ably criticized by those who appeared before us on the part ??? the defence and we do not for a moment shut our eyes to the fact that there are discrepancies and inaccuracies; a Court should not allow, a judgment founded on convincing circumstantial evidence to be disturbed because there are immaterial discrepancies to be reconciled.

54. In our opinion the case is such that taking a broad and comprehensive view of the facts, the mind is irresistibly led to the same conclusion as that of the learned Judge and the Assessors, who evidently have bestowed the greatest care in the trial of this case.

55. We do not overlook the suggestion made in reply on the part of the accused No. 1 that there was no evidence of his being in the tent apart from Aba. But there is the evidence of Aba that he was in the tent, and that evidence is not disbelieved by the learned Judge. The learned Judge draws a very clear distinction on this point. Aba says “From where I was I could see inside the tent, I saw Shiralkar and the Mamlatdar in the tent. The Mamlatdar was sitting. I saw Shiralkar handing over the money to the Mamlatdar.” Now what the learned Judge says is this “On the whole I can see nothing in the evidence of Aba and Sakharam inherently improbable except the former's statement that he saw the actual payment of the money to the accused No. 1.” It appears therefore to us that he credited Aba's statement that he saw the Mamlatdar in the tent. There is further Bala's testimony of the statement by the accused No. 1 which is only consistent with his having received the money under the circumstances described.

56. We therefore come to the conclusion that the conviction was perfectly right.

57. The only other point is as to the sentence. But in view of the fact that Government intend applying for the enhancement of the sentence, we refrain from making any comment. We, therefore, confirm the conviction and sentence of accused No. 1, and the conviction and sentence of accused No. 2 as to the transaction of on or about the 11th November as to the Rs. 500. As to the second offence with regard to Rs. 350, with which accused No. 2 is charged, he must be acquitted, and the sentence consequent on that conviction will be set aside.

58. This confirmation however is without prejudice to any application that may be hereafter presented on the part of Government for enhancement of sentence.