JUDGMENT

1. The five appellants have been convicted by the Sessions Judge of Anantapur under Sec. 120-B, I.P.C, of conspiring together to commit offences under Sections 52 and 53 of the Post Offices Act, by extracting question papers relating to the S.S.L.C Examination of March 1936. Accused 6 and 7 were specifically charged under Sections 52 and 53 of the Post Offices Act, in that they being officers of the postal department committed theft of sealed envelopes containing the examination papers in question in pursuance of the above criminal conspiracy while the registered parcel was in course of transmission by post, by opening the registered parcel and envelopes or suffering them to be opened. Accused 1 and 2 have also been found guilty under Section 70 of the Post Offices Act, of abetting these offences under Ss. 52 and 53. The Public Prosecutor has filed a criminal revision petition for enhancement of sentences. Extraordinary precautions are taken to ensure secrecy with regard to the questions set at the S.S.L.C Examinations. The papers are actually printed in England. The printers place ten examination papers in one thin envelope of coloured paper, the colour being left to their discretion and varying from year to year. Each thin envelope is placed in a linen envelope. That linen envelope is not only stuck with gum in the ordinary way but has a large cramp crachen seal at the angle of the flap. This envelope is further secured by pasting a strip of paper across the flap with the name of the subject of the examination. These various linen envelopes are put in iron boxes duly sealed. These boxes are received by the Commissioner for Government Examinations at Madras and the several linen envelopes are then placed in confidential envelopes, the nature of which is varied from year to year. In sending out these confidential envelopes, the further precaution is taken of varying the seals from time to time. It is thus seen that every step is taken to ensure that when the envelopes are finally opened in the examination room no person shall know what the contents are.

2. The Deputy Inspector of Schools, Hospet, received in advance a list of papers he was to expect, and upon comparing the confidential envelopes with this list, he found one envelope described as “Text Books detailed and non-detailed story—B.” (Vernacular languages only) which was not in the list. On the other hand, he should have received but did not, an envelope containing papers relating to “second language (Telugu)—Text Books.” He sent that envelope back to Madras without opening it. When it reached Madras, it was at once seen that the outer envelope was not one sent out from the Madras office; for the envelope was of a different size, the seal was not the same, and the writing on it was not that of any clerk in the office. Upon opening the envelopes it was found that the inside thin envelope was not of the colour that had been used by the printers in England for other papers of a similar nature. The linen cover had obviously been tampered with, because the label pasted across the flap was not like those printed in England, the label in question being broader and containing greatly inferior printing and some spelling mistakes. A complaint was at once made to the Police and a Deputy Director of Public Instruction was sent to Hospet to examine the other envelopes. It was then found that ten sets of envelopes had been tampered with and a paper removed from six sets.

3. An Inspector of the C.I.D carried out a prolonged investigation and the prosecution have examined no less than 88 witnesses to speak to various circumstances pointing to the 5 guilt of the five appellants and the five accused who were acquitted in the Sessions Court. The principal witness is P.W 1, an approver. He unfurls a story of a conspiracy to interfere with the-examination papers in 1934, 1935 and 1936. He was interested in the matter because he himself was an S.S.L.C student. Accused 1 approached him for financial assistance, which P.W 1 after some hesitation decided to furnish. (The judgment then dealt with, evidence how the several accused were got together and proceeded.) P.W 1 has given, a very detailed statement of the conspiracy and speaks to the various parts played by himself and the accused in this case. After he knew that he had not been selected to appear for the examination he discontinued; his studies and was thus free to travel about and see to the affairs of the conspirators-Because of this he was entrusted with a number of duties by accused 1 and was sent from time to time with messages for the-other accused and to make purchases and bring things from Madras and to raise money from students. Accused 1 was the leader of the conspiracy, P.W 1 and accused 5 being; mere youths. It was accused 1 who persuaded P.W 1 to join in the scheme and to try to find students who would provide money.

4. He accompanied accused 1 and 2 to Madras, where accused 3 gave them instructions, regarding the best methods of tampering with the envelopes and supplied them with seals, cloth-lined covers, and so on. When he returned from Madras in. January 1935 he found accused 1 with wax, seals, and printed labels to be attached to-the new envelopes after the removal of the papers from the old ones. P.W 1 was also with this accused when he was making; preparations to go to Koikkuntla to the postmaster there, who was to allow them to open the parcel. P.W 1 had no personal, interest in the result of the examinations of 1936; but he joined the conspiracy because that seemed to be the only way of getting back the money that he had spent in the previous year. (The judgment then dealt with the way in which accused 1 got information of the despatch of the question papers and tampered the parcel and proceeded.) Further evidence against this accused is that of the handwriting expert, who-expresses an opinion that the writing on the outer confidential envelopes which were recovered at Hospet were in the hand of accused 1. The peon in charge of the choultry at Adoni deposes that accused 1 and 2 and P.W 1 were together at his choultry on the evening of the 18th. P.W 75 speaks to many incidents referred to by P.W 1. The various telegrams sent and received by accused 1 point very strongly to the guilt of this accused. His explanations given in the Sessions Court for the first time have rightly been disbelieved by the lower Court as improbable and unreasonable.

5. P.W 1's evidence has of course to be viewed with caution because he is an approver; and an approver's evidence is usually discredited on the ground: (1) that he is a man who is admittedly guilty of a crime and therefore not to be believed, and (2) that he is likely to throw the blame on his fellow conspirators for acts really done by himself. The first ground would hardly apply to the accused in this case. Public opinion against obtaining information in advance about contents of examination papers is not very strong. No particular care seems to have been exercised in this case to keep the matter secret; and students and their parents seam everywhere to have been anxious to secure copies of the papers. The employers of accused 1, the Co-operative Society of Kurnool, apparently do not think that he has been guilty of any moral turpitude; for they have continued him in their employment. I do not therefore think that the mere fact that P.W 1 was guilty of the offence with which his colleagues were charged makes his evidence any the less credible. As regards the second ground, it is unlikely that the brain that conceived this elaborate plot was that of a student such as P.W 1. There must have been some older and more experienced men in the conspiracy; and if so, there is no reason why P.W 1 should implicate accused 1 in particular and give to him the leading role. P.W 1's evidence has been corroborated by a score or two of other witnesses and by documents on a great number of points—although many of the points do not directly prove the guilt of any particular accused. His evidence covers 33 pages of printed matter; and there are no material contradictions in his evidence. It seems to me impossible that P.W 1 could have invented such a detailed and complex story, and if he had, it could not have stood the test of a long and searching cross-examination. The evidence of tickets, telegrams, and so forth all show that his testimony is true.

6. Section 133 of the Evidence Act enacts that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice; but in S. 114 a rule of caution has been laid down in illustration (b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars. It is argued that the rule of caution has become hardened into a rule of law and that corroboration has to be from some untainted source; for example, one accomplice cannot afford corroboration to another. Opinion on this subject is very much divided in India. One school takes the Sections of the Evidence Act as they are and holds that there is nothing in the Evidence Act to indicate that one accomplice cannot corroborate another. Such a view has often been held in this Court; and the judgments of Ayling J. are particularly interesting in this respect. Great authority has been given to this view by a Full Bench decision in 9 Rang 404,1 where all the decisions on this subject from 5 WR (Cr) 802 onwards were considered. Page C.J refers to the of quoted dictum of their Lordships of the Privy Council reported in 43 IA 2563 at p. 262, to the effect that the rules and principles of a colony must be accepted as found in its own Evidence Ordinance; and he holds that to construe the Sections of the Indian Evidence Act in the light of the English law on the subject leads to fallacious reasoning and to pronouncements of the law inconsistent with the express provisions of the Act. The danger of applying English principles to questions arising under the Evidence Act was pointed out by a Full Bench of this Court in ILR (1937) Mad 695.4 The Full Bench of the Rangoon High Court held that there was nothing in law to prevent the evidence of one approver being accepted as corroboration of another approver. The views of the other school of thought are set out in another decision of the Rangoon High Court, AIR 1937 Rang 209,5 where it was said that the English law makes the evidence of an accomplice unavailable for the corroboration of another accomplice and that there is nothing whatever in the Indian Evidence Act to suggest that the word ‘corrboration’ in British India has a specialized and different meaning from that which it bears in other parts of the British Empire, i.e the law in India has to be discovered—not by studying the Indian Evidence Act—but by looking at the English law on the subject and then ascertaining whether there is anything in the Indian Evidence Act to show that the Legislature in India intended to depart from the English law and practice. S. 138 is of course itself a departure from the English law. In England a conviction is not legally sustainable on the uncorroborated testimony of an approver. Abdur Rahim J. undoubtedly held the view accepted by the two learned Judges of the Rangoon High Court in AIR 1937 Rang 209 and he fully sets out the reasons for his opinion in 21 MLJ 2836 where he refers to the English law and holds that there is no reason to think that the law in India is different. The views of Abdur Rahim J. on the sufficiency of an approver's evidence to sustain a conviction were expressly overruled by a Bench of five Judges in 35 Mad 397.7 On a difference between Abdur Rahim and Ayling, JJ. on this matter, a case went before Sankaran Nair J. It does not appear that this learned Judge gave a definite finding that the evidence of an approver cannot be availed of for the corroboration of another approver. His decision is:

I am unable to hold that the evidence of the accomplices has been corroborated. I have also given my reasons for disbelieving their story.

7. The availability of another accomplice's evidence for corroboration was also considered by Pakenham Walsh and Sundaram Chetty, JJ. in 1933 MWN Crl 173,8 but they give no definite finding that the testimony of one approver cannot corroborate another, although they say, it is even doubtful whether the evidence of P.W 8 (i.e the other approver), can be taken to support that portion of the story of P.W 7 (the first approver).

8. They refer to English and Indian case law; but do not refer to the actual wording of the Evidence Act itself. I have not come across any Madras case which has gone so far as to say that corroboration of one accomplice by another accomplice is not corroboration at all, as was said in AIR 1937 Rang 209. I however think that this-question is largely academical because it is clear that if two accomplices give depositions in detail which agree with each other very closely and it is unlikely that on all those details they have agreed beforehand, there is very much stronger reason for, believing that the story given by both the approvers is true than there would be if only one accomplice had been available; and since the evidence of an approver can be acted upon without corroboration, there can be nothing illegal in acting on the evidence of accomplices that has been rendered more credible by agreement between them on the details elicited in cross-examination. Under S. 114 one finds as 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.

9. Thus the Illustrations to S. 114 themselves show that in cases where accomplices corroborate one another, there is much greater reason for accepting their evidence. That the learned Sessions Judge has realized the necessity for corroboration of P.W 1 is shown by the fact that he has acquitted accused 3, about whose guilt he felt no doubt at all, merely because there was no independent corroboration of those parts of P.W 1's story which implicated this accused. The learned Public Prosecutor has also pointed out that Hone of the witnesses except P.W 1 is really an accomplice; for an accomplice is a man who could have been equally tried with the accused for the offences of which they have been convicted. In AIR 1936 Cal 1019 the learned Judges say:

When a witness is not concerned with the commission of the crime for which the accused is charged, he cannot be said to be an accomplice. Mere being aware cannot make him an accomplice.

10. In 27 Mad 271,10 one of the witnesses admitted having assisted in disposing of the body after the murder had been committed; and it was held that although disposing of the body was an offence under S. 201, I.P.C, yet since the accused had been charged with murder, the witness was not an accomplice. If there is any technical rule of practice requiring an approver's evidence to be corroborated by some person who is not an accomplice, then that technical rule has been complied with. With regard to the hardening into a rule of law of the rule of caution that a person should not be convicted on the evidence of an approver unless it is corroborated by some untainted evidence, Bhashyam Ayyangar J. in 27 Mad 271 at p. 290 says:

It is very doubtful whether even the practice which has become ‘hollowed’ by time is not one of the instances in which the law of the country has been subtilized for the protection of individuals (including notably corrupt officials) and not for the furtherance of justice. The rule of law that a conviction upon the uncorroborated testimony of an accomplice is not illegal (vide Section 188 of the Evidence Act) is practically rendered nugatory by this rule of practice with the further result that there is a strong temptation to suborn evidence to corroborate the accomplice on a material particular, and when such corroborative evidence is forthcoming it acquires undue importance, and this as well as the evidence of the accomplice are both easily credited.

11. In considering whether the evidence of an accomplice can be accepted, one has also to take into consideration the extent of his complicity. If it is not such as to render it probable that he himself would be charged of such an offence, then clearly his evidence is much more valuable than if it appeared probable that had he not given evidence he himself might have been prosecuted. I do not consider that, P.W 27 can be looked upon as an accomplice. All he did was to carry a parcel from the railway station to the house of accused 9; and there is no reason to think that he must have received some improper gratification for doing this work. He was under an obligation to accused 6, because this accused allowed him to have his food and clothing in his house. Although P.W 27 spent nearly three hours outside the house of accused 9, it does not appear that he was asked to do so. P.W 27 was only a peon; and I do not see why one should take it for granted that he suspected that his superiors were doing something wrong. The facts that so many people gathered around the parcel and that accused 8 was sent to put back the parcel in the sorting case may have aroused his suspicion; but such a suspicion would not make him a party to the conspiracy. The evidence of P.W 70 cannot be said to be tainted. It is of course possible that his identification of accused 1 cannot in itself be absolutely trusted. He might have made a mistake; but he says that he objected to one of the accused sleeping in the choultry because he was a Mahomedan; and he also says that one of the men was wearing spectacles, as accused 1 does; and even if P.W 70's evidence were only of value in showing that three men came to Adoni on the night of 18th March, that would afford very strong corroboration of the evidence of P.W 1 that he went there in the company of accused 1 and 2. The selling and buying of examination papers is no offence at all and so the witnesses who did that are in no sense of the word accomplices.

12. With regard to the value of Mr. Stott's evidence that it was accused 1 who addressed the confidential envelopes that reached Hospet, my attention has been drawn to many citations from judgments and textbooks to the effect that expert evidence is a very low form of evidence, that the expert lives in an impregnable castle which the layman cannot approach, and that the opinion he expresses cannot be examined by those unacquainted with that subject. Since those learned opinions were expressed Judges and the Bar have become more willing to try to follow scientific evidence, even that relating to handwriting. No expert would claim that he could be absolutely sure that his opinion was correct; but the value of the opinion given by an expert depends to a great extent upon the materials put before him and the nature of the questions that are put to him. At times there is very little material upon which an expert can form an opinion; the documents sent to him may have been written under circumstances differing very considerably in time and conditions; and the actual words written in the standard writings in his possession may not be found in the questioned writing. The criticizm that the expert speaks from an impregnable fortress hardly holds good today. Experts are always ready to explain the reason for their opinions; and Judges are entitled to attach little or no importance to their evidence if the explanations given are not satisfying. Many advocates are now able to cross-examine experts very ably.

13. Mr. Stott, the Government Examiner of Questioned Documents, asked for some writing of the accused of the matter found on the envelopes sent to him for his opinion; and the writing of the accused of this matter on plain paper in the presence of the Magistrate was sent to Mr. Stott for comparison. One would expect of course that the accused, knowing that what he wrote before the Magistrate would be compared with the writing on the envelope, would make some changes in his style; and one finds a few changes in the shapes of letters; but it is remarkable that in the essentials of his style he has made no change at all. One cannot but be impressed by the close agreement between certain groups of letters in the standard documents and their equivalents in the questioned documents. A layman would naturally be impressed by the fact that among the redirected envelopes the word ‘Hospet’ is misspelt once and in the writing taken before the Magistrate the accused also misspelt ‘Hospet’ once.

14. It has been argued that since Mr. Stott was called for the prosecution he must have had a bias, unconscious perhaps, in favour of the prosecution; but I can not agree that Mr. Stott had any bias at all. He was not paid a commission by the prosecution, or even by the Crown. He is a salaried officer and gains nothing by giving the opinion he did. On the contrary, he had to undertake an inconvenient journey to Anantapur from New Delhi in order to give evidence. It was immaterial to him or to his reputation whether with regard to the documents sent to him he gave the opinion that the accused wrote them, that the accused did not write them or even that on the material before him he could not be sure; for it is always more difficult for an expert to say that such and such a person did write a document than it is for him to say that such and such a person did not write a document. The learned advocate for accused 1 might have also argued, but has not, that students trained in the same school might be expected to have a similar style and that quite a number of students of the high school at Kurnool might be writing in a similar hand. Nevertheless, even those who are trained to write by the same teachers develop each certain peculiarities of style which & handwriting expert—or a Judge with his assistance—is able to detect. Mr. Stott had a considerable amount of material before him, and his evidence that it was accused 1 who wrote the outer confidential envelopes is therefore valuable. It is certain that the writer of these envelopes was a man who bad the writing characteristics of accused 1 and committed similar spelling mistakes. This, when taken with the evidence that accused 1 was one of the few men who could have written them, affords valuable corroboration of Mr. Stott's opinion.

15. The evidence of P.W 1 is corroborated in so many material particulars—not only by witnesses who may be considered to have had a hand in the conspiracy — but also by untainted evidence that it establishes the guilt of accused 1 under S. 120-B, I.P.C, beyond all reasonable doubt. The evidence of P.W 1 does not prove the guilt of accused 1 under Section 70 of the Post Offices Act; but the evidence of P.W 27 and the circumstantial evidence is so strong as to leave that also in no doubt. It would be very difficult to accept the case against accused 1 and reject it against accused 2; for accused 1 and 2 were, according to P.W 1, very intimate associates. From the very beginning of the conspiracy accused 1 sent for accused 2 and they are said to have worked together almost throughout although it was accused 1 who led the conspiracy and who issued orders to P.W 1 and the others. One of the best arguments of Mr. Venkatarama Sastri on behalf of accused 2 was that this accused seems to have been an unnecessary member of the conspiracy; for until the papers were extracted he seems to have done nothing independently. The evidence against him lacks the corroboration of the handwriting expert that he played any part in the tampering with the papers; yet unless the prosecution case is wholly rejected—and I am quite sure that it ought not to be — it cannot be doubted that accused 2 was deeply implicated in the conspiracy. Apart from the evidence of P.W 1, P.W 27 and others that accused 2 was in the company of accused 1 and taking a prominent part in the conspiracy, there are certain other facts not easily doubted that go to corroborate the evidence of these witnesses. (The judgment then dealt with the evidence against accused 2 and 4 and proceeded.) A technical point was raised by Mr. Jayarama Iyer for accused 6 on the authority in 1936 MWN Crl 11111 that as the learned Sessions Judge had not been satisfied that the accused were guilty of taking part in a conspiracy in 1935, he could not have found them guilty of joining in the conspiracy of 1936. In 1936 MWN Crl 111 the accused were all charged with conspiring to undermine the Government, to commit decoities, robberies, and to assassinate certain Government officials; and it was pointed out by the learned Judges who heard the appeal that it was not sufficient for the prosecution to prove that some of the accused had taken part in one part of the conspiracy and some in others. If they were to be found guilty of conspiring together it was necessary that the prosecution should prove that they had a common object; and if some accused knew only about one part of the plan and some only about others, there was no intention that was common to all the accused.

16. It would not be sufficient in the present case for the prosecution to prove that some of the accused took part in the conspiracy of 1935 and others in the conspiracy of 1936 and thereby to conclude that they were all guilty of the conspiracy with regard to 1935 and 1936; but the conspiracy with regard to 1935 had failed before the conspiracy of 1936 had begun; and if the prosecution had proved that all the convicted accused conspired together to extract the examination papers of 1936 then they are all guilty of the offences with which they have been charged. T?he illustration to Section 10 of the Evidence Act, Shows the limitations to the application of the principle laid down in 1936 MWN Crl 111 above referred to.

17. The next argument of Mr. Jayarama Ayyar is that it is a necessary ingredient of Section 52 of the Post Offices Act, that a paper should have been extracted from the parcel and not merely examined. That is a correct deduction from the wording of S. 52; but there is abundant evidence that printed papers were extracted. It is true that the mere fact that in several packets there were only nine papers instead of ten would not (prove that papers had been extracted; for there would be some doubt whether ten papers had been placed in each packet in England. Moreover, there was a report of a shortage of papers in two other centres. But there is evidence not only of P.W 1 but of other witnesses to whose evidence reference has already been made, that printed papers were being circulated and copies made from them. (Then their Lordships dealt with the evidence against accused 6 and 7 and proceeded.) The convictions of all the accused are therefore affirmed. The sentences are not on the whole excessive; but accused 1 and 2 ought not to have been treated as if they were in pari delicto. Except in the sale of the papers, which is not in itself an offence and which took place after the crime was committed accused 2 played no independent part and was little more, than a companion for accused 1. Accused 6 was given a heavier sentence under S. 120-B than accused 1, presumably because accused 6 was a public servant, with greater res possibilities. It has to be remembered however that accused 6 would have committed no offence at all if accused 1 had not tempted him with a large sum of money. I therefore reduce the sentence of accused 6 under S. 120-B and under Section 52 of the Post Offices Act, to 2 years' R.I The Crown has prayed for an enhancement of the sentences; but I do not think that a case for doing so has been made out except against accused 1, who not only organized the conspiracy but led the other accused into crime. Accused 2, 4, 6 and 7 have lost their posts and will probably be barred from future employment. Only accused 1 has the good fortune to have an employer who is prepared to condone the crime of its servant. The revision petition is therefore dismissed as against all the accused except the first, whose sentence under S. 120-B is enhanced to three years' R.I Criminal Appeals No. 364, 365 and 366 are accordingly dismissed. The sentences passed against accused 6 Under S. 120-B, I.P.C, and under Section 52 of the Post Offices Act, are hereby reduced to two years rigorous imprisonment. Otherwise Criminal Appeal No. 369 of 1937 is also dismissed.

C.R.K/R.M

18. Order accordingly.