THE KING v. LOKU NONA and two others

002-NLR-NLR-V-11-THE-KING-v.-LOKU-NONA-and-two-others.pdf


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[Crown Case reserved.]
Present; The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Wendt, and Mr. Justice Middleton.
THE KINO v. LOKU NONA and two others.
P.C., Negombo, 8,151.
Murder—Assault with club—Throwing body into sea—Doubt as to whether
person was dead when put into the sea*—Completion of offence—
Accomplice—English haw—Evidence Ordinance—Corroboration, nature of—
Duty of Judge—Conviction based on evidence of accomplice.
The accused struck (.' a blow on the head with a club and C fellsenseless. The accused believing that C was dead ordered the bodyto be put into the sea, where the body sustained certain wounds.According to the medical evidence it was possible that C was notdead when she was thrown into the sea, and that death was causedby concussion of the brain from contact of the body with a rockin the sea,—
Held, that the accused was guilty of murder, even if. the deceasedwas not dead when thrown into the sea and death was caused bythe body coming in contact with a rock m the sea.
The judgment of the majority of the Court in Queen e. Khandu 1disapproved.
There is uo difference between the Law of England relating toaccomplices and the Law of Ceylon as embodied in sections 114 and133 of the Evidence Ordinance.
A conviction is not illegal merely because it is basjed on theuncorroborated evidence of an accomplice.
It is the duty of the Judge to warn the jury that they should notconvict on the evidence of an accomplice, unless corroborated byindependent evidence on material particulars.
The corroboratiou of the evidence of an accomplice must consistin some circumstance that affects the identity of the party orparties accused; but it. is not necessary that the corroborativeevidence should be uanclusive against the accused.
fjl HE case stated by Wood Benton J. was as follows: —
“ 1. Two women, Dona Eugina Hamine alias Loku Nona andDona Josephine alias Punchi Nona, and a boy Kaitan were triedbefore me at the Colombo Criminal Session from the 11th to 22ndinstant for the murder of n girl Carlina at Talahena, in the Districtof Negombo, on July 31 last. The jury by a majority of six toone convicted the accused (with a recommendation to merev ineach oase), and I sentenced them to death.
' I. L. ft. (1890) 15 Bom. 194.
1907.
December 11.
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‘2. After sentence was passed, counsel for the accused moved 1*07.me to reserve for the consideration of the Supreme Court, under Deee*nb*r 11 •section 355 (1) of the Criminal Procedure Code, the following ques-tions:—
•• (1) Whether the Judge erred in law in telling the jury that,in the circumstances of the case, it was immaterialwhether the fatal blow was struck by the accused or not.
" (2) Whether the Judge erred in law in not telling the jurythat the witness Jane was an accomplice, and in leavingit to tiie jury to say whether she was an accomplice ornot.
“ (3) Whether the Judge erred in law in telling the jury that theevidence of Jane, even if she was an- accomplice, wassufficiently corroborated by the evidence of the witnessChristina.
“ (4) Whether there is any evidence to warrant a conviction inlaw.
“ 3. None of the points involved in these questions was raisedby the line of defence adopted at the trial, viz., that the whole casewas a conspiracy against the accused, with the connivance of thepolice, by. family enemies, and none of them was even alluded toin the course of the proceedings, with the exception of the issueraised in No. 3. Id addressing the jury for the accused, Mr. H. J. C.
Pereira for the first time threw out the suggestion that a witnessJane Nona, to whose evidence I will refer immediately, mighthave been an accomplice of the accused in the commission of thecrime, and told them that, if they adopted this view, they oughtnot to convict on her evidence, unless it was corroborated as to theidentify of the accused as well as with reference to the attendantcircumstances
“ 4. The facts material for the present purpose are shortlythese. The deceased girl Carlina, a girl Jane Nona, and Kaitan.the third accused, were servants in the house of one Miguel Mudalaliat Talahena. Loku Nona, the first accused, was his wife. PunchiNona, the second accused, Loku Nona’s sister, lived with them.
In consequence, as the Crown suggested, of the fact that Carlina hadbeen circulating imputations on Punchi Nona’s chastity, both thefemale prisoners conceived a violent hatred towards her, and shewas frequently beaten by them both. On the day of the murder—
July 31—Carlina was beaten by Loku Nona several timesbefore the evening. After dinner, at which both Loku Nona andPunchi Nona had drunk to excess, the former sent Jane to callCarlina. The girl, sulky after her beatings, and perhaps afraid thatanother was in store for her. repeatedly refused to go. She was atlast, however, persuaded to follow Jane into the verandah outsidean old kitchen, .carrying an eau de Cologne bottle lamp with her.
Punchi Nona took the lamp from her hard and blew out the light,s.
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1907.and closed the verandah door. There was a lamp in the verandah
December ll. by which Jane could see all that happened. Loku Nona thenseized Carlina and dragged her towards the old kitchen. The boyKaitan and another male servant, Peregrinu, were present.Peregrinu gave a club to Loku Nona, who took it in both handsand struck Carlina with it on the head as hard as she could. Thegirl fell, crying out ‘ amma.' Punchi Nona thereupon put her handover her mouth to stop any further cries. Then Loku Nona toldJane to bring a knife. Jane went to a new kitchen in the compound,brought a chopper (manne), and handed it to the elder woman. Itwas on this action of Jane’s that Mr. Pereira founded his suggestionto the jury of Jane’s complicity in the crime. Jane stated, however,that she was so afraid and confused that she did not think of the useto which the knife was to be put, and that if she had known it wasto be applied to Carlina, with whom the evidence shows her to havebeen on quite friendly terms, she would not have brought it. LokuNona gave the knife to Punchi Nona with the words ‘ Cut herthroat.’ This Punchi Nona proceeded to do. Carlina had now,however, apparently recovered consciousness, and offered ' someresistance to the operation, endeavouring to catch the knife. In thecourse of the struggle the palms of her hands and her face were cut.Eaitan meanwhile held his hand over her mouth, and PunchiNona inflicted on her throat one cut 4J inches long, dividinga portion of the muscles, but not severing any of the large bloodvessels. This injury in itself would not have proved fatal. Carlinanow lay still, apparently dead. Punchi Nona brought a cloth froman almirah in the next room and wrapped it round her neck and head.Loku Nona got a mat, and Kaitan and Peregrinu lifted the bodyand placed it on it. Loku Nona next sent Peregrinu to fetch twodependents of the Mudalalai, Simeon and Gabriel by name, who liveddose by. As they entered, the Mudalali and his brother Paulu, theYidane Arachchi of Talahena, who had been in the front verandahwhile all this was going on', appeared on the scene. The Arachchisuggested that the body should be buried in the cemetery at Tala-hena. The Mudalali said: ‘ Don’t bury it; throw it in the sea.’All this took place in the presence of the three accused. The Muda-lali’s advice was followed. Peregrinu, Simeon, and .Gabriel, whowere first supplied with drink, took the body away, and went towardsthe sea. The Mudalali’s kennel is in the direction of the sea,and Jane heard the dogs barking after Simeon and Gabriel had gone.The corpse was found washed ashore next morning. When the menhad removed the body, Loku Nona and Punchi Nona told Jane andKaitan to wash the spot where Carlina had lain. Jane did so withwater and an old gunny bag. She then leaned, against one of thewalls and left on it the imprint of her hand. This ^imprint wasexamined by the Public Analyst and found not to contain blood. Dr.Leembruggen stated that there would be very little bleeding from •
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the wounds in the neck, and Jane would only say that the water 1807.she was told to wipe up was discoloured like blood.December 11.
“ 5. Question (1), proposed by the counsel for the accused, doesnot state quite accurately the point that I made in regard to thematter with which it deals, but I am willing to adopt it, subject totiie following observations:—Jane had said that Carlina was struck-down first and cut afterwards. When her body was discoveredseveral contusions were found on her head. Dr. Leembruggen statedthat any one of these would produce concussion of the brain, whichwas the cause of her death. One of them, however, was so seriousthat he thought that it would have disabled her immediately, andthat consequently it was not probable that she could have recoveredconsciousness and resisted Punchi Nona’s attack with the knife asJane described. Dr. Leembruggen did not say that Jane’s story»n this point was an impossible one. He only said that it wasImprobable. But the state of the corpse showed that some of thenumerous injuries it bore had been caused while it was in the sea.
Accordingly I put it to the jury in substance the following alterna-tive view:—
“ Given—
“ (a) As an inference from all the circumstances of the caseas disclosed in Jane’s story, intention on the part of theaccused to kill Carlina:
'* (b) The infliction by the accused in pursuance of that intentionof wounds (e.g., contusions causing concussion of thebrain) ordinarily sufficient to kill, but from which theremight be recovery:
4 (c) The throwing of the body while disabled, even if not killedat the moment by these injuries, into the sea by theaccuseds’ orders:
" (d) Drowning (negatived in this case by the medical evidence)or an immediately fatal concussion of the brain fromcontact of the body with a rock in the sea as theimmediate occasion of death—
‘ me accused would be guilty of murder, even if there might havebeen recovery from the wounds actually inflicted by their hands.
The question for the Court is, whether that was an accuratedirection in point of law.
44 6. Question (2): I was never invited by counsel for thedefence to tell the jury as a matter of law that Jane was an accomplice.
On the contrary, Mr. Pereira expressly asked the jury to consider thepoint for themselves. If I had been requested to direct the jury in theterms of this question, I should have declined to' do so. Whether ornot a witness who denies complicity is really an accomplice is in myopinion, and issue of fact, and therefore solely within the province ofthe jury. The question for the Court is, whether this view is wrong.
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1907.
Dtcember 1
■’ 7. Question (3): I did not say that Christina’s evidence wasL the only corroboration of Jane’s, assuming Jane .to be an accom-plice. Every other piece of evidence—oral or real—in the casebearing on the attendant circumstances and the identity of theaccused would be corroboration for what it is worth. Christina isSimeon’s wife. She said that on the night of the murder she wasawakened by the barking of dogs from the direction of the Mudalali’sKennel, and that she looked up and saw lights and people movingin the Mudalali’s house. Soon after she was awakened by herhusband, who said that Loku Nona had sent for him. Peregrinuwas outside, and Simeon went away with him. Next morning hereturned drunk. A day or two later he left the village, and wasaway from home for five or six days. Christina saw him next at- theMudalali’s gate, where he was arrested. On all these points there-fore Christina directly corroborated Jane. Simeon in one of thePolice Court stages of the case made a full confession corroboratingJane and Christina, and stating that after the murder Loku Nonahad given him money to go away. He retracted this entire state-ment in the Assize Court, but admitted that he had left the villagefor some days after the murder without telling his wife where hewas going. The only explanation he could suggest of his absencewas that he had. been suddenly told of the illness of a child—one ofhis children by Christina—at Katana. Jane was further corro-borated by a body of evidence which I placed fully before the juryin dealing with her story as a whole, and which not only bore on theattendant circumstances of the crime, but tended to fix its com-mission on the household of which all three accused were memberson the night of the murder: the palmar wounds on Carlina, theimprint, the possession of a blood-stained camboy of Carlina’sby Simeon, the discovery of rags and pieces of paper bearingmarks of blood in the Mudalali’s compound, the sprinkling ofsand by the Mudalali next day along the path by which Carlina’sbody bad been taken to the sea. the removal on the same dayof the club by Peregrinu on the Mudalali’s orders, and the factthat, although the discovery of Carlina’s body was known by theMudaliali’s household between 7 and 8 a.m. on the day after themurder, no member of that household went to identify the bodyor was present at the inquest in the afternoon. The question forthe Court is. whether this was in law sufficient corroboration ofJane’s story, assuming that she was in fact the accomplice of theaccused.
“ 8. Question (4): Here, again, it was never suggested during thetrial that the evidence adduced by the prosecution, if true, wouldnot justify conviction. The question for the Court is, whether—assuming the facts set out in paragraph 4 to be proved—there is orthere is not evidence sufficient to Warrant a jury in convicting allthree accused of murder.”
( » )H. A. Jayewardene (with him A. St. V. Jayewardene), instructed 1907.by 6. M. Silva, Proctor, appeared for the accused.December 11
Bawa, Acting S. O., appeared for the Crown.
The following cases were cited in the course of the argument:
Queen v. Elahi Bust,' Queen v. Haiti Saran,- Queen v. O’Hara,aQueen v. Navat Jan* Emperor v. Jamiruddi Maealli,* Makin v.
The Attorney-General of New South Wales 6 Queen v. Khandu.’’
Cur. adv. vult.
December 11, 1907. Hutchinson C.J.—
The accused were convicted of the murder of Carlina, a girl ofabout eighteen years of age. The principal witness for the prose-cution was another girl. Jane. Carlina and Jane and Kaitan(who is a boy of about fourteen) were servants in the house of LokuNona’s husband; Punchi Nona, who is her sister, lived in the samehouse. Jane said that she saw the murder; according to her ittook place near a kitchen in the house; Loku Nona struck Carlinaon the head with a club; Carlina fell, crying out “ amma. ” PunchiNona put her hand over her mouth to stop further cries; then LokuNona told Jane to bring a knife, and Jane brought one from thekitchen and gave it to Loku Nona, who handed it to Punchi Nona,saving “Cut her throat,” and Punchi Nona proceeded to do this,but- Carlina offered some resistance, and her hands and face werecut in the struggle; Kaitan held his hand over her mouth, andPun,chi Nona inflicted a cut over her throat, which would not ofitself have proved fatal; Carlina then lay still, apparently dead;and her body was shortly afterwards thrown into the sea by three .men—a servant of the house and two men for whom Loku Nonasent.
The dead body was found washed ashore next morning. Havingregard to the medical evidence it was possible that Carlina was notdead when she was thrown into the sea; and the first questionstated by the presiding Judge for our consideration is this: —
‘ ‘ Given—
“ (a) As an inference from all the circumstances of the case as• disclosed in Jane’s story,, intention on the part of theaccused to kill Carlina:
“ (b) The infliction by the accused in pursuance of that inten-tion of wounds (e.g., contusions causing concussion of thebrain) ordinarly sufficient to kill, but from which theremight be recovery:
“ (c) The throwing of the body while disabled, even if not killedat the moment by these injuries, into the sea by theaccuseds' orders: and
> (1866) 5W. R. Cr. 80.4(1867)8IF. R. Cr. 19-25.
^ I. L. R.8 All. 306.5(1902)I.L. R. 29 Cal. 782.
* I. L. R.17 Cal. 642.«63 L.J.Rep. P. C. 41.
■ I. L. R. (18901 15 Bom. 194.
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'• (d) Drowning (negatived in this ease by the medical evidence)or an immediately fatal concussion of the brain fromcontact of the body with a rock in the sea as the imme-diate occasion of death—
“ the accused would be guilty of murder, even if there might havebeen recovery from the wounds actually indicted by their hands.
“ The question for the Court is, whether that was an accuratedirection in point of law. ”
Counsel for the accused relied on an Indian case {Queen v.Khandu1). There A struck B three blows on the head witha stick, with the intention of killing him; B fell senseless; A,believing him to be dead, set fire to the hut in which he was lying,and B’s death was caused not by the blow, but by injuries fromburning when A set fire to the hut. The Judges held that A was notguilty of murder, but only of an attempt to murder, thinking thatthe act of setting fire to the hut was not done with the intentionof killing, or with the knowledge that death was likely to be causedby it, because he believed that B was already dead. The thirdJudge held that there was no evidence of any change of intention,and that A was guilty of murder.
I prefer the opinion of the dissenting Judge. A shoots B intendingto murder him, and digs a grave and buries the body; but it turnsout that B was not dead when he was buried, and that he was suffo-cated in the grave. I should hold that A murdered him. Thatwould be exactly this case if. we assume that Carlina was not deadwhen she was thrown into the sea, but that the accused believedthat she was dead.The word" act ” in the PenalCode denotes as
well a series of acts as a singleact (section SI),and the striking
with a club, the cutting of the throat, and the throwing into thesea were an “ act ” within the meaning of section 293. They wereall done with the intention of killing. I do not Biink you canseparate them and say, this was done with the intention of stunning,and that with theintentionofkilling, and theother with the
intention of hidingthe body.Ianswer the firstquestion in the
affirmative.
The second question is stated by the presiding Judge thus:
Whether or not a witness who' denies complicity is really anaccomplice is, in my opinion, an issue of fact, and therefore solelywithin the province of the jury. The question for the Court is,whether this view is wrong. ” In my opinion that view is right.
In stating the third question the presiding Judge summarized.certain pieces of evidence which he told the jury would be, if theybelieved that evidence, a sufficient corroboration of Jane’s evidence;and the question is, ‘ ‘ whether this was in law sufficient corroborationof Jane's story, assuming that she was in fact the accomplice of theaccused. ”
1907.
December 11.
Hutohinbon
C.J.
• /. L. R. (1690) 15 Bom. 194.
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It was for the jury to decide whether or not Jane was an aceom- 1907.pliee. If they believed the whole of her story they must of necessity December 11.find that she was not an accomplice; for the case says that “ Jane HTJTOHnJgONstated that she was so afraid and confused that she did not think of C.J.the use to which the knife was to be put, and that, if she had knownthat it was to be applied to Carlina, she would not have brought it.
If, however, they disbelieve that part of her evidence, and believethe rest of it, they might find that she was an accomplice. And inthat case they might have convicted the accused without anycorroboration of her evidence; for section 132 of the EvidenceOrdinance enacts that “ a conviction is not illegal merely becauseit proceeds upon the uncorroborated evidence of an accomplice.
If, however, they should be of opinion that Jane was an accom-plice, and if they further should be of opinion that corroboration ofher evidence was necessary, the corroboration ought to be notmerely as to details and circumstances which might be true if someperson other than the accused were the murderer, but ought to besuch as to connect the accused with the crime. And it is the dutyof the Judge to direct them so. He should then point out to themwhat the corroborative evidence is. When he has done this, it isfor the jury to decide, in accordance with that direction, whether thecorroborative evidence is sufficient. But if there is no such evidence,the Judge ought to tell the jury that there is none.
We have been supplied with a verbatim report of the summingup, taken down by a shorthand writer and verified by him byaffidavit. . And we find there that the direction given to the jury onthis point was as follows:—“ If you are face to face with an accom-plice, it is unsafe to convict, unless his testimony is corroborated;and there ought to be corroboration not merely with regard to theattendant circumstances; that is not enough, and for the obviousreason that the accomplice can tell you all about these, as he wasthere—it is the view of the law that there ought to be some evidencewhich brings the accomplice into personal contact with the accused.
That direction was clearly right. But the question for us is, whetherthere was in fact any corroboration, or whether the Judge oughtnot to have told the jury that there was no such corroboration.
He tells us in the case what the nature of the corroboration was.
It was first the evidence of a witness, Christina. This directlycorroborates Jane’s on some important points, but does not directlyconnect the accused with the affair. The case then proceeds:-;—
“ Jane was further corroborated by a body of evidence whichI placed fully before the jury in dealing with her story as awhole, and which not only bore on the attendant circumstances,but tended to fix its commission on the household of which allthree accused were members on the night of the murder: thepalmar wounds on Carlina, the imprint, the possession of ablood-stained camboy by Simeon, the discovery of rags and
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pieces of paper bearing marks of blood in the Mudalali’s com-pound, the sprinkling of sand by the Mudalali (Loku Nona'shusband) next day along the path by which Carlina’s bodyhad been taken to the sea, the removal on the same day of theclub by Peregrinu on the Mudalali’s orders, and the fact that,although the discovery of Carlina’s body was known by the' Mudalali's household between 7 and 8 a.m. on the day after themurder, no member of that household went to identify thebody or was present at the inquest in the afternoon. ”
Evidence which tended to show that the murder was committed atthe time which Jane suggested and iti the compound of the. house inwhich Jane and all the three accused were at that time, coupledwith the other circumstances to which the learned Judge refers,would, in my opinion, be corroboration of the kind which thereought .to be, if the jury required corroboration. I would accordinglyanswer this question in the affirmative.
The fourth question is, whether, assuming the facts to be as setout in the case, there was evidence sufficient to warrant a jury inconvicting all three of murder. No argument was adressed onthis question. 'It must be answered in the affirmative.
Middleton J.—I agree.
Wendt J.—
I entirely agree with the view of the Chief Justice on the first,second, and fourth questions reserved for our decision. But as to thethird question, I felt at the argument a difficulty in concurring withthe. direction of my brother Wood Renton to the jury. That diffi-culty has, however, been removed on further consideration. Theprisoners’ counsel had admitted that the law was correctly laid downto the jury, as to the value of an accomplice’s evidence, and that thejury were rightly advised, in the event of their believing the witness' Jane to have been an accomplice, not to convict upon her evidenceunless that evidence was confirmed, not only as to the attendantcircumstances of the crime, but as to the identity of the accusedwith the perpetrators of it.
Exception was, however, taken to the learned Judge havingdirected the jury that there was evidence which, if they'believed it,afforded the required corroboration. This point is dealt with inparagraph 7 of the case. Christina’s evidence as to the barking ofdogs from the direction of the Mudalali’s kennel, and as to the lightsand people moving in the Mudalali’s house, tended to show that theoffence was committed in that house at the time spoken to by thewitness Jane. The fact that Christina's husband told her that hehad been sent for by the first prisoner is not evidence that the first,prisoner had in truth sent for Simeon. But then, that the Mudalali’sservant, Peregrinu, was at the moment standing outside tended to
1907.
December 11.
Hutchinson
O.J.
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connect Simeon's departure with the Mudalali'g household. Simeon's 1907.actions on the night in question and thereafter tend in the same DeeetMer 11.direction. Paragraph 7 of the case mentions the following addi- Wkndt J.tional items of evidence as corroborative of Jane’s story, namely;
(a) the palmar wounds on Carlina; (b) the imprint of a hand on thewall; (c) the possession by Simeon of a blood-stained camboy ofCarlina’.s; (d) the discovery of blood-stained rags and paper in theMudalali’s compound; (a), the sprinkling of sand by the Mudalalinext day along the path by which Carlina’s body had beentaken; (/) the removal on the same day of the club by Peregrinu onthe Mudalali’s orders; and (g) the fact that, although the discoveryof Carlina’s body was known by the Mudalali’s household between7 and 8 a.m. on the day after the murder, no member of the house-hold went to identify the body or was present at the inquest in theafternoon. The question for the court is, whether these items ofevidence, together with Christina’s testimony, were in law sufficientcorroboration of Jane’s story, assuming that she was in fact theaccomplice of the accused.
I will first refer to certain authorities which define the nature ofthe corroboration which an accomplice’s evidence requires. It wasadmitted—and no doubt rightly—that there was no difference,upon the point now under consideration, between the Law of Englandand our own Law as embodied in sections 114 and 183 of the Evidence.
Ordinance.
In Rex v. Wilkes and Edwards,1 a case of sheep stealing, BaronAlderson in the course of the trial laid down that, “ there is a greatdifference between confirmations as to the circumstances of thefelony and those which apply to the individuals charged; theformer only prove that the accomplice was present at the commissionof the offence; the latter show that the prisoner was connectedwith it. This distinction ought always to be attended to.” And insumming up he said, “ The confirmation of the accomplice, as. to thecommission of the felony, is really no confirmation at- all, becauseit would be a confirmation as much if the accusation were againstyou and me, as it would be to those prisoners who are now upontheir trial. The confirmation which I always advise juries torequire is a confirmation of the accomplice in some fact which goesto fix the guilt on the particular person charged. You may legallyconvict on the evidence of an accomplice only if you can safelyrely on his testimony, but 1 advise juries never to act on the evidenceof an accomplice unless it is confirmed as to the particular personwho is charged with the offence. With respect to the prisonerEdwards, it is proved that meat of a similar kind was found in hishouse. The meat cannot be icentified, but it,is similar; that is,therefore, some confirmation of the accomplice as to Edwards morethan any one else. It- is also proved that the skin was found in a» (1836) 7 C. <* P. 272.
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181)7. whirley hole; that is no confirmation, because it does not affectDecember ll. tie prisoners more than it affects any other persons. With respectWkkdtJ. to the prisoner WTilkes, it is proved by the witness Meek that theprisoner Wilkes told him nearly the same story as the accomplice hastold you to-day. If you believe that witness, there is confirmationof the accomplice as to the prisoner Wilkes; you will say whether,with these confirmations, you believe the accomplice or not. Ifyou think that this evidence is not sufficiently confirmed as to oneof the prisoners, you will acquit that one; if you think he is con-firmed as to neither, you will acquit both; and. if you think that heis confirmed as to both, you will find both guilty.” •
In R. v. Farler2 Lord Abinger, C.B.,' in summing up told thejury, “ I am strongly inclined to think that you will not considerthe corroboration in this case sufficient. No one can hear the casewithout entertaining a suspicion of the prisoner’s guilt, but therules of law must be applied to all men alike. It is a practice whichdeserves all the reverence of Law, that Judges have uniformly toldjuries that they ought not to pay any respect to the testimony of anaccomplice unless the accomplice is corroborated in some materialcircumstances. Now, in my opinion, that corroboration ought toconsist in some circumstance that affects the identity of the partyaccused. A man who has been guilty of a crime himself willalways be able to relate the facts of the case, and if the confirmationbe only on the truth of that history, without identifying the persons,that is really no corroboration at all. If a man was to break opena house and put a knife to your throat and steal your property, itwould be no corroboration that he had stated all the facts correctly,that he had described how the person did put a knife to thethroat and did steal the property. It would not at'tall tend to showthat the party accused participated in it. Here you find thatthe prisoner and the accomplice are seen together at the houseof tbe landlord. Now look at his evidence. If they were seentogether under circumstances that were extraordinary, and wherethe prisoner was not likely to be unless there were concert, itmight be something. But he lives within one hundred and fiftyyards, and there is nothing extraordinary in his being there; andhe left when they were shutting up the bouse. Therefore it isperfectly natural that he should have been there, and left whenhe did. The single circumstance is that the prisoner was seen ina house which he frequents, where he may be seen once or twicea week, and there the case ends against him. All the rest dependson the evidence of the accomplice. The danger is, that whena man is fixed, and knows that his own guilt is detected, hepurchases immunity by falsely accusing others. I would suggest toyou that the circumstances are too slight to justify you in actingon .this evidence.”
» (1837) 8 C. <t P. 106.
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In the case of Queen v. Stubbs,l in the Court of Criminal Appeal, 1907.Parke B., after mentioning that there had been a difference December 11.of practice among the Judges on the point, said.: “My practice wbmwJ.has always been to tell the jury not to convict the prisoner unlessthe evidence of the accomplice be confirmed, not only as to thecircumstances of the crime, but also as to the person of the prisoner.”
And Cresswell J. added: “ I have always acted upon the view ofthe subject taken by my Brother Parke. You may take it forgranted that, the accomplice was at the committal of the offence, andmay be corroborated as to the facts, but that has no tendency toshow that the parties accused were there.”
In India the same law has been declared by the Courts. Beforethe Evidence Act the subject was exhaustively considered in 1866by the Full Bench of five Judges of the High Court of Calcutta,presided over by Sir Barnes Peacock C.J., in the leading case ofthe Queen v. Elahi Bux,2 where the dicta of the English Judgeswhich I have quoted were adopted. That ruling has since beenconfirmed in numerous cases decided in the several High Courtsafter the passing of the Evidence Act, some of which were cited tous at the Bar.
In Queen v. Mohesh Biswas,3 Phear J., whose authority standsvery high in this Court, of which he was • afterwards Chief Justice,said (at page 20):“ It is well understood now that the evidence
of an accomplice cannot be safely acted upon as against personsaccused by him, excepting when it is corroborated in regard to theparticulars which implicate them.” He then quoted as followsfrom a previous judgment of his own in a case reported in 3 B. L. R.
F. B. R. 2: “ The question always is, in any given case, Is theapprover speaking the truth, not merely when he details the generalfacts, but when he says that the prisoner participated in the trans-action and did that which it was necessary that he should havedone in order for him to become criminally liable to the charge madeagainst him? In saying then that, before the evidence of anaccomplice can safely be depended upon, so far as it affects theprisoner, it ought to be corroborated, I understand that otherevidence from sources independent of the approver should be forth-coming relative to facts which implicate the prisoner. in the same
way as the story of the approver doesand should be such as
to support that portion of the accomplice’s testimony which makesout that the prisoner was present at .the time when the crime wascommitted and participated in the acts of commission.” See alsoQueen Empress v. Bepin Biswas 4 and Queen Empress v. RamSaran. 3
35 L. J. M. C. 16; (1855) Dearsley's C. C. 555.
B. L. R. Supplementary volume F. B. R. page 459 ; 5 W. R. Cr. 80.
2 (1873) 19 W. R. Cr. 16.
(1884) I. L. Jt. 10 Cal. 970.
(1685) J. L. R. .0 All. 806.
( 16 )
1907. As I understand it, the effect of these authorities is that theDwtmber ii. corroboration must consist of some independent evidence whichWmirtii J. points to the prisoner as to the guilty person. It need not be con-clusive against the prisoner, for then it would not be necessary tocall the accomplice at all (R. v. Gallagher ‘). So, where a part of asheep of the size of the stolen one was found in the prisoner’s father’shouse in which the prisoner and his father lived; it was held as suffi-cient corroboration of the accomplice’s evidence, that the prisonerafter committing the theft had carried that part of the sheep intothat house (R- v. Birkell *). See also Rex v. Wilkes and Edwardsalready referred to.
To apply the law to the facts of the present case. My brotherWood Benton has himself correctly summed up the effects of theitems of evidence which I have murked from (a) to (g) as “ tendingto fix the commission of the crime on the household, of which allthree accused were members on the night of the murder.” That isto say, the independent evidence has the effect of narrowing thecircle Within which the offenders have to be sought, down to thelimits of the Mudalnli's household, and I think that is sufficientcorroboration of Jane’s testimony to satisfy the rules of practiceregulating the matter. It is no objection to the corroborativeevidence that it is equally consistent with the Mudalali or Peregrinuhaving been , the guilty party. To require to exclude that possibilityis to require the corroborative proof to be conclusive, which, as Isaid before, is not insisted on. It is sufficient if it. “ tends ” or“ goes ” to fix the culprits’ identity. As the rule is stated in Roscoe’sCriminal Evidence., it should “ lead to the inference, not only thata crime has been committed, but that the prisoner is implicatedin it.”
In my opinion the corroborative evidence specified in the caseresponds to that description, and I would therefore answer the thirdquestion submitted to us also in the affirmative.
Conviction upheld.
* 15 Co* C. C. 291.
= (1839) 8 C. <T P. 732.