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26. As to this, I am of opinion that the proposition that it would be open to the Co art to convict en the uncorroborated testimony of an accomplice in the sense and in the terms in which it is stated in the judgment of the majority of the Judges is correct and does not amount to an error in law. Section 114 of the Indian Evidence Act authorises the Court to make certain presumptions of fact. Nine well known maxims are there given as illustrations of the section, the second of which is: "The Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars." They are all presumptions which may naturally arise, bat the Legislature by the use of the word "may" instead of "shall", both in the body of the section and in the illustrations, shows that the Court is not compelled to raise them but is to consider whether, in all the circumstances of the particular case, they should be raised. To make this clearer still, there is the additional provision: "But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it", and then, as to each of these maxims, instances are given of facts in which the maxim is inapplicable, and, in the case of the maxim now in question, there are two such instances. Now, if Section 114 stood alone, I do not see how it could be said that it was not open to the Judges of fact in the particular case, whether Judge or Jury, to apply or not to apply any of these maxims, having regard to all the facts of the case before them; and this is expressly stated by the draftsman, the late Sir Fitzjames Stephen, in his Indian Evidence Act, at page 174: "Finally it declares in Section 114 that the Court may in all cases whatever draw from the facts before it whatever inferences it thinks just." But as regards the particular maxim, Section 114 does not stand alone, because Section 133 provides that "a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice." If the law was so laid down in the Act, it was, I have no doubt, because it was the English Law as understood at the time and had been the law ever since the decision of Atwood's case 1 Lecah. C.C. 646 by the twelve Judges at the close of the 18th century and because the draftsman and the Legislature were not prepared with anything I o substitute for it. They were not, of course, unaware of the well-established practice of the Courts in England and India according to which, to use the language of Sir Fitzjames Stepken in Article 121 of his Digest of the Law of Evidence, published in 1876, "when the only proof against a person charged with a criminal offence is the evidence of an accomplice, uncorroborated in any material particular, it is the duty of the Judge to warn the Jury that it is unsafe to convict any person upon such evidence, though they have a legal right to do so," The adoption of the practice in England may be traced in Reg. v. Wells (1829) 1 M. and M. 326; Rex. v. Noakes (1832) 6 C. & P. 326; Rex v. Addis (1884) 6 C. & P. 38; R. v. Webb (1834) 6 C. & P. 595; Rex v. Neal (1835) 7 G. & P. 168; Rex v. Moores (1836) 7 C & P. 270 and Reg. v. Farler (1837) 8 C. & P. 103 where it is said to deserve all the reverence of law. In these case?, the Judges told the Jury they ought not to convict on the evidence of accomplices, whether one or more, unless1 it was confirmed or corroborated not only as regards the offence generally but as regards the particular accused, but the decision was invariably left to the Jury; and in Rex. v. Mullins (1848) 7 St. Tr. (N.S.) 1110 : 3 Cox C.C. 526 Maule, J, pointed this out and observed that these directions to the Jury were not directions on points of law which the Jury were bound to adopt but observations respecting facts to assist the Jury in their endeavour to judge of the facts. Then in Reg. v. Stubbs Dears. C.C. 555 : 25 L.J.M.C. 16 : 1 Jar. (N.S.) 1115 : 4 W.R. 85 : 7 Cox. C.C. 43 the Court of Crown Cases Reserved held that the omission of the Court to warn the Jury that they ought not to convict one of the accused, as to whom the evidence of the accomplices was not corroborated, was only a departure from the usual practice, which was again stated by the Judges, and did not involve any question of law on which the Court of Crown Cases Reserved could review the case under 11 and 12 Vict., C. 78. The law was laid down precisely in the same way by the Court of Queen's Bench in Reg. v. Boyes 9 Cox. C.C. 32 : 1 B. and S. 311 : 2 F. and F. 157 : 30 L.J.Q.B. 301 : 7 Jur. (N.S.) 1158 : 5 L.T. 147 : 9 W.R. 690 and by Lord Coleridge, L.C.J., sitting with Brett, M.R., and Grove, J., at the Central Criminal Court for the trial of Gallagher Reg. v. Gallagher 15 Cox. C.C. 291 and by Cave and Collins, JJ., in In re Meunier (1894) 2 Q.B. 415 : 63 L.J.M.C. 198 : 10 R. 400 : 71 L.T. 403 : 42 W.R. 637 : 18 Cox. C.C. 15. Under the larger powers now given by the Criminal Appeal Act, 1907, the Court may now treat a failure to comply with the well established practice of directing Juries as to how the evidence of accomplices is to be regarded as having involved a miscarriage of justice within the meaning of Section 4, Rex v. Tate (1908) 2 K.B. 630 : 77 L.J.K.B. 1043 : 99 L.T. 620 : 72 J.P. 391 but this in no way affects the authority of the above decisions; nor are they affected by the fact stated by Sir Alfred Wills in his "Circumstantial Evidence," at page 365, that in one case Baron Bramwell and in another he himself withdrew the case from the Jury when there was no corroboration and directed an. acquittal. In India, at any rate, such a course would be a direction at variance with the provisions of the Indian Evidence Act.

32. On the other hand, as against this view, there is the fact that the terms of the prohibition in Section 148 of the Code of 1861 and now in Section 25 of the Indian Evidence Act are perfectly general; and, as observed by Benson, J., a construction which renders statements, which are inadmissible against the persons making them, admissible against other persons is not one to be favoured. It is also perhaps worthy of note that confessions to the Police which come under Section 148 were forbidden to be recorded by Section 147, whereas there was no such prohibition as regards confessions made by persons in Police custody which come under Section 149. The question then is whether, giving due weight to all these considerations, as I have endeavoured to do, there is sufficient justification to require the Court to put a restrictive construction upon the section or to justify it in so doing. I have felt great doubt upon this point especially in view of the difference of opinion among the members of the Court; and, in these circumstances, I think the safer, as it is certainly the simpler, course is to read the words of the section in their natural meaning without putting any restrictive interpretation upon them, and so reading them I hold that these confessions were inadmissible even as corroborative evidence under Section 25 of the Indian Evidence Act. I am, however, of opinion that the rejection of the statements made by the two approvers to the Inspector cannot affect the result of the trial. It has been held in a long catena of Indian cases that, in reviewing a case under Clause 26 of the Letters Patent, it is the duty of the Court, when it finds there has been a mis-reception of evidence, to apply the provisions of Section 167 of the Indian Evidenc3 Act, and not to reverse the conviction if shall appear to the Court that "independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision," the decision here being that of the original tribunal. Hitherto this jurisdiction under Clause 26 has only been exercised in Jury cases where, of course, no reasons were given for the verdict, and the Court of review was perforce bound to go into the evidence itself for the purpose of seeing whether or not the remaining evidence justified the decision of the Jury. In the present case under Section 11(3) of the Criminal Law Amendment Act, 1908, the decision is that of the majority of the Court, and the reasons for that decision have been given in a most careful and elaborate judgment. Now, discarding the previous statements of the two approvers to the Inspector, we find that, within a few days after these statements, the approvers made statements to the same effect before a Magistrate, Mr. Cox, as to which no question of inadmissibility arises and the learned Judges have observed that, even if the statements to the Inspector are discarded and only those recorded by Mr. Cox are considered, they find it impossible to accept the defence theory that the approvers' story was concocted or tutored, and, from a perusal of the judgment, it is perfectly plain that discording the statements to the Inspector, they accepted the evidence of the two approvers as generally truthful, and acted upon it as they were entitled to do. Here I may observe that the learned Judges had before them (he fact, which was properly in evidence, that before their statements to Mr. Cox, the approvers had made still earlier statements to the Inspector at a time and under circumstances which in their opinion negatived the concoction at that stage of such a story as (hey afterwards told to Mr. Cox and in the witness-box; and they were, I think, justified, in view of all the circumstances, in rejecting the suggestion of subsequent concoction in the interval between the two sets of statements, unless supported by a reference to the earlier statements which were available to the defence under the proviso to Section 162 of the Code of Criminal Procedure, and would not, as we now know, have supported it. If, then, the Court had rejected the statements made to the Inspector and still convicted the accused, it would have been impossible forustosay that here was not sufficient evidence to justify their decision; and it appears to me to be equally impossible for us to say so, when in effect the learned Judges tell us that though considering the evidence admissible, they did not consider it necessary to base their decision upon it and were prepared to convict without it.

80. I wish to allude very briefly to the rulings in some English cases decided after the date of the judgment of Sir Barnes Peacock in Elahee Buhsh's case 5 W.R. 80 Cr. : B.L.R. Sup. Vol. 459 as the English decisions prior to that judgment are exhaustively dealt with there. In Reg. v. Cramp 14 Cox C.C. 390 Denman, J., observes that there is no doubt that the evidence of an accomplice requires corroboration. In Reg. v. Gallagher 15 Cox. C.C. 291 the Lord Chief Justice, Coleridge, in his direction to the Jury, observed, "If the Jury upon the evidence of the approver himself was perfectly satisfied that he was speaking the truth, there was no reason in point of law why on his evidence they should not act and find the accused guilty, but the danger of acting upon the uncorroborated statement of an approver was obvious and the wisdom of requiring that some corroborative evidence should be given before such statements are acted upon was perfectly apparent to any intelligent mind. The law was as be had stated and the practice was always to require corroboration." In In re Meunier (1894) 2 Q.B. 415 : 63 L.J.M.C. 198 : 10 R. 400 : 71 L.T. 403 : 42 W.R. 637 : 18 Cox. C.C. 15, where the question was whether the evidence of an accomplice if uncorroborated was sufficient to justify a committal for surrender to Prance, Cave, J., held that it was not the law that a prisoner must necessarily be acquitted in the absence of corroborative evidence and there was no power in the Court to withdraw a case from the Jury on that ground. In Rex v. Tote (1908) 2 K.B. 630 : 77 L.J.K.B. 1043 : 99 L.T. 620 : 72 J.P. 391 Lord Alverstone delivering the judgment of the Court of Criminal Appeal, while pointing out that there was no definite rule of law that a person cannot be convicted upon the uncorroborated evidence of an accomplice as stated by Cave, J., in In re Meunier (1894) 2 Q.B. 415 : 63 L.J.M.C. 198 : 10 R. 400 : 71 L.T. 403 : 42 W.R. 637 : 18 Cox. C.C. 15, observed that he ought to have added assuming that the Jury was cautioned in accordance with the ordinary practice and then cites the fallowing passage from Taylor on Evidence, 10th Edition, page 688, as containing a correct exposition of the law: "Judges,...in their discretion, generally advise a Jury not to convict a prisoner upon the testimony of an accomplice alone; and although the adoption of this practice will not be enforced by a Court of review, its omission will, in most cases, be deemed a neglect of duty on the part of a Judge. Considering, too, the respect which is always paid by the Jury to such advice from the Bench, it may be regarded as the settled course of practice not to convict a prisoner, excepting under very special circumstances." He also cites with approval a passage from Russel on Crimes, 6oh Edition, Volume III, page 646: "it may be observed that the practice in question has obtained so much sanction from legal authority that it 'deserves all the reverence of law,' and a deviation from it in any particular case would be justly considered of questionable propriety."

85. This brings me to the second question propounded in the certificate. It is in these words:

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

86. The answer to be deduced from the above discussion of the law is that, as a general rule, the previous statements of an accomplice do not legally amount to such corroboration as is required to rebut the presumption as to the unreliability of an accomplice's evidence, but there may be cases in which the circumstances in which the previous statement was made, by precluding the possibility of the accused having been falsely named therein by the approver, would lend corroborative force to the accomplice's evidence. The only direct decision on the point is a case Reg. v. Malapa bin Kapana 11 B.H.C.R. 196 where the rule is stated in unqualified terms and in Vyasa Rao v. Emperor (1911) 1 M.W.N. 327 : 21 M.L.J. 283 : 10 M.L.T. 84 : 9 Ind. Cas. 897 : 112 Cr. L.J. 150 in which the question arose before Ayling, J., and myself, whether evidence of a co-accomplice was sufficient corroboration within the meaning of the law, I expressed my agreement with what is laid down in the Bombay case. While I still adopt generally what is laid down in Reg. v. Malapa bin Kapana 11 B.H.C.R. 196 it seems to me, on further consideration, that, to be quite accurate, the rule must be seated subject to the qualification, which I have suggested, and I may point out that neither the learned Judges of the Bombay High Court nor I were called upon in the cases mentioned above to consider whether the rule was subject to any qualification. Having regard to the fact that the previous statement of an accomplice is admissible in evidence, as is assumed in the second ground of the certificate, and to the nature of the cases cited by the Legislature, which shows that corroboration may be furnished by previous statements of accomplices made in certain circumstances, it would be difficult to hold that the rule does not admit of exceptions. The previous statements mainly relied on by the majority of the Special Bench are those made by the approvers, Arurrmgam and Somasundaram, respectively to the. Police, the first, two days, and the second, three days, after the murder of Mr. Ashe and also to some extent on the statements made by them a few days afterwards to Mr. Cox, who made a local inquiry in the casa. As regards the statements to the Police officer, I am of opinion that they were wrongly admitted in evidence on the ground next mentioned in the certificate and it would not, therefore, be necessary to consider how far, if admissible, they could be taken as amounting to corroboration of the approver's evidence in Court. As regards the statements made to Mr. Cox, no objection can be taken to their admissibility but, so far as at present advised, I fail to see how it can be held to afford corroborative evidence within the meaning of the rule. They were made long after the last meeting at which the criminal oath was taken and several days after the approvers had been in the hands of the Police in connection with the murder of Mr. Ashe. The learned Judges, who formed the majority f the Special Court, do not find that these approvers did not make the statements to Mr. Cox in the hope of being pardoned, nor do they say that the circumstances in which the statements were made precluded the possibility of their acting in concert. On the other hand, it is found by Mr. Justice Sankaran Nair that the evidence points to the probability of their so acting. No doubt he learned Chief Justice and Mr. Justice Styling say that some of the accused allege hat they were strangers to Arumugam and Somasundaram and, therefore, their names should not have been mentioned by the approvers in less they participated in the conspiracy. That allegation has been found by the learned Judges to be untrue, but they do not find that in fact these accused came to be a known to the approvers only by reason of their being members of the criminal conspiracy: on the other hand, it is found in their judgment that there was an association called the Bharata Matha Association which, according to them, though of a seditious tendency, was not actually a criminal association and some of the accused at least were members of that association. The fact that the Police could not have concocted the earlier or the later statements of the approvers does not meet the difficulty. I am not prepared to hold upon the fasts, so far as they appear in the judgments of the Special Bench, that the statements to Mr. Cox would be such corroborative evidence as to minimise the danger of acting upon the testimony of the approvers. I may also observe that most of the considerations which I have indicated as applicable to the statements made to the Magistrate are also applicable to those made to the Police officer four days previously.