Dhaju Mandal and Others vs Emperor

James, J.—During the latter part of 1930 and during 1931 there were a great many burglaries in Dhanbad and its neighbourhood. On the evening of 19th April 1932, Gondu Mallik was arrested with two companions in suspicious circumstances near the Dhanbad Masonic Lodge; and ultimately Gondu Mallik was bound down for a year u/s 109, Criminal P.C. In the meantime he had made a statement to the police, giving an account of his complicity in a large number of burglaries, which led to the arrest of 10 men who were prosecuted in due course u/s 110, Criminal P.C.

The order against six of them was made absolute, though only for one year by the trying Magistrate; and their appeal was dismissed by the District Magistrate of Manbhum. Three of these men, Dhaju Mondal, Bhusan Mandal and Peary Singh, have moved the High Court in revision. The substantial grounds on which the application was admitted appear to have been that sufficient attention had not been given by the Courts below to the question of whether the evidence of the accomplice was corroborated in material particulars, and that the case against each of the accused had not been considered by the Courts separately and in sufficient detail.

The principal witness for the prosecution was Gondu Mallik. Mr. A.C. Ray, on behalf of the petitioners does not of course suggest that to act on the uncorroborated evidence of an accomplice is illegal; but he points out that it is only in exceptional cases that the evidence of an accomplice can be accepted without material corroboration; and he argues that this particular case is so far removed from those cases in which the uncorroborated evidence of an accomplice might fairly be accepted, that there is special reason for requiring material corroboration affecting each of the persons named, since the accomplice Gondu Mallik had particular grounds for implicating at least three of the persons accused in this case, Dhaju Mondal and his brother Bhusan with the Chaukidar Aklu Dome.

In April 1928, when Gondu Mallik was prosecuted in a house-breaking case, the Chaukidar Aklu Dome identified him with two of his brothers as persons whom he recognized while escaping from the scene of the house-breaking; while Dhaju Mondal testified that he had come to the place on hearing the alarm and had there been immediately informed that certain of the accused including Gondu''s brother Behari, had committed the theft, with the violence which accompanied it. Indeed in that case the whole prosecution was attributed by the accused to the malicious contrivance of Dhaju Mondal. It certainly appears that in this case the ordinary rule of prudence should be followed, by which material corroboration of the evidence of Gondu Mallik should be required.

5.The learned advocate for the petitioners correctly points out that this confirmation should be as to some matter which goes to connect the person accused with the transactions and not merely to the extent of confirming the accomplice as to the matters connected with himself only. The evidence which goes to show that burglaries were actually committed as described by Gondu Mallik, does corroborate him to this extent, that it indicates that he is speaking of what he knows when he connects himself with the transactions, but it is not corroboration of the kind ordinarily required by the rule, which is so generally enforced, that it may almost be regarded as a rule of law, particularly when the evidence of the accomplice is accepted against persons regarding whom he has ground for feeling a grudge. The evidence necessary for corroboration is independent testimony which affects the accused by connecting or tending to connect him with the crime.

As Lord Reading said, delivering the judgment of the Court of Criminal Appeal in Baskerville''s case (1916) 2 KB 658, it must be evidence which implicates, that is which confirms in some material particulars not only the evidence that the crime has been committed but also that the person named by the accomplice committed it. The corroboration need not be direct evidence; it is sufficient if it is merely circumstantial evidence of his connexion with the crime; but it must be evidence which tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused.

It appears from the judgments of the Courts below that there was some evidence of this nature, evidence of recovery of stolen property from the house of one of the accused, (which the trial Court did not consider to be sufficiently proved though the appellate Court treated it as corroborative evidence) some evidence of association before particular crimes were committed. There is also evidence given by a brother of the accomplice supporting his story that Gondu had been sheltering in Dhoju''s house. This evidence implicates Akloo Chaukidar and Dhaju; but in view of what had happened in the earlier house-breaking case, its source night well have been regarded as tainted as the evidence of the accomplice himself. I do not say that it must necessarily be disbelieved on that account; but the learned trying Magistrate in his judgment ought to have shown that he realized why this evidence should be suspect, and to have explained why it was accepted. For the rest of the evidence of association more details are given in the judgments, which afford no means of estimating how far this evidence is to be regarded as of value in confirmation of the direct evidence of the accomplice.

There is evidence to the effect that after these accused persons were arrested there was a marked decrease in crime; but the learned advocate for the petitioners points out that this may well have been the effect of the arrest of Gondu Mallik and his two associates on the 19th April. There is also some account in the judgment of the learned Magistrate of independent evidence of Gondu''s statement where he describes how local knowledge was acquired for the purpose of committing the crimes. This part of his statement may be true; but it does not appear that this confirmation goes to show that any of the accused persons took part in the crimes. So far therefore as the conviction is based on the evidence of Gondu Mallik it is necessary for the trying Magistrate to consider exactly how far he is corroborated in material particulars affecting each individual person among those convicted.

Apart from the direct evidence of the accomplice there is a mass of evidence regarding the general rupute of the persons accused. This has not been considered in any detail by the trying Magistrate nor has he considered whether this evidence is to be regarded as in any way rebutted by the evidence of repute which has been given on behalf of the defence. There is no discussion of how this evidence affects each individual among the accused such as is required in a judgment u/s 110, Criminal P.C. Only three of the petitioners have moved the High Court; but as the case must be remanded the judgment of the lower appellate Court in respect of all the appellants before him may be set aside.

The case is remanded to the trying Magistrate for disposal in the light of the remarks which have been made above. He must discuss in detail what confirmation of the evidence of the accomplice is found against each individual accused, and discuss exactly what may be the evidence concerning each of the accused persons to justify conviction, after rehearing arguments, if arguments should be offered.