Ramaswami Gounden vs King Emperor

Officiating Chief Justice.--The accused Ramasawmi Gounden has been couvicted by the Sessions Judge of Coimbatore of the murder of one

Angayi and sentenced to death. The case for the prosecution briefly is, that after the deceased Angayi had been deserted by her husband some

years ago, she used to work as a servant under the accused; that during that time the accused, who was a widower, kept her that he having since

married again broke off the connection with the deceased; that the latter had been in the habit of dunning the accused for money for expenses,

which she sometimes got; that on or about the 8th June last she again applied for pecuniary help to the accused, who was then in his field; that on

his refusing to comply with her request she would not leave the place but lay down there threatening to disgrace him publicly before his relatives

who had come for the festival fieri about to take place in the adjacent village of Malayampundi; that later on that night the accused struck the

deceased who still persisted in staying in the field with a crowbar on the head, killed her and threw her body into a grainpit 10 or 12 feet deep

some distance off in a field of one of his cousins and covered tip the place.

The case thus set up practically rests on the evidence of Velappa Gounden, a boy of about 16 or 18 who was, at the time of the murder, living

with and under the protection of, the accused and working for him, the accused holding in his hands what little money belonged to the witness.

Velappa speaks to the intimacy which had previously existed between the deceased and the accused, to her demanding money from the accused

on the occasion in question, to the accused''s refusal, to the threat by the woman as aforesaid, to the infliction of the fatal blow by the accused and.

to the concealment of the body in the pit where it was found upon his giving information some days later. Though the witness did not admit that he

assisted the accused in removing the body from the place of murder to the pit and covering it up, yet the Sessions Judge was of opinion that the

witness was most likely to have done so. Having regard to the circumstances in which the witness was working under the accused, it is not

probable that he would have ven ured to disobey if, as is likely, the accused, assuming him to be the murderer, had required him to help in

concealing the body. In dealing with this case it is perhaps better to proceed as if Velappa had assisted the accused in the way supposed, though I

cannot say, I believe he did so assist.

Proceeding on some such assumption, the learned Counsel for the appellant contended that Velappa being an accomplice and his evidence

being uncorroborated in respect of anything tending to connect the accused with the murder, the trial court would, if the case had been tried before

a jury, have been bound to direct the jury to acquit the accused and consequently this Court ought to acquit him; and he more than once invited us

to lay down the law on the point, as if the question had not long since passed the stage of controversy and as if the rules on the point required fresh

enunciation. But the whole subject of accomplice testimony has been over and over considered and expatiated upon. As shown in the leading

Indian case of Elahee Buksh 5 W.R.Cr. 80 in which Sir Barnes Peacock went into the whole matter exhaustively, the Indian law on the subject has

been borrowed from the English law and it is not necessary now more than to refer to Reg. v. Boyes 9 Cox. C.C.p. 32 as containing, so far as I

am aware, the practically final statement of the law in England in no uncertain terms.

The third count in the charge, of which alone Boyes was convicted, was that he gave a bribe to Pougher, a voter at an election. He was tried by

a jury before Martin, B. Pougher was called as to this count and his evidence was to the effect that, on the morning of the election, he went to a

place where the defendant was, saw the defendant and was desired to go into a room and on doing so heard a voice say ''two'' which was

followed by two sovereigns being put into his hands. In the course of the summing up, the learned Judge said (p. 34 in Cox''s report):--""Assume

for the purpose of the present discussion that this man was speaking the truth. Is there any law which prohibits a jury from believing a man who (it

must be assumed for the sake of the argument) spoke the truth, simply because he is not corroborated? I know of none. I know of no rule of law

myself, but there is a rule of practice which has become so hallowed as to be deserving of respect."" After some more observations to the effect

that it was doubtful whether the evidence of other witnesses examined in the case, viz., the remaining voters who said they had received in similar

circumstances the other sums mentioned in the several counts of the indictment, furnished such corroboration as was contemplated by the rule, the

case was left with the jury who returned a verdict of guilty. On a motion for a new trial one of the grounds taken was the absence of corroboration

of Pougher''s testimony and counsel for the defendant contended that, as the witness was uncorroborated, the Judge ought to have directed the

jury not to act upon it. But Cockburn, C.J., observed (p. 35, Cox''s report):--"" If he (Martin, B) told them the practice was generally not to act on

the evidence of an accomplice without being confirmed, but if the evidence made out to their minds that he was speaking the truth, they ought to

believe him, I think his direction was right. I protest against its being the duty of the Judge to direct the jury to acquit because the evidence of an

accomplice is uncorroborated."" Wightman, J., added:--""The law does not of necessity require any corroboration.

In the course of the same argument the Chief Justice after referring to certain passages in Taylor On Evidence bearing on the point as a fair

exposition of the practice, added :--"" We think he ought not to have told the jury to acquit if the witness was uncorroborated"". However a rule nisi

was granted on this ground also, but it was subsequently discharged, the Court ( Wightman, Crompton, Hill nnd Blackburn, JJ., according to the

report in Best & Smith and Cockburn, C.J., Crompton, Hill and Blackburn, JJ., according to that in Cox), in substance holding that the rule that

the evidence of an accomplice requires corroboration, is not a rule of law but a rule of general and usual practice, the application of which is for the

discretion of the Judge by whom the case is tried.

The substance of the law as laid down by the decided cases has been embodied in the Indian Evidence Act, though as Mr. Mayne observes

Singularly enough it is necessary to collect it from different parts of the Act."" They are Section 133, illustration (b) to Section 114 and the

explanation to that illustration, Neither the language of the said illustration (b) nor its position in the Act is perhaps best calculated to put the matter

in an altogether unmistakeable light; for the term ""presumption"" is used in English law so as to include a great variety of incongruous matters as will

be seen from the following quotation which, despite its length, 1 venture to n5ake, from the instructive chapter on ''Presumptions'' in Thayer''s

Preliminary Treatise on Evidence at the common law. The author concludes the chapter by observing:--""It may be remarked that the numberless

propositions figuring in cur cases under the name of presumptions are quite too heterogeneous and non-comparable in kind and quite too loosely

conceived of and expressed to be used or reasoned about without much circumspection. Many of them are grossly ambiguous, true in one sense

and false in any other; some are not really presumptions at all, but only wearing the name; some express merely a natural probability and others, for

the sake of having a definite line, establish a mere policy. Very many of them like the rule about children born in wedlock, lay down a prima facie

rule of the substantive law and others a rule of general reasoning and of procedure founded on convenience or probability or good sense; like the

wide-reaching principle which; ''presumes a usual and ordinary state of things rather than a peculiar and exceptional condition...legality than crime

and virtue and morality rather than the opposite qualities; which demands a construction of evidence as well as of written language ut res magis

valeat quam pereat.'' Some are maxims, others mere inferences of reason, others rules of pleading, others are variously applied; as the presumption

of innocence figures now as a great doctrine of criminal procedure and now aft an ordinary principle in legal reasoning or a mere inference from

common experience or a rule of the law of evidence. Among things so incongruous as these and so beset with ambiguity there is abundant

opportunity for him to stumble and fall who does not pick up his way and walk with caution.

It may be noted that the explanation to illus. (b) of 114 refers to the presumption that an accomplice is unworthy of credit unless he is

corroborated in material particulars, as a maxim and affords, so far as it goes, a. striking illustration of the justice of Professor Thayer''s remarks

and it is evident that some of the misconceptions which attend the question of accomplice testimony are due to the phraseology adopted in treating

of it. If, however, it be remembered, that what is laid down as to the untrust worthiness of uncorroborated accomplice-testimony is not a

presumption in the strictly legitimate sense of the term in the law of evidence--in other words--is not a rule of law which throws upon the party

against whom it works the duty of going forward with the evidence(Thayor''s Preliminary Treatise on Evidence, p. 339) but is a precept of caution,

hallowed indeed by constant practice in charging juries and never to be lost sight of in estimating the weight due to such tainted evidence, there is

little chance of one going astray in the application of what Judges have always significantly distinguished from a rule of law characterising it as a

mere matter of practice. To claim for it greater potency, in the face of Section 133 of the Indian Evidence Act, would be to introduce an artificial

scale of credit; and "" nothing can be more absurd"" to borrow from the language of Lord Denman in King v. Harborne Ad. & Gl. p. 540 than that

there should be any rigid presumptions as to matters of fact where the only question ought to be what evidence is admissible and what inferences

may fairly be drawn from it.

With these remarks on the general question raised by the learned Counsel I proceed to consider whether the suggestion that Velappan was an

accomplice is well-founded. The term ""accomplice"" signifies a guilty associate in crime (see United States v. Neverson Century Digeist Vol. XIV

Col. 1779) or as it is put in another case ""where the witness sustains such a relation to the criminal act that he could be jointly indicted with the

defendant, he is an accomplice"" White v. Common wealth Ibid. Col. 1780. Now there can be no hesitation in coucluding that Velappa had no

manner of concern in the perpetration of the murder itself. His own evidence does not lend the least colour in favour of the view that he had

anything to do with the killing of the deceased. Nor is there otherwise any evidence tending to sueh a supposition, though, as already observed, it is

not improbable that, after the murder was committed, the witness assisted in the removal of the dead body from the place of murder to the pit in

which it was buried. But this being all the complicity that can be attributed to him it seems to me that that could not make his evidence against the

accused that of accomplice; for though the witness might be indictable u/s 201 of the Penal Code for the concealment of the body, while the

accused himself could not be, (see Noor Bux Kasi and Ors. v. The Empress ILR 6 C. 279 and Queen Empress v. Lalli ILR 7 A. 749 yet such

offence on the witness''s part being one perfectly independent of the murder, the witness could not rightly beheld to be either a guilty associate with

the accused in the crime of murder or liable to be indicted with him jointly.

Thus in a prosecution for adultery it appeared that the defendant and O procured two rooms opening into each other and were visited by two

women; and that the defendant and one of the women occupied one of the rooms most of the night and O and the other woman occupied the other

room. It was held that O was not an accomplice of the defendant in that though he might have been guilty of a crime himself, he did not assist

defendant in the crime of adultery. State v. Evan Century Digest Vol. XIV Col. 1780.

Reference may also be made to Baron Martin''s observations in Reg v. Boyes already cited which go to show that the different voters who

were bribed in one and the same place and on one and the same occasion, were not accomplices of each other. The learned Judge said (p. 34,

Cox C.C.):--""This case is distinguishable from that cited by the counsel for the defendant for they were there accessories properly so called and all

the persons were concerned in the same offence in which they came to give evidence against the man. In this particular case it is not so because all

of these are separately gone into and it is not one and the same offence"".

The Judges, however, who discharged the rule, without directly deciding the point, were all of opnion that even if, in a sense, the voters were

accomplices of Pougher, their evidence must be held to furnish sufficient corroboration.

Be this as it may, there is no doubt that the authorities draw a clear distinction which is referred to and illustrated in the ex-planation to the

illustration (1) of Section 114 of the Indian Evidence Act and which is well pointed out in the following observation of Hill, J.; "" In the application of

the rule much depends on the nature of the crime and the extent of the complicity of the witness in it,. If the crime is a very deep one and the

witness so far involved in it as to render him apparently unworthy of credit he ought to be corroborated. On the other hand if the offence be a light

one as in Rex v. Hargrave 5 C. & P. 170 where the nature of the offence and the extent of the complicity could not much shake his credit, it is

otherwise I.B. & P. 170. In Bex v. Hargrave 5 C. & P. 170 referred to here, Patteson, J., ruled that notwithstanding that persons present at and

sanctioning, a prize fight where one of the combatants is killed are guilty of manslaughter as principals in the second degree, yet they are not such

accomplices as to require their evidence to be confirmed if they are called as witnesses against other parties charged with the manslaughter.

Take for instance cases of bribery on the part of public officials not infrequently occurring in this country. Suppose one, where the witness

himself has tempted the public servant with the bribe for some unrighteous end of his own and another, where the facts are as in Criminal Appeals

Nos. 26, 28 and 88 of 1903 where a Police Inspector was held to have extorted money by a threat of falsely implicating the witnesses in a charge

of murder and handcuffing and imprisoning them unless they paid money. It is scarcely necessary to say that it would not he good sense to treat the

two cases alike. The proper application of the rule would be to require corroboration in the one and to dispense with it in the other. This was

clearly implied in the judgment of this Court in the said criminal; appeals when it was observed ""they are more involuntary than voluntary

accomplices and in that light their evidence is not tainted as much as it would otherwise be"".

In this connection it only remains to observe that Velappan''s delay in reporting the perpetration of the murder which he says he saw

committed, to which some reference was made in the argument is quite immaterial and would be so even had ho altogether failed to give

information and thus brought himself u/s 202 of the Penal Code. It would be clear from reasons already stated. that that would not make him an

accomplice.

It follows, therefore, that the rule of practice astocorroboration has no application to the case first, because, Velappa was not an accomplice

within the meaning of the rule and secondly, because even if he were, his complicity as a youthful tool in the hands of one who stood to him in loco

parentis is not such as to make it necessary to require corroboration.

The question then resolves itself into one of the credibility of Velappa''s evidence, to be decided, no doubt, as in the case of any other witness

with reference to the circumstances of the case. Viewing the testimony in this light I agree with the Sessions Judge for much the same reasons as

those given by him, in holding that his evidence is substantially true and may be acted upon. The strongest point that can be made against the

witness is that the disclosure of the crime was not made purely in the interests of public justice and but for the quarrel between the accused and the

witness shortly before the witness gave information to the police, he would not have moved in the matter at all. Considering that the witness is but a

lad, that he had long been under the protection of the accused, that the whole of the money which was all his property was held by the accused, it

was not unnatural, however culpable it may have been, that the witness did not report the crime of his master and guardian until, as he says, he was

goaded on to it by the prisoner''s subsequent ill-treatment of the witness.

The delay in such circumstances does not to my mind argue that the evidence is false.

I would, therefore, confirm the conviction. As to the sentence, however, having regard to the fact that the murder was committed in

consequence of the deceased attempting to blackmail the accused and of her having threatened to disgrace him in the presence of people who

were about to assemble on the occasion of the festival at the place, I would commute the sentence to one of transportation for life.

Boddam, J.

The accused was convicted of murder and sentenced to death subject to the confirmation of that sentence by the High Court. He has appealed

against the conviction and the appeal and the referred trial have been heard at the same time. The case against the accused depends entirely upon

the evidence of the 1st witness, a young man of 18, who says he was present when the accused murdered the deceased (a cooly woman named

Angayi) on Monday, the 8th June and saw him dispose of the body by throwing it into a cholampit, where it was found some 16 days later upon

information given by him 15 days after the murder.

The story told by this witness is that he had been working for the accused for 2 1/2 years before the murder, that the deceased also worked

for the accused as sweeper and that the accused married in Peratasi and as the deceased had become enceinte by him, he, in October preceding

the murder, had sent her away to Kariyampatti, a village in the Dindigul Taluq, whence she was brought back in 4 or 5 days by her brother after

presumably having procured abortion, as he says she came back much thinner. That the accused again sent her away giving her money to

Appayanpatti, but when she had spent that money she returned and used to come frequently to the accused''s garden asking for money and would

remain and not leave unless money was given to her. That on Monday in Vyasi at noon she came to the accused''s garden and asked the accused

for money and threatened to complain to the Pattagar and his relations and disgrace him if he did not pay her. She then went to lie down between

two ricks. In the evening the accused asked the witness for the crowbar and he gave it to him. He and the accused then went to meals. At night the

accused and others made a collection for a festival next day. After the people went to bed the accused came to witness who was at the pen

feeding the dogs. He then went to where the woman was lying down leaving the witness feeding the dogs. The witness heard a cry of Ayyo and

thinking the accused was beating the woman he went and hid in the cholam and saw the accused strike the deceased on the head with a crow-bar

and being afraid he ran back to the pen. The accused called him and he went to him and the accused then asked the witness to help him to put the

dead body into the cholampit about 70 yards from where the corpse was, which was then empty and open. The witness says he refused and the

accused dragged her alone by the legs to the cholam pit and threw her in. After that the witness went and slept at the pen and the accused after

closing the cholam pit went to his house. About cock-crow next morning the accused came to where the witness was lying and threatened that if he

disclosed the matter to any one he would not pay him Rs. 40 due to him. and would deal with him as with Angayi. Ten days later the witness sold a

goat for Rs. 4-12-0 and asked the accused for Rs. 5 to buy a cow when the accused refused and threatened to take the Rs. 4-12-0 from him

saying he was not in need of any cow-calf. Afterwards the accused finding the witness had not gone to the pen, beat him and threatened to throw

him into the cholampit. After this, next moruing the witness ran away, met the brother of the deceased woman, told him what had happened to

Angayi and on his way home the witness met the Station House Officer in a bandy and told him and took him and some villagers to the cholampit.

When the stone over the cholampit was lifted, there was a bad smell and the Station House Officer left a guard. This was on the 23rd June. Next

day, in the evening, the Sub-Magistrate, Hospital Assistant and others arrived and the body was taken out of the pit and identified. The witness

says he did not tell before because he was afraid.

The only evidence given in addition to that of this witness is that of the deceased''s brother and sister, a goldsmith whose evidence the Sessions

Judge entirely disbelieves, the man in whose house she lived at Kariyampatti, the police and the Village Murisif and the post-mortem certificate.

The only evidence given by the brother is that he heard the deceased was in the accused''s keeping and that he brought her back from

Kariyampatti to the accused''s house. When he brought her back, she appeared to be pregnant and that she must have had a miscarriage after she

came back to the accused--in this respect contradicting the 1st witness.

The sister says, ''I was told by people generally and by deceased that she was living with accused for 2 or 3 years''.

The 5th witness merely proves that the deceased came to Kariyampatti and stayed 3 or 4 days.

The Station House Officer proves that he received information from the 1st witness at noon on the 23rd when he met him accidentally as he

was driving in a bandy about 1 1/2 miles from the accused''s house--and the Village Munsif proves that on the 23rd June the Station House Officer

sent a Toti to him.

The pont-mortem certificate shews that death was due to fracture of the skull, there being a fracture 2 inches long through which it was easy to

pass a probe into the brain. Death must have occurred at least 2 weeks before.

From the above, it will be seen that the only corroboratiou of any part of the story of the 1st witness is that the brother and sister had heard

that the deceased had been in the accused''s keeping; that the body was found in the cholam pit and that death was caused by fracture of the skull

which might have been caused by a blow from a crowbar.

The cholam pit in which the body was found was common to the accused and his brothers and was not actually on the accused''s land though

adjacent to it.

On behalf of the accused it is urged that to all intents and purposes, though possibly not in strict law, the first witness is an accomplice--and the

Sessions Judge has held that he was an accomplice--and that therefore unless his evidence be corroborated by independent testimony proving not

only that the deceased came by her death in the manner described, but also directly connecting the accused with the murder--the accused ought

not to be convicted; and secondly, that even if the accused is not an accomplice and the necessity for such corroboration is not in practice

obligatory, on evidence such as has been given in this case, no jury would be justified in finding the accused guilty. So far as the connection of the

accused with the crime is concerned there is no evidence at all except that of the 1st witness who has admittedly a cause of quarrel with the

accused and who has never said anything about the crime or the accused''s connection with it until he had reason to wish to injure the accused and

therefore his evidence is so tainted with suspicion that it should not be relied upon to convict any one of so serious a crime.

The law in England with regard to the necessity for corroborating the evidence of an accomplice is that corroboration of accomplices is not

necessary in strict law (R. v. Attwood 2 Leach 464; but it is the general practice to require corroboration and for the prosecution (in order to

induce the jury to credit his testimony) to give other evidence confirmatory of at least some of the leading circumstances of his story from which the

jury may be able to presume that he has told the truth as to the rest and for the Judge to tell the jury not to act upon the uncorroborated testimony

of an accomplice, R. v. Rudd 1 Cowp. 331 (R. v. Memier (1894) 2 Q.B. 415. It has been said that if an accomplice be confirmed as to the

particulars of the story, he does not require confirmation as to the persons charged, but this doctrine has been rejected in later cases inasmuch as

the confirmation as to the circumstances proves only that the accomplice was participient in the felony, not that the particular party charged was his

confederate, R. v. Webb 6 C. & P. 595 R. v. Wilkins 7 C. & p. 272 R. v. Birkett R & R. 732 R. v. Stubbs Dears 555 and where upon an

indictment against principals and accessories, the case against the principal was proved by an accomplice who was confirmed as to the accessories

but not as to the principal the jury were directed to acquit the prisoners, It. v. Wells M. & M. 326 R. v. Moores 7 C. & p. 270.

The law is practically the same in this country. In Queen Empress v. Maganlal and Motilal ILR 14 Bom. 115 a Full Bench case, the law is

stated as follows:--""By the law both of India and England the "" evidence of an accomplice is admissible and a conviction is not "" illegal because it

proceeds upon the uncorroborated testimony of an accomplice (Section 133, Indian Evidence Act)."" But the presumption allowed by illustration

(b) of Section 144 of the Evidence Act that an accomplice is unworthy of credit unless he is corroborated in material particulars has become a rule

of practice of almost universal application. Judges now in their charges usually tell a jury that under ordinary circumstances it is unsafe to convict on

such evidence without the substantial corroboration of independent evidence. A judge who combines the functions of Judge and jury is equally

bound to scrutinise accomplice evidence with great care and to consider whether there is any corroborating evidence when the main evidence is of

an accomplice character.

Assuming for the moment in this case that the first witness is, as the Session Judge considers, an accomplice, there is, as 1 have said before,

absolutely no evidence to corroborate his story except that the body was found in the cholam pit and that the brother and sister were informed that

the accused had kept the deceased. How does that corroborate the accused''s story? The woman is murdered, there is no question as to that; the

question is how, when and by whom. It is assumed that she was murdered by a blow with a crowbar as her skull was fractured, but what

corroboration is there of the first witness''s story that a crowbar was in fact the instrument used or that it was used by the accused? It is quite as

possible that the 1st witness was the murderer as the accused and he has a very good reason for attributing the murder to the accused against

whom he has a grievance. Would it in these circumstances be right, in the absence of any independent evidence, to connect the accused with the

crime, to find him guilty and hang him merely because the 1st witness says so. There is clearly no independent evidence to connect the accused

with the crime. The fact that he had at one time kept the deceased does not suggest a motive--and even if it did, a motive alone is not sufficient to

constitute corroborative evidence of the facts. If therefore the 1st witness is in law an accomplice, I am clearly of opinion that it would be the duty

of the Judge to direct the jury that there was not sufficient evidence before them upon which they would be justified in finding the accused guilty.

Now is the 1st witness an accomplice or should his evidence be treated as tins evidence of an accomplice?

According to his own account he was cognizant of the crime and concealed it for 15 days and did not divulge it until he had a cause of quarrel

with the accused and then he accuses him of it not by going straight to the police but first when he accidentally met the brother of the deceased and

then to the police when he accidentally met the Station House Officer. He was in any case an accomplice in concealing the body and his evidence

is to that extent at all events the evidence of an accomplice. In Ishan, Chandra Chandra and two others v. Queen Empress ILR 21 C. 328 the case

against the accused rested mainly on the testimony of an informer who admitted that, after becoming cognizant of the crime, he kept quiet about it

for 6 days and it was urged on behalf of the accused that even if not an accomplice his evidence ought not to be acted upon except to the extent to

which it was corroborated by independent testimony. In dealing with this question in their judgment at p. 336 the Judges say :--""we agree with the

learned Sessions "" Judge that it would be unsafe in this case to act upon the unsup-""ported evidence of Gooroo Pershad. We are not prepared to

say ""he is an accomplice. He may have been one, but it is impossible "" to say in this case that he helped in the commission of the offence. "" He was

undoubtedly cognizant of it and omitted to disclose it ""for 6 days. From any point of view we do not think that his testimony is such as to justify a

conviction except where he is ""corroborated.

These observations exactly apply to the evidence of the 1st witness in this case--and in Alimuddin v. Queen Empress ILR 23 C. 361 the

Judges say,"" We cannot but regard the evidence of these two wit-"" nesses as no better than that of accomplices. At any rate they took "" such a

part in this transaction as to ''make it most unsafe for the "" Court to rely upon their evidence unless corroborated in some "" material respect in

convicting the accused.

In my opinion even if the 1st witness was not an accomplice, having regard to the fact that he was cognisant of the crime for 15 days without

disclosing it and that he had a cause of quarrel with the accused at the time when he did disclose it, it would be most unsafe to act upon his

evidence unless it was corroborated in some material particular connecting the accused with the crime and as there is no such evidence, I think the

accused ought to be acquitted.

Even apart from the necessity for corroboration, I do not think that in this case the accused ought to be convicted upon the evidence given, I

do not think any on� could say with confidence that the guilt of the accused is brought home to him or that there B is not a reasonable doubt as

to his guilt.

I think no one could rely upon the evidence of the 1st witness even though it did not require corroboration.

I would allow the appeal and set aside the conviction and sentence and acquit the accused.