[1948] EACA 63

## APPELLATE CRIMINAL

$\mathcal{L}(\mathcal{L})\subset \mathcal{L}$

## Before SIR BARCLAY NIHILL, C. J.

## REX, Resondent (Original Prosecutor)

## KHETSHI MEGHJI, Appellant (Original Accused) Criminal Appeal No. 146 of 1948

Defence Regulations—The Defence (Possession of Industrial Alcohol) Regulations, 1945, regulation 3—Indian Evidence Act, section 133—Conviction on uncorroborated evidence of accomplice—Whether justified by exceptional circumstances.

The appellant was convicted of being in possession of industrial alcohol without a permit issued by a District Commissioner contrary to regulation 3 of the Defence (Possession of Industrial Alcohol) Regulations, 1945. He was the owner of a motor-bus and, at the relevant time in charge of it when it was stopped in transit by the Police and a tin of methylated spirits was found on the roof. One Mohamed Salim, an employee of the appellant was charged with him, pleaded guilty and was convicted and sentenced. Called as a witness for the prosecution he testified that he carried the tin of methylated spirit to the roof of the motor-bus and placed it there at the request of the appellant who had just purchased it. His evidence was not corroborated, but the Magistrate, whilst holding him to be an accomplice found there were exceptional circumstances for believing his evidence, namely, that he had been sentenced and had no motive for giving false testimony, and that the appellant admitted still being on good terms with him.

Held (5-4-48).—(1) Where an accomplice turns King's evidence after conviction rather than before it the taint of untrustworthiness must still remain.

(2) An accused's admission of still being on good terms with an accomplice who has testified against him is insufficient to supply corroboration by conduct.

Appeal allowed.

Rex v. Haji Mahomed Saleh Mohamed (1933) K. L. R. Vol. XV p. 109 referred to; Rex v. Kichingeri and others 3 E. A. L. R. p. 1 distinguished.

Trivedi for the Appellant.

Holland, Crown Counsel, for the Crown.

JUDGMENT.—The short point for consideration in this appeal is whether there were exceptional circumstances in the case which justified the learned Magistrate in convicting the appellant on the uncorroborated evidence of an accomplice. In a careful judgment in which he reviewed the authorities the learned Magistrate fully cautioned himself on the danger attaching to the evidence of an accomplice but came to the conclusion that there were exceptional circumstances in the relation of the accomplice to the offence committed which justified him in convicting the appellant on the accomplice's evidence alone. At the close of the prosecution case it would appear that the learned Magistrate was of the opinion that some corroboration was supplied by the fact the appellant was in charge of the motor-bus at the time the tin of industrial alcohol was found on the roof of it but he did not rely on this as a reason for his decision and rightly so because the corroboration required to establish the appellant's guilt was evidence to show not only that he knew that the tin was on the roof of his bus but that he knew what was in it. The basis of the learned Magistrate's decision to convict seems to have been $(a)$ that because the accomplice had been sentenced and sent to prison he had no motive for testifying falsely; $(b)$ that the conduct of the accused in stating that he was still on good terms with his employee (the accomplice) supplied an indication that the accomplice had told the truth. As regards (a) no authority has been cited

v

to me nor can I find one in which differentiation is made between the accomplice who turns King's evidence after conviction rather than before it; the taint of untrustworthiness must remain even although the hope of shifting guilt on to the shoulders of another may no longer be there. At all events I see no indication either in the judgment in the Haji Mohamed Saleh Mohamed case, 1933 (K. L. R., Vol. XV, p. 109) or in the earlier Kichingeri case (3 E. A. L. R., p. 1) that the Courts in East Africa have held or would hold that the prior conviction of an accomplice is in itself a special or exceptional circumstance. It is interesting to observe that the exceptional circumstance in the Kichingeri case was that because the accomplices bona fide thought they had performed a legal and meritorious act in putting a suspected witch doctor to death the Court concluded that their evidence was not tainted in the same manner as that of an ordinary accomplice in crime because they were not shown to be persons of bad or doubtful character. In the present case no similar exceptional circumstance exists for the accomplice was convicted on his own plea; he therefore knew that he was a law breaker.

Nor do I think that the appellant's statement, elicited from him in cross examination, that he is still on good terms with his employee—Mohamed Salim and that he has not yet made up his mind whether to dismiss him is sufficient to supply corroboration by conduct.

This case is not an easy one for an Appellate Court to determine because the learned Magistrate after a proper caution has so clearly believed the evidence of the accomplice and has given also not unconvincing reasons for so doing. On the balance of the Indian decisions relating to section 133 of the Indian Evidence Act I think it might be urged that this Court should not quash the conviction. However in England there has been an increasing tendency to insist that the evidence of an accomplice must be corroborated and this tendency is fully reflected in the East African decisions quoted *supra*. The weakness of the learned Magistrate's judgment is, I consider, that he has put forward something as an exceptional circumstance in order to take this case out of the general rule which on examination proves to be no exceptional circumstance at all. Mohamed Salim was convicted and sent to prison in default of non-payment of his fine nearly a month before the hearing of the charge against the appellant was proceeded with. Who can say what motives or expectations may not have been in the mind of this accomplice who so obligingly filled the gaps in the prosecution case against the appellant?

I have, therefore, come to the conclusion that this appeal is entitled to succeed and I quash the conviction and direct that the fine if paid be remitted.

I have not stated the facts of this case in detail as they are fully set out in the learned Magistrate's judgment.