Mango v Queen (Criminal Appeal No. 211 of 1955) [1955] EACA 280 (1 January 1955)

## APPELLATE CRIMINAL

Before SIR KENNETH O'CONNOR, C. J. and DE LESTANG, J.

# JAMES RANDIKI MANGO, Appellant

# THE QUEEN, Respondent

## Criminal Appeal No. 211 of 1955

Criminal law-Evidence-Penal Code, section 93 (1)-Official Corruption-Indian Evidence Act, 1872, sections 114 and 133—Evidence of offerer of bribe— Whether an accomplice—Offer made under form of pressure difficult to resist -Degree of corroboration-Necessity for proper direction by trial court-Course adopted by Appellate Court where no failure in justice.

Complaints were made by two Africans, separately, that an African, a sergeant in the Kenya Police Reserve, Nairobi, had demanded money under threat of arresting the complainants and, in consequence, each had, individually and at different times, given him money. The sergeant was tried on four counts of official corruption contrary to section 93 (1) of the Penal Code. The sole witness to each pair of counts was one of the African complainants. In neither case was there corroboration. The issue of whether the complainants should be regarded as accomplices and, if so, whether there was corroboration for their evidence was not raised before the court of first instance nor did the resident magistrate direct himself as to the danger of convicting upon the uncorroborated testimony of an accomplice. The defence rested principally on wrong identity. The resident magistrate found the accused had been sufficiently identified and he convicted. The convict appealed on the ground of wrong identification; but at the hearing of the appeal the Appellate Court gave him leave to argue an additional ground, namely, whether the givers of the money to the appellant were accomplices or not.

Held $(23-9-55)$ —(1) The giver of a bribe is, at least, technically an accomplice in the offence of receiving it, unless he acts under the threat of death or grievous bodily harm within section 17 of the Criminal Procedure Code.

(2) Where the giver of the bribe is not a willing participant in the offence but acts under a form of pressure which it would take some firmness to resist, the rule of corroboration does not apply strictly and a very slight degree of corroboration is sufficient. Corroboration is without doubt desirable but, if there is none, it is very desirable that the Court of first instance should have been directed or directed itself as to the danger of convicting without corroboration.

(3) The complainants, although they had given bribes, had not been willing participants and had acted under a form of pressure which would have taken some firmness to resist and although they were technically accomplices and although the magistrate<br>had failed to recognize this and to direct himself as to the danger of convicting on their evidence without corroboration and although there was in fact no corroboration, as there had been no failure of justice, the Appellate Court would not upset the convictions.

#### Appeal dismissed.

Cases cited: Davies v. Director of Public Prosecutions, (1954) 1 A. E. R. 507 H. L.;<br>Queen Empress v. Chagan Dagaram, I. L. R. 14 Bom. 331; Queen Empress v. Maganlal<br>and Motilal, I. L. R. 14 Bom. 115; Mirza s/o Karma v. R., (1907 I. L. R. 59 Bom. 495; Srinivas Mall Bairoliya v. Emperor, (1947) 34 A. I. R. 135 (P. C.).

Authority cited: Sarkar: Evidence, 9th edn., p. 1074, 1076; Monir: Principles of the Law of Evidence, 3rd edn., p. 1083; Ratanlal: Law of Crimes, 18th edn., p. 388.

# Argwings-Khodek for appellant.

### Havers, Crown Counsel, for the Crown.

JUDGMENT.—The appellant was convicted on four charges of corruption and sentenced to two years' imprisonment with hard labour on each charge, the sentences to run concurrently. The particulars of the charges are as follows:

## First Count—

James Mango. On the 1st day of February, 1955, at about 7.30 p.m., in Bahati within the Nairobi Extra-Provincial District, being a person employed in the public service, namely a sergeant in the Kenya Police Reserve, corruptly asked for Sh. 60 from one Kimani Kathunje on account of not arresting the said Kimani Kathunje for the offence of curfew breaking.

#### Second Count—

James Mango. On the 1st day of February, 1955, at about 7.30 p.m. in Bahati within the Nairobi Extra-Provincial District, being a person employed in the public service namely a sergeant in the Kenya Police Reserve, corruptly received Sh. 30 in cash from one Kimani Kathunje on account of not arresting the said Kimani Kathunje for the offence of curfew breaking.

#### Third Count—

James Mango. On 13th February, 1955, at about 7 p.m. in Bahati within the Nairobi Extra-Provincial District, being a person employed in the public service namely a sergeant in the Kenya Police Reserve, corruptly asked for Sh. 60 from one Mugi Gitukunya, on account of not arresting the said Mugi Gitukunya for the offence of curfew breaking.

## Fourth Count—

James Mango. On 13th February, 1955, at about 7 p.m. in Bahati within the Nairobi Extra-Provincial District, being employed in the public service, namely a sergeant in the Kenya Police Reserve corruptly received Sh. 60 in cash from one Mugi Gitukunya, on account of not arresting the said. Mugi Gitukunya for the offence of curfew breaking.

The evidence relating to counts 1 and 2 was that at about $7.30$ p.m. on 1st February, 1955, P. W. 1, Kimani s/o Kathunge, went to the lavatory near his house in Bahati Location. He had a lighted lamp with him. On returning from the lavatory, the appellant stopped him and arrested him for alleged curfew breaking. The appellant was wearing a police great-coat and a K. P. R. hat. Kimani denied that he had broken curfew, but the appellant said that he would release him if he paid Sh. 60. Kimani said he only had Sh. 30. The appellant asked for the Sh. 30 and Kimani paid it to him; the appellant then went away. Kimani did not report the incident until 15th February.

One Kimani s/o Karu, who shared the house with P. W. 1, confirmed the latter's evidence that he left the house with the lamp and testified that he heard P. W. 1 talking to someone outside the house who was wearing a police greatcoat and a K. P. R. hat. He heard P. W. 1 tell him that he had not got Sh. 60, but only Sh. $30.$

As regards counts 3 and 4, the evidence of P. W.3 Mugi Gitukunya, was that on 13th February, 1955, at about 6.30 p.m. he was standing outside the door of his room in Bahati Location when the appellant came up to him on a bicycle. The appellant asked the witness to watch his bicycle and left. He returned at about 7.30 p.m., and finding the witness by the door of his house still watching the bicycle, arrested him for curfew breaking. He then told the witness to produce Sh. 60 or he would take him to the police station. The witness said he had not got any money, although he had in fact Sh. 40 on him. He asked leave to go and get money from his brother. He borrowed Sh. 5 from his brother and rejoined the appellant. The appellant and the witness then went to the witness's house where the witness gave the appellant Sh. 6, promising to give the balance of Sh. 54 on the following day. On the following day the witness reported the incident to his employer but did not see the appellant. He saw the appellant on 15th February, and it was arranged that he should call at the witness's house that evening to collect the Sh. 54. He did not, however, turn up, but came on 20th February. When the witness informed the appellant that he did not have the money, the appellant arrested him and took him to the police station. Gatumi Gitikunya confirmed the witness's story that he gave him Sh. 5 on 13th February at about 7.30 p.m.

Neither the evidence of Kimani s/o Karu nor that of Gatumi s/o Gitikunya amounts in law to corroboration of the evidence of the first and third prosecution witnesses respectively, since neither implicates the appellant in any way. The position is, therefore, that the appellant was convicted on counts 1 and 2 on the uncorroborated evidence of P. W.1, and on counts 2 and 3 on the uncorroborated evidence of P. W. 3. Both witnesses had, however, ample opportunity of recognizing the appellant, and there is in our view no merit in any of the grounds of appeal set out in the original memorandum of appeal. We granted leave, however, to the appellant to argue an additional ground of appeal which does raise an important question, namely, whether the givers of the money $(P. W. 1 and P. W. 3)$ to the appellant were accomplices or not.

The term "accomplice" is not defined in the Indian Evidence Act, but it is clear that it has the same meaning as it has in England. In Davies v. Director of Public Prosecutions, (1954) 1 A. E. R., 507, A. L., Lord Simonds, L. C., at page 513 attempted to define the term "accomplice" and said this:-

"There is in the authorities no formal definition of the term 'accomplice' and your Lordships are forced to deduce a meaning for the word from the cases in which $X$ , $Y$ and $Z$ have been held to be, or held liable to be treated as, accomplices. On the cases it would appear that the following persons, if called as witnesses for the prosecution, have been treated as falling within the category: $-$

(i) On any view, persons who are *particeps criminis* in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding. and abetting (in the case of misdemeanours).

This is surely the natural and primary meaning of the term 'acomplice'...."

Applying this definition, there can be no doubt at all that a person who voluntarily offers a bribe, which is accepted, is an accomplice in the offence of receiving a bribe. It was indeed so held in Queen Empress v. Chagan Dagaram, I. L. R. 14 Bom. 331. Moreover, the motive which prompts the giving of the bribe is immaterial, and it was held by the Bombay High Court in Queen Empress v. Maganlal and Motilal, I. L. R. 14 Bom. 115, that witnesses who, in order to avoid pecuniary injury or personal molestation, had offered and given bribes to a

public servant were abettors of the offence of taking an illegal gratification and that their evidence should be treated as that of accomplices: no demand or pressure less than the fear of instant death being enough to remove them from that category. In Mirza s/o Karma v. R., (1907) 2 E. A. L. R. 81, a policeman arrested two person, and on the way to the police station asked them for money. They gave him money and were released. This Court, following Queen Empress v. Maganlal and Motilal (supra), held that the givers of the bribe were accomplices, and that no demand or pressure less than fear of instant death would be sufficient to excuse the briber.

An extract from the judgment is as follows: -

"The question was exhaustively argued in Queen Empress v. Maganlal and Motilal, and this case now contains the latest ruling upon the subject. This case was a prosecution of 'classers' in the Revenue Survey Department for taking bribes, and the evidence of the bribers was accepted by the magistrate as of innocent persons and he convicted. On appeal the convictions were quashed. The witnesses made out that they paid on solicitation or threats proceeding from the classers. It was held that these men were accomplices, and that their evidence must be treated as evidence of accomplices, and that no demand or pressure less than that given in section 94 of the Penal Code, i.e. fear of instant death, would be sufficient to excuse the briber. This decision we are bound to follow, and hold that on this charge of bribery the witnesses must be considered as accomplices, and their story requires material corroboration of which in this case there is none."

It will be observed that the learned Judges who decided *Mirza's case* in 1907 were under the impression that *Queen Empress v. Maganlal and Motilal (supra)*, contained the latest ruling on the subject and they said that they were bound to follow that decision. Maganlal's case was not, however, in 1907, the latest ruling on the subject. Maganlal's case was decided in 1890. In 1900 the High Court in Calcutta decided the case of Akhoy Kumar Chukerbutty v. Jagat<br>Chander Chuckerbutty, (1900) I. L. R. 27 Cal. 925. In that case, the accused, a sub-inspector of police had arrested and wrongfully confined one Jagat Chander and extorted from him Rs. 200 under a threat that he, the sub-inspector, would not release Jagat Chander until the money was paid. The money was paid to the sub-inspector by one Panchu who lent Jagat Chander the money for the purpose. It was held that Panchu was not an accomplice. The material passage in the judgment is: $-$

"It is contended before us that the money was an illegal gratification, that, therefore, the offence, if any, committed is under section 213 of the Penal Code, rather than extortion under section 384. In one sense the offence may be so regarded, and in that case Panchu might be regarded as an accomplice, but on the evidence we think that it is sufficiently shown that the money was not voluntarily given, and it was not given in consideration of the sub-inspector not proceeding against Jagat Chander for the purpose of bringing him to legal punishment. It was given to obtain his release from police custody in which he was detained on no reasonable or sufficient ground, and it was extorted, because the sub-inspector refused to release him, as he was bound to do, unless he were paid that money. A person paying such money under such circumstances cannot be regarded as an accomplice of the sub-inspector in such misconduct. There are, therefore, no sufficient grounds for holding that the sessions judge on appeal has not properly dealt with the evidence of Panchu as not that of an accomplice."

This was a decision regarding the paying agent Panchu and not the principal Jagat Chander; but Panchu knew the purpose for which the money was paid and the reasoning would apply a fortiori to Jagat Chander since it was to him and not to Panchu that the extortion was applied by the sub-inspector,

Deo Nandan Pershad v. Emperor, (1906) I. L. R. 33 Cal. 649, was a case in which a police officer demanded a bribe from a complainant before he would enquire into a case. The bribe was given. It was held that, although, the complainant was an accomplice; having regard to the fact that it was not he who offered the bribe, but the police officer who demanded it, a much slighter degree of corroboration was required of the complainant's testimony than would otherwise have been necessary. It will be observed that in this case, as in Maganlal's case, the bribe-giver was not in custody and, although the bribe was demanded by the police officer, it was not extorted under pressure of arrest or continuance in custody but was given for the purpose of furthering the giver's own interests.

In the case of Ramaswami Gounden v. Emperor, (1904) I. L. R. 27 Madras 271 at pages 278, 279, the following dictum occurs: -

"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 the cases of Narayanaswami Naidu, Aswartha Reddi and Krishnaswami v. Emperor 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 caless they paid money. It is scarcely necessary to say that it would not be 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."

In Papa Kamalkhan v. R., (1935) I. L. R. 59 Bom. 495, Beaumont, C. J., said at page $495:$ —

"In my opinion, the rule of the court which requires corroboration of the evidence of an accomplice as against each accused, if it applies at all, applies with very little force to a case like the present, in which the accused is charged with extorting a bribe from other persons. The objections which usually arise to the evidence of an accomplice do not really apply where the alleged accomplice, that is the person who pays the bribe, is not a willing participant in the offence, but is really a victim of that offence."

The dictum of Beaumont, C. J., in Papa Kamalkhan's case was expressly approved by the Privy Council in Srinivas Mall Bairoliya v. Emperor, (1947) 34 A. I. R. 135 P. C. In that case Lord du Parcq in delivering the judgment of the Board said: -

"Finally it was urged that reliance had been placed on the uncorroborated evidence of accomplices. Section 133, Evidence Act, expressly provides that 'an accomplice shall be a competent witness against an accused person' and that 'a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice'. No doubt the evidence of accomplices ought as a rule to be regarded with suspicion. The degree of suspicion which will attach to it must however vary according to the extent and nature of the complicity; sometimes, as was said by Sir John Beaumont, C. J., in 59 Bom. 486, the accomplice is not 'a willing participant in the offence but a victim of it'. There is ground for saying that the accomplices in this case acted under a form of pressure which it would have required some firmness to resist."

The appeal was dismissed. Though it is not expressly so stated in Srinivas Mall Bairoliya's case, we think it must be taken that the court of first instance had not directed itself as to the danger of acting on the uncorroborated evidence of accomplices. Sarkar in his work on the Evidence Act, 9th edn. says at page 1074, "When a person under threat of death or other form of pressure which he is unable to resist commits a crime along with others, he is not a willing participant in it but a victim of it. Such a person can hardly be called an accomplice". And, at page 1076, he says, "Where bribe is extorted and giver is not a willing participant but a victim, the rule of corroboration does not strictly apply". The authorities cited for this proposition are *Papa Kamalkhan's case* and *Srinivas* Mall Bairoliya's case (supra).

Monir in his Principles of the Law of Evidence, 3rd edn., at page 1983 says. "One who voluntarily offers a bribe, or actually pays the money under instructions from another, knowing it to be bribe money is an accomplice. But a person from whom a bribe is extorted or forced ... is not an accomplice; and, therefore, a much slighter degree of corroboration will be required in such a case".

Rattanlal in his Law of Crimes, 18th edn. at p. 388 says: -

"In the case of bribe-giving under threats whether the evidence of the bribe-giver accomplice is safe to be acted upon depends on circumstances. In the first place, one must be satisfied that the story of the threats is itself reliable and not the outcome of conspiracy to involve a strict officer in trouble or is motivated by some other personal malice. If on being so satisfied the court considers the sole testimony of the accomplice as safe to be acted upon, a conviction can be based thereon. In such a case even if corroboration is considered desirable, a less strict standard of corroborative evidence may be accepted."

We think that the true position is that the giver of a bribe is technically an accomplice in the offence of receiving it (unless he acts under the threat of death or grievous bodily harm within section 17 of the Criminal Procedure Code); but that where he is not a willing participant in the offence and acts under a form of pressure which it would take some firmness to resist the rule of corroboration does not apply strictly. Corroboration is, no doubt, desirable, and. if there is none, it is very desirable that the court of first instance should have been directed or have directed itself as to the danger of convicting without corroboration. But, where the giver of the bribe is not a willing participant and has acted under a form of pressure which it would take some firmness to resist, a very slight degree of corroboration is sufficient and, even if there is no corroboration and the magistrate has not given himself a proper direction, an appellate court will not necessarily upset a conviction if it appears that no failure of justice has in fact occurred. Srinivas Mall Bairoliya v. Emperor (supra).

In this case we are satisfied that no failure of justice has occurred.

The appeal is dismissed.