Rex v Popat (Criminal Appeal No. 19 of 1947) [1947] EACA 74 (1 January 1947)

## APPELLATE CRIMINAL

## Before HORNE and BOURKE, JJ.

## REX, Respondent

### $\nu$ .

# SHAH HIRJI POPAT, Appellant

Criminal Appeal No. 19 of 1947

Criminal law—Evidence—Accomplices—Corroboration—Books of accomplices— Sections 34 and 157, Indian Evidence Act.

The appellant was convicted of offences under the Price Control Regulations. The evidence against him was that of two accomplices the learned magistrate finding corroboration of their evidence in contemporaneous entries made by one of them in a personal book and by the other in his firm's cash book.

The appellant appealed.

Held $(13-3-47)$ .—(1) That where corroboration of the evidence of a witness is required before a conviction can be properly had, the corroboration which should be looked for is as<br>laid down in *Baskerville's case*, the "corroboration" referred to in S. 157 of the Indian Evidence Act being inadequate for that purpose.

(2) That contemporaneous entries made by accomplices in their own books do not constitute corroboration of their evidence within the rule in *Baskerville's case*.

#### Appeal allowed.

Cases referred to: R. v. Baskerville (1916) 2 K. B. 658; Muthiu Muthukumaraswami Pilative Cases 150 of 2 N. B. 036; Matinita Matinikumaraswami $(1510)$ 2 N. B. 036; Matinita Matinikumaraswami $P$ ilative King Emperor 35 Mad. 397; R. v. Leonard 10 E. A. C. A. 113; R. v. Njeroge s/o Njoki 6 E. A. C. A. 130; R. v

### Shapley (A. B. Patel with him) for the Appellant.

Todd, Crown Counsel for the Crown.

JUDGMENT.—The appellant was convicted by the Court of the Resident Magistrate at Mombasa on four counts with selling goods at prices in excess of the controlled price to a total sum of Sh. 53/90 and on a fifth count with issuing a false invoice in respect of the same goods. The questions arising upon this appeal are whether the evidence held by the learned magistrate to afford corroboration of the testimony of the accomplices Ismail and Jamal is admissible and can properly be said to amount to corroboration in law. Ismail was a partner in the firm of Gulabkhan Bros. of Kinango and Jamal, a clerk in the employ of the same firm. On the 15th January, 1945, they went, according to their story, which was accepted by the lower Court, to the appellant's shop at Mombasa and purchased the goods for an amount exceeding the controlled price by Sh. 53/90. The invoice (Ex. 2) given by the appellant showed the prices at the controlled rates and it was signed by Ismail. Shortly afterwards Ismail paid in cash to the appellant Sh. 53/90 as the amount charged for the goods in excess of the controlled price, he then entered this further payment in a book called "Top money" book which he kept as a private and personal record of such illegal transactions and which he did not regard as one of his regular business books. The entry gave the name of the appellant and details of the extra charges paid. Jamal also made an entry in the cash book of the firm, which reads "Sh. 53/90 to<br>Shah Hirji Popat. Top money account cash paid". The appellant in evidence said that he sold the goods for no larger sum than that set out in the invoice; his books disclosed nothing incriminating in relation to this transaction. The entry referred to made by Ismail in his "Top money" book and the entry by Jamal in the cash book of Gulabkhan Bros. were held by the learned magistrate, after directing himself upon the law relating to corroboration of accomplices as laid down in *Baskerville's case* (1916), 2 K. B. 658, to constitute the necessary corroboration of the accomplice testimony. The said books were produced in evidence as part of the prosecution case by Mr. Hulford, a Price Inspector, who took possession of them when he visited the premises of Gulabkhan Bros, on the 28th August, 1945; he had found the "Top money" book, which is an ordinary exercise book, inside the firm's ledger. In evidence, Ismail said that had he been asked by the Price Control Authorities to produce his books he would not, and as can readily be understood, have produced the "Top money" book.

Now even if the entries in the "Top money" book and the cash book can be said to have been properly admitted as evidence under section 34 of the Indian Evidence Act, it seems plain, quite apart from the considerations to which we will come, that they in themselves cannot amount to independent primary evidence. In the commentary by Woodroffe on section 34 (Law of Evidence, 9th Edition, p. 377) it is said, with reference to authority—"books of accounts when not used to charge a person with liability (civil or criminal) may be used as independent evidence requiring no corroboration but when sought to be so used they must be corroborated by other substantive evidence independent of them". However, it has been argued for the Crown before this Court that these previous entries by the accomplices amount to evidence legally corroborative of the testimony of the accomplices by virtue of section 157 of the Indian Evidence Act; reference has been made in support to the Indian case of Muthiu Muthukumaraswami Pillai v. King Emperor, 35 Mad. 397. In that case it was held by a majority of the Judges constituting the Court that under section 157 previous statement of an accomplice can legally amount to corroboration of the evidence given by him at the trial; but it was said by one of such Judges, Benson, J.: "In the great majority of cases it would, no doubt, be found to be merely the repetition of tainted evidence affording no ground for believing it to be true, and, therefore, adding nothing whatever to its value". Sundara Ayyar, J., a dissenting Judge, would only go so far as this: "It is possible to hold that it (the previous statement of accomplice) is admissible for proving his consistency and as disproving a suggestion that it was manade by him. But I am inclined to think that it would


for this limited purpose of proving his consistency". weba bin Ngimbwa, 10 E. A. C. A. 113, 114, it was r corroboration of the evidence of a girl of eleven affirmed. It was held, following the Madras case contemporaneous statements by the child could ier evidence at the trial. The vital question, stated whether the girl in her evidence described what she which she had been taught. We quote from the value of contemporaneous statements, rendered orroboration of the testimony of the witness must ccording to the circumstances of the case and the it; they may amount to no more than evidence of d corroboration even of the evidence of an accomstà (the child witness) was not".

$ki$ , 6 E. A. C. A. 130, it was held, quoting the headnote: "corroborate' is used in section 157 of the Indian t must be attached to it, yet where it would be ce without such evidence being corroborated by aterial particulars and involving the accused, the ection 157 would not be adequate". In that case the unsworn evidence of a child of five years as o Mkutihu, 8 E. A. C. A. 27, where it was held that child was admissible evidence under section 157, ortant as showing the child to be *consistent*; it is g reference to such evidence as being admissible consistency, the Court expressly dealt with the g to the necessary corroboration in its ordinary

Court of Appeal for Eastern Africa, and consistently followed by the Courts of this country, that the corroboration of the evidence of an accomplice which should be looked for is as laid down in R. v. Baskerville (1916), 2 K. B. 658 (see R. v. Manilal Ishwerlal Purohit, 9 E. A. C. A. 58). An accomplice cannot properly be held to have corroborated his own testimony by his previous statement, if admissible, and whether written or oral, any more than such testimony could properly be held to be corroborated by the evidence of another accomplice or witness whose evidence also requires corroboration. These previous book entries written contemporaneously by the two accomplices Jamal and Ismail do not amount to *independent* evidence affecting the appellant by tending to connect him with the crime. We are of opinion that the reference quoted to accomplice evidence in R. v. Leonard, alias Rwakweba bin Ngimba (supra) may be regarded as obiter merely for nothing in that case turned upon accomplice evidence. We hold ourselves to be bound not only by the rule in *Baskerville's case*, but also by what was laid down in regard to section 157 in R. v. Njeroge s/o Njoki (supra), which does not appear to have been considered in R. v. Leonard, alias Rwakweba bin Ngimba. On the assumption that these book entries were admissible as evidence, and that question it is not necessary to decide, we have no hesitation in coming to the conclusion that they do not in law afford the necessary corroboration of the testimony of the accomplices and the learned magistrate misdirected himself in holding to the contrary. It is not suggested that there is any other evidence providing corroboration nor is there any such evidence. The appeal must be allowed and the conviction quashed.