Rex v Singh and Another (C.A. 35/1934.) [1937] EACA 110 (1 January 1937)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before LUCIE-SMITH, Ag. C. J. (Kenya), WEBB, J. (Kenya), and $\mathbf{G}$ GAMBLE, Ag. J. (Kenya).

## REX (Respondent) (Original Prosecutor)

## THAKAR SINGH s/o KAHIR SINGH (Appellant)

(Original Accused No. 2).

## C. A. $35/1934$ .

Accomplice's evidence-material or any corroboration-Joinder of charges—Coining—Objections to informations—Errors cmissions or irregularities—Penal Code of Kenya sec. 338 (3) (c) and (d) Criminal Procedure Code sections 132 (d), 234, 259 (1) and 367.

- Held (5-3-34).—That, save in exceptional cases, a conviction cannot. be based upon the uncorroborated evidence of an accomplice. The exception arises only when the circumstances of the case and the relation of the accomplice to the offences committed appear to justify the court in acting upon his evidence. This was not such an exceptional case and corroboration was necessary. Cor-<br>roboration existed in the discovery in appellant's motor car of a<br>number of spurious coins, and in his continued association with<br>a co-accused, and in another followed. - Held also.—That, if the articles in appellant's possession had been of an equivocal nature, e.g. machine capable of being used for some innocent purpose, the admission of evidence of coining by Bisher Singh might have prejudiced the court; but, here, the articles found were articles susceptible of no innocent employment, and once the court had found that appellant had them in his possession a conviction, in absence of proof of lawful authority or excuse, was inevitable.

Trivedi for appellant.

Solicitor General (Bruce) for Crown.

Trivedi.—Misjoinder of charges not the same transaction. If Bishen Singh tried separately appellant would not have been prejudiced by the mass of evidence against Bishen Singh. $R$ . $v$ . Thompson (1914) 2 K. B. 99. Subramaniya Iyer v. King Emperor 28 Indian Appeals (1901) 257; K. Pillai v. Emperor 26 Madras 125; R. v. Jones 13 Criminal Appeal R. 86; Alimaddin Narkar v. Emperor 52 Calcutta 253; Choragudi Venkatadri v. Emperor 33 Madras 502; Indian Evidence Act sections 133 and 114 (Illust.) (b) Corroboration of accomplice; R. $v$ . Bakewille 12 Criminal Appeal R. 81; R. v. Tate (1908) 2 K. B. 680; R. v. Jenkins 1 Cox 177; R. v. Everest 1909 Criminal Appeal R. 1930; Emperor v. Jamaldi Fakir 51 Calcutta 160; Queen Empress v. Maganlal 14 Bombay 115; Kiehingeri and Others v. Rex 3 E. A. L. R.1.

Corroboration of Bir Singh was only as regards Bishen Singh. He then commented on certain aspects of the evidence. Too much doubt to warrant conviction. Woodroffe and Ameer Ali's Law of Evidence in British India 8th Ed. 114 and 115.

SOLICITOR-GENERAL: Bir Singh's evidence as regards Bishen Singh and Thakar Singh is quite separate. Criminal Procedure Code Section 259 (1), 262, 132 (d). Section 367 does apply. Even if no corroboration, this is one of the exceptional cases. Archbold 28th Edition, 1116, Queen Empress v. Maganlal, 14 Bombay 115 Queen Empress v. Chagan Dayaram, 14 Bombay 331, Deo Nandan Parshad v. Emperor, 33 Calcutta 649. Court will not interfere with finding of trial. Judge as regards Bir Singh's evidence. There is corroboration.

Trivedi replied.—R. v. Wilkes and Edwards 7 C. & P. 272.

JUDGMENT.—The appellant, with two other persons, Ram Singh and Bishen Singh, was tried on an Information containing four counts: the first count charged them with making or beginning to make counterfeit coins, contrary to section 337 of the Penal Code; in the second count they were charged with having in their custody or possession stamps and moulds adapted to make the resemblance of both or either sides of a coin, contrary to section 338 (3) (c); in the third count they were charged with having in their possession tools, instruments or machines which were adapted and intended to be used for marking coin round the edges with marks or figures apparently resembling those on the edges of any coin, contrary to section 338 (3) $(d)$ , and in the fourth count with having in their possession a press for coinage or certain tools, instruments or machines which were adapted for cutting round blanks out of gold, silver or other metal, contrary to section $338$ (3) (c).

Bishen Singh was found guilty on all the counts. Ram Singh was found guilty on count 4 only, and the appellant on count 2 only. The appellant was sentenced to two years' imprisonment with hard labour.

The appellant now appeals from the conviction and sentence.

The principal evidence against the appellant was that of one Bir Singh, who stated that the appellant came to his house at Ruiru and deposited with him certain articles, namely five stamps of the obverse or head of a shilling, six stamps of the reverse. or tail, of a shilling, and two bronze stamps.

These are Exhibits 31, 32, 33 and 34, and were found in Bir Singh's house by Mr. Stewart on the 28th December, 1933.

A charge is pending against Bir Singh in respect of his possession of these articles (and others found on his premises) and the first two grounds of appeal, which may conveniently be dealt with together, are that, as Bir Singh was an accomplice the judge erred in accepting his evidence, and in holding that there was material or any corroboration of it as against the appellant.

Now, in the first place, an accomplice is not incompetent as a witness and the judge was clearly right in accepting his evidence.

As regards corroboration a number of cases have been cited, but it seems necessary to refer only to the decision of the Court of Appeal for Eastern Africa in the case of Haji Mohammed Saleh (Cr. App. 108/1933) which settles the law applicable to this country to the effect that, save in exceptional cases, a conviction cannot be based upon the uncorroborated evidence of an accomplice. It is clear from that case and from the case of Kichingeri and others (3 E. A. L. R.1) that the exception arises and the evidence of an accomplice without corroboration is sufficient, not in cases which are usually difficult of proof by other means, nor upon the trial of certain particular offences. but only when the circumstances of the case and the relation of the accomplice to the offence committed appear to justify the court in acting upon his evidence. We are of opinion that this is not such a case, and that, in accordance with the rule laid down in numerous cases, corroboration implicating the appellant in the offence of which he was convicted is necessary. In the present case though the learned judge did not tell the assessors that they could act upon the evidence of Bir Singh. if they believed him, even without corroboration, he took care to warn them, and to warn himself, that corroboration should be looked for, and we are of opinion that there was such evidence tending to show, not only that the offence had been committed, but that the appelant was implicated in it, in the discovery in the appellant's motor car of a number of spurious coins which could have been made with the very dies found in Bir Singh's Louse, in the discrepancy between his evidence and that of Ram Singh with regard to the finding of the keys of that car, and in his continued association with Ram Singh at Messrs. Hartz and Bell's and at Kisumu.

We are therefore of opinion that the first two grounds of appeal fail, although, having regard to the decision in the case of Haji Mohammed Saleh, the learned judge went too far when he told the assessors that they could act on the evidence of Bir Singh, if they believed it, even without corroboration.

The next ground of appeal is that the trial of the appellant on the second count, upon which he was convicted, was contrary to law by reason of misjoinder of charges and by reason of the lack of any preliminary inquiry. Mr. Trivedi puts his objection in this way. He says that owing to the fact that the appellant was tried with Bishen Singh on three other counts, upon which he was in fact acquitted, evidence was given which was relevant

to the charges against Bishen Singh but was irrelevant to the one charge upon which the appellant was convicted, and that the court must inevitably have been prejudiced thereby. And he says that this was not a case in which more persons than one could be said to have committed different offences "in the same transaction" (Criminal Procedure Code section 132 (d)).

Without deciding whether the offence of which the appellant was convicted cannot be regarded as part of the same transaction. of coining and making preparations for coining, of which Bishen Singh was convicted, there appear to be two answers to this objection.

Section 259 (1) provides that "Every objection to any information for any formal defect on the face thereof shall be taken immediately after the information has been read over to the accused person and not later", and no objection was taken to the information in this case.

Further by section 367: "No finding sentence or order... shall be reversed or altered on appeal on account of any error, omission or irregularity... unless such error, etc., has in fact occasioned a failure of justice."

Now, if the articles for the possession of which the appellant was convicted had been of an equivocal nature, if they had been, for example, blank discs of metal or a press or machine capable of being used for some perfectly innocent purpose, it is true that the admission of ... evidence of coining by Bishen Singh, might well have . . . prejudiced the court against the appellant by suggesting that the apparently harmless articles in his possession were in fact being used for an unlawful purpose. But here the articles in respect of which the appellant was convicted were dies bearing the impression of current coins, articles which are susceptible of no innocent employment, and once the court found that the appellant had them in his . . . possession a conviction, in the absence of proof by him of lawful authority or excuse, was inevitable.

As to the lack of special preliminary inquiry in respect of the second count we are of opinion that there is no substance in this objection: it is open to the Attorney General to frame such information as is warranted by the facts disclosed by the depositions or by further evidence of which due notice has been given under section 234.

We are therefore of opinion that this appeal fails and the conviction and sentence are affirmed. $\mathcal{L}_{\mathcal{A}}$