1932 Present : Jayewardene A.J.

IYER v. HENDRICK APPU.

378-P. C. Colombo, 37,410.

Evidence-Co-accused implicating another-Corroboration required from independent source-Previous statement of co-accused insufficient.

Where an accused person gives evidence implicating a co-accused, the evidence requisite for the corroboration of such testimony must proceed from an independent source.

Previous statements made by such co-accused are insufficient for such corroboration.

APPEAL from a conviction by the Police Magistrate of Colombo.

H. V. Perera, for accused-appellant.

August 26, 1932. JAYEWARDENE A.J.-

In this case, two accused, Hendrick Appu and Velu, were charged with committing theft of half a Jarrah sleeper of the value of Rs. 5, belonging to the Ceylon Government Railway, and also with dishonestly retaining the stolen property. The learned Magistrate has convicted the first accused and acquitted the second accused holding that the second was only the agent of the first and is in an inferior position.

The facts in this case seem to be that Police Sergeant Iyer was on a visit to Maligawatta for an inquiry, and on his return at about 9.10 P.M., he met the two accused at a Railway tunnel near Maligawatta. The second accused was carrying a Railway sleeper and the first accused was following close behind. He arrested them both. The first accused lives about 20 yards from where he was arrested and the second accused near the level crossing at Dematagoda. The first accused is a Railway Shunter and the scond accused is a Pointsman. According to Sergeant Iyer, after talking to the second accused he took both the accused to the Police station. He asked for their names only at that time and recorded their statements later at night about 2 A.M. at the Police station. He made this statement in cross-examination by counsel for the first accused. In answer to counsel for the second accused, he said, the second accused told him he was carrying the log at the request of the first accused to the first accused's house. I must take it from his previous statement that at the spot he only asked the accused for their names, but that the statements were made and recorded at the Police station later in the night. A peon called Makeen of the Electrical Department gives evidence for the prosecution. His evidence does not support the case much except that the first accused, he says, was standing behind when the Police Sergeant was questioning the second accused. He says, however, that all four of them were coming up on the same side as the Police Sergeant and following him. At the close of the case for the prosecution no evidence was called for the first accused, but the second accused gave evidence saying that the first accused told him to carry this piece of firewood to his house and that as he was going to the first accused's house, the Police Sergeant questioned him and that he said he was taking it to the first accused's house. It would seem that the first accused lives on the other side of the yard and he could have put the firewood over if he wished to on to his compound without the trouble of having to carry it, but the witness says he has to get over a big drain and that there is a watcher.

At the end of the case Mr. Advocate Jayatilleke contended that there was no case made out against the first accused. The learned Magistrate, however, convicted the first accused holding that the second accused at once told the Police Sergeant that he was carrying the log of wood for the first accused. He states that this evidence was got from the Police Sergeant in cross-examination by the second accused's Proctor and is, therefore, not only admissible, but is valuable corroboration of the second accused's evidence in this case. The Magistrate argues that the second accused's evidence, which is that of an accomplice, is thus corroborated and that, first, it is proved that t