Ameer Ali, J -
(1.) IN this case, the petitioner Kamala Prasad was convicted by the Deputy Magistrate of Gya under Section 331 of the INdian Penal Code, and sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs. 100, or in default of payment, to undergo six months further imprisonment. He preferred an appeal to the Sessions Judge, who has confirmed the conviction and upheld the sentence. A rule was applied for and obtained from this Court calling upon the District Magistrate to show cause why the conviction and sentence should not be set aside on the ground that the evidence of the accomplice upon which the judgment is based has not been sufficiently corroborated in law, and also on the ground, that there is no sufficient evidence to support the conviction. Mr. Roy for the accused has placed the entire evidence before us, and has contended that the witness Dusain was an accomplice, and that his statements regarding the identity of the accused and the latter's participation in the offence of theft, which, there can be no doubt, took place on the night in question in the house of Brindabun Prasad, have not been corroborated regarding material particulars by outside evidence, and that, if the statements of Dusain be eliminated, there is no other evidence to connect the accused with the offence. It appears that on the night of Monday, the 26 March last, there was a burglary of a serious character in the house of Brindabun. A box or trunk seems to have been taken out of the house. It was broken open afterwards, and a considerable amount of money in cash, and gold and silver ornaments, and clothes were abstracted therefrom. INformation was given at the thana on the 27 with a list of the articles missing. The steel trunk was found broken in a corner of the garden towards the north of the house. Naturally suspicion fell upon the servants, but, as the learned Counsel for the accused points out, Kamala Prasad was not suspected. His position in the house was one of some trust. It is said he was a sort of musahib to the complainant and used to take his meals with him. On the 29 of March Dusain's house was searched, and two silver bangles were found and identified as part of the articles stolen. Mr. Roy says that Dusain himself produced those articles, but it makes no difference whether he himself produced them or they were found in the search. The inquiry into the case proceeded for some time apparently with the object of discovering more articles, and connecting the different people whose names Dusain gave as having been perpetrators of the burglary. The case was sent up on the 18 of April, and on the 19 Dusain was convicted under Section 411 of the INdian Penal Code, and sentenced to imprisonment and a small fine of Rs. 5. On the 20 April a warrant was issued against the present accused. Dusain's statements were taken on two previous occasions, and, after he had served out his period of imprisonment, his evidence was taken afresh regarding the facts to which he deposes and upon which stress has been laid by the Courts below.
(2.) HIS evidence in substance amounts to this, that on the night in question he went out of Brindabun's house, where he used to sleep, and, hearing some trampling on dry leaves, went towards the spot and found the present accused engaged either in opening a box or standing near the box, which had been broken open. He states further that on hearing his footsteps two of Kamala Pershad's companions had gone a little distance. He then inquired from them what they were there for, and the accused thereupon, in order to obtain his silence, gave him the two bangles which he produced or which were found in his house on the 29 of March. If Dusain's evidence is believed, there can be no doubt that the present accused was concerned in the burglary and has been rightly convicted by the Courts below. The question of law which has been raised before us is, as we pointed out before, that he is an accomplice and that his evidence requires corroboration, and that the necessary corroboration has not been furnished. It is contended that the matters which have been used for the purpose of holding that his evidence has been corroborated do not in law afford that corroboration. Before considering the position of Dusain it is desirable to state the law bearing upon the admissibility of an accomplice's evidence and the legality of a conviction founded thereon. Illustration (5) to Section 114 of the Evidence Act says that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Section 133 declares 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. The principle underlying the rule against the acceptance of an accomplice's evidence without corroboration proceeds upon certain reasons. Those reasons have been set forth in a number of cases, to which it is not necessary for us to refer here. Primarily an accomplice's evidence requires to be accepted with a great deal of caution and scrutiny, because it is naturally supposed that, when a person is concerned in a crime and has been discovered as being so concerned, he is likely to swear falsely in order to shift the guilt from himself. It is also supposed that an accomplice, in other words a participator in the crime, is a person of bad character, and that his evidence, although given under the sanction of an oath, is open to suspicion, and, thirdly, evidence given in expectation of any hope of pardon is sure to be biased in favour of the prosecution. It is for these reasons, although the law declares that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice, that the Courts have held, that ordinarily speaking the evidence of an accomplice should be corroborated in material particulars, and the practice which has been laid down has become, one may say, a part of the law itself. At the same time it is quite clear from the cases that the amount of criminality is a matter for consideration. When a person is only an accomplice by implication, or in a secondary sense, his evidence .does not require the same amount of corroboration as that of the person who is actually concerned in the crime or participating in it with the principal offender. In dealing with the question what amount of corroboration is required in the case of testimony given by an accomplice, the Courts must exercise careful discrimination and look at all the surrounding circumstances in order to arrive at -a conclusion whether the facts deposed to by the person alleged to be an accomplice are borne out by those circumstances, or whether the circumstances are of such a nature that the evidence? purporting to be given by the alleged accomplice should be supported in essential and material particulars by evidence act & as to the facts deposed to by that accomplice. That seems to be the general principle, and keeping that in view, it appears to us that in this case Dusain Goala is only an accomplice in a secondary sense. He does not say, nor has it been shown, that he was actually concerned in the burglary, that he took any part in the abstraction of the steel trunk, in breaking it open or taking out any of the articles or money. HIS statement amounts to this, that he saw that night certain persons whom he names, and one of whom is the accused, committing the robbery. He knew that there was a burglary, and knowing of the theft, he accepted certain articles which were the proceeds of that theft, and for that he has suffered imprisonment and has now no hope of reward or expectation of punishment. It is difficult for us to see how the principles to which we have referred apply to him. No doubt, having been a receiver of stolen property with a guilty knowledge, and having suffered imprisonment, his character is such that his evidence requires to be scrutinized and carefully considered in connection with the other circumstances of the case. The Courts below seem to have examined the facts with a great deal of care, and they have come to the conclusion that there was no reason to disbelieve the direct testimony of Dusain. They do not ignore the fact that he was a receiver of stolen property, or that he had been in jail, yet the first Court which had the witness before it and the Appellate Court which dealt with the evidence have both come to the conclusion that his evidence may be accepted. It is difficult for us to say that they are wrong in accepting his testimony, nor are we in a position to say, giving every consideration to Mr. Boy's argument, that circumstances are wanting to support the positive testimony. On the whole, therefore, after a careful consideration of the case we are of opinion that the conviction ought not to be interfered with, and we accordingly discharge the rule. The accused being on bail must surrender to undergo the remaining portion of his sentence.;