IBRAHIM HUSEN Vs. STATE

JUDGEMENT

(1.) This revision petition under Ss. 435 and 439 of the Code of Criminal Procedure is directed against the Judgement of the learned Sessions Judge, Panjim, dated 19th April 1968. The learned Sessions Judge dismissed the appeal of the appellant against his conviction under S. 379 read with S. 75 of the Penal Code. The sentence awarded was R. I. for 2 years and a fine of Rs. 1000 or, in default, 6 months' further R. I.

(2.) The appellant and one Babu Loximona Naik were charged together for an offence under S. 379 read with S. 34 of the Indian Penal Code. The material part of the charge was that on the night between 15th and 16th November 1967 between 7-30 p.m. and 5-00 a.m. they stole one dynamo, one pressure-jack and one spanner from truck No. 6472 in possession of the complainant, the value of the stolen parts being about Rs. 1200. Babu Loximona Naik pleaded guilty to the charge and, consequently, he was sentenced to undergo R. I. for 4 months and a fine of Rs. 100 or, in default, to undergo one month's further R. I. Babu Loximona Naik thereafter was examined as a witness in a trial against the appellant. In addition, the prosecution examined the complainant and some other witnesses in support of the prosecution case. The appellant did not examine any evidence in his defence. Three witnesses were examined by the Court as Court witnesses. The learned Magistrate, after considering the evidence led, came to the conclusion that the charge had been established against the appellant and, consequently, he convicted and sentenced him as mentioned above. The appellant preferred an appeal in the Court of Session. This appeal was dismissed by the learned Sessions Judge on the ground that there was abundant evidence on the record to support the judgement of the learned Magistrate. According to him, the evidence of Babu Loximona Naik was amply corroborated by the deposition of other witnesses and by discoveries. In this view of the matter he dismissed the appeal. The appellant felt aggrieved by the decision of the learned Sessions Judge and moved this Court in revision.

(3.) I shall consider the evidence led against the appellant. The prosecution examined Vitoba N. Foto Dessai, Kalpana Amonkar Tomas Fernandes, Head Constable M.G. Mula, Babu Loximona Naik, complainant Vasudeva Xetcar and Sub-Inspector of Police Leoncio L. Gracias in support of the prosecution case. Witnesses Prabacar Culvelcar, Gopal Naraina X. Bandecar, Anant Fotto Dessai and Ismael M. Vatangui were examined by the Court as Court witnesses. The important evidence in this case is that of Babu Loximona Naik. According to his own admission, he committed the theft of dynamo etc. from the truck, along with the appellant. He is therefore, an accomplice. The law as to accomplice evidence is well settled. An accomplice is a competent witness against an accused person; and a conviction is not illegal merely because it proceeds on the uncorroborated testimony of an accomplice : see S. 133 of the Evidence Act. This is a rule of law. There is, however, a rule, of prudence contained in illustration (b) to S. 114 of the Evidence Act. Under this illustration, the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. The! necessity of corroboration is stressed therein. This rule represents the experience and, wisdom of Judges, extending over a long period. These two provisions are to be read together. They are inter-dependent. Section 133 is not to be read in isolation, as argued by learned Government Pleader. There is no difference so far as competency of an accomplice witness and an ordinary withness is concerned. An accomplice witness as well as an ordinary witness are competent to testify, but in the case of an ordinary witness, there is no presumption as in illustration (b) to S. 114, and for good reasons. An accomplice may speak a lie out of desire for revenge or reward. He may like to blacken his companions in order to win police favours. He may have a motive to implicate them. His evidence, though admissible, remains suspect evidence because of the tainted source from which it comes. The credit of an accomplice who is first convicted and thereafter examined as a witness against a co-accused is affected because of such conviction. Section 146 of the Evidence Act can properly be invoked to test his veracity and also discover who he is and what is his position in life and shake his credit by injuring his character. He is a person who may not have much regard for the sanctity of oath. As between his statement on oath and the statement of a co-accused from the dock, there is no good reason to prefer the former, unless it is corroborated in material particulars by some untainted independent evidence. In Sarwan Singh V/s. State of Punjab, 1957 AIR(SC) 637, the Supreme Court observed that