1. We do not call upon the learned Advocate-General to reply upon these appeals from the order of convictions and sentences made by the Chief Presidency Magistrate of Bombay.Since the last hearing of the appeals on Thursday, we have had ample time to go through and carefully consider the full arguments addressed to us in support of the appeals both by Mr. Branson and Mr. Binning and we have arrived at the conclusion that the judgment of the learned Magistrate under appeal must be confirmed.
2. At the outset I should notice a legal argument urged by both of the learned Counsel. They complained that contrary to law the Magistrate had allowed the prosecution, after the charges had been framed against the accused and they had made statements, to examine fresh witnesses, who had not been named originally and summoned, as required by Clause 2 of Section 252 of the Code of Criminal Procedure. This procedure, it was contended, was a direct violation of the terms of Section 256 of the Code, which provides that after the charge has been framed and the accused has pleaded not guilty, 'the evidence of any remaining witnesses for the prosecution shall next be taken.' According to the learned Counsel, 'any remaining witnesses' must refer only to those who, as required by section, 252 Clause 2, have been named by the complainant and summoned by the Magistrate before the framing of the charge. I do not think that the expression in question is necessarily limited to those witnesses. It is wide enough to include any witness who, according to the prosecution, is able to support its case, though he has not been summoned, provided, of course, that he is not sprung upon the defence all of a sudden and sufficient opportunity is given to the latter to prepare for the cross-examination of the witness.
3. In the present case the witnesses complained of as having been examined contrary to law were allowed to be examined after the accused had made their statements and the charges had been framed on the 26th of June; but it was all before the accused were called upon to enter upon their defence. There was no illegality in the procedure. I cannot even say that it was irregular, but even if it were, the irregularity has not been shown to have in any way prejudiced the appellants. The witnesses examined were allowed to be cross-examined at length and it was open to the appellants to adduce evidence to rebut their testimony.
4. But even if we exclude all this testimony on the ground that it was irregularly received, the rest of the evidence, both oral and circumstantial, is amply sufficient to warrant the convictions. The case depends on the evidence of two witnesses, William Fernandez and Chaya Goma. The testimony of the former has been regarded by the learned Magistrate as that of an accomplice. Of Chaya Goma he thinks differently and that because, says the Magistrate, 'an ignorant man in his position could not be expected to know the Dockyard rules and the presence of the Police would allay his suspicion.' In this view of Chaya Goma's evidence I concur. The word 'accomplice' is made at times to bear, improperly, in my opinion, a larger meaning than is allowable, according to its accepted interpretation in law. As pointed out by Mr. Justice Maule in Reg. v. Mullins (1848) 3 C.C. 526 'an accomplice confesses himself a criminal.' No man ought to be treated as an accomplice on mere suspicion unless he confesses that he had a conscious hand in the crime or he makes admissions of facts showing that he had such hand. If the evidence of a witness falls short of these tests, he is not an accomplice; and his testimony must be judged on principles applicable to ordinary witnesses, it is urged that it is most unfair to give effect to the evidence of men of the low position of William Farnandez and Chaya Goma against a man of the position of the appellant Burn, who is proved by one and all of his official superiors, such as Commander Jones, Mr. King and Mr. Avery,to have borne 'the best character' and reputation for integrity; and this especially when the goods alleged to have been stolen from the Government Dockyard were of the comparatively small value of rupees six hundred. The answer to that is that this valuable testimony to character cannot outweigh the probative force of the appellants' conduct immediately after the crime had been detected by the Police. On the 31st of May when the cart was seized and both William Fernandez and Chaya were arrested, what did Burn say or do? Commander Jones asked him whether he knew Anything about the matter; but Burn professed complete ignorance, though he knew at the time that he had signed the fictitious pass, Ex.--C, without any authority, which had led to the passing of the goods out of the Dockyard. Mr. Avery states that Burn did not at any time report to him about the barrels in question, that he gave no information of what Fernandez had told him and that he (Burn) had ordered Fernandez to get a pass made out. In his statement at the trial before the Chief Presidency Magistrate, Burn admits that he did not disclose to his official superiors what he knew about the pass'because,' to quote his own words; 'I did not wish to expose my thoughtlessness in giving it to Fernandez and not to make matters worse for him.' But here there was a theft detected; goods belonging to Government were seized as having been stolen by certain persons connected with the Dockyard; and among them by a subordinate of Burn. Why should Burn have kept back from his superiors what he knew and what he had done with reference to the pass, if, as he now urges, what he had done was due to Fernandez's misleading? Why should Burn have held his tongue to screen Fernandez if the latter had got him to sign the pass, Exhibit-C, by misrepresentation? It is impossible to reconcile this conduct of the appellant with his innocence--all the more so when we have the fact that the pass was fictitious.
5. The Police and the Dockyard officials were inquiring into the theft; Burn who could assist the inquiry held back all for screening, as he says, Fernandez and his own thoughtlessness. Thoughtlessness there could be none if, as he says, Fernandez had misled him. The only reasonable inference all this plainly suggests is a guilty mind on the part of Burn. Here then in the conduct of the appellant we have circumstantial evidence corroborating, because suggesting plainly the reliable character of the evidence of Fernandez and of Chaya Goma. The latter was employed at the time under Burn and the fact that Chaya Goma, who was practically a servant of Burn, accompanied the cart all the way from the Dockyard to the Foundry at Two Tanks only adds to the force of the conclusion that Burn had a hand in the theft; that without his participation in the crime it would not have taken place.
6. But it was urged that the charge against him being one of conspiracy to dispose of the goods by or for sale to the Borah Manager of the Foundery, there was no allegation, no suggestion even that Burn had ever seen the Borah. No, when a conspiracy between several persons is alleged, it is not necessary for the prosecution to prove, before it can be held established, that each conspirator knew and had personal communication with all the rest, because some of them might be intermediaries. In the present case the facts show that Burn stood at one end and the Borah at the other, and the two Police officers Henry and Willis were communicants between the two.
7. The case against these two is also clear beyond all reasonable doubt. Their Counsel has had to admit that there are suspicious circumstances against them but he contends that it is mere suspicion. It is more than that. The facts stand that the appellant Willis rode on a bicycle after the cart containing the stolen goods from the Dockyard, reached the Foundery before its arrival there, had raspberry and soda and when he heard that the cart had been seized by the Police at the back entrance he hurried out of the Foundery by the front entrance unknown to the Police who had seized the cart, and rode back to where the appellant Henry was to inform him of what had happened. Willis's defence is that he had gone after the cart because Henry, suspecting the cart, had ordered him to find out where it was going. But if Henry and Willis suspected something wrong about the cart in consequence of the spurious pass, Exhibit C, why did Willis not detain the cart when it was within his reach, why did he follow it all the way, and indeed why did he precede it to the Foundery? How did he know it was going to the Foundery that he should have preceded it and awaited its arrival in the meantime, enjoying his raspberry and soda. Or, again, why when the cart was seized by the Police at the back entrance, did Willis avoid them? If his object was to get at the truth about the cart, that truth had been disclosed and his object had been attained; and he would have gone to his brother officer who had seized the cart and joined them. But instead of that he ran back to the Dockyard and his excuse is that he ran back to tell Henry what had happened. The force of the presumption arising from the adverse facts admitted by the appellants is aggravated by the improbability, not to say the absurdity, of their explanations. Further there is the fact that after the cart had been seized, the pass Exhibit--C, was not produced by Henry for some days. In spite of the somewhat voluminous evidence recorded, the facts of the case lie in a nutshell and the guilt of the appellants was rightly held established by the learned Chief Presidency Magistrate. The conviction and sentence as to each of them must be confirmed and the appeals dismissed. Before parting with the case I ought to say that the Police Officers, to whom the detection and exposure of this crime is due, deserve high commendation for the skill and zeal with which they have brought the conspiracy to light.
8. The three appellants have been convicted in connection with the theft of brass borings and broken copper valued at about Its. 600 from the Government Dockyard on or about the 31st May last. There is no doubt the theft took place. Three barrels of metal covered with layers of cement so as to give the appearance of barrels of cement were removed from the Dockyard in a cart and taken to the entrance to a Foundery. There one barrel was removed from the cart and the rest were about to be removed when the Police intervened, took the cart, the barrels and the men with them to the Police station.
9. The circumstances show that the whole affair was carefully planned. The stolen goods must have taken some time to collect. The evidence demonstrates that they had been weighed before despatch in the cart. A pass was prepared in which the goods to be removed were described as three barrels of cement. A cart was brought into the yard, the barrels were placed on it; the cart was taken through the Dockyard gate; the pass was delivered to the Police Officer there and then the cart went off in charge of a Dockyard workman. This happened openly in broad daylight apparently shortly before noon on Monday 31st May 1909. It is, therefore, apparent that not only was the whole affair carefully planned but it was organized and carried out not by one man but by a number.
10. It is quite clear that there was either connivance in the theft or gross negligence on the part of some of the Dockyard people for the material could not otherwise have been collected, packed and removed. There was also connivance or carelessness on the part of the Police Inspector at the Dockyard Gate for it was his duty not to allow goods to leave the yard unless covered by a proper pass. The pass on which three barrels were allowed to leave was not a proper but a fictitious pass. The theory of the prosecution is that Burn the Dockyard Foreman, and Henry and Wills, Police Officers, at the Dockyard gate were concerned in the theft. Burn is the Official who had a general charge of the yard and but for his connivance or carelessness it would have been impossible to collect, weigh and pack the stolen goods and also to remove them under the cover of a fictitious pass written and signed by himself.
11. The actual method by which the theft was carried out is described by Fernandez who is a chargeman in the Dockyard and by Chaya a boiler-maker of the yard and also the man who accompanied the cart to the Foundery. The evidence of these men must be accepted with caution, because Fernandez certainly has not told the whole truth and it is doubtful whether Chaya has resisted the temptation to distort the true fact. But the account they give of the collection, weighing and packing of the stolen property, is simple, credible and consistent. In these particulars I have no doubt they have told the truth in the main, and that their description of how all this took place is no more open to question than the evidence of ordinary witnesses, whose testimony in matters of detail is seldom entirely accurate. Apart from the part actually taken by Burn, there is no reason why the witnesses should have distorted the true facts, about these matters and their account does certainly read as if it, were honest. As to the part played by Burn, their testimony is in substantial agreement: it does not disclose indications of, concoction and it is eminently credible in this respect that it is much easier to believe that it was all done with Burn's connivance than without his knowledge. The Magistrate who heard the witnesses and has those means of judging of the value of oral testimony which are denied to a Court of Appeal believed their testimony against Burn. I can find no good or even plausible reason for supposing that he misappreciated it. Nevertheless there is very great force in the argument for the defence, that in the case of men of approved character, and meritorious work, it would be unsafe to convict on the testimony of such men as Fernandez and Chaya, however credible their testimony might superficially appear to be.
12. What then are the circumstances which, apart from the statement of Fernandez and Chaya, show that Burn was a party to the theft. They are these: firstly, it is improbable that the collection of the stolen property, its weighment, and packing in the barrels, could go on, without the connivance of Burn. Secondly, there is the existence of the fictitious pass which was undoubtedly written by Burn. That pass purports to be an authority to remove three barrels of cement from the Dockyard. It was, as Burn well knew, not a true pass for two reasons: first, it was not on the right form, and second if it had been, Burn had no authority to sign it. Burn's explanation is that it was given in a hurry to Fernandez and was intended to be only a memo. from which a proper pass would be prepared and signed by a competent authority. It is not explained why Fernandez should be concerned in the removal of barrels of cement. There was in fact no occasion for the removal of cement; there was no outside work in progress for which it could be required and no reason to believe that Burn could suppose there was any likelihood of a genuine demand for cement. If Burn made it out for the purpose of being used as a gate pass, the conclusion that he was concerned in the theft is irresistible. Unhappily for him no reason is given which has any claim to belief which suggests the conclusion that he made it out for any other purpose.
13. This pass is of great importance in considering the charge against Henry, the Police Inspector at the gate. It was his duty to collect passes and to see that no goods went out not covered by a pass. It was also his duty every Monday to sent in all passes received during the previous week, to be checked by comparison with the counterfoils. This particular pass had no counterfoil and did not represent any genuine despatch of goods. It was not intended to get into the weekly bundle of passes; for if it did, the fact there had been trickery of some kind would be evident. It may have been intended merely as a blind in case any superior official should be at hand at the moment the barrels were taken through the gate; or as an indication to the Officer at the gate that the particular cart with which it was sent, was the cart containing the stolen property and as such should be allowed to go without question; or for some other obscure purpose known to those concerned in the theft but not disclosed at the trial. But whatever its purpose in the minds of the plotters, they must have anticipated that it would come to Henry's hands. That indeed was precisely what would happen in the natural course of things; for, he was stationed at the gate for the express purpose of demanding passes. These circumstances raise a Very strong presumption that Henry was concerned in the theft. Why otherwise should the thieves invite discovery by contriving that the pass should fall into his hands? A moderately careful scrutiny of it would at once show him that probably it was a bogus pass. What actually happened might have been turned to Henry's credit, if on obtaining the pass he had acted otherwise than as he did. What actually happened was this: Henry sent his subordinate Willis to follow the cart. Willis followed it and on finding that it was captured by the Police at the entrance to the Foundery, returned to the Dockyard and told Henry of what had happened. They then both went to the Foundery and there finding that the cart had been taken away by the Police followed it to the Police office. But they did not say that the cart had gone from the Dockyard by means of a suspicious pass. and though enquiry for a pass was made that very afternoon, no such pass was, where it ought to have been, on the file and none was produced, though the bogus pass was undoubtedly then under Henry's control and could have been produced. In short, both Henry and Willis acted as would be natural to men concerned in the theft and anxious to conceal any incriminating circumstances, and not as men whose suspicions had been aroused and who were anxious to assist in bringing a fraud to light. It is, therefore, impossible to suppose that Willis followed the cart for any innocent purpose or that he and Henry were not acting together in furtherance of the theft.
14. The arguments for the defence have been placed before us both fully and lucidly. They amount to this, that it is incredible that the accused, especially men of good character and approved service like Burn and Henry should risk so much to gain so little; that much of the evidence is false; much dubious at least; and that the balance which is true does no more than raise a suspicion but does not amount to proof. All this has been skilfully and carefully argued. But it leaves my conviction of the guilt of the accused unshaken. Undoubtedly there was a theft carefully planned, deliberately and boldly carried out. Undoubtedly a number of workers in the Dockyard were concerned in it, and it is incredible that it should have been attempted in the manner adopted unless the thieves were sure of support from some Police official at the gate. It is almost equally incredible that it should have been carried out entirely by inferior subordinates in the Dockyard and without the connivance of any of the upper or superior staff such as the Dockyard Foreman. Experience warns us that such crimes may be committed by men who have previously borne excellent characters; and that in frauds of this kind the gain hoped for is not to be limited to what is made by a single theft. Where there is elaborate system such as is disclosed here, there is usually a series of thefts and it matters little whether this is supposed to be the first or a later incident of the series. Some of the witnesses have certainly not told the whole truth, and much of the testimony is of a kind that would not justify acceptance, except that it is confirmed by circumstances which cannot be doubted. It is indeed the overpowering strength of the circumstantial evidence, and not the mere oral testimony, which justifies and compels the conviction.
15. Much has been said in the course of argument against the conduct of the Police. No doubt the Police questioned the witnesses closely, and no doubt they did all they could to preserve them from outside influence favourable to the accused. No doubt also they were anxious to bring guilt home to definite persons and not to leave the case in the very unsatisfactory position which follows when a crime is discovered but the identity of the chief criminals remains a matter of conjecture. All this is evident. But it does not tell to the discredit of the Police. Of more than this: of ill-treatment, criminal coercion or tutoring of witnesses, there is not, to my mind, any real indication. The falseness of some of the oral testimony, and the unconvincing nature of much more is not, in my opinion, due to Police influence but to the unwillingness of the witnesses to tell the whole truth about a transaction which must necessarily discredit themselves or others on whose favour they were dependent.
16. For these reasons I think the convictions and sentences should be confirmed.