P L D 1954 Federal Court 335 (PLP)

MUHAMMAD MUNIR, C. J.--‑This is an appeal by special leave from a capital sentence. Ishaq and Nur Ullah were committed to the Court of Sessions at Lahore for the murder of Qamar Din. They were tried by the Additional Sessions judge at Sheikhupura, and having been found guilty were both sentenced to death. On appeal to the High Court of Lahore, Nur Ullah was acquitted but the conviction and sentence of Ishaq were affirmed. Ishaq has now appealed by special leave of this Court. Qamar Din deceased had two brothers Umar Din and Badar Din who are dead. Sattar and Piara are the sons, and Mst. Roshan the daughter of the deceased, while Ishaq appellant and Nur Ullah are the sons of Umar Din. The third brother of the deceased Badar Din had a daughter Rahim Bibi who is married to the appellant. Mst. Dani, the mother of the appellant and Nur Ullah, re‑married the deceased on the death of their father Umar Din. Some 37 acres of land were held in mortgage by Mahndu, the father of the deceased. This land was redeemed by the mortgagor Ismail on payment of Rs. 1,

914. As the mortgage was ancestral property, the deceased kept one half of the money for himself and gave the other half to his nephews. The appellant and Nur Ullah, however, claimed two‑thirds of the entire money on the ground that under the Shariat Law Mst. Rahim Bibi was entitled to the one‑third share of her father in the mortgage money. The deceased, however, would not accept this position or give the money, with the result that relations between the deceased and his two nephews became strained. In the course of a dispute over this matter the deceased struck the appellant on the neck with a stick. Besides, the deceased intended to mortgage some family land in order to raise money for the sinking of a tube‑well. This was resented by Sattar, and there were constant bickerings not only between Sattar and his father but also between the deceased and his two nephews. In the end of March or the beginning of April Qamar Din disappeared from his house. This led to some whispers in the village and Piara, the elder son of the deceased, collected a panchayat which met on the morning of 25th April. Khan Bahadur, who acts as a Lambardar, presided over the panchayat and questioned Mst. Roshan about the time and the manner of the disappearance of her father. She stated that the last time she saw her father was when Sattar took him to the well of the appellant and Nur Ullah. On this Sattar was taxed with enquiries and eventually he confessed that he and his two cousins had murdered Qamar Din at the Anderwala well and buried his body first inside a kotha on the well and subsequently in the bed of the Dipalpur canal. On hearing this confession, Khan Bahadur sent for the appellant and Nur Ullah and confronted them with what Sattar had alleged against them. They both admitted that what Sattar had stated was true. On the same day at five o'clock in the afternoon Khan Bahadur reported the result of the proceedings of the panchayat to Sub‑Inspector Shabbir Ahmad who registered a case under section 302 P. P. C., against the three men con cerned and commenced investigation. He made certain recoveries on the information given by each of these men, and on 27th April the appellant led him and some other persons to the Dipalpur canal and pointed a place from where the body of the deceased was retrieved by a diver. Dr. Muhammad Umar who performed the post mortem examination found several injuries on the body and gave the opinion which he repeated in Court that the death was due to haemorrhage and shock from multiple injuries, four of which had been caused with a sharp‑edged and one probably with a blunt weapon. After investigation the appellant and Nur Ullah were charged with murder, the third accomplice Sattar, the son of the murdered man, having agreed to give evidence as an approver. The learned Additional Sessions judge before whom the trial was held convicted the appellant and Nur Ullah on the evidence of the approver and recoveries at the instance of, and oral confession made by, the appellant and his brother. On appeal to the High Court at Lahore, however, the learned judges did not in their judgment refer to the confessions and thought that the several recoveries with the exception of one had no criminal significance. They, therefore, acquitted Nur Ullah, but acting on the evidence of the approver and the fact that the body of the deceased was recovered in consequence of the information given by the appellant they upheld his conviction and the sentence. The appellant was given special leave to appeal to this Court on the question whether the approver's evidence received sufficient corrobora tion against him, and this is the main question that requires determination in this appeal. The evidence in corroboration of the approver consists of an oral confession by the appellant before a panchayat and the information given by him which led to the recovery of the body of the deceased from the bed of the Dipalpur canal. There is a preliminary point to be cleared about the confession. The learned Additional Sessions judge had relied on it but the judgment of the High Court contains no reference to it. It may be that because the learned judges of the High Court considered the evidence relating to the recovery of the body as sufficient corroboration of the approver, they said nothing about the confession. It is equally possible that the learned Crown Counsel, feeling that the evidence relating to recovery was sufficient corroboration of the approver, did not place the evidence of confession before the High Court. But whatever may be the explanation, now that the question is whether the evidence in corrobora tion of the approver is or is not sufficient, it is not contended by the learned Counsel for the appellant that we cannot look at that evidence or act upon it. There is neither any law nor any rule governing the practice of this Court that evidence which has not been referred to by the High Court because it thought that the other evidence was sufficient for I conviction cannot be considered by this Court in an appeal from the conviction. It is, therefore, necessary to examine, what the evidence of confession was. The oral confession is deposed to by Piara (P. W. 15), Khan Bahadur (P. W. 17) and Master Sirajuddin (P. W. 19) who were all present at the panchayat. Piara states that Khan Bahadur, who appears to have acted as the sarpanch, first went to the house of the deceased where his daughter Mst. Roshan told him that the approver had taken the deceased with himself saying that he was required by the appellant and Nur Ullah at their well. Returning to the panchayat with this information, Khan Bahadur called the approver who was confronted with what Mst. Roshan had stated. The approver at first denied having taken the deceased to the well but on being pressed by the panchayat to state the truth he burst into tears and said that the appellant, Nur Ullah and he himself, had murdered Qamar Din. He further disclosed that they had first buried the body of the deceased in kothri at the well but later had dis interred and re‑buried it in the bed of the Dipalpur canal. After this statement of the approver the panchayat sent for Ishaq and Nur Ullah and questioned them on the subject. They both told precisely the same story as the approver had detailed. They were asked why they had murdered their uncle and they replied that they had done so because he had not given them two‑third share of the redemption money. The evidence of Khan Bahadur is to a similar effect. He says that after the approver had made a confession the appellant and Nur Ullah were confronted with it and then were asked whether what he had told was the truth. In reply they both admitted that together with the approver they had killed Qamar Din. Master Sirajuddin's evidence also is substantially the same. He deposes that on getting information of the murder from the approver, the appellant and Nur Ullah were sent for and asked if the story told by him that all three of them had murdered Qamar Din and buried his body was true, and they both admitted that it was. We asked the learned Counsel for the appellant whether he could urge anything against the credibility of any one of these three witnesses and he frankly admitted that on the record he could discover no reason to doubt their evidence. Each of the three witnesses is completely disinterested and two of them are men of apparent respectability. Piara is the appellant's own cousin; Khan Bahadur occupies an important position in the village as he performs the duties of the Lambardar for his father ; and Sirajuddin who resides in the village is a teacher in a neighbouring school. I see no conceivable reason why evidence of these witnesses should not be relied upon. The evidence receives the strongest possible corroboration from the circumstance that on that very day the appellant took the police and a party of villagers to the Dipalpur canal and pointed to place where, he said, the body had been buried by him and his accomplices and on search being made the body was recovered from that place. If the evidence as to this recovery be accepted as it has been, it must have been preceded by a confession of murder. The First Information Report which was made the same day by Khan Bahadur contains an unequivocal reference to the appellant's confession before the panchayat. I have, therefore, not the slightest doubt in my mind that the evidence of these three witnesses is true and that the appellant did make a confession in the manner described by them. The confession being proved, we have to see whether there could be any mistake about the tenor and substance of the confession by those who heard it. Each of the three witnesses has alleged that the appellant admitted that the story told by the approver which had been repeated to him, namely, that Qamar Din had been murdered by the approver, the appellant and his brother Nur Ullah, and that they had all buried the body, was true. There is no question in the cross‑examination of these witnesses casting the slightest doubt on the terms or import of the confession ; nor is there any indication whatsoever therein that this part of their evidence was being questioned by the appellant or his counsel. In fact this evidence appears to me to be of an exceptionally satisfactory character and it receives corroboration not only from the subsequent recovery of the body but also from the terms of the First Information Report. The mere fact that the evidence does not show whether the appellant and Nur Ullah were questioned together or separately‑ and what were the exact words used by each is of no importance in this case because it is quite clear from that evidence that each of them admitted the truth of the approver's statement and neither of them repudiated, as any innocent man should have done, what the approver had alleged against him. Now if this evidence of an oral confession is believed it puts an end to this appeal because the confession and the approver's testimony both corroborate each other whichever of them be considered to be the basis of the case. A confession by the accused himself, provided it is satisfactorily proved, is a very powerful corroboration of the approver. Therefore the confession in the present case satisfies the requirements of the rule relating to the sufficiency of corroboration and the conviction can be supported on such corroborative evidence alone. In the present case, however, there is the further fact that the body was recovered in consequence of the information given by the appellant who undoubtedly had a motive to kill and for whose false implica tion the approver, who is his first cousin, had no motive whatsoever. All this evidence is sufficient in my opinion to conclude this appeal. But since some of my brothers are not inclined to take the confession into consideration and consider that the recovery of the body at the instance of the appellant is not sufficient corroboration of the approver's testimony on the charge of murder, I consider it necessary to state my own views on the law relating to corroboration of the testimony of an accomplice. I may state at once that in my view, even if the confession be ignored, the evidence relating to the recovery of the body of Qamar Din from the bed of the Dipalpur canal in consequence of the information given by the appellant was in the circumstances of this case sufficient corroboration of the testimony of the approver that the appellant had taken part in the murder. If we hold that that evidence, which was considered by the High Court to be sufficient corroboration, was not so, we shall have to lay down or assume some general rule defining the kind of evidence that will in such cases be sufficient to confirm the approver's evidence that he and the prisoner committed the murder and then buried the body in a particular place. And if we give effect to the argument of the learned counsel for the appellant that the discovery of the body in consequence of the information given by the appellant only confirms that part of the approver's evidence that the appellant was a particeps criminis in the offence of concealing the body and not of that part in which he deposes that the appellant also took part in the murder, we shall by necessary implication not only be laying down the rule that corroborative evidence to be sufficient to prove the charge of murder must itself be sufficient proof of murder but that the evidence of discovery in such cases does not even tend to connect the appellant with the murder, a doctrine which will come perilously near holding that such evidence is not relevant to the charge of murder. Before we lay down a rule leading to such startling results and which may be misunderstood or extended to other cases by the Courts in this country and thus produce mis carriage of justice, we must be absolutely certain of the correctness of our position. With these observations I proceed to consider the principles, in so far as they are applicable to the present case, governing the sufficiency or otherwise of an accomplice's testimony. As distinguished from a pretended confederate who associates with wrong‑doers in order to obtain evidence, an accomplice is a moral wretch who not only publicly boasts of his own part in the crime which is often committed in his interests and at his instigation but who, prompted by a mean desire to save his own skin, shamelessly betrays his companions in the dock and who has no scruples either in exaggerating their part in the crime or in substituting in a well thought out narrative a completely innocent man for a friend whom he is still anxious to save. Accomplice evidence is admitted from necessity, it being often impossible, without having recourse to such evidence, to bring the principal offenders to justice. The first reaction of the Court or Jury who are called upon to judge such evidence is a feeling of distrust and suspicion, and for reasons which have been mentioned too often to be repeated here and are all based on the peculiar position that an accomplice occupies, it has in modern times been an almost invariable rule not to act on his evidence, unless it is corroborated in material particulars against the prisoner. The requirement of corroboration has led to many rulings as to sufficiency, based wholly upon the evidence in each case, from which no develop ment of principle can profitably be gathered. " As recorded precedents of Supreme Courts," remarks Wigmore, " they are mere useless chaff, ground out by the vain labour of able minds mistaking the true material for their energies." The leading principle‑case in England is the Court of Criminal Appeal case in King v. Baskerville ((1916) 2 K B 658.) in which Lord Reading, C. J., presiding over a Court of five Judges administered the warning, which has been repeated in this sub‑continent on more than one important occasion, that ` the nature of corroboration will necessarily vary according to the particular circumstances of the offence charged " and that" it would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed but that it was committed by the accused." The learned Chief Justice proceeded to add: "The corroboration need not be direct evidence that the accused committed the crime ; it is sufficient if it is merely circumstantial evidence of his connection with the crime." And a little earlier he had thus summed up his conclusion: " We hold that evidence in corroboration must be independent testimony which affects the accused by connect ing or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it." The rule laid down in the English case just cited is susceptible of only one meaning and that is that the confirmative or corroborative evidence, which of course must be independent evidence, should be such as corroborates in one or more particulars the evidence of the approver that the prisoner was a party to the crime. What is important to remember is that the rule does not require the prosecutions to prove by independent evidence that the prisoner committed the crime but only to produce such reliable and independent evidence as shows or tends to show that that part of the, approver's testimony wherein he states that the prisoner was one of the persons who took part in the commission of the crime is true. In other words, " Corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true."' If the rule required proof by other evidence that the approver committed the crime charged, as distinguished from such evidence as merely tends to show that the approver's evidence that the accused committed the crime is true, there would be no need for accomplice testimony because then ex hypothesi the other evidence would itself be sufficient for conviction and the evidence of the accomplices would be wholly superfluous. This is the basic distinction which must be borne in mind while judging the value of corroborative evidence. This principle has been explained in a large number of decisions in the manner in which I have attempted to state it, and if the ‑ view was ever taken or propounded that corroborative evidence must, apart from the testimony of the accomplice, prove that the accused committed or was connected with the crime, it must be deemed to run counter to the principle governing the corroboration of accomplice testimony and the general trend of authority. In its bearing on the material issue, namely, the issue of the prisoner's guilt, it is wholly wrong to separate the corroborative evidence from the evidence of the approver in an endeavour to examine its intrinsic criminating significance. Standing by itself it may not be criminating at all and may be susceptible of an entirely innocent explanation but con sidered with the story of the approver it may produce on the mind of the Court or the jury a profound conviction that the accused must have acted in the manner alleged by the approver. It is on this ground that a perfectly innocent looking circumstance, as, for instance, the prisoner's having been seen with the approver shortly before or after the commission of the crime, has, in cases to which reference will be made presently, been held to be sufficient corroboration. On the same footing stand cases where the prisoner's possession of property which was with the deceased at the time of his murder was considered to be good corroboration on the charge of murder or cases where the proceeds of a crime were found with the 'prisoner. Since Baskerville's case I have come across only one case, Jiwan Singh v. Emperor (A I R 1934 Lab. 23 (2).) where it has been observed that the circumstances relied on in corroboration must not be such as can be explained on a hypothesis which is compatible with the prisoner's not having committed the offence charged ; but no authority is cited in that case either for the principle that the testimony of the approver ought to be corroborated in some " circumstances connecting and identifying the accused with the offence with which he is charged " or for the view that the corroborative circumstance is no corroboration on the graver charge if it is compatible with the accused having committed a different or lesser offence. Both these observa tions are directly opposed to the rule in Baskerville's case that independent evidence in corroboration is sufficient if it affects the accused by tending to connect him with the crime, that is to say, if it tends to show that the story of the accomplice that the accused committed the crime is true. The rule laid down in the Lahore case is borrowed from the law relating to circumstantial evidence and is inapplicable to cases where such evidence is not sought to be made the ground of conviction but is relied on merely in corroboration of an approver. In the latter case the rule unquestionably is that the circumstantial evidence need not itself be sufficient for conviction ; all that is necessary is that it should tend to show the prisoner's connection with the crime. Another point to be noticed about the nature and extent of corroboration is that it need not confirm all the particulars disclosed by the accomplice in his evidence. Though illustration (a) to section 114 of the Evidence Act uses the word " particular " in the plural, it has been held that corroboration on a single particular deposed to by the accomplice is sufficient provided that that " particular " tends to show that the prisoner was concerned in the crime. It is certainly not the rule that proof of that particular should) itself be sufficient for conviction, or that standing by itself, it should not be capable of an innocent explanation because if the particular proved is inconsistent or incompatible with the innocence of the accused of the offence charged, then ex hypothesi it will itself be sufficient proof of the commission of the crime by the accused and the evidence of the accomplice will thus be unnecessary. In the light of these principles we are now in a position to answer the short issue in the case, namely, whether the fact that the appellant together with the approver and two other persons, whose names could not be taken on the record, buried the body of the murdered man in the bed of the Dipalur canal, tends to show that the approver's evidence that the appellant took part in the murder and in the sub sequent burying of the body, is true. The answer to this cannot, in my opinion, but be in the affirmative. The situation presented is similar to where the Court or the Jury feeling hesitant to act on the evidence of an eye‑witness to a murder either because he is related to the deceased or inimical to the accused, decide to act on his evidence on proof that the accused whom the witness alleges to be the murderer concealed the body of the murdered man. On charges of murder the concealment of the body has always been considered to be a grave inculpatory fact and a point of the greatest suspicion (vide Wills on Circumstantial Evidence, 7th Ed., 148 and 149). The relevancy of this fact rests not only on the subsequent conduct of the party charged but the presumption arising therefrom belongs to that genus of inferences which arise from the possession of the accused of the fruits of crime or the instruments of crime or any other material evidence of the crime. Some of these inferences are elevated in law to the status of presumptions, and though only one of them is mentioned in illustration (a) to section 114 of the Evidence Act their basis is to be found in that process of reasoning by which the cause is discovered from the effect. Thus possession by the accused of the means of committing the crime charged may raise a presumption of his guilt. Where the evidence against the accused is circumstantial in its character, the possession by the accused of the fruits of the crime is relevant as a circumstance in the chain of evidence from which guilt may be inferred. In prosecutions for larceny, robbery or burglarly, the recent possession of the stolen property raises a presumption that the possessor is the thief. This last presumption is recognised by our Evidence Act which says in illustration (a) to section 114 that the Court may pre sume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. Observations are to be found in several authoritative state ments of the law, e.g., Taylor, section 127 ; Ram Sarup Singh v. Emperor (I L R 9 Pat. 606) ; E. v. Chintamoni Shahu (1930 Cal. 379 (2)) ; Q. E. v. Sami (I L R 13 Mad. 426) and Sharif Jio v. Emperor (I L R 1943 Kar. 371), that though this illustration refers only to cases of theft it is no more than an illustration and that the presumption is not confined to cases of theft and extends to all charges, however penal, including even murder. Consequently it has been held in Moktar Ali v. E. (1945 Cal. 421) and Ram Sarup Singh v. Emperor that where a person is found to have been in possession of part of property stolen in a dacoity soon after the dacoity, it may be presumed that he was one of the dacoits. While on this subject, Taylor (sec tion 127 (c)) states that in an indictment for arson proof that property which was in a house at the time it was burnt was soon afterwards found in the possession of the prisoner raises a probable presumption that he was present and con cerned in' burning the house; and that under similar circum stances a like inference arises in the case of murder, accompanied by robbery or burglary. So, in E. v. Mayadhar Pothal (1939 P W N 300) ; Ramji v. E. (53 I C 482) and Q. E. v. Sami where murder and robbery formed part of one transaction, the recent and unexplained possession of the stolen property by the accused was treated not only presumptive evidence against him on the charge of robbery but also evidence against him on the charge of murder, and in Nainamalai Konan, In re., (1921 Mad. 679) ; Kallan Narayana v. E. (56 Mad. 231) ; and Emperor v. Chintomoni Shahu unexplained possession of the jewels of a murdered woman by a person was considered presumptive evidence that he was the murderer as well as the thief. If the Court is satisfied that possession of the property could not have been trans ferred from the deceased to the accused except by the former being murdered, the accused may be presumed to be the murderer. And where in addition to his unexplained possession of stolen property there is the other evidence in support of the charge of murder, the accused may be con victed of that charge, vide Sogaimuthu v. Emperor (I L R 50 Mad. 274). From the principle which I have attempted to explain above it must follow that where a person is in furtive "possession" of the corpse of a murdered man or has secret knowledge of the place where it is lying hidden from the public view, he may be presumed to have had something to do with the murder, if he cannot give a reasonable explanation of his possession or knowledge. The evidence relating to the discovery of the body of the murdered man in consequence of the information given by the accused is admitted on the ground that it relates to the conduct of the accused, which has a bearing on the question whether the offence was committed by him. If such evidence tended only to show that the accused buried the boy and not that he also took part in the murder, it would be completely irrelevant on the charge of murder; but has it ever been contended that such evidence is not relevant to that charge ? And if it is so relevant, its relevancy could only rest on the inference that the accused was concerned in the murder. A perusal of the leading cases on the subject of corrobora tion and the actual decision in them leaves no room for doubt in my mind that the corroborative evidence in the present case was not only sufficient but of a much stronger character than has been acted upon in many cases. In R. v. Baskerville the appellant was convicted of having committed an offence under section 11 (gross indecency) of the Criminal Law Amendment Act, 1885, with two boys. In addition to the testimony of the accomplices, the only evidence given at the trial was that a letter was sent by the appellant in his hand writing, signed by him with his initial B, without any address on the letter, enclosing a ten shilling note to "Dear Harry", one of the boys, for himself and "Charlie", another of the boys, and making an appointment for them to meet the appellant "as arranged" without naming the place and at a time stated. The appellant admitted that the boys had come to his flat by invitation. All the five judges of the Court of Criminal Appeal held the evidence to be sufficient corrobora tion of the accomplices' testimony In R. v. Birkett (8 Car. & P. 732.) where the prisoner was charged withy having knowingly received stolen property, the only evidence in corroboration of the accomplice was that a quantity of mutton was found in the house in which the prisoner resided, and Patterson J, ruled that this was such a confirmation of the accomplice's evidence as he was bound to leave to the jury. This case was approved in R. v. Baskerville. Similarly in Ram Sarup Singh v. Emperor recovery of a large amount of sugar from the accused was considered sufficient corroboration to convict him of dacoity. In Hari Ram v. The Crown. (I L R 15 Lah. 673) a single Bench case from the Lahore High Court to which I refer only because the principle relating to the sufficiency of corrobora tion is lucidly stated therein, the accused was charged with having given shelter to a person who had escaped from lawful custody and the only evidence in corroboration of the testi mony of the accomplice, who was the escaped prisoner himself, was that the accused was with him when he came to the place of another accused Sotindarnath to seek shelter, yet the evidence was held sufficient because it tended to show that the prisoner had escaped from lawful custody with the help of the accused. In Barkati v. Emperor (1927 Lah.581) which is a fully argued out case, the corroborative evidence on the charge of murder related only to the association of the prisoner with the accomplice immediately before the commission of the offence. The fact that the prisoner was found in the company of the approver shortly after the dacoity was considered in Sahai Singh v. Emperor (41 I C 820) as indicating fellowship in crime. In Hakim v. King Emperor (1923 Lah. 153) the prisoner was seen with the accomplice and arrested while he was actually travelling with the accomplice under a consecutive railway ticket shortly after the dacoity and the evidence was held sufficient. Similarly, in Ram Deyal Kahar v. Emperor (1942 Pat. 271) the prisoner and the accomplice were seen together under circumstances that were extraordinary, and where the prisoner was not likely to be, shortly before the commission of the offence, and this was held sufficient corroboration. Dhanpati De v. Emperor (I L R 1944 (2) Cal. 312) is a similar case which expressly states the principle that the corroborative evidence need not be such as to prove independently that the person named by the approver was guilty of the crime. The fact that the accused was found in possession of, or produced, stolen property has always been held to be sufficient corroboration on the charge of theft or robbery. In Sher Singh v. Emperor (14 Lah. 111) the corroborative evidence consisted of the recovery of certain ornaments belonging to the deceased, and this was considered to be enough to support a conviction under sections 396 and 302 of the Penal Code. In Shanker Shet Ramshet Uravane (58 Bom. 40) on a charge of murder and robbery recovery of stolen goods from the possession of the accused was held to be good corrobora tion. Similarly in the Privy Council case in Malak Khan v: Emperor (A I R 1946 P C 16), not an approver case, the trial was for murder and robbery, but the accused was convicted only of murder and acquitted on the charge of robbery. The convicted person appealed to the High Court and though there was no appeal by the Provincial Government from the acquittal on the charge of robbery, and accepting the evidence of robbery, considered it to be good corroboration of the evidence of murder. The Privy Council approved of this course and upheld the conviction of murder. It will be noticed that in each of these cases the corrobora tive evidence could be explained either on some innocent hypothesis or on a hypothesis consistent with the prisoner's not having committed the offence of which he was convicted, but the point is that that evidence was considered by the Court with the statement of the accomplice and was treated as