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Present: Pereira J.
FEBNANDO v. FEBNANDO et al.
8,023—P. C. Negombo, 20,391.
Joinder of accused—Theft of bull—Receiving stolen bull.
A is accused of the theft of a bull, and B of dishonestly receivingthe animal from A.
Held, that the two could not be charged and tried togetherat one. trial unless it could be shown that they were acting in
fJ^HE facts appear from the judgment.
E. W. Jayewardene, for first accused, appellant.
H. J. C. Pereira, for the second accused^ appellant.
Cur. aiv- vult.
November 12, 1913. Pereira J.—
In this case objection has been taken to the proceedings on theground of misjoinder of accused parties, that is to say, on the groundthat the two accused have been tried together at one trial, each fora -distinct and separate offence. The first accused is alleged to havestolen a bull on October 1, and the second accused is alleged to havedishonestly received the animal from the first on October 2. Theseare two distinct and separate offences. True, the evidence againstthe first accused is largely the fact of possession by him of the bullat the time of the sale of the animal by him to the second accusedon October 2; but that fact is presumptive evidence of theft onOctober 1, and the first accused has been convicted of theft onOctober 1. The two offences are distinct, and the joinder in thepresent instance of the two accused in one trial is not justified bysection 184 of the Criminal Procedure Code. If the two accused
were acting in concert, the second accused should have been chargedwith abetting the theft, but if the idea of concert is eliminated, thetwo acts of stealing and receiving are separate acts committed byseparate persons. The position is clearly explained by Dr. Gourin Ins work on the Penal Law of India (vol. II.f p. 1510, para 2961),and this Court has repeatedly held that the misjoinder of accusedparties is an illegality that vitiated the proceedings. This verycase affords a striking example of the possible prejudice to either ofthe two accused* by reason of their being tried together, because, asobserved by the Magistrate in convicting the first accused, it isnecessary for one, in considering the case against him, to excludecarefully from his mind the statements made by the second accusedin his own defence* and to weigh as against the other accused onlythe evidence led by the prosecution. This is but too often a mentaloperation on the success of which much reliance cannot be placed.I quash the convictions and the proceedings ab inito. If theaccused are re-charged, it would be bul fair that the trials shouldhot take place before the Magistrate who has tried this case.
FERNANDO v. FERNANDO et al