[Court of Criminal Appeal]
1950Present: Dias S.P.J. (President), Nagalingam J. andGunasekara J.KARUPPIAH SERVAI, Appellant, and THE KING, RespondentApplication 20 of 1950S. C. 22—M. G. Colombo, 19,660
Court of Criminal Appeal—Charge of murder—Evidence only of disposal of bodyof deceased—Conviction for the latter offence—Legality—Penal Code (Cap. 15),ss. 198, 296—Criminal Procedure Code (Cap. 16) s. 182.
In a case of murder by manual strangulation, the question was whether theperson who strangled the deceased was A or B or C.
Held, that in order to secure the conviction of A for murdering the deceased,the prosecution would have to establish beyond reasonable doubt that themurder was not committedby B or C.The fact that A,after thedeceased
(1913) 16 N. L. R. 31.» (1912) 16 N. L.R. 26.
(1937) 37 N. L. R. 304.« (1913) 17 N. L.R. 29.
A.. (1913) A. H. 433.
had been strangled, helped to dispose of the dead body might be a suspiciouscircumstance, but, on the facts proved in the case, that fact did not indubitably,point, to his having strangled the deceased.
Held further, that, where the evidence warrants it, a person charged withmurder oan be convicted under section 198 of the Penal Code for causing thedisappearance of evidence of the crime, although the indictment containedno specific charge under that section.
-^k-PPLICATION for leave to appeal against a conviction in a trialbefore a Judge and Jury.1
M.M. Kumarahulasingham, witb J. G. Thurairatnam and H. .4.Chandrasena (assigned), for the accused appellant.
A. C. Alles, Crown Counsel, for the Attorney-General.
Cur. adv. vidt.
April 5, 1950. Dias S.P.J.—
Sallaiappen Karuppiah Servai (the first accused appellant) and SuppiahKaruppiah Servai were jointly charged with committing the murder ofa man named M. "Vairavan on October 3, 1948. The jury unanimouslyconvicted this appellant of murder and by a majority of five to twoacquitted the second accused.•
The evidence clearly established that on the night of October 2/3,1948, the deceased man had been done to death by manual strangulation,after which he had been decapitated and his headless trunk thrown intothe sea. The evidence of Dr. Gerald de Saram, the Judicial MedicalOfficer, proves that the hyoid bone at the base of the tongue of thedeceased was absent, and the whole of the right horn of the hyoid bonehad been fractured at its inner ends. Although, the doctor at firstwas- inclined to the view that the cause of death was decapitation, hestated that on further consideration it was clear that the decapitationhad been done after death, which had been caused by manual strangula-tion causing asphyxia. The fracture of the hyoid bone is a characteristicsign of manual strangulation. This view the jury accepted.
Death by natural causes, accident and. suicide having been negatived,the jury was, therefore, face to face with a case of homicide. The mannerin which the deceased had been killed made it clear that he had beenmurdered.
On the question as to the identity of the persons who committed themurder, the jury has acquitted the second accused. The only questionfor consideration, therefore, is whether the evidence proved the guiltof the appellant beyond all reasonable doubt?
The case against the appellant was entirely circumstantial in character,there being no direct evidence of any kind. The appellant gave evidenceon his own behalf and denied that he had anything to do with the deathof the deceased. The second accused gave evidence on oath, and broughtthe appellant on the scene about the time the deceased was killed, buthis evidence, although admissible against his co-accused, did not helpthe prosecution on the vital question as to who strangled the deceasedman.
According to the second accused, he met the appellant when he wasasked to persuade the deceased man to pay to the appellant some moneywhich was owing to him. Therefore, on the night of October 2, thetwo accused, Sinniah, the deceased man, and Sinnathamby met, and.after drinking arrack the five of them proceeded to the sea-beach nearthe railway line to discuss the question of the payment of the money.It was a very dark night. They sat down besides the railway line.The second accused then went to a place about twenty-five yarcis distant'to answer a call of nature. He was absent for about ten minutes. When*he returned, he discovered, by the* aid of the electric torch which he had„“ the first accused (i.e., the appellant) pressing the buttocks of the deceasedwho was lying on the ground, whj)e Sinniah was cutting his neck ”.If that evidence is true, then the strangulation of the deceased man musthave taken place during the ten minutes when the second accused,was absent from his companions. There is no other evidence in the;case. The evidence of the second accused, even if accepted in toto,does not throw any light on the question as to which of the three menwho remained with the deceased strangled him. There is no assignable"motive as to why the appellant should have strangled the deceased.There is no evidence that the appellant abetted the strangulation orshared a common murderous intention with the strangler. All the fivemen had partaken of arrack. "Why they went to the sea beach in thedead of night to discuss whether the deceased man should repay hisdebt to the appellant is unexplained.
The situation in which the prosecution found itself may be reducedto the following propositions:—-X (the person who strangled the deceased)may be A, B or C. In order to secure the conviction of A, the prosecutionhad to establish beyond reasonable doubt that X is not B or C. It isthen, and only then, that the guilt of A can be said to have' been estab-lished beyond reasonable doubt. In the present case the prosecution wasunable to do that. When to that is added the absence of any motivewhy the appellant should strangle the deceased, it seems elear that thecase for the prosecution against this appellant is bound to colLapse..In a case of circumstantial evidence in order to secure the convictionof the appellant the facts must be totally inconsistent with any seasonablehypothesis of his innocence. The fact that the appellant after the man■was strangled helped to dispose of the dead body may be a suspiciouscircumstance, but on the facts deposed to, it does not indubitably pointto his having strangled the deceased. Had the death of the deceasedbeen caused by decapitation and not by strangulation, the positionof the appellant might have been different, for then there was evidence,which the jury accepted, that while the man’s throat was being cut,he was holding down the deceased by his buttocks. It is unnecessaryto consider this aspect of the matter further.
We are, therefore, of opinion that the conviction of the appellant formurder cannot stand.-
The verdict of the jury indicates that they believed that this appellantwas at the scene when the man was done to ^ieath, and that thereafterhe helped in the decapitation and in the disposal of the body in order toscreen the offender from punishment (section 198 of the Penal Code).
I In the case of Emperor v. Begu S the Privy Council affirmed theconviction of a person under section 19S who was on]y charged withtanl-der, but whose guilt was not proven. It was held that he could bedonvicted under section 198 of the Penal Code although the indictmentcontained no charge under that section. 'In the unreported case 8. C. 38M. G. Hambantota No. 13,140 2 the Court of Criminal Appeal followedEmperor v. Begu 1. The Court said: “ It was not disputed at the argumentthat they could be properly convicted of this offence (i.e., section 198).The case of Emperor v. Begu 1, to which Crown Counsel referred us,bears this out. There was ample evidence in the case to establish a chargeunder section 198 of the Penal Code against the 2nd, 3rd and4th •appellants. In these circumstances we feel that the conviction of theseappellants under section 296 should be quashed, and a convictionunder section 198 substituted ”. Such an order is clearly justified bythe provisions of section 182 of the Criminal Procedure Code.
We, therefore, quash the Conviction of the appellant under section 296of the Penal Code, and convict him under section 198 of the Penal Codeand sentence him to undergo seven years rigorous imprisonment.
KARUPPIAH SERVAI, Appellant, and THE KING, Respondent
[Court of Criminal Appeal]