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Present: Mr. Justice Wendt.
THE KING ». PODI SINNO.
D. C. ■ (Criminal'), Colombo, 1,993.
Robbery, charge oj—Conviction for theft—Validity—Penal Code, te. 380and 367—Criminal Procedure Code, s. 183.
A person charged with robbery under section 380 of tht CeylonPenal Code may be convicted of theft under section 367, althoughhe was not charged with it.
HE accused was indicted for robbery under section 380 of thePenal Code. The Additional District Judge (H. A. Loos, Esq.)
convicted the accused of theft under section 367 of the Penal Code,without altering or amending the indictment, and sentenced him toundergo three months’ rigorous imprisonment.
An appeal was taken on the ground that the District Judge waswrong in convicting the accused of theft under section 367 of thePenal Code without any charge under that section.
H. A. Jayewardene, for the accused, appellant.
Walter Pereira, K.C., S.-G., for the Crown.
Cur., adv. vult.
July 27, 1908. Wendt J.—
The appellant was tried upon an indictment which charged that onor about May 31, 1908, at Welikada, in the District of Colombo, hedid rob one Hettiarachchige Cornelis Perera of a comb, a handker-chief, and some money, and that he thereby committed an offencepunishable under section 380 of the Ceylon Penal Code. The DistrictJudge convicted him of theft of the articles named under section367 of the Ceylon Penal Code, and sentenced him to three months'rigorous imprisonment. The accused appeals on .the following pointof law, viz., that it was not competent for the Court upon the indict-ment for robbery to convict of the theft. Section 183 of the Criminal166 L. J. P. C. 55; 2 N. L. R. 313.
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ISOS. Procedure Code enacts that when a person is charged with an offenceJuly 27. consisting of several particulars, a combination of some only .of whichWskdt J. constitutes a complete minor offence, and such combination isproved, but the remaining particulars are not proved, he may beconvicted of the minor offence, though he was not charged with it.In my opinion this provision is ample' to support the action of theDistrict Judge. The indictment was for robbery, and it gave evenfuller particulars of the offence than appears to be the practice inIndian indictments, where it would appear to be sufficient to chargethat the accused “ did commit robbery,” or “ robbed A. B.” Underthis indictment it was open to the prosecution to prove (section 379,Penal Code) either (1) theft accompanied by hurt or wrongfulrestraint, or (2) extortion accompanied by the putting of the personrobbed in fear of instant death or hurt. This latitude is no hardshipto the accused, because the two forms of robbery are so closely alliedthat it is frequently very difficult to distinguish between them (seethe report of the framers of the Indian Penal Code, as quoted inpage 30 of the “ Law of Crimes ” by Batanlal and Diraglal, 4thedition). Inasmuch, therefore, as it was open to the prosecution toprove a theft as one ingredient of the robbery charged, it was equallyopen to the Court to convict the accused of theft and acquit him ofthe other particulars necessary to make up the offence of robbery.The evidence led for the prosecution in the Police Court gives anaccused party notice of the form of robbery which it i6 intended toprove against him, but if in any case he is in doubt, it would be opento him to require of the prosecution a strict compliance with section169 of the Procedure Code. The case of Regina v. Chand Nur andanother 1 relied upon by the appellant is not exactly in point. It wasthere held that a man charged with murder could not, on the trueconstruction of the Indian provision corresponding to section 183 ofcur Procedure Code, be convicted of abetment of the murder, becausethe graver charge did not give the accused notice of all the circum-stances going to constitute the minor offence. “ The latter,” saidWest J., “is arrived at by mere Subtraction from the former. Butwhen this is not the case, where the circumstances, embodied .in themajor charge, do not necessarily, and according to the definition ofthe offence imputed by that charge, constitute the minor also, theprinciple no longer applies, because notice of the former does notnecessarily involve notice of all that constitutes the latter.” In(the present instance, keeping in view what I have already said asto the close connection between robbery by theft and robbery byextortion, I should hold that the indictment did give the accusednotice of the charge of theft, of which he has been convicted.
The point of law therefore fails, and I dismiss the appeal.
1 Bom. B. C. Rep., vol. 11., p. 240.
THE KING v. PODI SINNO