The Queen v. WUegoda
[In the Court of Criminal Appeal]
Present: Basnayake, C.J. (President), Pulie,}., andW. de Silva, A.J.THE QUEEN v. L. P. WILEGODA and anotherAppeals Nos. 112-113 of 1957 with Applications Nos. 134-135
8. C. 19—M. G. Ratnapura 59,207
Joinder of charges—Murder—Giving false information concerning the murder—“ Same transaction "—Penal Code, ss. 198, 296—Criminal Procedure Code,88.180 (1), 184.
Evidence Ordinance—Section 17—“ Admissions ”,
Indictment—Amendment thereof—Procedure—Criminal Procedure Code, ss. 165 F (3)’
172, 218 (I), 219.
The 1st and 2nd appellants (husband and wife) were charged with murder.The 1st appellant was also charged in the same indictment, on a second countunder seotion 198 of the Penal Code, with giving false information with theintention of screening the offender responsible for the murder. The allegedmurder and the giving of false information could not on the facts be said tohave been one scries of acts so connected together as to have formed the sametransaction.
Held, that there was no authority in section 180 (1) or 184 of the CriminalProcedure Code for joining in the same indictment offences of different kindscommitted in separate transactions.
Statements which are false cannot be regarded as admissions within themeaning of section 17 of the Evidence Ordinance.
An indictment served on an aocused before trial cannot bo amendedunder section 172 of the Criminal Procedure Code before the commencementof the trial. The proper course to adopt when the Crown applies to alter anindictment is first to arraign the accused on the indictment served upon him[section 218 (1) ] and have it read and explained to him (section 219) and takehis plea. At any time thereafter, before the verdict is returned, the Court caneither ex mero motu or upon application of Counsel alter the indictment.
-^^■PPEALS, with applications for leave to appeal, against twoconvictions, in a trial before the Supreme Court.
Colvin R. de SUva, with P. B. Tampoe and 8. M. H. de Silva, forAccused-Appellants.
H. C. Jaydilehe, Crown Counsel, for the Attorney-General.
Cur. adv. vuli.
BASNAYAKE, C.J.—The Queen v. Wilegoda247
November 4,1967. Basnayake, C.J.—
The 1st appellant is the husband of the 2nd appellant. They wereindicted by the Attorney-General on charges of the murder of a womanby name Kiriweldeniya Pinthu and of causing evidence of the com-mission of that offence to disappear.
Before the indictment was read and explained to the accused as re-quired by section 219 of the Criminal Procedure Code, learned counselfor the Crown moved to substitute a new count for the second countof the indictment. That count as originally framed was against bothaccused and read—
“ That at the same time and place aforesaid and in the course ofthe same transaction, you, knowing that an offence had been com-mitted, to wit, murder, did cause certain evidence to disappear byremoving the dead body of the said Kiriweldeniya Pinthu to a cadjanenclosure by the side of the latrine of your house and placing it in suchcircumstances as to suggest that the said Kiriweldeniya Pinthu hadcommitted suicide, with the intention of screening the offenders fromlegal punishment, and that you have thereby committed an offencepunishable under section 198 of the Penal Code.”
The new charge, which is only against the 1st appellant, reads—
“ That at the time and place aforesaid and in the course of the sametransaction you the 1st accused abovenamed, knowing or havingreason to believe that an offence had been committed, to wit, murderor culpable homicide not amounting to murder of KiriweldeniyaPinthu did with the intention of screening the offender or offendersresponsible for the commission of the said offence from legal punish-ment give information respecting the said offence which you knew orbelieved to be false, to wit, the information given by you on 23rdJanuary 1957, to the Village Headman of Kuttapitiya to the effectthat when you went to the lavatory on the morning of 23rd January1957 you found the said Kiriweldeniya Pinthu of Sannasgama nearthe lavatory with a rope round her neck and that the reason why sheshould have so acted was that she was pregnant; and that you havethereby committed an offence punishable under section 198 of thePenal Code.”
This application was allowed by the learned trial Judge after hearing-counsel for both the prosecution and the defence. In fact counsel forthe defence not only raised no objection to the substitution but alsoagreed to its being made. The indictment as served on the appellantsunder section 165f (3) was not read and explained to the' appellants;it was only the altered indictment that was read and explained to them.
It will be convenient at this point to set out briefly the relevant facts.The appellants were teachers in the Pelmadulla Government CentralSchool. The 1st appellant taught in the secondary school and the
BASNAYAKE, C.J.—The Queen v. Wilegoda
2nd in the primary school. Their hours of work were in the case of the1st appellant from 7.46 a.m. to 2.20 p.m. with an interval of 40 minutesfor lunch and in the case of the 2nd appellant 7.46 a.m. to 1.15 p.m.They lived in a house at Kuttapitiya with two of their children (12 yearsand 10 years) and a nephew (11 years) all of whom attended the CentralSchool. Their eldest child was a boarder at Ananda College, Colombo.The deceased had been their cook for about two years and had about amonth prior to her death left for her home in Sannasgama about threemiles away. She stayed with her parents for about a month and returnedto the home of the appellants on 22nd January 1957. She reachedKuttapitiya about 5.30 p.m. on 21st January and stayed with thewitness Loku Menike that night. She informed her that she had beenasked by the 1st appellant to return and that if she went at that time(about 5.30 p.m.) the 2nd appellant would reprimand her. She had herdinner with Loku Menike on 21st January and left after her morning teathe next day. The deceased was pregnant and she told her motherthat the 1st appellant was the father of the child. At about 10 a.m.she was seen by the witness Punchi Menike, a neighbour, taking a bucketof water from the well in the appellants’ compound.
On the same day at about 3 p.m. the same witness Punchi Menike,who lived in a house situated above the house of the appellants, heardthe 2nd appellant utter aloud the words, “ Oki adala ganna mehatavenna, mehata venna ”. The words were addressed to the 1st appellantwho was at the door leading to the kitchen. At that time the 2ndappellant was in the firewood shed attached to her kitchen and she hadin her hands something similar to the rice pounder P4 produced at thetrial. This shed had three entrances—one from either side of it andthe third from the kitchen. Punchi Menike was about 40 feet awaywhen she heard those words. The 2nd appellant next entered the ^kitchen and the witness heard her say, “ Thota enna kiwe kauda ”.To that the deceased replied, “ I came because the master sent me amessage ”. Next the witness heard a sound as if someone was beingassaulted. She heard that sound twice. They were somewhat loudand they seemed to be sounds of blows. There was silence after that.She heard neither the voice of the 2nd appellant nor the voice of thedeceased. On the same day at about 3.30 p.m. when the witness Punchi-appuhamy who lived near by happened to be passing the house of theappellants, he heard the 2nd appellant utter aloud the words, “ Bahapiyadorata, Bahapiya dorata”. He did not see either her or the personwhom she was ordering out; but he recognised the voice as being that ofthe 2nd appellant. It came from the front doorway of her house.Punchiappuhamy proceeded to his field and attended to his work. Whilehe was there he again heard the words, “ Bahapiya dorata, Bahapiyadorata ”, after an interval of about 5 minutes coming from the samedirection.
Next day the dead body of the deceased was found in the cadjanenclosure adjoining the lavatory of the appellants. It was lying facedownwards. The head was three feet from the entrance. There was aligature round her neck, a single strand of coir string wound round the
BASNAYAKE, C.J.—The Queen, v. WUegoda‘MW
neck four times and a granny knot at the middle of the nape of the neck,the second loop of which was loose enough to admit the little finger.The rest of the coir string was dangling in front of the body on its rightside and underneath the right arm-pit.
She had two injuries—one external and the other internal., Theformer injury was post-mortem, the latter was ante-mortem. Theexternal injury was a constriction mark of ligature round the neckhorizontally placed below the level of the thyroid cartilage. The markwas wide in front and Y wide behind and J" deep. The internalinjury was a contusion 4" X 3" and Y deep over the fundus of the uterusin front. There was no external injury corresponding to the internalinjury. She was carrying a foetus of seven months’ gestation. Deathwas due to shock from a contusion of a gravid uterus of seven months’gestation. The injury was sufficient in the ordinary course of natureto cause death.
The prosecution also led evidence of statements made by the 1stappellant to the village headman of Kuttapitiya and by both the 1stand 2nd appellants to Police Sergeant Sinnatamby. The statementto the headman was made by the 1st appellant at 6.30 a.m. on 23rdJanuary. He stated—
“A girl named Kiriweldeniya Pinthu of Sannasgama, aged about22 years, was under me working as a cook for about two years in myhouse. During this period, she used to come home once in 3 or 4months and used to stay at home for a week or two and return to me.This time she went home on 10.9.56 and after her stay in her housereturned to our house at about 8 a.m. day before yesterday. Havingstayed till about 11 a.m. I returned home at about 11.30 a.m. for mymeals. She was not at home at that time. Yesterday at about 9 a.m.Pinthu came again to our house. I was staying at home as I was ill.
At 1.30 p.m. my wife returned home from school. Pinthu was toldnot to come here and she was asked to come with a guardian if she wascoming and she was asked to go away. When this was said it wasabout 4 or 5 p.m. Without going away she sat on the bench in thefirewood shed. During the night too she was in the shed. When Iwent to the lavatory in the morning I saw her dead near the lavatorywith a rope round her neck. The reason why she should have actedlike this was that she appeared to be pregnant. That was why we wereunwilling to take her to our house.”
The 1st appellant stated to Police Sergeant Sinnatamby:
“ I went for a call of nature at about 2 a.m. today and found hersleeping on the bench over a gunny bag ( “ her ” referring to thedeceased). Then I closed the kitchen door and slept.”
The 2nd appellant stated—
“She was sleeping in the cadjan shed adjoining the kitchen. Atabout 2 a.m. I Went out with my husband to urinate. At that timeI saw her lying on the bench on the gunny bag. Then we came andslept.”
BASNAYAKE, C J.—The Queen v. WUegoia
On this evidence the jury returned a verdict of culpable homicidenot amounting to murder by a majority of 6 to 1 against the 2nd appellantalone and a unanimous verdict under the charge under section 198 ofthe Penal Code against the 1st appellant. In the course of his addressthe learned Deputy Solicitor-General appears to have told the jurythat there was no case against the 1st appellant on the charge of murderand asked them to return a verdict of not guilty on that count, butas he did not formally move to withdraw the charge, under section 217 (3)of the Criminal Procedure Code, the verdict was taken.
Of the grounds of appeal taken in the petitions of appeal, the followingonly need mention:—
that the verdict is unreasonable and cannot be supported having
regard to the evidence,
that separate trials should have been ordered and in any event
count 2 should have been tried separately,
that the admission into the case of the statement of the 1st accused
to the Village Headman gravely prejudiced the 2nd accused
resulting in a miscarriage of justice.
Learned counsel strenuously urged that the evidence led by the Crowndid not establish any charge whatsoever against the 2nd appellant.
The undisputed facts in the case are—
that the deceased had been the cook of the appellants for about
two years and that she had returned on 22nd January after
more than a month’s absence,
that on 23rd January she was found dead near the appellants’
that the deceased did not commit suicide by hanging,
that at the time of her death the deceased was pregnant, and
that the 1st appellant was responsible for the pregnancy of the
The rest of the evidence is not free from difficulty. According to thewitness Punchi Menike when the 2nd appellant and the deceased werein the kitchen she heard twice a sound as if someone was being assaulted.That sound was loud enough to be heard 40 feet away, for that was thedistance from Punchi Menike to where the appellants and the deceasedwere. If those were the sounds of blows received by the deceased fromthe rice-pounder or any other weapon wielded by 2nd appellant thereshould have been some marks on her. But the medical evidence dis-closes no external marks of any ante-mortem injury. The only ante-mortem injury could in the opinion of the doctor have been caused by aprod or dig with force on the abdomen of the deceased with the rice-pounder (P 12). But he does not exclude the possibility of its having
BASNAYAKJK, C.J.—2%e Queen t>. WUegoda
been caused by accident. In cross-examination the doctor mentionedthe following as some of the ways in which the injury could have beensustained:—
(а)if she stumbled and fell against the comer of a table heavily;
(б)if she stumbled anywhere and fell;
if she had been pushed against a wall suddenly;
if she stumbled and fell against some hard object.
The doctor also expressed the*opinion that the deceased would not havebeen able to move after she received the fatal injury till she died. Punchi-appuhamy’s evidence that the 2nd appellant was at about 3.30 p.m.at the front door of the house ordering some one out of the house, pre-sumably the deceased, creates a difficulty for the prosecution. Theprosecution case is that Punchi Menike speaks to events anterior to thosespoken to by Punchiappuhamy. Punchiappuhamy’s evidenoe negativesthe theory that the fatal injury was inflicted by the 2nd appellant in thekitchen at about 3 p.m. before he heard the 2nd appellant’s voioe at thefront door, for if the deceased received the injury in the kitchen themedical evidence is. that she could not have moved out of it. There is noevidence that the 2nd appellant struck the deceased after 3 p.m. norare there any circumstances from which it can be inferred that she struckher at any time thereafter. There is therefore no clear and certainevidence on which the conclusion that the deceased suffered the fatalblow at the hands of the 2nd appellant can be based. In the opinionof the majority of us the verdict of the jury against the 2nd appellantcannot be supported having regard to the evidence.
The second count of the indictment against the 1st appellant is de-pendent on the first, and the acquittal of the 2nd appellant must neces-sarily result in the acquittal of the 1st appellant on the second oount,for if there is no convincing evidence of an offence committed by the2nd appellant to the 1st appellant’s knowledge the very foundationof the charge disappears—the essential ingredients being—
knowing or having reason to believe that the murder of Kiriwel-
deniya Pinthu had been committed, and
giving information respecting the offence with the intention of
screening the offender or offenders responsible for the commis-sion of the said offence from legal punishment.
Further the prosecution failed to prove that the information that whenthe. 1st appellant went to the lavatory he found Kiriweldeniya Pinthunear the lavatory with a rope round her neck, was false.
Learned counsel also argued that the appellants should not have beentried together and also that the counts 1 and 2 should not have beenjoined in the same indictment. The rule laid down by the CriminalProcedure Code is that for every distinct offence of which a person is
BASNAY AKE, C.J.—The Queen v. WUegoda
Accused there must be a separate charge and every charge must be triedseparately except in the cases mentioned in sections 179, 180, 181 and184. Sections 179, 180 (2) and (3) and 181 have no application to thiscase. Sections 180 (1) and 184 remain to be considered. We shall firstconsider whether the joinder of the charge of murder against the 1stappellant with the charge under section 198 was legal. It would belegal only if the two offences were committed in one series of acts soconnected together as to form the same transaction. The murders,if murder there was, and the giving of fake information cannot on thefacts stated above be said to be one series of acts so connected togetheras to form the same transaction. The learned Deputy Solicitor-Generaldoes not appear to have claimed that they were the same transactionalthough the substituted charge in terms said so. In fact he appearsto have stated to the trial Judge in the course of the argument that theacts charged in count 1 and the acts charged in count 2 constitutedseparate transactions, but that they could be joined. We can find noauthority in section 180 (1) or 184 for joining in the same indictmentoffences of different kinds committed in separate transactions. Thejoinder of the two appellants in the first count of murder is authorisedby section 184 and is not open to objection.
In regard to the ground of appeal relating to the reception in evidenceof the statement made to the village headman and the statements madeto Police Sergeant Sinnatamby, learned counsel for the Crown soughtto introduce them in evidence as an admission under section 17 of theEvidence Ordinance. We cannot agree that the statements set outabove are admissible in evidence under section 17. The purpose of the•evidence seems to be to show that the statements are false becauseaccording to the medical evidence the deceased could not have beenalive at 2 a.m. if she sustained this fatal injury at 3 p.m. and that anadverse inference should be drawn against the appellants from the fact•that the statements are false. Statements which are false cannot beregarded as admissions of facts which the prosecution has to prove.These statements were therefore not admissible under section 17 of theEvidence Ordinance.
There is one further matter which was argued before us, viz., thelegality of the amendment of the indictment, to which we wish to refer,though it is not expressly stated in the grounds of appeal, as it involvesan important question of procedure. The fact that we refer to a questionnot taken in the grounds should not be regarded as a relaxation of therule that this Court does not entertain grounds of appeal not set outin the notice of appeal.
The application for the amendment of the indictment was made beforethe indictment served on the appellants under section 165f (3) wasread to them as required by section 219 of the Code. The appellantswere arraigned on the indictment as altered. The power to alter anindictment is vested in the Court by section 172 of the Code. Sub-section (1) of that section provides that in the case of a trial before the.Supreme Court an indictment may be altered at any time before the
Leelasena v. Nadarajah
verdict of the jury is returned. It can only mean at any time after thetrial has commenced for the court has no seisin of the matter until thetrial commences. That provision cannot be regarded as authorising anamendment of the indictment before the indictment is read and explainedto the accused. Section 218 (1) requires that where the case comesbefore the Supreme Court on the committal of a Magistrate’s Courtthe accused shall be arraigned on the indictment served upon him asprovided by section 165f. In the instant case this was not done andthe alteration was made before the commencement of the trial. Altera-tion at that stage is unwarranted by the Code and is illegal. The propercourse to adopt when the Crown applies to alter an indictment is firstto arraign the accused on the indictment served upon him [section 218 (1)]and have it read and explained to him (section 219) and take his plea.At any time thereafter before the verdict is returned the Court can eitherex me.ro motu or upon application of counsel alter the indictment.
For the above reasons we allow the appeals, quash the convictionsof the appellants and direct a judgment of acquittal to be entered.
THE QUEEN v. L. P. WILEGODA and another