Present: Koch J.
DE SILVA v. VAAS.36—P. C. Gampaha, 37,222.
Offering a gratification to screen an offender—Essentials of charge—Accusedcharged with offence—Conviction for abetment of different offence—PenalCode, s. 211.
Where an accused is charged under section 211 of the Penal Code withoffering a gratification to a person for screening another from legalpunishment, it must be proved that an offence has been committed bythe person to screen whom the gratification was offered.
An acused person cannot be convicted of the abetment of an offencedifferent from the offence with which he is charged with abetting.
Notley v. Antonis (22 N. L. R. 335) followed ; King v. Amith (31 N. L.R. 457) referred to.
^^PPEAL from a conviction by the Police Magistrate of Gampaha.
H. E. Garvin, for accused, appellant.
Jayawickrama, C.C., for Crown.
March 18, 1936. Koch J.—
The appellant in this case has been charged under section 211 of theCeylon Penal Code with giving or offering a gratification to Dr. M. W. M.de Silva. Medical Officer of Gampaha, in consideration of Dr., Silva’s notproceeding against the proprietor of Wijeygiri Hotel for the purpose ofbringing him to legal punishment. The charge which was to that effectwas read from the Police report under section 148 (b) of the CriminalProcedure Code.
To begin with, it will be noticed that the charge referred to above doesnot set out what the alleged offence is that was committed by the hotelproprietor, and it has been contended on appellant’s behalf that by reasonof this omission he has been prejudiced in his defence, for he was entitled1 (1917) 20 N. L. R. 60.* (1918) 21 N. L. R. 205.
KOCH J.—de Silva v. Voas.
to know precisely what the charge against him was. There is reason inthis argument because, before a person can be convicted under thissection, it must be shown that an offence has been committed by theperson to screen whom the accused did offer the gratification. (SeeQueen v. RamaUngam Suppiah v. Kadrigamar *, and Notley v. Antonis*.)
It is common ground that the hotel proprietor was later charged withconcealing a case of chickenpox and acquitted as there was no case ofchickenpox in the hotel. This essential was entirely lost sight of by thelearned Police Magistrate who convicted the accused under section 211,and fined him Rs. 75 in default six weeks’ rigorous imprisonment in spiteof the offence of concealing a case of chickenpox by the hotel proprietornot having been proved.
Learned Crown Counsel who appeared for the respondent began his- argument by conceding that the conviction of the accused could not besustained under that section, but contended that on the facts establishedby the prosecution in the evidence that had been led, a different offencehas been proved to have been committed by the accused, viz., an abetmentof the offence set out in section 158. This section makes it an offencefor a public servant to accept or agree to accept or to obtain from anyperson any gratification other than legal remuneration as a motive orreward for showing favour to any person. It will be seen that under thissection the party charged with the offence provided for by that sectionmust necessarily be a public servant, and it has been argued that theaccused’s conduct shows that he had attempted to bribe the public servantconcerned in this section, viz., Dr. de Silva, in order to persuade himthereby not to prosecute the hotel proprietor for concealing a case ofchickenpox in that locality.
I immediately pointed out to Crown Counsel the difficulty I felt in beingunable to subscribe to that contention that a person can be convicted ofthe abetment of an offence different from that with which he had beencharged. However, the submission merely was that if I considered thatthe facts established an abetment of a different offence the accused couldrightly be convicted of abetment under section 347 of the CriminalProcedure Code unless it was felt that he was prejudiced in his defence.He further cites the case of Badulla Police v. Chelliah *. This decisionis of very little assistance.
In view of the difficulties that I felt, I have been at pains to investigatewhat precisely is the law on the subject. Our Criminal Procedure Codeis silent on the point but under section 182 which must be read in con-junction with section 181, it would appear that where a person is chargedwith an offence he might be convicted of a different offence if the factsestablished prove that he committed that other offence (section 182;also that when a person is charged with an offence consisting of severalparticulars, if some of these particulars are proved and such particularsconstitute a complete minor offence though fie was not charged with it,he can be convicted of such minor offence (section 183 (2) ) ; and lastlythat when a person is charged with an offence and facts are proved which
1 2 N.L. R. 48.3 22 N. L. R. 335.
* 8 N.L. R. 114.* 3 L.T. R. 4.
KOCH Jde Silva v. Vaas.
reduce it to a minor offence, he may be convicted of such minor offencethough he was not separately charged with it (section 183 (3) ). Bethis as it may, our Code hardly helps one to rightly conclude from theabove or any other section in the Code, that an accused can be convictedof the abetment of an offence when he has only been charged with thecommission of an offence, much less of an abetment of an offence when hehas been charged with the commission of a different principal offence.
Like our Code, the Indian Criminal Procedure Code of 1898 is also silenton the point, but West J. in 11 Bombay High Court Reports 240 held thatit is not open to a Court to find a man guilty of the abetment of an offenceon a charge of that offence iself. This judgment was so much in pointthat the Solicitor-General for the Crown in 1903, in the case of King v.Hendrick Singho', contended that an accused could not be found guiltyof abetment of murder on an indictment for murder. The argument tookplace before Mr. Commissioner Sampayo. The learned Commissionerwas, however unwilling to follow that decision in view of the law expressedin Queen Empress v. Appasubbhana Mendre % and was of opinion that anaccused could be convicted in those circumstances of abetment. He alsorelied on the facts of that case which he said were the same as would beput forward if the accused was charged with abetment, but he drew thedistinction that if the facts showed that the accused was “ present ” theprincipal offence would be committed, but if “ absent ” mere abetmentwould be committed. It is this distinction that makes me feel that theholding of Mr. Commissioner Sampayo cannot apply to every case. Forexample, if an accused is indicted with having committed murder atColombo, and the facts show that he abetted the murder at Jaffna, it ispossible that his defence may be an alibi that on the day stated he was notin Colombo, but the evidence he relies on may not prove that he was notin Jaffna ; so that, no inflexible rule can be laid down. It will depend onthe circumstances of each case.
Although the decision of West J. has been adopted in a later case in33 M. 264, this latter decision has been discussed and differentiated fromby Sundara Iyer J. in a case reported in 23 Cr. L. J. 453, where he statesas follows:—“I do not think that 33 M. 264 intended to lay down anuniversal rule that in no case can a conviction for abetment be possiblewhere the charge was only of the principal offence. The question is whatthe facts charged were.” See also A. 1. R. 1929 Cal. 207. There is alsothe Full Bench decision in 16 Cr. L. J. 676 (Burma), where it was statedthat it would not in all cases be illegal to convict of abetment a personcharged with the principal offence itself.
It would appear therefore that the correct legal view is that in certaincircumstances an accused can be convicted of the abetment of an offencewith which he has been charged. But none of these cases help one indeciding the further question whether an accused can be convicted ofabetment of an offence different from the offence with which he has beencharged. It would seem that the accumulative effect of the decisions Ihave referred to is rather in favour of the illegality of a conviction of anabetment of a different offence.
' 7 N.L. R. 97.
2 I. L. R. « Bomba;!
KOCH J.—de Silva v. Vaas.
A good deal of light is thrown by a judgment of Garvin J. in the case ofKing v. Amith1. This is a converse case. The first accused was chargedwith theft of tea. The third accused was charged with having abettedthe first accused in the commission of that theft. The District Judgedisbelieved the evidence that the first accused committed theft andacquitted him. Garvin J. was of opinion that this acquittal necessarilyinvolves the failure of the charge against the third accused. The DistrictJudge however was of opinion that the evidence led in the case establishedthat the third accused had retained stolen property but neverthelessdischarged the third accused remarking that he was not charged withthat offence. Garvin J. explains that as there could not have been anyuncertainty as to what precisely was the offence the first accused hascommitted with a knowledge of Which the third accused had been chargedwith abetment, and as the first accused was not proved to have committedthe first offence, and as the allegation that the third accused abetted himalso necessarily failed, he was not prepared to hold that a person chargedwith abetting another in the commission of theft can be rightly convictedin that case as the principal offender of the offence of retaining stolenproperty.
In the present case before me the prosecution was well aware of thefacts and with a full appreciation of what they were the appellant wascharged with having committed the offence already refered to, viz., thatunder section 211. To use the words of Garvin J. there was no uncertaintythat he committed, according to the case for the prosecution, the offence ofabetting the offence described in section 158, but yet he was not chargedunder that section. What would have been a complete defence undersection 211 is no defence under section 158. What I mean is that undersection 211 under which the present appellant is charged, it would be acomplete defence to show that the prosecution had not proved that theoffence of concealing a case of chickenpox had not been proved or thatthe prosecution for that offence had failed. It would therefore in myopinion be a distinct hardship to convict the present appellant now on acharge under section 158 read in conjunction with section 109, when hewas not apprised of such a charge at any stage of the prociedings norwas there even a reference to the commission of such offence in thejudgment of the Police Magistrate.
Garvin J. in circumstances such as these expressly refused to directthat the third accused in that case should be re-tried upon a charge ofTetaining stolen property, and this in spite of the District Judge being ofopinion that the offence had been committed. I do not see any reasonwhy I should not follow Garvin J.’s procedure and in the circumstancesof this case order this appellant not to be re-tried on a new charge whenI am aware that the prosecution with knowledge of all the facts electedto charge him for a different offence. My disinclination to do this isheightened by the further circumstance that in my opinion it has not beendefinitely proved on the proceedings already held that the . accused hascommitted the offence of abetment of this new offence. The doctor’sevidence is that the accused came into his office, remained there for alittle time and informed the doctor that there was no truth in the petition
«■ 31 N. L. B. 457.
r. K. B S2999 (1/54)
Nadarajah v. H. Don Carolis & Sons, Ltd.
that had been sent against the proprietor of Wijeygiri Hotel “ aboutchickenpox” to use his own words. The accused also told him th^jt hecame to ask for a favour. The doctor then told him that he was then busyand asked him to go away. The accused then waited a minute and left acurrency note on the table which he immediately thereafter transferred tt>his pocket when the doctor took up the telephone receiver. The doctorfurther said that the accused made no request of him, did not mention thename of any particular person and did not ask him not to prosecute anyperson. Further, in cross-examination he said that these facts made himconclude that he was offering an illegal gratification. I do admit that theinference the doctor drew was a very probable one but it is possible thatthe accused came there to ask him a different favour, some favour that heas a Medical man might have shown the accused without compromisinghimself.
It is well within the power of a tribunal to draw an inference of guiltfrom circumstances, that is to say, to act on circumstantial evidence andconvict an accused but _ it must always be remembered that such aninference of guilt cannot lightly be drawn. The rule of evidence requiresthat in order to justify such an inference the inculpatory facts mustbe incompatible with the innocence of the accused and incapable ofexplanation upon any other reasonable hypothesis than that of his guilt.
DE SILVA v. VAAS