K. DON WILBERT, Appellant, and SUB- INSPECTOR OF POLICE, CHILAW, Respondent

097-NLR-NLR-V-69-K.-DON-WILBERT-Appellant-and-SUB-INSPECTOR-OF-POLICE-CHILAW-Respondent.pdf


448
AXLES, J.—Don Wilbert v. S. I. Police, Chilaw
1965Present : Alles, J.K.DON WILBERT, AppeUant, and SUB-INSPECTOR OP POLICE,CHILAW, Respondent
8. C. 241/1965—M. C. Chilaw, 5252
Joinder of charges—Failure to aver that the offences were committed in the course ofthe same transaction—Effect—"Same transaction”—Criminal Procedure Code,ss. 178, 180 (1), 181—Motor Traffic Act (Cap. 203), ss. 151 (3), 161 (a) (iv),214 (1) (a), 217 (2). 224.
Where an accused person is charged at one trial with having committedtwo offences, an omission to aver in the charge that the second offence wascommitted in the course of the same transaction would not be fatal if in factthe evidence establishes that the two offences were committed in the course ofthe same transaction.
The accused-appellant was charged, under the Motor Traffic Act, ontwo counts : firstly, with driving a bus negligently and causing injury to a boy,and secondly, with failing to report the said accident to the Officer-in-Chargeof the nearest Police Station. The evidence showed that, in spite of the accident,the accused did not stop the bus and that he drove off without informing thenearest Police Station.
Held, that both offences were committed by the same person in one seriesof acts so connected together as to form the same transaction within the meaningof section 180 (1) of the Criminal Procedure Code.
The Queen v. Wilegoda (60 N. L. R. 240) discussed.
A.PPEAL from a judgment of the Magistrate’s Court, Chilaw.
A. Mahendrarajah, for the accused-appellant.
C. N. Goonewardene, Crown Counsel, with A. N. Ratnayake, CrownCounsel, for the complainant-respondent.
Cur. adv. vult.
July 9, 1965. Axles, J-—
The accused in this case was charged on two counts : firstly, withdriving vehicle No. IC 3490 in a negligent manner by doing one or moreor all of the following negligent acts :
(а)By driving the said bus at an excessive speed,
(б)By driving the said bus without a proper control,
By driving the said bus without a proper look-out,
By driving the said bus without due care and proper precautions,
By driving the said bus on the right side of the said highway,
ALL.ES, J.—Don Wilbert v. S. I. Police, Chilaio
449
(/) By driving the said bus without reasonable consideration for otherpersons using the said highway and thereby knocking down apedestrian boy named W. Cyril Anthony of Pambala in breachof section 151 (3) read with section 214 (1) (a) of the MotorTraffic Act (Cap. 203) and thereby committing an offencepunishable under section 217 (2) of the said Act ;
secondly, with having at the same time and place aforesaid driven theabove said vehicle on the said highway and having met with an accidentand thereby causing injury to the said Cyril Anthony, failing to reportthe said accident to the Officer-in-Charge of the nearest Police Stationin breach of section 161 (1) (a) (iv) read with section 214 (1) (o) of theMotor Traffic Act and thereby committing an offence punishable undersection 224 of the said Act.
Counsel for the appellant did not canvass the findings of fact butsubmitted that there was a misjoinder of charges since it was neitheraverred in the charge-sheet that the two offences were committed in thecourse of the same transaction nor in his submission did the facts establishthat this was the case.
Under section 178 of the Criminal Procedure Code—
" For every distinct offence of which any person is accused thereshall be a separate charge and every such charge shall be tried separatelyexcept in the cases mentioned in sections 179, 180, 181, and 184,which said sections may be applied either severally or in combination.”
Sections 179, 181, and 184 have no application to the facts of the presentcase and need not be considered. The joinder of the two charges canonly be supported under section 180 (1) of the Code which is in the followingterms :—
‘‘If in one series of acts so connected together as to form the sametransaction more offences than one are committed by the same personhe may be charged with and tried at one trial for every such offence,and in trials before the Supreme Court or a District Court such chargesmay be included in one and the same indictment.”
Although it was not averred that the second offence was committedin the course of the same transaction such an omission would not be fatal,if in fact the evidence establishes that the two offences were committed" in the course of the same transaction. In Choukhajii v. Emperor1 thePrivy Council expressly approved of the judgment of Batty, J. in Emperorv. Datto Han mant Shahapurker2 that
“ It is not necessary that the charge should contain the statementas to the transaction being one and the same. It is the tenor of theaccusation and not the wording of the charge that must be consideredthe test.”
1 1938 Cr. L. J. 452.
1 J. L. R. 30 Bombay 49.
450
ALLES, J.— Don Wilbert v. S. /. Police, Chilaw
This principle has been accepted as part of our law—(vide R. v. Sunderam1;Johardeen v. Ahmath2 and Cooray v. Dias3). The question whether aparticular series of acts are so connected together as to form part of thesame transaction must necessarily depend on the circumstances of eaohindividual case.
The word ‘ transaction ' has not been defined in the Criminal ProcedureCode and the Courts both in India and Ceylon have endeavoured to laydown certain tests to be applied for the purpose of determining whether aparticular series of acts formed part of the same transaction or not.In the case of Jonklaas v. Somadasa4 Wijeyewardene, J. said:—
“ In discussing the meaning of this word in the corresponding sectionof the Indian Code of Criminal Procedure the High Courts of Indiahave held that the substantial test for determining whether severaloffences are committed in the same transaction is to ascertain whetherthey are so related to one another in point of purpose or as cause andeffect or as principal and subsidiary acts as to constitute one continuousaction.”
The test whether offences were committed in the course of the sametransaction would depend on whether there was
”… .a community of purpose and a continuity of action which areregarded as essential elements necessary to link together differentacts so as to form one and the same transaction.”
This question has been considered in several decisions of our Courts.In Weeralcoon v. Mendis3 the facts were as follows :—
“ When the first accused accosted a lady passenger, an Inspectorof Police, who was present, attempted to arrest him, and the accusedran away. A Muhandiram, who was in the company of the Inspector,gave chase, and the second accused, the father of the first, who cameon the scene assaulted the Muhandiram. The first accused was chargedwith accosting, and the second with assaulting a public officer in theexecution of his duty, in the same proceedings.”
Jayewardene, A.J. in the course of the judgment said at p. 341 :
“ Now, it cannot be said that this offence of accosting passengerladies and the assault on the Muhandiram are offences committed in thesame transaction. The offence of accosting was complete when theaccused ran away from the place where the lady passengers were, and theassault on the Muhandiram by the second accused had no connectionwhatever with the offence of accosting the lady passengers by thefirst accused.”
1 (1943) 44 N. L. if. 227 at 230.s (1954) 56 N. L. R. 234 at 236.
« (1952) 55 N. L. B. 65.* (1942) 43 N. L. B. 284.
'* (1925) 27 N. L. R. 340.
AXLES, J.—Don Wilbert v. S. /. Police, Chilaw
451
Again, in Jonklaaa v. Somadasa (supra), where six accused were accusedof committing mischief on two counts, Wijeyewardene, J. held on thefacts of the case that the two offences were not committed in the courseof the same transaction. In Cooray v. Dias1 the two accused werecharged with offences under the Excise Ordinance, the first accusedwith the sale of arrack, and both accused jointly with unlawful possessionof arrack. The first accused was the proprietor of a hotel, and thePolice sent a decoy with instructions to buy arrack. The decoy boughtthe arrack from the first accused, giving him a marked note, and thesale was witnessed by the Police officers. Shortly afterwards, the Sub-Inspector entered the hotel through a back door and saw the first accusedseated on a bed and the second accused standing close by ; the decoywas standing there with a glass containing arrack, and there was a bottlecontaining arrack on a teapoy in the room. Under the bed there wasanother bottle containing arrack. The second accused admitted that helived in the hotel and that he was a servant of the first accused. TheMagistrate convicted both accused of possession on the footing thatthey were in joint possession of the bottle under the bed. In appealit was held that, as the first accused was the chief occupier of the premises,it was he alone who, in the circumstances of the case, can be said to havebeen in possession of the bottle.
In the above cases, there were more than one accused and thejoinder was sought to be supported under section 184 of the CriminalProcedure Code, but the principles applicable would be identical whethera series of acts are so connected as to form part of the same transactionunder section 180 (1) of the Code in the case of one accused or whethermore than one accused can be jointly charged with having committedoffences in the course of the same transaction under section 184.
Counsel for the appellant submitted that on the facts of the presentcase it could not be established that the two offences were committedin the course of the same transaction. According to the evidence thathas been accepted by the Magistrate, the injured boy, Cyril Anthony,was walking with one Michael Tissera, along the Chilaw-Negombo roadtowards Chilaw on the right side of the road. When they came near thePambala tavern, bus No. IC 3490 driven by the accused at a fast speedhad overtaken a car and in doing so had knocked against Anthony’sleft hand and the accused proceeded without stopping the bus. Afterthis impact, Anthony had been thrown into a. ditch. Since the accuseddid not stop after the accident, it was obviously never his intention toinform the authorities about the accident. In Counsel’s submission,after the accident occurred in the course of which the boy, Cyril Anthony,was injured as a result of certain negligent acts of the accused, thattransaction was complete and there was no connection between thattransaction and the obligation cast on the driver of the motor vehicle toreport the accident to the nearest Police Station in compliance withsection 161 (a) (iv) of the Motor Traffic Act. Counsel further stressed
(1952) §6 N. L. R. 234.
452
ALLES, J.—Don Wilbert v. S. I. Police, Chilaw
the fact that whereas section 151 relates to the culpability of the driverof a motor vehicle who drives such vehicle either under the influence ofliquor or recklessly or negligently, section 161 only relates to the dutythat is cast upon the driver of a motor vehicle to report to the nearestPolice Station when an accident occurs and injury is caused to any person,animal, or property. There is no reference in section 161 to any culpabilityon the part of the driver and an accident may occur without anyculpability being attributed to the driver at all. It is possible, however,to envisage a situation where there is a nexus between the negligentacts in consequence of which an accident occurs resulting in injury toperson, animal, or property, and the obligation that is cast upon thedriver of the vehicle to report to the nearest Police Station that suchan accident had occured. The question, therefore, arises as to whether,in such circumstances, it could be said that both offences were committedby the same person in one series of acts so connected together as toform the same transaction. The wording of section 180 (1) is significant.There must be a series of acts (or omissions) and there must be a nexur-between these various acts which would result in a completed transactionbeing presented as part of the prosecution case. It seems to me thaton the facts of the present case, the joinder of the,two offences can bejustified under the provisions of section 180 (1) of the Code when theprosecution established the following facts
that the accused was the driver of the motor vehicle ;
that he was guilty of certain negligent acts ;
that in consequence of his negligence, injury was caused to the boy,
Cyril Anthony ;
that an accident had taken place in the course of which such
injury was caused ;
that the accused did not stop his vehicle and drove off withoul
informing the authorities ; and
(/) that the accused failed to give information of that accident to the
nearest Police Station.
Mr. Mahendrarajah placed considerable reliance on the decision of theCourt of Criminal Appeal in Queen v. Wilegoda*, in support of his contentionthat in this case the offences were not committed in the course of the sametransaction. In Queen v. Wilegoda, the two accused, husband andwife, wore' jointly charged with murder, and on the second count thehusband alone was charged under section 198 of the Penal Code, in thecourse of the same transaction, with giving false evidence to thc_authorities about the alleged murder with the intention of screeningthe offender from legal punishment. The Court of Criminal Appeal heldthat on the facts as accepted by the Jury, the two offences were notcommitted in the course of the same transaction. By analogous reasoning.Counsel submitted that after the negligent acts which resulted in the injuryto the boy were committed, the transaction was complete and that therewas no nexus between these acts and the obligation cast on the driver to
* (1957) SO N. L. R. 246.
ALLES, J.—Don Wilbert v. S. 1. Police, Chilaw
45S
inform the nearest Police Station of the accident. A close examinationof the decision in Queen v. Wilegoda seems to indicate that the learnedChief Justice, in coming to the conclusion that the two offenceswere not committed in the course of the same transaction, was considerablyinfluenced by an alleged concession on tho part of the Crown at the trialthat the two offences were separato transactions but could be properlyjoined. In the course of the judgment, tho learned Chief Justice saysthat “ the learned Deputy Solicitor-General does not appear to have
claimed that they were the same transaction
In fact he appears to have stated to the trial Judge in the course of theargument that the acts charged in count 1 and the acts charged in count 2constituted separate transactions, but that they could be joined. ” Thelearned Chief Justice then continues to say, quite rightly, that such ajoinder is not warranted by the provisions of either section 180 (1) orsection 184 of the Criminal Procedure Code.
According to the transcript of the argument in Queen v. Wilegoda, towhich my attention has been drawn by Crown Counsel, it reads asfollows :—
Court :Is it your position that the charges 1 and 2 are in the
alternative ?
Counsel: In this particular case, having regard to the facts, there aretwo separate transactions : the causing of the death of thewoman in the house and the carrying of the body or thedisposal of the body into the lavatory 25 yards away.
Court:Should they not be charged in two separate cases if they are
not in the same transaction ?
Counsel: My submission is they are two offences committed in the sametransaction.
The reference therefore to two separate transactions earlier is obviouslyan error for two separato offences. Indeed, the Crown could not havemaintained that the two offences wTere separate transactions becauseit was only on the basis of the same transaction that the two offencescould properly be joined. Furthermore, at tho trial, Counsel for theCrown supported his argument by citing authority for the propositionthat the offence of murder and tho offence of concealing evidence to screenan offender could properly be joined to form the same transaction—Public Prosecutor v. Venkatamma 1; A jog Narain v. Emperor a ; andGhulam Mohammad v. Emperor 3. It is not clear whether these decisionsw'ere brought to the notice of the Court by Counsel who appeared at thehearing of the appeal, for, had this been done, the learned Chief Justicewould not have been unaware of the true position advanced by the Crownat the argument before the trial Judge.
1 33 Cr. L. J. 814.* 38 Cr. L. J. 103.
* 44 Or. L. J. 77.
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ALLES, J.—Don Wilbert v. S. I. Police, Chilaw
It is therefore difficult to resist the conclusion that, had the view of theCourt of Criminal Appeal not been coloured by this erroneous submissionon the part of the Crown, they might have held that the two offenceswere committed in the course of the same transaction. This was theview put forward by the Crown and accepted by the learned trial Judgewhen he allowed the application to amend the indictment.
In view of the above observations, with all respect to the eminentJudges who sat on the Court of Criminal Appeal, it is not out of place toconsider whether one could take a view different to that taken by theCourt of Criminal Appeal. The facts established in Qveen v. Wilegodawere to the following effect :—
The deceased was employed as a cook for about two years under thetwo appellants and had about a month prior to her death left for hervillage about three miles away. On the evening of 21st January, shecame to the house of one Loku Menike and informed her that she hadbeen asked by the first appellant to return but she did not wish to go tothe house at that time because the second appellant would reprimand her.On the following day, after her morning tea, she went to the house of thetwo appellants. The deceased was pregnant, and had told her motherthat the first appellant was the father of the child. She was seen in thehouse of the appellants who were the only occupants of the house, atabout 10 a.m. by a neighbour called Punchi Menike. At about 3 p.m.the same witness, Punchi Menike, heard the second appellant asking thefirst appellant to drag the deceased out. The second appellant wasat that time armed with something similar to a rice-pounder. Thesecond appellant then entered the kitchen and Punchi Menike heardher say, “ Thota enna kivve kavda ”. To that the deceased replied,“ I came because the master sent me a message. ” The witness thenheard the sound of blows. Thereafter there was silence. It was thecase for the prosecution that the injury which ultimately resulted in thedeath of the deceased took place at that time. The following morningthe dead body of the deceased was found in the cadjan enclosure adjoiningthe lavatory of the appellants. There was a ligature around her neck ;she had two injuries—one external, and the other internal. The formerinjury was post-mortem, and the latter was ante-mortem. The externalinjury was a constriction mark of a ligature round the neck, the internalinjury was a contusion over the fundus of the uterus in front. She wascarrying a foetus of seven months gestation. Death was due to shockfrom a contusion _pf a gravid uterus of seven months gestation. Thisinjury was sufficient in the ordinary course of nature to cause death.At about 6.30 a.m. the first appellant made a statement to the VillageHeadman of Kuttapitiya that the deceased, who was told not to cometo the house, had come there the previous evening at .about 4 or 5 p.m.Although she was asked to go away, she sat on the bench in the firewoodshed outside the kitchen. During the night too, she was in the shed.When the first appellant went to the lavatory in the morning, he saw herdead body near the lavatory with a rope round her neck. The first
ALLES, J.—Don Wilbert v. S. /. Police, Chilaw
455
appellant further suggested that the deceased had committed suicidebecause she was pregnant and because they were unwilling to take herinto the house. It was the case'for the prosecution, that after thedeceased was assaulted in the kitchen, the two appellants had removedthe body close to the lavatory and simulated a case of suicide ; thatthereafter, the first appellant had gone to the Village Headman andmade a false complaint with the object of screening the offenders.
On a consideration of the above facts, it seems to me that it wasopen to a Court, to come to a conclusion that the series of acts commencingwith the arrival of the deceased from the village on the 21st of Januaryand culminating in the false statement made by the first appellant to theVillage Headman on the morning of the 23rd of January were so connectedtogether as to form the same transaction. In that view of the matter thejoinder of the two charges at the time of the accusation, could not havebeen open to objection. It may turn out later in the course of the trialthat the offences were not committed in the course of the same transaction,but where the accusation in the indictment was that they did, the joinderwould be regular, for, the relevant point of time is that of the accusation,and not of the eventual verdict (vide the observations of Sansoni, J.in Cooray v. Dias (supra) at p. 237). As was stated by Baker J.,in Go-pal Raghunath v. Emperor1,
“So long as the accusation against all the accused persons is thatthey carried out a single scheme by successive acts, the necessaryingredients of a charge regarding the one transaction would befulfilled.”
Applying that test to the facts in Queen v. Wilegoda, it seems to methat the accusation against the appellants was that they intended tocarry out the single scheme of causing the death of the deceased andgiving a false account to the authorities of the circumstances underwhich the deceased met with her death.
I am therefore of the view that the case of Queen v. Wilegoda does notsupport the submission of Counsel for the appellant that the two offencesin the present case were not so connected together as to form part of thesame transaction.
Since I have held in this case, that the two offences were committedin the course of the same transaction, the question whether a misjoinderof such charges amounts to an illegality and not an irregularity inaccordance with the principle laid down in the Privy Council case ofSvbramnia Ayyar v. Emperor 2 is only of academic interest .
Finally, Crown Counsel brought to my notice the decision of the PrivyCouncil in the case of Queen v. Dharmmena3, where, following thedecision in Choukhani v. Emperor (supra), it was held that
… the time at which it falls to be determined whether the
condition that the offences alleged had been committed in the course of
1 (19-29) A. J. It. Bombay 128.» I. L. R. 25 Madras 61.
* (1950) 51 N. L. R. 481.
35 – Volume uax
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ALLES, J.—Don Wilbert v. S. I. Police, Chilaw
the same transaction has been fulfilled is the time when the accusationis made and not when the trial is concluded and the result known. Thecharges …. have to be framed for better or worse at an earlystage of the proceedings and would be paradoxical if it could not bedetermined until the end of the trial whether it was legal or illegal.”
The question of misjoinder has been raised for the first time only inappeal. I am therefore of the view that the submission of Counsel for theappellant that there has been a misjoinder of charges is not tenable, andthe appeal is dismissed.
Appeal dismissed.