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Present: Garvin S.P.J.
KING v. AMITH.12—D.. C. (Crim.) Kandy, 4,286.
Aiding and abetting offence—Charge of theft—Failure of charge againstprincipal offender—May the abettor be convicted of retaining stolenproperty—Power of Court to frame charge under section 172 of theCriminal Procedure Code.
An accused person who is charged with abetting another inthe commission of theft cannot be convicted, as a principal offender,of the offence of retaining stolen property.
PPEAL from an acquittal from the District Court of Kandy.
The first accused was charged with theft of tea from the
possession of his employer under section 370 of the Penal Code.The second and third accused were charged with having abetted thefirst accused in the commission of the theft. The learned DistrictJudge acquitted all the three accused. The appeal was againstthe acquittal of the third accused.
The grounds of appeal were that the District Judge shouldhave, in pursuance of section 182 of the Civil Procedure Code,convicted the third accused of retaining stolen property, or
1 (1914) 4 C. A. G. 67.* (1913) 1 S. C. D. (Wijewardene Reports) 48.
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1980 alternatively, that he should have framed a fresh charge againstKimf v. the accused, invoking his powers under section 172 of the CriminalAniitk Procedure Code.
E. V. It. S am a raw i r Irene, C.C., for appellant.
April 16, 1930. Garvix S.P.J.—
This is an appeal from an acquittal. The first accused, who was ateamaker on Kahawatta. estate, was charged with theft of 267 lb.of tea, being property in the possession of his employer, an offencepunishable under section 870 of the Penal Code. The second andthe third aocused were charged under sections 370 and 102 withhaving abetted the first accused in the commission of the said theft.
The District Judge acquitted all three accused. This appeal isagainst the acquittal of the third accused alone.
The case which the prosecution sought to establish was asfollows: —
Late on the night of April 22 last the third accused hired a motor■car at Matale and proceeded in it to Mandandawela to the boutiqueof the second accused. After a brief conversation the journey wasresumed until they reached the Yatawatta junction. Near a teafactory the first accused approached the car, and at his request itwent a little way and stopped close to the factory. Two cooliescame up to the car and placed four bags in it. The car then drovebaok. On the way some Police officers whistled and signalled tothe car, but it did not stop.
The third accused, who, it is suggested, felt that discovery would1 follow, caused the car to be stopped near a cacao garden and had thebags unloaded. He poured petrol over them and set fire to the bagwhich contained tea. Hawadiya, the owner of this garden, sayshe saw the third accused in the garden and came across a heap oftea, of Which he says 2 or 8 lb; had not been burnt. He questionedthe third accused, who admitted that the tea had been stolen andappealedto him not to give information. Hawadiya, however, didprocure the attendance of the Arachchi, who made a brief inquirymid took the third accused to the Police Station.
There can •be little doubt that if the prosecution succeeded in•establishing .its case, the first accused was guilty of theft and thethird accused at least of aiding and abetting him.
The District Judge, however, declined to act on the testimonyof those witnesses who implicated the first accused, holding thatthey were accomplices, and that whether they were accomplices ornot he was not prepared to act on their testimony. Under thesecircumstances the failure of the charge of theft as against the firstaccused necessarily involved the failure of the charge made againstthe third accused of abetment of the first accused.
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" I am compelled, ” said the District Judge, “to discharge theaccused. I feel that the third accused should have been chargedwith having retained stolen property, or under the Estate ProduceOrdinance.”
The grounds upon which this appeal is taken are as follows : — •
(ti) That the District Judge should have, in pursuance of section182 of the Criminal Procedure Code, convicted the thirdaccused of the offence of retaining stolen property punish-able under section 394.
(b) Alternatively, that he should have framed a further chargeunder section 394 against the third accused and tried himon that charge in accordance with sections 172 to 176 ofthe Criminal Procedure Code.
Section 182 empowers a Court to convict a person of a cognateoffence only in the case mentioned 5u section 181, and that sectioncontemplates a case in which “ a single act or series of acts is ofsuch a nature that it is doubtful which of several offences the factswhich can be proved will constitute.” By way of illustration, it issaid that a person may in such circumstance be charged with theftor receiving stolen property or criminal breach of trust or cheatingor with having committed one of those offences. Section 182 ineffect empowers a Court in such circumstances to convict a person,charged with one offence, of a cognate offence which he is shown bythe evidence to have committed.
The third accused was charged, not as a principal but as an abettor.
As far as the first accused; the principal, was concerned, there was -and could not have been any uncertainty at all as to the offenceconstituted by the acts alleged against him by the prosecution.He was either guilty of theft or not guilty of any offence. The DistrictJudge acquitted him because he disbelieved. the evidence against■ him, not because of any uncertainty as to the offence constituted bythe facts proved. The evidence failed to prove that he was guiltyof any offence at all.
Similarly, in regard to the third accused he was manifestlyguilty of abetment if the first accused, whom he is alleged to haveabetted, was guilty of the principal offence. The effect of holdingthat, the first accused was not proved to have committed theprincipal offence is that the allegation that the third accusedabetted him also fails.
Under such circumstances as these, I am not prepared to holdthat a person charged with abetting another in the commissionof theft may under the provisions of section 182 be convicted a»a principal offender of the offence of retaining stolen property.
In regard to the second ground of appeal, the District Judgedoes' not expressly state whether he considered the question of
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framing an additional charge against the third accused in exercise■of the power vested in him by section 172. There is certainlyno indication that any application had been made to him to framesuch a charge. But inasmuch as the Judge says that once theevidence given by the third accused in a previous proceedingwas rejected by him there was no evidence to prove that tea hadbeen stolen from Kahawntta estate factory, it is at least doubtfulwhether he would have taken the course of framing an additionalcharge' of retaining stolen property against the third accused.This explains his uncertainty as to whether this accused shouldhave • been- charged with retaining stolen property, or under theEstate Produce Ordinance.
Having already decided that the third accused cannot upon thisappeal be convicted under the provisions of section 182 of theoffence of retaining stolen property, I do not propose .to considerwhether the District Judge was right in rejectipg the statementmade by the third accused when he was called as a witness againstthe first and second accused who were charged with theft of thistea. The third accused was then charged by himself in a separatecase for retaining stolen tea. The position he took up was that heobtained the tea from the first accused innocently and decided todestroy it when he realized that it was stolen property.
The prosecuting authorities decided to consolidate the two casesand ultimately indicted him with the first accused for aiding andabetting him in the commission of theft.
To direct the District Judge now to frame an additional chargeagainst the third accused would be in effect to put this accusedupon his trial upon a fresh indictment for an offence other than thaton which he has already been tried and acquitted and to which hehas indicated his defence in. the statement made by him in thePolice Court.
If .the third accused is to be convicted of the offence of retainingstolen property, it must be upon the footing that the tea was stolen.
But the District Judge has held that there is no reliable evidencethat the .first accused committed theft, or that there was a theftof tea from Kahawatta estate. Even if the accused’s statement beadmitted in evidence against him, it will only show that he receivedthe tea from the first accused, who has been acquitted of the theft.
Under all the circumstances, I do not think that this is a case inwhich the provisions of section 172 should be invoked to place theaccused upon his trial again, this time on the charge on which heyvas first brought before the Police Court, ‘ when the prosecutionwith knowledge of all the facts and circumstances elected to indicthiin with the other persons accused for a different offence.