077-NLR-NLR-V-69-P.-A.-DHARMASENA-and-another-Appellants-and-INSPECTOR-OF-POLICE-KEGALLA-Res.pdf
VISCOUNT DILHORNE—Dharmasena v. Inspector o} Police, Kegalla 383
[Privy Council]
Present:Viscount Dilhorne, Lord Hodson, Lord Guest,Lord Upjohn, and Sir Hugh WoodingP. A. DHARMASENA and another, Appellants, and INSPECTOR OFPOLICE, KEGALLA, Respondent
Privy Council Appeal No. 23 of 1965S. C. 31-37—D. C. (Crim.) Regalia, 2839/35332
Privy Council—Criminal case—Circumstances when Privy Council will interfere with
judgment of Supreme Court—Criminal Procedure Code, s. 347.
The Judicial Committee of the Privy Council will interfere in a criminal caseif there has been an infringement of the essential principles of justice.
Tho Supreme Court, exercising the power conferred by section 347 of theCriminal Procedure Code, increased substantially the sentenco passed on theaccused-appellants on count 3 of the indictment. The increase of sentence wasin part due to an erroneous belief that the appellants had been convicted alsoon count 2 by the trial judge.
Held, that the increase of sentence was manifestly unjust and an infringementof the essential principles of justice.
A PPEAL, with special leave, from a judgment of the Supreme Court.
F. N. Gratiaen, Q.G., with Walter Jayawardena, for the accused-
appellants.
M.P. Solomon, for the respondent.
Cur. adv. vult.
April 11, 1967. [Delivered by Viscount Dilhorne] —
The appellants were tried with five other persons in the District Courtof Kegalla on an indictment containing four counts which read asfollows :—
“(1) That on or about the 6th February 1961
you with, others unknown, were members of an unlawfulassembly, the common object of which was to commit robberyof Motor Car bearing registered number EL 5241 from thepossession of. …Punchi Banda and that you have therebycommitted an offence punishable under section 140 of thePenal Code.
386VISCOUNT DILHORNE—Dharmaaena v. Inspector of Police, Kega.Ua
At the same time and place aforesaid and in the course of the
same transaction you H. P. Hendrick Appuhamy the 1staccused being a member of the unlawful assembly aforesaidwere armed with a deadly weapon to wit a revolver and thatyou have thereby committed an offence punishable undersection 141 of the Penal Code.
That at the same time and place aforesaid and in the course of the
same transaction one or more members of the unlawful assemblydid commit robbery of the said Motor Car…. which saidoffence was committed in prosecution of the common objectof the said unlawful assembly aforesaid and you being membersof the unlawful assembly aforesaid at the time of the committingof the said offence are thereby guilty of an offence punishableunder section 380 of the Penal Code read with section 146of the Penal Code.
That at the time and place aforesaid in the course of the same
transaction you the above named accused did commit robbery
of the said Motor Carand that you have thereby committed
an offence punishable under section 380 read with section 32of the Penal Code.”
The 1st accused Hendrick Appuhamy was convicted on all four counts.The appellants and the other accused were convicted on the 1st, 3rd and4th counts. The 1st accused was sentenced to one month’s rigorousimprisonment on count 2 and to three months’ rigorous imprisonmenton each of the other counts, the sentences on counts 3 and 4 to runconcurrently so that he had to serve a sentence of seven months in all.The appellants were each sentenced to three months’ rigorous imprison-ment on counts 1, 3 and 4 with the sentences on counts 3 and 4 to runconcurrently so that they were required to serve a total of six months’imprisonment.
All the accused appealod to the Supreme Court. The 1st accused diedbefore his appeal was heard.
The Supreme Court (Sri Skanda Rajah J. and Alles J.) dismissedthe appeal. Sri Skanda Rajah J. delivered a judgment with whichAlles J. agreed. He said—
“ The accused were charged on four counts, the 4th being alternativeto the 3rd. The 1st count was in respect of an unlawful assembly,the common object of which was to commit robbery of a car. The2nd count was in respect of being armed with a deadly weapon, viz.,a revolver, while being members of an unlawful assembly. The thirdwas for robbery of a motor car valued at Rs. 4,000/- while beingmembers of an unlawful assembly. The 4th count was on the basisof a common intention, which will be alternative to count 3. TheJudge purported to convict the accused on all four counts. Theaccused could be found guilty either of the 3rd or the 4th count andnot on both counts. We would therefore set aside the conviction andsentence in respect of count 4.
VISCOUNT DILHORNE—Dharmasena v. Inspector of Police, Kegalla387
In our view the sentence passed in this case was manifestlyinadequate. The accused were armed to the teeth—with revolver,iron rods, etc. On count 1 the learned District Judge purportedto pass a sentence of three months’ rigorous imprisonment and hepurported to pass a sentence of one month’s rigorous imprisonmentin respect of count 2 (section 141) which is a more serious offencethan count 1 and punishable with two years’ imprisonment. Wcwould alter the sentences in respect of counts 2 and 3. In respect ofcount 2 we pass a sentence of 6 months’ rigorous imprisonment andin respect of count 3 two years’ rigorous imprisonment. The sentenceswill run concurrently.”
The appellants now appeal from the decision of the Supreme Courtwith special leave.
The judgment shows that the members of the Supreme Court wereunder the impression that the appellants had been convicted and sentencedby the District Judge on count 2. That was not the case. That countrelated, as has been said, only to the 1st accused Hendrick Appuhamy.
The sentence the Supreme Court purported to pass on the basis thatthe appellants had been convicted on count 2 when in fact they had notbeen charged in that count, cannot be allowed to stand and must bequashed.
Section 347 of the Criminal Procedure Code gives the Court poweron the hearing of an appeal, inter alia, to—
“ alter the verdict maintaining the sentence, or with or withoutaltering the verdict increase or reduce the amount of the sentence orthe nature thereof.”
The Supreme Court had therefore power to increase the sentence passedon the appellants on count 3 from 3 months’ to 2 years’ rigorousimprisonment just as they would have had power if the appellants hadbeen convicted on count 2 and sentenced to 1 month’s rigorousimprisonment to increase that sentence to 6 months.
In Hardtmann v. JR.1 their Lordships refused to interfere in a case inwhich the sentence passed appeared to them excessive. Lord Morrisof Borth-y-Gest, delivering the judgment of the Board, cited thefollowing passage from the observations made by Viscount Simon L.C.in Muhammad Nawaz v. The King-Emperor 2:—
“ The Judicial Committee is not a revising court of criminal appeal :that is to say, it is not prepared, or required, to re-try a criminal case,and it does not concern itself with the weight of evidence, or theconflict of evidence or with inferences drawn from evidence”
Lord Simon in that case also observed that broadly speaking theJudicial Committee will only interfere where there has been aninfringement of the essential principles of justice.
» L. R. 681. A. 126 alp. 127.
1 (1963) A. O. 746.
388VISCOUNT DILHORNE—Dharmaaena v. Inspector of Police, Kegatla
In this case it was proved that the 1st accused was armed with adeadly weapon, a revolver, for he was convicted on count 2.
Punchi Banda was asked in the course of his examination in chiefwhether any of the accused had anything in his hand. He said—
“ They had clubs. The 1st accused had a pistol. The 3rd accused
and some others pulled me out of the car. Then I fell into a drain.
Some of them had iron rods also. ”
In cross-examination, he said—
“ One or two persons had iron rods. Someone raised an iron rod
but I cannot remember who it was.”
The 2nd witness for the prosecution, a passenger in the car with PunchiBanda when the car was seized, said that about 12 to 15 persons got outof the van which held them up and that they were armed with iron rods.In cross-examination he said that he could not remember what weaponsthey had. Another passenger in the car EL 5241 said he could notremember ‘‘ whether these people were armed with any weapons ”.
There was thus some evidence before the District Judge of the carryingof iron rods by members of the unlawful assembly. There was noevidence that any blow was struck with the iron rods.
If in this case the only question was whether, in deciding to increasethe sentences passed on the appellants on the 3rd count, the Supreme .Court was entitled to attach importance to this evidence, their Lordshipswould not think, it right to interfere. Sri Skanda Rajah J. said that inthe view of the Supreme Court the sentences passed were manifestlyinadequate. The possibility cannot be excluded that in reaching thisconclusion the minds of the learned Judges were affected by their erroneousbelief that the appellants had been convicted on count 2 and had onlyreceived a sentence of 1 month’s rigorous imprisonment for that offencewhich was, as they pointed out, a more serious offence than that chargedin count 1.
The Supreme Court not only purported to increase the sentence oncount 2 from 1 month’s to 6 months’ rigorous imprisonment but alsoincreased the sentence on count 3 from 3 months’ to 2 years’ rigorousimprisonment with the result that the appellants instead of having toserve_a total of 6 months will now have to serve 24 months.
It would in their Lordships’ view be manifestly unjust and aninfringement of the essential principles of justice if it were the case thatthis substantial increase of sentence was in part due to the erroneousbelief that the appellants had been convicted on count 2.
In their Lordships’ opinion this case should be remitted to the SupremeCourt for further consideration of the appropriate sentence the appellantsshould receive on count 3 having regard to all the circumstances, to thefact that the District Judge who heard the witnesses did not appear
H. N. G. FERNANDO, S.P.J.—Nagaratnam o. Shanmugam
389
to attach importance to the evidence in relation to the carrying of ironrods and to the fact that the appellants were not charged with orconvicted of an offence against section 141 of the Penal Code.
Counts 3 and 4 were treated by the Supreme Court as alternative counts.Their Lordships agree with this conclusion.
For the reasons stated their Lordships will humbly advise Her Majestythat this appeal should be allowed to the extent that the sentences odcount 2 passed on the appellants should be quashed and that the caseshould be remitted to the Supreme Court for further consideration of thesentence on count 3.
Appeal partly allowed.