PODISINGHO et al., Appellants, and THE KING, Respondent

009-NLR-NLR-V-53-PODISINGHO-et-al.-Appellants-and-THE-KING-Respondent.pdf


Podisingho r_ The King
40
[Court of Criminal Appeal,]
1951Present :Dias S.P.J. (President), Basnayake <1.,Gnnasekara J.f Pnlle J. and de Silva J.PODISINGHO et al., Appellants, and THE KING, RespondentAppeals 45-48 with Applications 61-64 of 1951S. C. 32—<!f. 0. Ratnapura, 18,478
Criminal procedure—Joint trial of several persons—Discretion of Court, to orderseparate trials—Criminal Procedure Code, ss. 184, 330.
Criminal Conspiracy—Circumstantial evidence—Abetment—Summing up—Properdirection to jury—Penal Code, s. 113B—Court of Criminal Appeal Ordinance,s. 5 (J), proviso—Criminal Procedure Code, s. 343.
Five persons were being jointly tried before a Judge and Jury. On the fifthday of. trial the second accused took ill and it was rejported that he would beunable to attend Court for about 28 days. Thereupon,, the presiding Judgemade order that the trial of the other four accused should proceed and that thesecond accused be tried separately.
Held (by the majority of the Court), that section 184 of the Criminal ProcedureCode gave the Court the power to make such order. The discretion vestedin the Court to order a separation of trials may be exercised not only before theaccused is given in charge of the jury but also at any subsequent stage.
Held, further (by the majority of the Court), (i) that in a prosecution forcriminal conspiracy, it is the duty of the trial Judge to explain to the jury in hissumming-up the law relating to the offence of criminal conspiracy; merelyreading the Penal Code definition of the offence is insufficient. Where there issuch non-direction, there is a miscarriage of justice and the proviso in section.5 (1) of the Court of Criminal Appeal Ordinance cannot be applied.
that in a case of circumstantial evidence it is the duty of the trial Judgeto tell the jury that such evidence must be totally inconsistent with the innocenceof the accused and must only be consistent with his guilt.
that in a prosecution for abetment the trial Judge should, in his summing-up, explain to the jury the law relating to abetment.
A
PPEALS, with applications for. leave to appeal, against certainconvictions in a trial before the Supreme Court.
M.M. Kumarakulasingham, with J. C. Thurairatnam and D. W. F..Jayasekera, for the 1st, 3rd and 4th accused appellants.—The prosecutionasked for a separation of the trial under section 184 of the CriminalProcedure Code. Section 184 has no application to the present case.That section enables a trial Judge to exercise his discretion as to whetherthere should be a separation of trial. The Judge can only exercise hisdiscretion before the accused persons are given in charge of the Jury.In the present case the Judge acted when the time for the exercise of his
3Lin
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Padisingho x>. The King
discretion had already passed. Section 230 of the Criminal ProcedureCode makes specific provision for a case like the present. The Juryshould have been discharged: in regard to all the accused and a new trialordered. See In the Matter of the Trial of Thomas Perera alias Banda 1and The King v. Vidanagamagc Edwin 2. As regards English proceduresee R. v. Aheame * and R. v. Marian Grondkowski and HenrykMalinowski *. English cases, however, are not applicable as section 6of the Code comes in only where no specific provision is made in the Code.On the question of “ prejudice ” under the proviso to section 5 (1) of theCourt cf Criminal Appeal Ordinance it is submitted that the trial in thepresent case is a nullity because of absence of jurisdiction. The provisodoes not therefore apply. Even if the trial is not a nullity it is submittedthat in a conspiracy case evidence must be looked at as a whole in orderto ascertain the common intention. The absence of the second accusedcaused prejudice to the other accused.
The trial Judge failed to explain the law of conspiracy to the Jury.He merely read the relevant section of the Penal Code. There was thus' an absence of an adequate direction on .the law relating to conspiracy.See section 243 of the Criminal Procedure Code and Israr Husain v.Emperor *.
The trial Judge failed to point out to the Jury the evidence on whichthe Crown rested its charge of abetment. He also failed to explain tothe Jury what constituted abetment.
The statement, P 12, was a confession and was improperly admitted.
Finally, it is submitted that the trial Judge’s direction to the Jury,that any person who crossed the “ dolla ” on the night of the incidentwould be presumed to have had the common murderous intention, wasinadequate and may have misled the Jury.
M. M. Kumarakulasingham, with D. W. F. Jayasekera and CharlesJayawickreme, for the 5th accused appellant.
R. R. Cro8sette-Thambiah, K.C., Solicitor-General, with A. C. Alles andA. C. M. Ameer, Crown Counsel, for the Crown.—The order of the trialJudge that the trial should proceed against the other accused can bejustified under seection 184. The words “ accusation ”,“ charge ”.
” indictment, ” and ” arraignment ” are not synonymous. SeeArchbold, 1951, ed., p. 39S ; R. v. William Stirland 6 ; Babulal Chankhaniv. King Emperor 7 ; Tirlak Chand v. Rex 8. Section 184 must beconstrued with reference to its context. The word “ chargedin that section does not mean the reading of the charge or indictment.The words “ as the Court thinks fit ” qualify the word ‘‘ tried Thesewords are of the widest possible import. It is to be presumed that theCourt will “ think fit ” to adopt, in each particular case, whichevercourse it regards as most conducive to .the ends of justice—Emperor v-Har Prasad Bhargava 8.»
1 (1927) 29 N. L. R. 6.
(1947) 48 N. L. R. 211.3 (1852) 6 Cox. C. C. 6.
(1946) 1 A. E. R. 559.
* (1923) A. I. R. Allahabad 91 at p. 107
6 (1941) 42 Cr. L. J. 728 at p. 732.* (1943) C. A. R. 40 at p. 51.
1 (1938) A. I. R. (P. C.) 130 at p.
133,
» (1949) A. I. R. Allahabad 187.
Podisingho r. The King
51 –
The Judge can exercise his discretion once and he can exercise it eitherat the commencement of the trial or at a later stage. Assuming thatsection 230 is not applicable, if section 184 applies and there is a casusomissus then English law is applicable. As regards the English law seeArchbold, 1951 ed., p. 184 ; R. v. Marian Qrondkowski and HenrykMalinowski 1 ; and the English Indictments Act of 1915 in 6 Chitty'sStatutes, 6th ed., p. 683. If the trial Judge exercised his discretion inthe matter of separation of trial, the Court of Criminal Appeal should notinterfere unless it is shown that the exercise of the discretion has resultedin a miscarriage of justice—R. v. Marian Grondkowski and HenrykMalinowski (s-upra). On the ‘question whether a “ joint trial ” is aconsolidation of several trials see The King v.'Pedrick Singho 2. In ourCode the trial is of the “ charge " not of the “ accused ”. Each indi-vidual is on trial on each individual charge. In The King v. NissankaMichael Fernando 3 it was held that each count of an indictment is for thepurposes of evidence and judgment a separate indictment. She alsoThe King v. Emanis 1 and Lord Atkinson’s remarks in Crane v. The Directorof Public Prosecutions
With regard to section 230 the “ discharge of the Jury ” contemplatedin the section does not mean the physical removal of the Jury, but meansthe discontinuation of proceedings.
With regard to the question of prejudice ”, if the trial was conductedsubstantially in the maimer prescribed by the Code, but some irregularityoccurred in the course of such conduct, the irregularity can be cured—Pulukuri Kottaya v. Emperor 8.
A. C. Alles, Crown Counsel, continued for the Crown.—In the circums-tances of this case the direction of the trial Judge regarding conspiracy wasadequate. There was direct evidence of the conspiracy. No directionon circumstantial evidence was necessary. The only question was thecredibility of the. witness, Edwin. The duty of the Judge is to lay downthe law in reference to the case presented to the Court and the facts of theease and not to perplex the mind of the Jury—Emperor v. Upendra NathDas 7. The question in the present case was whether on the evidenceof Edwin there was a ” plot ”. The Judge not only read the sectionbut also explained the law subsequently. Further, the omission toexplain to the Jury all essential elements of an offence charged againstan accused does not vitiate a .trial if it has not occasioned a failure ofjustice—-see Emperor v. Jhina Soma 8 and Lord Dunedin's judgment inShaft Ahamad v. Ktng Emperor 9. The direction on the law of abetmentwas covered by the direction on conspiracy. There was also an adequatedirection on the common intention.
M. M. Kvmarakulasingham, at the request of ' Court, replied—Insection 184 of the Criminal Procedure Code the words ” as the Courtthinks fit ” qualify the word “ charged ” as well as the word " tried ”.The language of the Code is conclusive and effect must be given to the
1 (1946)31 C. A. R. 116 at p. 120.6(1921)ISG. A. R. 183 at p. 207.
(1946)47 N. L. R. 256.8(1947)A.I. R. (P. C.) 67 at p.69.
8 (1951)52 N. L. R. 571.7(1914)16Or. L. J. 561.
(1940)41 N. L. R. 529.8(1939)A.I. R. Bombay 457.
• (1925) A. I. R. (P. C.) 305.
DIAR S.P.J.—Podisingho c. Tlir. King
52
plain meaning- of the language used, unless there is ambiguity—Babulal.Chankhani v. King Emperor (supra). Regarding the failure of theJudge to direct the Jury on an important element in the case see
R.v. Morris Ferguson 1 and R. v. Alfred Hilliard
Cur. adv. vult.
September 17, 1951. Dias S.P.J.—
Five persons were charged in this case in which the 1st, 3rd, 4th and5th accused appeal against their capital convictions. There are alsofour applications for leave to appeal on various grounds.
The trial began on May 28, 1951, and while it was in progress it wasreported on June 1, 1951, that the 2nd accused was suffering from mumpsand would not be able to attend Court for 27 days. The trial thenproceeded against the remaining accused and ended in the capitalconvictions of these appellants.
The first point which was argued appears as Ground No. 6 set out inthe petition of appeal, namely, “ that the learned trial Judge was wrongin law in allowing the Crown's application for a separation of the trialof Surabiel, the 2nd accused, on the fifth day of trial after the main testi-mony in the case had been led The relevant entries in the shorthandtranscript of the record read as follows: —
"1.6.51—When the Court assembles the Clerk of Assize informsthe Court that there had been a telephone message from the prisonauthorities that the 2nd accused was suffering from mumps and wouldnot be available till the 28th ”,
Thereupon Crown Counsel applied that the trial should proceed and heasked for a separation of the trial against the other accused under s. 184of the Criminal Procedure Code. The learned trial Judge observed:“ Of course I cannot adjourn the trial at this stageThereafter an
argument took place. Mr. Sivasubramaniam, Who appeared for theabsent 2nd accused, objected to the application of the Crown. Mr. A. B.Perera, who appeared for the 1st, 3rd and 4th accused, said that “ so faras his clients were concerned he was not able to object to the applicationor to support it. He left it entirely in. the hands of the Court. ” Mr.Jayawickreme, who appeared for the 5th accused, stated that " hehad no objection to the trial proceeding against his client. ’’ Thelearned trial Judge then further questioned Mr. A. B. Perera, who stated:"I have no objection to the trial proceeding against my clients ".Thereupon the learned Judge made the following order:
“ I direct the trial to proceed against the 1st, the 3rd, the 4th andthe 5th accused. I order the 2nd accused to be tried separately
The Court then suggested to Counsel and the Jury that for the rest of thetrial whenever reference was made to the 2nd accused, he should bereferred to by his name, Surabiel, and not as the 2nd accused. The trialthen proceeded to its conclusion.
1 (1913) 9 C. A. R. 113.
(1913) 9 C. A. R. 171.
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DIAS S.P.J.—Podisinghn v. The King
Quite apart from the legal position, one point strikes the eye. Beforethese accused were convicted the learned counsel who appeared for themeither left the matter “ entirely in the hands of the Court ”, or “ had noobjection to the trial proceeding After the trial ended in the con-viction of the appellants, the procedure which they accepted andacquiesced in in the lower Court is now called in question by counsel forthe appellants.
Mr. Kumarakulasingham, who argued the case for all the appellants,submitted that s. 184 of the Criminal Procedure Code has no applicationto the present case. According to his submission the application of thatsection is confined to a stage before the accused are given in charge of theJury. Be submits that the section which applies is s. 230 ; and that in atrial by Jury where several accused are jointly tried there is only one trialand not several trials proceeding simultaneously. He argues thatwhen s. 230 provides that when the accused becomes incapable ofremaining at the Bar, and when in the opinion of the Judge the interestsof justice so require that the jury may be discharged, it means thedischarge of the jury in regard to all the accused. He therefore sub-mitted that in this case there was no option but to discharge the jurywith regard to all the accused and order a new trial. The learnedSolicitor-General submitted that the order of the trial Judge could bejustified under s. 184. He submitted that the provisions of s. 184 werenot confined to any particular stage of the proceedings but could beutilised at any stage of the trial.
We hold that the presiding Judge had a discretion to make the orderthat he did make directing that the trial of the appellants should proceed3nd that the 2nd accused should be tried separately. We are not agreed,however, as to the reasons for this decision. Four of us hold that section184 gave the learned Judge the power to make this order. Our BrotherGunasekara disagrees with this view and is of opinion that the powergiven by that provision cannot be exercised after the accused havepleaded to the charges; but that the order in question can be justifiedas being in effect an order under section 230 discharging the jury in thetrial of the 2nd accused, which up to that time was being conductedtogether with the trials of the appellants. The views expressed in thediscussion that follows are those of the rest of us only.
The Solicitor-General argued that the language of s. 184 was significantand submitted that plain words should be given their plain meaning.In the case of R. v. Shankhani 1 it was held that the language of theCriminal Procedure Code of India is conclusive and must be construedaccording to ordinary principles so as to give effect to the plain meaningof the language used. No doubt in the case of an ambiguity, thatmeaning which is more in accord with justice and convenience must bepreferred, but in general the words used must be given their ordinarymeaning.
Before proceeding to consider the main question raised under thisground of appeal we think it is necessary to clear the ground in regardto certain matters which appear to cloud the issue. If during a1 (1938) A. I. It. Privy Council 130.
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DIAS S.P.J.—Podisingho r. The King
non-summary inquiry before a Magistrate, or a trial before a Magistrate ora District Judge, one co-accused is taken ill it is open to the trial Judgeunder s. 289 of the Criminal Procedure Code to adjourn the trial. Further-more, if in a trial by jury before the Supreme Court one co-accused istaken ill and the doctor reports that he would be capable of attendingCourt in a day or two, it would be possible under s. 289 to adjourn thetrial of all the accused without discharging .the jury who will be swornnot to communicate with any other person excepting a fellow jurorregarding the case. The jury however are only summoned for a periodof 14 days and if the indisposition or incapacity of a co-accused is suchthat the adjournment may have to last beyond .the 14 days, thenobviously the provisions of s. 289 would become impracticable. More-over, under the Criminal Procedure Code, it is open to the trial judge,although this provision of law is not usually availed of, under s. 241 (1) tokeep the jury together during an adjournment. It was obviouslyinconvenient in. the present case to have kept the jury together untilthe absent co-accused was able to be present after 28 days.
The language of s. 184 clearly indicates that it cannot have anyapplication to a case where there is only one accused. It can only applywhere more persons than one are proceeded against, and where morepersons than one are accused of jointly committing the same offence,or of different offences committed in the same transaction, or where oneperson is accused of committing any offence and another of abetment of orattempting to commit such offence. The word " accused " must becontrasted with the word ' ‘ charged ” which appears later in s. 184. Thetwo words are not exactly synonymous and the use of these two wordsin the same section indicates that they mean two different things.Neither of the words has been defined either in the Criminal ProcedureCode or in the Interpretation Ordinance. The ordinary dictionarymeaning of the word “ accused ” is “ complained against ”, or “ foundfault with ”. The person who makes the “ accusation ” is the “ accuser ”.
When an accused .pleads guilty before proof is led, ordinarily therewould be no trial and he may be convicted on his plea—see ss. 205, 220.vVhen however an accused pleads guilty during the course of a trial byjury, their verdict is necessary before he can be convicted. Otherwisehis conviction is a nullity and renders it liable to be quashed. The caseof R. v. Sittambalam 1 furnishes an example of the procedure a trial judgeshould adopt when in the course of a trial by jury a prisoner withdrawshis plea of not guilty and substitutes a plea of guilty to a lesser offence.It must be noted however that in: that case both the accused during thecourse of the .trial pleaded guilty to lesser offences.
Section 184 vests a discretion in the trial Judge where several accused arejointly charged to decide whether they should be tried “ together orseparately as the Court thinks fitIn B. b. Kadir 2 it was laid down that
upon general principles, every person is entitled, in the absence ofexceptional authority conferred by the law to the contrary effect, whenrequired by the judiciary either to forfeit his liberty or to have his libertyqualified, to insist that his case shall be tried separately This is the
» (1961) 52 N. L. R. 374.* I. L. R. (1886) 9 AUahabad 452.
DIAS S.P.J-—Podisinglw r. The King
55
general rule laid down by s. 178 of the Criminal Procedure Code. Itoccurs in a group of seotions, of which s. 184 forms a part. Exceptionsto that general rule are to be found in ss. 179-184.
It is settled law that the words “ may be tried together or separatelyas the Court thinks fit ” confer a judicial discretion on the trial Judge.In ihe case of R. v. Gib bins 1 the Court said: “ The rule is that it. is amatter for the discretion of the judge at the trial whether two peoplejointly indicted should be tried together or separately. But the Judgemust exercise his discretion judicially. If he has done so this Courtwill not interfere, but that is subject to this qualification. If it appearsto this Court that a miscarriage of justice had resulted from the personsbeing tried together, it would quash the convie.tion ”. This case hasbeen- consistently followed in later cases such as R- v. Thompson &By waters 2 and R. v. Brown & Kennedy 3. In the last case the Courtof Criminal Appeal said after approving the decision in 12. v. .Gib bins 1“ In the present case the experienced Judge who had tried it had exercisedhis discretion judicially and there is not the faintest ground for thesuggestion that any miscarriage of justice had resulted from his decision ”.In R. v. Grondkowski * the Court of Criminal Appeal said: “ When anapplication is made by .a prisoner indicted jointly with another that heshould be tried separately, it must be at the outset of the trial though notnecessarily before the plea, and the Judge can only act upon the materialbefore him which ordinarily will be the depositions and exhibitsThe rule after all which must be applied by a Court of Criminal Appealon a matter which is essentially one of discretion is, has the exercise ofthe discretion resulted in a miscarriage of justice ? If improper pre-judice has been created, whether by a separate or a joint trialthis Court will interfere but not otherwise ”. What this last case decidesis that when there is an application by one prisoner for a separate trialunder s. 184, that application must be made at the earliest stage and atthe earliest opportunity. It is not an authority which helps us to solvethe problem which arises in this case, namely, whether separation can beordered at a later stage of the proceedings. The normal case of coursewould be where prisoners accused jointly ask for a separation but thereis nothing in the language of s. 184 to confine its application to sucha case. The problem in the present case is as to when the trial Judge“ may think fit ” to order a separation. Must tha.t discretion be exercisedbefore the accused is given in charge' of the jury as argued for theappellants, or may it be used at any subsequent stage? Section 184 is silenton that point.Fourof us are ofopinion that there is no warrant for so
restrictingthescopeof s. 184. Nor do we think, as was argued, that a
duty is cast upon the trial Judge, before the prisoners are called upon toplead, to hold a kind of preliminary inquiry in every case to decidewhether ajoint trialshould takeplace or whether separation should be
ordered.Weagreethat once atrial Judge has exercised his discretion
and ordered a separation of trials he cannot at.a subsequent stage ordersuch prisoners to bechargedjointly,but the majority of us are ofopinion
that there is nothinginthelanguageof s. 184 which preventsa trial
1 13 C. A. R. 134.* {1928) Notable British Tria Is at p. 21.
* 17 C. A. B. 66.* (1946) 31 C. A. JR. 116.
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DIAS S IM.—Podisingho r. The King
Ju.dge from exercising the discretion vested in him to order a separationof trials for an adequate reason after the trial has begun. In a trial byjury in such a case those prisoners whose separation has been ordered willbe discharged from the charge of the jury. The Judge will decide this asa matter of law. The prisoners who are thus discharged stand in nojeopardy and can be proceeded against subsequently.
Ye are of opinion that the question whether there is a rasnn omixsmsdoes not arise for decision. It is therefore unnecessary for us to considerthe scope and effect of the English Indictments Act of 1915.
We are of opinion therefore that the 6th ground of appeal fails.
The 2nd point argued is Ground No. 2 in the petition of appeal, namelythat “ the learned trial Judge had failed to sum up the facts and circum-stances in relation to the first charge of conspiracy, nor was his directionas to the ingredients of the offence of conspiracy adequate in the circum-stances of this case—more particularly as he failed to point out that theobject of the conspiracy could not be determined by the fact that fatalinjuries had been caused on Mudalihamy the deceased ”. The 1st countof the indictment charged all the accused as follows : —
That between February 26, 1950, and March 1, 1950, the accuseddid agree to commit or abet or act together with a common purposefor. or in committing or abetting the offence of murdering one P. A.Mudalihamy—s. 113b read with ss. ,296 and 102 of the Penal Code.
It would be convenient at this point to state briefly the salient facts onwhich the prosecution relied to establish the charges in the indictment,namely (a) the above count 1 of conspiracy, (fc) that on or about February28, 1950, the 3rd and 5th accused did in furtherance of the commonintention of all commit the murder of P. A. Mudalihamy—s. 296 of thePenal Code, and (c) that in the course of the same transaction the 1st,2nd and 4th accused did abet the murder of P. A. Mudalihamy by the3rd and 5th accused—ss. 296 and 102 of the Penal Code. There was nodirect evidence in respect of any of these counts. The Crown sought toestablish the guilt of the accused on circumstantial evidence based onthe testimony of a person called Edwin who admittedly was an accomplice.There was evidence of previous ill-feeling between the deceased man andthe 1st accused. The 4th accused was related by marriage to the 1staccused, the 3rd accused is a brother of the 5th accused and the 2ndaccused is a cousin of the 1st accused. There is not the slighest doubtthat some person or persons had murdered the deceased on the night- inquestion. The post-mortem examination revealed that he had receivednine injuries, three of which were each necessarily fatal. The doctorwas of opinion that the knife PI, which was found near the body of thedeceased, could have caused those injuries. The prosecution contendedthat Edwin’s evidence was corroborated by independent evidence whichlinked him with the accused at various stages of the transaction. Edwinsays that the 4th accused promised to get him employment. He askedhim to go to the house of the 1st accused. Edwin went there and the1st accused asked him to stay in his house until the 4th accused came.He had dinner there and went to sleep. About midnight the 4th accused
DIAS S.P.J.—Podisingho v. The King
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woke him ami told him to take two other men, namely the 5th accusedand an unknown man, to the Udahagedera. Edwin did so and returnedto Ihe house of the 1st accused and went to sleep. The next day he wentto the boutique with the 1st accused at 3 p.m. They bought provisionsancl were returning when they saw toddy being tapped on a hill top. Asthey were proceeding up the hill the 4th accused joined them and theyall drank toddy which was supplied by a- man called Sirisena. Thereafterthe three of them went back to the house of the 1st accused. About7 p.m. the 3rd aud 5th accused and an unknown man came there. The1st, 2nd, 3rd, 4th and 5th accused and the unknown man went inside thehouse while Edwin remained outside. He did not hear what was said.Then the 4th accused told Edwin to go with the-3rd and 5th accused andthe unknown man, while the rest remained in the house. This quartetwent along the path and then turned off along another path which ledto the stream or dolla. There the 3rd accused told Edwin to wait, andadded " If the baas (deceased) comes let him pass, but if it is anyoneelse give a cough ”. Edwin says he knew the deceased man and he alsorealised that the cough was to serve as a warning. The other three,namely, the 3rd and 5th accused and the unknown man, crossed thestream and went on. Edwin then saw the deceased coming along thepath and going across the dolla in the same direction as the other threemen had gone. He was carrying a gun and a torch. Edwin remainedwhere he was until he heard a- cry of “ Amme ”. He then got frightenedand left the place and returned to the house of the 1st accused. Eaterthe 3rd and 5th accused and the unknown man arrived at the house fromthe direction in which they had gone. He saw that the 5th accused hada gun and a torch, which he did not have when he set out towards thedolla. He also saw blood on the 5th accused’s clothes. He heard 5thaccused say “ we have done the work as Podisingho said. Now wemust be gone before dawn ”. The 2nd accused gave some money to the1st accused who handed that money .to the 5th accused. The 5th accusedthen took off his sarong and put on a sarong which the 1st accused gavehim. He also handed his sarong, the gun and the torch to the 1st accused.Thereafter the 3rd and 5th accused and the unknown man left .throughthe back compound. Edwin identified the knife PI which was foundby the body of the deceased as being the knife which the 5th accused hadthat evening. After the 3rd and the 5th accused and the unknownman left the rest went to sleep. Before dawn the 2nd and 4th accusedgot up and spoke to Edwin, and the 4th accused told him “ Do uot revealanything that you know to anybody ” and they went away.. Edwinthen went back to his village. He kept quiet and made no disclosuresfor three or four months.
The Crown sought to corroborate Edwin by the following items ofevidence:Podinona, the mistress of the deceased, heard the murder
being committed and although she went out and saw the figures of threepersons she could not identify them. This evidence supports Edwin’sstory that three men crossed the stream before the murder. Podinonaalso stated that on the day following the discovery of the corpse the 1staccused making a warning gesture told her to keep silent. The witnessSirisena, who supplied toddy on the evening previous to the murder,
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DIAS S.P.-T.—Podisingho v. The King
supported Edwin by bringing him into contact with the 1st and 4thaccused. The witness Dingiri Mahatmaya, who is employed on an estatenear the scene of this incident says that on or about the time the deceasedmust have been killed he saw a man walking away hurriedly along the pathwhom he identified as Edwin. This supports Edwin's evidence that hewas going away, from the scene of the murder alone. About 15 or 20minutes later Dingiri Mahatmaya saw three other men pass. He identifiedthe 3rd accused but not the other two. All of them came from the directionof Podinona’s house which was near the scene of the murder. One of themhad a gun and a torch. This evidence supports Edwin when he implicatesthe 3rd accused as being one of the men who crossed the dolla and alsohis evidence regarding the gun and the torch. The witness Rattaranhamyheard of the death of the deceased on March 1st. On that day he wasin a bus and he saw the 2nd and 4th accused get into that same bus. The2nd accused alighted en route and the 4th accused continued travellingafter Rattaranhamy had alighted. He identified both of them at anidentification parade. The Grown submits that this evidence affordssome slight corroboration of Edwin’s evidence when the latter says thatthe 2nd and 4th accused were engaged with others in this commonenterprise.
There is the statement of the 5th accused, P12, which he made to the' Magistrate before the commencement of the Magisterial inquiry. It wasargued that P12 amounts to a confession and that it was wrongly admittedin evidence inasmuch as the presiding Judge did not consider the questionwhether it was voluntarily made before he admitted it in evidence. Weare of opinion that it is not a confession and that it was properly admitted.According to P12 the 5th accused brings himself on the scene and he linkshimself with the accomplice Edwin. There is also a reference to Lewisthe 4th accused. The trial Judge rightly told the jury that the statementof the 5th accused incriminating the 4th accused was not admissibleevidence against the 4th accused.
The complaint of the appellants is that the summing up of the trial-Judge in regard to the first charge of conspiracy was inadequate. Thetrial Judge said:“I shall take count 1 of the indictment and read to you
the text of the Penal Code definition of criminal conspiracy. I will askyou to listen very carefully to the definition because counsel for the 1st,3rd and 4th accused said there was no conspiracy or evidence of it. Thisis what the Penal Code says: (The Judge then read the definition ofCriminal Conspiracy). It is for you to say, having heard the evidence,whether the facts placed before you would justify you in coming to theconclusion that there was a conspiracy to cause the death, to committhe murder, or abet the murder of Mudalihamy. That is entirely aquestion for you. . I will summarise the entire evidence foryou and you will deal with that evidence in the light of the submissionsmade by counsel for the 1st, 3rd, 4th and 5th accused ”. Then againat page 31 of the transcript of the charge the Judge said: “ It was alsosuggested that if Edwin stayed where he is alleged to have stayed hewould have been seen. Do not forget that it was a narrow path flankedby shrubs. I would also ask you to follow this evidence carefully becauseit is upon this evidence that the Crown says there was a conspiracy.
DIAS S.P.J.—Podisingho v. The King
>9
It is from this evidence that you have to gather' the conspiracy The•Judge then proceeded to comment on the evidence of Edwin and pro-ceeded, at page 32 of the transcript, as follows: “ These are items fromwhich the Crown wants you to infer that there was a conspiracy to murderor abet the murder of MudalihamyThen at page 57 the following
is recorded:
“ Foreman.—My Lord, Crown Counsel said in his opening addressthat if we found a verdict of guilty on the first count we need notproceed to consider the other counts.
Court.—There arc three counts in the indictment and I want you toreturn a verdict on each count. You may- now retire and consideryour verdict. (The jury retires.)
After some time the jury send word through the crier that they wouldwish to have further directions and the court sends for them and chargesthem further.
Foreman.—My Lord, certain members of the jury have had a littledifficulty as regards counts 2 and 3 and would wish you to give furtherdirections on counts 2 and 3.
Court.—The first count is conspiracy to murder, either to commitor abet the murder of this man Mudalihamy. On count 2, the 3rdand the 5th accused are charged with the murder of the deceased man.That is to say that somebody, may be the 3rd, may be the 5th, or maybe somebody else who went with them, caused the death of Mudalihamywith a murderous intention but that the two of them and the otherman shared a common murderous intention. It is immaterial whenthe doctrine of common intention is applicable as to who actuallydealt the fatal blow. I explained to you at the beginning of mygumming up that the doctrine of common intention is defined inthe Penal Code in these words. (Court cites section 32 of the PenalCode). ”
The trial Judge thereafter gave further directions but he did not revertto criminal conspiracy.
It was Argued that this was an inadequate summing up on the lawof criminal conspiracy. It is submitted that merely reading the PenalCode definition of the offence of criminal conspiracy is insufficient andthat the trial Judge should have explained the law. It was arguedthat under s. 243 of the Criminal Procedure Code a duty was cast on thetrial Judgeto charge the jury summing up the evidence and laying
down the law by which the jury are to be guided ”. It was submittedthat the learned trial Judge failed to comply with the requirements ofthis section. In the case of R. v. Martin Appuharhy No. 1 1 it was held: “Itis clear from this passage that the learned Judge had assumed that thejury understood what is meant by private defence. We are of opinion
1 1.1949) 50 N. L. R. 456.
r>0
DIAS S.V.J.—Podieingho v. The King
thut it was the duty of the learned Judge to explain to the jury in hissumming up the law relating to private defence and that his failure todo so is a non-direction which amounts to a misdirection which vitiatesthe conviction ’’.—See ulso R. v. Martin Appu No. 2 *. It was contendedthat even if the jury accepted all the evidence which Edwin was in a positionto give it would not necessarily follow that there was an agreement bythese accused either to commit murder or to abet the commission of amurder or to act together with a common intention for or in committingor abetting murder ; and that the jury in this case, particularly as .theywere dealing with the tainted evidence of an accomplice, should havehad explained to them the law and the inferences which might '.e drawnfrom the facts so as to afford them guidance and direction.
For the Grown it was argued that the summing up was adequate, thatthe case stands or falls on Edwin’s evidence, that the jury had acceptedhis evidence, corroborated as it was, and that if they did so it followedthat the ingredients of the offence of criminal conspiracy has beenestablished. In any event, the Crown argued that this was a proper casefor the application of the proviso to s. 5 (1) of the Court of Criminal AppealOrdinance. The majority of the Court are of opinion that inadequatedirections were given to the jury on this point and that the conviction oncount 1 must be quashed. It was conceded by the Crown, that if theconviction on count 1 was quashed, the conviction on count 3 must sharea similar fate. Judges have disagreed as to the meaning of s. 113b of thePenal Code. See R. v. Andree 2, R. v. Cooray 3. The majority of usthink that when learned Judges have found the definition of the offenceci criminal conspiracy difficult to construe, a lay jury would stand inurgent need of proper direction and explanation from the trial. Judgewhen a charge of criminal conspiracy is made. Merely to read thesection is in the opinion of the majority of the Court inadequate. Further-more, it is difficult to prove a criminal conspiracy by direct evidence.In the present case not only was the Crown driven to the necessity ofproving the alleged criminal conspiracy by circumstantial evidence, butthat evidence was given by an accomplice who was a tainted writness.Moreover, in the opinion of the majority of the Court, it was the dutyof the trial Judge in the course of his charge to have told the jury thatin a case of circumstantial evidence, such evidence must be totally in-consistent with the innocence of the accused and must only be consistentwith his guilt. This warning the trial Judge in this case failed to bringto the notice of the jury.
Tn regard to the count of conspiracy the majority of the Court are ofopinion (to adopt the language of Avory J. in R. v. Finch 4 and his quota-tion from 12. v. Bundy (1910) 5 Cr. App. B.270) that “ the jury were entitledto have the assistance of the presiding Judge in directing them, and that inthe words of Pickford J. ‘ the trial was not satisfactory, and the case was notput to the jury in a way to ensure their due appreciation of the value of theevidence ’. In these circumstances a miscarrriage of justice may well haveoccurred and the Court havethereforecome to the conclusionthatthis
(.1930) 62 N. L. R. 119.= (1950) 51 N. L. R. 433.
(1941) 42 N. I„ R. 495.4 (1916) 12 C. A. R. at p.79.
DIAS K.P..J.—Podisingho v. The King61
appeal must be allowed and the conviction quashed In R. v. Currell 1 inwhich the accused had been tried on a charge of receiving stolen property,Lord Hewart reiterated what was said by Lord Reading in R. v. Abram-ovitch (1914) 11 Cr. App. R. 45 that “it is essential in cases of thischaracter that there should be a careful and proper direction Thoughthis case refers to a charge of stolen property knowing it to be stolen,the majority of us .think that those observations may well apply toa charge of criminal conspiracy.
Therefore, the majority of us think that merely to read the definitionof the offence of criminal conspiracy to the jury is an inadequate direction.The majority of us are therefore of opinion that there has been a non-direction on count 1 which amounts to a misdirection. The majorityof us also feel that this is not a case to which the proviso in s. 5 (1) of theOrdinance could apply. We therefore quasli the conviction of all theaccused under count 1 of this indictment.
The third point argued is ground No. 3 in the petition of appeal, namely
that the learned trial Judge had failed to point out to the jury on whatevidence the Crown rested its charge of abetment nor did he explain tothe jury as to what constituted abetment ’ .
The prosecuting counsel had told the jury that if they convicted theaccused under count 1, there would be no necessity for them to considercounts 2 or 3. At page 9 of the summing up the trial Judge stated :“ Under count three the first and the 4th accused are charged with havingabetted the other two to murder the deceased. Although counsel for theCrown told you that if you found on the evidence the charge of conspiracyhas been established you need not consider the other two charges, I tellyou as a direction of law that you must bring in a verdict on all threecounts. I will ask the clerk of assize to ask you when you come backfrom the retiring room what your verdict is on each count of the indict-ment-, that is counts 1, 2 and 3. Merely because you find all these accusedguilty on count 1 of the indictment your duty does not cease there. Youwill have to consider every count of the indictment because the case hasproceeded to trial on an indictment consisting of three counts none ofwhich have been withdrawn ”. Now this is a perfectly correct view totake, but it also follows that therefore the jury would expect the learnedtrial Judge to sum up the case to them' on count 3 and explain to themwhat were the ingredients of abetment. At page 57 of the summing up,as we have already pointed out, the jury, at the close of the Judge'ssumming up and after they had retired, came back and- desired furtherdirections on counts 2 and 3, but while the Judge further directed themon count 1, he failed to do so on count 3. It is conceded by the Crownthat there is no adequate direction in that part of the summing up withregard to the law of abetment, and that they stood in need of direction.The majority of us are of opinion therefore that the conviction undercount 3 of the 1st and 4th accused must be. quashed on the ground ofnon-direction. The majority of the Court are also of opinion that this isnot a case to which the proviso under s. 5 (1) can be applied.
H1935) 25 C. A. R. at p. US.
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DIAS S.P.J.—Podtsingho r. The King
The 4th ground argued is ground No. 8 of the petition of appeal, namely“ that the statement P12 was wrongly admitted by the learned trialJudge and prejudiced the case against the accusedWe are all of
opinion that there is no substance in this contention. The summing upat pages 54 and 55 of the transcript deals with the statement P12 madeby the 5th accused. The trial Judge also pointed out that that state-ment was only admissible against the 5th accused. We are of opinionthat P12 does not amount to a confession. This objection thereforefails.
The 5th and final point argued consists of ground 10 in the petitionof appeal, namely “ that the learned trial Judge’s direction to the jurythat any person who crossed the ‘ dolla ’ that night would be presumedto have had the common murderous intention irrespective as to who itwas who caused the injuries, was inadequate and may have misled thejury ”. The summing up on this point is to be found at page 58 of thetranscript. The Judge explained the provisions of s. 32 to the jury andsaid “ If somebody caused the death of Mudalihamy and the two accusedwho are charged under count 2 shared with that person a common mur-derous intention then the two of them would be guilty of murder becauseis is quite clear from the section which I have just read to you ….It is immaterial, if there is a common intention, who carried that commonintention into execution so to speak. But you must be satisfied that theintention was common and the intention was murderous. Two peoplemey have a very similar intention but it may not be shared in common.If you are satisfied that of the three people who went beyond the dolaone man caused the death of Mudalihamy and all three shared a commonmurderous intention, that is, an intention of causing his death or causingbodily injury sufficient in the ordinary course of nature to cause death,all would be guilty of murder. With regard to count- 2 it is a charge ofmurder against the 3rd and 5th accused. In other words the Crownsays that one or other of them or somebody else caused the death ofMudalihamy but these two accused shared that common intention. If itwas the third accused who did it the 5th and the other man shared thatintention. If it was the 5th who did it the 3rd and the other manshared that intention. It is immaterial who did it if they had a commonintention of causing the death of Mudalihamy. It is immaterial whocarried that common intention into execution, who gave effect to thatintention ”. We are all agreed that there is no substance in the com-plaint that on this point the summing up was inadequate. This groundof appeal therefore fails.
In the result we quash the convictions of all the accused on count 1,and the convictions of the 1st and 4th accused on count 3 of the indictment.We affirm*the convictions of .the 3rd and 5th accused on count 2.
Convictions of all the accused on count 1 quashed.
Convictions of 1st and 4th accused on count 3 quashed..
Convictions of 3rd and 5t1i accused on count 2 affirmed.