S. WIMALASENA et al ., Appellants, and INSPECTOR OF POLICE, HAMBANTOTA, Responde

051-NLR-NLR-V-74-S.-WIMALASENA-et-al-.-Appellants-and-INSPECTOR-OF-POLICE-HAMBANTOTA-Responde.pdf


17C
Wimalascna v. Inspector of Police, Hambanlola
Present : Siva Supramaniam, J.
S. WIMALASENA el al„ Appellants, and INSPECTOR OF POLICE,HAMBANTOTA, Respondent8. G. 1440-1442/G0—M. G. Hambanlola, 52779Criminal procedure—Joinder of charges and accused versons—Scope—Meaning ofcognate offences—Alternative charges—Conviction permissible only in respectof one of them—Common intention—Proof—Criminal Procedure Code, ss. ISO (/),1S1—Penal Code, ss. 31, 300, 304, 300, 413—Evidence Ordinance, s. 114 (a).
Tho quostion of misjoindor of accused porsons should bo considered as attho time of accusation and not on tho ovidonco as found at tho conclusion of thotrial.
Aftor an arficlo was suspended to liavo houn section by a person breakinginto a house, tho 1st accused vrus hi possession oF tho stolon article on thefollowing day and attempted to disposo of it.
Held, that a charge of voluntarily assisting in disposing of stolon proportycould ho joined against I ho accused as an alternative to a charge cf dishonosbrctontlon of stolon property anti also that these nltornc.tivo charges could bocombined with charges of h msc-breaking and theft. Tho joinder cf tho chargeswas permissible under saction 1S1 of tho Criminal Froceduro Ccdo inasmuch nstho facts nllogod in tho prosont case could equally support any ono of thosovcral charges.
“YVhilo tho illustration under soction 1S1 shows that tho different offencescontemplated in tho section cro cognafo offences, tho illustration itself is notexhaustive of tho cognato' oiToncos with which nn accused person could bocharged. An otTonco urder soction 39G of tho Tonnl Ccdo is ono which iscognato to nn offcnco under section 39-1 of tho Ccdo.”
Whore thoro nro altornntivo charges, tho accused enn bo‘ convicted andsontenccd only in respect of ono of them.
. (iii) Jloro prosonco of an accused person i3 not sufficient to establish commonintention within tho moaning of soction 32 of tho Ponnl Codo.
iSfVA SUPRAMAXTAM, *T,—Wimalascna v. Inspector of Police, Ilambardola 177
Appeal from a judgment of the Magistrate’s Court, Hambanloto.
R. S. R. Coomarasicumy, with IK. 31. S. Boralessa, for the 1st and2nd accused-appellants.
J. IK. Subasin-jhc, for the 3rd accused-appellant.
Sunil de Silva, Crown Counsel, for fho Attorney-General.
Cur. adv. vult.
•July 20, 1967. Siva Sui’Kamaniam, J.—
Tho three appellants were charged on four counts as follows :—
“(1) That, at Sooriya Wewa, between 22nd and 23rd May 1900,they did commit house-breaking by entering into the Radio room of thoRiver Valleys Development Board in order to commit theft andthereby committed an offenco punishable under S. 443 Of the PenalCode.
That at the same time and place aforesaid and in the course oftho same transaction they did c6mir.it theft of a spare motor wheelbearing No. Y. S. H. IS95 valued at Rs. £00 of lorry No. 24 Sri 1394and thereby committed an ojTcncu punishable under S. 360 of the PenalCode.
That they did on 23rd May I960 at Kumbukv.ev.n. dishonesty-receive or retain the wheel referred to i:i count (2) knowing or havingreason to believe the same to bo stolen property and thereby committed'an offence under S. 394 of tlie Penal Code.
(-1) In the alternative to count (3), I hey did on 23rd May I960 atKurnbul<wewa voluntarily assist in disposing the wheel refoi red to incount (2) knowing or having reason to believe the same to be stolenproperty and thereby committed an oficnco punishable under S- 396of tho Pena I Code.
Tho facts of tho case, as found by tiio learned Magistrate, may besummarized as follows :—Abraham, the driver of lorry No. 24 Sii 1392,owned by the River Valleys Development Board, had left the sjiarowheel of the said lorry in tho Radio room of tho Board sometime priorto 22nd May 1966. One Gunapala who worked in tho Radio room hadbeen on duty from 6 a.m. to 12 noon on 22nd May 1966. At 12 noonwhen ho closed the doors and windows of the room before going off-dutyhe saw the said wheel in tho room. He handed over tho keys of the roomto another officer who was on duty from 1 p.m. At G p.m. that officerwhile going off-duty handed back the keys to Gunapala. On the morningof the 23rd May 1966, the room v/as.opened again by Gunapala at 6 a.m.His attention w as then drawn by one Gunadasa who also w orked in thesame room to the fact that one of the windows was open. At the same
178 SrVA StJPRAJIANIAM, J.—Ti’imalasena v. Inspector of Police, Ho;nbar.lo(a
time ho noticed that the wheel was missing from the room. Abraham,from whom inquiry was mado, stated that ho had not removed it and acomplaint was mado to tho Police regarding the loss.
At 10p.m. oh tho same day, viz., 23rd May 1066, tho 1st accused wentto the house of ono Albert, a motor van driver’, who lived about six milesaway from the Radio room from which the wheel had been stolen andoffered it for sale to Albeit. Tho 1st accused was accompanied by the2nd and 3rd accused. Albert informed them that ho could not examinotho t3'rc then as it was dark and requested them to leave it behind and tocall tho next morning when he would make an offer after examining it.They left tho tyro with Albert ancl received from him Rs. 10 for theirexpenses but they did not call tho next day as promised.
On 25th May 1966 Police Constable Percra, who had been detailed toinquire into tho complaint of theft, acting on certain information, wentto tho house of Albert at midnight and recovered the wheel. On astatement made by Albert, the threo accused were arrested. Albert’sevidence was corroborated by another witness Premadasa.
The 1st and 3rd accused did not give evidcnco. The 2nd accused gaveevidence and denied any knowledge of the transaction and stated thatho had been falsely implicated. His evidence was, however, rejected bytho learned Magistrate.
AH three accused were convicted of tho charges contained in counts(1), (2) and (3) and each of them was sentenced to a term of six months’rigorous imprisonment on each count, the sentences to run concurrently.All of them have appealed.
Tho appeal has been pressed on two grounds :—
that there was a misjoinder of accused and charges and the
convictions should be quashed on that ground.
that, in any event, the evidence did not warrant the conviction
•-of tho 2nd and 3rd accused.
Tbc case for the prosecution was that all the accused acted in concertand consequently thcro was no misjoinder of the accused. Tho questionof misjoinder should bo considered as at the time of accusation and noton tire evidence as found at the conclusion of tho trial.
As regards the contention that there was a misjoinder of chargesit was urged that a charge of voluntarily assisting in disposing of stolenproperty cannot bo joined as an alternative to a charge of dishonestretention of stolen property and also that these alternative charges cannotbe combined with charges of house-breaking and theft.
Counsel for the. appellant relied strongly on tho judgment of thisCourt in The Queen v. Wijepalu1. In that case an accused was chargedin the same indictment with the commission of tho offence of theft ofcertain articles and, in tho alternative, of retention and disposal of
1 {1062) 63 N. L. n. .li t.
SIVA SUPRAMAXIAM, J.—1 Vimalasena v. Inspector of Police, Ilambantota 179
stolen properly. The facts of that case shoved that the accused was■ found more than one year after the date of Iho alleged theft in possessionof a gold chain which was one of the stolen articles and was concerned in atransaction involving a cheque leaf which had been tom from a chequebook which was another of the stolen articles. Tho possession was solong after tho theft that no presumption could havo been drawn againsttho accused under S. 114 (a) of tho Evidcnco Ordinance. In order toestablish the charge of theft tho prosecution relied on certain evidencethat about three months before the discovery of tho loss of tho articlesthe accused had teen seen attempting to open an almirah in which thostolen articles had been kept. The evidence, however, showed that thealmirah had not in fact been opened by tho accused on that occasion.There was no connection at all between the evidence relating to the theftand the evidence relating to finding the accused in possession of the goldchain or the transaction involving the cheque leaf. They wero threeindependent “transactions”. It was held that the charges could not bojoined under S. ISO (1) of the Criminal Procedure Codo as the allegedoffences were not committed in tire courso of the sarno transaction andthat S. 1S1 was not applicable as the evidcnco relevant to tho twoalternative counts was quito distinct from that which related to thocharge of theft.
In the instant case, however, the facts are quite different. The allegedtheft took place on the 22nd May 1966 and tho 1st accused was provedto have been in possession of the stolen article and to have attemptedto dispose of it on the following clay. It was submitted by Crown Counselthat tiro joinder of the charges was lawful under S. 181 of the CriminalProcedure Code.
That section provides as follows
‘If a single act. of scries of acts is of such a naturo that- it is doubtfulwhich of several offences the facts which can be proved will constitute,the accused may bo charged with all or any one or more of such offencesand any number of such charges may bo tried at one trial
Illustration :A is accused of an act which may amount to theft or'
receiving stolen property or criminal breach of trust or cheating. Homay bo charged with theft, receiving stolen property, criminal breachof trust, and cheating, or ho may be charged with having committedone of the following offences, to wit, theft, receiving stolen property,criminal breach of trust, and cheating.”
In tho case of The King v. Piyasena1 Soertsz J. said: “This sectionpostulates a case in which a doubt arises from the nature of tho fact orseries of facts and not from a failure to appreciate tho value of unambiguousfacts or from an inaccurate view of the position in law arising from thosefacts.”. On the facts established in the caso under consideration by him,the learned Judge held that S. 181 had no application. i
i (1912) 41 N. L. B. 58. .
ISO SIVA STJPRAIvLAN’LAM, J.—Wimalasena v. Inspector of Police, Hambaniola
Sohoni (Commentaries on tho Codo of Crimir.tl Procedure of India,14th edition) whilo commenting on tho section of the Indian Codo,corresponding to S. 1S1 of our Code states at page 494 “The doubts forwhich tho section seeks to provide nre doubts as to what inferences willbo drawn from tho evidence if believed. The doubt which of severaloffences the facts proved will constitute must arise from the very naturoof tho acts of which it is intended to offer evidence.”
In tho instant case tho prosecution relied on the following facts :—
(а)That there was a theft of tho wheel in question betweon 12 noon
on 22nd May 1966 and 6 a.m. on 23rd May 1966 from tho Radioroom.
(б)That tho 1st accused accompanied by tho 2nd and 3rd accused took
the said wheel to Abraham at 10 p.m. on tho 23rd May.
That tho 1st accused offered to sell tho said wheel to Abraham.
That the accused left tho wheel in tho custody of Abraham and,
The Polico recovered the wheel from Abraham.
Tho position of the prosecution was that while it was permissible fortho Court to draw certain presumptions under S. 114 (a) of the EvidenceOrdinance the facts themselves were of such a nature that it was doubtfulwhich of the several offences set out in counts 1-4 those facts constituted.Prom the fret of recent possession after the theft, in the absence of areasonable explanation, the Court was entitled to presume that the accusedwere the thieves or that they received or retained tho wheel in questionknowing or having reason to believe that it was a stolen articlo. Thofact that the wheel had been left by the accused in the custody of Abrahamand was found by tire Police with Abraham could have led to the inferencethat the accused had voluntarily assisted in the disposal of tho stolenarticle.
While the illustration under S. 1S1 shows that, the different offencescontemplated in the section are cognate offences, the illustration itselfis not exhaustive of tho cognato offences with which an accused personcould bo charged. An offcnco under S. 396 of the Penal Code is one whichis cognato to an offence under S. 394 of the Code.
In The Queen v. Vella-samy 1 Basnayakc C J. said that in order thatS. 1SI of the Criminal Procedure Code may bo applicable, “the factsmust bo such as would equally support any one of the several charges.”Tho facts of the instant case answer this test. Tho joinder of the chargeswas therefore legal.
It. was submitted on behalf of the 2nd and 3rd appellants that thoevidence is not sufficient to establish that they wero in possession of tho
' (toeo) 6.1 A L. ft. 265 at page 271.
SIVA STTPRAMAXTAM, J.— IVimnlascna v. Inspector of Police, Hambantola IS1
stolen wheel. The learned Magistrate has set out his reasons for convictingthe 2nd and 3rd appellants on counts 1, 2, and 3 as follows :—
“ Tho 2nd and 3rd accused were seen in tho compan3r of tho 1staccused who was in possession of PI on the night of 23.5.66. The 2ndand 3rd accused had not given any explanation as to their presence.In the abscnco of any such explanation one cannot ercapo from theconclusion that they wero jointly engaged with tho 1st accused in thecommission of these offences.”
The prosecution apparently relied on S. 32 of the Penal Code to bringhomo tho offences against tho 2nd and 3rd accused. It has beenrepeatedly held b3* this Court tliatthemere presence of an accused is notsufficient to establish common intention. On the evidence led it was notpossible to draw a presumption against the 2nd or 3rd accused underS. 114 (a) of the Evidenco Ordinance. It is only if the prosecutionsucceeded in establishing conclusively that the 2nd and 3rd accused werein possession of tho stolen article that the question of a reasonableexplanation b3r the accused would have arisen for consideration. Tho2nd and 3rd accused are according^ entitled to an acquittal.
The facts proved against the 1st accused wero not serious^- disputedin appeal. Tho question however arises as to whether on the evidencotho accused could have been convicted on all tho counts 1-3 andsentenced in respect of each of them. In view of the fact that tho 1staccused was in possession of tho stolon article soon after the theft and hofailed to give a reasonable explanation for such possession it was opento the Court under S. 114 (a) of the Evidence Ordinance to presume thatthe 1st accused was either the thief or had received tho wheel knowing itto be stolen. If the presumption is drawn that tho accused is the thiefand is found guiity and convicted under S. 309 of the Penal Code,-thooccasion t.o draw tho alternative presumption, that he received tho wheelknowing it to be stolen will not arise and he should not therefore boconvicted in addition under S. 394 of the Code. Gour (Penal Law ofIndia, 7th edition) in commenting on the corresponding section of thoIndian Code states at page 1913 :—“ Where the Court on evidence in thecase comes to the conclusion that the accused is a direct participator intho theft, there is no question of his receiving stolen property? Thetwo offences arc distinct and a person proved to have committed theftcannot be convicted for receiving the stolen propeity”. At page 2164ho states —“ But there is nothing against his being tried for the twooffences, but his conviction must be only for one offence, the accusedbeing then acquitted of the other! unless the Court elects to convict himin the alternative•
*•N.
In view of tho conviction of the 1st accused under S.369 of the Cede,his conviction under S-394 must bo set aside. -'
' Learned Counsel for the appellants also submitted that the evidencedoes not warrant the conviction of the 1st accused on the charge of house-.breaking under count (1). I agree with that submission. Although
IS-'
Ceylon Estates Officers' Union v. Superintendent, Galahandawalle Estate
tho evidence of Gunapala disclosed that ho found one window open whenhe entered tho Radio room on tho morning of 23rd May, there was noother circumstance which led to a necessary inference that tho person orporsons who stole tho wheel had entered the room or taken tho wheelthrough that window. Tho officer who was on duty from 1 p.rh. till6 p.m. on tho 22nd May was not called as a witness and ono cannotexclude tho possibility that the wheel was stolen while tho ofTico wasopen during that period. The Police Officer stated that who n ho oxaminedtho window there was no lock on it. There was no evidence that thatwindow had a lock at the time tho room was closed on the evening of tho22ud May or that it was, in fact, locked.
Tho conviction of tho 1st appellant on count (1) cannot thereforestand.
In tho result I set asiclo tho convictions and sentences passed on tho2nd and 3rd appellants on all counts and acquit them. I also sot asidothe convictions and sentences passed on counts 1 and 3 on the] 1st■ appellant. I affirm tho conviction of tho 1st appellant on count 2.Since the 1st appellant lias been acquitted on the charge of house-breakingI substitute for tho-sentence of six months1 rigorous imprisonment passedon count 2 on the 1st appellant a sentence of 4 months’ rigorousimprisonment.
Conviction of the 1st appellant affirmed on count 2 only.
Appeals of the 2nd and 3rd appellants allowed.