THE ATTORNEY-GENERAL, Appellant, and K. B. MUNASINGHE and 3 others, Respondents

054-NLR-NLR-V-69-THE-ATTORNEY-GENERAL-Appellant-and-K.-B.-MUNASINGHE-and-3-others-Respondents.pdf


Attorney-General v. Munaeinghe
241
Present: H. N. G. Fernando, C.J., T. S. Fernando, J.,G. P. A. Silva, J„ Siva Supramaniam, J., and Tennekoon, J.THE ATTORNEY-GENERAL, Appellant, and K. B. MUNA-SINGHE and 3 others, Respondents8. G. 39/67—D. C. (Criminal) Kalutara, 6625/18313
Indictment—More than one accused—Circumstances in which they can be said to havejointly committed one and the same offence—Extent of the liability of eachaccused—Offence committed with common intention—No requirement thatsection 32 of Penal Code should be specified in the indictment—Position whereone accused alone is charged when he acted jointly with others—Penal Code, ss. 8,32,33,35,293—Criminal Procedure Code, ss. 167,168,169, 171 to 174, 178,184.
When two or more persons who acted with common intention are chargedtogether with committing the same offence, a failure to refer to section 32 of thePenal Code in the charge is not a bar to the accused being convicted on the basisof individual liability for a joint offence. In such a case even the word“ jointly ” need not be used in the charge, and each accused is responsible forany criminal act done by any of the other accused in furtherance of the commonintention. If, at the conclusion of the trial, the court finds that the offence wasin fact committed by some only of the accused and that the other accused werenot participants, the court would still be free by reason of the provisions ofsection 171 of the Criminal Procedure Code to convict the former, unless theerror in stating (or implying) in the charge that they committed the offencejointly with others misled them in their defence.
Four persons were tried before a District Court on an indictment. Count 1 ofthe indictment alleged that all of them committed the offence of causinggrievous hurt with a sword to one AlwiB. The 4th accused was acquitted on theground that he took no part in the incident. The 1st accused was convicted.The evidence throughout was that only the 1st accused used a sword. Inregard to the 2nd and 3rd accused, the trial Judge found that each of themstruck Alwis with a club and that they and the 1st accused acted with thecommon intention of causing grievous hurt to Alwis. Nevertheless he acquittedthe 2nd and 3rd accused stating, as roason, that the indictment had failed tosay that “ the accused had acted with a common intention under section 32.”
Held, that the fact that no reference was made in the indictment to thecommon intention set out in section 32 of the Penal Code was not an error oromission which could prevent the court from convicting the 2nd and 3rd accusedon count 1 of the indictment, of the offence of causing grievous hurt.
Obiter (T. S. Firnasdo, J., dissenting) : Where only one of a group ofpersons who have jointly committed an offence is charged and tried alone, andit iB sought to mako him liable for the acts of those who are not being chargedat all, the charge should comply with section 169 of the Criminal ProcedureCode to the extent of saying that the accused committed the offence withothers unknown or named. In such a case, although it may be sometimesimpracticable—particularly in cases of circumstantial evidence—to allege jointparticipation, the failure to do so is curable only on the rather tenuous groundsstated in section 171 of the Criminal Procedure Code,
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TENNEKOON, J.—Attorney-General v. Munasinghe
A.PPEAL from a judgment of the District Court, Kalutara.
V. 8. A. Putlenayegum, Crown Counsel, with Faisz Mustapha, CrownCounsel, for Appellant.
Colvin B. de Silva, with M- L. de Silva and Nihal Jayaunckrema, for2nd and 3rd Accused-Respondents, as Amicus Curiae.
Cur. adv. wit .
November 6, 1967. Tennekoon, J.—
This is a case in which the Attorney-General indicted four persons in theDistrict Court of Kalutara ; count 1 of the indictment reads as follows :—
“ That on or about the 29th day of November, 1964, at Imbula,Pelpola, in the Division of Kalutara within the jurisdiction of thisCourt, you did voluntarily cause grievous hurt to Loku LiyanageSumanadasa Alwis with a sharp cutting instrument, to wit, a sword, andthat you have thereby committed an offence punishable under section317 of the Penal Code.”
The 4th accused was acquitted. The learned District Judge convictedthe 1st accused on count 1. In regard to the 2nd and 3rd accused hesaid : “ There is certainly evidence to prove that the 1st, 2nd and 3rdaccused acted with the common intention of causing grievous hurt to thebrothers Sumanadasa and Richel ”. Nevertheless the learned DistrictJudge went on to say that as the indictment had failed to say that “ theaccused had acted with a common intention under section 32 ” he wasenable to convict the 2nd and 3rd accused on count 1.
The learned Attorney-General has appealed against the acquittal of the2nd and 3rd accused on count 1 of the indictment. When this mattercame up before my brothers Justice Abeyesundere and Justice Alles,they made order as follows :—
“ In this appeal the Attorney-General appeals from the acquittal ofthe 2nd and 3rd accused on count (1) of the indictment. The learnedDistrict Judge has ordered the acquittal holding that the indictmentwas bad because seotion 32 of the Penal Code was not specified. Hehas held that the evidence disclosed common intention on the part of the1st, 2nd and 3rd accused.
Mr. Pullenayegum, Crown Counsel, appealing for the Attorney-General, submitted that it was unnecessary to specify section 32 of thePenal Code in the indictment.
TENNEKOON, J.—Attorney-General v. Munasinghe
243
There are two conflicting judgments of the Court of Criminal Appealin regard to the question whether or not section 32 should be specifiedin the indictment where the prosecution relies on common intention.In the case of The Queen v. Mudalihamy1 the three Judges of the Courtof Criminal Appeal who heard that case were unanimously of the viewthat section 32 should have been specified in the indictment. In thelatter case of G. K. Ariyadaaa v. The Queen2 the majority of the threeJudges constituting the Court of Criminal Appeal did not follow thedecision in The Queen v. Mudalihamy.
For the aforesaid reason, we recommend that the Chief Justiceexercise his powers under section 51 of the Courts Ordinance and referthis appeal to a Bench of five or more Judges.”
This matter now comes before this Bench of five Judges in pursuanceof a reference by My Lord the Chief Justice under section 51 of the CourtsOrdinance,
The question then that arises on this reference is whether when two ormore persons are charged together with committing the same offence afailure to refer to section 32 of the Penal Code in the charge is a bar tothe accused being convicted on the basis of individual liability for a jointoffence.
Before proceeding to examine the possible answers to this question, itwill be useful, I think, to make a brief reference to the background inwhich the question must be examined.
The Penal Code is a Code which defines a number of offences ; each ofthese definitions deals only with the case of a single individual doing oromitting to do a thing and makes such act or omission punishable.
It is, of course, immediately apparent that just as much as an innocentact can be performed by more persons than one, so also, an act which ismade punishable by law (and is therefore an offence) can also be done orcommitted by more persons than one. Thus the definition of any offencein the Penal Code will apply not only to the case of one person doing theact made punishable by law but also to the case of more persons -thanone jointly doing such an act.
Indeed, section 8 which occurs in the Chapter headed “ GeneralExplanations ” states “ words importing the singular number include theplural number ”. Accordingly, when, for instance, section 293 of thePenal Code says in the singular that “ Whoever causes death by doing an
act' with the intention of causing deathcommits the offence of
culpable homicide ”, we must understand the section as also sayingthat “ Where mor<j persons than one cause death by doing acts with the
intention of causing death such persons commit the offence of
culpable homicide.” Thus we get a plurality of persons capable of
(1957) 59 N. L. R. 299.
(1965) 68 N. L. R. 66.
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TENNEKOON, J.—Attorney-General v. Munasinghe
committing one and the same offence and questions immediately arise insuch cases as to—
whether each participant is only liable for the offence partially
and proportionately or whether each is severally liable for the- offence committed by all;
the approach to the question of mens rea where mens rea is an
ingredient of the offence ; the presence of more persons thanone necessarily means the presence of more ‘ minds ’ than one.
The answer to these problems is to be found among the “GeneralExplanations ” to the Code which are contained in Chapter 2 thereof.Sections 32, 33 and 35 occur in this Chapter ; they are three sectionsdealing with situations in which more persons than one combine tocommit, one and the same offence.
It is unnecessary for the purposes of this opinion to examine the exactcontent and scope of each one of these sections. It would be sufficient tosay that they lay down the law (i) as to the circumstances in which morepersons than one can be said to have jointly committed one and the sameoffence, and (ii) as to the extent of the liability of each such person.
The main question that arises on this reference relates to theprocedural aspects of charging and trying more persons than one whohave committed one and the same offence.
Section 184 of the Criminal Procedure Code deals with certain trialaspects in such a case. This section is one—and the only one—dealingwith joinder of accused persons. It deals with many circumstances inwhich more persons than one can be tried together at one trial. Thatportion of section 184 relevant to the present discussion reads asfollows :—
“ Where more persons than one are accused of jointly committing the
same offencethey may be charged and tried together or
separately as the court thinks fit.”
An illustration of more persons than one charged in this way is given inthe first illustration under the section :
“ A and B are accused of the same murder. A and B may be indictedand tried together for the murder”
What are the matters that need be stated in a charge when morepersons than one are accused of jointly committing the same offence ?Section 169 of the Criminal Procedure Code reads (the italicizing ismine)—
** Where the nature of the case is such that the particularsmentioned in the last two preceding sections do not give the accusedsufficient notice of the matter of which he is charged, the charge shallalso contain such particulars of the manner in which the alleged offence■ was committed as will be sufficient for that purpose.”
TENNEKOON, J.—Attorney-General v. Munaeinglu
245
To take a case of a charge of joint murder. Murder can be committed inmany ways, by bare hands, by blows with a blunt instrument, by hanging,drowning, poison, the gun, or in one of many other innumerable ways.These would be the many ‘ manners ’ in which the offence of murder maybe committed. It is the same with other offences, though with some the‘ manner ’ can vary with every case, in others there is little or no scopefor variations in the manner of committing the offence.
Are there any other matters which can be regarded as part of the* manner ’ of committing an offence ? Where more persons than one areinvolved in the commission of one offence there are some cases in whichthere is what appears to be equal participation : for example X and Ymay join in bludgeoning A to death each attacking with a club ; in thistype of case it is more often than not impossible to prove which of theparticipants inflicted the fatal injury ; details of the participation may beobscure and beyond the reach of any investigator ; but before a case ofjoint commission of the offence is established it would be necessary forthe prosecutor to prove that both X and Y attacked, that one or more ofthe blows (irrespective of who struck) resulted in the death of A and thateach X and Y were acting in furtherance of the common intention of bothto cause the death of A. There can also be, seemingly unequal partici-pation : X and Y may join in order to achieve their common intention ofcausing the death of A, X doing the bludgeoning while Y keeps a look-out to prevent their being surprised by an intruder. This is the type ofcase in which it has been said of persons who play a role similar to Y’s,that “ he also serves who only stands and waits ”. Y has not done any-thing which, in the physiological sense, can be said to have caused thedeath of A. No medical witness will testify that Y’s act of keepingwatch caused, or was one of the factors contributing to, the death of A.But it is unnecessary to understand the expression “ cause death ” insection 293 of the Penal Code in this somewhat limited medico-legalsense. The result achieved by X and Y is the death of A. The acts bywhich that result was intended to be achieved are the totality of the actsof both persons. Some of the acts would never by themselves achievethe ultimate result intended ; they would only be furthering the attain-ment of that result. Turning for a moment to activities which are notprima facie criminal: if two men set out to fell a tree and only one of themlays his axe to the tree trunk while the other’s activities are confined tolopping off branches of adjacent trees in order to secure a free fall for thetree to be felled and thereafter to standing on the adjacent public road inorder to warn passers-by of the danger of a falling tree, there is no straineither on the use of language, or on truth, to say that they both jointlyfelled the tree. As was said by Lord Sumner in the case of BarendraKumar Ghosh 1 in dealing with the meaning of section 34 of the IndianPenal Code (which is identical with section 32 of our Code): “ ‘ Criminalact ’ means that unity of criminal behaviour, which results in something,for which an individual would be punishable, if it were all done byhimself alone, that is, in a criminal offence.”
» A. I. R. 1925 P. C. 1.
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TENNEKOON, J.—Attorney-General v. Munasinghe
Whatever, then, may be the nature of the participation of each personin a joint crime, it seems to me that the evidence which tends to establishthe nature of the participation of each not only establishes his partici-pation but also establishes the manner in which the criminal act was done,i.e. by several persons acting together.
I am accordingly of opinion that the fact of a person committing anoffence not singly by himself, but by participating with others, is a fact-relating to the manner of committing the offence. In a case of jointmurder, say, by shooting with a gun, the material relating to the mannerof committing the offence would include not only the fact of causing thedeath by shooting with a gun, but also of the fact of each causing thedeath jointly with others. In a case of joint cheating, “ manner ” wouldinclude both the nature of the deception and the fact of each accusedacting jointly with others to achieve the deception. Indeed there doesnot appear to be much controversy over this aspect of the matter.In Mudalihamy's case and in Ariyadasa's case (both of which will bereferred to in greater detail later on in this judgment) there is a clear, ifunexpressed, assumption that the joint committing of an offence is amatter relating to the ' manner ’ of committing such offence.
I am therefore of the opinion that the fact of an offence having beencommitted jointly with others is something which section 169 requires tobe included in the charge where that is the prosecution case and where itis not the intention of the prosecutor to signify to the accused that theprosecution case is that he committed the offence by himself alone.
How is this to be done ? Must there be a reference to section 32 inthe charge ? Indeed the question referred to this court is in this veryform. Formulated thus the question must, I think, be answered in thenegative. Section 32 does not create an offence ; it is only a sectionlaying down a principle of liability. At the same time it must not beforgotten that it lays down a principle of liability where an accused personcommits a crime in a particular way or manner, i.e. by joining with others ;and accordingly the question should perhaps be re-formulated in thisway : “ In a case w here an accused person is sought to be made liable onthe basis that he was one of many who jointly committed a single offence,must there be reference in the charge to the fact of the offence havingbeen committed jointly before the prosecution can call in aid theprovisions of section 32 to bring home individual liability % ”
This question must, I think, be answered differently in relation to twodifferent types of cases that arise in our courts ; they arc—
cases in which the participants or some of them are charged ctnd
tried together for the one offence alleged to have beencommitted by them ; and
cases in which one only of the participants to an offence
committed jointly with others is charged and tried alone.
TENNEKOON, J.—Attorney-General v. Munasinghe
247
In the first type of case, viz. where more persona than one arealleged to have committed one and the same offence and are to be triedat one trial, there would ordinarily be one charge ; there is nothing insection 178 of the Criminal Procedure Code which requires a separatecharge in respect of each such person. The section reads : “ For everydistinct offence of which any person is charged there shall be a separatecharge.” In a case of murder, where A, B and C are alleged to havecommitted one and the same murder of say X, it would be legitimate tocharge A, B and C with having committed the murder of X in one charge,because they are charged of one offence and not of distinct offences. But,necessarily, there is implicit in a charge so drafted three distinct charges—one against A. one against B and one against C. If the case failsagainst one, it does not mean that the case against the other two fails. Amay be acquitted while B and C are convicted. This is possible onlybecause there is impliedly a separate charge against each one of theseveral persons accused of committing the one offence. It is, I think,fairly clear that if the charge were split up it would result in threecharges each reading—
You A, did jointly with B and C commit the murder of X.
You B, did jointly with A and C commit the murder of X.
You C, did jointly with A and B commit the murder of X.
It thus becomes apparent that when the charge is drafted as one, theidea of each having committed the offence jointly with the other two isnecessarily implied and it becomes a matter of indifference whether theword “ jointly ” is used in the charge or not. What is important to noteis that each accused is clearly given notice of the fact that the prosecutioncase against him is that he committed the crime jointly with the othersand that the provisions of sections 32, 33 or 35, as the case may be,would be relied on by it to establish his liability to be convicted andpunished as though he committed the offence by himself alone. It isperhaps also important to note that if, at the conclusion of the trial, thecourt finds that the offence charged -was in fact committed by one of theaccused alone and that the other accused were not participants, thecourt would still be free by reason of the provisions of section 171 of theCriminal Procedure Code to convict that one accused—unless of coursethe error in stating (or implying) in the charge that he committed theoffence jointly with others misled that accused in his defence.
In the second typeofease, viz. : where only one of a group of personswho have jointly committed an offence is charged and tried alone, theposition is such that, in my opinion, a bare compliance with the require-ments of section 107 and 16S of the Criminal Procedure Code would beinadequate to give the accused sufficient notice of the matter with whichhe is charged, for the reason that a charge against one person that hecommitted an offence would signify- to the accused that the prosecutioncase is that he committed the offence by- himself alone. Accordingly in
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such a case the charge should comply with section 109 to the extent ofsaying that the accused committed the offence jointly with othersunknown or named. It is hardly necessary to add that any other particularsin regard to the manner of committing the offence may also have to headded in seeking to act in full compliance with section 109. An omissionin such a case to allege that the accused committed the offence jointlywith others may deprive the court of the power to apply the principles ofconstructive liabilitv contained in section 32 (or sections 33 and 35), if todo so would be prejudicial to the accused. Section 171 of the CriminalProcedure Code would thus come into play in such a situation.
To sum up then, it is my opinion that where any accused person issought to be made liable on the basis of his being one of many participantsin an offence jointly committed by such persons, the charge must makeit clear that such participation is being alleged : this is achieved either—
by the very fact that several persons are charged together with one
offence at one trial, or
by the use in the charge of such words as “ together with X ” or
“together with others unknown” in a case where all theparticipants are not actually charged.
It may of course be sometimes impracticable—particularly in cases ofcircumstantial evidence, of which a vivid example is the case of Ramlochnnv. The Queen referred to later in this judgment—to allege joint participa-tion. But it is well to note that the failure to do so is curable only on therather tenuous grounds stated in section 171. However, it seems to mothat in those cases where the evidence in the hands of the prosecutionindicates the joint commission of the crime it would be unsafe, and evenunfair, for the Crown to omit the necessary allegation on the bare faithof section 171.
It is necessary, before concluding, to deal with the'' two cases whichgave rise to this reference, and also to apply these conclusions to theinstant case.
The case of Queen v. Mudalihamy 1 was one in which one person wascharged simplicitej with murder and it was sought to make him liablenot for an act or acts done by him alone but for acts done by him jointlywith others. At page 302 of the judgment the following passage occurs
…. although the omission to mention section 32 in the charge in acase where more persons than one are being charged with an offenceand it is sought to make them vicariously responsible for a criminal actcommitted by one of them in furtherance of their common intention,may not be fatal to a conviction, if it is clear to the accused that they• are being made vicariously liable for the acts of one of them, we thinkthat it is desirable even in such cases to refer to section 32 or other
i (1957) 59 N. L. R. 299.
XKNNEKOON, J.—AUomiy-Oeneral v. Munarirvjhe
249
appropriate section of that group in the charge and certainly in thiscase, if it was sought to make the person vicariously responsible for theacts of those who are not being charged at all, it was necessary that theappellant should have been made aware at the outset that it was acharge of vicarious liability that he had to repel. We are of opinionthat section 169 of the Criminal Procedure Code requires that it shouldbe done.”
For reasons already stated I do not agree that there should be anyreference in the charge to section 32, (33 or 35) of the Penal Code in anyof the situations contemplated in this passage. These sections deal notwith the manner of the commission of an offence but with theconsequences ensuing from an offence being committed in a particularmanner ; subject to this comment, I am broadly in agreement with theapproach made to the problem in Mudalihamy.
In the case of Ariyadasa v. The Queen 1 it was submitted for the Crownand the argument was adopted by the majority of the court that illustra-tions (b) and (e) given under section 169 of the Criminal ProcedureCode support the view that in a charge of murder where the accusedis sought to be made liable under section 32 as participant in a jointmurder; there need not be any reference to section 32 or indeed to thefact that he was being sought to be made liable not for his act alone butfor the totality of acts of himself and others. With respect I do not thinksuch an implication arises from illustrations (b) and (e) which read asfollows :—
“ (b) A is accused of cheating B at a given time and place. The chargemust set out the manner in which A cheated B.
(e) A is accused of the murder of B at a given time and place’The charge need not state the manner in which A murdered B. ”
Each of these illustrations deals only with the case of one person bengsought to be made liable for his own acts and accordingly the word* manner ’ in each illustration refers only to that aspect of the manner ofcommitting an offence, which relates to the means employed and not tothe commission of the offence by joining others in the commission of it.If illustrations (b) and (e) are to have any influence in the decision of thismatter we would end up with the curious result that in _ case of jointcheating reference would have to be made to section 32 m ut least to thejoint commission of the offence, but not in a case of murder. With allrespect I find it difficult to agree.
In Ariyadasa's case reliance was also placed on the West India,-1 Case,of Ramlochan v. The Queen.2 In that case the accused Ramlochan wascharged alone with the murder of his wife. There was apparently nothingin the charge to indicate that the Crown case was that the accused had
1 (1965) 68 N. L. R. 66.* (1956) A. C. 475.
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TENNEKOON, J.—Attorney-General v. Alunaeinghe
committed the offence jointly with another or others ; nor apparently wasthere in the charge any reference to that provision of the Criminal Law ofTrinidad parallel to our section 32. The case was one based on circum-stantial evidence ; after the close of the prosecution case the accusedRamlochan was called upon for his defence. He gave evidence on hisown behalf. In cross-examination by Counsel for the prosecution it wassuggested that the accused had a partner in the committing of the crimeand that the fatal blow was struck by his partner and that Ramlochanhimself was only present and assisting the other. In dealing with a sub-mission that improper prejudice may have been caused to the appellantby the nature of the cross-examination their Lordships stated : “ On theevidence it was open to the jury, in their Lordships’ opinion, to take theview that the accused committed this deed alone or that lie committedit with the assistance of some other person. The trial judge did notexclude the first alternative, though he may have stressed the view thatthe evidence might be taken to indicate that the murder was committedby more than one person. But that, is not in their Lordships’ opinionfatal to a conviction because it was a view open to the jury to take onthe evidence.”
I take this part of the Privy Council judgment to be authority only forthe proposition that the conviction of a person for an offence on the basisthat he with others committed the offence is not necessarily bad becausethe charge only indicated that he was being sought to be made liable fora crime committed by himself alone. I think this is the law that is alsocontained in our own section 171 of the Criminal Procedure Code whichreads :
“ 171. No error in stating either the offence or the particularsrequired to be stated in the charge and no omission to state the offenceor those particulars shall be. regarded at any stage of the case asmaterial, unless the accused was misled by such error or omission.”
In Ramlochan’s case the Privy Council were, I think, clearly of the viewthat having regard to the whole of the proceedings at the trial therecould have been no prejudice to the accused by the jury being told thatthey could convict even if they, held that the accused had committed thecrime jointly with another. The following passage occurs a little aheadof the earlier quoted passage :—
“ The Crowrrwas not bound to state its theories in advance. Thesetheories were inferences from evidence which, it may be assumed,Crown Counsel explained to the jury on opening that he was about tolead. Their Lordships are unable to extract from the evidence ledfor the prosecution that the Crown had tied itself to any view of howthe murder was committed. In cross-examination counsel was,however, in their Lordships’ view, bound toput to the accused anyinferences from the evidence which he propOsedto put before the jury.”
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Indeed it seems to me that there is here a clear implication that thematters referred to in this passage were sufficient to establish that theaccused had not been prejudiced even if the verdict of the jury was based,on a finding that Ramlochan was merely assisting another who in fac".struck the fatal blow. The decision of the Privy Council may well havebeen different if a case of prejudice had been made out. Illustrations (a)and (b) to section 171 bring out this same principle clearly :—
(а)A is charged under section 237 of the Penal Code with “ having
been in possession of counterfeit coin having known at thetime when he became possessed thereof that such coin wascounterfeit ”, the word “ fraudulently ” being omitted in thecharge. Unless it appears that A was in fact misled by thisomission the error shall not be regarded as material.
(б)A is charged with cheating B and the manner in which he cheated
B is not set out in the charge or is set out incorrectly. Adefends himself, calls witnesses, and gives his own account ofthe transaction. The court may infer from this that theomission to set out the manner of the cheating is not material.
In my view Ramlochan $ case, docs not conflict with the view I havetaken ill this matter.
Ariyadasa’s case was similar to the Ramlochan case in that there was asimple charge of murder against one accused and the judge directed the 'jury that they could convict the accused even if, on the cvdence, theycame to the conclusion that the fatal blow was not struck by the accusedbut that the deceased had been inveigled to a particular place in pursuanceof a common plan between the accused and another and that the otherassaulted the deceased in pursuance of that common plan to kill.
In dealing with a submission that the failure to refer to section 32 ofthe Penal Code in the charge was in the circumstances fatal to the convic-tion, the majority of the court, after examining the cases of Mudalihamyand Ramlochan, stated as follows :—
“ For reasons which have been outlined above the majority of us wereunable to agree with the observations of this Court in Mudalihamy'scase and uphold the second ground of appeal. In the opinion of themajority of the Court (1) the charge as framed gave the appellant,having regard to the circumstances of this case, such particularsof the charge as he was entitled at law to receive and (2) there wasneither prejudice to him nor misdirection by the trial judge ” (theitalicising is mine).
Respectfully, I would disagree with the statement that the chargecontained no error or omission ; however the finding that there was noprejudice to the accused brings the case in substance into line withMudalihamy and Ramlochan and within the principle contained in section171 of the Criminal Procedure Code.
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T. S. FERNANDO, J.—Allorney-Qeneral v. Muttasinghe
Applying the conclusions I have reached and indicated above to thepresent case : I am of opinion that this being one in which four personswere charged in one charge with the offence of voluntarily causing grievoushurt and tried at one trial, the charge on which they were tried wassufficient to give each of the accused notice of the matter of whichhe was charged. There should have been no doubt in the mind of eachaccused that he was in fact facing a charge of having jointly with hisco-accused committed the offence. There was no objection taken to thelegality of the single charge and the single trial ; that was an objectionthat would have been available to the accused if they were under theimpression that they were being charged with four separate offences ofcausing hurt to Sumanadasa Alwis. I am perfectly convinced that thedefence were aware, despite the absence of words to that effect, that thecharge was that the four accused jointly committed the offence and thatthe relevant provisions of law would necessarily be relied upon by theCrown to bring home individual liability. Accordingly, the learnedDistrict Judge having held that the 1st, 2nd and 3rd accused voluntarilycaused grievous hurt to Sumanadasa Alwis each acting in furtherance ofthe common intention of all to cause grievous hurt, (and no argument hasbeen addressed to us that such finding was wrong), the 2nd and 3rdaccused each became liable, upon application of the law as contained insection 32 of the Penal Code, to be convicted of the offence of voluntarilycausing grievous hurt as though it were committed by himself alone.
I would accordingly hold that the learned District Judge was wrongin holding that there was any error or omission in the charge (count 1)which prevented him from convicting the 2nd and 3rd accused. Iwould set aside the acquittals of these two accused, convict them eachon count 1 and sentence them each to a term of 9 months rigorousimprisonment, which is the term which was imposed by the DistrictJudge on the 1st accused himself.
H. N. G. Fernando, C.J.—I agree.
G. P. A. Silva, J.—I agree.
Siva Supramaniam, J.—I agree.
T. S. Fernando, J.—
This is an appeal by the Attorney-General from an acquittal of the2nd and 3rd accused who (along with two others, the 1st and 4th accused)were tried before the District Court of Kalutara on an indictment con-taining two charges. The first charge alleged that all four accused com-mitted the offence of voluntarily causing grievous hurt with a sword toone Sumanadasa Alwis, an offence punishable under section 317 of the
T. S. FERNANDO, J.—Attorney-General v. Munasinghe
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Penal Code. The second charge alleged that they committed a similaroffence by cutting one Richel Alwis. At the close of the case for theprosecution, the District Judge made order discharging (acquitting ?)the 4th accused. This order was made on the ground that there was noevidence that he took part in the incident which resulted in hurt to thetwo men above-named. The other three accused were called upon fortheir defence, and, at the conclusion of the evidence called by them, thetrial judge acquitted all three accused on the second charge, viz., that inrespect of the grievous injury received by Richel Alwis. In regard to thefirst charge, the judge held that the 1st accused had cut SumanadasaAlwis with a sword and found him guilty of the offence charged. Therewas no evidence that either of the other two accused (the 2nd and 3rd)had caused an injury or injuries with a sword. The trial judge found as afact that the 2nd accused hit Sumanadasa Alwis on his leg with a clubcausing a grievous injury, and that the 3rd accused too hit him with aclub. While stating in his judgment that the 1st, 2nd and 3rd accusedhad acted with the common intention of causing grievous hurt to Sumana-dasa Alwis, the learned judge, observing that “ in the circumstances of acase like this the accused should be (made ?) aware that they are heldliable because of the common intention, and for this purpose the indict-ment should definitely state that the accused acted with a-common
intentionsection 32 ”, acquitted the 2nd and 3rd accused on
the first charge as well.
The appeal before us is confined to a canvassing of the acquittal on thefirst charge.
The trial in this case was preceded by a committal after an inquiry inthe Magistrate’s court, and there was no suggestion of a variation betweenthe evidence for the prosecution in the Magistrate’s court and that at thetrial. The accused heard the evidence given in the Magistrate’s courtand had access to the brief containing the record of that evidence. Whenthe first charge alleged that all four accused committed the offence ofcausing grievous hurt with a sword, and the evidence throughout wasthat only the 1st accused used a sword, it must have been clear enough tothe 2nd and 3rd accused that the charges against them rested on liabilityset out in section 32 of the Penal Code. The prosecution was thereforenot required to specify this last-mentioned section in the charge. Whenthe learned trial judge stated that, although the evidence establishedthat the 1st, 2nd and 3rd accused had acted in furtherance of a commonintention, but that he was obliged to acquit the 2nd and 3rd accused asthe charge omitted any reference to section 32, with all respect, I thinkhe was in error. His attention had not been drawn to the decision of thisCourt in Thambiah v. Tennekoon1 which held that when two persons werecharged with causing grievous hurt on the basis that they acted in fur-therance of an intention shared in common between them it was unneces-sary to specify section 32 of the Penal Code in the charge. The prosecutionin the case now before us had, in my opinion, complied with the provisions
1 {1049) 51 N. L. B. 1S6.
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T. S. FERNANDO, J.—Attorney-General v. Munaeinghr.
of the Criminal Procedure Code relating to the framing of the charge, andthis appeal has to be allowed. I would therefore set aside the acquittalof the 2nd and 3rd accused on the first charge and enter a convictionagainst them thereon. Each of them will serve in respect of that con-viction a term of nine months’ rigorous imprisonment.
As no appeal has been preferred in respect of the acquittal of the accusedon the second charge, it is sufficient to say here that no opportunity arisesto consider the correctness of that acquittal.
I should have been content to say no more on this appeal but for thefact that the two judges of this Court before whom this appeal was firsttaken up for hearing and who caused it to be referred to this Benchthought that the conflict between the decisions in The Queen v. Mudnli-hamy1 and Ariyadasa v. The. Queen 2 merited consideration by a fullerBench. The two cases mentioned above do not deal with a situationsimilar to that which arose upon the trial that preceded the present appeal,and, speaking for myself, 1 should have preferred a consideration of theconflict on an occasion on which a case of the kind met with in Mudali-hnmy or Ariyadasa had again arisen and we had had the benefit of argu-ment on the specific point. Anything this Court can now say in respectof the nature of the charge in such a case must necessarily be obiter.Nevertheless, as the conflict between these two decisions has been men-tioned in the reference made to this Bench, and as my brother Tennekoonwho has been kind enough to send me an advance copy of his own judg-ment has considered the nature of the conflict, I think I should expressvery shortly why I am still of the opinion that even in a case where onlyone or more but not all the persons alleged to have participated in thedoing of a criminal act are charged it is not obligatory on the prosecutionto specify in the charge cither (a) that section 32 is relied on or(b) that the person or persons charged acted jointly with others, knownor unknown.
No Court would like to say anything that may tend to discourageutmost candour on the part- of the prosecution, and it would be a verydesirable thing for the prosecution to set out in the charge the fullest parti-culars possible of the offence, both in respect of the matter with whichthe accused is or are charged as well as the manner in which the offencealleged was committed. What is desirable to have mentioned in the chargeis, however, not the same thing as what is required to be mentionedtherein. So long as the prosecution has complied with the provisions ofthe Criminal Procedure Code in respect of the particulars required to bestated in the charge, no question of the prosecution invoking the aid ofsection 171 of that Code can arise, because there would then be neithererror nor omission in the charge. The charge is something that hasto be framed by the prosecution before the trial commences, and theadequacy of the charge must be judged by the material available to the
1 (1957) 59 N. L. R. 299.» (1965) 68 AT. L. R. 66.
T. S. FERNANDO, J.—Attorney-General v. Munatinrjhe
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Crown before the trial commenced. Something may transpire in thecourse of the evidence, or there may even be a change of front on the partof a prosecution during a trial, and in such situations the trial court hasalways a discretion to permit an alteration of the charge and sometimeseven an adjournment the alteration may necessitate—section 172 to 174of the Code. Where a charge framed alleges that A, B and C committedan offence, and this is understood as implying that they jointly committedthat offence, the fact that during the evidence recorded at the trial ittranspires that not only A, B and C, but that D and E, or D or E, alsoparticipated in that joint offence, does not, in my opinion, render thecharge upon which A, B and C stood their trial defective by reason oferror or omission that is contemplated in section 171. It is hardlynecessary to add that it is immaterial whether the additional offender oroffenders disclosed in the evidence is or are identified or unidentified.
In a case of direct evidence, it would not be unfair to assume, theprosecution would, generally speaking, be aware of the manner in which theoffence was committed. The extent of the knowledge on the part of theprosecution of the manner of the commission of the offence would oftenbe different in a case dependent on circumstantial evidence. Theparticulars required to be mentioned in a charge cannot, in my opinion,vary according as the evidence available is direct or circumstantial.The Code contemplates no such distinction and, I think, cannot fairlycontemplate such a distinction.
Ramlochan v. The Queen 1 serves as a graphic illust ration of the kind ofsituation that can arise in a case of circumstantial evidence. Ramlochanstood two trials, the jury having found itself unable to agree at the firsttrial. Throughout the entirety of that first trial, the Crown’s case wasthat Ramlochan alone killed the deceased Toy. At the second trial tooits case was the same until the cross-examination of the accused began.In the course of that cross-examination, Crown Counsel, for the first time,suggested that the deceased was actually killed by some other man, andthat Ramlochan merely assisted that killing by participating therein.Their Lordships of the Privy Council did not consider this suggestion asa change of front on the part of the prosecution. That view of theirLordships was possible because they thought the charge framed wasadequate. It is in this context that their Lordships observed that“ the Crown was not bound to state its theories in advance ”. TheCourt also stated as follows :—
“ The Crown case was that the accused had murdered this girl. Howand in what circumstances the fatal blow was struck was one of themysteries of the case. Whether or no the accused, if he carried out themurder, was assisted by someone else was another unknown featurein the case. Whether the accused himself struck the girl’s head orwas a party to someone doing so was immaterial. In either case hewas guilty of murder.”
> (1956) A. O. 415.
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Queen v. Arnolie Appuhamy
It being clear that the Crown theory at the time the trial commenced wasthat Ramlochan himself killed the deceased, it necessarily follows thatthe Crown could not have been expected to particularise in the chargethat Ramlochan only assisted another in the killing. Even if the lawhad permitted an amendment of the charge at the later stage, the Crowndid not and could not have been expected to give up either theory, boththeories being consistent with the evidence relied upon. The decisionin that case serves, in my opinion, to illustrate that even when the Crownput forward a different theory no change in the charge became necessary.On either theory the charge was one of murder. There was no changein the matters requiring proof. I do not understand that decision tomean that the charge was erroneous but that the accused was not misledor prejudiced by the error.
Acquittals set aside.