The King v. A. A. Kitchilan.
[Court of Criminal Appeal.]
d944Present : Moseley S.P.J., Heame and Jayetlleke JJ.THE KING v. A. A. KITCHTLAX et at.
■56—M. G. Matara, 43,107.
Alternative charges—Charges of murder and. abetment of murder—No misjoinderof charges—Powerof Courtof CriminalAppeal to disregard misjoinder
of charges—Wherethereisno prejudiceto accused—Criminal Procedure
Code, ss. 181 and 425.
The five accused were charged jointly with the murder of • one H;in the ' alternative, that they abetted the said murder.
The facts which the prosecutionexpected to beable toprovewere
that shortly before his death the accused had been conducted to a barrackroom in Matara Police Station, where he was, told by) the fourth accusedto undress and lean against a pillar; that the second and fifth accusedheld his hands behind the pillar;that the fourthaccusedstruckhim
on the chest, whereuponhe fell to the ground;that while inthat
position- the thirdaccused stamped uponhis chest; that the second,
third, fourth, and fifth accused struck him with their fists; that the firstaccused then cameintotheroom jtndordered the deceased to be
assaulted; and that there followedan assault inwhich alltookpart
including the first accused.
(1935) 1 K. B. 354.
MOSELEY S.P.J.—The King v. A. A. Kitchilan.83
Xt wasnot disputed that thedeath of the deceasedwasthe direct
result of thisseriesof attacks upon, himbutthe prosecutionwasunable-
to say that itwas. the result of the act ofanyone or more oftheaccused.
There wasevidence that whoeverit was that struck thefatalblow, the
others by their acts aided the doing of it.
Held, by Moseley S.P.J. andJayetileke J, (HearaeJ.dissentiente)-
that the joinder of alternative charges was notobnoxious tosection181
of the Criminal Procedure Code.
* Per IIkarnh J.—Section 181 isapplicable onlywhen the acts ofan.
accused are of such a nature thatlegal difficulty ariseson the questionof
which oneof several offences the sum total of factswillconstitute.
Xt is . not applicable when the factof intention onthepart of an accused
is in doubt.
Held, further, that even if there had been a misjoinder of charges^the Court would have dismissedthe appeal asnoembarrassmentor
prejudice had been caused to the accused.
In sucha case the Court ofCriminal Appeal has awider discretion
than that conferredupon an Appellate Courtunder section425of the
Criminal Procedure Code.
The proper time at which an objection of thenature shouldbetaken,
is before the accused has pleaded.
It is properthatCounsel should notifyhisappearance assoonas. the-
case is called and before the accused is called upon to plead.
PPEAL against a conviction by a Judge and Jury before the Fourth;Western Circuit, 1948.
M.T. de S. Amerasekere, K.C. (with him M. M. K-umarakulasinghamand G. Samarawickreme), for first accused.
S. Barr Kumarakulasingam (with him Vernon Wijetunge), for second,accused.
Mackenzie Pereira (with him J. Weeraratne), for third accused.
H. W. Jayewardene (with him J. Femandopulle), for fourth accused'-
T.Kanapathipillai, for fifth accused.
E. H. T. Gunasekera, C.G., for the Crown.
(fur. adv. vult.
January 17, 1944. Moseley S.P.J.—
The five accused were charged jointly with the murder of one HinnilAppu; in the alternative, that they abetted the said murder. The lastfour were convicted of voluntarily causing grievous hurt; the first, ofabetting that offence. The point is taken in appeal that there was amisjoinder of charges.
Section 178 of the Criminal Procedure Code provides that for everydistinct offence there shall be a separate charge and that every suchcharge shall be tried separately except in the cases mentioned in sections179, 180, 181, and 184. The prosecution, in framing the charges nowunder consideration, relied upon the provisions of section 181 which is asfollows: —
“ 181. If a single act or series of acts is of such a nature that it is-doubtful which of several offences the facts which can be proved will
MOSELEY S.P.J.—The King v. A. A. Kitchilan.
constitute, the accused may be charged with all or any one or more ofsuch offences and any number of such charges may be tried at one -trialand in a trial before the Supreme Court or a District Court may beincluded in one and the'same indictment; or he may be charged withhaving committed one of the said offences without specifying whichone.
A is accused of an act which may amount to theft or receiving stolenproperty or criminal breach of trust or cheating. He may be chargedwith theft, receiving stolen property, criminal breach of trust, andcheating, or he may be charged with “having committed one of thefollowing offences, to wit, theft, receiving stolen property, criminalbreach of trust, and cheating.’’
The facts which the prosecution expected to be able to prove were thatthe deceased died owing to a rupture of the right auricle of the heartprobably due to compression caused by direct violence, that shortlybefore his death he had been conducted to a barrack room in MataraPolice Station, where he was told by the fourth accused to undress and■ lean against a pillar; that the second and fifth accused held his handsbehind the pillar; that the fourth accused struck him on the chest,whereupon he fell to the ground; that while in that position the thirdaccused stamped upon his chest; that the second, third, fourth, and fifthaccused struck him with their fists; that the first accused then came intothe room and ordered that the deceased be assaulted; and that therefollowed an assault by the second, third, fourth, and fifth- accused inwhich the first accused took part.
I-t is not disputed that the death of the deceased was the direct resultof this series of attacks upon him, but the prosecution were quite unableto say that it was the result of the act of any one or more of the accused.There was ample evidence that, whoever it was who struck the fatal blow,the others, by their acts, aided the doing of it. The charge of abetmentof murder was framed upon the footing that those of the accused whoaided that one whose act caused the death of the deceased knew that theact thus abetted was likely to cause that effect. Section 106 of the PenalCode provides for such a case and it would seem that the facts set outabove clearly constitute the offence of abetment of murder.
The position taken up by Counsel for the first accused was that, in viewof section 107 of the Penal Code, upon the facts which the prosecution- expected to be able to prove, one of which, was that the first accused waspresent for at least part of the time during which the offence was com-mitted and that the others were present for the whole of the time, acharge of murder lay against them all. While the words of the sectionare that in such circumstances an accused person “ shall be deemed .tohave committed such act or offence ” it has been held by the Privy Councilin Barendra Kumar Ghosh 1 that “ the section is evidentiary, not punitory.Because participation de facto may sometimes be obscure in detail, it isestablished by the presumption juris et de jure that actual presence plusprior abetment can mean nothing else but participation. The presump-tion raised by section 114 (i.e., Ceylon 107) brings the case within the
i (1925) A. I. R. (P. C.) 1.
MOSELEY S.P.J.—The King v. A. A. Kitchilan.
ambit of section 34 (Ceylon 32).” I have stressed the word “ priorin the above quotation from Lord Sumner's judgment, because it has beengenerally held that “ abetment to come under the section must be onewhich is prior to the commission of the offence and complete by itself,and not an abetment which is done immediately before or at the time ofthe commission of the offence.” Sital v. Emperor 1. The facts of thepresent case do not, therefore, appear to come within the scope of section107, and the citation by Counsel for the first accused of these authoritiesseem to us to weaken his argument that the prosecution were in a positionto frame a charge of murder against all the accused persons. That,however,-was the position taken up by him and he argued that, since theabove-mentioned facts left the prosecution in no doubt but that theoffence of murder had been committed, the provisions of section 181 ofthe Criminal Procedure Code did not apply, and that the addition of acharge in the alternative offended section 178.
It would seem, however, that the prosecution, being satisfied no doubtthat the offence of abetment of murder was constituted by the facts,were satisfied that the offence of murder was also constituted, assumingthat from those facts it can be inferred that a common intention existedon the part of the accused. Crown Counsel contended that, upon thefacts disclosed, the innocence of the accused was excluded, and that from"those facts there were two possible inferences.
Numerous authorities have been brought to our notice, notably thecase of Ganesli Krishna v. Emperor 3 which was cited by Counsel for thefirst accused and relied upon by Counsel for the Crown. In that casesection 236 of the Indian Criminal Procedure Code, which correspondswith our section 181, was under consideration. Pratt J.C., after referringto section 403 (our section 330) arrived at the result “ that an alternativecharge cannot be framed in respect of distinct offences, nor even in respectof cognate offences when the difference is one of degree, i.e., as to theintention imputed to the accused or as to some circumstance of aggrava-tion ”. That is to say, if I may with respect further amplify the learned
J.C. s explanation in regard to cognate offences, alternative charges ofmurder and of grievous hurt may not be framed, nor alternative chargesof stealing as a servant and of stealing. Pratt J.C. continued: “ Inwhat cases then, is it permissible to frame an alternative charge ? .
It (section 236) applies only in those rare cases in which the prose.-cution cannot establish exclusively any one offence but are able on thefacts which can be proved to exclude the innocence of the accused and toshow that he must have committed one of two or more offences Thisextract from the judgment of Pratt J.C. was cited with approval inMahomed Rafiq v. Emperor 3.
In the same case Crouch A.J.C. referred to the two classes of doubts .which the prosecution has to anticipate in most cases “ firstly, whetherthe evidence …. will be believed; secondly, that inferenceswill be drawn from the evidence, if believed … It is clear from
the opening words of section 236 that the doubts for which it seeks toprovide are of the second class. The doubt which of several offences
1 36 Cr. L. J. 1151.2 XII Cr. L. J. p. 224.
33 Cr. L. J. p. 41 at p. 42.
86MOSELEY S.P.J.—The King v. A. A. Kitchilan.
the facts proved will constitute must arise from the very nature of theacts of which it is intended to offer evidence. The doubt is as to theinference which will be drawn by the Court
Now it seems to me that in the present case the prosecution was facedby a genuine doubt as to the inference which would be drawn by theCourt. It was not difficult to foresee that the inference might be drawnthat each of the accused had abetted the murder of Hinni Appu; or,equally, that a common murderous intention existed. But can it besaid that either of these possible inferences exclude the other ? Theoffences which are constituted by the inference from the facts are cognate;the difference between them is not one of degree, but depends upon thenature of the intention which can be inferred. That being so, the chargesseem to me to come within the ambit of Pratt J.C.’s “ rare eases Inthe view of the majority of the Court the charges were properly joined.
In view of the fact that the members of the Court have been unable toarrive at complete agreement, and of the further fact that it appearsto be conceded that an alternative charge should be framed only in rarecases it may be as well to express our view that, had we been of opinionthat the point should be decided in favour of the appellants, we wouldhave held that no miscarriage of justice has occurred and that the appealsshould be dismissed. Assuming that there was a misjoinder of charges,their Lordships of the Privy Council in Subramania Ayyar v. King-Emperor 1 were unable to regard the disobedience to an express provisionas to a mode of trial as a mere irregularity and one which could be curedby section 587 (Ceylon 425) of the Criminal Procedure Code. Thatsection permits an appellate Court to ignore, inter alia, certain irregu-larities, unless a failure of justice has been thereby occasioned. Thepowers conferred upon this Court by the Court of Criminal Appeal Ordi-nance (No 23'of 1938). section 5 (1)" proviso, allow in those circumstancesthe dismissal of an appeal unless a substantial miscarriage of justice hasactually occurred. We would seem to have a discretion somewhatwider than that conferred upon an appellate Court by section 425 of theCriminal Procedure Code. Even in India it was held by Napier J. in ThePublic Prosecutor v. Kottaparambath Maliyakkal Kadiri Koya Haji 2 that thedecision of the Privy Council did hot go so far as to compel an appellateCourt to hold that in no case could a misjoinder of charges or a failureto try charges separately be an irregularity within the meaning ofsection 537.
There are numerous English cases which reveal no reluctance on thepart of the Court to apply the proviso to cases where no actual miscarriageof justice has occurred, such as where, on a charge of sodomy, the trialJudge did not warn the jury as to the manner in which they should treatthe evidence of an accomplice Rex v. Charles Cratchley 3, and where anindictment for stealing omitted the words “ take and carry away ”.Rex v. John Harris 4. Again in Rex v. Henry Beecharn 5 in whiehquestions in cross-examination had been improperly allowed and therehad been an unsatisfactory summing up the appeal was dismissed by
25 Mod. 61.
16 Or. L. J. 693 (F. B)
5 XVI. Cr. A. R. 26.
» IK. G. A. R. 232.* V. Ct. A. R. 285.
HE ARNE J.—The King v. A. A. Kitchilan.
virtue of the proviso. In Rex v. Arthur Edwards and Alfred Gilbert1the proviso was not applied because the objection (to improper joinder)had been taken in the Court below. In that case, however, there wereother reasons which influenced the Court in quashing the conviction.In regard to the time at which an objection of this nature should betaken we think that the proper time is before the accused has pleaded.In the case before us the objection was taken after the jury had beensworn. Counsel for the first accused sought to justify this procedureon the ground that he wished the jury to be in retirement while he wasaddressing the Court on the .point and he claimed, moreover, that it hasnot been the custom in our Courts for Counsel to notify their appearancesuntil after the accused has pleaded. There is no substance in the formercontention since the whole panel of jurors might have been sent out ofCourt. In regard to the second point, there is uo logical reason whyCounsel should not notify his appearance as soon as the case is calledand before the accused has been called upon to plead. We think itproper that he should do so. For the purpose of this case, however, weare assuming that objection was made at the earliest opportunity.
The question of the application of the proviso was also considered inRex v. James Andrew Thompson 2 in which it was argued that the indict-ment was bad for duplicity inasmuch as more than one offence wascharged in each of two counts of the indictment. In dismissing theappeal Isaacs li.C.J. observed:“If we had thought that any em-
barrassment or prejudice had been caused to the appellant by the present-ment of the indictment in this form, we should have felt bound to ouashthe conviction, whatever our views might be as to the merits of the ease ”.But it appeared to the Coirrt in that case, as it does to us in the presentcase, that no embarrassment or prejudice was caused. In the presentcase the appellants had one set of acts alleged against them. If theyhad been able to disprove that they had committed those acts, or raiseda reasonable doubt in the mind of the jury that they had committed themthey would have been entitled to acquittal on each count in the indict-ment. Had it been necessary, therefore, we would have been preparedto apply the proviso.
There were also applications for leave to appeal on the facts. Thepoints raised appear to us without substance.
‘The appeals and applications are dismissed.
Of the five persons who were found guilty in S. C. 56, M. C. Matara,43,107, four have appealed on questions of law. One ground is commonto all the appeals—that there was misjoinder of charges.
The four appellants along with the 5th accused, who merely appliedfor leave to appeal on the facts, had been charged with murder by causingthe death of Hinni Appu and, in the alternative, with abetment of themurder of TTinni Appu.
The prosecution purported to frame the indictment in accordance withthe provisions of section 181, Criminal Procedure Code, and the question iswhether it was justified in doing so. The circumstances in which it would be
i VIII. Cr. A. R. 128.
IX Qr. A. R. 252.
HBAJRNE J.-—The King v. A. A. Kitchilan.
justified are set out in the section. “ If- a single act or series of acts is ofsuch a nature that it is doubtful which of several offences the factswinch can be proved will constitute, the accused' …. may becharged with having committed one of the said offences without specifyingWhich one
It is clear from an examination of the evidence what facts, prior tothe framing of the indictment the prosecution, regarded as being capableof proof.
They were (1) that the 2nd and 5th accused held Hinni Appu’s handsand the 4th accused dealt him a fist blow on his chest, (2) that he fellto the ground and the 2nd, 3rd, 4th and 5th accused struck him “ withhands and feet ”, the 3rd trampling him on his body, (3) thaf the 1staccused then arrived and said “ assult him ”, (4) that all the accusedattacked him again, (5) that Hinni Appu died in consequence of theinjuries he received-
The first charge implied that the acts were committed in furtheranceof a murderous intention common to all the accused. This commonmurderous intention was no doubt regarded by the prosecution as areasonable inference from (1) to (5) (supra), and the medical evidence.
But, in the argument of Crown Counsel, the jury may not have inferreda murderous intention but only knowledge that the death of Hinni Appuwas likely. Section 106 of the Penal Code enacts that “ When an actis abetted with the intention on the part of the abettor of causing a partic-ular effect, and an act for which the abettor is liable in consequence of theabetment causes a different effect from that intended by the abettor,the abettor is liable for the effect caused, in the same manner and to thesame extent as if he had abetted the act with the intention of causingthat effect, – provided he knew that the aot abetted was likely to causethat effect ”. The alternative charge was, therefore, included in theindictment to provide for the case of any one of the accused who had nomurderous intention, if the jury so found, but who knew that the actsof other which he abetted by his own act or aots were likely to causedeath.
Witnesses at the trial deposed to certain acts which are undoubtedlyacts of abetment. I refer to the holding of the deceased by the 2ndand 5th accused for the purpose of aiding the 4th accused in the initialassault. I also refer to the 1st accused’s act of instigation when he said“ assault him ”.
But what the prosecution has chosen to do is to regard acts of aggressionon the part of all the accused, by which I mean acts of violence committedby them on the person of the deceased, as amounting in the case of eachone of them to actual participation in a deed of violence or merely toabetment.
T have said that the prosecution regarded acts of violence as participa-tion or abetment. Crown Counsel argued the appeal on that footing.That, however, is not the way the learned trial Pudge viewed the matter.He said in his Order “ In regard to the offence or offences of which theaccused may be said to be guilty that is unpredictable at the time theindictment is framed and indeed till the end of the trial, and '-will dependon the inference drawn by the jury in view of all the matters before them
HEABNE J.—The King c. A. A. Kitchilan.
as to the intention or knowledge imputable to the accused as a body orindividually In another passage he said “ In other words differentverdicts are reasonably possible and that is only another way of sayingthat ‘ the acts are of such a nature that it is doubtful which of severaloffences the facts which can be proved will constitute ’ With thegreatest respect I do not agree with either of these passages in the sensethat neither of them can be said to justify alternative charges. In everycase in which an accused is charged with murder his intention or know-ledge is not ascertained till the jury returns its verdict. Differentverdicts are possible. They are unpredictable. He may be found guiltyof murder, culpable homicide not amounting to murder, or grevioushurt. But these considerations do not justify alternative charges
With this aspect of the matter, the procedural aspect, I shall deallater. It depends upon the interpretation that is to be placed on section181, Criminal Procedure Code. But the point I was emphasizing was thatthe prosecution view that acts of violence may be regarded as participationor abetment does not appear to have been shared by the learned trialJudge. That this is so is, I think, evident from his charge to the jury.
In dealing with the first charge he explained that it was necessaryfor the jury to ascertain who were the actual assailants of the deceasedand if they found that the five accused attacked him “ with hands andfeet ” they could be found guilty on the first charge of offences which hespecified in accordance with the intention or knowledge imputed to them.
When he dealt with the 2nd charge he instanced the case of the 1staooused. He told the jury “ If you are satisfied that the 1st accuseddid- not himself take part in the attack with hands and feet but that all hedid was to give an order ‘ take this man away and give him a good beatinghe would be liable for the grevious hurt caused, if you think thatwhen he said ‘ Go and give this man a sound thrashing ’ he knew that itmight result in grievous hurt ”. In another passage he said “ Supposeyou find that the 1st accused instigated the others to attack this manHinni Appu, lie himself not contributing with his fists or feet, standingaloof in the sense that he takes no physical part in the attack …. hewould be liable as an instigator ”.
It is clear that the learned Judge regarded the 1st accused's words ofinstigation as capable of amounting to abetment and not his deeds, andin dealing with the other accused he did not suggest that their -acts ofviolence could be construed as acts of abetment.
Indeed it would have been most difficult, if not impossible, for theJudge to have stated apy principle of differentiation in accordance withwhich the jury could have been invited to say that, for instance, the actsof the 4th accused who fisted the deceased and attacked him again afterhe had fallen and the acts, of the 3rd accused who attacked him on theground and trampled on his body were acts of participation and notabetment or merely abetment and not participation. It seems to methat acts of violence contributing to a certain result, viz., death, even ifthey encouraged or incited others to. similar acts of violence, remainimmutably acts of participation in the crime committed.
Whatever views may be held on the much debated provisions of section181, Criminal Procedure Code the substantive law applicable to the facts of
HBABNE J.—The King v. A. A. Kitchilan.
this ease is, I venture to think, free from doubt. Mere presence at the sceneof a crime does not in itself involve complicity in the crime or in the abet-ment of it. Where there is abetment immediately before or at the time ofthe commission of the crime and the abettor, though present, does notparticipate in the crime, he is only liable as an abettor. Where there isabetment prior to the commission of the crime which is complete byitself, and the abettor is present at the commission of the crime, he isliable to be charged with participation, even though he did not actuallyparticipate (section 107 Penal Code) (1925) A.l.R. Penal Code 1. Finallywhere, as in the present case, what are alleged to be acts of abetment are actaof violence, are indeed part of the means, of the totality of acts, wherebythe crime was committed, section 107 has no application. Participationis no longer a legal fiction. It is an actual fact. It is not dependentupon a presumption. It is dependent upon proof of the acts committed.The proper charge is a charge of participation, not a charge of participa-tion or abetment. That, as it appears to me, is the meaning and purpose■of section 32, Penal Code. The acts of all who participated are evidentiaryof the existence of a common intention. If a jury finds that there wasno common intention nevertheless all who participated are liable for theirparticipation (not for abetment) in accordance with the criminal intention-or knowledge imputed by tbe jury to each individual participator. Sec-tion 33 of the Penal Code.
But let me adopt the arguments of Crown Counsel and see where theylead us. He argued that if any of the accused bv his acts of violenceabetted the infliction of harm on the deceased with knowledge that deathwas likely, he would be guilty of abetment of murder. If by his acts ofviolence he abetted the infliction of harm on the deceased with theintention that death should be caused he would be equally guilty, onCrown Counsel’s argument, of abetment of murder. But even if theacts of violence on the part of any one of the accused may be regardedas acts of abetment, not by instigation or conspiracy or aiding but bywhat I would call “ vicious example ”—his participation in the assaultwhich resulted in death with criminal knowledge or intention would renderhim liable to be charged in the former ease with culpable homicide notamounting to murder and in the latter case with murder. The resultantpositior would not be murder and not abetment or abetment and notmurder—that is the effect of the indictment—but abetment of murderin eithei event and murder or culpable homicide. Even accepting thearguments of Crown Counsel the indictment should not and could not havebeen framed as it was framed.
I pass to a consideration of section 181, Criminal Procedure Code. Thedoubt which, it has been assumed, justifies the framing of alternativechsJraes is doubt in regard to the intention of the accused, individuallyor collectively; and this doubt is not the kind of doubt that the sectioncontemplates. Confusion of thought has arisen, I would respectfully-suggest, from an unfortunate identification of “ acts ” with “ facts ’ .
The two words are not used synonymously in the section. On thecontrary they appear in sharp contrast. An act is a fact. But a fact isnot necessarily an act. For instance, a state of mind, the intention of anaccused, is a fact but not an act. Section 181 is. not applicable when the
Saibu and Jayasena.
fact of intention, on the part of an accused, is in doubt. It is applicableonly when the acts of an accused are of such a nature that legal difficultyarises on the question of which one of several offences the sum total offacts will constitute.
Quite apart from authority (12 C. L. J. 224) it seems to me that theprosecution must make up its mind, before an indictment is framed, inregard to “ the facts which can be proved The intention with whichan accused acted is one of such facts. It is not possible, in the view Itake, to frame an indictment consisting (as in the present case) of alter-native charges and to justify it on the ground that doubt is entertainedas to whether a jury will accept a particular fact (the intention imputed)as having been proved.
To sum up. The acts of the accused are not ambiguous. It is difficultto conceive of acts less unambiguous than a joint assault by five bullies onthe helpless victim of their choice; and where the acts of the accusedare unambiguous, the prosecution (a) by regarding acts of violence as actsof violence amounting to murder or alternatively as acts of abetmentonly, (b) by imputing on the one hand an intention to cause death and byanticipating on the other a possible adverse verdict by the jury on thesubject of intention, cannot arrive at two different results based on thesame uyiambiguous acts of the accused:and then, by translating those
results into two offences, charge the accused with having committedone of them without specifying which one. I am satisfied in my ownmind that section 181 does not sanction that procedure. In my opinionthere was misjoinder.
I would add that it is with regret that I find myself in disagreementwith the views of the President, my brother Javetileke and the trial-Judge.
THE KING v. A. A. KITCHILAN et al