116-NLR-NLR-V-49-THE-KING-v.-PIYASENA.pdf
The King v. Piyasena.
389
[Court of Criminal Appeal.]
1948 Present: Jayetileke (President), Canekeratne and Basnayake JJ.
THE KING v. PIYASENA.
Application 77 of 1948.
S. C. 7—M. C. A nuradhapura 20,011.
Court of Criminal Appeal—Whal is an accomplice—Question far Jury—Corroborationof evidence—Failure of Judge to warn Jury—Misdirection—Fresh trial.
The question whether a witness is an accomplice or not is one for the Juryto decide. Where it has been suggested on behalf of the accused that a witnessis mi accomplice and the Judge has failed to warn the Jury that, if they foundhe was an accomplice, it was unsafe to act on his evidence unless corroborated,the omission is sufficient to vitiate a conviction.
1 (1945) 46 N. L. R. 78.
300
The King v. Piyascna,
A
PPLICATION for leave to appeal from a conviction in a trialbefore a Judge and Jury.
H. V. Perera, K.C., with M. M. Kumarakulasingluim and K. A. P.Jtajakaruna, for the applicant.—On the only acceptable evidence in thecase Ran Banda is clearly an accomplice. If the teBt that a person inan accomplice is that that person could have been charged with theaccused in the same indictment Ran Banda is certainly an accomplice.There ia no doubt that if Ran Banda hod been charged with aiding, andabetting the murder of the deceased Ran Banda would have stood ingrave danger of being convicted unless of course he gave a satisfactoryexplanation of his previous and subsequent conduct.
The evidence against the applicant consists mainly of the statementsmade by the deceased and of the evidence of Ran Banda, the allegedeye-witness of the shooting. As regards the statements of the deceased,the reasonable conclusion that one can come to after a careful analysisof all the statements of the deceased is that the deceased was unableto identify the person who shot him but that deceased suspected orthought that it was the accused who shot him. It is only on this footingthat the inconsistencies in the various statements can be reconciled.As regards Ran Banda’s evidence, as already submitted, Ran Bandais clearly an accomplice and therefore the jury should have been cautionedthat it was unsafe to act on tho evidence unless he was corroborated inmaterial particulars by independent evidence. The jury has not beenso cautioned. This is a grave misdirection which vitiates the conviction.Even if Ran Banda is not manifestly an accomplice, as there was strongevidence of Ran Banda’s complicity in the billing of the deceased thequestion whether or not Ran Banda was an accomplice should havebeen left to the jury. The learned Judge has withdrawn that questionfrom the Jury. The Judge was not entitled to do so. See King />.Tinner a 1; King v. Paries Apjmhamy el al.
Apart from being an accomplice Ran Banda has been shown to be athoroughly unreliable witness. That being the state-of the evidenceagainst the applicant, it would be impossible to say that tho jury ifproperly directed could or would have returned the same verdict. Theproviso to section i> (I) of the Court of Criminal Appeal Orduumce cannotbe invoked in such a case as this. See II. v. Haddy3 ; R. v. Lewis* ;Stirland v. Director of Public Prosecutions 5.
This is a ease where the conviction should bo quashed and a verdictof acquittal entered as there is not sufficient evidence to support aconviction.
H. A. Wijemanne, Crown Counsel, for the Crown.—Even assuming tliatRan Banda is an accomplice there is in this case ample corroborationof Ran Banda’s evidence. If there is, in fact, corroboration of an accom-plice’s evidence the court will not interfere even when the proper cautionto the Jury has not been given. See R. v. Thomas Kirkham e.
On the evidence before the court Ran Banda is not an accomplice,as there is no evidence which shows that Ran Banda hod theguilty
* (1036) 37 N. L. B. 233..4{1037)4 A. E. R. 360.
» {1042) 43 N. L. B. 412.•(1044)A. E. B. (A.O.)315.
* (1044) 1 A. E. B. 310.•(1000)2 O. A. B. 263.
JA¥ alTJBEKE J.—The King t>. Piyasena.
391
knowledge that the deceased was going to be killed. See Ameer Ali :Law oj Evidence p. 953 (9th edition) ; Ramasamy Qourden v. TheEmperor 1; R. v. Charles Cratchiey *.
As to the circumstances in which the court will act under the provisoto section 5 (1) of Court of Criminal Appeal Ordinance see R. v. MohamedFarid 8 ; King v. Herashamy 4 ; King v. Carthigesu s.
Cur. adv. vutt.
May 11, 1948. Jayetileke J.—
The appellant was convicted of the murder of one Dingiri Banda atthe Kandy Assizes on April 6, 1948, and sentenced to death by thepresiding Judge.
The deceased was shot at about midnight on February 3, 1947, onthe bund of the tank which is close to his house. The prosecution reliedmainly upon two statements made by the deceased shortly after he wasinjured, and upon the evidence of one Ban Banda who claimed to be aneye witness of the whole of the incident.
The deceased was a cousin of the accused, and was employed by theaccused as a caretaker on a land belonging to him in a village calledMaha Bellankadawala. Ran Banda was employed on the same landas a labourer. The accused was a teacher in a school at Eppawela aboutsix miles away.
About two years prior to this incident the accused arranged a marriagefor the deceased with one Gunawathie who was employed under himas a cook. At the trial it was suggested as a motive for the shootingthat the accused was on intimate terms with Gunawathie, but there wasno evidence at all to support the suggestion.
The statement made by the deceased to the Inspector of Police atthe hospital about 10 a.m. on February 4, 1947, shows that at about8 p.m. on February 3, 1947, Ran Banda came to his house and told himthat someone, who was dressed in a pair of trousers, was going towardsthe field. At about midnight Ran Banda came again and told him thatsomeone wanted him to come to the bund. He went along with RanBanda to the bund, but he did not see anyone there. Thereupon, heturned back and proceeded homewards when he heard footfalls behindhim. He turned round and saw a man coming towards him with a gunin his hand. He asked “ Who is that? ”, and, just then, he noticed RanBanda, who was behind him, moving to a side. Almost immediatelythe man with the gun took aim at him and fired. The shot struck him,whereupon, Ran Banda took to his heels leaving him there.
The deceased’s statement that Ran Banda came to the deceased’shouse twice that night was corroborated by the evidence of the deceased’swife, Gunawathie.
Podiappuhamy, who lives close to the deceased’s house, said that hewent up hearing cries and saw the deceased with -gunshot injuries onhis abdomen. TKe deceased told him that he went to the bund of thetank with Ran Banda because he was told that he was wanted by
1 (1904) I. L. if. 27 Mad. 271 at 277.3 (1945) 30 C. A. B. 168.
* (1913) 9 C. A. B. 232.* (1946) 47 N. L. B. 83.
(1946) 47 N. L. B. 234.
392
JAYETILEKE J.—The King v. Piyaaena.
someone, and, "when he -was returning he was shot by the accused. Whenhe fell down Ran Banda ran away. Podiappuhamy then went in searchof Ran Banda, and found him seated by the side of a plantain bush about15 fathoms from his house. He asked Ran Banda what happened buthe received no reply. He took Ran Banda with him, and handed himover to the headman.
Ran Banda said that the deceased came to his house at about midnight,and called him to go and bring something. Both of them went intothe jungle, and the deceased looked for someone whom he expected tomeet there. That person was not to be found and they proceeded alongthe bund of the tank. He then noticed the figure of a man about 100 feetin front of him. The deceased went cowards the man and he followed.When they had gone up to about 11 feet of that man, a shot was firedby him which struck Dingiri Banda. Dingiri Banda fell down sayingthat he was shot by the accused. There was bright moonlight at thetime, and he identified the accused as the assailant.
In cross-examination counsel for the defence suggested that Ran Bandawas an accomplice. He put the following question to Ran Banda :—-Q.—I put it to you that you inveigled Dingiri Banda out of his housethat night and got him shot ?and Ran Banda replied.
A.—I deny it.
The main ground of appeal is that Ran Banda is an accomplice, and tliatthe presiding Judge failed to direct the jury that his evidence wasunworthy of credit unless it was corroborated in material particulars.
The proceedings show that, after the jury retired to consider theirverdict, Crown Counsel brought to the notice of the presiding Judgethat Ran Banda had been treated by the defence throughout the trialas an accomplice, and that he had failed to direct the jury in hissumming up that it would not be safe to act on his evidence unless it wascorroborated ; but the presiding Judge expressed the opinion that RanBanda was not an accomplice. Mr. Perera urged that Ran Banda hadmade a persistent effort to take the deceased out of his house, and thatfact, coupled with his subsequent conduct, both before and after thedeceased was shot, shows that he was an accomplice. He urged furtherthat the learned judge was not entitled to withdraw from the jury thequestion whether or not Ran Banda was an accomplice.
The term “ accomplice ” is not defined in the Evidence Ordinance.In Wharton’s Criminal Evidence, 11th edition, Volume H, at page 1229,there is the following passage :—-
“ An accomplice is a person who knowingly, voluntarily and withcommon intent with the principal offender unites in the commissionof a crime. The term cannot be used in a loose or popular sense so asto embrace one who has guilty knowledge or is morally delinquent orwho was even an admitted participant in a related but distinct offence.To constitute one an accomplice, he must perform some act or takesome part in the commission of the crime, or owe some duty tq theperson in danger that makes it incumbent on him to prevent itscommission.’'
JA.YETIL.EKJE J.—The King v. Piyasena.
393
In “Words and Phrases Judicially Defined”, Volume I. at page 83,there is the following passage :—
“ We do not think that …. a narrow or precise definitionof an accomplice should be, or indeed can be, laid down. We thinkhowever that a person implicated either as principal or as an accessoryin the crime under investigation is an accomplice …. thoughthe degree and gravity of such complicity may vary.”
In Chetumal Rekumal v. The Emperor 1 O’Sullivan A.J.C. said :—
“ An accomplice is one who is a guilty associate in a crime or whosustains such a relation to the criminal act that he could be chargedjointly with the accused. It is admittedly not every participationin a crime which makes a party an accomplice in it so as to requirehis testimony to be confirmed.”
In the King v. Lolcu Nona 2 the Divisional Court held that the questionwhether or not a witness who denies complicity is an accomplice is oneof fact, and therefore, solely within the province of the Jury'.
At the trial of this case the question seems to have arisen whether ornot Ran Banda was an accomplice. That question was, in our opinion,one for the jury to decide. If they believed the whole of Ran Banda’sevidence they must necessarily have found that he was not an accomplice.If, on the other hand, they believed that he knew that the accusedintended to shoot the deceased, and that he took the deceased out thatnight, at the request of the accused, on a false pretence, they might havefound that he was an accomplice.
We are of opinion that the omission on the part of the learned Judgeto direct the jury to consider whether or not Ran Banda was anaccomplice, and that, if they found that he was, to warn them that itwould be unsafe to act on his evidence unless it was corroborated byindependent evidence which shows or tends to show that the accusedcommitted the offence, amounts to a misdirection which prejudicedthe accused and entitled him to an order that the conviction is bad in law.
Mr. Perera argued further that the verdict of the jury is unreasonable.He pointed out (1) that though the deceased in his earlier statementsimplicated the accused, in his later statements he admitted that hecould not definitely say that it was the accused who fired the shot;
that in his statement made that night to the village headman RanBanda said that the person who shot the deceased was r.ot known to him.The evidence does not show that at the time the deceased made thelater statements his mind was not clear, nor are there any indicationsin the statements themselves that at the time he made them his mindwas not clear. We, therefore, think that if the case for the prosecutionrested entirely on these statements the verdict of the jury would havebeen unreasonable. With regard to the evidence of Ran Banda we areunable to say what view the jury took of it. Their verdict was unanimous,and it is possible that, in spite of the discrepancy referred to byMr. Perera, they were so impressed by his story that they thought itwould be safe to act upon it. There is, in addition to the evidence of1 (1934) A. I. R. Sind. 185 at 187.* (1907) ifN. L. R. 4.
31 -N.L.R. Vol~xlix
394
NAG AIDING AM J.—Jones v. Senaratne.
Ran Banda, the evidence of Ranhamy that he saw the accused bathingin the tank close to the scene of the shooting at about 5.30 p.m. onFebruary 3, 1947, and that, at that time, there was a gun close to theaccused, and also the evidence of Police Sergeant Carolis that, as a resultof a statement made to him by the accused at about 2.30 p.m.on February 4, 1947, he proceeded with the accused to the bund of thetank and found the accused’s gun near a palmyrah tree about 500 yardsfrom the scene of the shooting.
In all the circumstances of the case we are of opinion that the convictionand sentence should be set aside and that the accused should be retried.We would make order accordingly.
Retrial ordered.