SOERTSZ J.—The King v. Piyasena.
1942Present: Soertsz and de Kretser JJ.
THE KING v. PI-YASENA.
64—D. C. Colombo, 395.
Cognate offences—Charge of theft—Power of Court to convict accused of assistingin. disposal of stolen property—Doubt which offence the facts proved will
. constitute—Criminal Procedure Code, ss. 181 and 182.
/ ' ‘
Where an accused person is charged with the offence o'- theft undersection ,367 of the Penal Code, the Court has no power,to convict himof' the offence of assisting in the disposal of stolen property under section396 of the Penal Code.
Sections 181 and 182 of the Criminal Procedure Code which enable aCourt, when an accused is charged with one offence, to convict him ofanother offence apply where the different offences contemplated- arecognate offences and’ it is doubtful which of these offences the factsproved will ultimately be found to constitute.
The doubt must arise from the nature of facts or series of facts andnot from a failure to appreciate the value of unambiguous facts or froman inaccurate view of the position in law arising from those facts.
^^PPEAL from a conviction by the District Judge of Colombo.
H, V. Perera, K.C. (with him 'N. M. de Silva), for accused, appellant.
H.. W. R. Weerasooriya, C.C., for Crown, respondent.
Cur. adv. vv.lt.
November 26, 1942. Soertsz J.—-* •
On February 24, 1942, Inspector Marjan reported to the Magistrate’sCourt in Colombo that the appellant and another had committed theftof a motor car, an offence punishable under section 367 of the Penal Code.
On that day, the appellant surrendered to the Court arid; after theevidence of P, S. Herath had been recorded, the Magistrate explained tothe appellant, in conformity with section 156 of the Criminal ProcedureCode, the charge in respect of which the inquiry was being held. Thenon-summary form appearing at page 23 of the proceedings in the
SOEKTSZ J.—The King v. Piyasena.
Magistrate’s Court shows that the charge of which information wasgiven to the appellant was that of theft, an offence punishable undersection 367 of the Penal Code.
Thereafter, the evidence of several witnesses was taken on severalsubsequent dates, and, at the close of the case for the prosecution, theMagistrate, acting in compliance with sections 159 and 160 of the CriminalProcedure Code, read and explained to the appellant the charge framedagainst him as one of abetment of theft, “ an offence punishable undersections 367 and 102 of the Penal Code The appellant was dulycautioned and he made a statement purporting to exculpate himself. TheMagistrate, then, committed the appellant for trial before the District Court.
In the District Court, the indictment presented against the appellant■charged him with the offence of theft under section 367 of the PenalCode, and this remained the charge throughout the trial.
At the conclusion of the trial, the Judge convicted the appellant of thisoffence, and sentenced him to a term of one year’s rigorous imprisonment.
The appellant now appeals, and the main questions submitted for ourconsideration are: —
– a) Whether, on the evidence, the charge of theft can be said to havebeen established ;
-,b) Whether, in the event of its being found that the charge of -thefthas not been established, it is open to us to alter the convictionto one under section 396 of the Penal Code, on the footing thatthe evidence establishes that the offence of the appellant wasthat of voluntarily assisting in the disposal of property whichhe knew or had reason to believe to be stolen property, anoffence under section 396 of the Penal Code.
It is, I think, clear that, so far as the appellant^ is concerned, it isimpossible to sustain the charge of theft. The evidence is that, at thetime the appellant first came to take part in the transaction out of whichthis case arose, the offence of theft has already bgen committed. Thecar had been taken completely out of the possession of the owner. Theappellant, if he was guilty of theft, was guilty only under the English Law,in the sense that he was an accessory after the fact, but not guilty ofthat offence, in the view of our Lav/. Under our Law, on the evidencein the case, he would be guilty, if he was guilty at all, of an offence undersection 396 of the Penal Code.
Crown Counsel does not dispute that the position is as I- have statedit to be. But he submits that the evidence establishes that the appellantcommitted the offence of assisting in the disposal of stolen property, andhe asks us to alter the conviction from one of theft, to one undersection 396 of the Penal Code.
The first question, then, is whether it is open to us to do what we areinvited to do.'-
Crown Counsel relies mainly on sections 171, 181 and 182 of theCriminal Procedure Code, read with section 347.
I do not think that section 171 has any application in a case like this.The illustrations appended to that section make that perfectly clear.
60SOERTSZ J.—The King v. Piyasena.
To charge a man with theft when the evidence discloses that his realoffence is, say mischief, is, no doubt, an error in a certain sense, but thatis not the kind of error contemplated by section 171.
The answer to the question raised seems to me to depend on theinterpretation of sections 181 and 182 of the Criminal Procedure Code.Section 182 is the only relevant section, in the circumstances of thiscase, that can be advanced, as enabling a Court, when an accused ischarged with one offence, to convict him of another offence, although hewas not specifically charged with it, if it appears from the evidencethat he might have been charged with it. But the scope of this sectionis expressly limited to “ the case mentioned in the preceding sectionThat section is in these terms :
“ If a single act or series of acts is of such a nature that it is doubtfulwhich of several offences the facts that can be proved will constitute,the accused may be charged with all or any one or more of suchoffences and any number of such charges may be tried at one trial andin. a trial Court the Supreme Court or a District Court may be includedin one and the same'indictment; or he may be charged with havingcommitted one of the said offences without specifying which oneThe illustration appended to this section shows that the different offencescontemplated are cognate offences, and it is doubtful which of theseacts or "series of acts may. ultimately, be found to constitute. Thissection, however, postulates a case in which a doubt arises from thenature of the fact or series of facts and not from a failure to appreciatethe value of Unambiguous facts or from an inaccurate view of the positionin law arising from those facts.
. The present case cannot, in my opinion, be brought under this sectionbecause, in this case, the facts or series of facts relied upon by the prose-cution as against the appellant “is of such a nature that it cannot besaid to be' doubtful which of several offences those facts if proved willconstitute ”. Indeed, the facts relied upon from beginning to end, both inthe Magistrate’s Court and in the Dist'ict Court, were quite inconsistentwith the offence of theft. If they were established they pointedunequivocally to an offence under section 396 of the Penal Code.
Crown Counsel relied also on section 347 (b) (11) of the CriminalProcedure Code. But that sections does not, in my opinion, mean any-thing more than this. On appeal, the verdict may be altered in thecircumstances such as are provided for in sections 181, 182 and 183 (a),and 307 of the Criminal Procedure Code, that is to say the verdict canbe altered from one offence to another offence of which the trial Judgehimself could have found the accused guilty without framing a newcharge. That was the view takenf'and~if"~I-may say respectfully, correctlytaken, by Howard C.J. in Siriwardanehamy v. Sinnetamby
In regard to the case of Breretdn v. Ruebun Ratrunhamy5 cited to us,that was a case in which the verdict was held to be alterable in thecircumstances that, by an oversight, an accused had been charged andconvicted of an offence under an Ordinance which" had run its term ofyears and had been superseded by another Ordinange which reproducedthe indentical offence and under which he should have been, but was not» 43 N. L. R. 119.! 19 C. L. W. p. 11.
SOERTSZ=J.—The King v. Piyasena.jd
charged. That was a case that was within section 171 of the Criminal•Procedure Code, and the verdict could have been altered under section 347of the Criminal Procedure Code. The case of Rex v. Bairn Silva'was one in which an accused was convicted of the offence of conspiracysaid to have been committed at a time when conspiracy had not comeinto the Statute Book as a distinct offence. The conviction was alteredto an abetment of the offence, the commission of which was alleged tobe the purpose of the conspiracy. Such an alteration is easily understoodOneform of abetment is conspiringto do a thing anditwas found, in
thatcase, that the principal offencehad been committed.This case is,
by no means, a precedent for what we are asked to do here.
Crown Counsel relied strongly on the judgment in the case of TheKing v. Amolis". In that case, the accused had been charged withretaining stolen property knowing it to be stolen. The facts disclosedthatif any offence was committed “it was the offenceoftheft and not
thatof retaining stolen property ”.The Judge invitedCounsel for the
Crown to amend the indictment. He did not accept the invitation andthe Judge after trial acquitted the accused of the offence charged on theground that the accused had given an account of his possession of theproperty and the Judge took the view that “ the circumstances of thecase do not show that this cannot be a true account ”. On appeal,Bertram C.J. regretted that he could not “ share that charitable view ofthe learned Judge ”, but went on to convict the accused of theft inpursuance of section 182. In doing that, he observed as follows :—“The-learned District Judge was perfectly right in saying that the evidencedisclosed theft or nothing. It was open to him, however, undersection 182 of the Criminal Procedure Code to convict the accused oftheft, if he thought the circumstances of the case, justified ”,
With great respect, I find it difficult to reconcile that view with"sections 181 and 182. If it was perfectly clear, as it was held to be, andas it was in fact, that the offence of the accused, on the facts of thatcase, was theft dr nothing, section 181 of the Criminal Procedure Codedoes not come into operation at all. The condition precedent for itsoperation is, as I have observed, the existence of a genuine doubt arisingfrom the nature of the facts in the case. If section 181 does notoperate it necessarily follows that section 182 does not apply.
For these reasons, I am of opinion that the appellant was wronglyconvicted of theft, and that it is not open to us, on. appeal, to alter thatconviction in the manner suggested.
I would, therefore, set aside the conviction and send the case back to theDistrict Court for the accused to be indicted on a charge under section 396and to be tried on that charge. I send the case back to the DistrictCourt and not to the Magistrate’s Court for proceedings ab initio, inview of the ruling given by the majority of the Bench in the Divisional
Bench case of The King v. Vallayar Sillambarem ’
de Kretser J.—I agree.
■ 4 Times oJCey. L R. p. 3.2 23 X. L. S. 225.
’ 20 N. L. R. 257.