002-NLR-NLR-V-44-THE-KING-v.-PONNUSAMY-SIVAPATHASUNDERAM.pdf
The King v. Ponnusamy Sivapathasunderam.
13
1942
[Court of Criminal Appeal]
Present: Howard C.J., Soertsz and de Kretser JJ.
THE KING v. PONNUSAMY SIVAPATHASUNDERAM2—M. C. Point Pedro, 653.
Conspiracy—Charge of abetting as well as of committing murder^—Count not
illegal for multiplicity of charges—Suggestion by Crown Counsel in
address—Character of accused—Penal Code, s. 113a.
The material parts of the first count in the indictment in this casewere as follows : —
That one S. Ramasamy (since deceased) and you (i.e., the appellant,and his co-accused) did act together with a common purpose for, or in,committing or abetting the offences of murder of (five persons named),and that you are thereby guilty of the offence of conspiracy to commitor abet the said offence of murder and in pursuance of the said con-spiracy the said Ramasamy did commit murder by causing the deathsof … and that you have thereby committed an offence
punishable under section- 113b, read with sections 296 and 102, of thePenal Code.
The basis of the case for the Crown was the allegation of a conspiracybetween Ramasamy, the appellant, and the other accused.
The defence, as indicated by the cross-examination of the witnesses forthe Crown, was that there was no conspiracy between Ramasamy andthe two accused, but Ramasamy, acting alone at a time when he was'very much under the influence of liquor, shot at the persons named inthe indictment, killed some of them and then shot himself.
Held, that the first count in the indictment was not illegal either on theground of multiplicity of charges, or because it alleged that the accusedpersons and Ramasamy were guilty of the offences of conspiracy tocommit murder as well as the conspiracy to abet murder.
Section 113a penalises conspiracy to commit an offence as well as toabet the commission of the offence.
The addition of the charges of murder to that of conspiracy to comm:'or abet the offence of murder was permitted by section 180 (1) of theCriminal Procedure ‘Code.
.Held, further, that the fact of Ramasamy’s death was relevant undersection 9 of the Evidence Ordinance and that the manner of his deathwas relevant to establish as a fact that Ramasamy was a victim ofhomicide and not suicide.
Held, also, that the suggestion of Crown Counsel that the appellantmight have been the assailant of Ramasamy cannot be said to havecompromised the character of the appellant; although it would. havebeen better if he had abstained from making it.
14The King v. Ponnusamy Sivapathasunderam.
A
PPEAL from a conviction for murder by a Judge and Jury befor^the 2nd Northern Circuit, 1942.
N. Nadarajah, K.C. (with him H. W. Thambiah), for the accused,appellant.—The proceedings in this case offend against the provisions ofsection 178 of the Criminal Procedure Code, Count 1 of the indictmentcontains a multiplicity of charges. It includes two distinct offences,and a count which charges both in one count is bad—Rex. v. MolloyRex. v. Wilmot8; Rex. v. Ottoway *. There is no offence of conspiracy as suchsimpliciter. Conspiracy to commit murder and conspiracy to abetmurder are two distinct offences and cannot be included in the samecharge. You can no more charge a man as an abettor as well as aperpetrator of the offence abetted than you can charge a man with anattempt to commit an offence and the commission of that very offence.See The King v. Andree et al.' and King-Emperor v. Tiri^mal Reddi et al.*.The whole indictment is bad for misjoinder of charges.—SubramaniyaAiyar v. King-Emperor ".
The verdict on count 1 is too general and does not conform to therequirements of section 248 of the Criminal Procedure Code. When acount contains two charges and there is a general verdict of " guilty ”one does not know of what offence the prisoner can be convicted. SeeRex. v. Sheaf
The admission of evidence suggesting that the death of Ramasamy wasdue to homicide and not suicide and thereby suggesting that the accusedwas responsible for the murder of Ramasamy also was improper andprejudicial to the accused. Evidence tending to show that the accusedhas been guilty of criminal acts other than those covered by the indictmentis inadmissible and vitiates the whole proceedings—Makin v. Attorney-General for New South Waless; Rex. v. Firth".
E. H. T. Gunasekera, C.C., for the Crown.—With regard to the lastground of appeal the fact and manner of Ramasamy’s death were relevanteither under section 6 or under section 9 of the Evidence Ordinance.If suicide was a possible inference and negatived conspiracy it was opento the prosecution to show that Ramasamy was the victim of homicide.There was no prejudice caused to the appellant.
Count. 1 of the indictment does not allege more than one offence. Itwas the single offence of conspiracy that was charged in count 1. Not twodifferent offences but two different ways of committing the same offenceare alleged. A count charging a man with one endeavour to procure thecommission of two offences is not bad for duplicity, because the endeavouris the offence charged. Archbold’s Pleading and Practice (30th ed.) 48.
N. Nadarajah, K.C., in reply.—The trial Judge gave no direction atall on the count of conspiracy to abet murder. He" confined himselfsolely to the point of conspiracy to commit murder'.
Cur. adv. vult.
. 1 (1021) IS Or. App. R. 110.
' * (1033) 24 Cf. App. R. 63:
5 (1033) 24 Ct. App. R. SO.
1 (1041) 42 N. L. R. 405 at 400* I. L. R. 24 Mad. 523 at -547.
6 1. h. R. 25 Mad. 535.
■ (1925) 10 Gr. App. R. 46.
L. R. (1804) A. C. 57.s (1038) All. E. R. Vol. 3, p. 7S3.
SOERTSZ J.—The King v. Ponnusamy Sivapathasunderam.
15
pctober 10, 1942. Soertsz J.—
, At the hearing of this appeal, Counsel for the appellant limited himselfto two of the many grounds of appeal against the conviction, of whichno’ioe had been given from time to time.
The first objection he took was that the first count of the indictment,which is the count on which the appellant was convicted, was bad in lawThis objection was advanced on a supplementary notice of appealtendered on the eve of the hearing, long after the time prescribed by theCourt of Criminal Appeal Ordinance for giving notice of appeal hadelapsed. We must invite attention again to the observation made byHoward C.J., in the case of The King v. Seeder Silva1: —
“ Generally speaking, this Court will refuse to give effect to groundsnot stated in the notice, but when the appellant is without means toprocure legal aid, and has drawn his own notice, the Court will not,as a rule, confine him to the grounds stated in his notice. ”
This is hardly such a case. The appellant was defended in the Court oftrial by Counsel and Proctor retained by him. The notice of appealfiled, within the prescribed time, appears to have been drawn by a lawyer.This ground of appeal is not stated even among the “ further grounds inlaw” submitted on September 25, 1942, signed by Counsel. When thecase came up for hearing before us on September 28 the appellant wasrepresented by King’s Counsel, assisted by the Counsel who had signed thestatement of the grounds of appeal tendered on September 25.- In thesecircumstances, we should have been justified in refusing to consider thisobjection but, although with some reluctance, we decided to hear Counselon the question raised.
The objection taken by Counsel, as already indicated, relates to thefirst count of the indictment. The material .parts of that count arethese :—
“ That one S. Ramasamy (since deceased) and you (i.e., the appellantand his co-accused) did act together with a common purpose for, or in,committing or abetting the offences of murder of (five persons named) *and that you are thereby guilty of the offence of conspiracy to commitor abet the said offences of -murder, and in pursuance of the saidconspiracy the said S. Ramasamy ‘did …. commit murderby causing the deaths of one or more of the following persons, to wit(three persons named), and that you have thereby committed anoffence punishable under section 113b, read with sections 296 and 102,of the Penal Code ”.
There were three other counts in the indictment but they were obviouslylaid as alternatives to count 1, and were withdrawn, at the suggestion ofthe presiding Judge, when the Jury returned their verdict against theappellant on count 1. They do not arise in this appeal.
In regard to the first count of the indictment, Counsel contends thatit is illegal because, (a) it contains a multiplicity of charges, and (b) italleges that the accused persons and the deceased man were guilty of theoffence of conspiracy to commit murder, as well as of the offence ofAA/fL‘ 41 N. It. R. 337, alpnge 342.
16SOERTSZ J.—The King u. Ponnusamy Sivapathasunderavi.
conspiracy to abet murder. In support of the first part of this contention,he relied upon (a) certain decisions of the Court of Criminal Appeal inEngland, namely, .in the cases of Rex v. Wilmot {supra), Rex v.Molloy {supra) & Rex v. Sheaf {supra) ; (b) the opinion of theJudicial Committee of the Privy Council in Subramaniya Aiyar v. KingEmperor {supra). For the second part of the contention he soughtsupport in the judgment of Bashayam Ayyangar J., in King Emperor v.Tirumal Reddi {supra).
The English cases decided by the Court of Criminal Appeal deal withmultiplicity of charges in cases under the Road Traffic Act, and theLarceny Act, and have scarcely any application to the case before us iriwhich our Code of Criminal Procedure governs the framing of charges.The opinion of the Privy Council in case (b) above, concerned an indict-ment in which the two accused persons were charged “ with no less thanforty-one offences extending over a period of two years ….plainly in contravention of the Code of Criminal Procedure (Indian)Section 234. ” Their Lordships had no difficulty in refusing to treatthis as a mere irregularity, and in quashing the conviction enteredagainst the appellant. It is difficult to see how it is sought to make theruling in that case applicable to this.
In case (c) Bashayam Ayyangar J. came to. deal with two indictmentsthat arose out of one and the same transaction, the second indictment-becoming necessary because the accused concerned in it had not beenarrested in time to be tried with the accused charged on the first indictment.The first indictment contained three counts. In the first count accusedNos. 1 and 2 were charged with having conspired with Subbi Reddi (he.,the accused in the other indictment), and with accused No. 9, to murderthe deceased and that in pursuance thereof the deceased was murderedand it alleged that they thereby committed an offence punishable undersections 302 and 109 of the Penal Code. In the second count third,fourth, fifth, sixth, seventh and eighth accused, with first and second, andSubbi Reddi, were charged with having murdered the deceased and com-mitted ah offence punishable under section 302 of the Penal Code. In thethird count, another accused', namely, the ninth, was charged with havingconspired with first and second accused and Subbi Reddi (all of count 1)to murder the deceased and that in consequence, the deceased wasmurdered and it alleged that the ninth accused by giving informationof-the movements of the deceased to the first accused enabled the first toeighth accused to murder the deceased and so abetted the offence punish-able Under sections 302 and 109 of the Penal Code.
In the indictment presented against Subbi Reddi, who was arrestedlater, there were two counts. The first charged, him with conspiringwith first, third and ninth accused in the other indictment to murderthe deceased and, as in pursuance of it the deceased was murdered, withbeing guilty under sections 302 and 109 of the Penal Code. The secondcount charged him with the murder of the deceased, punishable undersection 302.
The result of the two trials was that on the earlier indictment, first toeighth accused were convicted of murder and ninth accused of abetmentof murder. The first, second and ninth accused were acquitted of
SOERTSZ J.—The King v. Ponnusamy Sivapathasunderam.
17
conspiracy. That is to say count 1 failed, count 2 succeeded, count 3succeeded, the ninth accused being found guilty of abetment of murder.On the later indictment, Subbi Reddi was convicted on both the counts.There were appeals by all the parties concerned- The Governmentappealed against the acquittal of the first, second and ninth accused, andall the accused against the convictions entered against them. Thelearned Judge dismissed the Government Appeal, and quashed theconviction of Subbi Reddi on the count of conspiracy.
The only point of importance that emerges from all this is that, in acase such as that was, in which the conspiracy alleged was not the offenceof conspiracy defined in section 113a of our Code and in 120 of the IndianCode, but only one species of the abetment of an offence as defined insection 100 of our Code and in section 108 of the-Indian Code, “you canno more ”—to use the words of Bashayam Ayyangar J.—“ charge aman as an abettor as well as a perpetrator of the offence abetted, and thatnotin the alternative but cumulatively, than you can charge a man with anattempt to commit an offence and the commission of that offence”.It was on that ground that Subbi Reddi’s conviction on the charge ofconspiracy was quashed, and his conviction on the charge of murderaffirmed. But the position is entirely different here for, now, both ourCode and the Indian Code have a distinct offence of conspiracy whichpenalises abetment of an offence,, regardless of whether it is committedor not. It is that kind of conspiracy that is charged in count 1 here,and the allegation is made that the appellant and his co-accused conspiredin that sense, with Ramasamy, to cause the death of the persons named,acting with a common purpose, taking, maybe, different individualparts and yet being liable as co-conspirators to be punished in the mannerlaid down by section 113b. The observation made by Perryn B. in theold case of King v. Fuller1 supports the first count as it is framed inthis case, for all the matters alleged are “ parts of one endeavour ”.The evidence which the Jury, as their verdict indicates, accepted showsthat the appellant was present as an abettor when the offences chargedwere committed and, in view of sections 102 and 107 of the Penal Code,“ he must be deemed ” to have committed the offences of murder withwhich he was charged, and so to have incurred the sentence passed onhim. In regard to what was urged against this count 1, on the groundthat it contained in addition to the charge of conspiracy to commitor abet the offences of murder, the three charges of murder set forth, weneed say no more than this—section 180 (1) of the Criminal ProcedureCode permits that to be done where the offences arise out of one trans-action. For these reasons, we are of opinion that the first objection fails.
Secondly, Counsel contended that irrelevant evidence had been admittedand an improper suggestion made by Counsel for the Crown, and thatit is impossible to say that the!Jury would, necessarily, have cometo the same conclusion if that evidence had been excluded. and thatsuggestion had not been made.
The evidence impeached as irrelevant is that given by the MedicalOfficer, Dr. Ponniah, in answer to questions put to him in examination-in-chief, to the effect that Ramasamy, one of the alleged conspirators,
1 [1797) 126 E. E. p. 847.
18SOERTSZ J.—The King v. Ponnusarny Sivapathasunderam.
who was found dead shortly after he is said to have committed the offencecharged, died of a gunshot injury which, in view of its location, theDoctor thought, disclosed a case of homicide, rather than one of suicide.The Doctor did not, however, rule out suicide as impossible.
The objection taken, on appeal, to this evidence and the suggestionbased upon it, is stated in the notice of appeal as follows: —
“ (a) the evidence, re the homicide of Ramasamy, was irrelevant andimmaterial to the charges in the indictment ” ;
“ (b) it tended to introduce the character of the appellant in so faras it was suggested that the appellant, having been found withthe gun of Ramasamy soon after his death, may have been themurderer of Ramasamy”.'
“ The appellant begs further to submit that, on this aspect of the case, HisLordship’s charge to the Gentlemen of the Jury was inadequate andinsufficient.”
The first question that arises for consideration, on this objection, relatesto the relevancy of this evidence, and in order to determine that, it isnecessary to ascertain whether there was a fact in issue or a relevantfact on which this evidence could, reasonably, be said to have a bearing.
The basis of the case for the Crown was the allegation of a conspiracybetween Ramasamy, the appellant, and the other accused. The defence,as indicated by the cross-examination of the witnesses for the Crown,was that there was no conspiracy between Ramasamy and the twoaccused, but that Ramasamy acting alone, at a time when he was verymuch under tbs influence of liquor, shot at the persons named in theindictment, killed some of them, and then shot himself. In short, thatRamasamy ran amok, and that such intervention as there was on thepart of the appellant was in order to protect, as far as possible, Rama-samy’s intended Victims from his attacks. It is, therefore, obvious thatthe crucial fact in issue was whether Ramasamy and the two accused'Were, in the words of coiint 1 of the indictment, acting “ together with acommon purpose for or in committing Or abetting the offences of, murder ”alleged in that count.
Section 9 of the Evidence Ordinance enacts that: —
“ Facts necessary to explain or introduce a fact in issue or relevantfact, or which support or. rebut an inference suggested by a fact in issueor relevant fact , . . . or which show the relation of parties bywhom any such fact was transacted, are relevant so far as they arenecessary for that purpose- ”,
As a matter of narrative, in order to introduce the facts in issue, it wasnecessary to establish the fact of the death of Ramasamy who, count 1of the indictment alleged, was one of the conspirators “since deceased”.The fact of Ramasamy’s death was, therefore, relevant. The nextquestion is whether the manner of his death was relevant. Imregard tothis question, the cross-examination of the medical officer shows that' thedefence, from the beginning, sought to establish the fact that Ramasamyhad .committed suicide. The purpose of that line of defence was tonegative or, at least, tb reduce the probability of the existence of a-conspiracy: That defence would, in turn, be rebutted, to some extent at
>9
SOERTSZ J.—The King v. Ponnusamy Sivapathasunderam.
least, if homicide were established as the cause of Ramasamy’s death, forhomicide would tend to rebut the inference sought to be drawn fromsuicide if that were established. That, undoubtedly, was the purposebehind the questions put to the Medical Officer by Crown Counsel. Thequestion of the weight of this evidence was a different matter, and was aquestion for the Jury. .
The majority of us are, therefore, of opinion that it cannot be said thatit was irrelevant to seek to establish as a fact that Ramasamy was thevictim of homicide as opposed to suicide. Thus ground (a) in the noticeof appeal on the Law fails.
The other question for consideration is that raised in ground (b) inwhich the complaint is that Counsel for the Crown suggested, in thecourse of his observations on the case, “ that the appellant having beenfound with the gun of Ramasamy soon after his death, may have beenthe murderer of Ramasamy ”, Here the objection is not merely thatthe Crown sought to establish that Ramasamy was the victim of homicide,but also that it made the suggestion that the appellant might have beenthe murderer. This objection does not relate to a point of evidence,but to an argument which Counsel thought fit to employ. Now, rules ofevidence do not, and obviously cannot, set limits to argument. That, ofcourse, does not mean that, quite apart from the adduction of evidenceas such, something may not be said or done during a trial, in a manner orform, that would, in effect, amount to an improper introduction ofevidence or, worse still, to an improper introduction of irrelevant evidence,and would so divert the trial from a fair course.
The question, then, is whether this is such an instance; whether thesuggestion of Counsel for the Crown could, reasonably, be said .to havesuch an effect ,on the trial in this case. Here we are dealing with whatwas only a suggestion, and it is clear that when Counsel made»it, heappears to have been anticipating a question that he thought mightoccur to the members of the Jury on his submission that Ramasamy was
the victim of homicide, as to who could have been the assailant,, and he
' " , “ •
suggested that it might have happened in one of several ways, for instance,
at the hands of the appellant who, there was evidence, took measures toconceal the gun shortly after the death of Ramasamy, If Crown Counselhad paused to reflect he would, probably, have realised, that this sug-gestion would support rather than rebut the inference which the defencewas seeking to submit by establishing suicide- for if Ramasamy was. shotby the appellant, that fact could reasonably be said to tend to rebut theallegation made by the Crown that they were co-conspirators.
While we think that this question, whether it was homicide or suicide,that brought about Ramasamy’s death, and this suggestion that theappellant might have been the assailant, were inconclusive, and remote,and that it would have been better if Crown Counsel, had .abstained fromthem, the majority of us are of opinion that it cannot reasonably be said,that the suggestion compromised the character, that is to say. thereputation, of the appellant. It is oh that ground that the objection istaken: —
“it tended to introduce the character of the appellant”!'
20SOEHTSZ J.—The King v. Ponnusamy Sivapcthasunderam.
We do not think it could have prejudiced the appellant in any way atall. The Jury had what was, on the whole, an adequate direction fromthe presiding Judge as to the manner in which they should treat thisevidence, and the suggestion, made upon it, when he directed them asfollows :r—
“ I do not propose at this stage to deal with the injuries on Ramia-samy. I shall refer to that before I have finished, but I do not thinkthat it is necessary at this stage to go into the matter because, althoughwhat was done at the death of Ramasamy and, more particularly,after the death of Ramasamy, might have some bearing upon thecase, and might throw some light on the case. You must remember■that these accused are not charged in this case with the murder ofRamasamy or with conspiracy to murder Ramasamy. There is noindictment against them with regard to that particular offence, andit is to the extent that the subsequent action ascribed to the firstaccused could th£ow light upon his previous actions as regardsSeethaletchumy, Maheswary and Kandasamy Durai that that evidenceis relevant at all, and whatever conclusion you may come to upon theevidence, I wish you to remember this.: that is, even if you come tothe conclusion that Ramasamy’s death was due to homicide, do notuse that fact as anything which is admitted in the present case, exceptso far’ as the subsequent action of the first accused might have somerelevance to this case; you must not allow your minds to be prejudicedif you come to the conclusion that Ramasamy’s death was due tohomicide.”
“ I am not quite certain whether it is of such importance toyou to 'dqcide whether there was homicide or suicide. Crown Counselsuggested that if it was homicide, then, it may have been caused bythe first accused. Of course, the only evidence that the first accusedcould hav.e done it is the fact that the first accused was afterwardsseen hiding the gun away in that store room. We have no evidenceas to who pulled the trigger or who fired the shot. It does, however.
■ appear that the action of the first accused may have some significanceas to whether it was a case of homicide or suicide. If he was doingaway with the gun in hiding it, certainly he was trying to confuse theissue and. to get rid of what might have been a piece of materialevidence in the case. That is to say, the possession of the gun, and,in my view, it may be possible—I do not say that you must—for youto say that this action *of the first accused showed that he was verydeeply implicated in an action done by Ramasamy. I do not saythat you would be driven to that conclusion by that fact alone, but- it may be reinforced by other facts affecting the first accused.Undoubtedly, if he did fire the shot himself and killed Ramasamy.then, he was trying to get rid of the gun. If he thought it was suicide.,. he may have tried to confuse the issue in some way—I do not knowhow. One cannot say why—but as far as he was concerned, he wasprobably creating evidence which may point to homicide than tosuicide, because Ramasamy could not have carried the gun to thestore room after he had shot himself. But whatever it is, as I saidbefore, even if you come to the conclusion that it was homicide and
Jeelin Silva v. Kvlaratne.
21
the first accused had fired that shot, do not let that fact prejudiceyou as regards this case itself. Merely consider whether you candraw some inference which impels you to think that the first accusedwas taking a very active part in the whole of the transactions of thatday, or whether that fact reinforces the evidence which you may holdto have been established against tiie first accused. It is only for thatpurpose that you will use this fact and not for any other purpose inthis case.”
“ As regards the question of homicide and suicide, I have alreadywarned you that even if you come to the conclusion that it was homicideyou must not utilise that fact.”
For these reasons, the majority of us are unable to sustain the secondobjection.
The appeal fails. It is dismissed.
The application is refused.
Appeal dismissed.