131-NLR-NLR-V-21-THE-KING-v.-THAMBIPILLAI.pdf
( 455 )
[Chown Case Bbhebved.]
Present: Bertram C.J., Be Sampayo J. and Schneider A.J.
THE KING v. THAMBIPHlLAI.
P. C. Jaffna, 9,101.
No. 8, First Northern Circuit, 1920.
Murder by some of several persons—Accused acquitted as jury could notteU which of them committed the murder—Conviction for causingevidence to disappear—Penal Code, ss. 198 and S96.
The accused, whowere allfound carrying offa dead body, were
charged with murder and under section i98 of the Penal Code,with having causedevidenceof the commissionofthe offence to
disappear. The jurywas ofopinion that one ormore persons
among the accased committed the murder, but they could not saywhich of them did it. The jury acquitted the accused on thecharge of murder, and convicted them on the second count.
Held (De Sampayo dissentients), that the conviction on the secondcount was not illegal.
Bbbtbam C.J.—Theevidencebeing the sameinboth cases, I
see nothing unreasonable in the actual crime and the subsidiaryoffence being charged in the alternative, so that if the jury are notsatisfied as to the farmer, they may at least convict the offender ofthe latter.
'~pHIS case was reserved for consideration by a Bench of threeJudges by the Chief Justice.
The facts are set out in the following minute of the ChiefJustice:—
In thin case she persons were indicted on two counts: Thefirst, charging them with murder; the second, with causing evidenceto disappear under section 198 of the Ceylon Penal Code.
Pour of the accused were related, the second, third, andfourth accused being uncles of the first accused. The fifth accusedwas of an inferior caste, a dhoby, and was said to wash for thefirst four accused, who were dyers. The sixth accused was also ofan inferior caste, and was not shown to be in any way connectedwith the others.
8. The body of one Sinnatamby Kanagasabai was found hangingon a well sweep in the precincts of a temple under such circum-stances that the jury were satisfied that he had been first-murdered bystrangulation, and that afterwards his body was hung up in sucha way as to produce the appearance of suicide.
21734
1080.
The principal witness was one Manikkan Sathasivam, whoswore that on the night of the murder he saw all six accusedcarrying the body of the deceased towards a well sweep. Anotherwitness swore that on the same night at a junction of a road anda path leading to the deceased’s house he saw the first accusedholding a rope, the sixth accused standing near him, and four or fiveothers bringing a body along the lane. A third witness sworethat he passed the deceased’s house that night, heard a cry ofdistress, and saw at the gateway the second accused, who explainedto him that the noise he heard was that of somebody snoring.
After the case before the Magistrate was complete, a newwitness appeared in one Sittampalam Ambalavanar, a remandprisoner, who posed as an ascetic, and was awaiting trial on acharge of abduction. He deposed to a series of conversations inthe remand prison with the first, second, and third accused.According to this witness, the first prisoner confessed that he hadassisted in the concealment of the body, but explained that neitherhe nor the fourth accused had any part in the actual crime; thatthey had arranged to seize and rob the deceased, but on arrivingat the spot found that their two partners in the design—the secondand third accused—had anticipated them, had gone further thanwas intended, and had actually killed their victim. The conver-sation imputed to the second and third accused consisted of mutualrecriminations, each imputing the chief responsibility of the crimeto the other. The effect of this evidence was to exonerate alto-gether the fifth and sixth accused, and the Crown, accepting thiswitness’s evidence, did not press the charge against them.
The witness was of such a character, and his evidence wasof so hypocritical and treacherous a description, that no jury wouldhave been warranted in giving any decisive weight to it againstany person accused of a capital charge. Moreover, in so far as itspecially implicated the second and third accused, it was inconsis-tent with the medical evidence.
I recommended the jury to acquit the sixth accused, whosepresence in the situations in which he was seen by the witnesseswas consistent with his innocence. With regard to the fifthaccused, who gave evidence of an alibi, and who was exoneratedby the first accused in the alleged conversation reported byAmbalavanar, I left it to the jury to say whether they were satis-fied that he was actually one of the party.
With regard to the other accused, I directed the jurythat if they accepted Sathasivam’s evidence, and were satisfiedthat the only reasonable inference from the situation in which thefour men were seen by Sathasivam was that they all concertedthe murder, they should- find them all guilty of murder, notwith-standing that all may riot have actually laid hands on the deceased.I further said, while it would be dangerous to act upon the evidence
( m )
of Ambalayanar against any person in particular, yet if bis evidencesuggested in their minds any reasonable doubt as to the guilt ofany persons among the accused, those persons were entitled tothe benefit of the doubt.
I further told them that if they were not satisfied that theevidence justified them in saying that all the aooused were actuallyguilty of the murder, or in singling out any particular persons amongthem as especially responsible, they would be entitled to find themall guilty of the second count, notwithstanding that they mightbe of opinion that one or more of them must have carried out themurder.
The jury acquitted the fifth and .sixth accused, and foundthe others guilty on the second count. They explained to methat though they were satisfied that the deceased was murdered,they did not feel justified in finding on the .evidence that all thefour concerted the murder, or that all had an actual hand in it.I sentenced the four accused so convicted to seven years’ rigorousimprisonment.
As the direction recited above in paragraph 9 was incon-sistent with certain Indian cases, which were referred to in textbooks, but the ratio decidendi of which was not available forexamination at Jaffna, I have reserved the question of the correct-ness of this direction for a Bench of three Judges.
A. St. V. Jayawardene (with him Peri Sundaram), for aceused.—The jury has found as a fact that it was one or mom of these fouraccused that committed the murder, but they could not say whichof them did it. Thus, it was proved, and not merely suspected, thatthe actual murderer was one or more of the accused. Therefore,they cannot be charged under- section 198, Ceylon Penal Code, withhaving caused the evidence of the offence to disappear. IAmbya.1The person charged under this section cannot be the person chargedwith the principal offence. This section deals with ** accessoryafter the fact, ” and does not apply to the principal offender himself,who cannot be prosecuted for obliterating the traces of his owncrime. Gout’s Indian Penal Code, 2nd ed., para 1861; Beg. v.Kashi Nath, * Sumanta Dkupi*.
If this conviction stands the. actual murderer himself would bepunished, which is contrary to the Indian authorities. Gout, para1867; Torap Ali v. Queen Empress *
When the Ceylon Legislature introduced the Penal Code in 1883,after these Indian decisions, it must be presumed that it acceptedthe interpretation put on the corresponding section by the IndianCourts. The Indian decisions are very clear that the principalcannot be convicted of the secondary offence of concealing evidence
I (189S) B. U. O. 799.* {1915) 20 Cal. W. Nates ISO.
• (1871) 8 Bom. B. C. B. 128.* (1895) 22 Cal. $38.
1080.
ThTsingf>. Thambi-pOed
( 458 )
WO* of the crime. Queen Empress v. Lalli? Empress t>. Kishna;* QueenTKs King Empress v. Nahala Bibi;• Queen Empress v. Dungar;* Starling’sV pittai1*' Ind*an Criminal Law, 8th ed., p. 285.
Akbar, S.-O. (with him Dias G.C. and Jansz C.C.), for theGrown.—The Indian decisions are not binding on us. The King v,
Jeerie 5 and our Courts have declined to follow them in certain cases.Bex v. Asirwatham; 6 Bex v. Kalu Banda?
In Torap Ali v. Queen Empress 8 the Judges followed the decisionsin the Bombay reports. The reasons given in the Bombay report?are first, that this section introduced what is known to the EnglishLaw as “ accessory after the fact.” This will not apply to our law,as section 209 of the Ceylon Penal Code makes provision for“"accessory after the fact.” The addition of the words “ assistsor maintains ” in section 209 was clearly meant to provide for“ accessory after the fact. ” A second reason is that this section 201,
P. C. (section 198, C. P. C.), must be read with the two followingsections 202 and 203, I. P. C. (sections 199 and 200, C. P. C.), whichclearly do not apply to the principal offender. It is clear thatsection 199 cannot apply to the principal offender, because anoffender is not legally, bound to give information of his own crime.But there is no reason why section 200, C. P. C., should net applyto the principal offender as well. The words are wide enough toinclude the principal offender. A third reason is that the onlyillustration to section 198 shows that it was not meant to apply tothe principal offender. But the illustrations are not alwaysexhaustive. Therefore the Indian decisions should not befollowed.
If the principle of the Indian decisions is right, then even a manwho stands on guard to enable an offence be committed would notbe within the section, as such a man is “ principal offender, ” yetsuch a case is clearly within the words of the section.
A. St. V. Jayawardene, in reply.
May 27, 1920. Bertram C.J.—
The facts in this case are sufficiently explained in my minute.Briefly stated the question is this. If several persons are detectedin the act of causing evidence of a crime to disappear with a viewto screening the offenders, are the jury precluded from convictingthem under section 198 of the Penal Code, if they feel satisfied fromthe circumstances of the case that one or more of the personsoharged must have been, actually guilty of the crime, though the
»11886) 7 AU. 749.6 (1905) 1 Bal. 186.
1 (1880) 2 AU. 713.* (1914) 18 N. L. B.11.
(1881) $ Cal. 788.7 (1912) 16 N. L. B.422.
(1888) 8 AU. 262.8 (1896) 22 Oal. 638.
( 459 )
evidence may not justify them in attributing this guilt to any one 1890.of them in particular?
The Indian Courts have answered this question in the affirmative,
They have held not only—The King
Vm jt fmmJH
That a man cannot under section 198 be found guilty of piBaiconcealing evidence of his own crime, but also—
That where, as in the present instance, the actual authors ofa crime are uncertain, but may, nevertheless, be consideredas certainly included in the group of persons engaged inconcealing evidence of the crime, this circumstance is fatalto the conviction of any member of the group for the latteroffence. As one of them must, and all of them may, beguilty of the crime, none of them can be found guilty ofthe subsidiary offence.
The authorities for the first proposition, amongst others, areRegina v. Kashinath Dinkar,1 Queen Empress v. Dinkar,* QueenEmpress v. Nahala Bibi,s Queen Empress v. Lalli,* Queen Empressv. Dungar,s Ohanasam,e Sumantha Dhupi.7
The authority for the second proposition is the case of Torap Aliv. Queen Empress.• This case is, indeed, on ail fours with the pre-sent case. It has been distinguished and dissented from in a subse-quent case Limbya, * but unfortunately the grounds on which theowe was distinguished are not fully before us.
Though we always treat Indian authorities with respect, moreespecially where, as in this case, they consist of a long chain ofdecisions, which have established a settled practice, we are not infact bound by them. See The King v. Jeeris. 10 This Court has inmore than one instance declined to follow a line of Indian authorities.Thus, in Rex v. Asirwatham 11 this Court declined to give to the word“ fraudulently ” the restricted signification in which the decisionsof the Indian Courts had gradually involved it and in Rex v. KaluBanda 12 this Court, dealing with the subject of confessions, did notfollow the Indian doctrine that a statement made for the purposeof exculpation is not a confession.
What we have to decide in this case is, in effect,, whether, in ouropinion, the cue of Torap Ali v. Queen Empress8 was rightlydecided, and as that case was decided upon the basis of the precedingauthorities, we have also to ask ourselves whether we adopt thereasoning of these previous authorities.
1(1871) 8 Bom. H. C. Or. 128.
2(1880) 2 AH. 713.
(1881) 8 Gal. 789.
(1885) 7 AU. 749.
8 (1888) 8 AU. 262.
(1908) 8 Bom. L. B. 638.
7 (1916) 20 Cal. W. N. 188
(1896) 22 Cal 638.
(1895) B. U. O. 799.
(1906) 1 Bal. 185.
(1914) 18 N. L. B. 11.
11 (1912) 15 N. L. B. 422.
( 460 )
1920.
Bkbtram
CJr.
the Kingv. Thambi-pMai
An examination of that case and the preceding cases' disclosesthat their rationea decidendi may be classified under three heads,all of which are recapitulated in the the judgment of the Court inTorap’a case *: —
The section was intended to give effect to the English law
relating to accessories after the fact, and therefore cannotapply to a principal offender.
It has to be read in conjunction with the two following sections,
both of which commence with the same formula:“ Who-
ever, knowing or having reason to believe that an offence hasbeen committed. ” As “ it is evident ” that both thesesections have no application to the persons who committedthe offence (see per the Court in Torap’s case 1 on page 540,adopting the reasoning of the Court in Regina v. KashinathDinkar),* so also the present section can have noapplication to such persons.
The only illustration appended to the section indicates that
it was intended to apply only to persons other than theprincipal offender.
•With every respect to the learned Judges who have propoundedthem, it cannot be said that any of these reasons is convincing.With regard to the first—the supposed intention to embody inthe Code the English law as to " accessories after the fact ”—theIndian legislative history of the corresponding section prior to itsenactment is given in Gout, 2nd ed., para 1857.. It appearsthat it originally stood as section 106 in the chapter relating toabetment. It was decided, however, to adopt the view of theEnglish Law Commissioners who were at the time examining theCriminal Law of England, and to discontinue “ the provisions asto accessories after the fact, the offence of parties falling withinthis description at present being for the most part referable tothe class of offences against public justice. ” Accordingly, “ sub-sequent abetment ” disappeared from the draft Code, and thesection, together with other sections, including that relating to"harbouring” (our section 209), was transferred to the chapterrelating to " Offences against Public Justice. ” These historicalcircumstances are no doubt most interesting. They may be usedfor the purpose of suggesting an interpretation of the section, butthey cannot control its construction. The fact that the sectionwas removed from the chapter on " Abetment ” neither requiresnor entitles us to construe it as though it was still there. It mustnow be construed in accordance with its actual terms, and inconnection with the context in which it is, in fact placed. Evenif the section were intended to embody the doctrine, or an aspectof the doctrine, in question, the scope of its application must be
» (1895) 99 Cal. 638.
* (1871) 8 Bom. B. O. Cr. 196.
( 461 )
determined, not by the limitations of this doctrine, but by its ownterms. But I am by no means dear that the origin of this sectionwas an attempt to formulate the English doctrine as to “ accessoriesafter the fact. ” “An accessory after the fact, ” says Lord Hale,in a definition which has always been treated as authoritative,“ may be where a person, knowing a felony to have been committed,receives, relieves, comforts, or assists the felon. ” The whole of thematerial words of this definition (or synonymous terms) have beenembodied in our section relating to “ harbouring ’’ (section 209),though this is not true of the corresponding Indian section. Itwould seem then that it is to that section and not to the sectionnow under consideration, that we must look for an expression ofthe English law of accessories after the fact. Even, therefore,if we feel disposed to attach weight to the suggestion put forwardin the Indian cases as to the supposed intention of the sectionwe could not fail to be affected by the circumstance that in theCeylon Code that intention has been fully carried out elsewhere.The section has to me not the air of an attempt to reduce tostatutory form a recognized principal of the English common law,but rather of a specific enactment designed to give logical complete-ness to the branch of the subject comprized in this chapter of theCode.
1980.
OJ.
The Kingv. Thambi-piUai
With regard to the second ratio decidendi of the Indian cases,viz., that this • section and the two following sections must beconstrued on the same principle, there seems to me very greatforce in the argument of the Solicitor-General that this is a beggingof the question. So far as section 199 is concerned, its applicationto principal offenders is negatived by the express words of thesection, which confine it to cases of omission to give any inform-mation which a man is “ legally bound to give, ’’ no man being legallybound to give information as to his own offences. But as tosection 200, there is no reason why it should not be construedon exactly the same principle as section 198, even though section198 is held to extend to the case of causing the disappearance ofevidence of a man’s own crime. Both sections can be construed inthe same way in any event. I have some difficulty, therefore,in appreciating the force of this reasoning.
So also as to the third reason: That the section has only oneillustration appended, and that illustration relates to a case ofscreening some one other than the author of the crime. I thinkthat this can only have been mentioned as a incidental circum-stance, and not as an argument. The object of an illustration isto illustrate, and not either to exhaust or to delimit a subject.
The reasons which have appealed to the Indian Courts seem,therefore, not of themselves sufficient either to demand of tojustify a restrictive interpretation of the section. But thereare other considerations to which my brother De Sampayo called
( 462 ')
1980.
CU.
The King«. Thombi-
pm
attention in the course of the argument, which I confess impress memore forcibly. It is difficult to believe that the draftsman of thissection had in his mind the case of a man making away withthe evidence of his own crime. If such a case had presented itselfto him, he would have put it in the forefront of the section. Hewoiild surely have commenced:“ 'Whoever having committed an
offence, or knowing or having reason to believe that an offencehas been committed ….” I think that this is undoubtedly
so. I am less impressed by the suggestion that if he had intended toinclude this case, he would not have used the expression “ screeningthe offender. ” If the section were amended so as to include thiscase in express terms, it seems to me that the term “ screeningthe offender ” would remain unaltered. It appears to me as amost appropriate' formula for embracing all classes of cases. ButI agree that if the draftsman had contemplated the case of a manscreening himself, he would have expressly mentioned it. I gofurther and say that in the context in which the section originallystood, the chapter on “ Abetment, ” he could not possibly havecontemplated it; and further, that those who subsequently trans-ferred it from the chapter on “ Abetment ” to the chapter on“ Offences against Public Justice ” had probably no conceptionthat by so doing they were greatly enlarging its scope. But theintention of the Legislature with regard to any particular enactmentis not to be determined by what was in the mind of the draftsman,but by the words which he has, in fact, employed, and which theLegislature has adopted, not by the context in which the enactmentwas originally placed, but by that in which it ultimately stands.There can be no question that the words “ whoever knowing thatan offence has been committed ” are wide enough to include thecase of the man who has himself committed the offence, or totake a case put by the Solicitor-General, who has stood outside onguard to enable it to be committed. Who knows better that anoffence has been committed than the man who has committed itor who has stood by to ensure its commission? Why, then, shouldthe words not receive their full significance? It is true that inthe first of the two cases just mentioned they are not the mostappropriate words, but that does not seem to me sufficient toexclude a case which they reasonably cover.
It would be otherwise if such a construction led to an absurdity,but the reasoning of the Sessions Judge, who was over-ruled in oneof the Indian cases (Queen Empress v. Dungar 1), seems to me toshow that, on the contrary, it completes the logical scheme of theCode. It is quite true that under this construction cases may beimagined which impose an unreasonable burden upon human nature.But, on the other hand, it covers cases which ought to be providedfor, and winch otherwise are not provided for. It enables the Court i
i (1886) 8 All. 252.
to say to a number of men who are found disposing of a dead body:" There is a moral certainly that some at least of you are themurderers, but it is impossible to say which of you. One tiling,however, it is possible to say, that you are all engaged in makingaway with the evidence of the crime, and the law will punishyou for that/’ The evidence being the same, in both cases, I seenothing unreasonable in the actual crime and the subsidiary offencebeing charged in the alternative, so that if the jury are not satisfiedas to the former, they may at least convict the offender of the latterMr. Jayawardene asserts that under no oivilized system of judicialjurisprudence is a man punished for concealing the- evidence of hisown crime. I do not know how that may be. I am by. no meanssure that under the F.ng1ish law the present case at any rate mightnot be indictable as a conspiracy to pervert the course of justice.But whether that is so or not, it is some satisfaction to feel thatthe present case is one which comes within the terms of ourown Code.
For the reasons I have explained I am of opinion that theconviotion and sentence should be confirmed.
Db Sampayo J.—
In this case six persons were charged on the indictment (1) undersection 296 of the Ceylon Penal Code, with having murdered oneSinn&tamby Kanagasabai, and (2) under section 198 of theCeylon Penal Code, with having caused evidence of the commission ofthe offence to disappear by removing the dead body of Kanagasabaifrom the place where he was murdered and by hanging it upon a well sweep so as to produce the appearance of suicide. Thejury acquitted the fourth and fifth accused altogether. They alsoacquitted the first, second, third, and fourth accused on the chargeof murder, but convicted them on the second count of the indictment.With regard to this, the direction of the Chief Justice, who presidedat the trial, as stated in the case reserved, was that “ if they werenot satisfied that the evidence justified them in saying that allthe accused were actually guilty of the murder, or in singlingout any particular persons among them as especially responsible, theywould be entitled to find them all guilty on the second count,notwithstanding that they might be of opinion that one or moreof them must have carried out the murder.” I gather fromthe statement of the case reserved—and the argument before the fullBench proceeded on the footing—that the opinion of the jury wasthat one or more persons among the first four accused committedthe murder, but they could not say which of them. The questionfor decision is whether tire direction to the jury above reoited wasright, and whether the conviction can be sustained.'
Having anxiously considered section 198 of the Penal Code, onwhich the second count was based, and the available authoritieson the subject, I am of opinion that the question should be answeredin the negative.
( 464 )
Section 198 of the Penal Code is as follows: “ Whoever, knowingor having reason to believe that an offence has been committed,causes any evidence of the commission of that ofEence to disappear,with the intention of screening the offender from legal punishment,or with that intention gives any information respecting the offencewhich he knows or believes to be false, shall …. bepunished with imprisonment, &c.”
It seems to me that this language refers, and can only bereasonably construed to refer, to a case where the offence hasbeen committed by a person other than the person who is chargedwith having caused the evidence (of the offence to disappear. Theexpressions “ knowing or having reason to believe ” and ” with theintention of screening the offender ” should be specially noted. Itid, of course, possible to say of a person who has committed theoffence that he knows or has reason to believe that an ofEence has beencommitted. But then this language would be employed, not in theordinary, but a non-natural, sense. Observe also the sentence “ thatan offence has been committed.” There is an element of detach-ment and impersonality in this locution which cannot with proprietybe predicated of the person who has himself committed the ofEence.Again, if the purpose is to convey that a person, having committedan ofEence, did something to ward off suspicion from himself, itwould be an odd way of putting it to say that he thereby intendedto “ screen the offender.” A man may “ screen ” another, butordinarily you will not say that he screened himself. The secondpart of section 198, which provides against giving false informationwith the intention of screening the offender, will certainly notapply to the offender, for it cannot be supposed that the law intendsto punish an offender for trying to defend himself by making falsestatements. The whole language of this section will be renderedquite inapt if it is construed to apply to the offender himself. Onemay not expect literary elegance in a legislative enactment, but oneis surely entitled to expect clearness and precision. Judging bythis standard, I am unable to hold that the Legislature, when itenacted section 198, meant what would require considerable strain-ing of language to say that it did. An Ordinance, after all, employsthe language of the average man, and I do not think that theaverage man will express himself in this manner. The fact appearsto me to be that the chapter in which section 198 occurs onlycontains provisions in aid of justice. It is is headed ” Of FalseEvidence and Offences against Public Justice.” It first providesfor punishing the ofEence of giving false evidence and fabricatingfalse documents, and then come a group of sections which appearto me to have regard to the punishment of persons, who by certainacts and omissions protect real offenders from punishment and thusdefeat public justice. Section 198 in question aims at punishingpersons who cause evidence against an offender to disappear with
imo.
De SaxpatoJ.
The King .v. Thambi-pOai
( 465 )
the intention of screening him from legal punishment. Section 199provides against failure to give information respecting an offence inaccordance with the duty of a good citizen, and section 200 againstgiving false information. It is agreed that section 199 does nottouch the offender himself, and I think that, considering the contextand the principles of English criminal jurisprudence, section 200does not touch him either. Section 201 provides against the secret-ing or destruction of documents by a person who may be compelledto produce them, and section 202 against falsely personatinganother, and in that assumed character making, any admission orstatement. Without referring to all the sections in tins chapter indetail, I may mention section 208, which penalizes the making offalse charges against another person; section 209, which punishesthe act of harbouring an offender, and section 210, which providesagainst the taking of any gratification to screen an offender frompunishment. All the sections, including section 198 in question,appear to me to have one common aim, namely, to punish thosewho interfere with the course of justice by assisting actual offenders,and by defeating the efforts of the public authorities to secure thepunishment of such offenders.
tm.
Db SahfatoJ.
The Kingv. Thambi-pObai
The same view as regards section 201 of the Indian Penal Code,corresponding to our section 198, has been taken by the High Courtsof India. I shall not here cite all the Indian decisions on this point.They are all referred to in the recognized commentaries on theIndian Penal Code. I need only say that they constitute an uniformseries of decisions extending from 1870 and earlier down to 1895,when Torap AH v. Q. Empress 1 was decided. Nor need I concernmyself with the reasoning by which these decisions were supported.For my purpose I only take note of the fact that in India, fromwhich our Penal Code has been borrowed, the Courts have alwaysconsistently construed section 201 of the Indian Penal Code as beingapplicable only to a person other than the. offender himself. ^Thedecisions of the Indian Courts are, of course, not binding upon us,"bubI am glad to find this catena of decisions, because they are in entireaccord with my own reading of the section. I may say that thedecision in Torap Ali’s case has not really been dissented from inLimbya.2 Those Bombay reports are not available to us, but there isa note of the case in Gout, from which it appears that all that washeld in that case was that in order to exclude the offender himselffrom the operation of section 201, it must be admitted or proved thathe in fact was the offender, and that a mere suspicion against himwould not be sufficient, but the principle of the decision in TorapAli and the previous cases was otherwise accepted and followed.It is in view of this ruling that I mentioned what the opinion ofthe jury was with regard to the charge of murder against theprisoners.
1 (1896) 82 CaL 688.
• (1896) B. V. 0. 799.
1980.
Ds BusayoJ.
The Kingv. Thambi-pitta*
( «6 )
In my opinion, then, a person who has himself committed anoffence cannot be convicted under section 108 of having caused anyevidence against him to disappear. There remains the subsidiaryquestion whether, where there are several accused persons and oneor more of them have committed the offence, and it cannot be speci-fied which of them did so, any one of them can be found guilty undersection 198. Torap Ali's case and Limbya’a case are authoritiesfor the proposition that none of them can be. This, I think, must beaccepted as oorrect, because it appears to be in accordance with theprinciples of criminal justice.
I accordingly think that the conviction of the prisoners should bequashed.
SoHNETOEK A.J.—
I have had the advantage of reading the judgments of my Lordthe Chief Justice and of my brother De Sampayo. I agree with theChief Justice as to the construction of the section and for thereasons given by him. As there is nothing I can usefully add,I would say no more than that the consideration which mainlyweighs with me is that such a construction is not inconsistent withthe language of the section, nor repugnant to any recognized principleof criminal jurisprudence, while at the same time it meets the casewhere the evidence falls short of establishing the guilt of themurderer.
Conviction affirmed.