054-NLR-NLR-V-67-THE-QUEEN-v.-D.-K.-DHANAPALA.pdf
[In the Court of Criminal Appeal]
Present: Basnayake, C.J. (President), Abeyesundere, J.,and Sri Skanda Rajab, J.THE QUEEN v. D. K. DHANAPALAAppeal No. 17 of 1964, with Application No. 18S. C. 159/63—J. M. C. Colombo, 26274
Criminal Procedure Code—Sections 181 and 182—Charge of abetment of attemptedmurder—Conviction, without separate charge, for causing simple hurt—Illegality.
A person indicted on a charge of abetment of attempted murder cannotbe convicted, without a separate charge, of voluntarily causing simple hurt.
Appeal against a conviction in a trial before the Supreme Court.
Colvin R. de Silva, with Mangala Munasinghe and D. Q. Jayalath(assigned), for 2nd Accused-Appellant.
V. S. A. Pullenayegum, Crown Counsel, for Attorney-General.
May 4, 1964. Basnayake, C.J.—
The 1st accused Lekamwasam Newton Siriwardene was indictedon a charge of attempted murder and the 2nd accused Don KarunasekeraDhanapala on a charge of abetting the offence of the 1st accused. Inthe course of his charge to the jury the learned Commissioner expressedthe view that the evidence was insufficient to establish the offence ofabetment, and he directed the jury that it was open to them to returna verdict of voluntarily causing simple hurt.
On the first day of the hearing of this appeal we dismissed the appealof the 1st accused and gave counsel time to address us on the questionof law as laid down by the learned Commissioner. He said—
“ My own view is that there is an insufficiency of evidence to holdthat he was abetted. Assuming that you are satisfied that he didassault him, it must be in connection with the act of the first accused.So much for that. If you take that view, you will of course haveto acquit the second accused of the charge of abetment. But thatdoes not conclude the matter. It is open under a provision of ourlaw—if you hold that the second accused did assault Hassen, that ithas been proved to you beyond reasonable doubt that he did so—to find him guilty of simple hurt. I will not worry you with the law.That is my interpretation of section 182 of the Criminal ProcedureCode. ”
Learned Crown Counsel sought to support the learned Commissioner’sview that under section 182 of the Criminal Procedure Code it was opento the jury to return such a verdict.
We are unable to agree with his submissions. The Court may,under section 182, convict an accused person without a charge of anoffence for which he might have been charged in the circumstancesmentioned in section 181. That section deals with the case of a singleact or a series of acts of such a nature that it is doubtful which of severaloffences the facts which can be proved will constitute. The instantcase does not come within the ambit of section 181.
As the direction of the learned Commissioner is in our opinion wrongin law, the conviction of the 2nd accused must be quashed. We quashthe conviction of the 2nd accused and direct that a judgment of acquittalbe entered.
2nd accused acquitted.