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-THE QUEEN v. GABRIEL APPU.D. C. (Criminal), Kandy, 870.
Conviction of offence not included m ike charge—Procedure thereon—
Procedure in case of doubt as to offence indicated by the evidence—
Extortion—Robbery—Cheating—Criminal Procedure Code, 88. 211
The complainant was bringing some cattle to Matale. Appellant,an officer of the Local'Board of Matal6, who had nothing to do withcattle, accosted complainant and asked him for his cattle vouchers.Complainant, believing appellant to be an officer who had the rightto demand the cattle vouchers, gave them to him. Having got thevouchers, appellant demanded money, and refused to allow com-plainant to take away the cattle until he was paid ; and complainantthereupon paid him one rupee. Appellant was charged with andtried for extortion under section 373 of the Ceylon Penal Code.
At the close of the prosecution appellant called no evidence indefence, -as he contended that the evidence failed to establish theoffence of extortion. The District Judge reserved judgment untilthe next day, and then sustained the objection as to want ofevidence on the charge of extortion, but, purporting to act undersection 211 of the Criminal Procedure Code, convicted appellantof robbery, being of opinion that the facts proved made out a casefor that offence—
Held, that the procedure adopted was neither fair to appellant norconsistent with section 271 of the Criminal Procedure Code, and thatbefore appellant was convicted of robbery, he should have-beengiven an opportunity of defending himself with reference to thatoffence.
In cases falling under section 211 of the Criminal ProcedureCode, if the Judge or Magistrate be of opinion that the evidencefails to establish the charge on which the accused was indicted,he must acquit him on that charge ; but if he were of opinion thatit was difficult for him to say whether the evidence establishedthe charge in the indictment or a cognate charge, he should soinform the accused, and call upon him to answer the facts disclosedin the evidence generally.
Held further, that the facts of the case as stated above constitutedthe offence of cheating, and not of robbery.
Qusere, whether section 211 of the Criminal Procedure Codeapplied to such offences as extortion and robbery.
r j ''HE facts of the case appear in the judgment.
Bawa, for appellant.
De Saram, A.C.C., for respondent.
28th September, 1896. Bonser, C.J.—
In this case the accused was indicted on this charge :—“ That he“ did, on or about the 26th daj of'July, 1896, at Matale, within the“ jurisdiction of this Court, intentionally put Nugu Lebbe in fear“ of injury to him in respect of certain cattle vouchers, the property
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“ of the said Nugu Lebbe, wrongfully obtained from him, and“ thereby dishonestly induced the said Nugu Lebbe to deliver to“ him (the accused) the sum of one rupee.” ***
It seems to me that the words of the indictment are too vague.“ In fear of injury to him in respect of certain cattle vouchers ” isnot a precise enough statement of the injury. The facts appear tobe these. The complainant was bringing some cattle into M&tald.The appellant is an officer of the Local Board of M&tald. Hehad nothing to do with cattle. He accosted the complainant andasked him for his cattle vouchers, and the complainant, at hisrequest, and believing him to be an officer, as he represented,having the right to demand them, gave them to him. Having gotthe vouchers the appellant demanded money and refused to letthe cattle go. There is no evidence that he attempted to stop thecomplainant himself. At the trial the evidence for the prosecu-tion established the fact I have mentioned, and the prosecution .was closed. The appellant’s proctor then addressed the Courtand pointed out that the evidence failed to establish the offenceof extortion, and called no evidence.
The Judge did not give a decision then and there, but reservedjudgment till the next day. The next day, in the presence of theaccused, but, as it would appear, in the absence of his proctor, hedelivered a judgment, in which hfe sustained the objections ofaccused’s proctor, and found the charge of extortion was not madeout. But he went on to say that in his opinion the facts disclosedmade out a case of robbery, and he forthwith convicted the appellantof robbery and sentenced him to one year’s rigorous imprisonment.He purported to do this under section 211 of the Criminal ProcedureCode, which provides that “ if, in the case mentioned in section 210,“ the accused is charged with one offence, and it appears in evidence“ that he committed a different offence for which he might have“ been charged under the provisions of that section, he may be“ convicted of the offence which he is shown to have committed,“ although he was not charged with it.” Assuming for the momentthat section 211 applies to the present case, I am yet of opinionthat the procedure adopted was not fair to the accused, nor is itconsistent with the provisions of section 271 of the Code. Section271 provides that “ when the examination of the witnesses for the“ prosecution is concluded, if the Court wholly discredit the evidence“ on the part of the prosecution, or is of opinion that such evidence“ fails to establish the commission pf the offence charged against“ the accused in the indictment, then the Court shall return a verdict“ of acquittal.” ***
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1806. It seems to me, therefore, that in a case which falls under section■Septentber28. 211 the Judge or Magistrate, if he is of opinion that the evidenceJJonseb. C.J. fails to establish the charge on which the man was indicted, mustacquit him of the charge. . But if he were of opinion that it wasdifficult for him to say whether the evidence established the charge ■in the indictment or a cognate charge, he should so inform theaccused and call upon him to answer the facts disclosed in theevidence generally. In the present case it would seem as though thecounsel for the appellant merely rested his defence on the deficiencyof the evidence for the prosecution to establish the charge containedin the indictment. Had he been told that the Judge was going toconsider another charge, he might have called evidence to meetthat charge. But I have some doubt whether section 211 appliesto a case like the present. The instances given in the illustrationare instances of offences of much the same character—theft, receivingstolen property, criminal breach of trust, and cheating—offenceswhich it is often exceedingly difficult to distinguish, and which arepunishable by much the same punishment. In the present casethe appellant was tried for an offence for which the maximumpunishment is three years’ rigorous imprisonment, and convictedof another offence which is punishable with fourteen years’ rigorousimprisoment and whipping in addition. Surely it would not be•competent for a jury on a charge of culpable homicide or grievoushurt to bring in a verdict of murder.
But in my opinion the offence of robbery of which the appel-lant has been found guilty, has hot been made out. Mr. De Saram,who represented the Solicitor-General, declared himself unableto support the conviction for robbery. But it seems to me thatif the evidence is to be believed, the appellant was guilty of cheatingby falsely representing himself to have authority to examinecattle vouchers, and on that false pretence inducing the complainantto deliver to him the cattle vouchers. The proper order to makewill be—that the finding and conviction of the District Judge are•quashed, and the case remitted in order that the appellant may becharged with cheating, and given an opportunity of adducing•evidence to meet that charge.
It seems to me that it will be unnecessary to try the appellant•again. I simply quash the conviction, and give the appellant anopportunity of meeting the charge of cheating.
THE QUEEN v. GABRIEL APPU