THE QUEEN v. K. VELLASAMY and 4 others

056-NLR-NLR-V-63-THE-QUEEN-v.-K.-VELLASAMY-and-4-others.pdf


265
BASNAYAKE, C.J.—The Queen v. VeUasamy
[In the Court of Criminal Appeal]
Present: Basnayake, C.J. (President), K. D. de Silva, J.,and H. N. G. Fernando, J.THE QUEEN v. K. VELLASAMY and 4 othersAppeals Nos. 76 to 80 of 1959, with Applications Nos. 93 to 97S. C. 3—M. C. Chavakachcheri,' 10,171
Evidence—Indivisibility of a witness's credibility—Charge of murder—Conviction,withoiU amendment of indictment, for causing disappearance of evidence ofcommission of an offence—Scope of ss. 181 and 182 of Criminal ProcedureCode—Penal Code, ss. 198, 296.
Where the evidence of a witness is disbelieved in respect of one offenceit cannot be accepted to convict the accused of any other offence. Accordingly,if a witness’s evidence is disbelieved in respect of a charge of murder it cannotsustain the conviction of the accused in respect of a charge under section 198of the Penal Code.
A person who is indicted on a charge of murder cannot be acquittedof murder and, at the same time, without due amendment of the indictmentand being afforded an opportunity of answering the charge, be convicted undersection 198 of the Penal Code of causing disappearance of evidence of thecommission of murder or culpable homicide not amounting to murder. Sucha conviction is not covered by the provisions of section 182 of the CriminalProcedure Code.
Appeals against certain convictions in a trial before the SupremeCourt.
Colvin R. de Silva, with T. W. Rajaratnam and M. L. de Silva, forAccused-Appellants.
V. S. A. PuRenayegum, Crown Counsel, for Attorney-General.
Cur. adv. vult.
February 15, 1960. Basnayake, C.J.—
These appeals first came up for hearing on 30th July 1959, but as itappeared to us from the arguments addressed by learned counsel thathe sought to canvass certain decisions of the Supreme Court and of thisCourt the hearing was put off to enable the Registrar to list this casebefore a Bench of five Judges. Learned counsel indicated more thanonce when the case came up on the usual list that although the accusedwere on remand he was prepared to await the constitution of such aBench. But as it later appeared that it was not possible to constitute a
Lxm
2J. N. R 20309—2.033 (11/61)
266
SASHAYAKE, C.J.—The Queen v. Velios amt/
Bench of five Judges within a reasonable time learned counsel statedthat as delay in constituting a larger Bench was unavoidable the interestof the prisoners would be served by the case being heard by the usualBench. The appeals were accordingly listed for hearing on 14th December1959.
The accused-appellants Karuppiah Vellasamy, Ponnusamy NadarPanneerselvanadar, Muthukaruppan Ratnam, Sinivasagam Morgan andMuthiah Vaithilingam were indicted on a charge of murder of one NallanKuppan on 25th April 1958. By a unanimous verdict the jury acquittedthe appellants of that charge, but they found them guilty—to quotetheir very words—“ of the offence of knowing or having reason to believethat an offence has been committed, cause the evidence of the commissionof the offence of culpable homicide not amounting to murder to disappear,an offence punishable under section 198 of the Penal Code.” Theappellants were each sentenced to a term of three years’ rigorousimprisonment.
Of the grounds set out in the joint notice of appeal learned counselconfined his attention to the following :—
(а)that the verdict is unreasonable, and
(б)that the conviction of the accused of an offence under section 198
of the Penal Code is illegal.
It would be helpful if the material facts are briefly stated before theabove grounds are examined. They are as follows : The 1st accused wasboth a tapper and a toddy salesman in the toddy booth of the 3rd accusedRatnam. The 2nd and 3rd accused were also tappers. The 4th accusedwas a tailor. The occupation of the 5th is not known. The evidenceagainst the acoused is in two stages. The first stage consists of the eventsthat occurred at about 5.30 p.m. on the afternoon of 25th April, thesecond stage of the events that occurred at about 11.30 p.m. on that day.Both stages were enacted at Emerson Road, a busy street, with a theatreknown as the Parasakti Theatre and a number of boutiques which areopen till late at night. Except two of them which were open till midnight,the others closed at 10.30 p.m. In this area there are two irrigationchannels, one broad and the other narrow. The broad channel intersectsEmerson Road at right angles. The narrow channel, which is a branchof the broad one, is to the north of that road and runs almost parallelto it. It is built of earth and turf and at the relevant date had a footof water.
The first stage of the evidence discloses the following facts : Thedeceased was assaulted by the 1st accused because he had pulled thecad j a ns from the latter’s toddy booth. This assault was not of a seriousnature as the deceased soon recovered from it, bathed in the channelnearby in Emerson Road, and went in the direction of the toddybooth in that road, which is also the direction in which his house lay.About dark the deceased went to the house of Mariampillai who . had
BASNAYAKE, CJ.—'The Queen v. Vettasomy
267
borrowed Rs. 900 from him and wanted the return of the loan. Hewas drunk at the time and appeared to have taken a bath and was wearing;a white shawl over his body. When Mariampillai tried to put him offhe insisted on payment, but he was able to give only Rs. 150. He tookthis sum and left about 6.30 p.m. Between 7 and 8 p.m. the deceasedwas seen by the witness Alagaratnam seated on the side of the road ata spot between the toddy booth and the Parasakti Theatre. He waswearing a verti and a shawl and appeared to be quite well.
Now comes the next stage of the evidence which discloses the followingfacts : About 11.30 p.m. the same day—the witness Maniccam is notsure of the date—four of the accused were seen by him carrying a humanbody covered with a verfcy from the neck downwards on two poles orone he is not clear. The 5th and 3rd accused were at the head, the 1stand 2nd were at the foot. The 4th accused was walking with the otherscarrying a club. Maniccam who was proceeding along Emerson Roadin the opposite direction on a bicycle with another called Arunachalamon the luggage-carrier, met this party on the same road at a point beyondthe broad channel. The bicycle had a dyno-hub lamp and Arunachalamalso had a torch which he flashed when they met the accused. Maniccamrecognised the accused and also the person who was being carried. Hewas the deceased Kuppan. As he was a man addicted to liquor andwas often found drunk the witness inferred that as the deceased wastoo drunk to go by himself he was being carried to his home which wasin the direction in which the accused were proceeding.
This brief narrative of facts completes the evidence of the two stagesof the prosecution case and takes us to the discovery of the body of thedeceased. On 26th April it was found in the narrow channel by thewitness Velupillai when he went for a bath about 8 a.m. He informedthe Police immediately. The banian and verty of the deceased wereat two different spots up stream. The autopsy held on 27th Aprilrevealed a fracture of the skull at the fronto temporal suture longon the left side. There was laceration of the middle portion of the upperpart of the cerebrum with blood clots and stains. The laceration ofthe brain was 2" long and n deep on the left side. The decompositionof the body was too advanced for the detection of any external injurycorresponding to the internal injuries. The stomach contained semi-digested rice and curry with the smell of toddy. In the opinion of thedoctor the man had died between two to three hours after the last meal.The cause of death was the fracture of the skull and laceration of thebrain. The doctor did not exclude the possibility of the fatal injurybeing caused by a violent fall on a hard object. He was also of opinionthat the state of the body at the time of his examination was consistentwith the case of the prosecution that the man had died on the night of25th April; but he did not venture to give an independent opinion asto the time of death. The key to the sketch reveals that there were twowitnesses by name Kuruppuarachchige Wijedasa and T. A. Robertinahamywho had from the spots marked G and H respectively seen the deceasedbeing dropped into the channel by the accused. It is strange that
268
BASIfAYAKE, C.J.— The Queen v. Vellaeamy
these witnesses were not called at the trial although their names wereon the indictment and their places of residence appear to have beenknown. Their evidence would have gone a long way to support Manic cam.
On this evidence the learned trial Judge directed the jury that, ifManiccam’s evidence was rejected, the whole case for the prosecutionfailed. These are his very words :
“ Now as Counsel for the defence rightly remarked, this case turnsalmost entirely upon the evidence of Maniccam. If you reject Maniccam’sevidence or if you cannot act upon it with confidence, then, ofcourse, the whole case for the prosecution fails because he is the oneman who, by his evidence, connects these accused with the deceased* • • •
“ So, as I said, the whole case really depends on whether you acceptManiccam’s evidence or not. If you reject his evidence then you willacquit the prisoners, but if you think you can confidently accepthis evidence, then it means this : Here, there are five people who carrya man on two poles—-it cannot be one—Maniccam said he could notsay whether it was one or two, and he has consistently said so—theycarry him covering him with a verty cloth and they are seen at 11.30p.m. carrying this man towards the channel where his body is discoveredthe following morning. The evidence in regard to the guilt of theaccused is based on the following circumstances ”.
After explaining the circumstances the learned Judge proceeded :
“ There is no explanation forthcoming from the accused, if youaccept the evidence. If they have an explanation why don’t theycome- out with it ? In the absence of that explanation, you candraw an inference adverse to the prisoners ….
“ If you accept Maniccam’s evidence, are these not facts whichcry for an explanation ? If you reject Maniccam’s evidence thenthe whole case is over. ”
Thereafter the learned Judge went on to say :
" Then you will have to consider another aspect of the matter.It is also an offence to cause evidence to disappear. Now, if youtake the view that the evidence does not justify your coming to theconclusion, that there was the common intention shared by all theseaccused then you have to consider whether they are guilty of someother offence, namely, the offence to cause evidence of the commissionof an offence to disappear. That is the verdict which you can bring.Under our law it is an offence for a person to cause' evidence of thecommission of an offence to disappear. I shall read the section toyou :
‘ Whoever knowing or having reason to believe that an offencehas been committed causes any evidence of the commission ofthat offence to disappear with the intention of screening the offenderfrom legal punishment shall be guilty of an offence. ’
BASNAYAKE, C.J.—The Queen v. VeUaeamy
209
“That is the law. Supposing these people were not actually guiltyof committing the murder still what did they do ? They carriedthis dead body and put it into the stream. What was their object?Could it be that they wanted to create the impression that the manhad slipped and fallen into the stream and drowned himself ? Themedical evidence is that it is not asphyxia that caused death buta blow on the head. Could it be that ? Well, that is the offence ofwhich you can find all these accused guilty, if you accept Maniccam’sevidence.
“ If you take the view, on the evidence, with regard to commonIntention that it is acceptable or such that can make you act withcertainty with regard to causing of evidence of the commission of anoffence to disappear, in this case, murder or culpable homicide notamounting to murder or grievous hurt to disappear, it is a possibleverdict. ”
There is no evidence that the accused were carrying a dead body. Thelearned Judge’s reference to a dead body appears to be a slip of memory,for earlier in his summing-up in dealing with the charge of murder hetook care to make the evidence clear to the jury by saying :
“ In his evidence Maniccam does not say that he was dead or alivebut of course, that itself is suggestible that he was dead or dead drunk,one or the other. The medical evidence rather suggests that he wasdead because the Doctor said that death was 36 hours prior to hisexamination. ”
Apart from the question whether the conviction of the accused of theoffence punishable under section 198 of the Penal Code without anamendment of the indictment and the accused being afforded theopportunity of answering the charge is good in law, the question whether,on the directions given by the learned Judge, the verdict of guilty ofan offence punishable under section 198 can be reconciled with theverdict of acquittal of the charge of murder arises for consideration.The learned Judge emphasised more than once, and it would appearfrom his charge that learned counsel for the defence did likewise, thefact that the whole case depended on Maniccam’s evidence. He said :
“ If yor reject Maniccam’s evidence then the whole case is over ”. Againafter discussing the evidence further he said : " If you reject his evidencethen you will acquit the prisoners ”. Acting on this direction, so it maybe presumed, the jury acquitted the accused. The inference that maybe drawn from the verdict of acquittal is that Maniccam’s evidencewas rejected. The only relevant evidence he gave was the evidenceof his meeting the five accused, four of whom were carrying the deceasedcovered with a verty cloth in the direction of the channel along EmersonRoad. If this evidence was rejected on the charge of murder it is difficultto understand how on the same evidence a conviction of any otheroffence can be founded. The standard of proof required in respect ofa charge under section 198 of the Penal Code is not below that requiredin respect of a charge under section 296. The acquittal of the accused
2*J. S. R 20306(11/01).
270
JBASWAYAKE, C.J.— The Queen v. Vellasamy
on the charge of murder shows that the jury disbelieved Maniccam’sstory that the accused carried the body of the deceased towards thechannel at about 11.30 p.m. on the night of 25th April. Evidencewhich is unacceptable in respect of one offence cannot reasonably affordgood ground for convicting the same persons of another offence. Itwas Maniccam’s credibility that was in question. When the jury treatedhim as a witness who was not credible there was an end to the case asthe learned trial Judge rightly observed more than once in the courseof his summing-up. A witness cannot be both not credible and crediblein regard to the very same evidence. This view of the indivisibility of awitness’s credibility gains support from the case of Baksh v. The Queen1,■where the view was expressed that the evidence of a witness which wasrejected as against one accused cannot be accepted against another.The Privy Council observed : “ Their credibility cannot be treated asdivisible and accepted against one and rejected against the otherAs his evidence has been disbelieved in respect of the charge of murderit cannot sustain the conviction on any other charge. The convictionsof the accused cannot be upheld as there is no evidence apart from that ofManiccam which implicates them. We accordingly allow the appealsand direct that the convictions of the accused be quashed and that ajudgment of acquittal be entered in respect of all of them.
Though this disposes of the appeals, as learned counsel has arguedthe question of law arising thereon at length, we shall now proceed todiscuss it. At the conclusion of the summing-up learned counsel forthe 1st, 3rd, and 5th accused submitted : “ With regard to this, therewas no charge and Crown Counsel did not open his case on that basis andI did not address the Jury on that ”. To this the learned Judge observed :“This has been laid down by authority. Gentlemen, please retire andconsider your verdict ”.
The learned trial Judge appears to have taken the course he followedon the assumption that the instant case was covered by section 182 ofthe Criminal Procedure Code. That section reads :
“ If in the case mentioned in the last preceding section the accusedis charged with one offence and it appears in evidence that he committeda different offence for which he might have been charged under theprovisions of that section, he may be convicted of the offence whichhe is shown to have committed although he was not charged with it. ”
In view of the reference in the section quoted above to the last precedingsection it is necessary for a proper appreciation of the question involvedin this appeal to reproduce that section as well. It, together with theillustration to it, reads—
“ 181. If a single act or series of acts is of such a nature that it isdoubtful which of several offences the facts which can be provedwill constitute, the accused may be charged with all or any one ormore of such offences and any number of such charges may be tried
H1958) A. C. 167 at 172.
BA&NAYAKJE, C.J.— The Queen v. Vellasamy
271
at one trial and in a trial before the Supreme Court or a District Courtmay be included in one and the same indictment : or he may be ohargedwith having committed one of the said offences without specifyingwhich one.
ILLUSTRATION
A is accused of an act which may amount to theft or receiving stolenproperty or criminal breach of trust or cheating. He may be chargedwith theft, receiving stolen property, criminal breach of trust, andcheating, or he may be charged with “having committed one of thefollowing offences, to wit, theft, receiving stolen property, criminalbreach of trust, and cheating. ”
For the application of section 182 to a given case—
(а)there must be a single act or series of acts,
(б)the act or series of acts must be of such a nature that it is doubtful
which of several oflFences the facts which can be proved willconstitute.
The illustration to section 181 indicates what the legislature had inmind when it enacted the two sections. The act or series of acts mustbe such as amounts to, as in the case ol the illustration, any one of severaloffences and the doubt must be as to which one of those offences wascommitted by the accused. The second part of the illustration givesa further clue to the meaning of the section. The act or series of actsshould be such as would permit of a charge which runs as indicated therein—“ that you did commit one of the following offences The doubtmust be not in regard to tbe facts, but in regard to the offences disclosedby the undoubted facts. In other words the facts must be such as wouldequally support any one of the several charges. These two sectionscannot properly be applied to a case in which one offence alone is indicatedby the facts and in the course of the trial the evidence falls short of thatnecessary to establish that offence, but discloses another offence. Outsidethose offences given in the illustration, cases in which these sectionsmay be applied seldom occur. These sections are of very limitedapplication and it is important that they should be confined to theirproper limits. They should be so construed as to be consistent withthe principles of justice that are not only expressed but also inherent in theCode. Apart from that it is an established rule of interpretation thata statute must not be construed as altering the principles of naturaljustice unless it is so expressly and clearly provided. Where there is nosuch provision the Legislature must be presumed not to have enacteda law which departs from the rules of natural justice. For the appli-cation of these provisions there should therefore be not only doubt asto which of several offences the act or acts which can be proved amountto but the offences must be of such a nature that the accused may beconvicted without a specific charge. The observations of Bonser C.J.in The Queen v. Gabriel Appu1 and of Soertsz J. in The King v. Piyaseva 3are in accord with our view.
1896) UN. L. R. 170.
3 (1942) 44 N. L. R. 58.
272
BA6NAYAJCE, C.J.—The Queen v. Vellasamy
Now £z> the instant case the acts of the accused set out above are notof such a nature that renders it doubtful which of several offences theproved facts constitute. The only evidence which incriminates theaccused is that of Maniccam who says that the body of the deceasedwas being carried by four of the accused while the fifth was walkingalongside with a club. Even if the credibility of the witness was beyondquestion, which is not the case here, is the act of the accused in canyingthe deceased in the way described by the witness of such a nature as torender it doubtful which of several offences that evidence constitutes ?The proved facts do not establish that one of the accused committedthe offence of murder or culpable homicide not amounting to murderin furtherance of the common intention of all. Nor do they establishthat all the accused caused evidence of the commission of the offenceof murder or culpable homicide not amounting to murder to disappearwith the intention of screening the offender from legal punishmentknowing or having reason to believe that that offence had been committed.Two important elements of an offence under section 198 are—
(а)the knowledge or belief of the accused that a particular offence
has been committed, and
(б)the intention to screen the offender from legal punishment.
The act of causing evidence of the commission of an offence to disappearunless coupled with these two important elements does not establishthe offence. In a charge under that section these mental elements mustbe established either by positive evidence or by the proof of such factsas lead to the necessary inference that they wore present in the mindsof the accused at the time the act of causing the evidence to disappearwas committed. In this view of the matter the learned Judge’s directionthat it was open to the jury to return a verdict under section 198 of thePenal Code is not supported by the provisions of the Code.
Except the case of Begu and others v. Emperor1, which has been citedin two decisions of this Court®, one reported and the other not, it is notnecessary for the purpose of this appeal to discuss the decisions citedby learned counsel on both sides. Whether section 182 is applicableto a given case would depend on its facts and the nature of the offencesdisclosed by them. Although learned counsel for the Crown placedgreat reliance on Begu's case it is not clear from the judgment of theBoard how, on the facts stated, the act or series of acts proved in thatcase was of such a nature that it was doubtful whether they constitutedthe offence of murder or of causing the evidence of the commission ofmurder to disappear. The relevant portion of the judgment reads :
“ The case was tried by the learned Judge at the Sessions Courtwith the aid of three assessors, and at the end of the case the assessorsgave their opinions, which were recorded ; that they were unanimouslyof opinion that Bakhu and Walia, the accused, had attacked Bakshawith intent to kill him ; that they murdered him ; that two of the
1 (1925) A. I. R. Privy Council 130.
* Karuppiah Servai v. The King, 52 N. It. R. 227.
8. O. 38/31.0. Hambantota 13140—C.C.A. Minutes of 13th September, 1949■
BA8NAYAKE, G.J.—The Queen v. VeUasatny
273
others who were present took part in the assault, as stated by Turez,the eye-witness ; that there might be some doubt as to whether Hamidone of the accused, was also present and took part in the assault ornot; and, finally, that the prosecution case and evidence appearedgenerally reliable throughout. That is what the learned Judgeregarded as being the opinion of the assessors. The learned Judge,having the evidence and the views of the assessors before him andhaving considered them, on the 22nd December delivered his judgment.With regard to Bakhu and Walia he decided that they intended tokill Baksha and were guilty of murder and he sentenced them todeath. With regard to the other three, he was of opinion that theevidence did not sufficiently or definitely prove that they were presentat and had taken part in the murder, but, on the other hand, heconvicted each of them of having removed the body, and he sentencedthem each to seven years’ rigorous imprisonment *
The facts as found by the assessors show that all except one of theaccused participated in the murder and that all participated in the removalof the corpse. The accused were guilty of two acts each of whichconstituted a distinct offence and they were not of such a nature as torender it donbtful which of them was constituted by the establishedfacts. The judgment proceeds on the assumption that, even thoughthe evidence falls short of establishing the charge in the indictment,section 237 of the Indian Code (which corresponds to our section 182)authorises a conviction of any other offence disclosed by the evidencethough no specific charge has been framed. Such is not the case as hasbeen pointed out earlier. Section 236 of the Indian Code (whichcorresponds to our section 181) lays down the considerations that shouldgovern the formulation of charges in the case mentioned therein. Thissection is to be used at the pre-trial stage of a criminal case. Section 237comes into operation at the end of the evidence ; but it is to be appliedonly to a case which satisfies the requirements of section 236. Theconviction without a charge is authorised only if the evidence is suchthat it discloses an offence different to the one with which an accusedperson is charged but one in respect of which he might have been chargedunder section 236. Begu’s case does not appear to give sufficient attentionto the following words of section 237 : “ If, in the case mentioned insection 236,…. a different offence for which he might have
been charged under the provisions of that section, ….”
In applying section 182 of our Code there should be no departurefrom the fundamental rule of justice that a man should not be condemnedunheard, and it would be a violation of that rule to direct the jury toreturn a verdict against a prisoner on a charge on which he has not beenafforded an opportunity of being heard. The ingredients of the offencepunishable under section 296 of the Penal Code and those of the offencepunishable under section 198 are different. The defence to a chargeunder the former section does not necessarily involve the defence to acharge under the latter.
*Accused acquitted.