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TILLAKARATNE AND OTHERS
COURT OF APPEAL
RAMANATHAN. J., W. N. D. PERERA, J. AND WIJAYARATNE. J.
C.A. NO. 149 – 152/84 – H.C. COLOMBO 503/77MARCH, 28. 29, 30 AND 31, 1989
Criminal Law – Robbery – Can accused charged with robbery be found guilty ofretention? – Ss. 380, 394 Penal Code – Conspiracy
Where a person is charged with robbery under s.380 of the Penal Code, he can befound guilty of retention of stolen property under s.394 (under Ss.176 and 177 of theCriminal Procedure Code). Robbery, theft and retention are cognate offences.
The mere fact that an accused pointed out stolen property thereby leading to theinference that he knew it was concealed in that place is insufficient to find him guiltyunder S.394. There must be evidence to suggest that the property was placed thereby the accused himself or that it was in his conscious and exclusive possession.
Sumanasena vs. The King (52 N.L.R. 400) followed.
A conspiracy is generally hatched in secrecy and it is almost impossible to adducedirect evidence.
A conspiracy is a matter of inference deduced from certain acts of the accused donein pursuance of an apparent criminal purpose or design between time.
Each accused's case must be considered separately and the inference must beirresistible that he was a party to the conspiracy.
Cases referred to:
1. The King v. Piyasena 44 N.L.R. 582- The Queen v. Vellaswamy 63 N.L.R. 465
The King v. Podisinno 11 N.L.R. 235
Sumanasena v. The King 52 N.L.R. 480
Billu v. Emperor A I R. (1930) Sind 168 (4))
Tillakaratne v. The Attorney-General (Wijeratne, J.)
The King v. Cooray 51 N.L.R. 433
The Queen v. Uyanage 67 N.L.R. 193, 203
Blshan Lai v. State of Maharashtra A.I.R. 1965 SC 682APPEAL from judgment of the High Court of Colombo
Batty Weerakoon with Miss Chamantha Weerakoon and S. Subasinghe for the 4th, 5th. and 6th accused-appellants
Upawansa Yapa, D.S.G. for Attorney-General
Cur. adv. vult
June 30, 1989.
The seven accused in this case were indicted in the High Court of
Colombo on the following counts
That they between 1.8.1976 and 6.9.1976 did agree tocommit or abet the offence of robbery of money belonging tothe Arrack Tavern at Kollupitiya, an offence, punishableunder section 113A read with section 380 of the Penal Code.
That on 6.9.1976 the 1st to 5th accused were members of anunlawful assembly the common object of which was tocommit robbery, an offence punishable under section 140 ofthe Penal Code.
That at the same time and place aforesaid and in the courseof the same transaction set out in the 2nd count above, oneor more members of the said unlawful assembly did commitrobbery of cash Rs.213,325/- and cheques to the value ofRs.6,877/50, which offence was committed in prosecution of
' the said common object, or was such as the members of thesaid unlawful assembly knew to be likely to be committed inprosecution of the said common object, and the 1st to 5thaccused, being members of the said unlawful assembly, atthat time did thereby commit an offence punishable undersection 146 read with section 380 of the Penal Code.
That the 1st to 5th accused did commit robbery of the saidcash and cheques, property in the possession of Karthigesu
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Kanapathipillai, an offence punishable under section 380read with section 32 of the Penal Code.
That the 6th and 7th accused did abet the commission of theoffence set out in the above 4th count and therebycommitted an offence punishable under section 380 readwith section 102 of the Penal Code.
As the 1st accused was never present in court and wasabsconding, after evidence to this effect was led he was tried inabsentia under the provisions of section 241(1)(a)of the Code ofCriminal Procedure.
The 2nd accused Nihal Wickramasinghe and the 3rd accusedHettiarachchige Chandradasa, who were charged on counts 1 to 4,had pleaded guilty to the charges against them.
On 9.6.1978 the 2nd and 3rd accused were each sentenced to 6years’ rigorous imprisonment on the 1st count, 6 months’ rigorousimprisonment on the 2nd count, 6 years’ rigorous imprisonment onthe 3rd count and 1 year’s rigorous imprisonment on the 4th count,the sentences to run concurrently.
. The trial commenced on 28.1.1980 against the other accused.
The 1st, 4th and 5th accused were charged on counts 1 to 4.
The 6th and 7th accused were charged on counts 1 and 5.
After a very lengthy trial, the 1st, 6th and 7th accused were foundguilty and the 4th and 5th accused not guilty on count 1.
The 1st accused was found guilty on count 4.
The 4th and 5th accused were acquitted on the charge of robberyon the 4th count, but were found guilty of the lesser offence ofdishonestly retaining stolen property, punishable under section 394 ofthe Penal Code.
The 6th and 7th accused were found not guilty on the 5th count.
The 1st accused was sentenced to 10 years’ rigorousimprisonment each on the 1st and-4th counts, the sentences to runconcurrently.
The 6th and 7th accused were each sentenced to 3 years’ rigorous, imprisonment on the 1st count.
SCTillakaratne v. The Attorney-General (Wljeratne, J.)57
The 4th and 5th accused were each sentenced to 3 years’ rigorous*imprisonment on the 4th count (under section 394 of the PenalCode).
The 4th, 5th, 6th and 7th accused have filed petitions of appealagainst these convictions and sentences, but the 7th accusedsubsequently withdrew his petition of appeal.
There remains for consideration the appeals of the 4th and 5thaccused against their convictions (under section 394 of the PenalCbde) on the 4th count and'the appeal of the 6th accused against hisconviction on the 1st count.
Learned counsel for the 4th, 5th and 6th accused-appellantssubmitted that the learned trial Judge could not find the 4th and 5thaccused guilty of the lesser offence under section 394 of the PenalCode by acting under sections 177 and 178 of the CriminalProcedure Code (sections 181 and 182 of the Old Code) and that hecould do so only if a charge had been framed against the accusedunder section 394 of the Penal Code. He relied on the decisions inthe cases of The King vs. Piyasena (1) and The Queen vs.Vhllaswamy (2).
In these, two cases it was held that the application of sections 177and 178 of the Criminal Procedure Code (which correspond tosections/181 and 182. of the old Code) is limited to those caseswhere there is a doubt from the nature of the facts as to which of twoor more offences the accused has committed. The different offencescontemplated are cognate offences. The doubt must not be in regardto the facts but in regard to the offence disclosed by^the undoubtedfacts. In Vellaswamy's case it was held that a person indicted on amurder charge cannot be acquitted Of murder and at the same time,without an amendment of the indictment, he cannot be convictedunder section 198 of the Penal Code of causing disappearance ofevidence. In that case Basnayake, C.J., went on to say:
"These two sections cannot properly be applied in a case inwhich one offence alone is indicated by the facts and in thecourse of the trial the offence falls short of that necessary toestablish that offence but disclose another offence. Outside thoseoffences given in the illustrations cases in which these sectionsmay be applied seldom occur.’’
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.Therefore, learned counsel contended that it was not permissible inlaw to find the 4th and 5th accused guilty of the lesser offencewithout an amendment of the indictment.
In Sohoni's Commentary on the Indian Code of Criminal Procedure(18th Edition – 1985 – at page 2474) dealing with sections 221(1) and(2) which correspond substantially to sections 176 and 177 of ourCriminal Procedure Code, it is stated:
‘‘The doubt contemplated by this section must arise at the timeof the charge. The section contemplates cases where at yiecommencement of the trial there is uncertainty whether the factswhich the prosecution expects or undertakes to prove, if proved,will constitute offence A or B or C and the uncertainty is resolvedat the end of the trial, showing which particular offence out ofthese was actually committed. The uncertainty must necessarilybe an uncertainty arising out of a postulated set of facts, not anuncertainty regarding the facts which the prosecution may be
ultimately able to establish At the time the charges are made
it cannot be known what view the court will take of the evidence.In certain cases it may be doubtful as to what view will be takenby the court of the offence, although it may be considered that*aview will be taken which will amount to a view that some offencehas been proved.’’•
Robbery under section 380 of the Pena! Code is an aggravatedform of theft as defined in section 366 of the Penal Code. The 4thand 5th accused being charged with robbery under section 380 couldwell have been found guilty of the lesser offence of theft. This couldhave been done under the provisions of either section 177 or 178 ofthe Criminal Procedure Code (see the decision of The King vs.Podisinno (3). Undoubtedly, theft and retaining stolen property arecognate offences.
In this case there were no eye-witnesses to prove that the 4th and5th accused participated in the robbery, but they were found inpossession of stolen property (consisting of some of the robbedcurrency notes) after the robbery. In addition there were certain otheritems of evidence connecting the 4th and 5th accused to this robbery.Therefore there was a doubt on the facts which could be proved, asto whether the 4th and 5th accused could be found guilty of robbery(under section 380) or of retaining stolen property (under section
Tillakaratne v. The Attorney-General (Wijeratne, J.)
394). Thereupon section 177 of the Criminal Procedure Codebecomes applicable. Therefore it was permissible for the court tohave found the 4th and 5th accused guilty of the lesser offence undersection 394, on the 4th count.•
Briefly the evidence against the 4th accused is that in consequence,of information furnished by him to a Police officer (under section 27of the Evidence Ordinance), on 18.9.76 a sum of Rs. 29,900/- incurrency notes was recovered. Some of these currency notes bore,the initials of witness Raman Nicholas (one of the contractors of theKollupitiya Arrack Tavern), who identified them. These currency noteswere found in a milk food (Lakspray) tin recovered from the house ofhis mother-in-law. The 4th accused’s finger prints were found on this .tin* for which no satisfactory explanation was offered.
A sum of Rs. 23,500/- was recovered by the Police in consequenceof information provided by the 5th accused (under section 27 of theEvidence Ordinance), and this was recovered from the .house of the5th accused’s father. Some of the notes carried the initials of the saidRaman Nicholas, who identified them. In addition, there is evidencethat the 5th accused had borrowed a black Peugot 403 car on 3.9.76and returned the same on 6.9.76. It is in evidence that the personsresponsible for the robbery that took place on 6.9.76 came in a blackPeugot 403 car.
There is the evidence of Yasawardene and Karunawathie (husbandand wife) that the 5th accused came with some friends to their houseon the evening of 6.9.76 and after they left they found an emptysuitcase not belonging to their household. Yasawardene had laterburnt this suitcase. They also testified that on this occasion a travelbag (a B.O.A.C. bag) which was in their house was missing. Thistravel bag was later recovered by the Police in the possession of the1st accused.
It has been held in the case of Sumanasena vs. The King (4) andseveral other Indian cases that where the only evidence against theaccused is that he had pointed out stolen property, the presumptionof guilt in terms of section 114(a) of the Evidence Ordinance does notarise.
It has been held that there must be some additional evidence tosuggest that the accused himself concealed the articles in the placewhere it was found and it was not sufficient for a conviction that the
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[1989) 2 Sri LFt
accused pointed out the stolen articles if it was left doubtful whetherthe accused or some other person concealed the stolen-articles orthat the accused obtained in some way the information that the stolenVroperty was in the place where it was found. Whether the fact of theaccused pointing out stolen property is or is not evidence ofpossession is a question of fact.
The mere fact that the accused knew where the stolen propertywas concealed is not sufficient. There must be some evidence tosuggest that the accused himself concealed the article in the placewhere it was found. See the Indian case of Billu vs. Emperor, (5) andthe case of Emperor vs. Photo referred to therein.
The question is whether the inference in any particular case is ttiatthere was “innocent knowledge” or whether the inference is that thestolen property was placed there by the accused himself.
In short, to find an accused guilty under section 394, it must beproved that it was stolen property and that the accused knew or hadreason to believe the same to be stolen property and that it was inhis conscious and exclusive possession. The evidence clearlyestablishes that these two sums of money were stolen property to theknowledge of the 4th and 5th accused and that these amounts werein the conscious and exclusive possession of each of them.
Therefore the charges under section 394 have been provedbeyond reasonable doubt against the 4th and 5th accused apd theirconviction is justified.
Learned counsel also submitted on behalf of the 6th accused-appellant that the learned trial Judge's findings against the 6thaccused on the facts did not amount to conspiracy under section113A of the Penal Code.
Our law relating to conspiracy has been dealt with in the case ofThe King vs. Cooray (6), and The Queen vs. Liyanage (7) which wasa Trial-at-Bar.
Gour in his Penal Law of India (10th Edition-1982 – Vol.42, page1065) states:
“It has been said that there is perhaps no crime an exactdefinition of which is more difficult to give than the offence ofconspiracy. There must be an agreement of some kind …. There
Tillakaratne v. The Attorney-General (Wlieratne, J.)
must be unity of design or purpose, a concert of will and
endeavour comprising what has been agreedIt is sufficient to
constitute the offence so far as the combination is concerned ifthere is a meeting of the minds, a mutual implied understanding dftacit agreement, with all the parties working together with a singledesign for the accomplishment of the common purpose.”
Previous acquaintance between conspirators is unnecessary. It is
not the law that every conspirator must be present at every stage of
the conspiracy. Conspiracy involves concert of design and not
participation in every detail. It is not essential that the conspiracy
should have been accomplished. Agreement is the essence of the
A conspiracy is hatched in secrecy and it is almost impossible toadduce direct evidence. Conspiracy is a matter of inference deducedfrom certain criminal acts of the parties accused, done in pursuanceof an apparent criminal purpose between them. The offence can beproved largely from the inferences drawn from acts or. illegalomissions committed by the conspirators in pursuance of a commondesign.
Conspiracy can ordinarily be proved only by a mere inference fromthe subsequent conduct of the parties in committing some overt actswhich tend 'SO obviously towards the alleged unlawful acts as tosuggest that they must have arisen from an agreement to bring itabout..
In the Indian case of Bishan Lai vs. State of Maharashtra (8), itwas held that section 10 of the Evidence Act (which is the same assection 10 of our Evidence Ordinance) introduces the principle ofagency and if the conditions laid down therein are prima faciesatisfied, the acts done by one are admissible against the otherconspirators. However, the conspiracy must be on foot for section 10to be applicable.
Each accused’s case must be considered separately to decide ifhe is a conspirator. After the evidence affecting him is considered,each accused must be proved to have been a party to theconspiracy. The inference must be irresistible that each accused wassuch a party.
The learned trial Judge has carefully summarised the evidence
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against the 6th accused on the conspiracy charge in the 1st count.They are as follows:*
The 6th accused’s association with the 1st accused on5.9.1976, which is the day prior to the robbery.
On 6.9.1976, soon after the robbery, being found inpossession of Rs. 13,000/- in currency notes, most of whichwas identified by Raman Nicholas by his initials as from thesubject-matter of the robbery. His inability to account for thepossession of this money.
Being found in the company of the 1st accused (who wasabsconding) at the Gampaha Railway Station on 13.9.1976.
Evidence of motive against the 6th accused, in that he had toreturn on this day a large sum of money which he hadborrowed from his mother-in-law. She required it urgently forher son’s wedding.
In my view this evidence along with other minor items of evidenceis sufficient to find the 6th accused guilty on the 1st count.
Therefore, for the reasons given above, I would dismiss theappeals of the 4th, 5th and 6th accused and affirm the convictionsand the sentences passed on them.
RAMANATHAN, J. — I agree.
W. N. D. PERERA, J. – I agree.
Sixth accused found guilty on count 1 only.Appeals of 4th, 5th and 6th accused dismissed.