143-NLR-NLR-V-48-TOUSSAINT-Inspector-of-Police-Appellant-and-DHARMADASA-Respondent.pdf
445
Toussaint v. Dharmadasa.
1947Present: Dias J.
TOUSSAINT (Inspector of Police), Appellant, and DHARMADASA,
Respondent.
S. C. 515—M. C. Galle, 4,580.
Abetment—Conspiracy to impersonate—Circumstantial evidence—How farsufficient—Penal Code, ss. 102, 202.
A was arrested on a criminal charge. He was liberated on executinga police bail bond which directed him to appear in the Magistrate’sCourt on a certain day. A signed the bail bond in a false name. Onthe trial date, A deliberately kept away from Court while his brother B,who resembled A, appeared before the Magistrate and pretending to beA, pleaded guilty to the charge and was convicted. Thereafter, B wascharged under section 202 of the Penal Code with falsely personating A,and, under such assumed character, having pleaded guilty to the chargeagainst A, while A was charged under section 102 of the Penal Codewith abetting B in the commission of the offence under section 202.
Held (1) that A was guilty of abetting B. The evidence proved thatA and B had entered into a conspiracy that B should impersonate Abefore the Magistrate and commit the offence under section 202. Thefact that A unlawfully omitted to appear before the Magistrate on thetrial date, in the absence of explanation, also indicated that he hadintentionally aided B by illegally omitting to appear in Court.
(2) Where the evidence is circumstantial, the prosecution has tosatisfy the Court that the evidence proving abetment is only consistentwith the guilt of the alleged abettor, and is inconsistent with anyreasonable hypothesis of his innocence. It would not be sufficient forthe prosecution to establish merely a strong case of suspicion againstthe alleged abettor.
A PPEAL against a,n acquittal from the Magistrate’s Court, Galle.
3. C. F. Jayaratne, C.C., for the complainant, appellant.
M.L. S. Jayasekere, for the accused, respondent.
446BIAS J.—Toussaint v. Dharmadasa.
August 25, 1947. Dias J.—
The 2nd accused, whose name is Suduwage Edwin Dharmadasa, had alicence to trade in dry-fish. The 1st accused, is his brother. There isevidence that the two brothers resemble each other.
On June 18, 1946, the 2nd accused was detected selling Bombay onionsin excess of the controlled price. The police, therefore, arrested himfor this offence, and took him to the police station where he was bailedout. The 2nd accused, however, signed the bail bond not as SuduwageEdwin Dharmadasa, but as K. H. Dharmadasa which is not his name.This fact passed undetected at the time, because the police did not knowthe name of the 2nd accused.
The authorities then initiated proceedings in the Magistrate’s Courtagainst the 2nd accused, naming him as K. H. Dharmadasa. The casewas. fixed for trial on June 25, 1946. The 2nd accused when he wasenlarged on bail had been told to attend the Magistrate’s Court on thatday.
The Magistrate has found as a fact, and there is ample evidence tosupport his findings, that on June 25, 1946, the 1st accused SuduwagePeter Dharmadasa, impersonating the person charged in the case, namely,the 2nd accused, appeared and pleaded guilty and was convicted andfined.
The prosecuting police officers who detected the fraud, immediatelybrought this fact to the notice of Proctor Jayawickreme who was con-ducting the prosecution. That gentleman, however, told the policeofficers that nothing could be done.; It apparently did not strike theproctor that he should at once have brought the matter to the noticeof the Magistrate while the 1st accused was still in the Court premises.
The authorities then charged both accused in the present proceedings.The 1st accused was charged under section 202 of the Penal Code withfalsely personating the 2nd accused in the profiteering case, and undersuch assumed character pleaded guilty to that charge. The 2nd accusedwas charged under section 102 of the Penal Code with abetting the1st accused to commit the offence, which offence was committed inconsequence of such abetment.
Both accused gave evidence. The 1st accused denied that he cameforward and pleaded guilty to the profiteering charge. He said he hadcome to Court in connection with a case against his wife and that he knowsnothing about this charge. The prosecution witnesses definitely identi-fied the 1st accused as the man who came forward and pleaded guilty.
The 2nd accused denied that he had sold the Bombay onions, althoughhe admitted that the shop is his. His story is that he has a brother-in-lawnamed K. H. Dharmadasa, and that it was this man who was arrestedby the authorities and bailed out. The 2nd accused denied that he signedany bail bond. His story is that K. H. Dharmadasa duly appeared inCourt on June 25, 1946, and pleaded guilty. K. H. Dharmadasa is saidto be a man of 25 with a knot of hair, whereas the 2nd accused is a manof 60. K. H. Dharmadasa did not appear to give evidence in the case.The 2nd accused did not say what has happened to his brother-in-law
K.H. Dharmadasa or where he was to be found.
DIAS J.—Toussaint v. Dharmadasa.
447
The Magistrate accepted the evidence given by the prosecution anddisbelieved the testimony of the two accused. He convicted the 1staccused on evidence which I consider overwhelming. The 1st accused hasnot appealed against that conviction.
The Magistrate, however, acquitted the 2nd accused of the charge ofabetment. The Attorney-General appeals against that order.
A person is said “ to abet the doing of anything ” when he : — (a) eitherinstigates another person to do that thing ; or (b) engages in a conspiracyfor the doing of that thing ; or (c) intentionally aids by any act or illegalommission the doing of that thing—section 100 of the Penal Code.
A person is said “ to abet an offence ” when he abets (a) either thecommission of an offence ; or (b) the commission of an act which would bean offence if committed by a person capable by law of committing an,offence with the same intention or knowledge as that of the abettor—Section 101 of the Penal Code.
The word “ offence ” denotes a thing punishable in Ceylon under thePenal Code, or under any law other than the Penal Code—Section 38 (2)of the Penal Code.
A conspiracy for “ the doing of anything ” is when two or morepersons agree to do that thing, or cause or procure that thing to be done—Section 100, Explanation 2 of the Penal Code. An act or offence is saidto be committed “ in consequence of abetment ” when it is committedin pursuance of the conspiracy which constitutes the abetment—Section 102, Explanation.
Whoever either prior to or at the time of the commission of an actdoes anything in order to facilitate the commission of that act, andthereby facilitates the commission thereof, is said “ to aid the doing ofthat act ”—Section 100, Explanation 3 of the Penal Code.
There being no direct evidence proving the alleged abetment by the2nd accused, the evidence against him necessarily was of a circumstantialcharacter. Therefore, the prosecution had to satisfy the Court that theevidence proving abetment was only consistent with his guilt, and wasinconsistent with any reasonable hypothesis of his innocence. It wouldnot be sufficient for the prosecution to establish merely a strong case ofsuspicion against the 2nd accused.
What are the circumstances ? On June 18, 1946, the 2nd accused wasarrested on a charge of profiteering and taken to the police station.He then signed a bail bond giving a false name. In the absence ofan explanation, the only inference to be drawn from that fact is thateven at that early stage the mind of the 2nd accused was working in acertain way. The second accused was enlarged on bail arid told toattend the Magistrate’s Court on June 25, 1946. The two accusedare brothers and they resemble each other. On June 25, 1946, the 2ndaccused deliberately kept away from Court, while the 1st accused appeared
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DIAS J.—Toussaint v. Dharmadasa.
and in the name of K. H. Dharmadasa pleaded guilty to the profiteeringcharge. This has been found as a fact by the Magistrate. In the absenceof an explanation the inference is irresistible that the two brothers hadagreed together or conspired that the 2nd accused should keep awayfrom the Court, and that the 1st accused should impersonate the 2ndaccused giving the false name which the 2nd accused had already giventhe police, and plead guilty—thereby avoiding the indignity which wouldattach to the 2nd accused by having to appear as an accused in a pro-fiteering case and plead guilty in public. In the absence of explanation,the circumstances lead to the inference that the two accused had engagedin a conspiracy to commit the offence defined by section 202 of the PenalCode. Furthermore, the 2nd accused by unlawfully omitting to attendCourt, as he was bound by his bail bond to do, intentionally aided the 1staccused in committing the offence under section 202. On the facts ofthis case, the circumstances taken as a whole are only consistent with,the guilt of the 2nd accused, and are quite inconsistent with any reason-able hypothesis of his innocence.
The findings of the Magistrate support this view. He holds as a fact thedefences of both the accused are false. He finds that it was the 2ndaccused who was arrested on the profiteering charge, that the 2ndaccused signed the bail bond in a false name, that the 1st accusedappeared in Court and pleaded guilty pretending that he was the 2ndaccused. The Magistrate finds that K. H. Dharmadasa is a mythicalperson and that the 1st accused' “ is obviously a tool in the hands of the2nd accused having allowed the latter to exploit their similarity in.
. physical appearance to advantage ”.
Nevertheless, in spite of these findings of fact, the Magistrate acquittedthe 2nd accused holding that “ the evidence against him is circumstantial;but the circumstances which point to his guilt, however strong, do nottake the case beyond suspicion. There is no evidence of anything whichconstitutes abetment that may be imputed to the 2nd accused". Idisagree. The evidence when fairly considered in the light of whatconstitutes the offence of abetment, proves beyond all reasonable doubtthat the 2nd accused engaged in a conspiracy with his brother to committhe offence under section 202, and intentionally aided the 1st accused to-commit the offence by unlawfully keeping away from Court on the dayin question. The offence committed by the 1st accused was commiv.edin consequence of this abetment.
A person convicted of the offence of abetment under section 102 isliable to be awarded' the punishment prescribed by law for the principaloffender. I set aside the acquittal of the 2nd accused and convicthim under sections 202/102 of the Penal Code. I sentence him toundergo three months’ rigorous imprisonment.
Accused convicte-i-