052-NLR-NLR-V-48-WIJEYERATNE-Appellant-and-MENON-S.-I.-Police-Respondent.pdf
CANEKERATNE J.—Wijeyeratne v. Merton.
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1947Present: Canekeratne J.
WIJEYERATNE, Appellant, and MENON (S. I. Police),
Respondent.
322—M. C. Balapitiya, 55£88.
Abetment—Accused charged and convicted as principal offender—Proof, infact, of abetment—Power of Court to alter verdict to one of abetment—Penal Code, ss. 102, 107, 400—Criminal Procedure Code, ss. 182,347 (b) (ii.)
— The appellant committed the offence of abetment of cheating butwas in fact charged and convicted under section 400 read with sec-tion 107 of the Penal Code.
Held, that the Court could, by virtue of the provisions of section 182and 347 (b) (ii) of the Criminal Procedure Code, alter the verdict bysubstituting for section 107 of the Penal Code section 102, if co prejudicewas caused.
A
PPEAL against a conviction from the Magistrate’s Court, Bala-pitiya.
Coluin R. de Silva (with him K. C. de Silua), for the second accused,appellant.
J.G. T. Weeraratne, C.C., for the Attorney-General.
Cur. adv. vult.
March 7, 1947. Canekeratne J.—
A forest range officer stopped a cart of timber passing his quarters,about 3 ajvl on March 6, 1945 ; first accused who was following the cartproduced a permit P 1 and informed him that he was transporting thetimber belonging to the second accused whose employee he was. Pro-ceedings commenced with a report, under section 148 (b) of the CriminalProcedure Code, Ch. 16, sent to the Court by one calling himself a Sub-Inspector of Police, Criminal Investigation Department, who had onlyan imperfect acquaintance with the sections of the Penal Code ; it was
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stated therein that H. Charles of Talawe at Kurundugaha Hetekma onMarch 6, 1945, attempted to deceive the forest range officer by tenderinga permit, No. 11/0330, and thereby committed an offence punishableunder sections 400 and 490 of the Ceylon Penal Code. The languageused in describing what the second accused, P. A. Wijeratne, did is suchas is appropriate to a charge of abetment but che report states that hethereby committed an offence punishable under sections 400 and 107 ofthe Ceylon Penal Code. The charge that was framed in Court followedthe language used in this report. The prosecutor was well aware at thetime of the sending of the report that the second accused was not presentat the scene of the offence at that hour of the morning ; he appears to havetravelled by an omnibus and to have come near the place sometime later.
A permit for transporting timber is executed in three parts. One ofthe parts of the permit issued in this case is P 1 (No. 11/0330) ; it wasgranted by the village headman to the witness Sirineris on September 1,1943, for the removal of the timber felled on a land called Kudagal-kande ; another of the parts is P 3 which was produced from the custodyof the Government Agent of the province. A few days after September1, 1943, the appellant informed Sirineris-that he had lost the permit P 1which he had received from the headman at the request of Sirineris.The timber that was being transported by the first accused was obtainedfrom a land called Beralya Mookalana ; the evidence of Handy, who hadbeen employed by the appellant to saw this timber, shows that the stampon the timber in question was put by the appellant and himself on March5, 1945. The view taken by the Magistrate was that P 1 remained withthe appellant and that on March 5, 1945, he had handed it to the firstaccused and requested him to go with the cart. The date that originallyappeared on P 1 had been altered and there were certain otherinterpolations on the document.
The Magistrate found both accused guilty ; he warned and dischargedthe first accused as he was, in his view, a tool in the hands of the secondaccused; the second accused was sentenced to one month’s rigorousimprisonment. This is an appeal by the second accused and it is con-tended that there was no charge against him and that his conviction isillegal.
To bring a person within section 107 of the Penal Code the abetmentmust be complete apart from the mere presence of the abettor. It isnecessary first to make out the circumstances which constitute abetment,so that, if absent, he would have been liable to be punished as an abettorand then to show that he was present when the offence was committed(Ratanlal, 16th Edition, Law of Crimes, page 250).
One of the principal objects of the charge is to inform the accusedprecisely what acts punishable by law he is alleged to have committed.It is alleged in the charge that the appellant abetted the offence ofattempting to cheat the forest range officer on March 6, 1945, at Kurundu-gaha Hetekma, and that there was actual commission of this offence.Since the allegation was that he had committed the offence of cheating(sections 400 and 107 of Ch. 15) it might be urged that the appellantwas quite certain that he could not be liable as a principal as he was notpresent at the scene of the crime. But it was clear to him that the
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prosecution must prove first that there was a prior abetment of theoffence by him ; moreover the evidence adduced by the prosecution insupport of the charge gave notice to the accused of the facts whichconstituted abetment. It would thus be difficult to contend that theappellant did not know with certainty the exact nature substantially ofthe charge preferred against him.
Crown Counsel contends that the curative provisions of section 425 ofCh. 16 should be applied in this case seeing that an error has crept intothe charge. Particulars of the charge were before the appellant althoughsection 107, which had no application to the facts, was referred to therein.
I do not think that I ought to accede to this request. Reference wasmade at the argument to sections 183 ( a) and 182 of Ch. 16.
Sections 181, 182, 183 and 183 (a) provide for conviction without acharge in certain cases ; section 183 deals with a case where the sametransaction involves a major and a minor offence and it provides thatwhere the accused was charged with the former only he may be convictedof the latter. In section 183 (a) it is provided that when a person ischarged with an offence he may be convicted of an attempt to commitsuch offence, although he may not be separately charged. Section 181,on the other hand, deals with a case which places a doubt as to the offencethat has been committed. There must not be any doubt as to the singleact or series of acts which constitute that transaction ; that is to say,there must not be any doubt as to the facts. There is a doubt as to theinference which would be drawn by the Court from these facts thus makingit “ doubtful which of several offences the facts which can be provedwill constitute”. Section 182 must be read with section 181. Thusif after evidence has been given it is found that the accused committed adifferent offence with which he might have been charged under section181, then section 182 can be availed of. A man who is in possession ofstolen goods soon after the theft may appear to be the thief or to havereceived the goods knowing them to be stolen ; he may be convicted ofreceiving stolen goods though charged with theft only (see illustration insection 182). A doubt as to a subsidiary circumstance determines whatlaw is applicable. A man may be convicted of an offence although therehas been no charge in respect of it if the evidence is such as to establisha charge that might have been made. The case of Begu v. Emperor'undoubtedly recognizes the wide power of a Court trying a criminalcase to convict of a crime not the subject of the charge provided (a) thatthe crime which the accused is found guilty is established by the evidenceand (b) that having regard to the information available to the prosecutingauthorities it was doubtful which of one or more offences would be estab-lished by the evidence at the trial (Thakur Singh v. Emperor1.)
The prosecutor assumed that on the given facts a particular offencewas committed by the appellant; he mistakenly thought that section107 was applicable to the circumstances of this case. The circumstancesalleged in the present case are (1) that the appellant had induced oneCharles to take P 1 and go with the cart to Ambalangoda, to tender thepermit and to get the timber transported : (2) that Charles left with acart on the night of the March 5/6, taking the permit:(3) that he
1 Cal. 192S A.I.R. Privy Council 130.’ (1943) A.I.R. Privy Council 192.
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tendered P 1 as a genuine permit and attempted to deceive the forestrange officer: and (4) that the appellant was not present at this timealthough he had told Charles that he was following in an omnibus. Fromthe nature of these circumstances the question that might have presenteditself to the complainant was this—was the appellant liable as a principalby his instigation of the offence committed by his servant, or was he'liable as an abettor ? I have come to the conclusion that section 182 ofCh. 16 should be applied to this case.
Sometimes it would be possible to convict an accused person of abetmentwhen only charged with the principal offence. More often it is notpossible to do so, for ordinarily the facts required tio prove an abetmentwould not be included in the facts constituting the principal offence. InKashi Nath Naek v. Queen Empress' a conviction for forgery of a deed,an offence under sections 467 and 114 of the Indian Penal Code, waschanged to one of abetment of the offence of forgery, an offence undersections 467/109. In King v. Baron Silva2 a conviction for conspiracy,sections 113 (b) and 373 of the Penal Code, was altered to one of abetment,of extortion under sections 373 and 102. In P. Kumar Mazumdar v.Emperor * the Court had to consider whether an accused person who wascharged under section 302 and acquitted should be convicted undersections 302 and 34. The Court made the following observations: —“The charge which should have been proved against the accused as analternative to the main charge …. was a charge under section302 read with section 114 of the Penal Code ”. Order was made thatthe case should be retired on charges framed under section 302 read withsection 114. In Debeprasad Kalowar v. Emperor * the conviction of anaccused for abetment of theft under section 379 read with section 114(Indian Penal Code) was held to be legal when he was charged only withthe substantive offence under section 379 as no prejudice was caused.The views expressed in Emperor v. Mahabir Prasad ‘ and PadmanabhaPanjikannaya v. Emperor ° seem to tend in the contrary direction. Thedecision in the former case recognizes that section 237 (corresponding tosection 182 of Ch. 16) is sometimes made use of to find a man guilty ofabetment of the offence on a charge of the offence itself. The decision inthe. latter case has to some extent been modified by the view advanced in23 Madras Law Journal, page 722, where the Judge states : “I do notthink that 33 Madras 264 intended to lay down an universal rule that inno case was a conviction of abetment possible where the charge was onlyof the principal offence ”.
In the present case the same facts that were given in evidence at thetrial support the charge of abetment, nor would the addition of a chargeunder section 102 have adduced any new fact which the accused had beengiven no opportunity to meet.
The appellant heard the evidence given by Handy and Sirineris ; itcannot; be said that he had no notice of the facts alleged against him or
3 (1897) I.L.R. 25 Cal. 207.1 (1932) I.L.R. 59 Cal. 1192.
= (1926) 4 Ceylon Times Reports 3.* (1926) I.L.R. 49 Allahabad 120.
3 (1922) I.L.R. 50 Cal. 41—see also■ (1909) I.L.R. 33 Madras 264.
95 Cal. pages 1193 and 1194.
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that he was misled by the form of the charge. The appellent wasdefended by counsel and gave his own account of the transaction but theMagistrate preferred to accept the evidence of Handy and Sirineris.
There remains the question whether it is proper to make an amendmentin this case. If there is any chance of injustice being done by reason ofthe amendment of the charge a Court may order a new trial on the chargeas amended : but it is not always necessary to do so, more particularlywhere it does not appear that any fresh case could be made or freshevidence given on behalf of the person convicted (see Thakur Singh v.Emperor (supra)—page 195). It is difficult to see that any furtherevidence would assist the’appellant or that without stultifying himself hecan set up any further defence. In exercise of the powers under section347 (b) (ii) of Ch. 16 I alter the verdict by substituting for section 107 ofthe Penal Code section 102 ; the conviction will be for an offence undersection 400 read with section 102 ; with that modification the convictionand the sentence will be affirmed.
Conviction altered.