020-NLR-NLR-V-07-KING-v.-HENDRIC-SINHO.pdf
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KING «. HENDRIC SINHO.
Murder—Acquittal of prisoner on charge of murder—Prosecution for abetmentof murder—Plea of autre fois acquit—Criminal Procedure Code, s. 181and s. 8S0, sub-section (1),
Where A, having been acquitted of a charge of murder, was indictedfor abetment of murder,—
Held that, in a case coming within section 181 of the Criminal ProcedureCode, a charge of murder and a charge of abetment of murder againstthe same person may be joined, and that even without a separate chargeof abetment, the accused may be convicted of abetment' of murder onthe charge of murder.
Held also, that as at the previous trial the accused was acquitted ofmurder, and the jury did not pronounce him guilty of abetment of murder,the plea of autre fois acquit raised by the accused must prevail.
A
T its second Criminal Session of 1903 for the Western Circuitthe Supreme Court tried one Suwa, Hendric Sinho, and
Abraham for the murder of Gunaratne Terunnans^. The juryfound Suwa- guilty of murder, and brought in a verdict of acquittalas regards Hendric Sinho and Abraham.
In the following session of the Supreme Court Hendric Sinhoand Abraham, being indicted for abetting Suwa in the murder ofGunaratne Terunnanse, pleaded autre fois acquit.
Domhorst, K.C., for the accused.
Bdmandthan, S.-G., for the Crown.
The arguments of counsel appear in the following judgment ofthe learned Commissioner of Assize (Mr. T. E. Sampayo, K.C.).
Cur. adv. vult.
24th August, 1903. Mr. Commissioner Sampayo—
The charge made against the two accused in this case is that onor about the 17th November, 1902, at Hunupola in Avissawella, oneDambadeniya-achige Suwaris alias Suwa committed murder bycausing the death of one Talwalgoda Gunaratne Terunnanse, andthat the accused aided and abetted >the said Dambadeniya-achigeSuwaris alios Suwa in the commission of the *said offence A>fmurder, which was committed in consequence of the said, abetment,and that they thereby committed an offence pupishable under sec-tions 102 and 296 of the Ceylon Penal Co'de.
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To this charge the accused pleaded a previous acquittal in caseNo. 16 of the second Criminal Session* of 1,903 for the WesternCircuit, wherein, it has been proved, the said Suwaris alias Suwa
1903.
August 24.
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1903. and the present first and second accused were charged with andivgust 24. duly tried for the murder of the said Gunaratne Terunnanse, withCommis- the result that Suwaris alias Suwa was convicted of murder and^amfayo fche present accused were acquitted altogether.
Section 330, sub-section (1), of “ The Criminal Procedure Code,1898,” provides that a person who has once been tried by a court ofcompetent jurisdiction for an offence and convicted or acquittedof such offence shall not be liable to be tried again on the samefacts for any other offence for which a different charge might havebeen made under section 181, or for which he might have beenconvicted under section 182. Seottion 181 provides that, if a singleact or series of acts is of such a nature that it is doubtful whichof several offences the facts which can be proved will constitute,the accused may be charged with fill or any one or more of suchoffences, and any number of such charges may be included in oneand the same indictment; and section 182 provides that, if in thecase mentioned in the preceding section, the accused is chargedwith one offence and it appears in evidence that he committed adifferent offence, for which he might have been charged under theprovisions of section 181, he may be convicted of the offencewhich he is shown to have committed, although he was notcharged with it.
At the argument of the questions raised by the plea the learnedSolicitor-General informed me that he relied on the same facts aswere put before the jury at the previous trial, but that in thepresent case he would develop them, that is to say, as he explainedhis meaning, he would put them more prominently before thejury in reference to the specific charge of abetment. The deposi-tions transmitted to this court on the former trial and also thoseon the present charge have been put in evidence. I find that thefacts intended to be placed before the jury in proof of the presentcharge are the same as those put forward at the previous trial, theonly question being as to whether these facts would establish
the offence of murder or the offence* of abetment of murder. If
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upon these facts the accused be held to have "been “ present ” whenSuwaris alias Suwa committed the murder, they also would begqjlty <*f murden under section 107 of the Penal Code, but if theybe held to havd been “ absent ” they would be guilty of. abetment% of murder only. It is* thus a case where it was doubtful whetherthe facts which could bd proved as regards the present accusedwould constitute the offence of murder or of abetment of murder,and it is therefore a case in whicji the accused might in the formertrial have been charged under section 181 both with the offence ofmurder and with the' offence of abetment of murder) or with the
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latter offence only, and in which they might in the former trial 1903‘have been convicted under section 182 of the offence of abetment
even without a separate charge of abetment.Commis-
siooec
The Solicitor-General, however, argued that a charge of murder Savpato.and a charge of abetment of murder against the same person couldnot be joined in the same indictment, and that on an indictmentfor murder an accused could not be found guilty of abetment ofmurder, and he cited in support of his contention the case ofBeg. v. Ghand Nur (11, Bombay, H.G.B. 240). I do not think thatcase quite applies. That case decided that abetment is not a“ minor offence ” in reference to the offence abetted within themeaning of the section of the Indian Code corresponding to section180 of our Code, and that, therefore, on a charge of murder theaccused could not be convicted of abetment without an amendmentof the charge. It may be granted that abetment is not a minoroffence in that sense, but the decision does not profess to considerthe bearing on such a case as the present of the sections 286 and237 of the Indian Code corresponding to the sections 181 and 182of our Code, and probably the circumstances of that case did notallow of its being brought within these sections, and it was broughtmerely to justify the couviction in that case under the section ofthe Indian Code corresponding to section 180 of our Code. I amnot disposed to follow this decision in the present case, as I amof opinion that in a case coming within section 181 of our Code acharge of murder and a charge of abetment of murder against thesame person may be joined, and that even without a separatecharge of abetment the accused person may be convicted of abet-ment of murder on the charge of murder. I find that this view isquite in accordance with the more recent and more authoritativedecision of the Bombay High Court on the very sections of theIndian Code corresponding to sections 181 and 182 of our Code.
I refer to the case of Queen-Empress v. Appasubhana Mendre{l.L.R. 8, Bomb. 200), in which not cinly were charges of murderand of abetment, so joined, but it was held that, even without aseparate charge for abetment, a conviction for such offence wouldbe good on the charge of murder.
In my opinion section 830, sub-section (1), of the CriminalProcedure Code applies to this case, and I uphold the accused’splea of previous acquittal.