[CROWN CASE RESERVED.]

1920 Present: Bertram C.J., De Sampayo J. and Schneider A.J.

THE KING v. THAMBIPILLAI.

P. C. Jaffna, 9,101.

No. 3, First Northern Circuit, 1920.

Murder by some of several persons-Accused acquitted as jury could not tell which of them committed the murder-Conviction for causing evidence to disappear-Penal Code, ss. 198 and 296.

The accused, who were all found carrying off a dead body, were charged with murder and under section 198 of the Penal Code, with having caused evidence of the commission of the offence to disappear. The jury was of opinion that one or more persons among the accused committed the murder, but they could not say which of them did it. The jury acquitted the accused on the charge of murder, and convicted them on the second count.

Held (De Sampayo dissentiente), that the conviction on the second count was not illegal.

BERTRAM C.J.-The evidence being the same in both cases, I see nothing unreasonable in the actual crime and the subsidiary offence being charged in the alternative, so that if the jury are not satisfied as to the former, they may at least convict the offender of the latter.

THIS case was reserved for consideration by a Bench of three Judges by the Chief Justice.

The facts are set out in the following minute of the Chief Justice:-

1. In this case six persons were indicted on two counts: The first, charging them with murder; the second, with causing evidence to disappear under section 198 of the Ceylon Penal Code.

2. Four of the accused were related, the second, third, and fourth accused being uncles of the first accused. The fifth accused was of an inferior caste, a dhoby, and was said to wash for the first four accused, who were dyers. The sixth accused was also of an inferior caste, and was not shown to be in any way connected with the others.

3. The body of one Sinnatamby Kanagasabai was found hanging on a well sweep in the precincts of a temple under such circumstances that the jury were satisfied that he had been first murdered by strangulation, and that afterwards his body was hung up in such a way as to produce the appearance of suicide.

4. The principal witness was one Manikkan Sathasivam, who swore that on the night of the murder he saw all six accused carrying the body of the deceased towards a well sweep. Another witness swore that on the same night at a junction of a road and a path leading to the deceased's house he saw the first accused holding a rope, the sixth accused standing near him, and four or live others bringing a body along the lane. A third witness swore that he passed the deceased's house that night, heard a cry of distress, and saw at the gateway the second accused, who explained to him that the noise he heard was that of somebody snoring.

5. After the case before the Magistrate was complete, a new witness appeared in one Sittampalam Ambalavanar, a remand prisoner, who posed as an "ascetic, and was awaiting trial on a charge of abduction. He deposed to a series of conversations in the remand prison with the first, second, and third accused. According to this witness, the first prisoner confessed that he had assisted in the concealment of the body, but explained that neither he nor the fourth accused had any part in the actual crime; that they had arranged to seize and rob the deceased, but on arriving at the spot found that their two partners in the design-the second and third accused-had anticipated them, had gone further than was intended, and had actually killed their victim. The conversation imputed to the second and third accused consisted of mutual recriminations, each imputing the chief responsibility of the crime to the other. The effect of this evidence was to exonerate altogether the fifth and sixth accused, and the Crown, accepting this witness's evidence, did not press the charge against them.

6. The witness was of such a character, and his evidence