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KING v. PONNUSAMY SIVAPATHASUNDERAM
NLR44V13
[COURT OF CRIMINAL APPEAL]
1942 Present: Howard C.J., Soertsz and de Kretser JJ.
THE KING v. PONNUSAMY SIVAPATHASUNDERAM
2-M. C. Point Pedro, 653.
Conspiracy-Charge of abetting as well as of committing murder-Count not illegal
for multiplicity of charges-Suggestion by Crown Counsel in address-Character of
accused-Penal Code, s. 113A.
The material parts of the first count in the indictment in this case were as
follows : -
That one S. Ramasamy (since deceased) and you (i.e., the appellant and his
co-accused) did act together with a common purpose for, or in, committing or
abetting the offences of murder of (five persons named), and that you are
thereby guilty of the offence of conspiracy to commit or abet the said offence
of murder and in pursuance of the said conspiracy the said Ramasamy did commit
murder by causing the deaths of ... and that you have thereby committed an
offence punishable under section 113B, read with sections 296 and 102, of the
Penal Code.
The basis of the case for the Crown was the allegation of a conspiracy between
Ramasamy, the appellant, and the other accused.
The defence, as indicated by the cross-examination of the witnesses for the
Crown, was that there was no conspiracy between Ramasamy and the two accused,
but Ramasamy, acting alone at a time when he was very much under the influence
of liquor, shot at the persons named in the indictment, killed some of them and
then shot himself.
Held, that the first count in the indictment was not illegal either on the
ground of multiplicity of charges or because it alleged that the accused persons
and Ramasamy were guilty of the offences of conspiracy to commit murder as well
as the conspiracy to abet murder.
Section 113A penalises conspiracy to commit an offence as well as to abet the
commission of the offence.
The addition of the charges of murder to that of conspiracy to com ' or abet the
offence of murder was permitted by section 180 (1) of the Criminal Procedure
Code.
Held, further, that the fact of Ramasamy's death was relevant under section 9 of
the Evidence Ordinance and that the manner of his death was relevant to
establish as a fact that Ramasamy was a victim of homicide and not suicide.
Held, also, that the suggestion of Crown Counsel that the appellant might have
been the assailant of Ramasamy cannot be said to have compromised the character
of the appellant, although it would have been better if he had abstained from
making it.
APPEAL from a conviction for murder by a Judge and Jury
before the 2nd Northern
Circuit, 1942.
N. Nadarajah, K.C. (with him H. W. Thambiah), for the accused appellant.-The
proceedings in this case offend against the provisions of section 178 of the
Criminal Procedure Code. Count 1 of the indictment contains a multiplicity of
charges. It includes two distinct offences, and a count which charges both in
one count is bad-Rex. v. Molloy1[(1921) 15 Cr. App. R. 170.], Rex. v. Wilmot[(1933)
24 Cr. App. R. 63]; Rex. v. Ottoway 3[ (1933) 24 Cr. App. R. 69]. There is
no offence of conspiracy as such simpliciter. Conspiracy to commit murder and
conspiracy to abet murder are two distinct offences and cannot be included in
the same charge. You can no more charge a man as an abettor as well as a
perpetrator of the offence abetted than you can charge a man with an attempt to
commit an offence and the commission of that very offence. See The King v.
Andree et al.[(1941) 42 N. L. R. 495 at 499.] and King-Emperor v. Tirumal Reddi et al.[
I. L. R. 24 Mad. 523 at 547]. The whole indictment
is bad for misjoinder of charges.-Subramaniya Aiyar v. King-Emperor[1 L. R. 25
Mad 535.].
The verdict on count 1 is too general and does not conform to the requirements
of section 248 of the Criminal Procedure Code. When a count contains two charges
and there is a general verdict of " guilty" one does not know of what offence
the prisoner can be convicted. S
