1947 Present : Canekeratne J.

WIJEYERATNE, Appellant, and MENON (S. I. Police)
Respondent.

1,322 - M. C. Balapitiya, 55,988

Abetment- Accused charged and convicted as principal offender- Proof, in fact, of abetment - Power of court to alter verdict to one of abetment -penal code,ss.182,347(b) (ii).

The appellant committed the offence of abetment of cheating but was in fact charged and convicted under section 400 read with section 107 of the penal code.

Held that the court could by virtue of the provisions of section 182 and 347 (b) (ii) of the criminal Procedure code ,alter the verdict by substituting fro section 107 of the penal code section 102, if no prejudice was caused.

APPEAL against a conviction from the Magistrate's court , Balapitiya.

Colvin R. de silva (with him K.C. . de silva), for the second accused, appellant.

J. G. T. Weeraratne, C.C., for the Attorney - General .

March 7,1947. CANEKERATNE J.

A forest range officer stopped a cart of timber passing his quarters about 3 A.M. on March 6,1945; first accused who was following the cart produced a permit P 1 and informed him that he was transporting the timber belonging to the second accused whose employee he was. Proceedings commenced with a report under section 148 (b) of the criminal procedure code ,ch. 16 ,sent to the court by one calling himself a sub-inspector of police, criminal investigation Department , who had only an imperfect acquaintance with the section of the penal code ; it was

stated therein that H. Charles of Talawe at Kurundugaha Hetekma on March 6,1945 attempted to deceive the forest range officer by rendering a permit ,No.11/0330 , and there by committed an offence punishable under sections 400 and 490 of the Ceylon Penal code. The language used in describing what the second accused ,P.A. Wijeratne, did is such as is appropriate to a charge of abetment but the reports states that he thereby committed to an offence punishable under sections 400 and 107 of the Ceylon code.  The charge that was framed in court followed the language used in this report. The prosecutor was well aware at the time of the sending of the report that the second accused was not present at the scene of the offence at that hour of morning; he appears to have traveled by an omnibus and to have come near the place sometime later.

A permit for transporting timber is executed in three parts. One of the parts of the permit issued in this case is P 1 (No . 11 /0330) ; It was granted by the village headman to the witness Sirineris on September 1 , 1943, for the removal of the timber felled on a land called Kudagalkande; another of the parts is P 3 which was produced from the custody of the Government agent of the province. A few days after September 1,1943 ,the appellant informed Sirineris that he had lost the permit P1 which he had received from the headman at the request of Sirineris. The timber that was being transported by the first accused was obtained from a land called Beralya Mookalana ; the evidence of handy , who had been employed by the appellant to saw this timber ,shows that the stamp on the timber in question was put by the appellant and himself on March 5,1945. The view taken by the Magistrate was that P1 remained with the appellant ant that on March 5, 1945, he had handed it to the first accused and requested him to go with the cart . The date that originally appeared on P 1 had been altered and there were certain other interpolations on the document.

The Magistrate found both accused guilty; he warned and discharged the first accused as he was, in his view, a tool in the hands of the second accused; the second accused was sentenced to one month's rigorous imprisonment. This is an appeal by the second accused and it is contended that there was no charge against him and that his conviction is illegal.

To bring a person within section 107 of the Penal Code the abetment must be compl