Gunawardene Et Al. V. The King

[COURT OF CRIMINAL APPEAL]

1950 Present : Nagalingam J. (President), Gratiaen J. and Pulle J.

GUNAWARDENE et al., Appellants, and THE KING-, Respondent

Appeals 39-40, 42-44 of 1950 with Applications 80-81, 83, 85-86

S. C. 34-M. C. Ratnapura, 16,250

Court of Criminal Appeal-Accomplice-Misdirection as to meaning of term-- Conviction, vitiated-Divided verdict-Applicability of proviso to section 5 (1) of Court of Criminal Appeal Ordinance, No. 23 of 1938.

 A guilty associate in a conspiracy to cause the death of someone cannot divest himself of the character of an accomplice merely because he refrained, thereafter from participating in the murder which had been planned.

Held, further (by majority of Court), that the proviso to section 5 (1) of the Court of Criminal Appeal Ordinance cannot properly be applied in the case of a divided verdict, unless the evidence against the accused is of such a character as to justify the reproach that the judgment of the dissenting jurors was manifestly perverse.

APPEALS, with applications for leave to appeal, against certain convictions in a trial before a Judge and Jury.

M. M. Kumarakulasingham, with C. M. Dharmakirti-Pieris, for the 1st and 2nd appellants.

M. M. Kumarakulasingham, with A. B. Perera and T. B. Dissanayake, for the 3rd appellant.

M. M. Kumarakulasingham, with T. B. Dissanayake, for the 4th appellant.

M. M. Kumarakulasingham, with Austin Jayasuriya, for the 5th appellant.

H. A. Wijemanne, Crown Counsel, with A. C. M. Ameer, Crown Counsel, for the Attorney-General.

cur. adv. vult.

November 13, 1950. GRATIAEN J.-

There were six accused in this case. They were charged (1) with the offence of conspiracy to cause the death of two persons named Don Chandradasa Samarasinghe Appuhamy and Pitigala Arachchillage Simon Singho, in pursuance of which conspiracy both persons were in fact murdered ; (2) with the murder of the said Don Chandradasa Samarasinghe Appuhamy ; (3) with the murder of the said Pitigala Arachchillage Simon Singho; (4) alternatively to the second count, with abetment of the murder of Don Chandradasa Samarasinghe Appuhamy ; (5) alternatively to the third count, with abetment of the murder

of Pitigala Arachchillage Simon Singho. The alternative charges of abetment were withdrawn in the course of the trial. On the outstanding) charges the 6th accused was unanimously acquitted by the jury of the charge of conspiracy, and the other five accused (who are the appellants) were found guilty of conspiracy by a divided verdict of 5 to 2. . No verdict on either of the charges of murder has been recorded, but it is not necessary for the purposes of the present appeals, which relate solely to the convictions on the charge of conspiracy, to decide what consequences result from the omission on the part of the jury to comply with the imperative requirements of section 248 (1) of the Criminal Procedure Code.

One of the principal witnesses called for the prosecution was the witness Maddumage Dias, and there is no doubt that his evidence, if acted upon by a jury properly directed, points strongly to the guilt of the appellants. Certain other witnesses were called to support Dias version of the events which took place during the crucial period preceding September 23, 1949, on which date Don Chandradasa Samarasinghe Appuhamy and Pitigala Arachchillage Simon Singho were killed- The Jury were not, however, invited by the learned Judge to consider whether, apart from the evidence of Dias, the guilt of the accused was established by the evidence of those other witnesses alone.

It is necessary to refer only to the main ground of appeal which was urged before us. Admittedly, the circumstances in which Dias claimed to be able to testify to certain incidents alleged to have taken place during the crucial period September 19 to 23, 1949, were such as prominently to raise the question whether his evidence

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