Rodrigo, L.T.F. V. The Queen

1952 Present: Gratiaen J. and L. M. D. de Silva J.

L. T. F. RODRIGO, Appellant, and THE QUEEN, Respondent

 S. C. 23-D. C. (Criminal) Colombo, N 1,639
 

Conspiracy-Accomplishment of the offence agreed upon-Proper indictment to bring in such circumstances-Penal Code, s. 113A.

Indictment-Amendment of it by Court-Proper procedure.

Criminal Procedure Code, s. 347 (6) (ii)-Alteration of verdict on appeal-Scope of-Abetment-Different types of abetment-Penal Code, ss. 100-103.

It is undesirable to include a charge of conspiracy in an indictment which alleges the actual commission of the offence in respect of which the conspiracy was formed.

The primary responsibility for the accuracy and suitability of an indictment rests with counsel for the prosecution, and not on the court. The court may, however, decide to amend the indictment on its own responsibility, but before such a decision in made, both the prosecution and the defence should be given an opportunity of making their submissions on the point.

The power vested in the Supreme Court under section 347 (6) (ii) of the Criminal Procedure Code to alter a verdict to a conviction on an amended charge which the appellant had not specifically been called upon to meet at any stage of the trial must be used with discretion, and only if the accused was not misled by the form of the charge and there is not any chance of injustice being done. The conviction for abetment under section 103 of the Penal Code could not therefore, in the circumstances of the present case, be altered to a conviction for abetment under section 102 read with section 101, Explanation 3, without injustice to the appellant.

APPEAL from a judgment of the District Court, Colombo.

H. V. Perera, Q. C., with E. R. S. R. Coomaraswamy, for the 2nd accused appellant.

Boyd Jayasuriya, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

 November 21, 1952. GRATIAEN J.-

The appellant, who was the Assistant Storekeeper of the firm of Brown & Co., Ltd., and another accused named McHeyzer were jointly tried before the Additional District Judge of Colombo in connection with a serious fraud which is alleged to have been practised on the Company. The indictment contains three counts which may be summarised as follows :-

(1) In the first count both accused are charged with having between 26th January, 1950, and 8th February, 1950, conspired to cheat the Chief Engineer of the Company by falsely representing to him that a large quantity of copper scrap had been delivered to the Company's Stores by a trader named Shanmugarajah, so as to induce the Chief Engineer to issue a cheque for Rs. 4,005 in favour of Shanmugarajah as consideration for what was in truth a fictitious sale ;

(2) In the second count McHeyzer alone was charged, as the principal offender, with having " at the time and place aforesaid and in the course of the same transaction " cheated the Chief Engineer in the manner alleged in the first count of the indictment;

(3) In the third count, the appellant was charged with having " at the time and place aforesaid and in the course of the same transaction " abetted McHeyzer " in the commission of the said offence, which offence was committed in consequence of such abetment ".

McHeyzer and the appellant severally pleaded not guilty to these charges. The case for the Crown which these two accused persons were called upon to meet had been specified in the indictment with commendable particularity-namely, that they had combined to abuse their trust as employees by practising a fraud on the Company ; that their common plan had been successfully carried into execution by McHeyzer and that the appellant had himself abetted the planned commission of McHeyzer's offence by active participation so as to facilitate its execution. In effect, the Crown had rejected the position which McHeyzer even before the commencement of the non-summary proceed

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