Law: Penal Cede (XLV of 1860)

Section: 109

Law: Evidence Act (I of 1872)

Section: 301

 (a) Accessory before the fact---   Principals in crime acquitted --Conviction of accessory, whether proper-Court to look at the evidence to see if inconsistency on record is real or only apparent -[Penal Code (XLV of 1860), S. 109].   The appellant was charged with four other men in one count with the murder of A. The other four men may be referred to as accused Nos. 2, 3, 4 and 5. At the end of the case for the prosecution accused No. 2 was on the direction of the trial Judge acquitted by the jury. Owing to uncertainty as to which, if any, of the remaining accused was actually present and taking part in the murder and which, if any, might have been accessories before the fact the jury were asked, with regard to each accused whether they found him guilty or not guilty of being accessory before the fact to murder and whether they found him guilty or not guilty as principal. They found the accused guilty as an accessory before the fact to murder and not guilty as principal, accused Nos. 3, 4 and 5 they found not guilty as accessories and not guilty as principals.   The appellant contended that these verdicts were contradictory and inconsistent and accordingly his conviction should be quashed.   Their Lordships pointed out that it was essential to the conviction of any one of the accused as accessory before the fact for the Crown to prove that he had counselled, procured or commanded one or more of the other accused persons to murder A and that such person or persons had in fact murdered the said A. By their verdict the jury had found that murder by any one of the accused had not been proved, but none the less the appellant was guilty of having counselled one or more of them to commit murder and that one or more of them, unspecified, in fact committed it. This certainly appeared at first sight at any rate, an inconsistent and contradictory verdict.   However, the Board was content to deal with the case on the basis upon which counsel for the Crown sought to uphold the conviction namely by looking at the evidence to see if the incon sistency on the record was real or only apparent.   Held, on an examination of the evidence that…