GTJNASEKARA J.—Anthony v. The Queen
[ComtT OF CRIMINAL APPEAL]
Present: Gunasekara J. (President), Pulle J. andh. M. D. de Silva J.ANTHONY et al., Appellants, and THE QUEEN, RespondentAppeals 56-58 with Applications 84-86
S. C. 2—M. C. Badulla, 11,086
Common intention—Deprivation of self-control by grave and sudden provocation—Co-existence—Penal Code, ss. 32 ; 294, Exception 1.'•
A finding that several accused acted in furtherance of a common intentionis not necessarily inconsistent with the finding that they were at the same timedeprived of the power of self-control by grave and sudden provocation withinthe meaning of Exception 1 to Section 294 of the Penal Code.
“ A common intention does not necessarily and in all eases imply an expressagreement and a plan arranged long before the assault. The agreement maybe tacit and the common design conceived immediately before it is executed. ”
PPEAES, with, applications for leave to appeal, against threeconvictions in a trial before the Supreme Court.
M.M. Kumarakulasingham, for the aecused appellants.
Boyd Jayasuriya, Crown Counsel, for the Crown.
Cur. adv. vult.
October 31, 1952. Gunasekara J.—
These appeals arise out of a prosecution of the" three appellants andanother mal, who was the fourth accused, in respect of an incident thatoccurred on the 10th June, 1950, on a tea plantation in Passara known asthe Dynawatta Division of El Teb Estate. All the accused, except thethird, wire resident labourers on this division. The third too had beena resident labourer until about the end of May, when he was discharged,
GUNASEKARA J.—Anthony v. The Queen
and after that the first accused occasionally put him up in his room. Thesecond accused is a son of the first, and the third and fourth ^re closerelatives of theirs. The four accused were tried on an indictmentcontaining three counts, of which the first charged all of them with theattempted murder of T. E. Mack, an assistant superintendent in charge"of Dynawatta, and the other two charged the second accused alone withvoluntarily causing hurt with a cutting instrument to a watcher namedSinniah and a tea-plucker named Maradamuttu, who too wufe employedon the same estate. On the first count the jury found the first, secondand third accused guilty of attempted culpable homicide punishable undersection 301 of the Penal Code and the fourth accused not guilty of anyoffence. On the second and third counts they found the second accusedguilty as charged. It appears from an answer given by the foreman toa question from the presiding judge that the jury found on the first countthat the appellants had acted with a common intention that would haverendered their offence one of attempted murder but that the offence wasreduced by reason of their having received grave and sudden provocationfrom Mack.~
One of the grounds set out in the notice of appeal, which the appellantshave signed jointly, is that the presiding judge in his summing-up “ didnot put the petitioners’ defence of private defence adequately, noradequately explain the law relating to private defence, nor its applicationto the facts of this case.” The appeals were pressed upon this groundand also upon one that was not taken in the notice, namely, that thefinding that the appellants acted in furtherance of a common criminalintention was inconsistent with the finding that they were at the same timedeprived of the power of self-control by grave and sudden provocation.The latter ground may conveniently be considered first.
According to the prosecution the three appellants jointly set uponMack and wounded him with lethal weapons—a club, a pruning knife,and a long-handled hatchet or heteriya. The incident occurred at midday,and Mack was admitted to the Badulla hospital on the same afternoon.He was unconscious and bleeding at the-time of admission and his life wasin danger. The doctor who examined him observed the followinginjuries :—
(l j an incised wound 2" long and scalp deep on the right eye-brow ;
an incised wound f" long and scalp deep over the right parietal
region with a compound fracture of the skull;
an incised wound long and scalp deep over the right occipital
region with a compound fracture of the skull ;
a contusion of the right eye with sub-conjunctival haemorrhage
(which was a result of injuries (1) and (2)) ;
an incised wound 3" long and 1" deep on the back of the chest;
a bite mark on the left upper arm ;
abrasions over the left knee.w
He was suffering from shock and there were signs of injury to the brain.
The effect of the evidence for the prosecution, so far as is material tothe present question, was as follows. Mack was near the weighing-shedon Dynawatta at about noon, giving the kanakkapulle Hamiah some
| GTJNASEKARA J.—Anthony v. The Queen
instructions, when a watcher named Ambrose reported to him that thethird accused had returned to the estate and was in the first accused’sroom. He sent the third accused a message by Ambrose asking him toleave the estate. The third accused declined to comply with this request,and Mack sent Ambrose to him again asking him to come and see Mack.He refused to comply with this request either, and Mack himself went upto the lines speak to him. Mack was accompanied by Ramiah and.Ambrose and ‘three or four others, including Maradamuttu. As heapproached, the third accused came from the first accused’s room to theverandah outside. At that time the second accused too was on theverandah and the first was inside the room. Standing outside the verandahMack asked the third accused why he remained on the estate. The thirdaccused thereupon asked Mack if he thought it was his estate and beganto abuse and threaten him, gesticulating and moving about the verandah.After some attempt at argument with him Mack pulled him by an arm,and he thereupon seized Mack by an arm and pulled him in the oppositedirection. When they were pulling each other the second accused gaveMack a push from behind that propelled him on to the verandah. Thefirst accused immediately struck him with a club on the nape of his neck.At this blow Mack fell on his knees, and the second accused then slashedhis back with a pruning knife. All three accused next dragged him onhis knees into the first accused’s room, where they assaulted him further.Mack’s impression was that the weapons used by the first and third accusedwere clubs ; but the police found in the room, soon afterwards, a long-handled hatchet stained with human blood on both sides of the blade,which could have been used to cause the two incised wounds on the headand compound fractures of the skull, and Mack may well have mistakenthis weapon for a club. According to Mack it was the fourth accused whobit him, and he had also joined in dragging him into the room. But,unlike in the case of the appellants, there was no other evidence implicatingthis accused ; and Ambrose, who too gave evidence about the dragging andsaid that at that stage he himself struck the first accused with his watcher’sbaton, stated that though the fourth accused was present he did not seehim take part in the dragging. Ambrose fled immediately after he hadstruck the first accused in his vain attempt to rescue Mack, and Rasiahhad run away as soon as Mack was cut by the second accused. AfterMack had been dragged into the room, the second accused cut Marada-muttu who was outside, and later cut Sinniah who came to Mack’s helpafter the assault.
The presiding judge in his summing-up dealt with the exception ofgrave and sudden provocation in relation to the first count of theindictment and directed the jury to the effect that upon the evidence forthe prosecution it was open to them to hold that Mack’s conduct in pullingthe third accused by his arm constituted such provocation. Consideredin the light of the summing-up the verdict clearly means that by thisconduct Mack gave the appellants provocation that was grave andsudden and they attacked him with lethal weapons while they weredeprived of the power of self-control by that provocation. It is also clearthat the, jury held that this assault was committed by the appellants infurtherance of a common intention to commit such an assault and
GUNASEKARA J.—Anthony v. The Quean
therefore an intention to inflict on Mack such wounds as would be thenatural and probable consequence of such an assault. The ci^ticism thatthese are inconsistent findings is based on a view that it was not possiblefor the appellants to conceive a common intention before they had regainedtheir power of self-control. We do not agree. The deprivation of thepower of self-control that is referred to in the exception of grave andsudden provocation (Exception 1 to section 294 of the Pe£al Code) doesnot imply an incapacity to form an intention. On the coiptrary, the casecontemplated by the exception is that of an offender who, while deprivedof the power of self-control, conceives the specific intention of killing orwounding the person whose act so enraged him. Indeed, in a casefalling within the exception frequently what leads to the formation ofa murderous intention by the offender is the deprivation of the powerof self-control, which results in a breaking down of the inhibitions thatrestrain him from personal violence. We can see nothing contrary toreason in a view that several persons affected in that way by rage may,while still deprived of the power of self-control, form a common intentionto kill or to cause bodily injury to the person who gave them provocation.A common intention does not necessarily and in all cases imply an expressagreement and a plan arranged long before the assault. The agreementmay be tacit and the common design conceived immediately before it isexecuted. In the present case the jury may well have been satisfiedthat at the time of the provocation the appellants were already so unitedby a common bond of relationship to each other and hostility to Mack onthe score of his attitude to the third accused, that as soon as he laid handson the third accused they readily came to a tacit agreement to inflictgrievous injuries on him. In our opinion there is no inconsistency inthe verdict.
The evidence upon which the plea of private defence was based consistedof that of the first accused and the evidence of a doctor regarding injuriesfound on the appellants on the morning of the day after the incident.
The first accused gave evidence to the following effect. He and thethird accused were reclining on two-beds in his room when Mack camethere accompanied by about 14 others. One of them, Ramiah, wasarmed with a knife, and the rest with clubs and sticks. The dimensionsof the floor of the room were 9' by 7', but all of them came inside. Assoon as Mack entered the room he assaulted the third accused with a stick,saying “ You son of a whore, can’t you come when I call you ? ”. The firstaccused protested at this conduct and thereupon was himself struck onthe head with a stick by Ambrose. He then picked up a stick and struckAmbrose a blow. There was a “ big fight ” inside the room and thefirst accused received 7 or 8 blows on his head and he fell down. Afterthat he heard “ the sounds of fighting ” as he lay on the floor but he sawnothing of what went on. Presently he found Mack too lying fallen andhe saw the third accused hiding behind a door and the others all runningaway. The second and fourth accused were not present at the time of theincident. There were only the third accused and himself to oppose Mackand those who came with him. He did not see the third accused strikea single blow. He himself struck only one blow, and that was a’olow dealtat Ambrose. *
Kadramer v. Cassini
According to the medical evidence the first accused ’had a laceratedwound 1" 101% and scalp deep over the right frontal area of the scalp andanother lacerated wound f" long over the left parietal region. The secondaccused had two abrasions, by J" each, over the right parietal region ofthe scalp and the left side of the forehead respectively. (Though thedefence elicited this evidence they adduced no evidence as to how theseinjuries were caused.) The third accused had a contusion 1" by 1" overthe frontal area* of the scalp.
The presiding judge directed the jury on the law relating to privatedefence of the body and drew their attention to the evidence that wasrelied on to establish the plea of private defence. It was contended thatthe learned judge misdirected the jury in that he failed to direct themto consider whether the appellants had also acted in the exercise of a rightof private defence against house-trespass. We are quite satisfied that,having rejected the plea of private defence of the body, the jury wouldnot have accepted that of private defence of property, which was basedon the same evidence. It is clear that they disbelieved the evidence thatMack entered the room voluntarily and was not pushed and pulled intothe verandah and the room by the appellants. Moreover, in view of theprovisions of sections 96 and 97 of the Penal Code, in the exercise of a rightof private defence against house-trespass the appellants were not entitledto take the risk of killing Mack unless the house-trespass was committedunder such circumstances as reasonably caused apprehension that deathor grievous hurt would be the consequence if such right was not exercised.If they had satisfied the jury that they reasonably entertained such an.apprehension, then in view of the learned judge’s directions regarding the-right of private defence of the body the jury would have acquitted them.
The appeals are dismissed.