The King v. de Silva.
l Court of Criminal Appeal.]
1940 Present: Howard C.J., Moseley S.P.J., and Wijeyewardene J.
THE KING v. DE SILVA et al.
M. C. Gampaha, 3,463.
Court of Criminal -Appeal Ordinance, s. 6 (2)—Conviction on two counts—The withdrawal of third count—Power of court to convict on third countor for lesser offence—Criminal Procedure Code, s. 185.
The appellants were charged—(1) with being members of an un-lawful assembly the common object of which was to cause serious bodilyinjury to one Rogus Fernando, (2) that, being members of the saidunlawful assembly, they did, in the prosecution of the said commonobject, commit murder by causing the death of the said Rogus Fernando,(3) that they, acting in furtherance of a common" intention, ""did commitmurder by causing the death of the said Rogus Fernando.
> (18911 1 Q. B. 594.* (1891), 1 Q. B. 560.
HOWARD C.J.—The King v. de Silva.
The jury convicted the appellants of counts (1) and (2), whereuponCrown Counsel withdrew count (3). The Court of Criminal Appeal wasof the view that there was not sufficient evidence to establish that theappellants formed an unlawful assembly or that they acted in furtheranceof a common intention to cause the death of the deceased.
Held, that it was open to the Court acting under section 6 (2) of theCourt of Criminal Appeal Ordinance to substitute a verdict under count 3or for any lesser offence established by the evidence.
PPEAL from a conviction before the 2nd Western Circuit of theSupreme Court. The facts are briefly stated in the head-note.
Francis de Zoysa, K.C. (with him Siri Perera, S. de Zoysa, and E. L. W.de Zoysa), for appellants.
E. H. T. Gunasekera, C.C., for the Crown.
Cur. adv. vv.lt
August 30, 1940. Howard C.J.—
This is an appeal by all five accused on grounds of appeal involvingquestions of law. The verdict of the, Jury was that they were guilty of
being members of an unlawful assembly the common object of whichwas to cause serious bodily injury to one Welisarage Rogus Fernandoand thereby committed an offence under section 140 of the Penal Codeand (2) being members of the said unlawful assembly did in prosecutionof the said common object commit murder by causing the death of thesaid Welisarage Rogus Fernando and thereby committed an offenceunder sections 146 and 296 of the Penal Code. After the Jury hadreturned this vedict Crown Counsel withdrew a third count in theindictment which charged the accused that they acting in furtheranceof a common intention did commit murder by causing the death of thesaid Welisarage Rogus Fernando and that they thereby committed anoffence under section 296 of the Penal Code read with section 32 of thePenal Code.
The main ground of appeal was based on the contention that there wasno legal proof of the charge of unlawful assembly. An “unlawfulassembly” is defined in section 138 of the Penal Code. For the purposesof this case it was necessary for the Crown to establish that each of thefive accused had gathered together with the common object of causingserious bodily injury to the deceased. The evidence adduced by theCrown in support of this proposition was as follows: —
That on the day in question about 2 p.m. gambling was going onclose to the house of the deceased who went there to stop it. Thatten minutes after deceasd had come away from this place all fiveaccused and two other men were seen coming towards the boutiqueof the witness Miguel Fernando. That the 3rd accused was heardto say “ I am Hitler of Welisara. I was asked to get up from theplace where we were gambling by Rogus. I will do something niceto him before nightfall ”. That the 2nd and 5th accused amongstothers also made some remarks.
That about 6 or 6.30 p.m. Miguel returned to his boutique and•found the 5th accused lying down in the verandah. Subsequently,
HOWARD C.J.—The King v. de Silva.
the 3rd accused came there followed by the 1st and 4th accusedarriving from different directions. The 3rd accused had a walkingstick with a brass knob, and, after hearing something that soundedlike the report of a gun, he left the boutique saying : “ I asked thatfellow not to fire. In spite of that he has done it. I must do some-thing to him ”.
That whilst the 1st, 4th, and 5th accused, the first two of whomwere armed with clubs, were in the boutique, Rosalin, the 12-year oldchild of the deceased, came to the boutique to get some betel. Thatthe 1st accused asked her if her father was at home. When she toldhim that he was, he said “ Tell your father that we are gambling,ask him to come if he could ”. After the girl had left, the 5th accusedwho was said by Miguel to be drunk, said: “ Kill that fellow, no harmone of us going to the gallows ”. Then the 1st accused said : From6 p.m. I was behind that fellow’s house but he did not come out ”.
That a little later deceased and his wife came towards Miguel’sboutique with a chulu light. Miguel tried to prevent the deceasedcoming to his boutique. Then the 1st, 4th, and 5th accused came outof the boutique saying : “ Stop, we were waiting here to meet you ”and ran towards the deceased. The deceased turned and hurriedtowards his house. Then the 1st accused gave him a blow with hisclub. The 3rd accused who had also appeared on the scene then gavehim a blow with his walking stick. The 2nd accused also dealt hima blow with a club. Miguel is not able to say from which direction the2nd and 3rd accused appeared. The deceased then fell down and the4th and 5th accused struck him with clubs. According to the evidenceof Miguel the deceased was carrying an umbrella and nothing else.
No complaint has been made with regard to the learned Judge’scharge to the Jury. In fact perusal of the charge indicates that the lawwith' regard to the ingredients of the offence of “ unlawful assembly ”were most meticulously explained with reference to the evidence in thecase. But before the Jury could find the accused guilty on counts (1)and (2) it was incumbent on the prosecution to prove that each accusedwas a member of the unlawful assembly at the time the offence for whichhe is held liable was committed. The common object of the unlawfulassembly was the infliction of serious bodily injury on the deceased.The only evidence to connect the 2nd accused with this common objectwas the fact that he was with the other accused in the early part of theafternoon when they were proceeding from the place of gambling towardsthe boutique of Miguel and was present when the 3rd accused made thealleged threat against the deceased and also that he arrived on the sceneof the assault after the deceased had been struck by the 1st and 3rdaccused with clubs and struck the deceased with a club. This evidenceis not, in our opinion, sufficient to prove that the 2nd accused was amember of an unlawful assembly. Even if there was sufficient evidenceto show that the common object of the remainder of the accused was thecausing of serious bodily injury to the deceased, this evidence does nolestablish an unlawful assembly inasmuch as the participators in the
HOWARD C.J.—The King v. de Silver.
assembly would be reduced to four. The conviction of the accused onthe two counts dependent on the existence of an “ unlawful assembly ”cannot, therefore, be upheld.
It has been contended by Mr. Gunasekera that, if the convictions oncounts (1) and (2) cannot be sustained, the withdrawal of count (3)does not preclude this Court from finding the accused or some of themguilty under this count, or in the alternative ordering a new trial thereon.In this connection he relies on section 185 of the Criminal Procedure Coderead in conjunction with section 6 (2) of the Court of Criminal AppealOrdinance, No. 23 of 1938. Moreover Crown Counsel contends thatapart from count (3) it was on this indictment possible for the Juryto have found on count (2) a verdict of murder without “ unlawfulassembly As authority for this proposition he has referred us toRama Boyam1 and The King v. Sayaneris*. We are in agreement withthese contentions. We do not, however, consider that the ends ofjustice will be served by directing a new trial. We, therefore, proposeto have recourse to the powers vested in us by section 6 (2) of the Courtof Criminal Appeal Ordinance.
In deciding whether the evidence justifies a conviction under count (3)ive have given careful consideration to the question as to whether it wasproved that the accused or any of them were acting in furtherance of acommon intention to cause the death of the deceased. The evidencetendered by the Crown in support of such a common intention is sum-marized in paragraphs (1) to (4) of the second paragraph of this judgment.That evidence which is mainly the testimony of the witness Migual is,however, considerably weakened by the evidence of Rosalin, the de-ceased’s daughter, who states that of the accused she saw only the 1staccused in the boutique when she went there to get betel. The 4th and5th accused, although alleged by Miguel to have come out of the boutiquewith the 1st accused, dealt their blows on the deceased at a late stagein the assault and only after he had fallten down. The 2nd and 3rdaccused, moreover, appeared on the scene of the assault from differentdirections. There was no evidence to indicate that those in the boutiquewarned the other conspirators of the expected arrival of the deceasedat the scene of the assault. In these circumstances we are of opinionthat the presence of the accused at the scene of the assault must bedeemed to have been fortuitous and not in pursuance of a preconcertedplan. There is, therefore, no evidence that the death of the deceasedwas caused by the accused in furtherance of a common intention. Aconviction of the accused or any of them under section 296 of the PenalUode read with section 32 is not therefore possible.
The fact that a conviction under count (3) as framed is not warrantedby the evidence does not preclude us from finding the accused guilty ofoffences arising out of individual acts committed by them in the courseof this affray. We have, therefore, dealt with the accused on this basis.The 1st accused has in giving evidence admitted that he struck thedeceased two blows with his club. The medical evidence establishesthat those blows alighted on the head of the deceased and caused hisdeath. The 1st accused maintains, however, that these blows were
(1934) A. I. H„ Madras SG5.
■* 39 N. L. H. 143.
Baker v. Fabura.
struck in self-defence through fear that he would be killed after he hadhimself been struck by the deceased on the head with an iron rod orwooden club. We are of opinion that the evidence tends to show that thedeceased came towards the boutique spoiling for a fight and that the 1staccused was only too ready to gratify this wish. We take into considera-tion also the bodily injuries found on the various accused. In otherwords the evidence indicates that the act of the 1st accused was committedwithout premeditation in a sudden fight in the heat of passion upon asudden quarrel and without his having taken undue advantage or actedin a cruel or unusual manner. Moreover the fact that the 1st accusedused a club and not a weapon that was necessarily lethal raises a doubt,having regard to the circumstances in which the blows were struck, as towhether the necessary proof of intention is present to constitute theoffence of murder. The offence committed by the 1st accused, therefore,comes within exception 4 to section 294, and he is guilty of culpablehomicide not amounting to murder.
There is no doubt that the remaining accused were present at andiparticipated in the assault on the deceased. The medical evidencedoes not, however, bring home with sufficient certainty to any of theseaccused the responsibility for the infliction of any injuries on the bodyof the deceased. In these circumstances the only offence establishedagainst them is one of assult under section 343 of the Penal Code.
The order of the Court, therefore, is as follows: The convictions of thefive accused under counts (1) and (2) of the indictment are set aside.The 1st accused is convicted of culpable homicide not amounting tomurder under section 297 of the Penal Code and sentenced to 10 years’rigorous imprisonment. The 2nd, 3rd, 4th, and 5th accused are convictedof assault under section 343 of the Penal Code and sentenced to 3 months’rigorous imprisonment.
THE KING v. DE SILVA et al