WIJBYEWARDENE A.C.J.—■The King v. Gabo Singho
1948[Couet os’ Crtthttjat. Appeal]
Present : Wijeyewardene A.C.J. (President), Jayetileke S.P.J. andNagalingam J.THE KING v. GABO SINGHO et al.
Appeals Nos. 28—33, with Applications Nos. 120—125S. C. 22—M. C. Panadure, 44,174
•Court of Criminal Appeal—Charge of unlawful assembly—Common object—-Liability of one accused for act of another—Particulars inindictment—Penal Code, section 146.
An accused person is entitled to know with, certainty and accuracythe ground on which it is sought to make him criminally liable for theact of another.
^.PPEALS, with applications for leave to appeal, against certainconvictions in a trial before a Judge and Jury.
T. JB. Dissanayake, for the first and third appellants.
K.A. P. Rujakaruna, for the second and sixth appellants.
H. V. Per era, K.C., with E. B. Sathuruhulasinghe, for the fourthappellant.
M. M. Kurnarakulasingham, with L. G. Weeramantry and M.Ratmarn, for the fifth appellant.
H. A. Wijemanne, Crown Counsel, for the Crown.
Cur. adv. vult.
June 30, 1948. Wueyhwakdekb A.C.J.-—
Seven accused were charged on an indictment containing three counts.The first count charged them with being members of an unlawfulassembly whose common object was to commit housebreaking and
1 L. R. 6 C. P. (480).
WIJEYEWAJttDENE A.C.J.— The King v. Gabo Singho
robbery, while the third count charged each one of them with the murderof KLodigamuwage I>avid. The second count, which is the relevant countthat has to be considered by us, was as follows :—
“ That at the time and place aforesaid, you being members of theunlawful assembly aforesaid did in prosecution of the common objectset out in count 1 commit murder by causing the death of one Kodi-gamuwage David of Mattegoda ; and that you have thereby committed,an offence punishable under section 296 of the Penal Code read withsection 146 of the said Code.”
By their unanimous verdiot the Jury found the appellants guilty oncounts 1 and 2 and acquitted the sixth accused.
In the course of his charge to the Jury the learned trial Judge said :—
(а)“ If you find that the killing amounted to murder, then youwill find that each one of these accused would be guilty of murderif the act of killing David was either committed in the prosecution ofthe common object, that is to say the robbery, or if that killing wassuch an act that the members of the unlawful assembly knew to belikely to be so committed. It is only on these conditions that you.can find a member of an unlawful assembly guilty of murder if hedid not actually strike the fatal blow. Now the Crown alleges thatthis fatal blow was at least such as the members of the unlawfulassembly knew to be likely to be committed, and it is a vital decisionfor you to make whether on the evidence you think that that blow,,if it did amount to murder at all—we will come on to that—was ablow such as the members knew to be likely to be committed, and indeciding that you will bear in mind various factors (pages 6 and 7)..
(б)“ It (section 146) says that if an offence is committed by any"member of the unlawful assembly in prosecution of the common objectof that assembly or such as the members of the unlawful assemblyknew to be likely to be committed in prosecution of that object, everyperson who at the time of the commission of the offence is a member of"the same assembly is guilty of that offence …. You must besatisfied first of all that it was a murderous blow, secondly that theyknew that that kind of blow was likely to be committed.” (pages 7and 8).
“ Now you will see that under that charge the Crown has toprove murder. With regard to the element of murder that it wouldhave to prove, if you find that an accused was guilty of being a memberof the unlawful assembly, then you have only got to find that themurderous blow was such as the members knew to be likely to becommitted.” (page 13).
“ In this case you may find that there is* not enough evidenceto show common intention, with the possible exception of the firstaccused, to kill, but merely a knowledge that murder was likely toresult from such a raid on the house.” (page 14).
“ It is for you to consider whether you find that the killingwas the sort of thing that they may have knowledge was likely to becommitted.” (page 23).
Banda v. David
(/) " If you find that somebody committed murder, then you must,,before you can convict any of the accused whom you have found to bemembers of that unlawful assembly, be satisfied that murder, that is tosay killing of a murderous nature, was either actually committed in-prosecution of the common object, which is robbery, or in this particularcase the evidence would more go towards your finding that the act,the murderous act, was such as the members knew to be likely to be socommitted.” (pages 53 and 54).
There is no doubt that the learned trial Judge proceeded to deliver hischarge as if the second count in the indictment mentioned not only that theoffence of murder was committed by a member of the unlawful assembly"“ in prosecution of the common objeot of that assembly ” but the offenceof murder so committed was one “ such as the members knew to be likely"to be committed in prosecution of that object
An accused person is entitled to know with certainty and accuracythe ground on which it is sought to make him criminally liable for amurder committed by another. The Crown has taken special oare in thesecond count to state specifically that the liability of all the members ofthe unlawful assembly for the murder committed by one of them aroseout of the fact that the murder was committed in prosecution of thecommon object of that assembly. That was, therefore, the oase whichthe accused had to meet. If the Crown desired to make the members ofthe unlawful assembly liable on the second ground set out in section 146,the Crown should have moved to amend count 2.
Acting under the proviso of section 5 (2) of the Court of Criminal AppealOrdinance we allow the appeals and order a fresh trial of the appellants.
THE KING V. GABO SINGHO et al