MOSELEY J.—The King v. Jan Singho.
[Court of Criminal Appeal.]
194iPresent: Moseley Sf J, Soertsz and de Kretser JJ.
THE KING v. JAN SINGHO et al.
M. C. Gampaha, 2,333.
Common intention—Charge of murder against three persons—Conduct ofsecond and third accused consistent with innocence—Penal Code, s. 32.The case for the prosecution was that the deceased was shot by thefirst appellant and that the second and third appellants were in hiscompany and were acting in furtherance of a common intention. '
The evidence was that second and third accused were running awayfrom the scene of the incident and that they were subsequently not seenin their home!.
Held, that the facts did not lead irresistibly to the inference that sucha common intention existed on the part of the second and third accused,that their actions were capable of an innocent explanation and that theywere not guilty of the offence.
PPEAL from a conviction for murder before the Western Circuit.The appeals were on grounds of law.
H. V. Perera, K.C. (with him S. P. C. Fernando), for the first accused,appellant.
H. V. Perera, K.C. (with him A. H. C. de Silva), for the second accused,appellant.
J.W. R. llangakoon, K.C., Attorney-General (with him E. H. T. Guna-sekera, C.C.), for the Crown.
Cur. adv. vult.
July 29, 1940. Moseley J.—
The three appellants were charged with the murder of one CharlesPeter Subasinghe. They were convicted and sentenced to death onJune 27, 1940, by Mr. Justice Cannon.
Each of the three appellants has appealed on ground of law and eachhas filed an application for leave to appeal on questions of fact. Thecase for the prosecution, briefly, was that the deceased was shot by thefirst appellant and that the second and third appellants were in hiscompany and were acting in furtherance of a common intention.
In regard to the first appellant we do not think that any of the questionsof law upon which the application is based has any substance. Moreoverwe are satisfied that the verdict in this respect is justified by the evidence.His appeal therefore fails.
The cases of the second and third appellants have a different com-plexion. The evidence against them was that they were seen in companywith the first appellant at the time of or immediately after the incident;that they were running away from the scene of the incident and that theysubsequently were not to be found at their respective homes. Fromthese circumstances the jury were invited by the prosecution to draw the
MOSELEY J.—The King v. Jan Singho.
inference that they were acting in concert with the first appellantthat the common intention of all was to bring about the death of thedeceased:
It does not seem to us that these facts lead one irresistibly to theinference that such a common intention existed on the part of the secondand third appellants. Their actions are capable of inhocept explanationseven though no such explanation was given by either, of t£em. Therewas no evidence of ill-feeling between the second appellant and thedeceased and evidence only of a very slight motive on the part of thethird appellant. There was evidence that the second appellant had onprevious occasions been in the company of the first appellant who at thetime was armed with a gun. There was, therefore, nothing extraordinaryin the fact that the two were in company at the time of the incident, norwas there any reason why the third appellant who was a first cousin ofeach of them should not be with them.
On the hypothesis that the first appellant was acting independently ofthe others when he fired the fatal shot at the deceased, it would be quitenatural for the second and third appellants to take to their heels. Similarly,if they were aware that they had been seen in the company of the firstappellant it would not be unnatural, though perhaps unwise, that theyshould deem it advisable to absent themselves from their homes.
To put it shortly it seems to us that the facts are equally consistentwith the innocence as with the guilt of the second and third appellants,and that for that reason the verdict cannot be supported having regard tothe evidence.
In these circumstances their appeals are allowed and the convictionsand sentences are set aside and a judgment of acquittal is entered.
THE KING v. JAN SINGHO et al