HOWARD C.J.—The King v. M. H. Arnolis.
[Court of Criminal Appeal.]
1943 Present : Howard C.J., Keuneman and Wijeyewardene JJ.
THE KING v. M. H. ARNOLIS et al.
,• 44—M. C. Gampdla, 5,058.
Murder—Committed by two persons in furtherance of common intention—Noevidence of person who inflicted the injury.
Where., in' a charge of murder the case was presented to the Juryby the Crown on the basis that two persons committed the offencein furtherance of a common intention and there was no evidence uponwhich the. jury could say there was, a common intention or that theone or the other inflicted the injury, which resulted in the death of thedeceased,—
Held, that a conviction for murder could not be sustained.
PPEAL from a- conviction by a Judge and Jury before the 1stMidland Circuit. -•
M,M. Kumarakulasingham. (with him T. D. L. Aponso) for first accused.H. Wanigatunge, for second accused.
G. E. Chitty, C.C., for the Crown.
August 2, 1943. Howard C.J.—
The appellants appeal from their conviction on a charge of murderon the ground that the verdict is unreasonable and cannot be supportedhaying regard to the evidence.' The case was presented to the Juryby the Crown on the basis that the two appellants committed this offencein furtherance of a common intention. Moreover, in his charge the■7 N. L. Ik 182:,-lie. W. Sep. 16.
HOWARD C.J.—The King v. M. H. Arnolis.
learned Judge told the Jury that, if they were in reasonable doubt as towhether the two' prisoners were acting in furtherance of a commonintention, then, in view of the fact that there was no evidence upon whichthey could say that one or the other of the two appellants inflicted theinjury which resulted in the death of the deceased man, they would notbe able to convict either the first or the second appellant. We are inagreement with the view taken by the Crown and the learned Judgewith regard to that aspect of the case against the two appellants. Thequestion we have to determine is whether the verdict arrived at by theJury was reasonably capable of being arrived at upon the evidence,taking into consideration that the Jury are pre-eminently judges of thefacts to be deduced from evidence properly presented to them. In thisconnection we have to consider whether there was any evidence on whichthe Jury could reasonably come to the conclusion Wat the two appellantswere acting in furtherance of a common intention'^ This fact requiredstrict proof and cannot be established by a case that amounted to meresuspicion.
The salient facts established by the evidence were as follows. Thedeceased was a well-to-do man, being a vel Vidane living in the Galatharoad which is a turning off the Gampola-Pussellawa road. The twoappellants lived in the next village. The first witness called by theCrown—Liyan Fernando—stated that he used to see the two appellantstogether once in a while. The wife of the deceased stated that she knewthe two appellants. A boutique-keeper named H. Thepanis fromMoragolla testified to an incident that took place at his boutique onOctober 2 where the first appellant came whilst the deceased was there.The first appellant asked for Rs. 5 which he said the deceased hadpromised him. The deceased gave him Rs. 3, but refused in spite ofprotests by the first appellant to give him more. This witness also statedthat the deceased and first appellant used to talk to each other andappeared to know each other well. This is all the evidence connectingthe two appellants with each other and with the deceased prior to thenight of October 5 when this offence was committed. With regard to themovements of the deceased and the two appellants on October 5, it wasestablished—
That the deceased left his house about 3 or 3.30 p.m. carrying
in his waist his purse in which his wife said there was Rs. 70;
That about 4 P.M. the deceased visited the boutique of Thepanis at
Moragolla, bought a measure of rice and paid for it with moneytaken from his purse in which notes were also seen.
That about 8 or 8.30 p.m. the deceased, accompanied by the first
appellant came to the boutique of Abdul Caffoor on the GampolaTPussellawa road, followed a short time later by the secondappellant. -The three men are said to have left at 8.45 or 9 P.M.saying they were going to the house of Edwin which was in thedirection of the-house of the second appellant but in the oppositedirection to that of the first appellant;.
That the two appellants and the deceased were seen on the Gampola-
Pussellawa road by Liyanage, a contractor who states that he
HOWARD C.J.—The King v. M. H. Arnolis.
left the boutique before them and was proceeding in the directionof Pussellawa and when he reached the Village Committee roadthey were about 10 to 12 fathoms behind him ;
That the two appellants and the deceased were met about 8.30 or
9 p.m. on the Village Committee road beyond the house of thesecond appellant and the culvert by the witness Juwanis,a breadman, who got on to the Gampola-Pussellawa road andtook a lorry to, go to the bakery one and a half miles beyondGampola. This witness spoke to the deceased who was carryinga candle in a coconut shell. This witness heard no cries of“ murder ” ;
That Nagamany, a Public Works Department Sub-Overseer,
arrived at the house of' the second appellant which was on afootpath off the Village Committee road and 263 feet from theculvert, about 8.30 p.m. He waited half-an-hour for the secondappellant to come and whilst waiting heard a cry of “ murder ”twice from the direction of the culvert. The witness came outof the second appellant’s house and went in the direction of the• Village Committee road and caught sight of the latter runningalong the road. The witness asked him what the cries were andthe second appellant said that some of the boys were shoutingout in sport. This witness did not make a statement tillOctober 15, although he heard on October 7 that the appellantshad been • taken into custody in connection with this offence •
That the first appellant was met by a man called Pedrick Appuhamy,
a watcher on Storefield estate, sometime after 8.30 p.m. at thejunction of the Village Committee road with the Pussellawaroad. This witness states that the first appellant was comingtowards him along the Village Committee road and, withoutbeing spoken to, said to the witness “ I went here ” ;
That at 9 p.m. Sikurajapathi, a retired Apothecary living on the
main road, heard shouts of “ killing , killing ” ;
That on the morning of October 6, the witness Liyan Fernando
on his way to the house of the second appellant to get his toolsfound the dead body of the deceased at the end of the culverton the Village Committee road about 6.30 a.m. or 7 a.m. He wentand informed the second appellant of his discovery and theyboth went and reported the matter to the Apothecary. Thepolice were informed and on arrival on the scene found a brokencoconut shell with a candle by the dead body of the deceased.The cloth purse was not found and the only money found on the-deceased was a 2 cents note ;
O’) That the post mortem, examination held on the deceased showedonly one wound, a stab wound on the neck.
Can it be. said that there exists on this evidence anything more than acase of mere suspicion ? Is it established that the two appellants wereacting in pursance of a common intention ? We do not think it is.Different considerations 'would no doubt apply if the deceased had beenlast seen In the company of only one of the two appellants. No doubtit has been proved beyond all reasonable doubt that one or other of the
MOSELEY A.C.J.—Punchi Naide and Dingihamy.
appellants committed this crime. But it has not been established whichof them committed it nor, bearing in mind the fact that there was onlyone wound, that both participated. It is true that the behaviour of thesecond appellant in certain respects seems to require an explanation.In this connection I refer to his action in. running along the VillageCommittee road, his explanation of the cries of “ murder ” and his failurewhen the body of the deceased was found to inform anyone that he hadbeen in the latter’s company on the previous night. On the other handit cannot be said that such behaviour is only consistent with his guiltyparticipation in this crime with the first appellant. These acts may beexplained by his non-participation with the first appellant in committingthis crime. With regard to the first appellant, there are even less circum-stances calling for explanation. Bearing in mind that only one woundwas found on the deceased, we feel that the verdict, resting, as it must,on an evidence of a common intention between the two appellants, isunreasonable and cannot be supported.
The appeals are therefore allowed and the convictions quashed.
THE KING v. M. H. ARNOLIS et al