SOERTSZ A.C.J.—-The King «. Ranaiinghe.
[Court op Criminal Appeal.]
1946 Present: Soertsz A.C.J. (President), Wijeyewardene S.P.J. andCanekeratne J.THE KING «. RANASINGHE el al.
Appeals 28-29—Applications 100-101.
16—M. C. Gampaha, 26,855.
Common intention—Same or similar intention is not common intention—Pen&lCode, s. 32.
Common intention within the meaning of section 32 of the PenalCode is different from same or similar intention. The inference ofcommon intention should not be reached unless it is a necessary inferencededuoible from the circumstances of the case.
PPEALS, with applications for leave to appeal, from two convic-tions in a trial before the Supreme Court.
H. V. Perera, K.C. (with him W. Jayewardene, V. Tillenathan andMahesa Ratnam), for the appellants.
T. S. Fernando, C.C., for the Crown.
Cur. adv. vuU.
August 2, 1946. Soertsz A.C.J.—
The facts material for a consideration of the submissions made to uson behalf of the appellants in this ease may be briefly stated thus : Thedeceased man owned a one-fifth share of certain fields. In the year1938, by an informal writing, he agreed to give that share to his grand-aunt Ran Menika and her children in exchange for a high land belongingto them. After that agreement had been given effect to for a number ofyears, the deceased appears to have repented of the arrangement. OnMarch 3, 1945, accompanied by four or five other men he came by car tothe house of Ran Menika to ask for his share of the paddy of the fieldshe had given her on the informal agreement. It is said that this was apeaceful mission but it is important to bear in mind that the deceasedman had been to jail for robbery and that, admittedly, he was a man of a
SOERTSZ A.O.J.—The King v. Ranaiinghe.
violent temper especially when he was under the influence of liquor, ashe appears to have been on this day. His companions, on this occasion,were also men who bore the reputation of rowdies. When this partyreached Ran Menika’s house the only inmates of it were Ran Menika andanother woman, the wife of the first appellant. The men of the house-hold were out, attending to their usual work. The deceased asked forhis share of the paddy and an altercation ensued. The women set upcries and in answer to those cries, the first appellant who is a son of RanMenika and the husband of the other woman in the house, the secondappellant a nephew of Ran Menika, and a third man named Raja Thomasran up. The first appellant carried a sword, the second a club or ironrod, the third a gun. According to the version most favourable to theprosecution, it would appear that, at this stage, the “ visitors ” wereabout to drive off in their car, but that on seeing these three men, thedeceased got out of the car and went up to them saying that he had notcome to create a disturbance but only to get his share of the paddy.He was then attacked by the first appellant with the sword and the secondappellant struck him with the club or rod that he carried. The thirdman fired his gun but caused no injuries. The witness Peiappu saidhe saw the second appellant deal only one blow, the other eye-witnessfor the Crown, Dareeju, said he saw the second appellant deal severalblows. There was a suggestion that some of the neighbours who cameup also joined in the attack and some broken rafters were produced tobear out that suggestion. Sub-Inspector Badurdeen found these piecesof rafters about twenty-five yards from the scene. But, there is nodirect evidence to show that any of the neighbours joined in the attackupon the deceased. The medical evidence established that the blowwith the sword caused a necessarily fatal injury. The other injuries,seven in number, were injuries caused with a club or iron rod or withseveral clubs or rods and these injuries too in the opinion of the doctortaken cumulatively would have resulted in death.
On these facts, the first submission made to us was that, there beingonly the evidence of one witness of doubtful character to support thecase that the second appellant dealt several blows and as against that,the circumstantial evidence afforded by the broken rafters to suggest anattack with clubs by persons other than the second appellant, the Jury ifproperly directed, might reasonably have taken the view that it would besafer for them to go upon the assumption that the crucial injury was thefatal injury dealt by the first appellant with his sword. If they hadtaken that view, the complicity of the second appellant in the charge ofmurder would depend on whether they were satisfied that the secondappellant was acting with the first appellant in furtherance of a commonintention to cause death. In regard to this question, Counsel submittedthat although the directions given by the learned trial Judge to the Juryon the point of common intention were unexceptionable as far as theywent, they were inadequate in that they d d not instruct the Jurysufficiently to enable them to discriminate between “ common intention ”and the “ same or similar ” intentions. As pointed out by their Lordshipsof the Privy Councilin the recent case of Marbub Shah v. Emperor1 “ Care1 A.IJt. (1945) P.C. 118.
SOERTSZ A.C.J.—The King v. Ranoainghc.
must be taken not to confuse same or similar intention with commonintention; the partition which divides their bounds is often very thin ;nevertheless the distinction is real and substantial and if overlooked willresult in miscarriage of justice. In their Lordships’ opinion, the inferenceof common intention within the meaning of the term in section 34 (i.e.,sect on 32 Ceylon) should never be reached unless it is a necessary inferencededucible from the circumstances of the case In the circumstancesof the case before their Lordships, they refused to draw that inferenceand it appears to us that, in the circumstances of the case before us too,it would be safer not to draw the inference of a common intention. Thereis no evidence at all of any prearrangement or even of any declaration orof any other significant fact at the time of the assault to enable one tosay more than that the assailants had the same or similar intentionsentertained independently by each of them. The first appellant said thathe ran up from the Co-operative Stores on hearing the women’s cries.There is nothing to contradict this statement. Indeed, that is veryprobable. The second appellant, therefore, must have come up fromelsewhere and independently. It may, therefore, well be that if theJury had their attention called to this distinction, they might havedifferentiated between the offences of the two appellants.
The other submission made to us was that the learned Judge had notsufficiently drawn the attention of the Jury to the material facts that thedeceased and his party were men of bad reputations, that they or someof them had been drinking, that they came in numbers, and had notdirected them to consider whether in view of those facts the case for theprosecution that this was a peaceful expedition undertaken to make arequest for a share of the paddy, or the case for the defence that this wasan invasion by the deceased and his companions of Ran Menika’s homein order to intimidate her into giving a share of the paddy was the moreprobable case. The maimer in which the learned Judge dealt with thispart of the case was calculated to create an impression in the minds of theJury that this question hardly arose, for he said :
“ There is nothing to indicate that his mission (i.e., the deceased’s
mission) on that day was anything but a peaceful one .”
As already observed, there were many significant facts which pointedin the opposite direction and it is a reasonable view to take that if theJury had been properly charged on this point, they would probably havefound that the appellants were acting on grave and sudden provocationcalculated to deprive them of their self-control, and that they were withinthe first exception in virtue of which their offence would be reduced to oneof culpable homicide not amounting to murder.
For these reasons, we would set aside the conviction for murder, andsubstitute for it a conviction for culpable homicide not amounting tomurder in the case of both the appellants and sentence each of them to aterm of ten years’ rigorous imprisonment.
THE KING v. RANASINGHE et al