PIYATHILAKA AND 2 OTHERSV.
REPUBLIC OF SRI LANKA
COURT OF APPEAL.
DR. A. DE Z. GUNAWARDENA J. (PICA)
J. A. N. DE SILVA J.
C.A. 103- 105/94
C. Ampara 517/91April 04, 1996.
Criminal Law – Penal Code – S. 296 Common Intention – Mere presence -Overt act – Intoxication – Provocation.
To Maintain a charge on the basis of Common Intention the merepresence is not sufficient.
“The Code does not make punishable a mental state however wicked itmay be unless it is accompanied by a Criminal Act which manifests theState of Mind".
in this case there is evidence that the Accused were under the influenceof liquor. They were therefore more susceptible to provocation.
Where there is evidence of provocation the drunkenness of the Accusedcan be taken into account in considering what effect the provocation hadon his mind.”
APPEALS from the High Court of Ampara.
Cases referred to:Q. v Vincent Fernando 65 NLR 265.
Ariyaratne v. Attorney General S.C. 31/92 SCM 15.11.93
King v. Marshal Appuhamy 51 NLR 140 at 142.
In re Alexei Letenock 1917, 12 Criminal Appeal Reports 221 at 222.
Dr. Ranjith Fernando with Miss. Yasanthi Kumari for the Accused-AppellantsC.R. de Silva D.S.G. for Attorney General.
Cur. adv. vult.
April 04, 1996.
DR. GUNAWARDENA, J. (P/CA)
The three Accused-Appellants in this case were indicted in theHigh Court of Ampara on two charges of having committed the murderof one U.A. Upul Priyantha on 12.01.87, an offence punishable underSection 296 of the Penal Code and with having committed the murderof one T. Gayashantha in the same transaction, an offence punishableunder Section 296 of the Penal Code. Both charges were based oncommon intention. After trial, before the High Court Judge, without aJury, the Accused-Appellants were convicted and sentenced to death.This appeal is from the said convictions and the said sentence.
The prosecution called a witness by the name of Sunil, who statedthat the Accused and the deceased were gambling from about 4.30 inthe evening, till about 8.30 in the night, on the day in question. After thegambling was over they had started drinking. There was a group ofpeople consisting of eight persons. The group consisted of the threeAccused, the two deceased,one Hal Rajah, one Sumith and the witness.During the drinking session, they had consumed in all 2 1/2 bottles ofliquor, brought by different people, at different times. Thereafter, thedeceased Upul had set out to go home. He was staggering and couldnot walk alone, and was helped by the deceased Gayashantha aliasHichcha, the witness Sunil, the three Accused and the person calledHal Rajah. On the way, the deceased Upul had abused the 1st Accusedand 1 st Accused had got angry and had gone away, having called theother two Accused also. A little while later, the three Accused havereturned to the place where the deceased was sitting on the road. Atthat stage, the 2nd Accused was armed with a weapon like a katty ora sword. The 2nd Accused had dealt several blows on the deceasedUpul. When the 2nd Accused struck the deceased Upul, the deceasedHichcha had said “pS S3” meaning it is a sin. At that stage the 3rdAccused had said "Sdaocf ©©oaf” meaning, attack the deceasedHichcha also. Thereafter, the 2nd Accused has struck the deceasedHichcha also, with the weapon he had in his hand. At that stage thewitness Sunil had run away from the scene. The prosecution has calledanother witness by the name of Jayaratne, who has stated that he hadheard some noise and came out of his house. He saw two peoplefallen on the ground with injuries. The 1st, 2nd and 3rd Accused werethere shouting. He heard them shouting saying “raO s«#a ®aid3es&8@o@®3”. After some time the Accused have gone away from that place.
Dr. Ahamed has given evidence and stated that the deceased Upulhad five injuries. He has described the injuries as follows:- Injury No. 1.A cut injury on the right side of the face 4 inches long and 3 inchesdeep. Injury No. 2. A cut injury on the right side of the neck 5 incheslong. Injury No. 3. A cut injury on the right side of the neck 2 incheslong. Injury No. 4. A cut injury 5 inches long on the left leg. Injury No.
A cut injury on the right hand at the wrist 2 inches long.
The doctor has described four injuries on the deceased Gayashanthaalias Hichcha. Injury No. 1. A cut injury left side of the head 9 incheslong 4 inches deep. Injury No. 2. A cut injury severing the left hand atthe wrist. Injury No.3. Superficial cut injury on the left side of the nipple.Injury No. 4. A cut injury on the right hand cutting the index finger andthe hand.
The 1 st Accused has not given evidence nor called any evidenceon his behalf. The 2nd and 3rd Accused have given evidence on oathand have denied the charges against them. They have stated that theywere elsewhere. The 2nd and 3rd Accused have called evidence insupport of their contention.
The learned Counsel for the Appellants submitted that the chargesagainst the 1st Accused cannot be maintained as the evidence isinsufficient. He pointed out that the only evidence is that of Sunil, whostated that, the 1 st Accused was present at the scene when the attacktook place. The evidence of the witness Sunil was that the 1 st Accusedhad earlier taken away the 2nd and 3rd Accused after the deceasedUpul abused him. Thereafter he has come back with the 2nd and 3rdAccused to the scene. The witness Sunil has not stated that the 1 stAccused had uttered any word or did anything to instigate the otherAccused. He had come back with the other two Accused and stayedthere whilst the attack took place. Witness Jayaratne has stated thatthe Accused shouted, but he does not distinguish any utterance madeby the 1 st Accused. The 1 st Accused was not armed. He had left thescene along with the other Accused. It is to be noted that the 1stAccused was in the company of the 2nd and 3rd Accused and thedeceased from about 2.30 p.m. that afternoon. While they were gamblingand also when they were drinking. However he has not partaken liquor.The Counsel submitted that to maintain a charge on the basis of commonintention the mere presence is not sufficient. The prosecution mustprove an overt act manifesting his intention. He cited the case of Queenv. Vincent Fernando,<1) where Basnayake, J. has stated as follows:-
“A person who merely shares the criminal intention, or takes afiendish delight in what is happening but does no criminal act infurtherance of the common intention of all is not liable for the actsof the others. To be liable under Section 32 a mental sharing of thecommon intention is not sufficient, the sharing must be evidencedby a criminal act. The Code does not make punishable a mentalstate however wicked it may be unless it is accompanied by acriminal act which manifests the state of mind. In the Penal Codethe words which refer to acts done extend also to illegal omissions.”
He also cited the case of Ariyaratne v. Attorney-General.(2) In thatcase G.P.S.de Silva, C.J. has reiterated that the inference of commonintention must be not merely a possible inference, but an inferencefrom which there is no escape'. The facts revealed that, the principalwitness speaks only of the presence of the Appellant at the scene.The Appellant had thrown a stone at the deceased and uttered thewords This is what you deserved”. This utterance was at a stage whentwo other Accused had attacked the deceased with a sword i.e. theevidence against the Appellant was the incriminating words uttered byhim and throwing of a stone. Which in fact has not been mentioned tothe Police or non-summary inquiry. The learned Chief Justice has heldthat the prosecution was left only with the presence of the Appellant atthe scene, and therefore a conviction on the basis of a common intentionby the jury, was clearly unreasonable, having regard to the evidence.
The Counsel for the Appellants submitted that the dicta in the abovecases are applicable to this case, as the evidence in this case revealthat the 1st Accused had only been present at the scene, and thereforeno inference of common intention can be drawn against the 1stAccused, on the facts of this case. He added that, therefore, the availableevidence against the 1 st Accused is insufficient to prove the chargesagainst the 1st Accused, on the basis of common intention.
Having considered the evidence against the 1 st Accused we are ofthe view that evidence is insufficient to sustain the conviction. Thereforewe are of the view that the 1st Accused should be acquitted.
In regard to the 2nd Accused, it was submitted by the Counsel forthe Appellants that there is clear evidence of the 2nd and 3rd Accusedhaving partaken liquor. During a period of about 2 1/2 hours, i.e. fromabout 8.00 p.m. till about 10.30 p.m. six people have consumed twoand a half bottles of liquor. He submitted that the level of intoxicationcould be judged by the fact that the evidence disclosed that thedeceased Upul was staggering and had to be helped. He submittedthat it is relevant to take into consideration the fact that the Accusedwere intoxicated, in considering the question of provocation. He drewour attention to the findings of the learned trial Judge at page 207,where he has specifically stated that, the Accused would have behavedin the way they did, by making a show at the scene, to enable them tobe identified by others, because they were under the influence of liquor.The learned trial Judge had pointed out that the fact that they haveconsumed liquor has facilitated the commission of the offences.
The Counsel for the State however submitted that, althoughquestion of intoxication is relevant to the question of provocation, it isnot relevant to the consideration of the question of gravity of theprovocation.
The Counsel for the Appellants pointed out that in the case of Kin&v. Marshal Appuham/3) Wijewardena, C.J. has stated that:-
“In paragraph 2 the Judge appears to have expressed himself iisuch a way to give the impression to the Jury that any intoxicatioifalling short of the degree of intoxication contemplated by Sectior78 of the Penal Code should not be considered in dealing with thequestion whether a man’s susceptibility to provocation was affectedby intoxication. None of the above paragraphs 1 to 4 would haveindicated to the Jury that the intoxication necessary to reduce anoffence from murder to culpable homicide not amounting to mur-der on the ground of absence of murderous intention need notnecessarily be the degree of intoxication referred to in Section 78of the Penal Code.”
In this case also there is evidence that the Accused were underthe influence of liquor. They were therefore more susceptible toprovocation.The learned Counsel for the appellants also cited the caseof Alexei LetenoctfA) which states as follows:-
“Rowlatt, J. said that unless the applicant was so drunken at thetime of the commission of the offence as to be absolutelyincapable of knowing anything of what he was doing, hisdrunkenness could afford no answer to the prosecution. Thatdirection might be right in a case where there was no provocation,and the sole matter before the jury was the drunkenness of theAccused, but here, according to the applicant’s story, there wasprovocation. Where there is evidence of provocation, thedrunkenness of the Accused can be taken into account inconsidering what effect the provocation had on his mind”.
The Counsel for the Appellants pointed that, it is clear from theevidence that the 2nd Accused had been under the influence of liquor.He stated that it could be assumed from the facts proved in the casethat the Accused and the deceased were friends, just prior to the attack.They had gambled, from about 2.30 p.m. that afternoon. Thereafter,they had enjoyed liquor together till about 10.30 p.m. Then only thedispleasure had arisen, which is about 15 or 30 minutes prior to theattack. The Counsel for the Appellants pointed out that witness Sunilhas stated that the Accused and the deceased have started quarrellingafter they consumed liquor. He also drew attention to the evidence ofwitness Sunil that the deceased Upul was being helped by the threeAccused, when the deceased Upul was staggering. At that stage thedeceased Upul had abused the 1st Accused. Then the 1st Accusedhad got angry and called the other two Accused also and gone a way.This conduct, the learned Counsel submitted, was clear evidence ofprovocation. There was no motive or other reason for the Accused tohave attacked the deceased.
In view of the above evidence we are of the view that it is reasonableto infer that the 2nd Accused has acted under grave and suddenprovocation,whilst being under the influence of liquor, when he attackedthe deceased. The learned trial Judge has failed to consider this position.Therefore it is unreasonable to allow the verdict of murder to standagainst the 2nd Accused in respect of causing the death of the de-ceased Upul.
In regard to causing the death of Gayashantha alias Hichcha theCounsel for the State submitted the plea of grave and sudden provocationwould not apply, because the deceased Gayashantha had only utteredthe words, “cS ®<3” and sat near the deceased Upul. The uttering ofthese words the Counsel submitted would not be sufficient provocationto cause his death.
It is to be noted that implicit in those words was the objectionraised by Accused Gayashantha to attack on the deceased Upul.Further those words express sympathy towards the deceased Upul.The utterance of these words have to be viewed in the back ground ofthe state of mind of the Accused at that stage, being already provokedand under the influence of liquor. The Counsel for the Appellantssubmitted that in such a situation there was sufficient reason, for the2nd Accused to have been provoked by the utterance of those words.
In the circumstances, we are of the view that the 2nd Accused hadattacked the deceased Gayashantha alias Hichcha under grave andsudden provocation, whilst being under the influence of liquor. Thelearned trial Judge has failed to consider this aspect of the case. Henceit is unreasonable to allow the verdict of murder to stand against the2nd Accused in respect of causing the death of the deceasedGayashantha.
In regard to the 3rd Accused the Counsel for the Appellantssubmitted that the only evidence against the 3rd Accused is that hehad told the 2nd Accused “SSeoaf ocooaf” meaning assault Hichchaalso. The Counsel for the Appellants also pointed out that the 3rdAccused was unarmed. Therefore he submitted that evidence wasinsufficient to prove common intention.
The Counsel for the State submitted that when the 3rd Accusedstated “fiSsocf o®o«j" it amounts approving the attack on deceasedUpul and also the deceased Gayashantha alias Hichcha. The Counselfor the State added that this fact is sufficient to bring home the guilt tothe 3rd Accused on the basis of common intention.
We are of the view that the evidence in this case is sufficient toprove that the 3rd Accused shared a common intention with the 2ndAccused. However, as we have already held that the conviction of the2nd Accused on both the said murder charges is unreasonable, wehold that the conviction of the 3rd Accused on both the said murdercharges is also unreasonable.
For the reasons stated above we hereby acquit the 1 st Accused-Appellant, of both the charges.
In view of the reasons stated above the convictions of the 2nd and3rd Accused-Appellants on both the said charges of murder are herebyreduced to culpable homicide not amounting to murder on the basis ofprovocation. Accordingly the sentences of death imposed on 2nd and3rd Accused-Appellants are hereby set aside. The 2nd and 3rd Accused-Appellants are each, sentenced to 12 years rigorous imprisonment, oneach of the said two charges. The sentence of 12 years rigorousimprisonment imposed on 2nd and 3rd Accused-Appellants on each ofthe said two charges, will run concurrently.
DE SILVA, J. -1 agree.
Appeal of 1st Accused allowed.
Charges of 2nd and 3rd Accused reduced.
PIYATHILAKA AND 2 OTHERS v. REPUBLIC OF SRI LANKA