093-NLR-NLR-V-62-THE-QUEEN-v.-N.-K.-A.-APPUHAMY-et-al..pdf
484
The Queen~vJAppuhamy
[In the Court of Criminal Appeal]
1960 Present:Sansoni, J. (President), H. N. G. Fernando, J., and
Sinnetamby, J.
THE QUEEN v. N. K. A. APPUHAMY et al.
Appeals 170—172 and 175—177, with Applications 190—192 and 195—197
S. C. 5—M. C. Polonnaruwa, 15428
Unlawful assembly-r-“ Common object ”—Distinction between common object andcommon intention—Presence of a person at so.ne of offence—Inference of guilttherefrom—Penal Code, s. 13S.
Certificate for appeal given by trial Judge—Bearing on the appeal—Court of CiiminctlAppeal Ordinance, No. 23 of 1938, s. 1 (b).
The accused-appollants were indicted, on the 1st count, for having beonmembers of an unlawful assembly, the common objects of which were to commitmischief by fire, murder and rape and, on the 2nd, 3rd and 4th counts, for thecommission of the offences of mischief by fire, murder and rape in prosecutionof the respective common objects.
SAHSONT, J-—The Queen v. Ap-pxihamy
485
Held, (i) that a common object in an unlawful assembly is different from acommon intention, in that it does not require prior concert and a commonmeeting of minds before the offence is committed. If each member of theassembly has the same object, the 1 their object would be common, and if therewore five or more with this object, then they would form an unlawful assemblywithout any prior concert among^ themselves.
(ii) that a person can become a member of an unlawful assembly not onlyby the doing of a criminal act but also by lending the weight of his presence andassociating with a group of persons who are acting in a criminal fashion.
(iii) that the common objects of an unlawful assembly may come in successionand need not necessarily exist together at the beginning.
Held f urther, that the grant of a certificate by a trial Judge under section4 (b) of the Court of Criminal Appeal Ordinance is not a'ground by itself forquashing the conviction even when the verdict of the jury is reasonable andthere has been no misdirection.
PPEALS, with applications, against six convictions in a trial .beforethe Supreme Court.
Colvin li. de Silva, with M. L.deSilva, A. A. de Silva and B. Bodinagoda(Assigned), for the Accused-Appellants.
V. S. A. Pullenayegum, Crown Counsel, for the Crown.
Cur. adv. milt.
December 5, 1960. Sansoni, J.—
Seven accused were indicted in this- case on four counts which chargedthem (1) with having been members of an unlawful assembly, the commonobjects of which were to commit mischief by fire, murder and rape, (2)with having committed mischief by fire in respect of the house of D. B.Podiya in prosecution of the common object, (3) with having committedmurder by causing the death of Thuraisamy Mani, daughter of the said
B. Podiya, in prosecution of the common object and (4) with havingcommitted rape on Thuraisamy Kiruvanesan, another daughter of D. B.Podiya, in prosecution of the common object.
These offences were alleged to have been committed on 26th May, 1958,at XJlpathwewa, a village about 1£ miles from Hingurakgoda. .At theclose of the prosecution case, the 7th accused was acquitted because therewas no evidence against him, while all the other accused were ultimatelyconvicted on all the counts by a majority verdict of 5 to 2. The presentappeal has been brought after a certificate had been obtained from thetrial Judge under section 4 (Z>) of the Court of Criminal Appeal OrdinanoeNo. 23 of 1938.
2*
J. N. B. 1039S (4/61)
486
SAN'S ONI, J.—The Queen, v. A.'ppuhu.my
The cause for the prosecution rested mainly on the evidence of Podiya,his daughter Kiruvansesan, and James Singho who lived in a house veryclose to that of Podiya. Podiya himself is the child of a- Tamil motherand a Sinhalese father, and he had married a Tamil woman who diedshortly before the day in question. He had five children living with him—a daughter Kiruvanesan aged 12£ years, 3 sons who were youngerthan Kiruvanesan, and another daughter, Mani aged years. He wasemployed as a Kangany in the Railway Department and 1st, 4th and 5thaccused Avere three of the labourers in his gang. All the accused wereresidents of that area.
According to Podiya, a state of tension arose in and near Hingurakgodaprior to 26th May, due to feelings of hostility entertained by Sinhaleseagainst Tamils. Although he went to work that morning, he returnedhome at about 8.30 a.m. because he Avas anxious about the safety of hischildren. The 1st, 4th and 5th accused had turned up for Avork thatmorning, and he asked the 5th accused to inform Ins superiors why hehad returned home. On returning home, he met James who advisedhim to hide himself and his children in the jungle. Accordingly, the twogirls Avere hidden at one spot behind James’ house and the 3 boys atanother. Podiya said that after he had returned home, at about 11 a.m. or12 noon he saAv the 1st to 6th accused on the tank bund not far from hishouse. From their behaviour he thought they Avere drunk ; they wereshouting “ Shall eat the Tamils. Where are the Tamils "? ” and similarexpressions ; and they all carried Aveapons. The 1st accused carried agun, the 2nd accused an iron rod, the 3rd accused a pointed Aveapon,while the other 3 aocusod had clubs. While they approached his house,he heard shouts and cries uttered by another crowd wliich he did not see.When the 1st to 6th accused rushed towards his house, he ran into thejungle and hid himself.
From his hiding place he saw the 2nd accused climbing on to the roofof his house, and later shouting “ The big Tamil man’s house is on fire,let us go to the house below to set fire to the small Tamil’s house ”. Hishouse was burnt to the ground. He heard the other accused shouting“ Kill the Tamil fellow, search for him to eat him up ”, and the wholeparty then ran toAvards James’ house. He then heard cries of “ murder ”uttered by James’ Avife. He heard Kiruvanesan also crying out, andJames protesting against the children being harmed. He also heardthe accused shouting, “ The big Tamil fellow escaped ; the sucklings gotcaught ; you para demali come here, I Avill tear you into pieces ”, andcries of distress, though he could not understand Avhat was said.
A short while afterwards he saAv the 1st accused dragging KiruvanesanaAvay, threatening her, Avliile she kept appealing to him. She wascarrying Mani at the time. The 2nd to 6th accused followed them, andthe party went towards the railway bridge which crosses a stream calledthe Minneriyodiela. That Avas the last time he saw his child Mani. Hesaid he could not see what happened thereafter, because the bridge washidden by a large tree.
SANSONT, J.—TJte Queen v. Appuhamy
487
James Singho, in his evidence, spoke to having helped^ Podiya to hidethe children at about 10 a.m. that morning. He said that he later heardshouts in Sinhala which meant “ Murder, eat, hack, ” and he saw a crowdgoing towards Podiya’s house and the house on fire. He saw the 2ndaccused on the roof of that house.. He next saw the 2nd accused runningto his compound with 6 or 7 others, shouting “ Podiya’s house was seton fire. Set fire to the small Tamil fellow’s house also He identifiedonly the 2nd and the 6th accused who were running in front, but he saidthere were 7 or 8 others also, and. they came carrying guns, swords,iron bars, axes and petrol tins, the 2nd accused himself carrying a gun.
When they reached his house, they assaulted him and his wife, and atthat stage Kiruvanesan came up carrying Mani and shouting, “ Do notassault uncle ”. Eventually the 2nd accused dragged Kiruvanesan,who was carrying Mani, towards the bridge, while she was shouting,“ Don’t kill me ”, and the other men followed her. At this point, James’evidence became a little confused. At one stage he said that the partywent across the railway bridge, and he lost sight of them thereafter owingto a fence. Again, he said that he saw the crowd reaching the cementedbund of the channel near the bridge, but he could not see anything more.He admitted that he told the Magistrate that he saw the 2nd accusedsnatching the child, dashing it on the cemented bund, and throwing itinto the stream, but his final version at the trial was that he only sawsomething like a parcel about 2 feet long and wrapped in cloth, beingthrown into the stream. He also said that about 5 days after the dayin question he saw the headless body of Mani lying abandoned about 2 ,miles away, dressed in a spotted frock which he identified because it wasiput on the child at his house, and it was being worn by her when he lastfisaw her.
Kiruvanesan in her evidence said that when she was hiding behindJames’ house with Mani, the 1st to 6th accused came to her father’scompound shouting “ Kill the Tamils ”. She saw the house on fixeand heard the 2nd accused shouting “ The Tamil man’s house is ablaze ;we will go in search of the Tamil man. ” According to her, both the1st and the 2nd accused carried guns. The party then went to James’house, and demanding that the Tamil man should be pointed out theyassaulted James and his wife. At that stage, she ran up carrying Mani,fell at their feet, and begged of them not to assault her aunt and uncle.The 1st accused then said “ The big Tamil fellow escaped ; two youngones have got caught”, and dragged her to the bridge abusing her infilthy language while she was still carrying Mani ; and the 2nd to 6thaccused followed them. She said that she appealed to the 1st accused tosavo her and not to kill her, but he dragged her saying, “ Shall kill you ”.At the bridge the 1st accused snatched Mani from her, dashed the childtwice on the cemented bund of the channel, and threw the body into theriver. The others then said, “ This Tamil woman also should be killed. ”From there the 1st and 6th accused took her across the bridge, whilethe others followed her. The 1st accused removed her clothes and raped
488
SANS ONI, J.—The Queen v. A-ppuhamy
her, and then the 6th accused did the same, while the other accused werea little distance away. Thereafter the 2nd accused raised her up, andshe was told that she would be taken to Hingurakgoda and the * Sri7mark placed on her.
While she was being taken away, a crowd of 25 or 30 persons met themand she was handed over to them with instructions that she was to havethe ‘ Sri * mark placed on her body. Those persons were taking hertowards Hingurakgoda when witness Pathirana met them and appealedto them to release her. Pathirana took her to the house of witnessGamage, and Gamage’s wife gave her a cloth and jacket. She said shetold Gamage’s wife that she had been molested, but did not tell her thatMani had been killed. Gamage arrived in a car on being sent for by hi»wife, and took her to the Hingurakgoda Police Station where refugeeshad already gathered. Prom there she was sent to Valachenai refugeecamp, Valachenai Hospital, and then to Thambiliwila. She wasexamined by Hr. Pajalingam on 29th May at Valachenai Hospital, butnot as a victim of rape. The latter found abrasions 3 or 4 days old all overher body, but he admitted that he did not examine her carefully as he wasexempted from doing judicial work : he said he could not get an intelli-gible answer from Kiruvanesan, apart from being informed by her that shehad been assaulted at Hingurakgoda. Ultimately she came back toHingurakgoda Police Station with her father on 19th October, and herstatement was recorded there for the first time. She was then sent toPolonnaruwa Hospital where Hr. Weerasooriya examined her for thesecond time, and found an injury which was consistent with the witnesshaving been raped some time earlier.
Pathirana said that when he was walking along the railway line towardsUlpathwewa on the morning in question, from the direction of Hingurak-goda, Kiruvanesan came running towards him in a state of fear and therewas a crowd of persons behind her. It is of the utmost significance thatthe child Mani was not with her then. She complained to him that somepeople had attempted to assault her. He then took her to Gamage’shouse and later accompanied her and Gamage in a car to the PoliceStation. Gamage’s wife said that Kiruvanesan came running to herhouse at 2 or 2.30 p.m. that afternoon, wearing a dirty torn skirt, with theupper part of her body bare. She was frightened, and they did not speakto each other. She did not notice any scratches on the girl, nor did sheexamine her for injuries. As she was afraid to keep the girl in the house,ahe sent for her husband, and when he arrived and questioned the girl,the girl told him that men had taken her and molested her. Gamagesaid that when he arrived at his house on being sent for, he found Kiru-vanesan bare-bodied and wearing a dirty piece of cloth. He asked hiswife to give her a jacket. The girl told him that she had been molestedby 7 or 8 men. It was elicited from him that the Sinhala expression sheused for “ molested” could also mean “raped”. Gamage’s statementwas recorded for the first time on 20th October.
SANSON-!, J.—The Queen v. Ajypxihamy
480
It is quite clear from the evidence given by Police Sergeant Rahim,who was attached to the Hingurakgoda Police at this time, that althoughrefugees had come to the Police Station it was not possible even to recordany statements from them until 3rd June. He met Podiya at the houseof the Village Headman of Ratmale on 29th May, but did not questionhim nor did Podiya make a statement at that time. Podiya had gone tothat Headman’s house on the evening of 27th May, having spent about1£ days in the jungle. No point can be made, in view of the conditionsprevailing during those days, of the failure to record statements, nor is itsurprising that statements which in normal times would have been madeto the Police were not made. Things had come to a pass where the pro-cedure which was normally followed after a crime had been committed■could not possibly be followed, and all the efforts of the police were con-centrated on rescuing and giving refuge to thousands of men, women and■children who found themselves in deep distress.
Podiya, in his first statement recorded on 3rd June, referred among■other matters to the invasion of his compound by a crowd ; he also spoketo the incidents that happened in James’ house ; and he referred to Kiru-vanesan being dragged away towards the railway line. There are certain•contradictions, omissions and exaggerations to be found when his evidenceis compared with what he said in that statement. For instance hisstatement has no reference to the burning of his house, and it refersto about 100 persons invading his premises. Even with regard to the-evidence given in the Magistrate’s Court by Kiruvanesan and James,one finds several contradictions. Kiruvanesan told the Magistratethat 1st, 2nd and 7th accused raped her, but at the trial she said thatthe 1st and 6th accused raped her. There is also the material contra-diction between her and James as to which accused actually dashedMani on the cemented portion of the bund. It is also remarkable thatthough James claims to have known all the accused for some years heidentified only the 2nd and the 6th in that crowd.
But all these matters were placed before the jury, in a summing-upwhich was quite unimpeachable, completely fair, and at certain points■even unduly favourable to the accused. The learned Judge in explainingwhat was meant by the term “ common object ”, said this : “ Each onemust know the object of_each of the others and must also appreciatethat object is the same and that they assembled there for that samepurpose ”, and in dealing in particular with the question whether rapewas a common object of the unlawful assembly he said : “ If you cannotsay with complete confidence that one of the common objects of thisunlawful assembly was the commission of the offence of rape, in otherwords, if you are unable to say that just before this offence of rape was•committed, it was in the minds of everyone of those members that rapewas part of the programme, that rape was going to be committed, and eachone knew that the other knew that rape was going to be committed ;unless you can say that, you cannot find that one of the common objectsof this unlawful assembly was to commit the offence of rape. ” The
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SAjSTSONT, J.—The Queen v. Appuhuniy
burden thus placed on the prosecution, though perhaps unnecessarilyheavy, was nevertheless discharged. A common object is different froma common intention, in that it does not require prior concert and a com-mon meeting of minds before the offence is committed. If each memberof the assembly has the same object, then their object would be common,and if there were five or more with this object, then they would form anunlawful assembly without any prior concert among themselves. If theseelements are established, the prosecution has then proved the existenceof an unlawful assembly with that particular common object : see Sukhav. State of Rajasthan1.
Mr. de Silva, for the appellants, at one stage argued that the 3rd, 4thand 5th accused had not been proved to have done any acts indicativeof their membership of an unlawful assembly, and that at most only theirpresence at the scene had been proved. Such presence, he said, waseasily explained by the fact of their living in that neighbourhood. Butit is not only by the doing of a criminal act, like the use of force, that aperson becomes a member of an unlawful assembly. The jury musthave been satisfied that the 3rd, 4th and 5th accused came, togetherwith the other accused who were convicted, possibly carrying weapons andlending the weight of their presence by being in attendance throughout,until Kiruvanesan was finally handed over to another crowd on the rail-way line. The 3rd, 4th and 5th accused must surely have realised thatif they themselves did not shoutythreaten or use language whicITthe othermembers of the assembly are said to have used, they were associatingwith a group of persons who were acting in a lawless manner. Thelanguage used, the weapons carried (and the 3rd, 4th and 5th accused,according to Podiya and Kiruvanesan, did carry weapons), the state oftension prevailing at the time, must all have impressed themselves onthe 3rd, 4th and 5th accused. Once they were apprised of the illegalobjects of the others, it was their duty to withdraw ; when they failedto do so, their continued presence could reasonably have been construedas that of persons who intentionally remained in order to further thecommon objects of the assembly. It would be unreasonable to hold,in these circumstances, that they were not at least lending their aid totheir associates who were acting in a criminal fashion.
The next stage of Mr. de Silva’s argument was that if there was anunlawful assembly, the common object was only to commit arson. Cer-tainly the manner in which Podiya’s house was burnt demonstrated alltoo clearly that arson was a common object of the assembly, but this mobdid not disperse after the house was burnt. They were obviously bent onmore mischief, and another common object which they showed themselvesto have was to kill the Tamils. This was surely established by theirshouts and the manner in which they acted after Kiruvanesan came upto James’ house carrying her little sister. If there was no common objectto kill cither Kiruvanesan or Mani, why did these men take them away
1 A. I. It. (1956) S. C. 513.
-191
SANSONI, J.—The Queen v. Appuhatny
from James’ house in spite of all the appeals that they should not do so ?It is no answer to say that since murder was not committed then andthere before these two girls were forcibly removed, there was no commonobject to kill either of them. They did not go far before the murder ofMani took place. When the evidence of James and KLiruvanesan isexamined, it is not difficult to see why the majority of the jury thoughtthat the common object of murder and rape had also been proved. Thecriminal behaviour of the members of the assembly showed that theywere prepared to go to any length, pursuing and achieving one objectafter another, perhaps acquiring courage from the fact that they hadtriumphed over victims who were unable to offer any resistance. We arcunable to sa}' that the majority of the jury were wrong in accepting theevidence of Kiruvanesan, which they must undoubtedly have done onthe charges of murder and rape, and we are all satisfied that from thatevidence it was a reasonable inference that this unlawful assembly hadthe common object of murder ; and the majority of the Court are satis-fied that rape was also a common object.
Finally, Mr. de Silva submitted that this may be a case where theassembly had one common object, probably arson, at an early stage,and later had other common "objects. "He urged that if murder and rapewere common objects at any time, they became so at later_stages of theincident, and the juryTiad not been properly directed on this matter.But the learned Judge, on a suggestion by Crown Counsel, directed thejury that common objects may come in succession and need not neces-sarily exist together at the beginning. It is more likely, however, thatthe jury felt that this assembly showed by its behaviour that all thecommon objects specified in the indictment existed from the time itapproached Podiya’s compound.
There is one more matter which we should deal with, and that is thebearing which the certificate given by the learned trial Judge has on theseappeals. Mr. Pullenayagam referred us to R. v. Hopkins-Htisson 1 whichwas decided by five judges of the Court of Criminal Appeal in England.That was a case in which the trial Judge had said in terms that he wassurprised at the verdict of the jury, and would have preferred an acquittal.We need only quote the following passage from the judgment of LordGoddard, L.C.J. :
“ …. from a very early period in the history of this Court
it has been laid down, and has been laid down frequently since,' that thefact that the trial Judge was dissatisfied with the verdict, although it isa matter to be taken into account in this Court, must not be takenas a ground by itself for quashing the conviction. -If it were, it wouldmean that we should be substituting the opinion of the Judge for theopinion of the jury, and that is one of the things which this Court willnever do.
1 L1949) 34 Cr. App. R. 47.
492
De Zoysa v. The Public Service Commission
In just the same way it has been held from an equally early period inthe history of this Court that the fact that some members or all themembers of the Court think that they themselves would have returneda different verdict is again no ground for refusing to accept the verdictof the jury, which is the constitutional method of trial in this country.If there is evidence to go to the jury, and there has been no misdirec-tion, and it cannot be said that the verdict is one which a reasonable3ury could not arrive at, this Court will not set aside the verdict ofGuilty which has been found by the jury. ”
For these reasons we are unable to interfere with the majority verdictof the jury. The appeals are dismissed.
Appeals dismissed.