116-NLR-NLR-V-74-A.-PUNCHIBANDA-Appellant-and-THE-QUEEN-Respondent.pdf
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SIRI.MANE, J.—Punchibanda v. The Queen
[Court of Criminal Appeal]
1969 Present: Sirimane, J. (President), Samerawickrame, J., and
Weeramantry, J.
A. PUNCHIBANDA, Appellant, and THE QUEEN, RespondentC. C. A. 4-6 of 1969, with Applications 5-7S. O. 74/67—31. C. A nuradhapura, 15200
Charge of murder—Plea of grave and sudden provocation—Abuse unaccompaniedby any physical act—"Whether it can be sufficient provocation—Relevancyof social class of accused person—Liability on basis of common intention—-Burden of proof—Penal Code, s. 32.
Mere abuse unaccompanied by any physical act may bo sufficient provocationto reduce what would otherwise be an offence of murder to the offence of culpable-homicide not amounting to murder.
It is the duty of the Judgo to direct tho jury that in considering the questionof provocation thoy should consider whether tho provocation was grave to anaverage person from the same social class and background as tho accusedperson.
Beforo a person can be held vicariously responsible for tho criminal act ofanother under section 32 of the Penal Code, the prosecution must prove thathe shared a common intention to commit that particular act.
.A.PPEAL against three convictions at a trial before the Supreme Court,
G. E. Chilly, Q.C., with T. Parathalingam and G. E. Chilly (Jnr.), forthe 1st accused-appellant.
Colvin R. de Silva, with T. Parathaliwjam, 31. L. A. Refai, W. JustinPerera and (assigned) IF. G. Perera, for the 2nd and 3rd accused-appellants.
V. S. A. Pullenayegum, Senior Crown Counsel, with Priyanlha Perera,Crourn Counsel, for the Crown.
Cur. adv. vult.
March 19, 1969. Sirimane, J.—
The three appellants were convicted of the murder of one Pinhamv andsentenced to death. The only eye witness to the incident was ouc Ealna-yakc, who was married to the deceased’s daughter. According to hisevidence, he and his father-in-law, who was armed with a gun, weregoing in search of a head of cattle which they had lost when they met the
SIRI-MAXE, J.—Punchibanda v. The Queen
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three appellants. The 2nd and the 3rd appellants arc brothers, and the1st is married to their sister. Ratnayake goes on to say that an “ alter-cation ” ensued between the deceased and the 1st accused-appellant,which lasted about 10 minutes. In the course of this altercation,the 3rd accused-appellant is said to have snatched the gun which thedeceased was canying. The 1st accused-appellant then stabbed thedeceased several times, and after he had fallen, the 2nd accused-appellantis said to have struck liim with a club which he (the 2nd accused-appellant.)picked up at the scene. The medical evidence proved that there werenine stab wounds on the deceased, but there were no injuries consistentwith blows inflicted with a blunt weapon. The cross-examination ofRatnayake showed that the deceased’s cattle had been stolen almostdaily and at that time he had lost nearly 30 animals. He had armedhimself with a loaded gun, and proceeded nearly one and half miles andreached the appellants’ village where this incident took place. In thecourse of the altercation, the deceased had taunted the appellantsby saying that though they wore expensive shirts and bought cars—theywere nothing more than cattle thieves. On the evidence of Ratnayake,the question whether the appellants acted under grave and sudden provo-cation arose for consideration h}' the jury. Words alone can oftenoffer grave provocation to a villager, depending on the cir cumstances ofeach case. The learned Commissioner did not direct the jury that inconsidering this question they should consider whether the provocationwas grave to an average person from the same social class and backgroundas the appellants. He dealt with this question very shortly when hesaid,
“ If you think that there was grave and sudden provocation and itwas a result of that grave and sudden provocation that the 1st accusedstabbed, then gentlemen, the offence should be reduced from murderto culpable homicide not amounting to murder, i.e. if these peoplelost their self-control as a result of grave and sudden provocation. Itseems to me that there is not sufficient evidence to support a defence ofgrave and sudden provocation. That is an opinion that I am expressingand j'ou are not bound by that opinion. ”
Learned Crown-Counsel, relying on the decision in Lee Chun-Chucn v.The Queen argued that there was no case of provocation to go before thejury as provocation in law means something more than a provocativeincident. In that case the provocative incident deduciblo from theevidence of the appellant was that the deceased had thrown a stone whichhad struck the appellant on his leg and caused a slight injury. Thedeceased had been battered to deatli with a hammer. The facts here,in our view, are entirely different- The deceased was obviously angryover the loss of lu's cattle, and in that mood was engaged in an altercationwith the 1st appellant for about ten minutes. Anj-one with the slightestacquaintance with this t3rpe of altercation which takes place in ourvillages must know that the language used can be highty provocative to a
{1003) A. O. 220.
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SERKIAJCE, J.—Punchibanda v. The Queen
villager. Our Courts have repeatedly held that mere abuse unaccom-panied by any physical act may be sufficient provocation to reduce theoffence of murder to culpable homicide not amounting to murder (see e.g.-King v. Cooinaraswamy 1 and liegina v. JPiyasena z).
In the circumstances of this case, we consider the direction on provo-cation, in the passage of the summing-up referred to above, inadequate,and the non-direction may well have depri%rcd the 1st accused-appellantof being found guilty of the lesser offence of culpable homicidenot amounting to murder.
The 2nd and the 3rd accused-appellants had been convicted on thebasis that they shared a common intention with the 1st accused-appellant.
They were unarmed, and it was a sudden meeting. There was no-evidence to indicate that they knew that the 1st accused-appellantcarried a knife. Indeed, the large knife PI produced at the trial wasnot identified by Ratnayake as the weapon used, nor did the medicalevidence support such a suggestion. The Government Analyst found noblood-stains on it. So that, the evidence, did not establish any connectionbetween the knife PI and the offence. The evidence from the police-that they had taken it from the house of the 3rd accused-appellant’sfather-in-law must have caused some prejudice against that appellant,in the absence of a direction from the Commissioner regarding the real.nature of the evidence relating to Pi.'.
In regard to the snatcliing of the gun, the case went to the jury on•the footing that, that was the only act whic.i the 3rd accused-appellantdid. On this point, there was a serious discrepancy between the evidenceof Ratnaj'ake, who said that the first act in the altercation was the snatch-ing of the gun by the 3rd accused-appellant, and the deposition of thedeceased according to which the gun was taken from him only when hehad fallen down after the stabbing. The learned Commissioner did notdraw the attention of the jury to this matter until requested to do so byCounsel for the defence.
Ho then said:
“ When considering the evidence of any witness you should bo verycareful. In the evidence of Ratnayake ho says, as you will remember,that the gun was in the hand of the 3rd accused when Pinhamy wasstabbod, whoreas Pinhamy, in his statement to the police says ho -washaving tho gun arid ho foil down with the gun after three stabs. Youwill keep in ?nind the fact that these incidents have taken place veryquickly.”
Those words may very well have been construed to mean that thodiscrepancy was one which could quite easily be explained and, therefore,
not one worthy of consideration.
1 (1940) 41 N. L. It. 2S9.
■ * (1955) 57 N. L. It. 226.
SIKI.MAXE, J.—Punchibanda v. The Queen
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The prosecution then led evidence through the Doctor to show thatone IMudiyanse, a brother-in-law of the 3rd accused had sustained somegunshot wounds. They did notliing moro. Thero was no evidenceas to how, when and where Mudiyanse came by his injuries. When theprosecution places such evidence beforo the jury, they must also showexactly how that evidence becomes relevant in considering the chargewhich is being tried. As it stood, the evidence would only have confusedthe jury, and as tho deceased had said in liis dying deposition that aftertho gun was taken the 3rd accused-appellant fired it, tho jury may verywell have used this evidence, to attribute a murderous intention to the3rd accused-appellant. Tho learned Commissioner’s charge on thispoint would have tended to encourage that inference. On being requestedby Crown Counsel to refer to the injuries on Mudiyanse, ho said,
“ Gentlemen, it is not necessary in this case for the Crown to do oreven to show how Mudiyanse came by his injuries. This case is atrial of a charge of murder of Pinhamy and as such tho injuries onMudiyanse are not relevant except for the fact that (here uas the questionof the gun being snatched from Pinhamy's hand.”
Tho 2nd accused-appellant, as stated earlier, is alleged to have struckthe deceased at a later stage with a club, which ho picked up, in sucha way as to leave no injuries at all.
The evidence, in our view, falls short of establishing a commonmurderous intention shared by the appellants.
Learned Crown Counsel submitted that if the 2nd and the 3rd accused-appellants had formed a common intention with the 1st accused-appellantto merely assault the deceased, and if the 1st accused-appellant stabbedhim to death, then, even if the 2nd and tho 3rd accused-appellants had noknowledge that the 1st accused-appellant was armed, or that ho woulduso the knife to kill tho deceased, still, they (the 2nd and the 3rd accused-appellants) would bo guilty of murder. In other words, that undersection 32 of the Penal Code a person can bo foimd guilty of murderon the basis of common intention, oven if that person did not sharea murderous intention with tho person who actually committed tho act,if tho act was dono in furtherance of a common intention to commitsome other offence. No author^' was cited to us for this proposition.On tho contrary, our Courts have always held that a common murderousintention must bo shared beforo a porson can bo convicted of murderon an application of section 32. (seo o.g. King v. Assappu 1.)
In our view, beforo a person can be held vicariously responsible for thecriminal act of another under soction 32, tho prosecution must provethat such a person shared a common intention to commit that particularact.
(t04S) 50 N. L. R. 324.
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Piyasena v. The Queen
Wo are of the view that the conviction of tho 2nd and the 3rd accusod-Appellants cannot bo supported on tho evidence.
Counsol for tho 1st accusod-appollant also submitted that tho questionsof “sudden fight ” and “ exceeding tho right of private defenco ” alsoArose, and that the jury should have been directed on those points.
But as wo are of tho view that tho offenco of the 1st accused-appellantshould bo reduced on tho ground of grave and sudden provocation,it is unnecessary to deal with those matters.
For these reasons, wo set aside tho conviction and sentence of the1st accusod-appollant and substituted a conviction for culpable homicidonot amounting to murder, and quashed the conviction and sentence of tho2nd accused-appellant and tho 3rd accused-appellant.
Conviction of 1st accused altered.Convictions of 2nd and 3rd accused set aside.