014-SLLR-SLLR-2010-V-2-KUMARA-DE-SILVA-AND-2-OTHERS-vs.-ATTORNEY-GENERAL.pdf

The final contention of the Appellants now left to beexamined is the argument of paramount importance as to thelack of sufficient material to draw an inescapable conclusionthat the Accused were acting in furtherance of a commonintention or common murderous intention. I am inclined toagree with this proposition for the following reasons.
As evidenced in her judgment at page*266 of the recordthe learned trial Judge has apparently based her conclusionas to the formation of common intention on purely conjec-
ture as follows.
186
Sri Lanka Law Reports
[2010] 2 SRILR.
inference from which there is no escape. Eg: Wijesingheand 03 others vs. State}12*
The learned tried Judge has edso failed to consider thecase against each accused separately before attach-ing vicarious liability under the principle of commonintention Eg: Wijithasiri and another vs. The Republic ofSri Lanka113'
The question of similar intention as opposed to commonintention has not been considered by the learned trialJudge.
In the absence of evidence of pre-concert or a pre-arranged plan, proof of a common motive coupled withcommon subsequent conduct by itself is not sufficientto draw a necessary inference of common intention fromwhich there is no escape.
The evidence led in this case has established that thedeceased had a quarrel with the mistress of the 3rd Accusedaround 10 a.m. on the fateful day of 11.07.96. Priyadarshi-ni under cross-examination (page 93 of the record) hadeven admitted that the deceased had assaulted and cut themistress of the 3rd Accused. The evidence led in the case hadalso established that the 1st Accused and 2nd Accused werethe uncle and brother of the mistress Sudunona. Thereforethere arises a motive for the 03 Accused persons to attackthe deceased. In Sumanasena vs. Attorney General141 it hasbeen held that once a cogent and intelligible motive has beenestablished, that fact considerably advances and strengthensthe prosecution case. The evidence led has also establishedthat soon after the attack on the deceased, the 3rd and 1stAccused together in a motor-cycle and the 2nd accused in apush cycle rode towards Kalupe. By the time they left the
CA
Kumara de Silva and 2 others vs. Attorney General
(Sarath de Abrew. J.)
187
scene, the accused seemingly appear to have developed aconcert by their subsequent conduct in leaving the scenetogether. However this does not necessarily lead to theinescapable conclusion that they attacked the deceasedsharing a common intention for the following reasons.
There is no evidence of arrival together or simultaneousparticipating presence of all 03 Accused at thecommencement of the attack. According to Priyadarshinithe 1st Accused arrived from a different direction afterthe 3rd Accused stabbed. Similarly the 2nd Accused hadarrived after the 1st Accused stabbed.
There is no evidence of any words uttered or any otherovert act to indicate they were sharing a commonmurderous intention.
Evidence of Nandani Mendis discloses that two unknownassailiants chased after and attacked the deceased. Thereis no evidence to establish that they were the 1st and 2ndAccused, acting in common concert.
There is no evidence to exclude the possibility that the03 Accused persons arrived at the scene almost simulta-neously independent of each other and commenced theattack on the deceased harbouring a similar intention.
Due to the aforesaid reasons I am inclined to award thebenefit to the doubt to the accused and detach them fromthe vicarious liability attached to the principle of commonintention.
Therefore it is now left to examine the liability andcomplicity of each accused based on the evidence withregard to their individual acts. Evidence of Priyandarshinihas established beyond reasonable doubt that all 03
188
Sri Lanka Law Reports
[2010] 2 SRIL.R.
Accused stabbed the deceased. Evidence of motive too has beenestablished under section 8(1) of the Evidence Ordinance.Subsequent conduct by surrendering at the police sta-tion with the P4 knife in his possession has been provedagainst the 1st Accused. Recovery of P3 knife on a EvidenceOrdinance Section 27 statement has been proved againstthe 2nd Accused. Although there is no conclusive proof thatP3 and P4 were used in the attack, medical evidence hasconfirmed that the injuries inflicted could have beencaused with either P3 or P4. Therefore the prosecution hasestablished beyond doubt the complicity of each of theaccused in the death of the deceased.
The medical evidence reveals 09 stab wounds out ofwhich injury No. 03 (back of the chest), injuiy no. 07 (lowerabdomen) and injury no. 08 (lower abdomen just above thegenital area) were likely to cause the death of the deceased.Page 165 of the record reveals that only a combination ofinjuries number 03, 07 and 08 could have constituted anantecedent probability of death sufficient in the ordinarycourse of events to cause death. The fact remains that therewas not a single necessarily fatal injury. The facts of thiscase could be distinguished from that of King vs. Amolis(Supra), where only one fatal blow was dealt and there was noevidence as to which of the accused did it.
In apportioning guilt according to their individual acts itis necessary to revert back to Priyadarshini’s evidence.
(a) Priyadrshini (at page 96 of the Record) has testifiedthat the 3rd Accused dealt a blow on the shoulder of thedeceased. The only stab wound on the shoulder is injuryno. 02 which was 3.5 centimeters deep cutting throughthe flesh and muscle.
CA
Kumara de Silva and 2 others vs. Attorney General
(Sarath de Abrew. J.)
189
According to Priyadarshini, the I** Accused stabbed onthe back of the chest, which could be injury no. 03 or 04or both. Injury no: 3 penetrating the lungs constituted apossible threat to life.
According to Priyadarshini, the 2nd Accused stabbed onthe lower abdomen, which could be injury no. 07 or 08 orboth. Both injuries no: 7 and 8 separately constituted alikelihood of causing death.
In all these the weapon used was a dangerous weaponand the location of the injury and the force of the blow wassuch that it is sufficient to impute knowledge on the part ofthe accused that bodies injury caused thereby could possiblylead to death.
In order to establish a charge of murder under section294(3) of the Penal Code there must be material which wouldenable the Judge to hold that in the ordinary course of naturethe injury or injuries caused by a particular accused weresufficient to cause death as opposed to a mere likelihood ofcausing death. Eg: Attorney General vs. Somadasa ,,S|.
In this case no single injury caused by any single accusedhas created an antecedent probability of death. Accordingto medical evidence only a combination of injuries no. 3, 7and 8 inflicted by different accused persons has resulted inprobability of death resulting in the normal course of eventsdue to shock and heamorrhage. Therefore the charge ofmurder should fail, as against all 03 accused persons inrespect of their individual acts.
As to the mens rea of the accused at the time of theassault there is no conclusive proof whether any one or moreof the accused were harbouring an intention to cause thedeath of the deceased. If they so intended they could haveeasily caused a necessarily fatal injury to a more vulnerable
190
Sri Lanka Law Reports
[2010] 2 SRIL.R.
part of the body such at the neck or the heart. Resolving thedoubt in favour of the Accused I hold that each of the accusedcommitted the offence and inflicted the respective injuries onthe deceased with the knowledge that he is likely by such actto cause death. Therefore the more appropriate finding is aconviction for the offence of culpable homicide not amount-ing to murder on the basis of knowledge, punishable undersection 297 of the Penal code.
Therefore, having regard to all the circumstances ofthis case the following orders are made in respect of all 03Accused Appellants.
We set aside the conviction and sentence for murder ofthe learned trial Judge of Balapitiya dated 09.01.2003and instead substitute a conviction for calpable homi-cide not amounting to murder on the basis of knowledgepunishable under Section 297 of the Penal Code.
We impose a sentence of 07 years R. I on each accusedand a fine of Rs. 25,000/= each, in default of which weorder a further term of imprisonment for 05 years. Thelearned High court Judge of Balapitiya is further directedto allow a period of 03 months for each of the accused topay the fine.
Having regard to the fact that the accused have noprevious convictions and are incarcerated from the dateof the conviction, we further make order that the 07 yearseach prison term on each accused should operate from09.01.2003, namely the date of the conviction.
The Registrar is directed to send a copy of this judgmentto the High Court of Balapitiya. Accordingly, Appeals arepartly allowed.
IMAM, J. -1 agree.
appeals partly allowed