Sri Lanka Law Reports
 3 Sri L.R
RAJU AND OTHERS
COURT OF APPEALFERNANDO, J.
C. KANDY 1719/96NOVEMBER 7, 25, 2002
Penal Code – S. 32 and296 – Common Intention – Murder- Legal Principles- Common Intention to be shared – Directions to the Jury
Common murderous intention must be shared before a person can beconvicted of murder on the application of section 32.
The Trial Judge has failed to consider the case of each accused sepa-rately – failed to consider as to whether all the accused were actuatedby common murderous intention – failed to refer to the required mentalelement re. the Murderous Intention to constitute the offence of Murder.
APPEAL from the High Court of Kandy.
Cases referred to:
K vAssappu- 50 NLR 324
2. Punchi Banda v The Queen – 74 NLR 494M.K. Jayakumar for accused-appellantP.P. Surasena, S.S.C., for Attorney-General.
Cur adv vult
1st, 2nd, 3rd and 4th accused in this case were indicted for oihaving committed the murder of one Sellamboram Sundararaja anoffence punishable under section 296 of the Penal Code.
QARaju and others v Attorney-General (Edirisuriya, J)117
The accused having pleaded not guilty to the charge weretried by the High Court Judge of Kandy without a Jury. After trialthe 1st accused was acquitted. The 2nd, 3rd, and the 4th accusedwere found guilty of murder and sentenced to death by the HighCourt Judge.
The prosecution witness Perumal Sundaralingam gave evi-dence to the following effect: On 18.07.1990 around 7.30 p.m.whilst he was going for work he heard the 2nd accused orderingthe deceased to come out of the house. He said the 2nd accusedthereafter broke open the door of the line room of the deceasedand dragged him out. He had seen the incident with the help of thelight burning on top of the Kovil. According to this witness he saw abig crowd of people assembled in front of the deceased’s house.It appears that this witness has identified only the 2nd accused. Hesaid when the deceased was being dragged out of the house heheard a sound of “SJS* <?§•>” He also heard the deceased shouting“®d£> sold coate) @oO said cDzsfe) ” He had seen something in the sec-ond accused's hands. He could not say whether it was a pipe ora club.
The second witness Gopalkrishnan giving evidence said thatwhilst he was going to work with the first witness he heard a loudnoise. He ran towards the place where the incident took place. Heheard Ramo the second accused telling Sundararaj that he wantedto kill him. The second accused dragged the deceased out of theline room and assaulted him. He said the accused had pipes andclubs in their hands. According to hirri four persons had attackedthe deceased. He had seen this incident from a distance of about15-30 feet. The light burning in the Kovil helped him to see the inci-dent. He said he saw the fourth accused also at the scene of theincident. According to him the fourth accused had a knife in hishands. He said the first accused did not have anything in his handsbut that he held the deceased when the 3rc* accused attacked thedeceased on the head with a pipe.
He sent the first witness Sundaralingam to inform the elderbrother of the deceased.
The doctor who conducted the Post-mortem Examination onthe deceased said he observed 10 external injuries on the body ofthe deceased. He said that there were 8 contusions.
Sri Lanka Law Reports
[2003) 3 Sri L.R
It is his evidence that injury no. 3 had penetrated into the brainand caused a contusion in the brain. This could have been causedwith a blunt weapon like a club. He said death was due to theinjuries inflicted on the brain. Therefore it appears that injury No. 3was necessarily fatal. The prosecution witness SubramaniumTangavelu giving evidence said that on 18.07.1990 when he was athome one Sundaralingam informed him that his younger brotherwas attacked. He went to line No. 4 and found Sundaraja. lying inbed with injuries.50
He further said he became aware of the relationship betweenthe deceased and him only after the death of Sundaraja. It is hisevidence that when he inquired from the deceased he had told himthat Raju, Ramu and Balakrishnan attacked him. He identified themas the first, second and the fourth accused respectively. There is noevidence to show that the 1st accused participated in the attack onthe deceased other than the dying declaration of the deceased,which Tangavelu spoke to. The learned trial judge has having con-sidered the fact that there was no corroboration of the 1staccused’s participation acquitted him. The prosecution witness 60Perumal Sunderalingam has identified only the 2nd accused. It hasbeen brought to the notice of this Court that the 2nd accused hasexpired since his conviction whilst in prison.
According to the dying declaration of the deceased the fourthaccused also had attacked him.. The prosecution witnessGopalakrishnan has said that the 3rd accused attacked thedeceased on the head with a pipe whilst the first accused held thedeceased. The second accused had dragged the deceased out ofhis house. He said the fourth accused had a knife in his panels. Themedical evidence does not disclose that the deceased had any cut 70injuries on his body. Therefore I am of the view that it is unsafe tofind the 4th accused guilty of the charges framed against him.Accordingly I acquit the fourth accused.
The learned counsel for the accused-appellant submitted thatthe learned trial judge has failed to discuss the legal concept ofcommon intention even though the indictment has been preferredon the basis that all the accused were actuated by a common inten-tion in committing the crime.
Raju and others v Attorney-General (Edirisuriya, J)
It seems to me that the learned trial judge has failed to refer tothe required mental element i.e. the murderous intention to consti- sotute the offence of murder.
In the case of King v Assappu <1) Dias, J. sitting withNagalingam, J. and Gratiaen, J. held that in a case where the ques-tion of common intention arises the Jury must be directed that –
The case of each accused must be considered separately.
The accused must have been actuated by a common intentionwith the doer of the act at the time the offence was committed.
Common intention must not be confused with same or simi-lar intention entertained independently of each other.
There must be evidence either direct or circumstantial of pre- 90arrangement or some other evidence of common intention.
The mere fact of the presence of the accused at the time ofthe offence is not necessarily evidence of common intention;.
Justice Sirimanne in the case of Punchi Banda v theQueed2) refers to the legal principle laid down in King v Assappu(supra) that a common murderous intention must be shared beforea person can be convicted of murder on an application of section32 of the Penal Code.
The learned trial judge has failed to consider the case ofeach accused separately. He has failed to consider as to whether 100all the accused were actuated by common murderous intention.There is nothing in the judgement to suggest whether the learnedtrial Judge looked for evidence of pre arrangement or pre-planfrom which the inferences of common intention could be inferred asa necessary and inescapable inference.
The accused in this case was tried as far back as 1996. Inthe circumstances I set aside the conviction, against the 3r<^accused and find him guilty of the lesser offence of culpable homi-cide not amounting to murder on the ground of knowledge and sen-tence him to ten years’ rigorous imprisonment.11°
FERNANDO, J. – I agree.