085-NLR-NLR-V-57-REGINA-v.-P.M.-SOMAPALA-et-al.pdf
[In the Couut of Ckiminai, A fee at.]
1956 Present: Basnayake, A.C.J. (President), Gratiaen, J., and
Fernando, J.
REGINA v. P. M. SCttlAPALA el al.
ArrEALS G6-GS, with Applications 10G-I0S, op 1955-S. C. 2S—M. C. WalasmuUa, 12,723
jvTens rea—Joint indictment—Several accuscd—Common intention—Guilty knowledge—Misdirection—Penal Code-, s-s. 32, 1-iC, 201, 317.
By Section 32 of tho Penal Code—
“ When a criminal act is done by several persons in furtherance of tliocommon intention of nil, each of such persons is liable for that act in thosame manner as if it were done by him alone. ”•
Held (by the majority of tho Court), that the Section has only a limited scopoin relation to offences in which guilty knowledge is an element. It does notconstructively impute to ono socius criminis the guilty knowledge of another.In order to decide whether an accused person, to whom liability is imputed foranother person’s criminal acts, has committed an offence involving guiltyknowledge, tho test is whether such guilty knowledgo has been establishedagainst him individually by tho evidence.
-/^-PPEALS, with applications for leave to appeal, against certain con-victions in a trial before the Supreme Court.
Colvin It. dc Silva, with M. L. dc Silva, T. Vclupilkii and S. M. II. dcSilva, for the accused-appellants.
V. S. A. Pullenayeguni, Crown Counsel, for the Attorney-General.
Cur. adv. mill.
February 13, 1956. Gratia en, J.—'''"’ *"' v
, There .were three appellants in. this case, the second and third beingbrothers-in-law of the first. . They were jointly indicted for the murderof V. P. Sirisena who died at the Civil Hospital, Galle, on August 13th,2954, in consequence of injuries inflicted on him two days previously inthe 2nd appellant’s house in Kirama. The appellants were acquitted ofmurder, but the jury unanimously found each of them guilty of culpablehomicide ppt amounting to murder.-
The appeal of the 1st appellant was not pressed before us and his con-viction was accordingly affirmed. At the conclusion of the argument,however, the Court quashed the convictions of the other appellants forculpable homicide not amounting to murder and substituted in each casea conviction for grievous hurt punishable under S. 317 of the Penal Code.
The case for the Crown was largely based on certain statements (admis-sible under S. 32 of the Evidence Ordinance) which the deceased personhad made to reliable witnesses as to the circumstances of the transactionwhich resulted in his death. His version was corroborated in part by thewitness Charles who was present during the earlier stages of the incident.It is safe to assume that the jury was perfectly satisfied that, when thedeceased and Charles were passing the 2nd appellant’s house at aboutS.30 p.m. on the night in question, all three appellants waylaid thedeceased and dragged him forcibly into the house. Charles escaped, andwas unable to say what took place thereafter behind the closed doors of the2nd appellant’s house, but, according to the dying declaration previouslymentioned, all the appellants assaulted the deceased very severely withhands and with clubs.
The motive suggested for this high-handed conduct was thatenmity had arisen between the parties owing to friction engenderedduring a recent election campaign ; there had also been bad* feeling inconnection with a trivial incident which took place three w eeks previouslyin a neighbour’s boutique.
After the assault, the appellants ran away, leaving their victim behindin the empty house. In the meantime Charles had spread the alarm inthe locality and a crowd of neighbours collected outside the house, butnone of them had the courage to enter it. At about 11.30 p.m.a Police Inspector who happened to be passing in a jeep arranged for theinjured man to be conveyed to WalasmulJa for medical attention. Assurgical treatment was considered to be necessary, the man was taken tothe Civil Hospital at Galle on August 12th, and a surgeon operated on himfor compound fractures in both legs. On the following morning thepatient died..-;a-;- …- •
The nature of the injuries described by Hr. TJdalagama who carried outthe post-mortem examination made it clear that this unfortunate man hadbeen severely “ beaten up ”. Several contusions had been caused byblows with fists ; he had also sustained, as a result of blow's inflicted withone or more clubs, two. simple fractures in his forearms and a comminutedcompound fracture in the shin-bone of each leg. In addition, Pr. Udalargama found an “ angular patch of abrasion ’’ on the chest 4J inchestlong
and l-£ inches broad which had not apparently been considered suflieientlyserious to call for any special investigation at tiie Hospital with aview to the detection of possible complications. The autopsy revealed,however, that, in consequence of the blow which caused this particularinjury, the 7th rib had been fractured in such a manner as to piercethe right lung. According to Dr. Udalagnma, it was this undetectedcomplication that proved fatal. He pronounced that shock andhaemorrhage from the injury to the lung was “the primary cause ofdeath ” to which the other injuries were contributory factors*
The Crown offered no proof that any jiarticular injury had been inflictedbv any particular appellant, so that, at the time when the evidence forthe prosecution was closed, the Crown had to rely on the principle ofvicarious liability laid down in S. 32 of the Penal Code.
The 1st appellant alone gave evidence in support of his own defenceand that of his eo-accuscd. He accepted sole responsibility for all theinjuries inflicted on the deceased, and stated that the other appellantswere not present at all at the time of the assault. At the same time hegave a version which, if true, would have entitled him eit her to an acquittalon the ground that he had acted justifiably in self-defence or at least to averdict of culpable homicide not amounting to murder on the ground that-he had exceeded that right. It is safe to assume, however, that the juryrejected this version of the circumstances leading to the assault and also ofthe alibi relied on by the 2nd and 3rd appellants.
The learned Judge gave adequate directions to the jury as to how the .provisions of S. 32 of the Penal Code ought to be applied in relation to thecharge of murder. Our decision must therefore be based on the assump-tion that, in acquitting the appellants of murder, the jury were not satisfiedthat any appellant, by causing one or more injuries which in fact resultedin the mail's death, had acted in furtherance of a murderous intention ”shared bv all of them. It is in the light of these findings of fact that wemust examine the verdicts convicting the 2nd and 3rd appellants of thelesser offence of culpable homicide not amounting to murder on the basisof guilty knowledge.
Having pointed out to the jury that there was no evidence to provethat either the 2nd or the 3rd appellant- directly caused any injury whic-hresulted in the victim’s death, the learned Judge corrcct-ly explained thata conviction would only be justified by a proper application of the provi-sions of S. 32 to the facts as found by the jury. Up to this point tliesumming up was free from error. Unfortunately there followed, in theopinion of the majority of the Court, misdirections in law as to the properlimits within which S. 32 could be invoked as the foundation of a.verdictbased on guilty knowledge. The reasons for the decision of the majorityof the Court must now be explained.
There were several disconnected passages in which the learned Judgepurported to explain the scope of S. 32 in relation to the lesser offence ofculpable homicide not. amounting t.o murder—that is to say, if the jurywere unable- to conclude that the victim’s death had been caused by actscommitted in furtherance of a common intention to produce that result.
Each direction was substantially to the same effect. Having correctlyexplained the elements of this lesser offence as distinct from the offence ofmurder, flic learned Judge said :
“ If you find that Jhe offence actually committed l>y the assailant isculpable homicide not amounting to murder, and if you find that thesethree accused were actuated by a common intention to commit that offence,then you cannot find them guilty of murder but you can find themguilty of culpable homicide not amounting to murder. ”
These directions involve two distinct assumptions. The first, wascalculated to mislead the jury into thinking that in certain situations
.'52 imputes vicarious responsibility to a socius criminis not only for the“ acts ” but also for the “ guilty knowledge ” of his confederates. Thesecond proposition was also incorrect. Where the death of a victimresults from an act or scries of acts committed by one or more confederatesin pui-suancc of a common intent ion to do a criminal act of a kind which isknown by them collectively to be likely to cause death, the proper conclusionis that all arc guilty of murder as defined in the second part of S. 20-1 ofthe Penal Code.
8. 32 of the Penal Code has only a limited scope in relation to offencesin which guilty knowledge is an element. The section which is the sameas S. 34 of the Indian Code reads :
“ When a criminal act is done by several persons in furtherance ofthe common intention of all, each of such persons is liable for that actin the same manner as if it were done by him alone. ”
These words have been authoritatively explained by Lord Sumner inBarendra Kumar Ghosh’s case x. The “ act ” includes “ the wholeaction covered by the unity of criminal behaviour which results in some-thing for which an individual would be punished if it were all done by himalone ”, and liability is imputed to each individual socius criminis notmerely for his own acts but for the totality of the acts committed byhis confederates in furtherance of their common intention. Vicarious orcollective responsibility attaches in such a situation for the result {e.g.,death) of their united action. But S. 32 certainly does not, in addition,constructively impute to one socius criminis the guilty knowledge ofanother. In order to decide whether an accused person, to whom liabilityis imputed for another person’s criminal acts has committed an offenceinvolving guilty knowledge, the test is whether such guilty knowledgehas been established against him individually by the evidence. See alsoStale v. Saidu Khan 2. xX
(1925) A. I. R. (P. G.) 1.
(1951) A. I. R. All. 21
The application of S. 32 to the facts of a given case does not necessarilylead to the conclusion that each confederate is guilty of the same offence.Let it be supposed that A and B agree to assault C with hands. A strikesthe first blow in furtherance of their common intention, and causes 0 aninjury which under normal circumstances would constitute simple hurt(being clearly insufficient in the ordinary course of nature to cause the
death of a person in a sound state of health). But, unknown to A, 0 waslabouring under such a disease that even a mild blow was sufficient tocause the death of C who dies in consequence, of the blow. B, on the otherhand, was perfectly aware of C's disease and fidly realised that even amild blow of the kind inflicted by A in furtherance of their common inten-tion would have been sufficient to cause C's death. In such a situation,A who administered the blow is guilty only of simple hurt, but B, who isvicariously liable for A’s act, is guilty of murder. If, alternatively, Bknew that there was only a bare possibility of death resulting from theblow inflicted by A, he has committed the offence of culpable homicidenot amounting to murder based on his guilty knowledge. But neitherB’s murderous intention in the first illustration nor his guilty knowledgein the second could be imputed constructively to A.
iS. 32 does not go counter to the principle of the criminal law of thiscountry that as a general rule the basis of a man’s guilt is his own mensrca. One (and perhaps the only) exception to this rule is found in S. 146whereby a member of an unlawful assembly is declared to be vicariouslyliable for an offence (committed by another) which lie knew was “ likelyto be committed ” in the prosecution of their common object. But S. 146does not touch the present case.
The Penal Code has not adopted the English common-law doctrine of
constructive malice ”, as explained in R. v. Beard 1 and R. v. Jar main 2,whereby a man who inadvertently kills another in the commission of afelony by violent means is guilty of murder. Nor does it recognise the.rule of vicarious responsibillt3r for actual or “ constructive ” malice. See11. v. Ridley 3. In that case, a principal of the second degree to an offenceof burglary was held to be guilty of murder because his confederate,by killing someone in furtherance of their common design to commit theburglary by violent means, had produced a result which neither of themintended.
Under our law, the only acceptable basis for a verdict convicting anyparticular appellant of culpable homicide not amounting to murder in thefacts of the present case would have been a finding that he personallyknew that death, though not intended, was likely to result from the com-bined assault. In the absence of a proper direction on tins crucial issue,the majority of us were cpiite unable to conclude that the jury hadaddressed their minds to the question whether the requisite guilty know-ledge (actual and not constructive) was brought home to either the 2ndor the 3rd appellant individually. Accordingly the verdicts against the2nd and 3rd appellants of culpable homicide not amounting to murdercoukl not be supported.
(1920) A. C. 479.
(1930) 22 C. .4. Ji. J 43.
■ (194G) K. B. 71.
On the other hand, it was implicit in the verdicts recorded against the2nd and 3rd appellants that, in the opinion of the jury, both of them didat least share with the 1st appellant an intention to assault the deceasedseverely without legal justification. S. 32 of the Penal Code thereforeimputes vicarious responsibility to each of them for the entire scries ofcriminal aels involved in the combined assault. The cumulative injuries
described by Dr. Udalagaina were clearly of such a character as to disclosethe offence of grievous hurt (of which guilty knowledge is not an element).As some of these injuries had been inflicted with dangerous weapons, theaggravated offence of grievous hurt punishable under S. 317 was estab-lished. The Court accordingly substituted convictions for this offenceagainst the 2nd and 3rd appellants, and passed sentence on themaccordingly.•
Conviction of Jst appellant affirmed.
Convictions of 2ml and 3rd appellants altered.