S. PARANDAMAN and 4 others, Appellants and T. M. D. WIJESINGHE (S. I. Police),

017-NLR-NLR-V-79-1-S.-PARANDAMAN-and-4-others-Appellants-and-T.-M.-D.-WIJESINGHE-S.-I.-Police.pdf


Parandaman vs. Wijeringhe
121
Present: Walgampaya, J. and Vythialingam, J.
S. PARANDAMAN and 4 others, Appellants
andt '
T. M. D. WIJESINGHE (S. I. Police), Respondent
S. C. 33-37/70—M. C. Hambantota, 60102
Penal _ Code, sections 32, 35, 38—Joint criminal liability—Commonintention—Applicability of s. 32 to offences other than those underthe Penal Code—Effect of the expression “ criminal act ”—Faunaand Flora Protection Ordinance {Cap. 469), as amended by ActsNos. 44 of 1964 and 1 of 1970, section 59.
Section 32 of the Penal Code reads as follows : —
“ When a criminal act is done by several persons in furtheranceof the common intention of all, each of such persons is liablefor that act in the same manner as if it were done by himalone. ”
The five accused-appellants were charged with killing deer in agame sanctuary in breach of the relevant provisions of the Faunaand Flora Protection Ordinance. The evidence proved (1) thatthe appellants with others had gone out on a shooting expedition,(2) that one or more of them had fired shots and (3) that they wereapprehended shortly after the shots were heard while bringing outfrom the jungle two freshly killed deer.
Held : (1) That the principle of joint criminal liability set out inthe section is applicable even in a case where persons are chargedwith the commission of an offence other than an offence under thePenal Code. The expression “ criminal act ” in section 32 applies toall criminal acts whether made punishable by the Penal Code orany other law.
(2) That in view of section 32 of the Penal Code, the appellantswere all guilty of killing deer irrespective of whether it was anyone or more of them who fired the shots which killed the deer.
Cases referred to :
Attorney-General vs. Munasinghe, 70 N.L.R. 24Weerasinghe vs. Kathirgamathamby, 60 N.L.R. 87Mahabood et al vs. Food and Price Control Inspector, 72N.L.R. 116
Francis vs. Joseph, 73 N.L.R. 270
Perera vs. Munaweera, 56 N.L.R. 433
Wecrakoon vs. Ranhamy, 23 N.L.R. 542
Munasinghe vs. Perera, 74 N.L.R. 542
Barendra Kumar Gosh vs. Emperor, 1925 A.I.R. (P.C.) 1
Queen vs. Mahatun, 61 N.L.R. 540
^^PPEAL from a judgment of the Magistrate’s Court,Hambantota.
N. Satyendra, with P. Suntheralingam, for the accused-appellants.
Tissa Bandaranayake, Senior State Counsel, for thecomplainant-respondent.
Cur. adv. vult.
1*—X 40606 (70/03)
122
VYTBXALINGAM, J.—Parandaman vs. Wijesinghe
June 6, 1974. .Vythialhstgam, J.—
The first and second accused who at the times material tothis action were police constables attached to the Kataragamapolice station and the other three accused all of Kataragamawere charged with killing deer in the Kataragama GameSanctuary (count 11 and with assaulting two game wardens withclubs (counts 4 and 5). The first and second accused were inaddition, charged with falsely charging two game wardens withunlawful possession of flesh of deer (counts 6 and 7). There weretwo other charges (counts 2 and 3) which were withdrawn atthe commencement of the trial as the sanction of theAttorney-General had not been obtained.
After trial the learned Magistrate found all the accused guiltyof the respective charges against them and sentenced the first andsecond accused to various terms of imprisonment which wereto run consecutively and the third to the fifth accused to a fineof Rs. 100 each on each of the counts 1, 4 and 5. All the accusedhave appealed against their convictions and sentences.
The case for the prosecution which the learned Magistrate hasaccepted is that all these five accused along with two others wentto the watch hut of the game wardens at Kataragama in a van.This place is about nine miles away from Kataragama and thereis a road leading up to it from Kataragama. On eitherside there is a thick elephant-infested jungle and it is unusual forpeople or vehicles to go along this road at night. About 200yards away from Kataragama on this road there is the quartersof the game warden M. K. P. Karunaratne, and a hut for thegame guard and two watchers at Kataragama. At the otherend at Katagamuwa also there is a hut with one game guardKirineris and two game watchers Jinadasa and D. B. Gunatilake.
At this hut Kirineris is the only person provided with anofficial gun. On the morning of 13.9.1968 Kirineris informedKarunaratne that he wanted to take treatment in the hospitalfor some throat trouble and left at about 9 a.m. He returned atabout 2 p.m. and stayed with Karunaratne at Kataragama. Thatnight at about 10.30 p.m. Karunaratne observed a vehicle movingtowards Katagamuwa with dim lights, and he immediatelysuspected that people were going out shooting and he along withKirineris and two others waited in ambush about 2i milesaway from his quarters.
At about 11.40 p.m. these five accused and two others had gonein a van to the hut at Katagamuwa. The first accused was inuniform while the 2nd accused was not. They said that they had
WTKI AT.TKCAM. J.—Parandaman vs. Wijesinghe
123
come on duty and the first accused signed the patrol book whichwas in the hut and they had tea and left. There can be littledoubt that this was the vechicle which was seen by Karunaratneas it is a lonely stretch of jungle road and Vehicles seldom if notnever used it.
Shortly thereafter Gunatileke and Jinadasa heard the reportof a gun, from the direction of Kataragama. He made a note inhis note book marked X and proceeded along with Jinadasa inthe direction from which the report had come. About a mileaway they saw the van halted and heard the sound of threemore shots as they approached the van. These shots came frominside the sanctuary and close to this spot there was a waterhole.There was no one near the van and they hid in the jungle andwatched.
Then they saw the flash of a torch from the directionof the sanctuary and they saw four persons carrying twocarcases of deer and putting them in the van. There were othersalso and the 1st accused and 5th accused had guns. They thenwent up and Gunatilake told the first accused that they haddone an illegal thing and wanted them to make statements, butthey refused to make statements and said that the game watcherswere the people who killed the deer. Then the 4th accusedstruck Gunatilake with a club and thereafter both of them wereassaulted and bundled into the van and taken towardsKataragama.
On the way Karunaratne tried to stop the van but the van didnot stop and drove on. From inside the van Gunatilake shoutedout “ Sir, I am Katagamuwa Gunatilake, come quickly. ” Thefirst and second accused shouted out that they were the policeand proceeded. Gunatilake threw his note book out in thedirection of Karunaratne. The two game watchers were takento the police station, kept overnight, paraded in the streets ofKataragama on the following morning and eventually producedin Courts on the B report P7 in which they were accused ofunlawful possession of deer. They were eventually bailed out.
In the meantime Karunaratne who followed the van to thepolice station and met Gunatilake and Jinadasa who told themwhat happened. Gunatilake also told him about the note book X.He recorded their statements and also made a statement to thepolice. Having appraised himself of the turn of eventsKarunaratne left immediately by the 4.15 a.m. bus for Colomboand informed the Head of Department. Thereafter the Inspector-General of Police was informed and fresh inquiries were insti-tuted by the Superintendent of Police as a result of which thespcharges were preferred against the accused.
124
VYTHCALIN’GAM:, J.—Parandaman os. Wijesinghe
The only matter canvassed in appeal on the facts was thatin view of the unsatisfactory nature of the evidence in regardto the making of the notes XI in the note book X by Gunatilakeand more particularly in the manner and belatedness of itsdiscovery, the learned Magistrate should not have accepted thisnote as strongly corroborating the version of the prosecution,particularly in view of the fact that the learned Magistrate found“that there were certain inconsistencies in the evidence ofGunatilake and Jinadasa about the incidents that took placenear the van when they were set upon by the accused. ”
The note book was thrown out of the van at about 2 a.m. onthe 14th and it was found only on the afternoon of the 17th.Karunaratne to whom Guatilake had said that he had thrown itout secretly as he did not want the police to know about it, spentabout one hour at the police station and left for Colombo at 4.15a.m. He returned only late in the evening of the 16th andattended an inquiry on the morning of the 17th. He could not,therefore, have gone in search of it prior to the afternoon of the17th. Gunatilake was released on bail on the 15th but in hisstatement to the Superintendent of Police he had stated thatthe note book was with Karunaratne. Having told Karunaratnethat he had thrown the book out it was natural for him to haveassumed that Karunaratne would have recovered it, and thereforehe would not have gone in search of it. The delay is thereforesatisfactorily explained.
There were also some alterations in the notes in regard to thenumber of the van and Gunatilake said that he made these alter-ations as he made the notes. He wrote the notes after the vanhad left and after he had heard the report of the gun. It is notunlikely that he would have made a mistake in trying to re-member the number and then corrected it. Premadasi a policeconstable said that Gunatilake was dressed in a T shirt when hewas at the police station and it was suggested that Gunatilakecould not have carried his note book at that time as he was notwearing his tunic. But Premadasa made no note of this and wasspeaking from memory and the learned Magistrate consideredthis evidence and chose not to act on it.
The learned Magistrate very carefully considered these and theother matters and accepted the evidence of the prosecution wit-nesses. He has had the great advantage of hearing and seeingthe witnesses and there is nothing to show that he has misread ormisapprehended the evidence or formed impressions of the de-meanour of the witnesses which are unwarranted by the facts.Where the evidence as a whole can reasonably be regarded asjustifying the conclusion arrived at the trial and specially where
VYTHIAJUNGAM, J.—Parandaman vs. Wijesinghe
125
that conclusion has been arrived at on conflicting testimony bya tribunal which saw and heard the witnesses, an appellatetribunal which has not had that advantage, would be very slowindeed to interfere.
The learned Attorney who appeared for the accused-appellantssubmitted that the charge on count 1 was not made out sincethere was no evidence that those accused killed the deer inquestion. The only evidence against the accused in respect ofthis charge was that the game watchers heard shots being firedand some minutes later these five accused and two othersemerged from the jungle carrying the two carcases of the deer.There was evidence that the deer had been recently killedbecause the game ranger Karunaratne found the creasesbleading and the blood had clotted, an hour and a half ic..
The first and fifth accused had guns with them, but there wasno evidence that the guns had been recently fired. Both gunswere breached and examined and while the first accused’s gunhad a live cartridge in it there was no cartridge inside the gunwhich the fifth accused had. None of the witnesses spoke of anyevidence of recent firing such as the barrel being hot or of smellcordite from either of the guns. The report of the GovernmentAnalyst P 10 shows that the deer had been shot by S.G. slugs froma factory-loaded cartridge. But there was no evidence that theycould have been fired from these guns. Nor was there anyevidence as to the identity of the other two persons.
In the circumstances unless the principle of joint liability setout in section 32 of the Penal Code is applicable to offencesunder the Fauna and Flora Protection Ordinance the accusedcannot be said to be guilty on count 1 as there is no evidencethat it was they who killed the deer. The charge itself does notmention section 32. But this is not necessary—Attorney-Generalvs. Munasinghe, 70 N.L.R. 24. The charge on count 1 however, isbased on the principle of joint liability set out in section 32because it sets out that the accused “ with others ” killed the wildanimals.
Section 32 of the Penal Code is as follows :—
“ When a criminal act is done by several persons infurtherance of the common intention of all, each of suchpersons is liable for that act in the same manner as if it weredone by him alone. ”
A 40505 (79/03)
126
V Y T HI ALIN GAM, J.—Parandaman vs. Wijesinghe
The question is whether this general explanation is availableto be applied in a case where persons are charged with the‘commission of an offence other than an offence under the PenalCode. The learned Magistrate did not answer this questionbecause following the decision in Weerasinghe vs. Kathirgama-' thamby, 60 N.L.R. 87, he thought section 59 of the Fauna andFlora Protection Ordinance (Cap. 469) as amended by Acts Nos.44 of 1964 and 1 of 1970 was a complete answer to this contention; of the counsel for the accused.
The question of the applicability of section 32 of the PenalCode to offences under other statutes was adverted to inKathirgamathamby’s case but was left undecided. That was acase under the Fisheries Ordinance, which contained in section22 (3) a somewhat similar provision to section 59 of the Faunaand Flora Protection Ordinance. T. S. Fernando, J. consideredthat the three accused could have been convicted of the offenceof which they were charged under section 22 (3) of that Ordi-nance and the question of the applicability of section 32 tooffences under statutes other than the Penal Code was “ left forconsideration in a case where persons were charged with the. commission of a statutory offence other than one under theFisheries Ordinance, ” at page 89.
In the case of K. S. P. Mahabood et al. vs. Food and Price Con-rol Inspector, 72 N.L.R. 116, a principle of criminal liability con-tained in another section, viz., section 35 of the Chapter onGeneral Explanations in the Penal Code was applied to offencesunder the Control of Prices Act. In that case two accused werejointly charged with the offence of having sold two pounds ofbeef above the controlled price. Tennekoon, J. as he then was,said “ There is in my mind no doubt arising on the evidence thatthe 1st and 2nd accused knowingly co-operated to effectuate asale of two pounds of beef with bones at Rs. 2.50 each, one of: them doing what he did at the different stages of the transactionin order to effect a sale of that quantity of beef at that price.Section 35 of the Penal Code provides that—
*'“ When an offence is committed by means of several acts,
whoever intentionally co-operates in the commission of thatoffence by doing any one of those acts either singly orjointly with any other person, commits that offence. ”
VYTHIAXJNGAM, J. —Parandaman vs. Wijesinghe
127
I am of opinion that upon an application of the principle ofliability contained in this provision of law the 1st and 2ndaccused are each guilty of the offence charged, ” at page 118.
In another case under the same Act this case was referred tobut distinguished on the facts. In K■ G. Francis vs. B. D. C. Joseph,73 N.L.R. 270, Siva Supramaniam, J. said at page 272 “ The factsof the instant case, however, stated already are entirely different.On the evidence, the appellant was not aware that the parcel ofgram handed to the buyer by the 1st accused was one ounce shortand the principles of liability contained in section 35 of thePenal Code have no application. ” Apparently Siva Supra-maniam, J. was also of the view that if the facts had beendifferent the principle of liability contained in section 35 of thePenal Code would be applicable to offences under the Controlof Prices Act as well.
If the principles of liability contained in section 35 have been■correctly applied in these two cases to offences under the Controlof Prices Act, then they afford clear examples of the application■of the principles of criminal liability contained in the sections ofthe Penal Code in the Chapter on General Explanations to offen-ces created by other statutes. However I am not satisfied, withgreat respect to the distinguished Judges, that the principle•of liability contained in section 35 has been correctly extendedto offences under the Control of Prices Act.
Section 35 refers to an “ offence committed ” and therefore-applies only to “ offences ”. Section 38 (1) of the Penal Code^explains what the word “ offence ” is and is as follows: —
“ Except in the Chapter and sections mentioned in sub-sections (2) and (3) the word ‘ offence ’ denotes a thing madepunishable by this Code. ”
Sub-section 2 sets out that in Chapter TV and in thesections enumerated in the subsections the word “ offence ”denotes a thing punishable in Ceylon under the Penal Code<©r under any law other than the Code. Sub-section (3) setsout that in the sections enumerated therein the word offencehas the same meaning where certain punishment is indicated.These subsections are not relevant for our purpose. So that itis clear from section 38 (1) that the application of section 35 is
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VYTHIALINGAM, J.—Parandaman vs. Wijesinghe
limited to offences under the Penal Code and cannot be extendedin view of the use of the word “ offence ” in section 35 and thelimitation contained in section 38 (1), to offences under otherOrdinances except as provided in subsections (2) and (3) ofSection 38.
Thus in the case of Perera vs. Munaweera, 56 N.L.R. 433, aBench of five Judges following the case of Weerakoon vs. Ran-hamy, 23 N.L.R. 33 (four Judges) held that section 72 of ChapterIV of the Penal Code applies not only to offences under the PenalCode but also to offences punishable under all other criminalstatutes enacted in Ceylon, because “ Section 38 (2) of the Codeunambiguously declares that the word ‘ offence ’ in Chapter 4 ofthe Code (dealing with ‘ General Exceptions ’) includes a thingpunishable in Ceylon under any law other than this Code ” eventhough in such a law the definition cf the offence contains wordsof absolute and unqualified prohibition.
That was a case under the Control of Prices Act and after thedecision in that case the Act was amended by Act No. 44 of 1957which made section 72 of the Penal Code inapplicable to offencesunder that Act. In Munasinghe vs. M. J. Perera, 74 N.L.R. 542,Kretser, J. held that the exception contained in Section 73 ofthe Penal Code was still available to a person charged underthat Act.
Section 32 of the Penal Code, however, is on a different footing.It does not use the word “ offence ”. The word used in thesection is “ a criminal act ” and there are no words limitingit to criminal acts made punishable under the Penal Code. Thesection is as follows : “ When a criminal act is done by severalpersons in furtherance of the common intention of all, each ofsuch persons is liable for the act in the same manner as if itwere done by him alone. ” The word “ criminal act ” is notdefined in the Code. In the case of Barendra Kumar Gosh v-Emperor, 1925 A.I.R. P. C. 1, Lord Sumner defined the word“ criminal act ” in Section 34 of the Indian Penal Code whichis identical with our section 32 as follows:“ In other words
a * criminal act ’ means that unity of criminal behaviour which
VYTHIAIINGAM, J.—Parandamcin vs. Wijesinghe
129
results in something for which an individual would be punish-able, if it were all done by himself alone, that is in a criminaloffence ” at page 9. That is punishable as a criminal offencenot necessarily under the Penal Code but also under anystatute.
This definition has been accepted and followed by Courts inMunasinghe’s case (supra) at page 245 and in Queen vs. Mahatun,61 N.L.R. 540 at 545. In the latter case Basnayake, C. J. saidat page 545, “ In regard to the expression * criminal act ’ it wouldbe unwise to fetter its scope by any rigid definition. … Inthe first place the expression means what it says, an act which ispunishable by law—a crime in the generic sense. ” In that sense,therefore there being no words of limitation, it applies to allcriminal acts whether made punishable by the Penal Code orany other law.
The only reason, if it is a reason at all, why the principle ofcriminal liability embedded in section 32 should not be extendedto offences under other Statutes is that it appears in the chapterentitled “ General Explanations ” in the Penal Code and it ispossible to argue that it is an explanation to the provisions ofthe Code only. But there are other sections which are madeexpressly applicable to other laws. Subsections (2) and (3)of section 38 are an example. Here they are expressly madeapplicable. In the case of section 32 it is by necessaryimplication from the wider connotation of the words themselvesof the section.
I hold therefore that the principle of joint criminal liabilityset out in section 32 of the Penal Code applies to acts madepunishable by other laws as well. The proved facts in this caseclearly show (1) that the accused-appellants with others hadgone out on a shooting expedition, (2) that one or more ofthem had fired shots and (3) that they were apprehended shortlyafter the shots were heard while bringing out from the jungletwo freshly killed deer. These facts clearly establish withoutdoubt that all the accused appellants were acting in furtheranceof an intention shared by them in common to kill deer. Invokingthe aid of section 32 they are all guilty of killing deer irrespectiveof whether it was anyone or more of these five accused whofired the shots which killed the deer.
It is unnecessary therefore to invoke the aid of section 59 ofthe Fauna and Flora Protection Ordinance or to consider whetherthe accused who are charged as principal offenders can properly
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VYTHIALINGAM, J.—Parandaman vs. Wijesinghe
toe found guilty* of attempting to commit or abetting the com-mission of the offence under this section 59 without a specificcharge in that respect as was done in Kathirgamathamby’s case(supra). I hold therefore that the accused were properlyconvicted on count 1.
The charge on counts 4 and 5 is that the injuries were caused“ by means of instrument which when used as a weapon ofoffence is likely to cause death to wit a club. ” The club wasnot a production in this case. Nor was there any evidence asto the size and weight of this club. Gunatilake said that thefourth accused picked up the club from the spot. There istherefore no evidence that the weapon used was such as waslikely to cause death. I accordingly alter the conviction oncounts 4 and 5 to one under section 314 of the Code. Havingregard to the gravity of the offence, which is an assault on publicservants in the discharge of their official duties I see no reasonto alter the sentence on these counts.
1 accordingly dismiss the appeal of all the accused-appellantsand affirm the convictions and sentences.
Walgampaya, J.—I agree.
Appeals dismissed■