SINGHE AND THREE OTHERS v. THE STATE

021-SLLR-1984-V1-WIJESINGHE-AND-THREE-OTHERS-v.-THE-STATE.pdf


CA
155
Wijesingfte v. The State. –
WIJESINGHE AND THREE OTHERS
v.THE STATE
COURT OF APPEAL.
SENEVIRATNE. J.. MOONEMALLE. J. AND T. D. G. DE ALWIS, J.
C.A. No. 123-126/82- H.C. GAMPAHA 34/80.
DECEMBER 12. 13 AND 14, 1983.
Directions to Jury – Burden of proof – Common intention formed in the course of asudden fight.
The accused were indicted for being members of an unlawful assembly, thecommon object of which was to cause hurt to one Gunawardene. and in the courseof the same transaction committing the murder of Gunawardene and causing hurt
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to one Karunaratne. At the conclusion of the trial, the accused were convicted ofculpable homicide hot amounting to murder on the ground of sudden fight and causingsimple hurt. The accused appealed against these convictions to the Court of Appeal onthe grounds that (a) neither the prosecution nor the defence led any evidence of asudden fight Mb) the trial judge in summing up, wrongly directed the Jury on the burdenof proof which the law places on the defence when an exception to murder is pleaded,by stating that the defence story should be more probable than improbable whencompared with the prosecution story; and (c) the trial judge had failed to ripe adequatedirections to the Jury on the law relating to common intention and hdw commonintention is formed in the course of a sudden fight.
HeW-
(1) A Jury should never be directed in a way which opens for them the door toconjecture. In this case the trial judge in his summing up had invited the Jury tospeculate on the question of a sudden fight, although there was no evidence of asudden fight in the evidence led either for the prosecution or the defence.
(2| An accused person does not have to prove that his story is more probably true thanthe prosecution story. A direction to this effect by the judge places a heavier burden onthe accused than what the law places on the accused. The accused need only provethat his version is more probably true than not.
(3) A common intention to kill can be formed in'the course of a sudden fight only inexceptional circumstances. In this case the directions given by the judge are inadequatesince no directions have been given on the following :
(i> that some act must be proved or some circumstances established from which acommon intention could reasonably be inferred :
that the inference of common intention should not be reached unless it is anecessary inference deducible from the circumstances of the case and an inferencefrom which there is no escape ; and
how to consider a common intention to kiN in the background pf a sudden fight andhow in the circumstance of a sudden fight such a common intention could be formed.
Case referred to
Fernando v. The Queen. (1953) 54 N.L.R. 255.
– APPEAL from the High Court. Gampaha.
Or. CoMn R. tja £ito with Mr. N. V. da Siva and Miss' Saumya de.Stoa for theaccused-appellants
< A. S. M. Patera. Senior State Counsel, forthe Attorney-General.
-V — r » . * •-'
Cur. adv. vuIt.
Wijesinghe v. The State (Moonemalle. J.)
157
CA
January 23, 1984.
MOONEMALLE, J.
The five accused, (1) Kuruppu Aratchige Wijesinghe (1staccused-appellant), (2) Kuruppu Aratchige Samarasinghe (2ndaccused-appellant), (3) Kuruppu Aratchige Chandratilleke (3rdaccused-appellant), (4) Kuruppu Aratchige Ariyaratne (4thaccused-appellant), (5) Kuruppu Aratchige Milton Abeysinghe (5thaccused) were indicted on the following five counts
That they were on or about 29th day of December, 1977, atKossatadeniya in Mirigama members of an unlawful assembly thecommon object of which was to cause hurt to Kuruppu AratchigeGunawardene an offencd punishable under section 140 of thePenal Code.
That they did on or about the 29th day of December, 1977. atthe same time and place aforesaid commit the murder of KuruppuAratchige Gunawardena an offence punishable under section 296of the Penal Code.
That at the same time and place and in the course of the sametransaction as aforesaid they did cause hurt to Jayakodi AratchigeKarunaratne with clubs and thereby commit an offence punishableunder section 314 of the Penal Code.
That at the same time and place and in the course of the same
transaction as aforesaid, they being members of the said unlawfulassembly mentioned in Count (1) did cause the death of the saidKuruppu Aratchige Gunawardene and have thereby committed anoffence punishable under section 296 read with section 146 of thePenalCode. ,,
That at the same time and place and in the course of thetransaction as aforesaid they being members of the said unlawfulassembly did cause hurt to Jayakodi Aratchige Karunaratne withclubs.and have thereby committed an offence punishable undersection 314 read with section 146 of the Penal Code.
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Each accused pleaded not guilty to the charges. After trial, by theunanimous verdict of the Jury-
All the accused were found not guilty on count {1) and theywere, acquitted.
The 1st, 2nd, 3rd and 4th accused were found guilty ofculpable homicide not amounting to murder on the groundof a sudden fight on count (2) and each was sentenced totwo years rigorous imprisonment.
The 5th accused was found not guilty on count (2) andwas acquitted
The 1st, 2nd, 3rd and 4th accused were found guilty ofcausing simple hurt on count (3) and each was sentencedto six months rigorous imprisonment.
The 5th accused was found not guilty on count (3) and wasacquitted.
All the accused were found not guilty on counts 4 and 5and were acquitted.
The sentences on counts 2 and 3 were to runconsecutively.
The appeal by the 1st, 2nd, 3rd and 4thaccused-appellants is from these convictions andsentences.
The 1 st, 2nd and 3rd accused-appellants are the sons of PabilisAppuhamy. The 4th accused-appellant and the 5th accused are thesons of John Ralahamy. Pabilis Appuhamy and John Ralahamy aretwo brothers. The prosecution relied on two alleged eye-witnessesnamely, Karunaratne and Wimalasena. The prosecution case wasthat Karunaratne was the watcher of Halgahapitiyawatte. On29.12.77 about 9 p.m. Karunaratne had gone to buy kerosenefrom the boutique of one Gunasekera Mudalali which was situatedby the Mirigama-Negombo Road. From his > ''use Karunaratne had
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to proceed along the Kossatadeniya-Pallewela V.C. road and thenget on to the Mirigama-Negombo Road. He had a bottle and a torchwith him. On his way back home. Karunaratne met Gunawardenethe deceased on the Mirigama-Negombo Road. Then the two ofthem had come along the V.C. road and got on the Pansala Roadwhich branches off from the V.C. road. This road ends at a temple.One has to pass the 1st accused-appellant's house to reach thetemple. The residing land of John Appuhamy adjoins the templeland and is about 150 fathoms away from the 1staccused-appellant's house. When Karunaratne and the deceasedcame up to the 1st accused-appellant's house the 1staccused-appellant who had been seated on a mound by the roadhad come forward and said.' I was waiting for you,' and had dealta blow on the deceased's head with a club. The deceased hadfallen for that blow. Then the 4th accused-appellant who is alsoknown as Kalumahattaya had dealt Karunaratne a blow with a clubwhich alighted on his forehead. Thereafter the 2nd, 3rd and 4thaccused-appellants had assaulted the deceased who was fallen onthe ground. They had also assaulted Karunaratne. ThenKarunaratne had run to the house of Weerasinghe, thebrother-in-law of the deceased, and he had lost consciousnessthere. Karunaratne had seen the incident with the aid of his torch.
According to Wimalasena, about 10-10.30 p.m. when he wasat home, he heard a commotion and cries of * Buddu Ammo, I ambeing murdered', coming from the direction of the house of the 1 staccused Wijesinghe. He then went in that direction. He approacheda fire which was in front of the 1st accused-appellant's house. Hethen saw the 1st, 2nd and 4th accused-appellants assaulting thedeceased with kitul clubs. The 3rd accused-appellant had a club inhis hand. He had watched this for about 15 minutes and then hadgone and informed Weerasinghe the brother-in-law of thedeceased. He had not seen the 5th accused at the scene. He hadnot met Karunaratne at Weerasinghe's house that night.
Or. W. R. de Alwis who had held the post mortem examination onthe body of the deceased did not give evidence as he was abroad.Dr. Hoole gave evidence and produced the post mortem report (P3)of Dr. de Alwis. The body of the deceased had been identified byhis father Liyanonis and brother-in-law Nandasoma. .
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According to P3 the external injuries on the deceased were-
Contusion 1 inch long on front side of forehead.
Contusion 3 inches long across top of head.
Lacerated wound above the left ear.
Lacerated wound just below shoulder blade on left sideof chest.
Lacerated wound near the shoulder blade on left side,back side of chest.
Abrasions on lower part of left arm.
The internal injuries were as follows :
The bone above the left ear had been fractured and broken intopieces. The fracture had extended to the left side and lower part ofskull. There were marks of blood in the membranes of the brain.
The cause of death was given as dueio heavy inflow pf blood intothe brain.
Dr. Hoole stated that injury No. 3 and the connected internalinjuries could be capable of causing the inflow of blood into thebrain. He said that injury 3 could be due to a heavy blow with a cluband the injuries 1,4 and 5 could be due to a fall. He said that injury3 with the internal injuries was capable of causing death in theordinary course of nature.
According to the medical report (P4), Karunaratne had acontusion just below the left eye and a contusion on the right thighand an abrasion on the right side on neck. Dr. Hoole stated thatthey were non-grievous injuries caused with a blunt instrument likethe club (P1).
The 1 st accused-appellant gave sworn evidence and stated thathe had never been convicted or punished for any offence. He statedthat the deceased could not go to his house along the cart roadwhich led to the temple. He said that the deceased lived with hismistress Chandra, a sister of Rupasinghe. at Siyambalagoda. Toget to Siyambalagoda. one had to go along the Mirigama Road. Hesaid that the deceased and Rupasinghe were well known criminals
CA Wijesinghe v. The State IMoonemalle. J.)161
and were boisterous people. He said that Rupasinghe was not ongood terms with his family and that was because the police hadtaken charge of an unlicensed gun from Rupasinghe on aninformation given by Ohanapala, a brother of the 4th accused ,appellant. Then on 6.4.1974 Rupasinghe and the deceased hadcome to John Ralahamy’s house and had started a quarrel andwere assaulted. The police had filed action against John Ralahamy,Ohanapala, the 1st, 4th and 5th accused-appellants, on acomplaint by Wimalasena that he was assaulted. They had beendischarged. Then he said that his boutique was broken into anddamaged by Wickramasinghe, Premalai, Wimal Jayatisa andBramby and his leg had been cut with a sword and his fatherassaulted. He said that the chief person involved in that incidentwas the deceased. He said that on 29.12.77 the inmates of hishouse had chicken pox. About 9.30 p.m. he heard shouts from thedirection of John Ralahamy's house. The shouts were,
Maranawo, Gahanawo, your houses should be burnt.’ Herecognised the voices of Gunawardena and Karunaratne. Then hesaid that they had come in front of his compound and had shouted,
We have come to destroy you, we will kill you *. Then the 2ndaccused-appellant had come out of the rear of the house with adoor bar and then had come to the compound. They had appealedto Karunaratne to go away as they were having chicken pox andthat they had nothing against them. Then the deceased had tried tostab with the kris knife (P5) and the 2nd accused-appellant haddealt him a blow on his hand with the club. The deceased had fallenand then had got up from the road and had come up to stab the2nd accused-appellant. Then the 1st accused-appellant thinkingthat die deceased would stab and kill his brother, had struck thedeceased with the dub (PI), The deceased had fallen on the roadin front of the house. Then Wimalasena had struggled with thedeceased in order to. remove him, but. the deceased had brushedhim aside and had come to-the . compound and had fallen downthere: The 1st accused-appellant said that he had to assaultKarunaratne and die deceas^thrdugh fear that they would staband kill bis younger brother, He said that he assaulted the deceasedwhile die 2nd accused-appellant assaulted Karunaratne. He- saidthat the 3rd accused-appellant was in the compound whenthedeceased fell there for the club blow. He said that the 4thand£ttiSccused-appellants were not present.
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Learned Counsel for the accused-appellants submitted that as itwas neither the case for the prosecution nor for the defence thatthere had been a sudden fight, the conclusion to be drawn from theverdict of the Jury was that the prosecution had not ih its evidenceplaced before Court the correct version of events and that theverdict was a substantial acceptance of the 1staccused-appellant's version. Therefore, he submitted that theprosecution case was open to a reasonable doubt which entitledthe accused-appellants to an acquittal. He cited the case reportedin Fernando v. the Queen (1) and submitted that that case coveredthe case before us substantially.
Learned Counsel for the appellants also submitted that thelearned trial Judge in his summing up wrongly directed the Jury onthe burden of proof that the law places on the defence, when anexception to murder is pleaded which would be fundamentally fatalto the conviction. He further submitted that the learned trial Judgefailed to give adequate directions to the Jury on the law relating tocommon intention. He also submitted that the learned trial Judgefailed to direct the Jury that it is very rarely that a common intentionto kill is formed in the course of a sudden fight and as to how in thecircumstances of a sudden fight such a common intention wasformed. He submitted that in any approach to this case theappellants are entitled to an acquittal.
Learned Senior State Counsel at one stage of his submissionstried to justify the verdict of the Jury by stating that the Jury wouldhave rejected the evidence of the prosecution witness Karunaratneand the evidence of the 1st accused-appellant, but would haveacted on thfe evidence of Wimalasena supported by the policeevidence of the presence of a patch of blood near the mound whenone enters the compound of the 1st accused-appellant's house,the drops of blood from that place up to the spot where the body ofthe deceased lay in the compound, and the signs of a strugglewhere the earth had been disturbed on the mound, and on theevidence of previous enmity between the parties. Later, however,he abandoned that line of argument and restricted the argument tothe contention that even if the verdict was unreasonable and therewas no common intention, still, on the basis of Wimalasena'sevidence that the 1 st to the 4th accused-appellants had assaulted
CA
Wijesinghe v. The Stale (MoonemaUe. J.)
163
the deceased with clubs, each of them would be liable for their ownseparate acts, and each would therefore be guilty of causing simplehurt under section 314 of the Penal Code.
It is clear that there is no evidence of a sudden fight to be foundin the evidence led for the prosecution or the defence. Theprosecution case pointed to a straight case of murder, while thedefence was one of private defence.
The source of the Jury's verdict evidently flows from the followingpassage in the learned trial Judge's summing up
* The deceased person and Karunaratne started this suddenfight having come to the. compound of the 1st accused or in frontof his house on the road, then it is possible that a sudden incidentof this nature, where clubs or knives had been used, could arise.Accordingly you could hold that even without provocation therehad been a sudden fight and bring in a verdict of guilty of culpablehomicide based on that situation. *
Though this direction referred to the possibility of knives beingused, the prosecution witnesses did not speak to any one usingknives at that incident. It was the 1 st accused-appellant who in hisevidence referred to the deceased having a knife in his hand whichhe identified as (P5) which was found by the side of the deceased.
It appears that the trial Judge has invited the Jury to speculate onthe question of sudden fight. A Jury should never be directed in away which opens for them the door to conjecture. In the case ofFernando v. The Queen (supra) five accused were charged withmurder. The Jury brought in a verdict of-culpable homicide notamounting to murder on the ground that there was a sudden fight.In that case too there was no evjdence of a sudden fight led byeither the prosecution or the defence. In that case too the trialJudge directed the Jury on the possibility that the killing of the’deceased took place in the course of a sudden fight. It would berelevant for me to quote two passages from the judgment in‘ thatcase delivered by L. M. D. de Silva, J. at page 258 :
' It appears to us that it was extremely difficult on the evidenceto come to the conclusion that there was a sudden fight merelyby rejecting 'large chunks of the evidence' of the witnesses for
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the prosecution and the defence. It would have been necessaryin addition to supplement what evidence was left after therejection mentioned by facts derived from conjecture. If . therewas reason to think that there was a sudden fight, which theprosecution witnesses had suppressed, then, fairly considered,the prosecution case would have been open to reasonable doubtand the accused would have been entitled to an acquittal. But averdict can never be based upon facts suspected but notproved.'
' A Jury should be told to accept or reject evidence that theyare entitled to and should draw reasonable inferences from theevidence which they accept, but they should never be directed ina way which opens for them the door to conjecture. This isnecessary not only in order that the case for the defence may notbe prejudiced but also in the interests of the prosecution. It hasto be remembered that a trial Judge by suggesting anunsustainable element of evidence in favour of an accused mayby rendering a verdict founded on*that element unreasonablemake the verdict itself unsustainable. *
In the present case, the verdict of the Jury which is totallyincompatible with the case presented by the prosecution and thecase presented by the defence, is founded purely on conjecturedue to the direction of the learned trial Judge relating to a suddenfight; it makes the verdict unreasonable and unsustainable.Further, the fact that the verdict based on sudden fight isinconsistent with the evidence of the prosecution and that of thedefence leads to the inference that the Jury have found that theprosecution has suppressed material facts of the events of thenight of the incident which induces a reasonable doubt in theprosecution case and entitles the appellants to an acquittal.
The learned trial Judge directed the Jury as follows, on theburden of proof that rests on the defence when an exception tomurder is pleaded :
‘ The function is yours as to whether you accept this evidenceor not. If the accused wanted to call further evidence or to giveevidence it was not necessary to be proved beyond reasonable
CAWtjesinghe v The State {Moonemalle. J.)165
doubt. It will be quite sufficient if you can determine his story is
more probable than improbable. Having accepted that you will
have to discharge the accused.'
This direction on the law is correct. But the learned trial Judgemade a grave error when he continued his direction as foliows-' When I say the defence story should be more probable thanimprobable what I meant was when compared with the prosecutionstory it should be more probable. That is the yardstick whenconsidering the case of the defence. * An accused person does nothave to prove that his story is of a greater probability of truth thanthat of the prosecution story. The direction of the learned trialJudge places a heavier burden on the accused-appellants todischarge than what the law places. The appellants need only provethat their version is more probably true than not. If the defenceversion creates a reasonable doubt in the case for the prosecutionthat would entitle the defence to a verdict in its favour. Had the Juryin this case followed this direction of the learned trial Judge andfounded its verdict on it. it would be fundamentally fatal to theconviction.
In this case the deceased had only one fatal injury, and on theevidence it cannot be said as to which appellant inflicted it.Therefore it would be necessary that there should have been acommon intention to kill the deceased.
L. M. 0. de Silva. J. in Fernando v. The Queen (supra) stated * Itis very rarely if at all that a common intention to kill in the course of asudden fight can be established."
Thus, as a common intention to kill can be formed in the courseof a sudden fight only in exceptional circumstances, the learnedtrial Judge's summing up should have been subject to a most■ careful direction on common intention and of the impact of asudden fight on the question of common intention. The directionsgiven by the learned trial Judge on the question of commonintention are inadequate. No direction has been given to the Jurythat * some act must be proved or some circumstances establishedfrom which a common intenion could be reasonably inferred.' Thenthere is no direction that the inference of common intention should
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not be reached unless it is a necessary inference deducible fromthe circumstances of the case ; an inference from which there is noescape. The trial Judge has also failed to direct the Jury to considera common intention to kill in the background of a sudden fight.There is no direction as to how in the circumstances of a suddenfight such a common intention was formed. It is also necessary forthe learned trial Judge to have applied closely the law relating tocommon intention to the particular facts of this case, in this casethere is no common intention established in an offence against thedeceased. There is no evidence of a sudden fight. The verdict ofthe Jury is reasonably clear is based on pure conjecture.
The final question is whether on Wimaiasena's evidence theappellants could be convicted of the offence of causing simple hurt.Wimalasena is by no means an untainted witness. At one stage inhis evidence, Wimalasena said that the 1st. 2nd, 3rd and 4thaccused-appellants had clubs in their hands. He also said that hesaw these four accused-appellants assaulting with clubs. But hehad to admit that he had told thfe police that only the 1staccused-appellant had assaulted the deceased with a club and thatthe 4th accused-appellant had assaulted Karunaratne with a club ;while the 2nd and 3rd accused-appellants had clubs in their hands.Then soon after-that he contradicted himself and said that he hadtold the police that the 2nd and 3rd accused-appellants had alsoassaulted the deceased with clubs. The evidence of Wimalasena isunreliable and I do not think that the Jury would have acted on theevidence of Wimalasena. I hold that all four accused-appellantscannot be found guilty of any offence in this case.
For these reasons, I have set out, I allow the appeal and I quashthe convictions and sentences passed on the 1 st, 2nd, 3rd and 4thaccused-appellants on counts 2 and 3, and I acquit them.
SENEVIRATNE, J.-l agree.
T. D. G. DE ALWIS, J.-l agree.
Appeal allowed.
Accused-appellants acquitted.