-SIRISENA RANAWAKA AND OTHERS v. THE ATTORNEY-GENERAL

024-SLLR-SLLR-1985-V2-SIRISENA-RANAWAKA-AND-OTHERS-v.-THE-ATTORNEY-GENERAL.pdf


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Sri Lanka Law Reports
[1985] 2 Sri L.R.
SIRISENA RANAWAKA AND OTHERS
v.
THE ATTORNEY-GENERAL
COURT OF APPEAL.
P. S. D£ SILVA, J., T D. G. DE ALWIS. J. AND DHEERARATNE, J.
C. A. 154- 172/84.
C. ANURADHAPURA 35/82.
JULYj. 10 AND 11, 1985.
Unlawful assembly – Housebreaking – Robbery – Mischief by fire – Sections 140.443. 380, 418 of the Penal Code.
Nineteen persons were indicted on seven counts of being members of an unlawfulassembly the common object of which was to cause hurt to one Heen Banda, (s. 140of the Penal Code, (Count 1) ; and in prosecution of the said commonobject: (Count 2) of committing housebreaking by night by entering the house of oneWimalawathie (section 443' read with section 146 of the Penal Code). (Count 3). ofcommitting robbery of articles valued at Rs. 10.000 in the possession of Wimalawathie(section 380 read with section 146 of the Penal Code) and (Count 4) of committingmischief by fire by setting fire to car No. 1 Sri 2081 (section 418 read with section 146of the Penal Code). On the other three counts the accused were charged withcommitting housebreaking by night, robbery and mischief by fire in respect of the sameacts but on the basis of their having acted with a common intention.
The 4th accused was dead by the time of the trial. All the accused were acquitted onCounts 3 and 6 as there was no evidence regarding the actual robbery. All the accusedwere convicted on Counts 1. 2 and 4 and no order was made on Counts 5 and 7 asthey were considered to be framed in the alternative to Counts 2 and 4
The evidence showed that the appellants were looking for Heen Banda but not all ofthem had entered the house of Wimalawathie where. Heen Banda was hiding at thetime. The car referred to in the Count 4 had been set on fire (and was still burning whenthe Police came) but the evidence did not show by whom or when.
Held –
1 The appellants were clearly members of the unlawful assembly the common objectof which was to cause hurt to Heen Banda. The fact that all of them did not enter thehouse made no difference to their liability Once they are found to be members of anunlawful assembly the extent of their participation is immaterial. They also serve whoonly stand and wait so far as liability goes.
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The only common object of the unlawful assembly alleged in Count 1 was to causehurt to Heen Banda. The act of setting fire to the car was in no way connected to thecommon object of the unlawful assembly as specified in Count No. 1. The offence mustbe committed in prosecution of the common object. It is not enough that it wascommitted during the prosecution of the common object. Hence Count 4 fails.
The offence of housebreaking was immediately connected with the prosecution ofthe common object to cause hurt to Heen Banda who had taken refuge inWimalawathie's house. Hence even those who. did not enter the house ofWimalawathie are constructively or vicariously liable inasmuch as one or more membersof the unlawful assembly committed the offence of housebreaking in the search forHeen Banda. Criminal liability will arise merely from membership of the unlawfulassembly at the time of the commission of an offence if known or known to be likely tobe committed in prosecution of the.common object.
The 6th and 7th accused were first offenders of the ages of 14 and 15 yearsrespectively at the time of the commission of the offence. Hence their age andantecedents should have been taken into account in the matter of sentence.
Cases referred to:
{1) The King v. Abeywickrema etal(1 943) 44 NLR 254. 256.
The King v. Seltathurai (1947) 48 NLR 570.
Khan v. Ariyadasa (1965) 67 NLR 145 (P C.).
APPEAL from the judgment of the High Court of Anuradhapura.
Dr. Colvin R. de Silva with Mrs. Manouri Muttetuwegama and Miss Saumya de Silva for1 st to 12th and 14th to 16th appellants.
Cecil Goonewardena for 13th and 17th appellants.
Moses Fernando, Senior State Counsel, for. the .State.
Cur. adv. vult.
August 9. 1985.
G. P.'S. DE SILVA, J.
Nineteen persons were indicted on seven counts
That they, with others unknown.to the prosecution, weremembers of an unlawful assembly the common .object of whichwas to cause hurt to HeemBanda, an offence punishable undersection 140 of the Penal Code.
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That one or more members of the said unlawful assemblycommitted housebreaking by night by entering into the house ofone Wimalawathie Sahabandu in prosecution of the saidcommon object or was such as the members of that assemblyknew to be likely to be committed in prosecution of the saidobject, an offence punishable under section 443 read withsection 146 of the Penal Code.
That one or more members of the said unlawful assemblycommitted robbery of articles valued at Rs. 10,000 in thepossession of the said Wimalawathie Sahabandu, inprosecution of the said common object or was such as themembers of that assembly knew to be likely to be committed inprosecution of the said common object, an offence punishableunder section 380 read with section 146 of the Penal Code.
That one or more members of the said unlawful assemblycommitted mischief by setting fire to car No. 1 Sri 2081, inprosecution of the said common object or was such as themembers of that assembly knew to be likely to be committed inprosecution of that common object, an offence punishableunder section 418 read with section 146 of the Penal Code.
That they with persons unknown to the prosecution committedhousebreaking by night by entering into the house of the saidWimalawathie Sahabandu. an offence punishable under section443 read with section 38 of the Penal Code.
That they with persons unknown to the prosecution committedrobbery of articles valued at Rs. 10,000 in the possession ofWimalawathie Sahabandu. an offence punishable under section380 read with section 32 of the Penal Code. 7
(7)That they with persons unknown to the prosecution committedmischief-by setting fire to car No, 1 Sri 2081, an offencepunishable under section 418 read with section 32 of the PenalCode.
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The 4th accused was dead at the time of trial. The High Court Judgeconvicted all the other accused on counts 1,2 and 4. All the accusedwere acquitted on counts 3 and 6 since there was no evidence inregard to the actual robbery of the articles. The High Court Judgemade no order on counts 5 and 7 as he took the view that they wereframed in the alternative to counts 2 and 4. All the accused Who wereconvicted have appealed against their convictions and sentences.
This prosecution is the sequel to an incident which .occurred on27th November 1978 at the house of Wimalawathie. She was awidow who lived with her two daughters and her two sons in herhouse at Pansalgodella. On 27.11.78 at about 6 or 6.30 p.m. car No.
1 Sri 2081 driven by one Gamini came and stopped in the compound.Gamini inquired as to whether the doctor who was a boarder in thehouse was at home. Wimalawathie replied that he was away and whileshe was talking to Gamini, a lorry belonging to the MultipurposeCo-operative Society of the area came and stopped by the gate. HeenBanda, the President of the Co-operative Society got down from thelorry and came up to the house. Heen Banda was engaged to bemarried to one of the daughters of Wimalawathie. WhileWimalawathie was talking to Gamini and Heen Banda, she observedthat a crowd had collected near the M.P.C.S. lorry. The crowd wasarmed and were shouting. Thereupon Wimalawthie and the otherscame inside the house and closed the door. The crowd began tothrow stones at the house. The tiles broke and fell inside the house.Stones struck the windows and the window panes were shattered.Wimalawathie and her children hid themselves in a room. Heen Bandatoo got on to some planks which were placed across the rafters andhid himself in a room. A short while later the door was forced open •and several of the appellants entered the house. Some of them werearmed. They began to smash the articles in the house. A little laterWimalawathie heard the words 'Police, Police". The crowd thereupondisappeared. She identified the 7th, 8th. 10th and 14th appellants ashaving entered the house. She further identified the 11 th, 15th. 16th.
18th and 19th appellants at the entrance to the house. She said theywere armed. She observed that the kitchen and the car in thecompound had been set on fire.
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The next eye-witness was her son Sunimal. He identified the 8th,10th, 11th, 12th, 14th, 15th, and 16th appellants as having enteredthe house. Some of them had shouted "kill, kill’. He said they werearmed.
The last eye-witness was-Heen Banda. He identified the 2nd, 3rd,
11th, 12th, 13th, 14th, 16th and 17th appellants inside the house.He testified to the fact that these appellants shouted and inquired asto where he was. He said that they were in search of him. He washiding in a room at that time and they failed to get at him. Once thepolice arrived, he came out of the room. He saw the 1 st appellant atthe entrance to the house armed with a gun. He further stated thataround noon on this very day, there was an altercation between himand the deceased 4th accused and that in the course of that incidenthe had struck a blow on the latter. The deceased 4th accused wasone of the sons of the 1st appellant. The 1st appellant was alsopresent at that time.
The events of the day ended with the arrival on the scene of PoliceInspector Maligaspe, accompanied by a sergeant and a constable. Assoon as the Police got down from their vehicle, they arrested the 2nd,3rd, 5th, 6th, 7th and 9th appellants while they were damaging thehouse from outside. The Police observed that the whole house wasdamaged, a car was burning in the front compound, and the kitchenwas on fire.
On a consideration of the evidence outlined above, there is littledoubt that the appellants were members of an unlawful assembly, thecommon object of which was to cause hurt’ to Heen Banda. Theirconduct both inside and outside the house, their utterances whichshowed that they were in search of Heen Banda and the incident Heen. Banda had with the son of the 1 st appellant earlier in the day, clearlyestablished that they were members of the unlawful assembly. Theidentification of the appellants was not seriously canvassed before us.The appellants were well known to the witnesses ; the burning car andthe kitchen which was on fire shed sufficient light.
The fact that all the appellants did not enter the house makes nodifference to their liability on count 1. In the oft-quoted words ofSoertsz, S.P.J. in The King v. Abeywickrema et al{ 1) “once they werefound to be members of an unlawful assembly, the extent of their
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participation is immaterial when we are considering their liability in law.In regard to that liability they also serve who only stand and wait.' Mr.Moses Fernando, Senior State Counsel, was right in his submissionthat there was ample evidence to establish count 1. I accordinglyaffirm the convictions of all the appellants on count 1.
The principal submission of Dr. de Silva, Counsel for the 1 st'to 12thand 14th to 16th appellants was that the convictions on count 4cannot in law be maintained. Counsel emphasised that the onlycommon object of the unlawful assembly alleged in count 1 was tocause hurt to Heen Banda. Dr. de Silva strenuously contended that itcannot be said that the act of setting fire to the car in the compoundwas committed in "prosecution of the common object of thatassembly, or such as the members of that assembly knew to be likelyto be committed in prosecution of that object' – vide section 146 ofthe Penal Code. In other words. Dr. de Silva submitted that themischief alleged in count 4 is in no way related to the common objectof the unlawful assembly specified in count 1. This argument issupported by the decision of the Court of Criminal Appeal in The Kingv. Sellathurai (2) cited before us by Mr. Cecil Gunawardena, Counselfor the 13th and 17th appellants. Mr. Gunawardena relevantlyreferred us to the following passage in the judgment of Hovvard, C .J. :
“Now the common object of this particular unlawful assembly wasto cause hurt to Murugar Chelliah, Velan Sinnapodian and MuruganNagan. Can it be said that, if attempted murder or attemptedculpable homicide not amounting to murder was committed by oneof the members of the unlawful assembly, such offence wascommitted “in prosecution of the common object of that assembly"within the meaning of these words in section 146? Mr. Pereracontends that the phrase does not mean the same as the phrase"during the prosecution of the common object of the assembly".With this contention we agree. The offence committed must beimmediately connected with the common object of the unlawfulassembly of which the accused were members. In other words theact must be one which upon the evidence appears to have beendone with a view to accomplish the common object attributed to themembers of the unlawful assembly. No offence executes or tends toexecute the common object unless the commission of that offenceis involved in the common object".
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The evidence does not disclose the person or persons who set fireto the car,, the stage at which it was done, nor the circumstances inwhich the act was committed. In short, there is no evidence to showthat the offence of mischief alleged in count 4 was committed with aview to accomplishing the common object of the unlawful assemblyspecified in count 1. The most that can be said is that the car was seton fire "during the prosecution of the common object' of the unlawfulassembly. This would not suffice to bring home the charge on count 4.The submission of counsel for the appellants is therefore entitled tosucceed. I accordingly quash the convictions and sentences imposedon all the appellants in respect of count 4 of the indictment
Dr. de Silva next submitted that, on count 2, it is only the appellantswho actually entered the house, after the door was forced open, whocould be found guilty and not the appellants who remained outside thehouse. As stated earlier, there is clear evidence to show that thecommon object of the unlawful assembly was to cause hurt to HeenBanda. Once the attack on the house commenced, Heen Bandasought shelter in a room in the house. The door of the house wasclosed and whoever who came in search of Heen Banda hadnecessarily to force open the door and thereby commit"housebreaking" – vide the definition contained in section 431 of thePenal Code. Thus it is clear that the offence of "housebreaking" isimmediately connected with the common object of the unlawfulassembly of which the appellants were members. Now, the appellantswere not charged on count 2 with having committed the offence ofhousebreaking themselves but the charge was specifically on the basisthat they were constructively or vicariously liable inasmuch as one ormore members of the unlawful assembly committed the offence ofhousebreaking "in prosecution of the common object of the assemblyor such as the members of that assembly knew to be likely to becommitted in prosecution of that object" – vide section 146 of thePenal Code. What the prosecution had to prove was –
that the appellants were members of the unlawful assembly setout in count 1 ;
that the offence of housebreaking (section 443 of the PenalCode) was committed in prosecution of the common object orthat the offence was such as the members knew to be likely tobe committed in prosecution of the common object;
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that the appellants were members of the unlawful assembly atthe time the offence of housebreaking was committed.
On a perusal of the evidence, I am satisfied that all the above elementspostulated in section 146 of the Penal Code have been clearlyestablished. The Privy Council in Khan v. Ariyadasa (3) while dealingwith the question of the joinder of charges under section 32 and 146of the Penal Code observed :
‘Under section 32 criminal liability results from the doing of acriminal act in furtherance of the common intention : under section146 criminal liability may result merely from the membership of theunlawful assembly at the time of the commission'of an offenceknown to be likely to be committed in prosecution of its object'.
Therefore, in so far as their liability under section 146 of the PenalCode is concerned, it matters not whether some of the appellants didnot actually enter the house. In the words of Milton "they also servewho only stand and waif. It is to be noted that the 1 st appellant wasjust outside the entrance to the house armed with a gun. Theappellants who were arrested by the Police were at that time engagedin damaging the house. Thus they did more, than 'only stand andwait'. I therefore find myself unable to accept Dr. de Silva'ssubmission in regard to count 2. The convictions of all the appellantson count 2 are affirmed.
Mr. Cecil Gunewardena submitted that the 1st, 13th and 17thappellants were identified only by Heen Banda but that the High CourtJudge has acted on the basis that Heen Banda's evidence in regard toidentification was corroborated. With this submission I do not agree.On a scrutiny of the judgment it would not be fair to say that the trialJudge has taken the view that the evidence of Heen Banda on thequestion of the identification of the 1 st, 13th and 17th appellants wascorroborated by the testimony of any other witness. In any event, -hehas unreservedly accepted the evidence of Heen Banda.
Mr. Gunewardena also urged that the trial Judge has failed tocomply with section 283 (1) of the Code: of Criminal Procedure ActNo. 15 of 1979 inasmuch as the judgment does not contain 'thepoint or points for determination, the decision thereon and thereasons for the decision'. The facts of the case fell within a narrowcompass. In my view, there is a sufficient examination of the facts andthere is a strong finding that the witnesses for the prosecution are
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witnesses of truth. It is true that the questions of law raised on thisappeal were not specifically considered by the Judge, but the failure toconsider a pure question of law which does not appear to have beenraised before him cannot, in the circumstances of this case, vitiate thejudgment.
In the result-, the convictions of all the appellants on counts 1 and 2are affirmed ; the convictions and sentences imposed on all theappellants on count 4 are set aside and they are acquitted on count 4.In regard to the sentences imposed on the appellants on counts t and2, Dr. de Silva stated that the 6th and 7th appellants were only 14 and15 years respectively at the time the offences were committed andalso that they were first offenders. Having regard to their age andantecedents, the terms of imprisonment imposed on the 6th and 7thappellants (Kolongahapitiya Herath Mudiyanselage Nimal andRanawaka Arachchilage Ube Jayawickrema, respectively) oncounts 1 and 2 are suspended for a period of 10 years from today.The fines of Rs. 500 imposed on the 6th and 7th appellants are alsoset aside. However, as regards all the other appellants, the sentencesof imprisonment, the fines and the default terms of imprisonmentimposed on counts 1 and 2 are affirmed. In the event of the finesbeing paid, the entirety of it should be given to WimalawathieSahabandu as compensation for the damages she has suffered.
, The Registrar is directed to return the record to the High Court forcompliance with the provisions of section 303 (4) of the Code ofCriminal Procedure Act No. 15 of 1979 in respect of the 6th and 7thappellants whose terms of imprisonment have been suspended.
T.D. G. DE ALWIS, J. – I agreeDHEERARATNE, J. – I agree
Conviction of all the appellants on Counts 1 and 2 affirmed.
Conviction on Count 4 set aside.
Sentences of tine on 6th and 7th accused set aside and imprisonmentimposed on them suspended for ten years. >
Sentences of fines and imprisonment and default terms imposed onCounts 7 and 2 imposed on the other appellants affirmed – fines, ifpaid, to be given to Wimalawathie.