THE KING v. HEEN BABA

065-NLR-NLR-V-51-THE-KING-v.-HEEN-BABA.pdf


JAYETILEKE S.PJThe King v. Hem Baba
2*5
[Cofbt op Criminal Appeal]
Present: Jayetileke, (Pnsideal), ODOttekan J. sad Pnlle J.
i
THE KING t>. HEEN BABAAppeal 68 and Applications 174-175
S. C. 2—M. C. Badulla, 7,804
Court of Criminal Appeal-Unlawful assembly—" Common object " and " commonintention "—Distinction between—Indictment under Penal Code, section146—' Common intention " of accused not implicit in such indictment—Scope of sections 32 and 146 of Penal Code.
The soouaed were charged under section 146 of the Penal Code with havingcommitted, as members of an unlawful assembly, the offences of house-breaking,robbery, grievous hurt and hurt (sections 443, 380, 383 and 382 of the PenalCode). 'Hie jury, acting on a direction given to them by the presiding Judge,found that there was no unlawful assembly, but that the offences of house-breaking, robbery, grievous hurt and hurt were committed by the accusedacting in furtherance of a common intention within tho meaning of section 32of the Penal Code.
Held, that it was not competent to the jury to return a verdict of guiltyunder sections 443, 380, 383 and 382 read with Bootion 32 when those offence*did not form the subject of separate charges but were referred to in chargescoupled with section 146. The charges under the former sections were notimplicit in the charges under the latter sections.
.A-PPEAL, with applications for leave to appeal, against two conviction*in a trial before a Judge and Jury.
M.M. Kumarakulasingham, with V. S. A. PuUenayagam and R. S.
Wanasundera, for accused appellants.
27. A. Wijemanne, Crown Counsel, for the Grown.
Cur. ado. twit
February 27, 1950. Jayetileke S.P.J.—
The appellants were charged with the following offences :—
That they with others unknown to the prosecution were members
of an unlawful assembly the common object of which was tocommit house-breaking and robbery and thereby committedan offence punishable under s. 140 of the Penal Code.
That they, being members of the said unlawful assembly, in
prosecution of the said common object, committed house-breaking by night by entering the house of one Thevani Aminain order to the committing of robbery and thereby committedan offence punishable under s. 443 read with b. 146 of the PenalCode.
That they being members of the said unlawful assembly, in
prosecution of the said common object, committed robbery ofcash and other articles of the value of Rs. 2,675 property in thepossession of Thevani Amtna and thereby committed an offencepunishable under s. 380 read with s. 146 of the Penal Code.
12LI.
1J. N. A 95837 -1,042 (8/50)
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JAYETILEKE S.P.J.—The King v. Been Baba
That one or more members of the unlawful assembly, at the time
of committing robbery, in prosecution of the said commonobject, caused grievous hurt to one Muthiah, which offencewas committed in prosecution of the said common object orwas such as the members of the said unlawful assembly knewto be likely to be committed in prosecution of the said commonobject and they being members of the said unlawful assemblyat the time of the commission of the said offence therebycommitted an offence punishable under s. 386 read with s. 146of the Penal Code.
That they, being members of the said unlawful assembly, in
committing or in attempting to commit robbery in prosecutionof the said common object casued hurt to Thevani Amina andthereby committed an offence punishable under s. 146 readwith s. 382 of the Penal Code.
That they, being members of the said unlawful assembly, in
committing or in attempting to commit robbery in prosecutionof the said common object, caused hurt to one Pooraam andthereby committed an offence punishable under s. 382 readwith s. 146 of the Penal Code.
The jury acquitted them on all the charges but, acting on a directiongiven to them by the presiding Judge that it was competent to themto do so, they found them guilty under sections 443, 380, 383 and 382read with section 32. The verdict of the jury was that there was nounlawful assembly, but that the offences of house-breaking, robbery,grievous hurt and hurt were committed by the appellants acting infurtherance of a common intention within the meaning of s. 32 of thePenal Code.
The main question that arises for our decision is whether it waRcompetent to the jury to return a verdict of guilty under sections 443,380, 383 and 382 read with seotion 32 when those offences did not formthe subject of separate charges but wore referred to in charges coupledwith s. 146. The answer to this question would depend on whethercharges under the former sections are implicit in charges under the lattersections.
It is well settled law that s. 146 creates a specific offence and dealswith the punishment of that offence and that s. 32 merely declares aprinciple of law and does not create a substantive offence. BarendraKumar Qhose v'. Emperorl.
The scope of sections 148 and 32 was defined by the Privy Council inthe case of Barendra Kumar Qhose v. Emperor (supra). Lord Sumnersaid:—
(1)u The other part of the appellant’s argument rests on sections 114and 149 (which correspond with sections 107 and 147 of our PenalCode) and it is said that if s. 34 (which corresponds with s. 32 of ourPenal Code) bears the meaning adopted by the High Court—thesesections are otiose. Section 149, however, is certainly not otiose for* A.l.ft. (1925) P. C. 1-. A.I.R. (1924) Cal. 267.
JAYETLLEKE S.P.J.—The King v. Heen Baba
in any case it creates a specific offence and deals with the punishmentof that offence alone. It postulates an assembly of five or morepersons having a common object, viz., one of those named in s. 141(which corresponds with 8. 138 of our Penal Code) and then the doingof acts by members of it in prosecution of that object. ”
“ S. 34 deals with the doing of separate acts, similar or diverse,by several persons ; if all are done in furtherance of a common intention,each person is liable for the result of them all, as if he had done themhimself, for ‘ that aot ’ and ‘ the act * in the latter part of the sectionmust include the whole action covered by ‘ a criminal act ’ in the firstpart, because they refer to it. ”
When the charges are read in the light of the first dictum it is clear thatthe appellants were not charged on counts 2, 3, 4, 5, 6 with havingcommitted the offences of house-breaking, robbery, grievous hurt andhurt themsleves but the}' were charged on the basis that they wereconstructively liable inasmuch as some person or persons committedthe said offences in prosecution of the common object of the unlawfulassembly in which they were engaged. In order to establish these chargesthe Crown had to prove—
That the appellants were members of an unlawful assembly.
That the offences were committed in prosecution of the common
object or that the offences were such as the members knew tobe likely to be committed in prosecution of the common object.
That the appellants were members of the assembly at the time the
offences were committed.
It must be noted that in count 4 there is an allegation that the offencewas committed in prosecution of the common object or was such as themembers of the assembly knew to be likely to be committed in prosecutionof the common object. The distinction between the Scope of the twosections is brought out very clearly in the following j>assage in Dr. Gout’swell-known commentary on the Penal Law of British India.1
“ It should be observed that the words used here (s. 34) are ' infurtherance of the common intention of all' whereas in s. 149, describinga similar community of intention and design of an unlawful assembly,the words used are ‘ in prosecution of the common object of thatassembly1 winch cannot mean the same thing as the words used here.What they do mean will, however, be clear by a comparison betweenthe two sections: First, this section is wider as regards the complicityof criminals, since it affects them regardless of number, whereas s. 149limits it to persons whose number is not less than five; secondly,while the common object under this section is undefined that under
149 is limited by s. 141 ; thirdly, a conviction under this sectioninvolves a co-operative criminal act whereas under s. 149 all membersof an unlawful assembly became constructively liable for an offencecommitted by one or more of them. In the one case there must beproof-of the criminal act, while in the other liability would arise fora mere criminal intention or knowledge. ”
1 Oour M / page J86, Sth Edition.
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JAYETILEKE S.P.J.—The King v. Been Baba
and in the following passage in the judgment of Lord Sumner in BartndraKumar Ghost v. Emperor {supra):—
“ There is a difference between object and intention for, thoughtheir object is common, the intentions of the several members maydiffer and indeed may be similar only in respect that they are allunlawful while the element of participation in action which is theleading feature of s. 34 is replaced in s. 149 by membershipof the assembly at the time of the committing of the offence. Bothsections deal with combinations of persons, who became punishableas sharers in the offence. Thus they have a certain resemblanceand may to some extent overlap, but s. 149 cannot at any raterelegate s. 34 to the position of dealing only with joint actionby the commission of identically similar criminal acts, a kind of casewhich is not in itself deserving of separate treatment at all. ”
According to Dr. Gour the main distinction between the two seotions isthat in s. 32 criminal liability ensues from the doing of a criminalact in furtherance of the common intention whilst in section 146 itensues from mere membership of the assembly at the time of the com-mitting of the offenoe in prosecution of the common object. There iB anillustration in Dr. Clour’s commentary at page 187 which shows that thoevidence of criminality under tho sections varies according to the degreeof the criminal intent or criminal act, and that the mens rea of the twosections may at times overlap one another. It reads:—
“ A plans a dacoity and invites B, 0 and D to join him. They agreeto commit dacoity at P’s house. Here A has abetted dacoity byB, C and D and all the four became members of a criminal conspiracyand would be liable to punishment under s. 120b. They are ofcourse not yet liable under ss. 34, 114 and 149. Now A says toB, C and D * I am an old man and will only keop a watch outsideP’s house ’—which he does: B, C and D enter P’s house and robP. Hence A became liable under s. 114 for the dacoity to the sameextent as if he had actually joined in robbing P. Now if while pro-ceeding to P’s house A, B, C and D meet E and wish him to jointhem in the dacoity and he refuses, A, B, C and D all became liable asabettors under s. 115. Now suppose E agrees mid joins thefour, the five become an unlawful assembly under s. 141 ; andsuppose E gets hurt while crossing a ditch and remains behind whilethe remaining four proceed to rob P, A is nevertheless liable with thefour by reason of s. 149 but s. 34 has not yet come intoplay. But suppose when E joined he warned his companions thatwhile he was for dacoity he was not for shedding blood. But A andB were enemies of P and had previously decided to kill him.
Here the common intention of . A and B was to kill P though thecommon objeot of all the five was to dacoit P. Section 34 begins tofunotion. Now suppose after the dacoity is over B gives P a fatalstroke, B’s stroke oould be treated as A's stroke as well by reason ofs. 34 though C, D, and E could not be liable for the murder of P.Now suppose in committing dacoity one of them C is seized by P to
JAYETILEKE S.P.J.—The King v. Heen Baba
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rescue whom B, C and D strike P with lathis of which P dies, here Bhad intended to kill P in any case and he with A must share theconsequences of B’s act, while the common object of the assemblybeing to dacoit P in prosecution of which B, 0 and D kill P thoughby reason of s. 149 all five become prinut facie liable for the murderof P. ”
The illustration shows the various stages at which ss. 32 and 146came into play and the various offences committed by A, B, C, D and £according to their intentions and objects at various stages. Suppose Pwas killed by B after the dacoity was over in furtherance of the commonintention formed by himself and A, and the prosecution, in ignorance ofthat faot, charged all five with murder under s. 146 read withs. 296, could it be said that a charge against A and B for murder unders. 296 read with s. 32 was necessarily implicit in the former charge ?We think not, because they were charged on the basis that the murderwas committed either in prosecution of the common object of commit-ting house-breaking and robbery or that they knew that murder waslikely to be committed in prosecution of the common object. In aohargo under s. 296 read with s. 32 the prosecution would have toprove that A and/or B struck the blow which killed P and that the blowwas struck in furtherance of the common intention of A and B to kill P.We are unable to say that there is necessarily implicit in the chargeunder s. 146 read with s. 296 an allegation that A, B, C, D and £ com-mitted the murder by their own acts. The joint judgment of Holmwoodand Imam JJ., in Reazaddi v. Emperor1 appears to us to be directly inpoint on this question, and we would follow it, as it is in accord with thegeneral principles of law and justice. They said:
“ When a Court draws up a charge under s. 325 read withs. 149 it clearly intimates to the accused persons that they did notcause grievous hurt to anybody themselves but that they are guiltyby implication of such offence, inasmuch as somebody else inprosecution of the common object of the riot in which theywere engaged did cause such grievous hurt. Now when thesepersons are acquitted of rioting obviously all the offences whichthey are said to have committed by implication disappear and thedefence cannot be called upon to answer to the specific act ofcausing grievous hurt merely because it may have appeared in theevidence; for the Court having already declared by its charge thatthey did not commit a specific act, or not having given effect to theevidence for the prosecution by framing a fresh charge, the defencewould not be justified in wasting the time of the Court in defendingthemselves on a ohargo which had never been brought against them.Thi6 will bo perfectly clear if the offence disclosed by the evidencewas the heinous one of murder and the Court framed no charge ofmurder but went on with the charge of rioting. Obviously in thatcase the accused could not be called upon to defend themselves on thecharge of murder for it is only in the Session Court that the said chargecan be tried. The Magistrate appeals to the provisions of s. 341 {1912) 13 Or. b. J. 502.
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JAYETTLEKE S.P.J.—The King v. Hem Baba
but s. 34 can only come into operation when there is a sub*stantive charge of grievous hurt. The considerations which governs. 34 are entirely different and in many respects the opposite of thosewinch govern s. 149 and it is now settled law that when a person ischarged by implication under s. 149 he cannot be convicted of thesubstantive offence. ”
Our attention was drawn by learned Grown Counsel to the case ofBhondu Das v. Emperor1 in which Courtney-Terrell C.J. and Adami
J.declined to follow the judgment of Hohnwood and Imam JJ. inReazaddi v. Emperor (supra). The learned Chief Justice said:—
“ Now follows an important passage in the judgment which showswhy in my view the judgment must be considered to be overruledby the decision of the Privy Council.
‘ The considerations which govern section 34 are entirely differentand in many respects the opposite of those which govern section 149,and it is now settled law that when a person is charged by implicationunder s. 149 be cannot be convicted of the substantive offence.’
The reasoning of the decision (entirely dispelled by Lord Sumner)was based on the view that e. 34 necessarily involved specificacts or a group of specific acts of a similar character which broughtabout the wounding or killing of the persons injured. At that timethe Court did not understand the real meaning of s. 34 and thewhole basis of the decision has been destroyed by the judgment ofLord Sumner. Before that judgment it was believed that s. 34only covered a group of acts of a similar character which contributedto a common result but this view has now been dispelled and it followsthat the same act on the part of Bhondu Das alleged in the charge andin the evidenco in this case in support of s. 326 read with section149 would also support a charge under s. 326 read with section 34.”
The learned Chief Justice said further that the judgments in The. Govern-ment of Bengal v. Afakaddin2, Abhiram Jha v. Emperor*, and Queen v.Ramjirar Sirbojirar4, illustrate the real test of whether a convictioncan bo upheld upon a charge which was not expressly formulated, i.e.,whether the facts which it was necessary to prove and on which evidencewas given on the charge upon which the accused is actually tried are thesame as the facts upon which he is to be convicted of the substantiveoffence. If they arc and if the accused is put to no disadvantage andwould have to adduce no further evidence, then he may be rightlyconvicted of the substantive offence notwithstanding that the chargewas originally framed under ss. 147, 148 or 149.
We have examined the cases referred to by the learned Chief Justiceand we find that they are by no means helpful on the question we haveto decide. In The Government of Bengal v. Afahaddin (supra) the decisionwas based on a. 457 of the Indian Criminal Procedure Code whichfinds no place in our own Code. In Abhiram Jha v. Emperor (supra) thelearned Judge who decided the case said that each case must bo decided
' A.I.R. (J929) Patna 11.» 15 C.W.N. 254.
• l.L.R. 2 Cal. 871.* 12 Bom. H. C. R. 1.
TAYETILKKE S.P.J.—T)x King v. Heen B«bu
271
on its own facto. He said further that though it was sought to implicatethe appellant under s. 149 the finding was that he was the actualassailant, and, in that sense, the offence under s. 326 was includedin the constructive offence under s. 326 read with s. 149. He gaveno reasons for his decision. In Queen v. Hamjimr Sirbojirar (supra) aperson was charged with—
attempting to commit criminal breach of trust as a public servant,
framing as a public servant an incorrect document to cause an
injury, and
framing as such public servant an incorrect document to save a
person from punishment,
and was acquitted on the ground that he wa6 not a public servant. TheHigh Court held that the Judge ought to have convicted him of attemptingto cheat as the facts which he would have had to meet on that chargewere the same as he would have had to meet on the charge of criminalbreach of trust. With respect, we would say that that case was correctlydecided but it has no application to the present case. It seems to us thatthe ratio decidendi in Reazaddi v. Emperor (supra) is that when a person ischarged with having committed an offence under s. 149 he is toldthat he committed an offence constructively, and, when he is acquittedof that offence, ho cannot bo convicted of having committed the offeneeby his own acts in the absence of a charge that lie did so. It is correctto say that the learned Judge said in the course of his judgment thatthe considerations which govern s, 149 are entirely different and inmany respects the opposite of those which govern s. 34, but we donot agree that the reasoning of that decision is contained in those words.We are of opinion that the safer and the more proper view is that takenin Reazaddi v. Emperor (supra.)
Learned Crown Counsel also invited our attention to the judgmentof Hearne J. in The King v. Sayaneris*, and to the judgment of thisCourt in The King v. De Silva*. In The King v. Sayaneru (supra) Hearne
J., followed two Indian cases which were cited to him and held thatwhere an accused person is convicted of rioting and causing hurt and grie-vous hurt under as. 315 and 317 read with a. 146 the conviction may bealtered by the Supreme Court in appeal to a conviction of causing hurtand grievous hurt under ss. 315 and 317 read with s. 32 of the PenalCode. Though Hearne J. referred to the opinion of the Privy Councilin Barendra Kumar Ghost (supra) in his judgment he overlooked the factthat it was decided in that caso that s. 146 created a specific offenceand dealt with the punishment of that offence alone. In The King v. DeSilva (supra) there were three charges—
a charge undeV s. 140
a charge under 8. 146 read with s. 296 and
a charge under s. 296 read with s. 32.
The accused was convicted on the first two charges whereupon theCrown withdrew the third charge. On appeal it was fouud that the1 (1937) 39 N. L. R. 148.* (1940) 41 N. 1. R. 483.
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The King v. Marshall Appuhamy
conviction on the first two charges could not be sustained on the ques-tion of an unlawful assembly. Learned Crown Counsel contended thatthe withdrawal of the third charge did not preclude the Court from con-victing the accused on that charge. He relied on the provisions of s. 185of the Criminal Procedure Code read with s. 6 (2) of the Court of CriminalAppeal Ordinance, No. 23 of 1938. He further contended relying on TheKing v. Sayaneris (supra) that apart from the third charge the jurycould have oonvicted the accused on count 2 without “ unlawful as-sembly Howard C.J., who delivered the judgment of the Courtsaid“ We are in agreement with these contentions. ” Here again we wouldrepeat what we said before that the learned Chief Justice overlookedthe decision of the Privy Council in regard to the scope of s. 146.
Learned Crown Counsel addressed another argument to us that theoffences of which the appellants were convicted are minor offences withinthe meaning of s. 183 of the Criminal Prooedure Code. The two illus-trations given in the section indicate that there is no substance in thatargument.
For the reasons given above we are of opinion, that in the absence ofa charge the appellants could not have been convicted under ss. 433, 380,383 and 382 read with s. 32.
On the facts the evidence against both appellants is that of ThevaniAmma. She said that she identified both appellants when they cameinto the house but when she was taken to the identification parade shefound it difficult to identify the 1st accused appellant by looking athis face. She examined his arms and identified him by the tattoo markson the arms. That fact leaves room for the suggestion that she hadbeen told by someone that the first accused appellant had tattoo markson his arms. The evidence against the 1st accused appellant appearsto be very weak.
We are of opinion that the convictions of both appellants must bequashed, and we would order accordingly.
Convictions quashed.