173-NLR-NLR-V-48-THE-KING-v.-SELLATHURAI-et-al.pdf
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HOWARD CJ.—The King v. Sellathurai.
| Court of Criminal Appeal.]
J947 Present: Howard C.J. (President), Jayetileke and Dias JJ.
THE KING v. SELLATHURAI et al.
Appeals 73-83 with Applications 209-215.
S. C. 14—M. C. Mallakam, 1,092.
Unlawful assembly—Prosecution of common object—Vicarious Hflhiltty -Armed with deadly weapons—Misdirection—Penal Code, sections141 and 146.
In order to make members of an unlawful assembly vicariously liablefor the act of any one of them under section 146 of the Penal Code,the act 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.
The vicarious liability attaching to a person by reason of his beinga member of an unlawful assembly is not sufficient for a member of suchassembly who is unarmed to be found guilty of an offence under section141 of the Penal Code.
A
PPEALS, with applications for leave to appeal, against certainconvictions in a trial before a Judge and Jury.
H. V. Perera, K.C. (with him M. M. Kumarakulasingham), for theappellants.
T. S. Fernando, C.C. (with him E. L. W. de Zoysa, C.C.), for the Crown.
Cur. adv. vult.
October 20, 1947. Howard C.J.—
The appellants were charged at the Jaffna Assizes on an indictmentcontaining several counts the first of which was that on or about April22, 1946, being members of an unlawful assembly, the common object
1 {1309) .4. r. SSI.
HOWARD CJ.—The King v. Sellathurai.
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of which was to cause hurt to Murugar Chelliah, Velan Sinnapodian andMurugan Nagan, they have committed an offence punishable undersection 140 of the Penal Code. There were fourteen other counts in theindictment, count 2 changing an offence under section 141 and count 3under section 144. The remaining charges related to offences committedunder various sections of the Penal Code read in conjunction with section146 which imposed vicarious liability on members of the unlawful assemblyreferred to in count 1. There were thirteen accused of which the eighthand twelfth were found not guilty of any offence. The remaining accusedwere found guilty on counts 1, 2 and 3 and attempted culpable homicidenot amounting to murder on counts 4, 5 (a), 5 (b), 6 (a), and voluntarilycausing simple hurt on counts 5, 6, 6 (b),7, 8, 9 (a) and 9 (b), and notguilty on count 9. All except the sixth and thirteenth accused whowere fined were sentenced to various terms of imprisonment.
The facts that led up to these offences being committed are as follows : —On April 22, 1946, Murugar Chelliah, Velan Sinnapodian and MuruganNagan were working as the employees of a physician called Kathirathamby,on a fence which adjoins the compound of the thirteenth accused. Whilethey were engaged on this work, the thirteenth accused about 2 p.m.,came up and said “ don’t fence ”. The workers sent for Kathirathambywho came and told the thirteenth accused that they would stop fencingif the headman came and told them not to do so. The workers thenproceeded with their fencing. The thirteenth accused then said to herson “Go and fetch uncle”. The twelfth accused, the thirteenth accused’suncle, then arrived with the tenth accused, one of his sons, and anotherson. The came and stood talking there for some time with the thirteenthaccused. The thirteenth accused then called out to her son and told himto bring people from the cigar factory. The boy then went away while•the tenth, twelfth and thirteenth accused remained. Then about 15 or20 men came. The following were identified: —the first and secondaccused carrying guns, the third accused with an axe, the fourth, sixthand eleventh accused with swords, and fifth and seventh accused withclubs. The fourth accused began cutting down the fence. The thirdand fifth accused started pulling down the fence. The tenth accusedthrew stones at the workers. One of the latter Chelliah Pulle ran awayfollowed by Nagan. Then Velan Sinnapodian ran away. The seventhaccused called out “ Sinnapodian is running, shoot ”. Sinnapodianturned and found the first accused with a gun. He was then shot in theleg. The eleventh accused then cut him on his back with a sword, theninth accused cut him on the arm with a sword and the seventh accusedstruck him on the head. He then lost consciousness. With regardto the other two labourers, Chelliah after he ran away heard the reportof a gun behind him. He turned and looked back and the fourth accusedcut him with a sword on the left side of his face. He then lost conscious-ness. The third labourer, Nagan, was shot at by the first accusedwhile he was running away. He also received a second shot but did notidentify the person who fired this shot. He was also cut by the fourthaccused with a sword and the third accused with an axe. He then lostconsciousness. Another man, Thavacy Murugan, who was in thevicinity also received injuries from a pellet from a gun and was also
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HOWARD C.J.—The King v. Sellathurai.
hit by stones. The gun was fired by the second accused. Another man,Eliyavan Kanthan, who came attracted by the cries also received gunshot wounds.
Mr. H. V. Perera on behalf of the appellants made the followingspoints : —
that there was no evidence on which the Jury could find the
thirteenth accused guilty ;
that only persons armed could be found guilty on counts 2, an
offence committed in contravention of section 141 of thePenal Code ;
that the trial Judge has misdirected the Jury in regard to the
vicarious liability under section 146 of the Penal Code ofcertain of the appellants arising from the fact that they weremembers of an unlawful assembly.
In regard to (a) we agree with Mr. Perera that there was no evidenceon which the Jury could convict the thirteenth accused of being a memberof the unlawful assembly, the common object of which was to causehurt. It is true that the thirteenth accused sent a message by her sonto the twelfth accused and afterwards by the same agency to the workersin the cigar factory. She was also a spectator of what afterwards occurred.On the other hand there is no evidence what the cigar factory workerswere to do when they came to her compound. The evidence in regardto the thirteenth accused being a member of the unlawful assembly ispurely circumstantial. It cannot be said that such evidence is consistentonly with her guilt. The conviction and sentence of the thirteenthaccused on the various counts are therefore set aside.
In regard to (b) Mr. Fernando has cited the Indian case of in re K.Ramaraja Tevan and fifteen others 1 for the proposition that the vicariousliability attaching to a person by reason of his being a member of anunlawful assembly is sufficient for a member of such assembly who wasunarmed to be found guilty constructively of an offence under section 141.We are unable to accept the authority of this case. It is in conflict withSabir and another v. Queen Empress". It seems to us to be contrary to theexpress wording of the section which uses the words “ whoever, beingarmed with any deadly weapon or with anything which, used as a weaponof offence, is' likely to cause death ”. Moreover in the. present case thereis no mention of section 146 in count 2 of the indictment and thereforeno suggestion that the guilt of some of the accused depended on theirvicarious liability under this section. In these circumstances. we areof opinion that there was no evidence that the fifth, seventh and tenthaccused were carrying weapons of the nature contemplated by section141 and their convictions and sentences on this count are set aside.
With regard to (c) Mr. Perera has invited our attention to certainpassages in the charge of the trial Judge. On pp. 36-37, he stated asfollows : —
“ And if you find any one of them guilty of the offence of attemptedculpable homicide not amounting to murder then everyone of thosewho, you say, was in that unlawful assembly would be guilty of thatoffence. Everyone of them.
> (1930) I. L. R. 53 Madras 937.* (1894'. I. L. R. 22 Calcutta 277.
HOWARD C.J.—The King v. Sellathurai.
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Supposing you say that the 3rd accused Kandasamy, when he cutNagan with an axe on the shoulder, should have known that his actwas likely to cause death, and you find him guilty of an attempt tocommit culpable homicide not amounting to murder, then everyoneof the others, provided there were more than five, would be guiltyof the same offence, namely, the offence of attempt to commit culpablehomicide not amounting to murder
Again on p. 38 he states as follows : —
“Then, in regard to the 4th count which charges them with havingcut Murugan Chelliah with a sword, if you are satisfied that theirintention in inflicting that injury was to cause death or to cause suchbodily injury as would be sufficient in the ordinary' course of natureto cause death, then you would find each of the persons of the unlawfulassembly guilty of the offence of attempted murder ; but if you arenot satisfied that they had a murderous intention; that the personwho inflicted the injury had no murderous intention, but only theknowledge that his act was likely to cause death, then you would findeach of the members of the unlawful assembly guilty not of attemptedmurder, but of attempt to commit culpable homicide not amountingto murder.”
On p. 47 the following statement is to be found at the end of thecharge : —
“ The position is that if any act amounting to a crime was donein furtherance of the common obect of the unlawful assembly everyother member of that unlawful assembly who did not do that actwould be equally guilty because he was a member of that unlawfulassembly and that act was done in furtherance of the common object.So that if you find that the fourth accused for instance, was guilty ofattempt to commit culpable homicide not amounting to murder andif you find that that was done in prosecution of a common object tocause hurt then every member of that unlawful assembly would in theordinary course be liable to be punished though he himself had notcommitted that act which amounted to culpable homicide not amount-ing to murder.”
It is to be observed that in the earlier passages the trial Judge suggestedto the Jury that if they found one or other of the accused guilty of theoffence of attempted murder, the vicarious liability of those who weremembers of the unlawful assembly, the common object of which was tocause hurt, would make those persons constructively guilty of thatoffence by reason of the provisions of section 146. On the last pageof the charge the trial Judge does seem to have modified his previousconception of the law inasmuch as he says that “ that act must be donein furtherance of the common object”. Now the common object of thisparticular unlawful assembly was to cause hurt to Murugar Chelliah,Velan Sinnapodian and Murugan Nagan. Can it be said that, if attemptedmurder or attempted culpable homicide not amounting to murder wascommitted by one of the members of the unlawful assembly, such offencewas committed “ in prosecution of the common object of that assembly ”within the meaning of those words in section 146? Mr. Perera contends
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Saibo v. The Attorney-General.
that the phrase does not mean the same as the phrase “ during the prose-cution of the common object of the assembly.” With this contention weagree. The offence committed must be immediately connected with thecommon object of the unlawful assembly of which the accused weremembers. In other words the act must be one which upon the evidenceappears to have been done with a view to accomplish the commonobject attributed to the members of the unlawful assembly. No offenceexecutes or tends to execute the common object unless the commissionof that offence is involved in the common object. In this connectionsee judgment of Phear J. in The Queen v. Sahid Ali'. The case of Behariand others v. King Emperor' also supports the interpretation of section146 as detailed in this judgment. We do not consider that the trialJudge’s charge contained an accurate and adequate explanation of thephraseology of section 146 and in particular of the words “ in prose-cution of the common object of that assembly ”. Nor do we think thatit was open to the Jury on the facts of this case to find that the con-structive liability to which I have referred attached to those who did nottake an active part in the murderous assaults referred to in counts 4,5a, 5b and 6a.
We think however that all these accused, that is to say the fifth, sixth,seventh, ninth, tenth and eleventh accused in addition to those whocommitted specific acts are all guilty under counts 4, 5a, 5b and 6a ofintentionally causing grievous hurt under section 317 of the Penal Coderead in conjunction with section 146. We consider the offence cl causinggrievous hurt immediately connected with the common object of theunlawful assembly. In this connection I would invite attention to theIndian case of in re Manikyam Kondayya We, therefore, substitutein the 'case of all the appellants other than the thirteenth, whoseconviction is set aside, for the findings of guilty of attempted culpablehomicide not amounting to murder on counts 4, 5a, 5b and 6a findingsof guilty of intentionally causing grievous hurt. We make no modificationin the sentences imposed on these appellants on these counts.
Conviction of thirteenth accused set aside.
Conviction of other accused varied.