The King v. Assappu
[Court or Crbotal Appeal.]
1948 Present: Dias J. (President), Nagalingam and Gratiaen JJ.
THE KING v. ASSAPPU et al.
Applications 184-186S. C. 11—M. C. Galle, 6,233
Court of Criminal Appeal—Common intention—Direction to Jury—Duty ofJudge—Penal Code, Section 32.
In a ease where the question of common intention arises the Jury-must be directed that—
the case of each accused must be considered separately.
the accused must have been actuated by a common intention
with the doer of the act at the time the offence was committed.
common intention must not be confused with same or similar
intention entertained independently of each other.
there must be evidence, either direct or circumstantial, of pre-
arrangement or some other evidence of common intention.
the mere fact of the presence of the accused at the time of the
offence is not nec essarily evidence of common intention.
Applications for leave to appeal from three convictions in a trialbefore a Judge and Jury.
Colvin R. de Silva, with H. A. Chandrasena and K. C. de Silva, for allapplicants.
H. A. Wijemanne, Crown Counsel, for the Crown.
Cur. adv. vult.
(1913) 16 N. L. R. 413.
DIAS J.— The King v. Assappu
August 8, 1948. Dias J.—
The first, second and third accused apply for leave to appeal againsttheir convictions for the murder of one Kottage Sediris Perera on June 3,1947, at Mawadawila in the Galle District. The three accused along withtwo others, the fourth and fifth accused, were jointly charged undersection 296 of the Penal Code read with section 32 of the Penal Code..Therefore, the case for the prosecution was presented on the footing thatall the five accused persons were actuated by a common murderousintention at the time the deceased Sedris Perera was killed.
After the summing-up of the learned Judge the Jury deliberated forfifteen minutes. They announced that they were unanimous. Theywere asked whether they found the prisoners guilty or not guilty ofmurder as charged in the indictment. The record then reads as follows :—
Foreman : We find the first, second and third prisoners guilty ofmurder ; and the fourth and fifth prisoners guilty of voluntarily causingsimple hurt.
Court : What view do you take of the facts %
Foreman : We accept the prosecution witnesses’ evidence. Fourthaccused of simple hurt due to the Judicial Medical Officer’s evidencethat the blow was one given without much force with a sword—a lightblow. Fifth accused we take the view lightest of the contusions givenby him.
No further attempt was made to elucidate what the Jury meant.The applicants were sentenced to death. The fourth and fifth acousedwere discharged on their entering into recognizances, to be of goodbehaviour and to come up for sentence at any time within a period ofsix months.
The case for the prosecution consists of four separate incidents. Atabout 5 p.m. on the day in question the first and second accused accom-panied by the fourth accused and a man called Rotin came to the houseof the deceased man who at that time was in his back compound tetheringa goat. The first accused was armed with a gun, the second applicanthad “ something like a knife ”, the fourth accused had a sword and Rotinwas armed with a club. These men enquired from the wife of thedeceased where “ the chandiya ” was—meaning the deceased. Thewoman replied that he was not at home, whereupon the first accusedopened the gun, loaded it and pulled the trigger. This shot took effecton the wall of the deceased’s house, and the marks of that shot weresubsequently seen by the police. As the shot was fired the womanclosed the door. She then heard the sound of a second shot. This isthe first incident.
The deceased man then entered his house by the back door. He armedhimself with an iron rod and went out by the back door. Whattranspired then, nobody knows except the deceased and the four menwho came there. The woman however says she heard the noise of anassault. She came out of the house and saw Rotin lying injured on the
DIAS J.—The King v. A aaappu
doorstep and her husband standing by with the iron rod. The otherthree men had disappeared. A government clerk, Mr. Nansiridasa,happened to pass along the road on a cycle. The deceased man stoppedhim and told him to inform the village headman of what had happened.The deceased having waited for a while, but as the headman did not come,he left Rotin lying on his doorstep and went out saying he would borrowa cycle from Somadasa and go in search of the headman. He was-unarmed and carried a cap in his hand. The woman did not see herhusband alive again. This is the second incident.
A little later the woman heard cries and she went in that direction to-investigate. She saw the fifth accused dragging the dead body of thedeceased by his legs and the first, second, third and fourth accusedfollowing the fifth accused. The woman was frightened and she wenthome. She found Rotin still lying on her doorstep. She is unable tosay how her husband met with his death. Something, therefore, hadhappened to cause the death of the deceased after he left his house.
The witness Somadasa Waidiyatilleke says that his house is by the road-side. At about 6 p.m. on the day in question he heard a commotion onthe road, and came out to see what was the matter. He saw the first,second, third, and fourth accused. The first accused had a gun and thefourth accused had a sword. He saw others running behind them atsome distance. As there had been previous ill-feeling between himselfand first accused, Somadasa went inside his house and locked the frontdoor. Seeing Somadasa enter his house, the first accused said “ This isone of the fellows we want, break open the door ”. Thereupon stones-were pelted at his house. Somadasa also heard the report of a gun.This is the third incident.
Then Somadasa heard the first accused say “ There comes the manwe want ”, and he heard the sound of people running towards Ratgama.Being curious, Somadasa stood on his bed and looked through the fan-light. He saw the deceased man coming along the road carrying a capin his hand. The first four accused ran towards him. Deceased seeingthem halted. Somadasa saw the fourth accused cut the deceased with asword. The first accused fired a shot in the direction of the deceasedand then hit him with the gun butt holding the weapon by its barrel.The deceased fell and the gun stock broke. The third accused struckthe deceased with a manna knife. The fifth accused came runningwith a club and struck the deceased with it as he lay fallen. Amaradasa,the brother of Somadasa, came along the road. Some of the accusedare alleged to have rushed at him and assaulted him. The first accusedseeing Somadasa watching came running up and pelted a stone whichfell into the house. After that the fifth accused dragged the deceasedalong the road followed by the others. It was at this point of timethe widow says she saw her husband. At the time the deceased wasassaulted the second accused had a knife, the third accused a “ manna ,rknife and the fourth accused a sword. The Jury have stated that theyaccepted the evidence of the prosecution witnesses.
The medical evidence shows that the deceased sustained 16 externalinjuries which can be classified as (a) Contusions, (6) Contusions with
DIAS J.— The King v. A.asnpp u
abrasions, and (c) Incised wounds. This indicates that at least two-separate agencies were used by his assailants to produce those injuries.The post-mortem disclosed that there were two fissured fractures of theleft temporal bone extending to the base of the skull. It was theseinjuries which by injuring the brain caused death. These injuriescorrespond to the external injuries 11, 12, 14 and 16, namely, a contusionon the left side of the head 4 in. long and scalp deep, a contused wound-on the left cheek and temple 7 in. long and £ in. deep, a contused woundbehind the ear 2 in. long, and a contused wound below the last injury1£ in. long and scalp deep. The doctor was of opinion that the fatalinjuries would be caused by a hard blow from a broad object like a clubof broad dimensions. The stock of a gun would we think be capable of'producing those injuries. There is no evidence that any of the otherinjuries contributed to the death of the deceased man.
We are of opinion that the fatal injuries were inflicted by the firstapplicant with the butt-end of the gun he carried. Having regard to theforce with which those blows were inflicted, the manner in which theywere caused, and the result which they produced there is no room fordoubt that the first accused inflicted those injuries with a murderousintention. We are, therefore, of opinion that the conviction of the firstaccused is right. At the close of the argument we indicated that theapplication for leave to appeal by the first accused should be refused.
The evidence proves that the first, second, and fourth accused wenttogether to the house of the deceased man. They were all armed withdeadly weapons. That they had animosity against the deceased isproved by the facts that they asked the widow where “ the chandiya ,rwas, and the firing of the shots at the house of the deceased. That afight then took place between the first, second, fourth accused and Rotinon the one side and the deceased man on the other appears to be clear..In the course of that fight Rotin was seriously injured by the deceasedman. The first, second, and fourth accused went away, leaving Rotinlying on the doorstep. They came together armed and left the placetogether. They were then joined by the third accused who was armedwith a manna knife. Seeing the deceased man coming along the roadthe first accused said “ There comes the man we want ”, Thereupon, thefourth accused began the attack by cutting the deceased man with hissword. The first accused fired a shot as he ran and clubbed the deceasedwith the butt of his gun. This felled the deceased, whereupon he wasfurther assaulted and cut by the four accused. The second, third andfourth accused did nothing to dissuade the first accused. The fifthaccused came running armed with a club and hit the fallen man.
Therefore, while it is possible to take the view that the fifth accusedmay not have been actuated by a common intention with the first accusedwho dealt the fatal blows, it is difficult to see how such a distinctioncan be drawn between the case of the fourth accused on the one handand that of the second and third accused on the other. Nevertheless,the Jury, while attributing a common murderous intention to the secondand third accused who inflicted no fatal injuries, absolved the fourthaccused, who not only was armed with a deadlier weapon, but who
DIAS J.— The King v. Asaappu
•actually began, the murderous attack on the deceased at the behest of thefirst accused. This verdict can only mean that they took the view thatwhile the second and third accused were actuated by a common murderousintention with the first accused, the fourth accused had no such commonintention.
Mr. de Silva submits that the Jury having discriminated between thecases of the fourth accused and the second and'third accused when nogrounds exist for such a discrimination, this Court should give to thesecond and third accused the benefit of the doubt and absolve them alsoof a common murderous intention.
It does not follow that because the Jury has absolved one of severalpersons who are alleged to be acting with a common intention with thedoer of the criminal act, that the others participating must necessarilybe absolved also. This is a question of fact which is essentially one forthe Jury to decide, provided they have been adequately assisted anddirected by the learned trial Judge.
We have, therefore, carefully considered the summing-up in order toascertain whether the Jury had been assisted, guided and directed onthis question of common murderous intention.
After dealing with the murderous intention necessary to establish acharge of murder, the learned Judge proceeded to consider the questionof common intention. The learned Judge by means of illustrationsindicated to the Jury the cases where a common murderous intentioncan be said to be present or absent. The learned Judge pointed out thatwhen considering whether a particular accused had or had not a commonmurderous intention “ the facts must be incapable of explanation on anyother reasonable hypothesis than the guilt of the accused person ”. Atthe end of his charge the learned Judge said “ But the question again iswhether there was a common intention between the first, second, thirdand fourth accused or between some of them. The first, second, thirdand fourth accused …. were together and were armed, goingfrom this place, one using those words. Was there not a commonintention on the part of the first, second and fourth accused, if youbelieve the evidence ? Then it is a question of coming to a conclusionadverse to those whom you find had common intention ”. In an earlierpart of the summing-up the learned Judge in dealing with the case of thefifth accused differentiated his case on the facts and added “ If the fifthaccused had no common intention, it is safer to find him guilty of causingsimple hurt, if you believe he caused one of the lightest (injuries) and ifyou accept the evidence of Somadasa and the others ”. Dealing withthe case against the fourth accused, the learned Judge told the Jury“ The real question is—Was the fourth accused among the persons whoattacked the deceased on the road ? Was he armed ? If you acceptthe evidence that he was there and was armed, and was attacking thedeceased, whether any of the injuries were caused by him or not is notvery material on the question of his guilt. In testing the evidence ofSomadasa and Amaradasa you may consider whether any of the injurieswere due to a sword or not ”.
DIAS J.—The King v. Aaaappu
Mr. de Silva submits that while the learned Judge told the Jury whatthey were to do if they found that the first four accused were actuated1 y a common intention, he has not specifically dealt with the cases ofthe second and third accused, or told them what they should do in theevent of their finding that the second, third and fourth accused or anyof them did not share a common intention with the first accused.
We are of opinion that in all cases where the question of commonintention arises the Judge should tell the Jury that, in order to bring therule in section 32 into operation, it is the duty of the prosecution tosatisfy them beyond all reasonable doubt that a criminal act has beendone or committed ; that such act was done or committed by severalpersons ; that such persons at the time the criminal act was done orcommitted were acting in the furtherance of the common intention of all;and that such intention is an ingredient of the offence charged, or of someminor offence. The Judge should also tell the Jury that in applyingthe rule of common intention there are certain vital and fundamentalprinciples which they must keep prominently in mind—namely (a.) thecase of each prisoner must be considered separately ; (6) that the Jurymust be satisfied beyond reasonable doubt that he was actuated by acommon intention with the doer of the criminal act at the time thealleged offence was committed ; (c) they must be told' that the benefit ofany reasonable doubt on this matter must be given tot he prisoner con-cerned— 47 N. L. R. at p 375 ; (d) the Jury must be warned to be carefulnot to confuse “ Same or similar intention entertained independentlyof each other ” with “ Common intention ” ; (e) that the inference ofcommon intention should never be reached unless it is a necessaryinference deducible from the circumstances of the case—A. I. R. 1945
P.C. 118 (/) the Jury should be told that in order to justify the in-ference that a particular prisoner was actuated by a common intentionwith the doer of the act, there must be evidence, direct or circumstantial,either of pre-arrangement, or a pre-arranged plan, or a declarationshowing common intention, or some other significant fact at the time ofthe commission of the offence, to enable them to say that a co-accusedhad a common intention with the doer of the act, and not merely a sameor similar intention entertained independently of each other—47 N. L. R.at p. 375, 48 N. L. R. 295 ; (g) the Jury should also be directed that ifthere is no evidence of any common intention actuating the co-accused-or any particular co-accused, or if there is any reasonable doubt on thatpoint, then the charge cannot lie against any one other than the actualdoer of the criminal act—44 N. L. R. 370, 46 N. L. R. 135, 473, 475 ;(A) in such a case such co-accused would be liable only for such criminalacts which they themselves committed ; (i) the Jury should also be-directed that the mere fact that the co-accused were-present when thedoer did the criminal act does not per se constitute common intention,unless there is other evidence which justifies them in so holding—45 N. L. R. 510 ; and (j) the Judge should endeavour to assist the Juryby examining the case against each of the co-accused in the light of theseprinciples.
In our opinion, the Jury were not directed in regard to (g), (h) and (i).The confused and illogical verdict -.they returned by absolving the fourth
B ASN AY AKE J.—Samaranayake v. Jayasinghe
.-Accused of common intention while attributing to the second and thirdaccused a common intention with the first accused is, we think, due tothis omission.
We think that the verdict of the Jury in regard to the second andthird accused in the circumstances is unreasonable and is set aside.The evidence which the Jury accepted proves that the second and thirdaccused participated in the assault on the deceased. The injures theyinflicted were non-fatal. The Jury having absolved the fourth accused-of a common intention, we think the second and third accused in thecircu-nstances are entitled to the benefit of the doubt which operated inthe minds of the Jury in regard to the fourth accused. We, therefore,substitute a verdict of voluntarily causing simple hurt under section 315of tbe Penal Code in regard to each of them. The second and thirdaccused for this offence are severally sentenced to undergo eighteenmonths rigorous imprisonment.
The conviction of the first accused is affirmed.
Conviction of first accused affirmed.
Convictions of second and third altered.
THE KINGv. ASSAPPU et al