036-NLR-NLR-V-61-THE-QUEEN-v.-GOPALAPILLAI-and-another.pdf
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The Queen v. GopalapiUai
(Tet nnc Court of Grtmtkal Appeal]
1959Present: Easnayake, C.J. (President), Fulle, J., and
H. N. G. Fernando, J.
TH H! QUEEN v. GrOPAIxAPTLIiAl and anotherAppeals 106 and 107 of 1958, -with Applications 142 and 143S. C. 4—M. C. Batticaloa 1,925
Sentence—Conviction on several counts—Omission of trial Judge to pass sentenceregarding some counts—Power of Court of Criminal Appeal to rectify the omis-sion—Court of Criminal Appeal Ordinance, s. 6 (1).
Common intention-—Scope of section 32 of the Penal Code.
Where an accused person is convicted on several counts but the trial Judgepasses sentence in respect of some only of the counts and omits to pass sentencein respect of the remaining counts, the Court of Criminal Appeal has no powerunder section 6 (1) of the Court of Criminal Appeal Ordinance to impose anysentence in respect of the remaining counts if it acquits the accused on the countsin respect of which sentence was passed by the trial Judge.
A and B were indicted for murder. The evidence showed that Adirected B to shoot C. When B was attempting to shoot C, the deceased, whowas nearby, went towards A and B and asked them “ Why are you shooting ? ”.Then B, who was aiming his gun at C, aimed it at the deceased and killed him.
Held, that section 32 of the Penal Code was not applicable inasmuch as therewas no common intention between A and B in regard to the act of B in killingthe deceased. A was therefore entitled to be acquitted.
A
^APPEALS against two convictions in a trial before the Supreme Court.
■9*
Colvin B. de Silva, with J. A. P. Cherubim, S. Saravanamuttu, A. C. M.
Amit, M. L. de Silva, and A. C. M. Uvais ( assigned), for Accused-Appel-lants.
C. Alles, Deputy Solicitor-General, with B. A. de Silva, Crown
Counsel, for the Crown.
Cur. adv. vult.
BASXAYAKE, C-J.—The Queen v. Qopalapillai1B1
January 26, 1959. Basnayaxe, C.J.—
The appellants who are father and son were convicted on the followingcharges :—
“ 1. That on or about the 27th day of July 1957, at Kothiyapulaiin the division of Batticaloa, within the jurisdiction of this Court,you did commit murder, by causing the death of one SembakuttiKandapodi, and that you have thereby committed an offence punish-able under section 296 of the Penal Code. '
“ 2. That at the time and place aforesaid and in the course of thesame transaction, you did shoot one Palipody Nagamany with a gun,with such intention or knowledge, and render such circumstances,that had you by such act caused the death of the said Palipody Naga-many, you would have been guilty of murder, and that you by suchact caused hurt to the said Palipody Nagamany, and that you havethereby committed an offence punishable under section 300 of thePenal Code.
** 3. That at the time and place aforesaid, and in the course of thesame transaction, you did shoot at one Elivathamby Palipody with agun, with such intention or knowledge and under such circumstances,that had you by such act caused the death of the said EliyathambyPalipody, you would have been guilty of murder, and that you havethereby committed an offence punishable under section 300 of the PenalCode. ”
Learned counsel for the appellants did not challenge the verdict againstthe 2nd accused, nor did he challenge the verdict on the 2nd and 3rdcharges against the 1st accused. He maintained that the verdiet againstthe 1st accused on the 1st charge was not supported by the evidence.We sba.11 therefore confine our attention to the matters urged on behalf ofthe 1st accused in respect of the verdict of murder against him.
The charge is that both the accused-appellants committed murderby causing the death of Sembakutti Eandapodi. Shortly the prosecutioncase is as follows :—-The 1st accused with a bag in his hand and his sonthe 2nd accused carrying a gun approached the western boundary of thedeceased’s garden. The 1st accused took out a cartridge and handingit over to the 2nd accused said, “There goes Palau’s son Nagamany, shoot-him. ” The 2nd accused loaded bis gun and shot him. Next the 1staccused handed over to the 2nd accused another cartridge and he loadedbis gun and attempted to shoot Palipody. Then the deceased who wasnear by went towards the accused and asked them “ Why are youshooting 1 ”. Then the 2nd accused who was aiming his gun at Eliya-thamby Palipody aimed it at the deceased. He turned to run but wasinjured by the shot fired by the 2nd accused and he fell. The 1st accusedtook yet another cartridge from his bag and handed it over to the 2ndaccused, who loaded his gun and fired it at Eliyathamby Palipody, whomhe missed.
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BASNATAKE, C.J.—The Queen v. Gopalapillai
On this evidence it is clear that it was xxot the 1st accused who shot thedeceased. It is also dear that when he handed the cartridge which wasfired at the deceased he did not intend that the 2nd accused should shootthe deceased. The question that arises for decision then is whether bythe operation of section 32 of the Penal Code he is liable for the act of the2nd accused in the same manner as if it were done by him alone. Tnour opinion the evidence does not bring section 32 into operation. Theconviction of the 1st accused on the 1st charge of the indictment shouldtherefore be quashed and we direct that a judgment of acquittal be enteredin respect of that charge.
The learned trial Judge has not imposed a sentence on the 1st accusedin respect of the 2nd and 3rd charges of which he has been found guilty.As we were not agreed that we have power under the Court of CriminalAppeal Ordinance to impose a sentence in respect of a charge on which thelearned trial Judge had omitted to impose a sentence we directed thatthis appeal be listed for further argument on that point. Learned counselfor the appellant contended that section 6 of the Court of Criminal AppealOrdinance did not empower this Court to impose a sentence in a case suchas this. Sub-section (1) of that section reads—■
“ If it appears to the Court of Criminal Appeal that an appellant,though not properly convicted on some charge or part of the indictment,has been properly convicted on some other charge or part of the indict-ment, the court may either affirm the sentence passed on the appellantat the trial or pass such sentence in substitution therefor as they t.hfnirproper and as may be warranted in law by the verdict on the charge orpart of the indictment on whieh the court consider that the appellanthas been properly convicted. ”
Learned counsel stressed the fact that the section empowered the Courtto pass a sentence in substitution of tbe sentence passed by the trialJudge and that where the trial Judge had passed no sentence at all thequestion of substitution does not arise.
Learned counsel for the Crown relied on the eases of Dorothy PamelaO'Grady1 ; Thomas Henry James Lovelock 2 ,*and Victor Frank CochraneHervey ds William Goodwin 3. After we had reserved judgment he alsobrought to our notice the decision of this Court in S. C. No. 13—M. C.Oampaha 26876 decided on 5th March 1956. In O'Grady's case theappellant (a woman) was tried on an indictment containing nine counis.She was acquitted on counts 1 and 4 and convicted on the other seveneounts. She was sentenced to death on the two charges under theTreachery Act, 1940, but no sentence was passed in respect of the other•charges. In appeal the convictions of the charges under the TreacheryAct were quashed and the sentence of death was set aside. The Courtproceeded to impose a sentence of fourteen years’ penal servitude on the
a 28 Or, App. B. 33.
3 40 Or. App. B. 137, {1956) 1 W. L. B. 1217,27 Or. App. B. 146.
108.
BASNAYAKE, C.J.—The Queen v. GopalapiUai
remaining convictions. It does not appear from the report that the scopeof the power conferred by section 5 (1) of the Criminal Appeal Act, 1907,which is the same as our section 6 (1), was considered when the sentencewas imposed on the remaining convictions. Lovelock’s and Goodwin’scases are different and in those cases the sentences that were imposedwere in substitution of those passed at the trial. In the former casethe appellant was convicted of attempted rape. He was sentenced tosix years' imprisonment in respect of it. He had pleaded guilty toan alternative count of indecent assault arising out of the same incidentfor which he received a concurrent sentence of two years' imprisonment.The conviction for attempted rape was quashed. Acting under section•5 (1) of the Criminal Appeal Act, 1907, the Court substituted for thesentence of two years' imprisonment a sentence of six years' preventivedetention. In the latter case the appellants Hervey and Goodwin wereconvicted on four out of five charges. Hervey was sentenced to threeyears’ penal servitude and Goodwin to two years’ imprisonment- Good'win appealed against his conviction. The Court of Criminal Appeal held"that Goodwin’s conviction on charges 4 and 5 could not be supportedand ought to be quashed, while his conviction on charges 1 and 2 wasaffirmed (he had been acquitted on charge 3 at the trial). The Courtreduced Goodwin’s sentence to eighteen months’ imprisonment.
We are taxable to accept O’Grady’s case as having any persuasive forceas no reasons have been given for what seems to us a disregard of thewords of the section. In the previous decision of this Court to whichlearned counsel for the Crown has drawn our attention the question doesnot appear to have been argued as fully as it has been on this occasion.The fact that sub-section (1) of section 6 empowered this Court to pass a.sentence in substitution for the sentence passed on the appellant at thetrial seems to have passed unnoticed.
In tiie instant case as the learned Judge has not passed any sentenceat all on the 2nd and 3rd charges we are unable to pass a sentence insubstitution of that passed at the trial. The Ordinance does not empowerthis Court to supply the omission of the trial Judge. The legislature hasassumed that an offender who is found guilty would in the ordinary coursehe sentenced to the punishment the Judge of trial thinks he deserves andhas not contemplated a ease in which the Judge refrains deliberately orotherwise from performing the duty of imposing a sentence on the chargeson which a prisoner has been properly convicted. It has been stated overand over again that the Court of Criminal Appeal can only exercise suchpowers as are expressly entrusted to it by the statute and no other.
The 1st accused is accordingly entitled to be discharged from prison.The appeal of the 2nd accused is dismissed.
First accused discharged.
Appeal of 2nd accused dismissed.