THE QUEEN v. J. MAHATUN and another

132-NLR-NLR-V-61-THE-QUEEN-v.-J.-MAHATUN-and-another.pdf


540
The Queen v. Mahatun
■o-
[In the CoxraT of Cbevtutal Appeal]
Present: Basnayake, C.J. (President), Sansoni, J., andH. N. 6. Fernando, 3,THE QUEEN v. J. MAHATUN and anotherAppeals 108 and 109 with Applications 138 and 139
op 1959
S. G. 28—M. G. Matugama, 30504
Common intention—Meaning thereof— Vicarious criminal liability—* ‘ Criminal act ’ ’—“ Done by several persons ”—Pencil Code, ss. 31, 32, 33, 34, 35, 36, 113a.,113b.
Under section 32 of the Penal Code, when a criminal act is committed by oneof several persons in furtherance of the common intention of all, each of themis liable for that act in the same manner as if it were done by him alone. Ifeach of several persons commits a different criminal act eacb act being in.furtherance of the common intention of all, each of them is liable for each suchact as if it were done by him alone.
To establish the existence of a common intention it is not essential to provethat the criminal act was done in concert pursuant to a pre-arranged plan.A common intention can come into existence without pre – arrangement. It.can he formed on the spur of the moment.
BAS5TAYAKE, C-J-—The Queen v. JHahaiun
541
A
■tA-PPEALS, with applications, against two convictions in a trial beforethe Supreme Court.
Colvin R. de Silva, with M. L. de Silva and Anil Moonesinghe, forAccused-Appellants.
V. S. A. Pullenaye^um, Crown Counsel, for Attorney-General.
Cur. adv. wit.
December 21, 1959. Basnayaku, C.J.—
The only ground of appeal which learned counsel has argued is that thelearned Judge’s directions as to the liability of the second accused for theacts committed by the first accused are wrong in law.
The first accused Jayaweerage Mahatun is the younger brother of thesecond accused Jayaweerage Dharmadasa. They were indicted onthe following charges :—
“ 1. That on or about the 30th of September, 1958, at Agalawattein the division of Matugama, in the division of Halutara, within thejurisdiction of this Court, you did throw a hand bomb at PitagodaHewage Dharmadasa with such intention or knowledge and undersuch circumstances that had you by such act caused the death of thesaid Pitagoda Hewage Dharmadasa you would have been guilty ofmurder, and by such act you did cause hurt to the said PitagodaHewage Dharmadasa, and you have thereby committed an offence•punishable under Section 300 of the Penal Code.
“ 2. That at the time and place aforesaid and in the course of thesame transaction yon did throw a hand bomb at Hewage Romaniswith such intention or knowledge and under such circumstances thathad you by such act caused the death of the said Hewage Romanisyou would have been guilty of murder and by such act you did causehurt to the said Hewage Romanis, and you have thereby committedan offence punishable under Section 300 of the Penal Code
In respect of the attempted murder of Pitagoda Hewage Dharmadasa-the jury returned a verdict of guilty against both of them and in respectof the attempted murder of Hewage Romanis a verdict of not guilty.The first accused was sentenced to 12 years’ rigorous imprisonment•and the second to 8 years’ rigorous imprisonment.
542
BASNAYAKE, C.J.—The Queen v. Mahatum
Shortly the facts axe as follows : Pitagoda Hewage Dharmadasa oneof the injured men was the lessee of the held known, as Medagonaduwa.belonging to the Pathiraja Pirivena of Agalawatte. It was leased to himby one K.. D. Dharmasena on deed No. 4901 of 13th September 1958(P2), On 30th September the date on which he was injured Dharmadasawent along with William his elder brother, Romanis alias Ithapanhadaya,and about six others at 9 a.m. to plough and prepare the held for sowing.About noon when they were engaged in their work the two accused,came from the direction of the adjoining temple, the Pathiraja Pirivena,.with a crowd of followers carrying swords, katties, and other weaponsand shouting : “ Get out of the held you fellows. Wait there to eatyou fellows. You fellows will he eaten up .” The two accused wereleading the crowd. The first accused had a red ball in one hand and asword in the other. The red ball turned out to be a bomb which exploded,and injured Dharmadasa when thrown at him. The. second accused,who was close behind him also had a red hall in bis hand. According:to Dharmadasa, as the first accused came he shouted : “ Get out of the-field ”, and according to Romanis both accused shouted : “ Who asked,you people to mud ? Run awayr.run away ”, and they advanced to where:Dharmadasa and his party were. The latter in fear took to flight. Dharma-dasa ran in. the direction of the ela across which was his village, pursuedby the first and second accused and their followers. When they wereabout three fathoms from the ela the first accused flung the red ballhe had in bis hand towards Dharmadasa. It struck his body and explodedinjuring him. He jumped into the ela almost simultaneously and gotacross under cover of the thickets that grew on its hanks. Romanis:was also injured. He says two bombs were thrown but is unable to saywho threw the second one.
Learned counsel did not complain against the directions to the juryin respect of the first accused, but he submitted that the followingdirections in so far as they affect the second are wrong in law:
“ Whether two bombs were thrown in this case or only one mayhave to be considered when you have to arrive at a finding on thosequestions of fact, but X want yon to remember at the outset that,in order to establish these charges that the Grown has brought in this,indictment, it is not in law necessary to prove that more than one-bomb was thrown. If only one bomb was thrown and the person,who threw it is satisfactorily identified, then there is proof that.that-person threw that bomb; but any other person who can be shown,to have acted together with the man who actually threw the bomb,who can he shown to have acted with him in such a way that youcan say that it was in furtherance of a common intention entertained,by both of them, that one of them threw the bomb, the law says the-other man must be held to be equally liable as though he had donethe act with his own hand. You may think that is not a technicality -rit is just and it is common sense that if several persons act togetherwith a common intention in indulging in any kind of criminal behaviour,then it does not matter which particular act was done by anyone of the-persons concerned. You may think that morally all of them are-equally liable and in law too the view is the same. ..
BASNAYAKE, C.J.—The Queen v. Mahatun
543
“ In. the present case, if you are satisfied that it has been provedas against either of these accused that he intentionally threw a bomb,threw it either with his own hand or by the agency of another and didso aiming it at some human being, I do not think you will have anydifficulty as to what inference you should draw as to the intentionwith which is was thrown. The Crown Would rely, I should imagine,mainly on the nature of the injuries that were actually caused by thethrowing of a bomb or by the throwing of bombs on this particularoccasion
“ Even if you are in doubt whether the second accused threw any-thing at all, you will still have to ask yourselves whether upon the otherevidence yon are satisfied beyond reasonable doubt that it was inpursuance of a common intention shared by him with the first accusedthat the first accused threw the bomb.
1 ‘ Even if you are in doubt as to whether the first accused threwa bomb, you may ask yourselves whether one of them threw a bomband whether that was done in pursuance of an intention common toboth of them. If you are satisfied, beyond reasonable doubt, that abomb was thrown which exploded and caused injuries and that thatbomb was thrown by one or other of these accused, but you cannotsay which of them was responsible for the throwing of the bombthat exploded and if you are satisfied that although you cannot saywhich of them threw the bomb whichever one threw it, it was donein pursuance of a common intention that a bomb or bombs should bethrown, then the act of one is the act of both, and it is immaterialwhich of them threw the bomb but you must be satisfied that therewas an intention common to both of them that a bomb should bethrown at Dharmadasa and Romanis .”
The evidence shows that the first and second accused and their followershad the common intention of dispossessing Dharmadasa of the fieldby violence and that the first accused in furtherance of that commonintention threw a bomb at him. It is not difficult to decide the firstaccused’s liability because he is liable for the act committed by him byvirtue of section 300 of the Penal Code which provides : “ Whoeverdoes any act with such intention or knowledge and under suchcircumstances that if he by that act caused death he would be guiltyof murder, …What is the liability of the second accused ?
The evidence establishes that he joined the first and shared his intention,that he himself shouted to Dharmadasa to clear out of the field, that healso had a red ball like his brother’s in his hand', and that he joined inpursuit of Dharmadasa and his fellow cultivators. Section 300 does nothelp to determine his liability because the evidence does not establishthat he threw his bomb at Dharmadasa or Romanis or did any act “ withsuch intention or knowledge and under such circumstances that if heby that act caused death he would be guilty of murder There is no-evidence that he aided or instigated his brother to throw the bomb, noris there any evidence of a conspiracy to commit the offence with which
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BAMAY AK~K, C-J.—The Queen v. J&ahatun
lie stood, indicted. Is lie then liable for the act of liia brother done infurtherance of their common intention ? If so what is the provision oflaw that makes him liable ? Among the general provisions of the Codein the Chapter bearing the heading General Explanation is a group ofsections 32, 33, 34, 35 and 36 which prescribe criminal liability in thecircumstances specified in those sections. They are as follows :—
“ 32. "When a criminal act is done by several persons in furtheranceof the common intention of all, each of such persons is liable for thatact in the same manner as if it were done by him alone.
** 33. "Whenever an act, Which is criminal only by reason of itsbeing done With a criminal knowledge or intention, is done by severalpersons, each of such persons who joins in the aet with such knowledgeor intention is liable for the act in the same manner as if the act weredone by him alone with that knowledge or intention.
“ 34. Whenever the causing of a certain effect, or an attemptto cause that effect, by an act or by an omission, is an offence, it is tobe understood that the causing of that effect partly by an act and partlyby an omission is the same offence.
“ 35. When an offence is committed by means of several acts,whoever intentionally co-operates in the commission cf that offenceby doing any one of those acts, either singly or jointly with any otherperson, commits that offence.
“ 36. Where several persons are engaged or concerned in the com-mission of a criminal act, they may be guilty of different offences bymeans of that act .**
Now these sections do not create any distinct offences, but theystate how criminal liability is determined in the cases set out in them.Sections 32 and 33 state in what circumstances a person is liable for anaet committed by the hand of another and not actually committed withhis hand. It lays down a rule of vicarious criminal liability. Thesesections are not easy to construe and have been the subject of controversyand there has been a conflict of judicial opinion as to their true meaning.They should be construed with due regard to both the rules of inter-pretation prescribed in the Code and the Interpretation Ordinance aswell as the general roles of interpretation of statutes. Now those sectionsdo not purport to lay down a rule by which a person is liable for actsdone by himself for such a rule is superfluous as each penal provisionof the Code makes a person liable for his own act. The sections onabetment punish those who aid, instigate or conspire with others.Sections 113a and 113b catch up those who commit the offence ofconspiracy for the commission or abetment of an offence. Althoughsuch cases are not excluded by these sections they are not designed for thepurpose of prescribing criminal liability where the same or identicalact is done jointly or in unison by several persons, if that were possible,for, in those cases too the actual doer would be responsible for his actand each of such persons would bring himself within the particular penalprovision of the Code that determines his liability.
BASNATAKE, C.J.—The Queen v. Afahatun
545
What then are the cases to which they are applicable ? Turningfirst to section 32, a literal reading of it leaves one with the impressioh.that it applies to a case in which a criminal act is done by several personsacting together. Now cases in which several persons commit identicalcriminal acts are extremely rare. Even where several persons hold thesame weapon and deal a blow at a person doubts might arise as to theexact liability of each of them under the penal provision or provisionsof the Code under which the act falls. Ihe section must therefore beconstrued not in its literal sense. In construing it we should seek to giveit a meaning which does not render it useless or impair its value. Searingin mind that it is a provision of a well-planned Code in construing it thescheme of the entire Code must be examined in order to gain its truemeaning and give It not so much the meaning which it may individuallybear as that which it ought to have from the context and the schemeof the instrument. More than any other legislative instrument a Codemust be regarded as a statute which has been carefully planned anddesigned. Every provision must be taken to be a part of a comprehen-sive scheme and superfluity is the last thing that may be attributed tosuch a document. It must therefore not be construed in such a wayas to render the provision superfluous or purposeless. It mast beconstrued so as to give it its proper place in the scheme of a Code of penallaw. The essence of a Code as observed by the Privy Council in GoJculMandar v. Pudmanund Singh 1 “ is to be exhaustive on the matters inrespect of which it declares the law. ”
The dominant concept in the section appears to oe the doing of acriminal act in furtherance of the common intention of a number ofpersons. Now what is common intention? “Common” when used,as an attributive means “ belonging or pertaining equally to more than.one, belonging to all, shared equally by two or more individuals Com-mon intention of several persons is an intention shared equally by all ofthem. In regard to the expression <s criminal act ” it would be unwiseto fetter its scope by any rigid definition. In this connection it is wellto bear in mind that the word “ act ” is defined in the Penal Code (s. 31)and denotes a single act as well as a series of acts and that in the Codewords which refer to acts done extend also to illegal omissions, (s. 30),a single omission or a series of omissions (s. 31 (2) ). In the first place-the expression means what it says, an act which is punishable by law*—acrime in the generic sense. But its meaning is not confined to a single-act. It includes an act or acts or a series of acts or an omission or a series,of omissions. Lord Sumner in Barendra Kumar's case2 described a-criminal act as “ that unity of criminal behaviour, which results insomething, for which an individual would be punishable, if it were alldone by himself alone, that is, in a criminal offence ’5. Next it is necessaryto examine the meaning of the words “ done by several persons ”. Does-the section contemplate a criminal act done by one of several persons-or all of several persons ? If the latter meaning is given the sectionwould be rendered useless. "When would the same criminal act be-committed by all of several persons ? Was it necessary to enact a special1 29 Calcutta 707.3 {1925) A. I. Ri, P. C. 1 at p. 9.
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BASNAYAKTI, G.J.—The Queen v. Mahatun
provision for such a situation ? As stated above where a number ofpersons unite to commit the identical criminal act, if such a thing werepossible, they would each be guilty of the offence committed by themunder the penal provision which makes the criminal act punishable. Inorder to give the section a plaee4n the seheme-ef- the-Gode and to renderit effective as a provision providing for a special aspect of criminalliability which the criminal law of any country should provide it mustbe construed as applying to a case in which a criminal act is committedby one of several persons in furtherance of the common intention of all.The word “ done ” must he understood in the sense of “ broughtabout ”, “ carried out ”, “ executed ”, “ performed ”, “ carried into•effect ”, “ produce ”, according to the circumstances of each case. Thefollowing statement at p. 351 of Foster’s Crown Law (1792) 3rd Ed.will be of assistance in understanding the place of section 32 in a plannedCode such as ours :
“ For in combinations of this kind, the mortal stroke, thongh givenby one of the party, is considered in the eye of the law, and of soundreason too, as given by every individual present and abetting. Theperson actually giving the stroke is no more than the hand or instru-ment, by which the tthers strike
So will the statement of the Privy Council in Gunesh Sing v. Ram Rajah1
“ Where parties go with a common purpose to execute a commonobject, each and everyone becomes responsible for the acts of eachand every other in execution and furtherance of their common purpose :as the purpose is common so must he the responsibility ”.
Having regard to the considerations stated above the section should“be construed as follows :—"When a criminal act is committed by one of.several persons in furtherance of the common intention of all each ofthem is liable for that act in the asme manner as if it were done by himalone. If each of several persons commits a different criminal act each■act being in furtherance of the common intention of all, each of them isliable for each such act as if it were done by him alone.
t To establish the existence of a common intention it is not essentialto prove that the criminal act was done in concert pursuant to a pre-arranged plan. A common intention can come into existence withoutpre- arrangement. It can be formed on the spur of the moment. Tohold that “ common intention ” within the meaning of the sectionnecessarily implies a pre-arranged plan would unduly restrict the scopeof the section and introduce an element which it has not. The followingview expressed by the Privy Council in Malibub Shah's case2 seems toimport into the section a consideration that is not an essential element of“ common intention —■
c‘ Under the section, the essence of that liability is to be found inthe existence of a common intention animating the accused leadingto the doing of a criminal act in furtherance of such intention. To
1 (1869) 12 W. R. 38—3 B. L. R. 44 (P. C.).
* (1945) A. 1. R. (P. C.) 118 at 120.
BASNAYAKE, G. J.—The Queen v. Mahatun
547
invoke the aid of s. 34 successfully it must he shown that the criminalact complained against was done by one of the accused persons infurtherance of the common, intention of all; if this is shown, theliability for the crime may be imposed on any one of the persons inthe same manner as if the act was done by him alone. This beingthe principle, it is clear to their Lordships that common intention withinthe meaning of the section implies a pre-arranged plan, and to convictthe accused of an offence applying the section it should be proved that-the criminal act was done in concert pursuant to the pre-arrangedplan.”
Now applying the section as understood in the light of what has beensaid above to the facts of the instant case, for the criminal act of the firstAccused which was done by him, being one of several persons, infurtherance of the common intention of all, each of those who sharedhis intention is liable in the same manner as if he had done it himself.The evidence discloses that the second accused is one of those who sharedthe intention in furtherance of Which the first accused threw the bombwhich injured Dharmadasa and Bomanis. He is therefore liable for itas if it were done by him alone. The learned Judge’s directions are there-fore right and the conviction of the second accused must be upheld.
The provisions of the Indian Penal Code (sections 34 and 35) whichcorrespond to sections 32 and 33 have been the subject of considerablecontroversy in India and the decision in Barendra Kumar’s case {supra)which was approved by the Privy Council can be taken as settling the■conflict between wbat is known as the narrow view represented byNirmal Kanta Roy’s case1 and the wider view upheld by that decision.The evil flowing from a construction of section 32 as narrowly asStephen J. construed it in Nirmal Kanta Roy’s case {supra) is stated■thus by Lord Sumner in Barendra Kumar’s case {supra) :
“If section 34 was deliberately reduced to the mere simultaneousdoing in concert of identical criminal acts, for which separate con-victions for the same offence could have been obtained, no small part■of the cases which are brought by their circumstances within partici-pation and joint commission would be omitted from the Code alto-gether.”
The following direction to the jury by the trial Judge in BarendraKumar’s case {supra), which is in essence wbat the .Judge in the instant■case told the jury, was approved as correct by the Privy Council:—
“Theiefoie in this case if these, three persons went to that place■with a common intention to rob the Postmaster and if necessaryto kill him and if death resulted, each of them is liable whicheverof the three fired the fatal shot.
1 {1914) 41 Calcutta 1072.
548
Ratnasabapathy v. Asilin Nona
“ If you come to the conclusion that these three or four personscame into the Post Office with that intention to rob and if necessaryto kill and death resulted from their act. if that be so, you are boqnd tofind a verdict of guilty.
“ I say, if you doubt that it was the pistol of the accused whichfired the fatal shot, that does not matter. If you are satisfied on theother hand that the shot was fired by one of those persons in furtheranceof the common intention, if that be so, then it is your duty to finda verdict of guilty.”
The following comment of Lord Sumner on the defence of the accusedthat he did not enter the Post Office, but remained outside while his,companions went in, shows how far the vicarious liability created by thesection goes :—>
“ Even if the appellant did nothing as he stood outside the door,it is to be remembered that in crimes as in other things they alsoserve who only stand and wait.”
The appeals are dismissed, and the applications are refused.
Appeals dismissed.
Applications refused.