According to Siripala the 3rd accused stabbed
he stated that “everyone hit with sticks”
Upasena and Others vs Attorney General
(Eric Basnayake, J.)
The accused were said to be armed with sticks. These sticks wereused to turn the hay. There is no evidence of any plan that the 4th to9th accused had with the 1 st to 3rd accused. There is no evidence thgtthere was a common object to cause injury to the deceased. Althoughthe deceased was suspected of the murder of John and the 7th ac-cused had a land dispute with the deceased, that in itself is not conclu-sive proof that these accused had a common object to injure the de-ceased. The common object has to be clear although each accusedneed not know whether the other accused knew the object. If there wasno such object then these accused were in the paddy field legitimately.They were not armed with weapons but instruments that help them todischarge their work effectively. However even a stick might be used insuch a way as to cause death and each case should depend on itsown facts In Re. Ambalavanar.(1)
The accused had not gone in to the field worked by the deceasedand to that extent they were not aggressors. The learned President’sCounsel appearing for 5 to 7 accused suggests that these accusedhave been implicated as they happened to be there.
This crime was committed at the work place of the accused. Theaccused therefore had a legitimate right to be present and to be inpossession of the sticks. When 5 to 9 accused became aware that acrime was being committed should they have left the crime scene toavoid an unlawful assembly charge being framed against them ?
In Mythu Naicker vs. State of Tamil Nadu (2) at 199-(mentioned inGour’s Penal Law of India 11th Edition Vol. 2 Pg. 1420) the intention ofthe crowd was not to commit criminal trespass, arson, loot or damageor any other act of this nature. Responsible Officers had tried to pacifythis crowd but it had become uncontrollable. If any member of suchcrowd had indulged in any act of arson or violence, it cannot from suchan individual act, be presumed that it was either the common object ofthe crowd or that every member of that crowd had necessarily sharedthe object of that individual who had committed the act. In other wordsthe acts of only a few individuals of such a crowd cannot be held to be
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(2006) 3 Sri LR.
the common object of that crowd. Nor can every member of that crowdbe presumed to have shared the object with which such acts werecommitted by only a few members of that crowd.
If one becomes a member of an unlawful assembly and his associa-tion in the unlawful assembly is clearly established, his participation inthe commission of the offence by an overt act is not required to beproved if it could he shown that he knew that such offence was likely tobe committed in prosecution of the common object of the unlawful as-sembly. But while finding out whether a person was a curious specta-tor or a member of an unlawful assembly, it is necessary to keep inmind the life in a village, ordinarily uneventful, except for small squabbleswhere the village community is faction ridden, and when a serious crimeis committed where people rush to the scene just to quench their thirstto know what is happening.
It has also been held that when the injuries caused are cumulativelysufficient to cause death, it is necessary before holding each of theaccused guilty under section 302 (section 296 of the Sri Lanka PenalCode) read with section 149 (section 146 of tfie Penal Code) to findthat the common object of the unlawful assembly was to cause deathor that the members of the unlawful assembly knew it to be likely thatan offence under section 302 I. P. C. could be committed in prosecu-tion of the common object. (Sarwan Singh vs. State of Punjab (3) at159-60; Swarn Singh Shri vs. State of Himachal Pradesh; NarayanSingh vs. State of M. P. (5) Jai Ram vs. State of Rajastani6) BalkarSinghe vs. State of Punjab,(7) at 391; Lakhu Singhe vs. State ofRajastanw at 252, 253 mentioned in Gour’s Penal Law of India pg. 1409.
In the instant case, apart from the fact that the accused are relatedto each other, there is no evidence to establish that the accused 5 to 9knew what the 1st and the 2nd accused were about to commit. Thereis evidence to suggest that they all worked together. Could we draw aninference from this that the other accused knew that the 1st and the2nd accused were armed with a gun and a knife ? The gun was said tobe a short one and marked P1 at the trial. Apart from what took place
Upasena and Others vs. Attorney General
(Eric Basnayake, J.)
in the paddy field, the relationships among the accused and the enmityover the murder of John, there is no other evidence to connect the 5thto 9th accused to the crime. There is no evidence that all the accusedentertained a common object to cause injuries to the deceased. There-fore I am of the view that the prosecution had failed to prove an unlawfulassembly charge in this case. Hence all the accused are acquittedfrom the first two charges.
Common Intention
The accused were also found guilty under section 296 read withsection 32 of the Penal Code. With regard to the 5th to 9th accusedthe evidence available is that they too hit the deceased with sticks.Due to the same reasons I have mentioned earlier I am of the view thatthe evidence is insufficient to maintain a charge under common inten-tion against the 5th to 9th accused. Therefore the 5th to 9th accusedare acquitted.
Evidence against the 1st and 2nd accused
In order to justify the inference that a particular prisoner was actu-ated by a common intention with the doer of the act, there must beevidence direct or circumstantial, either of pre-arrangement, or a pre-arranged plan, or a declaration showing common intention or someother significant fact at the time of the commission of the offence, toenable them to say that a co-accused had a common intention with thedoer of the act” King vs. Assappu at 324. Both in India and Ceylon (SriLanka), the courts have accepted the principle that to make an ac-cused liable under section 32 of the Penal Code there should be evi-dence of a pre-arranged plan or pre-concert to make the accused vi-cariously liable with the doer of the act for the criminal act. Alles Jcited the Privy Council judgment in Mahbub Shah vs. Emperor™ whereit said “Common intention implies a pre-arranged plan. To convict theaccused of an offence applying section 34 it should be proved that thecriminal act was done in concert pursuant to the prearranged plan. It isno doubt difficult if not impossible to procure direct evidence to prove
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(2006) 3 Sri L R.
the intention of the individual; it has to be inferred from his act or con-duct or other relevant circumstances of the case’. Continuing Alies J.said ‘the principle in Mahabud Shah’s case has been applied in casesof direct evidence. Invariably in such cases the material question iswhether or not there was evidence of a pre-arranged plan among theassailants, where the facts disclose that assailants set upon their vic-tim and assaulted him in pursuance of which he was injured or receivedfatal injuries; King vs. Ranasinghe(10) at 375, Piyadasa(,1) Assapu{,2);Mahatun<'3); Queen vs. Vincent Fernando(U).
I have already set out in detail the evidence against the 1 st and 2ndaccused. Considering the evidence against these two accused thereappears to be clear evidence of a pre-plan. The 2nd accused first hitthe deceased to fall. After he fell on the ground the 1 st accused wentnear the deceased and fired a shot. He wanted to make sure that he hitthe target. Seven pellet wounds were found on the left side of the shoul-der as a result. Injuries 11 to 17 were not sufficient to cause death inthe ordinary course of nature. He was not dead yet. Then the 2nd ac-cused having sat on the deceased stabbed him. There were four stabinjuries out of which three were said to be sufficient to cause death inthe ordinary course of nature. When the witnesses got closer the 1staccused threatened to shoot them, and prevented the injured from be-ing taken for treatment. Thereafter the accused had left the scene. Thepolice could not find them at their residences for two days and untilsuch time as they surrendered to the police.
“If two persons took part in the assault on the deceased in further-ance of the common criminal purpose of causing the death of the de-ceased and one of them struck the fatal blow, even if it was not theaccused, then the accused will be guilty of murder”. In Romlochan(1S)quoted by Alies J in Richard’s(,6)
Section 32 of the Penal Code states that “when a criminal act isdone by several persons in furtherance of the common intention of all,each of such persons is liable for that act in the same manner as if itwere done by him alone”.
CAUpasena and Others vs. Attorney General285
(Eric Basnayake, J.)
Section 294 of the Penal Code states that “except in the cases
hereinafter excepted, culpable homicide is murderThirdly – If it is
done with the intention of causing bodily injury to any person, and thebodily injury intended to be inflicted is sufficient in the ordinary courseof nature to cause death. Illustration (c) is that “A intentionally gives Za sword cut or club wound sufficient to cause death of a man in theordinary course of nature. Z dies in consequence. Here A is guilty ofmurder although he may not have intended to cause Z’s death".
Considering the above facts and the fact that the 1st and the 2ndaccused are relations, an inference could safely be drawn that thesetwo accused had a common plan to commit this crime. Therefore theconviction of these two accused on the 3rd charge is affirmed and theappeals of these two accused are dismissed.
3rd accused
Although it was Siripala’s evidence that the 3rd accused hit thedeceased and thereafter stabbed him, this evidence has been rightlyrejected by the learned High Court Judge. The learned High Court Judgeappears to have accepted the evidence of the two sisters who wereworking at this field and who arrived at the scene while their brotherwas attacked. According to their evidence the 3rd accused hit the de-ceased with a stick. One of them stated that the 3rd accused hit thedeceased on the head. The three lacerations, namely, injury nos. 4, 6& 10 were found on the head. However the evidence with regard to theattack on the deceased with sticks by all the accused appear to bevague. The medical evidence does not support such.
Even if the court disregards the above evidence, the presence of thisaccused has been well established. There is another piece of evidenceagainst this accused, namely, the recovery of the gun under section 27of the Evidence Ordinance. The gun was marked P1. This accused hadall the reason to take part in this crime, being a brother of John,who was allegedly murdered by the deceased. After the crime wascommitted this accused too had absconded for a period of two days
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(2006) 3 Sri L R
and surrendered to the police thereafter. Before passing the sentencetoo, this accused had absconded again and appeared in court on an-other day. The 3rd accused gave no explanation in court with regard tothe incriminating evidence adduced against him. He remained silent.
Alles J in Richard vs. State (supra) at 546 said “that in the absenceof explanation … entitled to draw the reasonable inference from all thecircumstances that his presence at the scene was a “participatorypresence" as distinguished from a mere presence which would haveentitled him to an acquittal". In King vs Endoris (,7,at 499 Soertsz ACJwas of the view that in the circumstances of the case it was essentiallyone in which the third appellant should have given an explanation of hispresence at the scene. In this case the 3rd appellant did not take anactive part in the actual attack on the deceased. He was present at thescene armed with a club at the time two shots were fired by the 1st and2nd appellants and he fled with them after the shooting. “They alsoserve who only stand and wait" has to be regarded as applying not to abystander, who merely shares mentally the criminal intention of others,but to a person whose act of standing and waiting is itself a criminal actin a series of criminal acts done in furtherance of the common intentionof all" Lord Summer in Barendra Kumar Gosh vs. Emperor<ia> cited byAlles J. in Richard vs. State, (supra)
The third accused is a cousin brother of the 1st and the 2nd ac-cused. The third accused was present at the scene of the crime. Evenif the evidence of assault by the 3rd accused on the deceased is notconsidered, the fact of the 3rd accused absconding after the incidentand hiding the gun that was used and the fact of his silence against allthis evidence would make the court draw an inference against the ac-cused with regard to a pre-arranged plan with the 1st and the 2ndaccused. Inference of common intention should never be reached un-less it is a necessary inference deducible from the circumstances ofthe case (Mahabub Shah's). The presence of this accused would nec-essarily amount to a participatory presence. Therefore this appeal hasno merit. Hence this appeal is dismissed.
CA Wannigama Vs Incorporated Council of Legal Education and others 287
Appeals of the 1st, 2nd 3rd accused appellants are dismissed. Theappeals of the 5th, 6th, 7th, 8th & 9th accused are allowed and the 5th,6th, 7th, 8th and 9th accused are acquitted.
BALAPATABENDIJ.—I agree.Appeal of 1,2,3 allowed appeals dismissed appeals of5,6,7,8,9- allowed 5th, 7th, 8th; 9th and acquitted.