Sri Larika Law Reports
[1990)1 Sri LR.
WIJITHASIR! AND ANOTHER
v.THE REPUBLIC OF SRI LANKA
COURT OF APPEAL
RAMANATHAN, J„ W.N.D. PERERA, J. AND A. DE Z. GUNAWARDENA. J.
C.A..2r3/S7, – M.C. 6AMPAHA 13/83.
NOVEMBER 2, 1988.
Criminal Law – Murder and arson – Common intention.
The prosecution case was that the two appellants had been actuated by commonmurderous intention.
(1) Where the question ol common intention arises the jury must be directed that-, .
the case ol each accused must be considered separately;
the accused must have been actuated by a common intention with the doer ol’the act at the time the act was committed;
– common intention must not be confused with similar intention entertained inde-
pendently of each other;
id) there must be evidence of either direct or circumstantial evidence of a pre-arranged plan or some other evidence of common intention;
(e) the mere fact of the presence of the co-accused at the time of the offence is notnecessarily evidence which justifies them in so holding.
Wijithasiri and Another v. The Republic of Sri Lanka
(2) As there was evidence upon which the accused could have been convicted o( murderand arson but for the non-directions, re-trial should be ordered.
Case referred to :
King v. Assanna and others 50 NLR 524
APPEAL from a judgment ol the High Court of Gampaha.
Ranjith Abeyasuriya, P.C., for Accused – Appellants.
A.R.N. Fernando. Senior State Counsel, for the Attorney-General.
January 17, -1989.
The two appellants were indicted jointly on the following counts:
That on or about the 22nd day of October 1982 at Dambuwattathat they did commit the murder of one Godagandeni DewageSimion, an offence punishable under section 296 of the PenalCode.
That at the time and place aforesaid and in the course of thesame transaction they did commit mischief by setting fire to thedwelling house of G. D. Pablis, an offence punishable undersection 419 of the Penal Code.
After trial the jury brought in an unanimous verdict of guilt against the1st accused on both counts and found the 2nd accused guilty of countone. The learned High Court Judge sentenced both appellants to deathon count one and in addition sentenced the 1st accused to 7 yearsrigorous imprisonment on count two. This is an appeal against theirconvictions and sentences.
Thecaseforthe prosecution was testified to by AnandaPushpa Kumarwho was the sole eye witness. He was 8 years old at the time of theincident and was accompanying his father at about 10 p.m. that night. Thewitness stated, he had gone to watch a television programme at onePablis's house and at about 10 p.m. his father had come on his bicycleto take him back home. When they came to a hill they had dismounted
Sri Lanka Law Reports
[ 1990) 1 SriL.R.
from the bicycle and his father wheeled the bicycle while the witnessfollowed the deceased. The first accused had come and hit his father onthe head with a club and the second accused had said 'oka marendamagahapan' (hit him till he dies). The witness stated he had dentified theaccused by the aid of his father's torch light. The witness An. "■da PushpaKumar had run to a relative's house named Yakkala uncle shoutedstating that his father had been killed by Vijitha uncle the first accused.
The other witness Sellawathie states that Pushpa Kumar camerunning and informed her of the assault on his father. She had gone to thescene and sent the deceased to hospital. This witness also speaks to thefact that the first accused had set fire to the house of Pabilis.
The medical evidence was that the deceased had five external injuriesconsisting of-
lacerated wound 2" long in the mid forehead commencing at theroot of the nose extending upwards and terminating on the leftfrontal scalp.
contusion at the root of the nose.
linear surgical wound 2" long and horizontally placed in the leftfrontal scalp.
laceration 1 3/4" long in the right mid parietal area extending hori-zontally with a surrounding contusion.
contusion 3 1/2×2 on the back of the head.
The internal injuries were fracture of the left frontal bone commencingat the root of the nose and extending into the frontal bone up to the parietalsecture. There were fractures extended outwards into the base of theskull. These was also a contused laceration of the frontal bone of thebrain, forming a cavity 3” by 1" which was filled with blood. This injurycorresponds to external injury No. 3. The injuries were consistent withhaving been assaulted on the head with a club.
The cause of death was cardio respiratory failure from the fracture ofthe skull and laceration of the brain.
C A Wijiihasiri and Another v. The Republic of Sri Lanka (Ramanaihan, J.)
It was submitted by counsel for the appellants that the indictment hadbeen forwarded on the basis of liability arising from a common murderousintention shared by the appellants. Therefore it was essential for the trialJudge to have given adequate directions as to the legal principlesinvolved in regard to common intention in order to assist the jury to applythe law to the facts of the case before them. It was submitted lhat the trialJudge has also failed to direct the jury on the factual situation relating tothe case but had merely made a perfunctory statement relating to the lawof common intention and had not directed the jury to consider whetherthere was evidence to prove that there was a common murderousintention shared between the first and second appellants.
Secondly, the counsel for the appellants submitted that there was nouseful purpose served in ordering a retrial due to non-directions of law,because the evidence of Ananda Pushpa Kumar the principal eyewitness, was unsatisfactory. The said witness has made a belatedstatement to the police, and had not mentioned the second accused'sname to his Yakkala uncle at the first opportunity the witness had. It wascontended that it was unsafe to convict the second accused due to thisomission and as the evidence against the first accused also came fromthe same source it was unsafe to convict the first accused also.
Thirdly, it was submitted that the trial Judge had failed to refer in thesumming-up to the omission of Pushpa Kumar, to mention the secondaccused's name to his Yakkala uncle and in his statement to the police.
Learned Senior State Counsel conceded that the directions on com-mon intention were inadequate and that the trial Judge should havedirected the jury that they must be satisfied beyond a reasonable doubtthat the appellants shared a common murderous intention to kill thedeceased Simion and that an inference of a common intention can be onlydrawn if it was an irresistible inference. Senior State Counsel invited thecourt to send the case back for a fresh trial as the evidence of PushpaKumar was cogent and adequate to support the charge.
We are of the opinion, that the verdict of the jury is vitiated due to thisserious non-direction on the law relating to common intention. The casefor the prosecution restedon the basis that both appellants were actuatedby a common murderous intention to cause the death of the deceasedG. D. Simion. The case of King v. Assanna and others reported in 50 NLR
Sri Lanka Law Reports
119901 1 Sri L.R.
at 324 has held that where the question of common intention arises thejury must be directed that-
the case of each accused must be considered separately.
that the accused must have been actuated by a commonintention with the doer of the act at the time the offence wascommitted.
common intention must not be confused with similar intention en-tertained independently of each other.
there must be evidence of either or circumstantial evidence of apre-arranged plan or some other evidence of common intention.
the mere fact of the presence of the co-accused al the time of theoffence is not necessarily evidence of common intention unlessthere is other evidence which justifies them in so holding.
The trial Judge has failed to direct the jury to consider whether theappellants shared a common murderous intention nor has he related thelaw to the facts of the case.
We, accordingly set aside the convictions and sentences of bothappellants. We have considered the case presented at the trial and on aconsideration of the evidence of Pushpa Kumar who has identified boththe appellants and his not mentioning the name of the second accuseddoes not affect the quality of his evidence. Nor can we say it is unreliable,due to the delay of four days to make a statement, in the circumstancesof this case. The delay can be explained, as, what was uppermost in hismind was the attack on his father by the first accused and the taking of theinjured fortreatment to the hospital. Furthermore, Sellawathie's evidencesubstantially corroborates Pushpa Kumar's evidence, as she not onlyspeaks to arson committed by the first accused but also speaks to the factthat when she went to the scene to dispatch the injured to hospital bothaccused were present at the vicinity of the scene.
We are of the opinion, that there was evidence before the jury uponwhich the appellants might reasonably have been convicted but for thenon-directions. We accordingly quash the convictions and sentences
Brooke Bond (Ceylon) Ltd.v. Slassen Exports Ltd.
against both appellants and acting under the terms of the proviso tosection 334(2) of the Code of Criminal Procedure Act, No. 15 of 1979 weorder that a tresh trial be held.
W.N.D. PERERA, J.-1 agree.
A. DE Z. GUNAWARDANA, J.-1 agree.
Case sent back for retrial.