034-SLLR-SLLR-2008-V-2-RAJADHEERA-AND-OTHERS-v.-ATTORNEY-GENERAL.pdf
Rajadheera and Others v
CAAttorney-General 321
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RAJADHEERA AND OTHERSv
ATTORNEY-GENERALCOURT OF APPEALRANJITH SILVA, J.
SISIRA DE ABREW, J.
C A 178/2003HC NEGOMBO 138/2001MARCH 26, 2007
Common intention – Failure to consider the principles of law relating to thecommon intention – Fatal – Criminal Procedure Code – Section 334 —Constitution Article 138.
The appellants were convicted of the offence of attempt to commit murder ofone D. It was contended by the appellant that the learned trial Judge had failedto consider the principles of law relating to common intention and that he hasnot considered his evidence against each appellant separately.
Held:
When accused persons are charged on the basis of common intention trialJudge or Jury must be mindful of the principles of law relating to thecommon intention
Case of each prisoner must be considered separately.
Jury must be satisfied beyond reasonable doubt that he was actuatedby a common intention with the doer of the criminal act at the time thealleged offence was committed.
They must be told that the benefit of any reasonable doubt in this mattermust be given to the prisoner concerned.
Jury must be warned to be careful not to confuse "same or similarintention entertained independently of each other 'with' commonintention.
Inference of common intention should never be reached unless it is anecessary inference deducible from the circumstances of the case.
322Sri Lanka Law Reports(2008 2 Sri L.R
Jury should be told that in order to justify the inference that a particularprisoner was actuated by a common intention with the doer of the act,there must be evidence direct or 'circumstantial either of pre-arrangement or a pre-arranged plan or a declaration showing commonintention or some other significant fact at the time of the commission ofthe offence to enable them to say that a co-accused had a commonintention entertained independently of each other.
Jury should be directed that if there is no evidence of any commonintention actuating the co-accused or any particular co-accused or ifthere is any reasonable doubt on that point, then the charge cannot lieagainst any one other than the actual doer of the criminal act.
In such a case such co-accused would be liable only for such criminalacts which they themselves committed.
Jury should be also directed that the mere fact that the co-accused werepresent when the doer did the criminal act does not per se constitutecommon intention, unless there is other evidence which justifies them inso holding.
Judge should endeavour to assist the jury by examining the caseagainst each of the co-accused in the light of those principles.
The trial Judge totally failed to consider the concept of common intentionbut proceeded to convict all the accused on the basis of common intention- failure to give adequate reasons as to why he convicted all the accusedon the basis of common intention and the failure to consider the concept ofcommon intention – have resulted in a miscarriage of justice – Section 334of the Code and proviso to Article 138 cannot be applied.
APPEAL from the judgment of the High Court of Negombo.
Cases referred to:
King v Assappu -50 NLR 324.
King v Ranasinghe – 47 NLR 375.
Mah bub sha v Emperor – 1945 PC 118.
King v Piyadasa – 48 NLR 295.
King v M.H.Arnolis – 44 NLR 370.
King v Croos -46 NLR 135.
King v Sathasivam – 46 NLR 468, 476.
King v K.W.Jayanhamy. – 45 NLR 510.
Dr. Ranjit Fernando for appellant.
Mohan Seneviratne SSC for the Attorney-General.
Rajadheera and Others v
Attorney-General (Sisira de Abrew, J.) ^23
May 23, 2007
SISIRA DE ABREW, J.
The appellants were convicted of the offence of attempt tocommit murder of a man named Dhanushka and each wassentenced to three years rigorous (Rl) imprisonment. A fine ofRs. 1500/- carrying a default sentence of three months Rl was alsoimposed on each appellant. This appeal is against the saidconvictions and the sentences.
The prosecution case can be quiet briefly , summarized asfollows:
On the day of the incident around 1.30 p.m. Dhanushka who wason his way home from a nearby boutique went to the front yard ofthe house of the 4th appellant as he motioned Dhanushka to come.When Dhanushka went to the door-step of the 4th appellant, he wasattacked by a person named Ananda and the appellants. All of themwere armed with clubs and swords.The 1st appellant attacked himwith an iron club and the 2nd appellant with a sword. He did notdescribe the region of the body where the blows alighted. At onestage he said he lost his consciousness after the 1st blow. Again hesaid that the attack went on for about twenty minutes.
The complaint of the learned Counsel for the appellants was thatthe learned trial Judge failed to consider the principles of law relatingto the common intention. I have gone through the judgment of thelearned trial Judge and in my view, he has failed to consider theprinciples of law relating to the common intention. He has notconsidered the evidence against each appellant separately. Thewords ‘common intention' were not even found in the judgment.Although it is not strictly necessary for the learned trial Judge whohas a trained legal mind to state all the principles of law relating tocommon intention, it must be apparent from the judgment that hehad directed his mind to the relevant principles of law becauseespecially in a case of murder he should be mindful that he wasdealing with liberty of a person. When accused persons are chargedon the basis of common intention trial judge or the jury as the casemay be must be mindful of the principles laid down in King vAssappU1>. If the accused is tried by a judge he must bear in mindthe following principles or if the accused is tried by a jury trial judge
324Sri Lanka Law Reports[2008J 2 Sri L.R
must direct the jury on the following principles. I will reproduce belowthe principles laid down in Assappu case {supra) (a) the case ofeach prisoner must be considered separately; (b) that the Jury mustbe 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 benefitof any reasonable doubt on this matter must be given to the prisonerconcerned, King v. Ranasinghef2) at 375; (d) the Jury must bewarned to be careful not to confuse “Same or similar intentionentertained independently of each other" with "Common intention";
that the inference of common intention should never be reachedunless it is a necessary inference deducible from the circumstancesof the case Mah bub sha v. Emperor (3); (f) the Jury should be toldthat in order to justify the inference that a particular prisoner wasactuated by a common intention with the doer of the act, there mustbe evidence, direct or circumstantial, either of pre-arrangement, ora pre-arranged plan, or a declaration showing common intention, orsome other significant fact at the time of the commission of theoffence, to enable them to say that a co-accused had a commonintention with the doer of the act, and not merely a same or similarintention entertained independently of each other, King v.Jayasinghe (supra) <4); (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 reasonabledoubt on that point, then the charge cannot lie against any one otherthan the actual doer of the criminal act, King vs Arnolis King v.Arnolis(5); King v. Croos<6); King v. Sathasivam(7>; (h) in such a casesuch co-accused would be liable only for such criminal acts whichthey themselves committed; (i) the Jury should also be directed thatthe mere fact that the co-accused were present when the doer didthe criminal act does not per se constitute common intention, unlessthere is other evidence which justifies them in so holding, K vsJayanhamy King v. K.W. Jayanhamyt8); and (j) the Judge shouldendeavour to assist the Jury by examining the case against each ofthe co-accused in the light of these principles."
Learned trial judge should have been careful in this case inanalyzing and accepting the evidence against each appellant sinceDhanushka had said that he lost consciousness after he receivedthe first blow. In my view the learned trial Judge totally failed to
Karol/S v
CAAmaradasa and Others325
consider the concept of common intention but proceeded to convictall the accused on the basis of common intention. Failure to giveadequate reasons as to why he convicted all the accused on thebasis of common intention and the failure to consider the concept ofcommon intention, in my view, have resulted in a miscarriage ofjustice. Therefore we are unable to apply the proviso to Section 334of the Criminal Procedure Code and proviso to Article 138 of theConstitution. Further if we are going to apply the proviso to Section334 of the Criminal Procedure Code we have to rewrite thejudgment which is not the function of the Court of Appeal.
For the reasons set out in my judgment, I set aside theconvictions and the sentences imposed on the appellants. I amunable to acquit the appellants as the prosecution has led evidenceagainst the appellants which should be considered at a retrial.No appeal has been lodged against the acquittal on the 1st and 2ndcounts I, therefore, do not make order setting aside the acquittal onthe 1st and 2nd counts. Considering the evidence led at the trial, Iorder a retrial on count No. 3 of the indictment.
RANJITH SILVA, J. -! agree.
Appeal allowed.