094-NLR-NLR-V-48-THE-KING-v.-PIYADASA-et-al.pdf
The King v. Piyadasa.
295
[Court of Criminal Appeal.]
1947 Present: Howard C.J. (President), Jayetileke and Dias JJ.
THE KING v. PIYADASA et al.
S. C. 70—M. C. Colombo, 20J265.
Joint charge of murder—No evidence of pre-arranged plan—Common inten-tion—Conviction altered.
Four accused were charged with murder. The evidence was thatafter the deceased had been hit on the head with an iron rod by the firstaccused and had fallen down the other three accused came and hit himwith iron clubs. There was no evidence as to where these blows alighted.The -first accused also joined in the assault on the deceased when he layfallen. The medical evidence revealed two fatal injuries on the headand other injuries which were not serious—
Held, that the evidence did not justify the inference that there hadbeen a pre-arranged plan by all the accused to commit murder. In thecircumstances, therefore, the second, third and fourth accused wereconvicted under section 317 of the Penal Code.
A
PPEALS, with applications for leave to appeal, against four con-victions in a trial before a Judge and Jury.
F. A. Hayley, K.C. (with him M. M. Kumarakulasingham and AustinJayasuriya), for the accused, appellants.
T. S. Fernando, C.C. (with him E. L. W. de Zoysa, C.O.), for theCrown).
Cur. adv. vuIt.
(1936) 38 N. L. R. 295.
296
HOWARD C J.—The King v. Piyadasa.
June 18, 1947. Howard C.J.—
This appeal by the four accused from their convictions on a charge ofmurder was argued on the 9th June. After argument we affirmed theconviction of the first accused, but set aside the convictions of the otherthree accused for the offence of murder and substituted therefor con-victions for the offence of intentionally causing grievous hurt undersection 317 of the Penal Code for which offence we imposed sentences of4 years rigorous imprisonment. Mr. Hayley who appeared on behalfof all the accused based his argument on behalf of the first accused on aquestion of fact. The only evidence for the Crown was that of the smallboy Piyadasa and the dying declaration of the deceased. There was adiscrepancy between the dying declaration and the testimony of Piyadasaarising from the fact that the deceased in his declaration implicatedonly the first accused, whereas the small boy implicated all four accused.Piyadasa also failed to mention the names of the assailants to the witnessMartelis Appu, the driver of a car, who picked up the deceased andPiyadasa soon after the assault on the deceased had taken place. Therewas also delay on the part of Piyadasa in making a statement to thePolice. In spite of these shortcomings in the evidence tendered by theCrown we think that there was ample material on which the Jury couldfind the first accused guilty. It is impossible to say that the verdictso far as the first accused was concerned was unreasonable. The con-viction of the first accused was in these circumstances affirmed.
Different considerations apply in regard to the Other three accused.The only evidence implicating them was that of Piyadasa, the smallboy who stated that after the deceased had been hit on the head by thefirst accused with an iron rod and fallen down the other three accusedcame and struck him with iron clubs. He cannot say where the blowsalighted. The first accused also joined in the assault on the deceasedwhilst he lay fallen. The medical evidence revealed two fatal injurieson the head. There was also another injury on the head which was notserious and three injuries on the legs. It was contended by Mr. Hayleythat, in these circumstances, the Crown had not proved there was acommon intention to commit the offence of murder. We think that thereis considerable force in this contention. In Mahbub Shah v. Emperor1it was held that “ common intention within the meaning ofsection 34 of the Indian Penal Code implies a pre-arranged plan. Toconvict the accused of an offence applying section 34 it should be provedthat the criminal act was done in concert pursuant to the pre-arrangedplan. It is no doubt difficult if not impossible to procure direct evidenceto prove the intention of an individual; it has to be inferred from hisact or conduct or other relevant circumstances of the case. Care mustbe taken not to confuse same or similar intention with common intention ;the partition which divides “ their bounds ” is often very thin ; never-theless, the distinction is real and substantial, and if overlooked willresult in miscarriage of justice. The inference of common intention. within the meaning of the term in section 34 should never be reachedunless it is a necessary inference deducible from the circumstances of thecase ”
1 .4. I. R. (1945) Privy Council US.
HOWARD C-J.—The King v. Piyadasa.
297
Mahbuh Shah v. Emperor was cited in the case of the King v. RanasingheAt p. 375 Soertsz Acting C. J. stated as follows : —
“ In the circumstances of the case before their Lordships, theyrefused to draw that inference and it appears to us that, in the cir-cumstances of the case before us too, it would be safer not to draw theinference of a common intention. There is no evidence at all of anypre-arrangement or even of any declaration or of any other significantfact at the time of the assault to enable one to say more than that theassailants had the same or similar intentions entertained independentlyby each of them. The first appellant said that he ran up from theCo-operative Stores on hearing the women’s cries. There is nothingto contradict this statement. Indeed, that .is very probable. Thesecond appellant, therefore, must have come up from elsewhere andindependently. It may, therefore, well be that if the Jury had theirattention called to this distinction, they might have differentiatedbetween the offences of the two appellants. ”
Again in The King v. Herashamy * it was held by this Court that to convictall of the accused of the offence of attempted murder each one of themat the time of the assault must be actuated by a common intention notmerely to beat the deceased, but to cause his death or such bodily injuriesas were likely to cause his death. The same principle was formulatedin Gouridas Namasudra v. Emperor*, as follows : —
“ Where several accused persons struck the deceased several blows,one of which only was fatal, and it was not found who struck thefatal blow, it was held that in the circumstances it could not be saidthat those who did not strike the fatal blow contemplated the likelihoodof such a blow being struck by the others in prosecution of the commonobject, and that they were all guilty under section 326, and not undersection 302, of the Penal Code. ”
The case of Reg. v. Price and Others * is also in point. The headnoteof this case is as follows : —
“ Six men assaulted another man. In the course of the assaultone of them inflicted a stab and killed the person assaulted. Theywere jointly indicted for murder.
The Judge instructed the Jury : —
1st. That the man who stabbed was guilty of murder,whether he intended to kill or not.
2nd. That the other five would be guilty of murder if theyparticipated in a common design to kill.
3rd. If there was no common design to kill, if the knife wasused in pursuance of a common design to use it, theywould all be guilty of murder.
4th. If there was no common design to use the knife, ifbeing present at the moment of stabbing, theyassented, and manifested their assent by assisting inthe offence, they were guilty of murder.
1 (1946) 47 N. L. R. 373.* I. L. R. (1908) 36 Calcutta 659.
* (1946) 47 N. L. R. 83.* (1858) 8 Cox 96.
Arlis Appuhamy v. Simon.
If neither of the last three modes of putting the casebe proved against the five, they must find the stabberguilty, and acquit the rest.
6th. If they cannot ascertain which of them stabbed, theymust acquit all ”.
-In the present case there is really no evidence of a pre-arranged plan.There is no evidence of any connection between the first accused and thethree others prior to the assault. It is not clear what the second, third andfourth accused were doing and where they had been prior to their arrivalon the scene. Nor during the assault did the four accused say anythingto indicate that they, were acting in furtherance of a pre-arranged plan.It is true that they all seem to have been armed with the same type ofweapon. Moreover the second, third and fourth accused joined in theattack on the deceased very soon after he had been hit on the head bythe first accused. This circumstantial evidence does not in our opinionplace beyond all reasonable doubt the question as to whether they allshared a common intention to commit the offence of murder. In thesecircumstances we have substituted for the conviction of the offence ofmurder a conviction under section 317 for which we have imposed onthe second, third and fourth accused a sentence of 4 years ’ rigorousimprisonment.
298
5th.
Sentence varied.