THE QUEEN v. H. EKMON and 6 others

014-NLR-NLR-V-67-THE-QUEEN-v.-H.-EKMON-and-6-others.pdf


[Ik th® Court of Criminal Appeal]
Present: Basnayake, C.J. (President), Abeyesundere, J.,
and G. P. A. Silva, i.
THE QUEEN v. H. EKMON and 6 othersAppeals Nos. 31 to 37 op 1962, with Applications Nos. 35 to 41
S. G. 61—M. C. Horana, 28453
Trial before Supreme Court—Return of verdict by jury—Power of Judge Hereof Urto ask them questions and to direct them to reconsider their verdict—Scope—Summing-up—Scope of Judge's power to express his opinion upon any questionof fact or upon any question qf mixed law and fact—Criwwtl PricedGeRe,ss. 243, 244, 245, 247, 248, 249.
Unlawful assembly—Vicarious liability of the members—Difference between “ commonobject ” and “ common intention ”—Penal Code, ss. 32, 138.
Where, in a trial before the Supreme Court, the verdict of the jury is clearand unmistakable, the presiding Judge has no power to put questions to thejury. The power to ask questions conferred by section 248 (1) of the CriminalProcedure Code is limited to such questions os are necessary to aspeHaittwhat the verdict of the jury is.
Section 244 (2) of the Criminal Procedure Code permits the presiding Judge,if he thinks it proper to do ao, to express his opinion upon any question offact or upon any question of mixed law and fact relevant to the proceedings.But it does not permit him to tell the jury what their verdict should he orthat any ether verdict than a verdict specified by him ig impossible*
Members of an unlawful assembly are not liable for acts done by any memberof such assembly in the course of it. They are only liable for an offence com-mitted in prosecution of the common object of the assembly and for suchoffence as the members of the assembly knew to be likoly to be committedin prosecution of the common object. Further, when dealing with section138 of the Penal Code, the ooneept of “ common object ” therein must notbe equated with the concept of “ common intention ” in section
After the Foreman of the jury had delivered the verdict of the jury on thefirst five counts of the indictment, the presiding Judge asked him a numberof questions and stated that it was impossible to accept that part of the verdictaccording to which none of the accused-appellants was; guilty of murder (count2 in the indictment). He directed the jury to retire and reconsider theirvsrdict on the charge of murder. When the jury returned forty-five minuteslater the Foreman stated, again in answer to Court, that the jury wished tobe directed on certain points. The Judge then re-charged the jury and aslpxlthem to retire and reeonefder their verdict. In no unoertain terms he indicatedthat they should return a verdict of guilty of murder against all the appellants.Thereafter the jury unanimously found the appellants guilty of nineder also,
Held, that the trial Judge acted wrongly (o) in refusing to Inks the verdictreturned by the jury after the first summing'UP, (b) in questioning ti)#mwhen their verdict was unmistakable, (c) in giving them further directions onone aspect of the ease alone after the summing-up, (d) in not taking tikeverdict on all the counts once be bad directed tbs jury to reconsider tbeirverdict, (e) in expressly telling them what their verdict should be «» thecharge of murder.
3
R 5471—1,855 (4/65)
.A.PPEAL from seven convictions in a trial before the Supreme Court.
Colvin R. de Silva, with S. S. Basnayake, D. S. Wijesinghe and
R.Weeralcoon, for 1st, 2nd and 3rd Accused-Appellants.
Colvin R. de Silva, with O. Barr Kumarakulasinghe, P. O. Wimalanagaand Percy Wickremasekera, for 4th, 5th, 6th and 8th Accused-Appellants.
M.H. Amit (assigned), for all Accused-Appellants.
Vincent T. Thamotheram, Deputy Solicitor-General, for Attorney-General.
Cur. adv. vult.
December 17, 1962. Basnayake, C.J.—
The seven appellants along with another who was acquitted at theend of the trial were indicted on nine charges. Five of them were onthe basis that they were members of an unlawful assembly the commonobject of which was to cause hurt to Haputantirige Liyoris and themembers of his family and that in prosecution of that common objectthey—
committed the murder of Haputantirige Seelawathie,
caused grievous hurt to Haputantirige Liyoris,
caused grievous hurt to Geekiyanage Mapinona, and
caused grievous hurt to Haputantirige Somawathie.
The remaining four charges were a repetition of the same charges ofminder and grievous hurt on the basis that those acts were committedin furtherance of the common intention of all.
Except the seventh, who is a relation of Liyoris, the accused arerelated to each other. The 1st and 6th accused are brothers. The 8this their cousin. The 2nd and 4th are nephews of the 1st. The 8thaccused’s sister is married to the 4th accused’s brother. The 5thaccused’s daughter is the mistress of the 6th.
Shortly the facts are as follows :—Liyoris and the accused all livedin the same neighbourhood, Dandiris the 7th accused being the closestneighbour as he lived in the land adjoining Liyoris’s. They were noton good terms. The cause was disputes over land. Liyoris the injuredman owned two houses, one old and the other new. On the day inquestion Liyoris was in his old house. On 9th August 1960 there wasa dispute over the barbed-wiring of the boundaries of the new house.In the course of it the 6th accused Jundi caused grievous hurt to Liyorisby striking him with an iron rod. He was prosecuted for that offence.On 17th November 1960 he pleaded guilty to the lesser offence ofcausing grievous hurt under provocation and was fined Rs. 50, for thepayment of which he was allowed time till 24th November. Liyoriswho had gone to the Court for the case returned at about 2 p.m. He hadhardly had his noon-day meal when the 4th and 6th accused enteredhis compound and shouted, “Leeriyo come out to eat you”. They werefollowed by the 7th accused. Liyoris’s daughters prevented him fromgetting out saying, “You are a man with a fractured arm ”. Aboutthis time his wife arrived and at the same time some of the other accused—1st, 2nd, 3rd, 5th and 8th—came to the main road along the ‘ devata 5road. The 4th and 6th accused ordered her, “ Dapiya Liyora Eliyata ”.She was struck with a reaper as she replied, “ He is a man with a frac-tured arm. He cannot be put out”. Her daughter Seelawathie whowas a school teacher and had just returned from school intervenedsaying, “Don’t assault my mother”. Then Jundi struck her with aclub and she fell. Liyoris who was spurred to action by the attack onhis daughter went out with an axe and with it start id to attack Jundiwho in turn attacked him and knocked him down. Somawathie whofollowed him was also attacked and injured. The description of theattack on Liyoris, his wife and his daughters does not clearly establishthe existence of an unlawful assembly as alleged in count 1 of the indict-ment. It would appear that the active participants were 4th and 6thaccused and that the others were onlookers. Those two accused by theirutterances indicated that they were after the blood of Liyoris andthe attack on his wife and daughters was incidental as they stood intheir way. If they played any part, it was in defence of the 6th accusedwhom Liyoris attacked with an axe. The prosecution produced an axemarked P2 which was found in Liyoris’s house in between a door andan almirah, but made no attempt to connect it with the crime.
The jury after a deliberation lasting 2 hours and 25 minutes returneda unanimous verdict against the appellants on the charges of unlawfulassembly, causing grievous hurt to Liyoris, Mapinona and Seelawathie.On the charge of murder of Seelawathie they returned a unanimousverdict of simple hurt. They did not return a verdict on the othercharges as they were directed that, if they found against the prisonerson the charges involving unlawful assembly, they need not return averdict on charges 6, 7, 8 and 9.
After the Foreman had delivered from the jury box the verdict ofthe jury in regard to each of the accused on the first five counts of theindictment, the following dialogue occurred between the learnedCommissioner of Assize and the Foreman :
“ 2418. Court: Q : That is to say, you have found the 1st, 2nd, 3rd«4th, 5th, 6th, and 8th accused guilty on the first count ?
8*BAflWAYAK®, O.J.-dWte fymh v. JHmonForeman > Yes.
^419. Court: Q : On the 2nd count of murder you have found themguilty of causing simple hurt ?
Forman : Yes, My Lord.
2*20. OTmrt;: Theft nobody according to you is guilty ofmurder {
Foreman : No.
Court: Q : You have not considered the other counts ?
Foreman : No.
Court : Q : I>id you consider the act of any individual
person, apart from these acts ? Apart from unlawfulassembly did you consider the individual act of anyindividual, with regard to the death of the Woman ?
Foreman : We have not considered, My Lord. We find theyare not guilty of causing murder.
'CoTbft: t find it difficult to accept that verdict in regard to the2nd count. I don’t agree with you. Therefore,I direct you to retire and reconsider your verdict. Ifthere has been unlawful assembly and in the course ofwhich any one had been killed, it cannot be simplehurt—because she had been killed and that injury wasWOt a simple injury. It was a grievous injury whichhad damaged the brain. Therefore it is impossible toaccept that verdict. I would direct you to retire andreconsider your verdict. ”
The jury then retired. The time was d &5 p.m. and they returned at6-20 p.m. The Otetfk of Assize then asked them—
" 2425. $: Are you unanimously agreed upon your verdict on
count 2 with regard to the first prisoner Handaragamage
Rkmon ?
Foreman : My Lord, I can say something before that ?
Coxort: You want directions ? You want further directions ?
Foreman : I want to say something, because out of the2$ hours we took in mar deKbewrtaons, we spent the«*Ost in <h*wkng these points. We have beeninfluenced by certain oonsideratkms.
Court: Q : I don’t want to hear your considerations. I onlywan* the points on which yon want dfreofions. Whatare the points xm. which you want direct ions ?Foreman: We want to be directed on the evidence of thedoctor where he said that the rim of the axe couldhave caused the injury It was also said during thecourse of the trial that the body was not found wherethe fatal blow is alleged to have been dealt, and whereshe is alleged to have fallen immediately. The axewas not mentioned to the police by Liyoris, butwas found by the Police on their own.
Court re-charges the jury. ”
The jury retired at 6-35 p.m. and returned at 7 p.m. The Clerk ofAssize then addressed the following questions to them :
Q : Are you unanimously agreed upon your verdict in regardto count 2 ?
Foreman : We are unanimously agreed.
Clerk of Assize : Q : By your unanimous verdict do you find
the 1st prisoner guilty of murder ?
Foreman : Guilty.
Clerk of Assize : By your unanimous verdict do you find the
2nd prisoner guilty of murder 1
Foreman: Guilty.
Clerk of Assize : By your unanimous verdict do you find the
3rd prisoner guilty of murder ?
Foreman : Guilty.
A
Clerk of Assize : By your unanimous verdict do you find the
4th prisoner guilty of murder ?
Foreman : Guilty.
Clerk of Assize : By your unanimous verdict do you find the
5 th prisoner guilty of murder ?
Foreman : Guilty.
Clerk of Assize : By your unanimous verdict do you find the
6th prisoner guilty of murder ?
2*—B. 6471 (4/65)
Foreman : Guilty.
Clerk of Assize : By your unanimous verdict do you find the
8th prisoner guilty of murder ?
Foreman : Guilty.
Clerk of Assize : Gentlemen, please attend whilst your Fore-man signs the verdict. Your unanimousverdict is that the 1st, 2nd, 3rd, 4th, 5th, 6thand 8th prisoners are guilt'v on counts 1 to 5of the indictment and the 7th prisoner is notguilty of any offence. ”
The transcript reads thus thereafter :
“|The 7th prisoner Geekiyanage Dandiris Singho is acquitted anddischarged.
Court to Crown Counsel: Anything against them ?
Crown Counsel: Abraham alias Jundy, the 6th accused hasa previous conviction, that is for disposingstolen property, cattle valued at Rs. 150 undersection 396, and charged in Magistrate’s Court,Avissawella, in case No. 38998 and sentencedto 3 months’ rigorous imprisonment on 17thFebruary, 1960.
Court: You have got the proceedings ?
Crown Counsel: Yes, it is admitted.
Court: That is not a matter which should be taken intoaccount.
Court to prisoners : On count 1 I sentence each of you to6 months’ rigorous imprisonment. On count 3I sentence each of yoi to 7 years’ rigorousimprisonment. On count 5 I sentence eachof you to 7 years’ rigorous imprisonment.These sentences to run concurrently. ”
Sentence of death was next passed on all the appellants after each ofthem had been asked why sentence of death should not be passed.
The main submissions of learned counsel are set out in the grounds 2 to5 in the notice of appeal which are as follows :—
“ 2. There is no legal verdict in the case.
There was no power in the learned Commissioner to direct thejury to reconsider a particular count of the indictment after the Juryhad returned a verdict on all the charges on which the accused weretried.
The learned Commissioner had not the power in the circumstancesof the case to direct the jury to reconsider the verdict and in any eventacted wrongly in purporting to exercise the said power.
The proceedings subsequent to the jury returning its verdicton the first occasion were illegal and had no warrant in law. ”
We shall now proceed to discuss these grounds : It is important tobear in mind the basic consideration that all trials before the SupremeCourt are trials by Jury, before a Judge or Commissioner of Assize orwhere the Chief Justice orders that any trial should be at Bar by Jurybefore three Judges (s. 216 (1)). The duties of the Judge and of theJury are precisely defined in sections 243, 244 and 245 of the CriminalProcedure Code.
“ 243. When the case for the defence and the prosecuting counsel’sreply (if any! are concluded the Judge shall charge the Jury summingup the evidence and laying down the law by which the jury are to beguided.
244 (1) It is the duty of the Judge—
to decide all questions of law arising in the course of the trialand especially all questions as to the relevancy of facts which it isproposed to prove and the admissibility of evidence or the proprietyof questions asked by or on behalf of the parties, and in his discretionto prevent the production of inadmissible evidence whether it isor is not objected to by the parties ;
to decide upon the meaning and construction of all documentsgiven in evidence at the trial;
to decide upon all matters of fact which it may be necessaryto prove in order to enable evidence of particular matters to begiven ;
to decide whether any question which arises is for himself orfor the jury.
The Judge may if he thinks proper in the course of his summing-upexpress to the jury his opinion upon anv question of fact or upon anyquestion of mixed law and fact relevant to the proceeding.
(Illustrations omitted)
245. It is the duty oi the jury—
(а)to decide which view of the facts is true and then to returnthe verdict which under such view ought according to the directionof the Judge to be returned ;
(б)to determine the meaning of all technical terms (other thanterms of law) and words used in an unusual sense which it may benecessary to determine whether such words occur in documents ornot;
to decide all questions which according to law are to be deemed tquestions of fact;
to decide whether general indefinite expressions do or do noapply to particular cases, unless such expressions refer to legalprocedure or unless their meaning is ascertained by law, in eitherof which cases it is the duty of the Judge to decide their meaning.
(Illustrations omitted)
The following provisions govern the return of the verdict, the taking andrecording of it—
(1) When the jury are ready to give their verdict and are allpresent the Registrar shall ask the foreman if they are unanimous,
If the Jury are not unanimous the Judge may require them toretire for further consideration.
After such further consideration for such time as the Judgeconsiders reasonable or if either in the first instance the foreman saysthat they are unanimous or the Judge has not required them to retire,the Registrar shall say (the Jurors being all present) : ‘ Do you find theaccused person (naming him) guilty or not guilty of the offence(naming it) with which he is charged ? *
On this the foreman shall state what is the verdict of the jury.
(I) Unless otherwise ordered by the Judge the Jury shall returna verdict on all the charges on which the accused is tried and the Judgemay ask them such questions as are necessary to ascertain what theirverdict is.
(2) If the Judge does not approve of the verdict returned by the Juryhe may direct them to reconsider their verdict, and the verdict givenafter such reconsideration shall be deemed to be the true verdict.
(1) The Registrar shall make an entry of the verdict on theindictment and shall then say to the jury the words following or wordsto the like effect:
‘ Gentlemen of the jury : attend whilst your foreman signs yourverdict. The finding of you (or of so many of you as the case may be)is that the prisoner A, B, is guilty * (or not ‘ guilty ’).
The foreman shall sign the verdict so entered and the verdictwhen so entered and signed, but not before, shall be final.
When by accident or mistake a wrong verdict is delivered theJury may before it is signed or immediately thereafter amend theverdict. ”
The verdict of the jury on counts 1 to 5 delivered in the first instancewas unmistakable ; but the learned Commissioner proceeded to ask thema number of questions which he had no right to ask. The power to askquestions conferred by section 248 (1) is limited to such questions as arenecessary to ascertain what the verdict of the jury is. Here the verdictwas clear and there was nothing that needed clarification. Evenafter the unauthorised questioning had further clarified the verdict of thejury, the learned Commissioner proceeded to express his disagreementwith the verdict on the charge of murder in very strong terms. He notonly said that he did not agree with their verdict, but he also said thatit was impossible to accept it and directed them to retire and re-considertheir verdict on the charge of murder. In doing so he made the followingobservations which are obscure and so far as they are capable of ameaning wrong in law :
“ If there has been unlawful assembly and in the course of whichanyone had been killed, it cannot be simple hurt—because she hadbeen killed and that injury was not a simple injury. It was a grievousinjury which had damaged the brain. ”
The expressions “ simple injury ” and “ grievous injury ” are not termsknown to the Penal Code. It is difficult to understand what the learnedCommissioner meant to convey by the words :
“ If there has been unlawful assembly and in the course of whichanyone had been killed, it cannot be simple hurt—because she hadbeen killed and that injury was not a simple injury. ”
It is not the law that members of an unlawful assembly are liable foracts done by any member of such assembly in the course of it. They areonly liable—
(а)for an offence committed by any member in prosecution of the
common object of the assembly ; or
(б)for such offence as the members of the assembly knew to be likely
to be committed in prosecution of the common object.
The direction quoted above was therefore wrong in law.
When the jury returned after 45 minutes of reconsideration they werenot permitted to give their verdict, nor was the Foreman permitted tooffer an explanation which he wanted to give. But the learned Commis-sioner brushed aside his explanation and kept on asking whether theywanted directions. When the Foreman indicated some of the points onwhich the jury wanted directions, the learned Commissioner proceededto address them for the third time, not so much on the points on which theForeman asked for directions, but on the vicarious liability of the membersof an unlawful assembly, and asked them to retire and re-consider theirvex diet for the second time—a course of action for which there is noauthority in the Code. In his address to the jury the learnedCommissioner in no uncertain terms indicated that they should return averdict of guilty of murder against all the appellants. He said, “ If youaccept that evidence that it was the 6th accused who hit Seelawathie onthe head, then it is impossible for you to bring any other verdict than oneof murder on the evidence of the witnesses and on the medical evidence. ”In the course of his charge he more than once not only usurped the func-tions of the jury by directing them on questions of fact on which they werethe sole Judges, but he also misdirected them many times. Some of themore serious misdirections are set out below :
“ If the prosecution evidence of Liyoris, Mapinona and Soma-wathie is accepted by you that it was a blow delivered by Jundi thatalighted on Seelawathie’s head, then there was sufficient intentionbecause any injury that causes fracture and injury to the brain is suffi-cient, I told you, in the ordinary course of nature to result in death.Then you can infer intention to commit murder. ”
“If you hold that these seven accused—I am now omitting the7th accused—formed members of an unlawful assembly and one of themhit, whether it is Jundi or anyone else does not matter, but the evidenceis that it was Jundi that hit on Seelawathie’s head, then you are entitledto hold that every one of them is guilty of that offence of murder. ”
“ You have held that there was unlawful assembly and you havealso held that this unlawful assembly caused grievous hurt to threeother persons namely, Liyoris, Mapinona and Somawathie ; then if oneof those unlawful assembly members hit Seelawathie on the head, thenthe verdict should be one of murder because there would be the requisiteintention. ”
“I told you that a person who hits another on the head andcauses such an injury may be presumed to have the murderousintention. That is a presumption of fact on which you are entitled toact, though not obliged to do so. ”
“ These are the two injuries Seelawathie had. Lacerated wound2" long on top of right side of head, internal to parietal eminence anddirected forwards and slightly to the left, scalp deep ; the surroundingarea was contused; the other is a contusion on top of left side of headover the region of parietal eminence. With regard to the charge ofmurder we are not concerned with the third injury she had, the injuryon the thigh, because that would not have caused death. (Here theinternal injuries are described.) If any of these accused caused any ofthese two injuries on the head, then the charge of murder is proved.Simple hurt is un-understandable. ”
“ If you have held, as you have done with regard to unlawfulassembly in regard to all the accused except the 7th accused, then thisis a clear case of murder. Of course, I told you my opinion is notbinding on you on any question of fact. Now that I have re-directedyou, you can consider your verdict. ”
At the conclusion of the third address to the Jury the Foremanobserved :
“ On the last point, My Lord, the axe was not mentioned to thepolice, but found by the police on their own. ”
The learned Commissioner replied :
“ Yes, the axe was not mentioned. Inspector Mendis says this manwas in a bad state. Mr. Mendis has stated that Liyoris’ condition wasbad. So that it may be due to that that he did not mention it or itmay be due to the fact that he used it in defence of his daughter andhimself, but he might have thought that he might get into difficultiesand therefore did not mention it. But that does not mean that the axewas used, that is just because the doctor says that it could be causedwith an axe. But the evidence is that the axe was not used by (sic)Seelawathie. It is on the basis I take it that you have accepted theevidence for the prosecution, the evidence of the prosecution witnesses,that you have brought in the other verdicts of unlawful assembly,causing grievous hurt etc. to other persons. ”
It would appear from the passages quoted above that the learnedCommissioner travelled outside the proper scope of a charge to the Jury,namely, summing up the evidence and laying down the law by whichthe Jury are to be guided. Contrary to his own concept of his duty asexpressed in the words cited below, he sought to force on the jury hiaview that on count 2 no other verdict than murder was possible
“ It is not my duty to advise you as to what verdict you should find,nor is it my business to tell you what verdict I will find if I was in thejury-box. ”
He also sought to give his own explanation of the flaw in the prosecutioncase pointed out by the Foreman at the end of his direction to them forthe third time, viz., that the axe was not mentioned to the police butfound by the police on their own. His action was a negation of the senti-ments expressed in the words he quoted at the outset of his summing-up.Quoting the Judge who presided over the trial of Christy he said :
“ We believe in this country, in the Criminal law, that the besttribunal to get at the truth of the acts and decide them is a Juryof 12 people called by chance from their various and different avocationsto hear the evidence, and, subject to being assisted by counseland directed by Court, to come to a conclusion. ”
Section 244 (2) permits the presiding Judge, if he thinks it proper todo, to express his opinion upon any question of fact or upon any questionof mixed law and fact relevant to the proceedings. But it does not permita Judge before whom a trial by jury is held to tell the jury what their ver-dict should be or that any other verdict than a verdict specified by him isimpossible or that the charge is proved. Such observations go beyond theexpression of an opinion upon any question of fact or mixed law and factrelevant to the proceedings and are improper in a charge to the jury.The rules which the Judge in a trial by Jury should observe in expressinghis opinion have been transgressed in the instant case. Apart from thatthe learned Commissioner’s observations contain misdirections toonumerous to be dealt with specifically.
The learned Commissioner acted wrongly—
(а)in refusing to take the verdict returned by the jury after the
summing-up,
(б)in questioning them when their verdict was unmistakable,
in giving them further directions on one aspect of the case alone
after the summing-up,
in refusing to hear what the Foreman wished to say in explanation,
in not permitting the Registrar to make the entry of the verdict in
the first instance,
(/) in treating the verdict on counts 1, 3, 4 and 5 as final beforethe verdict had been entered,
(9) in not taking the verdict on all the counts once he had directed thejury to re-consider their verdict,
(ft) in forcing the jury to his view, and
in expressly telling them what their verdict should be.
Apart from the above illegalities, the misdirections in both his addressesto the jury after they had returned the verdict are fatal to the conviction.
Learned counsel also submitted that in his summing-up the learnedCommissioner misdirected the jury on the law particularly on the lawrelating to unlawful assembly. The following observations of the learnedCommissioner are unhappy and are likely to have misled the jury as tothe burden on the prosecution.
“ Therefore, whoever inflicted those injuries on her may be presumed tohave had what is hnovm as a murderous intention. A sane person may bepresumed to intend the natural and probable consequences of his act. Thatis a presumption of fact on which you are entitled to act though not obligedto do so. Now what was the natural and probable consequence of the actof that person, whoever he be who hit this woman on the head as a resultof which she died ? Would you not from the nature of the weaponused, from the nature of the injuries caused, from the nature of thesite, in this case the head, would you not infer that the person, whoeverhe be who did this act, had what is known as a murderous intention ?I think towards the closing stages of Mr. Tampoe’s address he statedthis and I have made a note of it:‘ One blow being struck on the head
of Seelawathie in the course of a fight does not mean that whoever whostruck intended to kill. ’ I have told you the law on the subject andthe presumption of fact that should be drawn and you will accept whatI have said as correct. ”
Having first stated that a murderous intention may be presumed, he nextwent on to state that “ an intention may be inferred from facts andcircumstances”. Where there is a presumption in favour of the prose-cution, the burden of disproof is cast on the defence.
In a criminal trial there is nothing presumed in favour of theprosecution. The burden of establishing the charges laid against theaccused lies on the prosecution throughout the trial. The learned Com-missioner’s direction that whoever inflicted the injuries on Seelawathiemay be presumed to have what is known as a murderous intention is wrongand is a misdirection. Even the statement, “ A sane person may be pre-sumed to intend the natural and probable consequences of his act, ” isopen to question under our law, although English Judges have occasionallycharged juries in that sense. Under our law the prosecution must provethe ingredients of the offence. There is no statutory presumption inregard to intention. Section 114 provides that the Court may presume theexistence of any fact which it thinks likely to have happened, regardbeing had to the common course of natural events, human conduct, andpublic and private business in their relation to the facts of the particularcase. Neither that provision nor the maxims sub-joined to it introduceinto our law the presumption referred to by the learned Commissioner.Nor is section 100 of the Evidence Ordinance authority for the intro-duction of that legal concept from the English criminal law in so far asit is recognised in criminal proceedings in that country. There too itwould appear from the discussion on the subject by leading writers oncriminal law (Glanville Williams’ Criminal Law (2nd Ed. 1961), GeneralPart, ss. 35 & 291), that it is not universally recognised and is in conflictwith some of the well-known and authoritative decisions on the burdenof proof in criminal cases involving mensrea (see Meade (1909) 1 K. B. 895,and Woolmington (1935) A. C. 462).
Now presumption is not the same as inference. In presumption thepresumed fact is taken to be true or entitled to belief without examinationor proof unless and until it is disproved while inference is the conclusiondrawn from one or more proved facts or a combination of them. Forexample the nature of the weapon used, the ferocity of the attack, and theparts of the body struck with the weapon are facts on which an inferenceas to the intention of the wrong-doer may be based, but it wouldbe wrong to say that his intention may be presumed from thosecircumstances.
We now come to the learned Commissioner’s directions in regard to thelaw of unlawful assembly. They are by no means clear, and may haveconfused the jury. The learned Commissioner introduced into his ex-planation both the concept of ‘‘ common object ’’ and ‘* common intention’’and used them as if they were synonymous and as if common intentionwas also an ingredient of the definition of unlawful assembly. The conceptof “ common intention ” is to be found in section 32 and the conceptof “ common object ” in section 138. When dealing with section 138the concept of “ common object ” therein must not be equated to theconcept of ‘ common intention ” in section 32. Object and intention arenot the same. Even in the indictment the indicting authority appearsto have endeavoured to observe the distinction. But the learned Commis-sioner did not keep them in their proper place and in the course of hischarge he mixed the two. He said, for example,
“ If at the beginning there was only the common intention of causinghurt to Liyoris but the other common object of causing hurt to the othermembers of the family came in subsequently also it would amount to acommon object …. ” (p. 353).
“ But in the case of common object each one may have had the inten-tion of causing hurt to Liyoris but they need not have shared thatcommon intention independently. If they came with that intention,and five of such persons came together, then it would become anunlawful assembly. There the object would be common and if therewere five or more persons with this object, then they would form anunlawful assembly without any prior concert among themselves. ”(p. 355).
“ In the case of unlawful assembly as well as common intention, theprinciple is that they also serve who also stand and wait ….Similarly, in the case of common intention also the mere presence ofthose who share the common object, giving encouragement and supportto a person or protection to the persons who are actually committingthe act is in iteslf an offence. ”(p. 358).
In view of the numerous illegalities and the misdirections on vitalaspects of the case we allow the appeals, quash the convictions anddirect a judgment of acquittal to be entered.
Accused acquitted.