071-NLR-NLR-V-59-THE-QUEEN-v.-MUDALIHAMY.pdf
BASYAYAKE, C.J.—The Queen v. Mudalihamy
299‘
[In the Court of Criminal Appeal]
1957 Present : Basnayake, C.J. (President), H. N. G. Fernando, J.,and Sinnetamby, J.THE QUEEN v. MUDAEIHAMY.
Appeal No. 123 of 1957 with Application No. 146S. G. 8—M. C-. Matale, 10,100
Penal Code—Section 32—Common intention—Charge oj vicarious liability—Right ofaccused to be given notice thereof—Form of indictment—Criminal ProcedureCode, ss. 167, 163, 169, 171. .
Where it is sought, on tho ground of common intention, to make an accusedperson vicariously responsible for the criminal acts of persons who are not beingcharged at all as co-accused, section 1C9 of the Criminal Procedure Code requiresthat the accused should be mode aware at tho outset that it is a charge ofvicarious liability under section 32 of the Penal Code that ho has to repel.
A
iIPPEAL against a conviction in a trial before the Supreme Court-Lrucien Jayetileke (Assigned), for the Accused-Appellant.
J.R. M. Perera, Crown Counsel, for the Attorney-General. ■.
'- Cur. adv. vulC.
-‘I-.
December 2, 1957. Basnayake, C.J.—-•
The appellant Hulanbeddegedera Mudalihamy was indicted on acharge of the murder of Talawinnegedera Kiri Banda.The jury returned;a verdict of causing grievous hurt under provocation and he was sentenced;to 18 months’ rigorous imprisonment;
300BASXAYAKE, C.J.—The Queen v. Slludalihamy
The material .facts are narrated by the two eye witnesses Ukku Bandaand Punchi Banda. According to the former, on the day in questionthe deceased, who appeared to be drunk, was seen going along the foot-path which runs past the appellant’s house hurling abuse and utteringthreats. The witness is unable to say at whom the abuse and threatswere directed. When the deceased was passing the appellant’s househis wife Dingiriamma who was standing in her verandah threw a fewstones at him. While doing so she said, “ You are abusing every day,you are not allowing us to live here. ” Immediately after that the twodaughters of the appellant, his wife and he ran towards the deceased.They seized the deceased and a struggle ensued on the devata road nearthe corner of the witness’s cocoa plantation. The deceased extricatedhimself from the huddle and ran into Ukku Banda’s garden pursued byliis assailants who once more seized him and attacked him there. Herethe appellant attacked the deceased on his head with a kitul club.It alighted above the right ear. The witness did not see any other blowas he was busy enlisting the support of others in order to stop the assault.For the second time the deceased freed himself from his assailants andran hotly pursued by them into the witness’s house where he obtainedsanctuary. Ukku Banda and Punchi Banda both prevented his pursuersfrom entering the house and attacking the deceased. In doing so thewitnesses themselves received blows aimed at the deceased. The blowwhich fell on Ukku Banda was dealt by the appellant and the blow onPunchi Banda by his youngest daughter with the round kitul club PI.There was no further attack on the deceased. The version of thewitness P mi chi Banda is slightly different. According to him the attacknear the cocoa plantation was begun by the wife and daughters of theappellant, who joined them later and struck a blow on the deceased’shead with a kitul club. The club was 4" broad and one fathom long.He did not see the second struggle in Ukku Banda’s garden. Bothspeak of a blow dealt by the appellant with a club on the head of thedeceased. One says it was struck in Ukku Banda’s garden in the secondround of the fight, the other sa3_s it was near his cocoa garden in thefirst round. The Crown also led the evidence of a witness called Ranh am yto prove that the appellant intended to kill the deceased that day. Hesaid that before the arrival of the deceased on the scene the appellantwas heard by him to utter these words: ” Nisa will be murdered”,
“ If the whore’s son JSTisa comes I will kill him today ”. The prosecutionled evidence of motive and of bad character of the deceased. There isno doubt that hi the course of the struggle one of the four assailants didinflict the injury which resulted in the death of the deceased. Theother assailants were not indicted on any charge whatsoever, and theproceedings do not show whether they were ever charged before theMagistrate. The autopsy revealed a lacerated wound, four abrasionsand four contusions. One of the contusions was 3' X 2' on the left sideof the abdomen just belo-sv the costal margin. Internally there was aperforation about 1" just below the sigmoid flexure, with the intestinesmatted together with flakes of lymph under the external injur}'. Themedical evidence is that the perforation could have been caused by akick or a blow with a smooth club on the stomach or oven by a blow
301
-BAS-N'AYAlvE, C.J.—The Queen v. jiludalihamy
with a closed fist. The doctor also expressed the opinion that a personwho receives such an injury would collapse within a few seconds butthat it is possible that after receiving the injury a person could survive acombined attack by four persons and then run a distance of anythingfrom 20 feet to 25 yards before collapsing. .
Of tho grounds of appeal in the notice of appeal learned counsel for theappellant urged—
(а)that, the verdict was unreasonable,
(б)that the direction of tho learned trial Judge that the prisoner
can be found guilty on the ground that ho had a commonintention with tho others who were not charged and was liablefor any offence committed by them, was wrong in law,
that the- appellant was prejudiced by the fact that he had nonotice of the fact that the prosecution was relying on section 32of the Penal Code to establish the charge against him.
There is no evidenco that the appellant struck any blow other-thanthat described by the two eye witnesses, nor is there evidence that thedeceased was kicked or that any other person struck the deceased with aclub or tho fist.
The learned trial Judge charged the jury thus :—
“ Now if you accept the evidence for the prosecution that thedeceased was attacked at one stage of this episode by four persons,what was the intention common to all ? I have already told you that .it is the easiest thing in this world, if you accept the prosecutionevidence, to find as proved that there was a common intention tocause ordinary hurt. Can you on the evidence before you find thatthere was a common intention to cause more than ordinary hurt,namely grievous hurt ? ”.
After having explained the meaning of grievous hurt the learned Judge,
said :
.“ Can you say with reasonable certainty that the four who attacked
did not want to let off the deceased without inflicting on him hurt of agrievous character ? If you can confidently^ say " Yes ”, then eachone of the attacking persons must be held responsible for all the injuries •that were inflicted. If you cannot say “ Yes ”, then, you can holdeach of the attackers responsible for only what he did or what she did.
" It is absolutely clear that there is no evidenco as to wKo causedthe injury to the stomach which rdtimately proved fatal. We know 'that that injury was a grievous injury. If you cannot say that therewas a commpn intention to cause grievous hurt, then the accusedin this case can only be found guilty of simple hurt, subject perhaps .to other, circumstances that I would mention later on, but if as I said
302
BAS2TAYAKJD, C.J.—The Queen v. Afndalihamy
– before you are positive in your mirids that the four who attacked thedeceased were actuated, were impeded, were guided by one idea in theirminds, namely to cause grievous hurt, then it would be immaterialthat we do not know who actually caused the injury to the stomach,because in that state of affairs the accused must be held responsiblefor all the injuries they inflicted, and if his wife and daughters werehere, each of them also would bo held liable for all the injuries. Now,that is the crucial point in the case. ”
The learned Judge next dealt with the question of causing hurt bothgrievous and simple under provocation. We are of opinion that thelearned trial Judge has directed the jury correctly and that his chargedocs not contain a misdirection. In accordance with the direction of thelearned Judge the jury were entitled on the evidence before them to returnthe verdict they did. This disposes of the first two grounds. The third,remains for consideration.
There was no indication in the indictment that the appellant was beingmade vicariously liable for the death of the deceased. It contained astraightforward charge which alleged that the appellant committedmurder by causing the death of the deacesed. Now it must have beenclear to the learned Attorney-General, if the evidence given at the trialwas the material on which the indictment was framed, that there was noevidence whatsoever that the appellant caused the death of the deceased.The appellant should therefore have been made aware that it was proposedto make use of section 32 of the Penal Code in order to bring home guiltto him. The simplest and the usual way of achieving this object is byreferring to section 32 in the charge. The proceedings do not showthat at any stage of the trial he was made aware even in some other wayof the fact that he was being made liable, not for the act committedby him, but for an act presumed to have been committed by one of theother three. Although the indictment gives the offence with which theaccused was charged, the time and place of the alleged offence, andthe person against whom it was committed, those particulars were notin our opinion reasonably sufficient to indicate to the appellant the groundon which it was sought to bring home guilt to him. Section 169 of theCriminal Procedure Code requires that when the nature of the case issuch that the particulars mentioned in sections 1G7 and 16S do not givethe accused sufficient notice of the matter with which he is charged,the charge shall contain such particulars of the manner in which thealleged offence was committed as will be sufficient for that purpose.
It is true that section 32 lays down a principle of joint liability in thedoing of a criminal act1 and it does not create a new offence2 and althoughthe omission to mention section 32 in the charge in a case where morepersons than one are being charged with an offence and it is soughtto make them vicariously responsible for a criminal act committed byone of them in furtherance of their common intention, may not be fatalto a conviction, if it is clear to the accused that they are being made
1 1045 A. /. i?.. P. O. 11S.
• 192i A. /. n.. Gal. 257.
BASXAY.-VICE, C.J.—The Queen v. JMudalihamy
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vicariously liable for the acts of one of them, we think that it is desirableeven in such cases to refer to section 32 or other appropriate section ofthat group in the charge and certainly in this case, if it was sought to makethe person charged vicariously responsible for the acts of those who arenot being charged at all, it was necessary that the appellant should havebeen made aware at the outset that it was a charge of vicarious liabilitythat he had to repel. We are of opinion that section 169 of the CriminalProcedure Code requires that it should be done. In the instant casethere has been a failure to give the appellant such particulars relating to.the charge against him as are reasonably sufficient to indicate the Crown’sreliance on the principle of liability laid down in section 32 of the PenalCode. The e^-idenee does not disclose why the others were not indicted.The question then is, was the appellant misled by the omission to refer tosection 32 and has there been a miscarriage of justice in consequence ?Section 171 of the Criminal Procedure Code provides that no error instating either the offence or the particulars required to be stated in thecharge and no omission to state the offence or those particulars shall be-regarded a,t any stage of the case as material, unless the accused wasmisled by such error or omission. The trend of the cross-examinationdoes not show that the counsel assigned to defend the appellant realisedthat he was being made to answer a case of vicarious liability. Nowhereexcept in the learned Judge’s charge has the matter been mentioned.
It is relevant to note that the appellant did not give evidence. It isdifficult to say how far his decision was influenced by the fact that he was.unaware of the real nature ofthe charge against him. It is just possiblethat appellant’s counsel may have adopted a different line of cross-examination if the charge contained an indication that section 32 was-being invoked by the prosecution. We are unable therefore to escapethe feeling that the appellant was misled by the omission in the chargeand that there has been in consequence a miscarriage of justice.
Learned Crown Counsel cited the case of Ramlochan v. The Queen 1in support of his contention that the course adopted by the prosecutionwas unobjectionable. We are unable to agree that that case has anyapplication to the one before us. The report does not refer to the relevantprovisions of the Penal and Criminal Procedure Codes of Trinidad andTobago. Apart from that the Trinidad case is one dependent entirelyon circumstantial evidence and is not one in which it was sought to makethe accused vicariously liable for the criminal act of another not beforethe Court. The following extract from the judgment of the Boardindicates the real issue in that case (127) :.
" It is true that no other person was indicted along with the accusedfor the murder.. But that maj' ha%*e been because, whatever suspicions■ there were, there were no incriminating circumstances attaching toany other person, sufficient in the opinion of the Crown to justify it- in bringing against any other person an accusation of murder. Therewere many incriminating circumstances attaching to tho appellantwhich were all before the jury, including some to which their Lordshipshave not found it necessary to refer. The evidence was very fully
1 (1956) 3 W. L. R. 117 (P. O.)
304
Tirimanne v. Commissioner of Income Tax
placed before the jury by the judge in his summing-up. On theevidence it was open to the jury, in their Lordships’ opinion, to takethe new that the accused committed this deed alone or that hecommitted it -with the assistance of some other person. ”
As the verdict of the jury shows that they were satisfied that theappellant struck the deceased with a club on his head they would in anyevent have convicted him of voluntarily causing snnple hurt with aninstrument which when used as a weapon of offence is likely to causedeath. As the verdict also shows that in the view of the j urv the appellantacted under grave and sudden provocation we propose to substitutefor the verdict of the jury a verdict of voluntarily causing simple hurton grave and sudden provocation punishable under section 325 of the .Penal Code. The appellant has been on remand for over a year and wethink that the ends of justice would be satisfied if we sentence him toone month’s rigorous imprisonment and direct that a month of the periodlie has been on remand be treated as the period of imprisonment. In theresult he will be entitled to be discharged from jail immediately upon thecommunication of this order to the Prison authorities.
Verdict altered.