ASAD AND ANOTHER

Vs.

ATTORNEY GENERAL

COURT OF APPEAL
WIJESUNDERA, J.
WENGAPPULI, J.
CA/91/2013
HC KURUNEGALA 355/2006
MAY 6, 2019

Murder-Intention and knowledge-Penal Code, section 294 fourth limb-Aiding and Abetting-Reckless driving

The 1st accused-appellant was convicted of multiple counts of murder and attempted murder and the 2nd accused-appellant of aiding and abetting the said offences. They accused were, respectively, the driver and conductor of a bus transporting a packed busload of passengers, which was driven onto the rail track when the rail gate was closed. This caused a collision leading to the death of 40 persons and causing serious injury to 27 persons. On appeal it was contended that the appellants had no murderous intention and that therefore the conviction for murder should be reduced to a charge under section 298 for rash and negligent acts not amounting to murder and also that the High Court erred in attributing knowledge under the fourth limb of section 294 to the appellants.

Held:

1. Under the fourth limb of section 294 of the Penal Code, the emphasis is on knowledge, not intention. To prove that the accused is guilty of murder under the said limb, the prosecution must prove beyond reasonable doubt that the person committing the act knew that it was so imminently dangerous that it must in all probability cause death or in all probability cause such bodily injury as is likely to cause death and that he committed such act without any excuse for incurring the risk of causing such injury as aforesaid.

2. The finding of imminent danger against the appellant is justified, as the 1st appellant took the bus through the other lane of the highway to reach the level crossing and sent the 2nd appellant as a lookout when they knew that the rail gate was already closed and there were already a few vehicles waiting in line.

3. The 1st appellant's excuse for committing the imminently dangerous act, which is that as the passengers are office workers he took this risk with a view to reaching his destination on time, cannot be regarded as a valid excuse.

Cases referred to:

1. Somapala v. The Queen 72 NLR 121
2. The King v. Wjeratnam 43 NLR 25
3. Barkatulla (1887) (P.R. no. 32 of 1887)
4. Bandara v. Attorney General [2006] 2 Sri LR 1
5. Farook v. Attorney General [2006] 3 Sri LR 174
6. Chandrasena v. Attorney General [2008] 2 Sri LR 255
7. Jinadasa v. Attorney General [1984] 2 Sri LR 234
8. The King v. Rengasamy 25 NLR 438

APPEAL from the Judgment of the High Court.

Ranjit Fernando for the Accused-Appellants.

Chethiya Goonesekera, D.S.G., for the Respondent.

cur. adv. vult

June 21, 2019

WENGAPPULI, J.

This is an appeal by the 1st and 2nd accused-appellants (hereinafter referred to as the "1st and 2nd appellants" respectively) against their conviction for multiple counts of murder and the consequent imposition of penalty of death.

The indictment that had been presented to the High Court of Kurunegala contained 152 counts including 40 counts of murder and 36 counts of attempted murder against the 1st appellant while it is alleged that the 2nd appellant aided and abetted the 1st appellant to commit said offences. At the conclusion of the trial, the 1st appellant was found guilty to 33 counts of murder and 27 counts of attempted murder. The 2nd appellant was found guilty to 33 counts of abetment to murder and 27 counts of abetment to attempted murder.

The prosecution case is that the 1st appellant; being the driver of the bus bearing registration number NWHT 2520, packed with passengers to its capacity, was on its way to Colombo. Upon reaching the Yangalmodera level crossing, on A6 highway the 1st appellant made an attempt to drive

around the closed rail gate of the level crossing with its red light burning in spite of the fact that onlookers have warned him of the oncoming Colombo-Kandy intercity express train. The train collided with the passenger bus at the middl