King V. Appusamy Et Al.,

[COURT OF CRIMINAL APPEAL.]

1945 Present: Keuneman S.P.J., Rose and Canekeratne JJ.

THE KING v. APPUHAMY et al.

Applications 162-165-M. C. Rakwana, 41,871

Court of Criminal Appeal-Charge of murder-Several accused-Common intention-Requirements of a proper direction on-Penal Code, s. 32.

The four applicants were found guilty of murder.

On the question of common intention the directions of the trial Judge were such as to indicate that while " murderous intention " was necessary to be proved in respect of the person who was shown to have caused the death of the deceased, in the case of his associates any form of common criminal intention would suffice to render them guilty of the same offence-

Held, that the Judge should have emphasized to the Jury that, under section 32 of the Penal Code, to support the charge of murder the common intention must itself be a " murderous intention " within the meaning of section 294 of the Penal Code, and that if the common intention was something less, e.g., to cause grievous hurt, the persons who shared that common intention would be only guilty of the lesser offence.

APPLICATIONS for leave to appeal against certain convictions by a Judge and Jury.

G. E. Chitty (with him H. Wanigatunge and S. Mahadeva), for the applicants.

E. H. T. Gunasekere, C.C., for the Crown.

Cur. adv. vult.

November 30, 1945. KEUNEMAN S.P.J.-

In this case five accused were indicted for the murder of Maddumage Mathes. The Jury by a majority of five to two, in the case of the first accused, and unanimously in the case of the second, third, and fourth accused, found these applicants guilty of murder. The fifth accused was unanimously acquitted.

The points which have been raised in these applications are as follows : -

(1) Crown Counsel at the commencement of the trial mentioned to the Jury a statement alleged to have been made by the deceased to Martin, but added that Martin was unwell and that if he were absent on the next date of trial the defence Counsel had no objection to the deposition of Martin in the Magistrate's Court being read. Eventually Martin was not called and his deposition was not read. What actually took place in Court in this connection is not very clear. In his charge the trial Judge says " The defending Counsel submitted that this was somewhat irregular but I held it was not. After all it is a common thing for the Crown sometimes to open evidence which it cannot prove, and I must ask you, Gentlemen, to completely put out of your minds anything  you might remember of learned Crown Counsel's opening in regard to what Martin is supposed to have said. His evidence is not before us. He is not before us. And the oath you took as Jurymen makes it incumbent on you to decide this case on the evidence led in this Court and nothing else ".

It is now contended that the accused should have been entitled to call Martin or to have his deposition read, as his evidence was material for the defence. But it seems clear that no application was made to Court for either of those purposes, and we do not think the application can be allowed by us. As regards the irregularity complained of, we think the Judge's warning to the Jury was emphatic and adequate.

(2) The proof in this case was principally based on the evidence of deceased's wife, Kalinguhamy, who spoke to a statement made by the deceased to her implicating these accused as well as the fifth accused. Certain matters which were said to have cast a serious doubt upon her evidence, and also on the truth of the deceased's statement, were detailed to us, but these matters were clearly put to the Jury by the Judge and we think the Jury were entitled after weighing these matters to decide to accept the evidence. 

(3) It was argued that the Jury showed a confusion of mind in that they acquitted the fifth accused and convicted the first accused whose case was not materially different. But in fact the alleged

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