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THAMBIAH et al. v. TENNEKOON
NLR51V186
1949 Present : Canekeratne J.
THAMBIAH et al., Appellants, and TENNEKOON (Inspector of Police), Respondent
S. C. 365-336- M. C. Jaffna, 15,144
Charge-Several accused-Common
intention-Section 32 of Penal Code-Need not be referred to in charge.
Where several accused acted with common intention it is not necessary to specify
section 32 of the Penal Code in the charge framed against them.
APPEALS
from a judgment of the Magistrate, Jaffna.
M. M. Kumarakulasingham, for 1st accused appellant.
H. W. Tambiah with A. P. Thurairatnam for 2nd accused appellant.
A, Mahindrarajah, Crown Counsel, for Attorney-General.
Cur. adv. vult.
May 31, 1949 CANEKERATNE J.-
At an election held about ten days before, the candidate whom the complainant
zealously supported was successful ; the one favoured by the two accused persons
was not. So he became the object, as the Magistrate
finds, of their resentment. When
the complainant met the two accused near a junction on February 22, the second
accused addressed him thus, " Are you going to work in the elections ? " and
seized him. Straightaway he called upon his companion, the first accused, who
had a club, to hit him. The first accused then hit him twice on the head with
the club-one caused a fracture of the underlying bone. Released from his grasp
the injured man sat down on the ground; the second accused then caught hold of
his legs and dragged him a very short distance. There can hardly be any ground
on which the conviction of the first accused can be assailed.
From a consideration of all the facts proved and the circumstances surrounding
the case, the Magistrate came to the conclusion that grievous hurt was caused in
furtherance of a common intention and convicted the second appellant; he was a
confederate and the act would be a joint one. The case of Mahibub Shah v.
Emperor (A.I.R. 1945, Privy Council, 118), quoted by his Counsel, can have no
application to the facts of this case. Every judgment must be read, as has often
been said, as applicable to the particular facts proved, or assumed to be
proved, since the generality of the expressions which may be found there are not
intended to be expositions of the whole law, but governed and qualified by the
particular facts of the case in which such expressions are to be found [ Lord
Holsbury's remarks.]. These remarks apply very forcibly to some of the language
used in the judgment referred to.
It was strenuously contended by counsel that there was no correct charge in the
case and in this connection he referred to four decisions. The recital of facts
in the two Calcutta cases 50 Calcutta 41 and 58 Calcutta 822) shows that there
was a reference to Section 34 of the Indian Penal Code) in the charge in each of
those cases, but there is not a word regarding the necessity of the section in a
charge. The Madras case (A. I. R. Madras (1924) 584) falls within the same
class. The Judge who decided the other case states thus: -
"The omission to frame a charge under Section 34 was vital and the result is
that each man is liable only for his individual acts."
There is hardly any convincing reason given for this. In this connection
attention was drawn by him to the. following brief statement from Gour (5th
Edition, 1930, 188): No person can be convicted under the section unless he is
specially charged with it. As authority for this statement is given the case of
Cheda Singh, 1924 (P. C. 183),[ In the table of cases the reference is given as
1924, L. R. 5A, 13S. The latter is the same as is reported at page 766 of A. I.
R. 1924 Allahabad. The delay in delivering judgment was partly due to the search
for this case.] a case which Counsel did not produce. There are also three other
cases referred to a little later, namely, the Calcutta and Madras cases which
have already been discussed; these do not bear out what is stated in the text.
The statement in the text is much wider than
