[COURT OF CRIMINAL APPEAL]

1980 Present: Jayatileke S.P.J. (President), Gunasekara J. and
Pulle J.

THE KING v. HEEN BABA Appeal 68 and Applications 174-175

S. C. 2-M. C. Badulla, 7,804

Court of Criminal Appeal-Unlawful assembly-" Common object " and " common intention "-Distinction between-Indictment under Penal Code, section 146-" Common intention ". of accused not implicit in such indictment-Scope of sections 32 and 146 of Penal Code.

The accused were charged under section 146 of the Penal Code with having committed, as members of an unlawful assembly, the offences of house-breaking, robbery, grievous hurt and hurt (sections 443, 380, 383 and 382 of the Penal Code). The jury, acting on a direction given to them by the presiding Judge, found that there was no unlawful assembly, but that the offences of housebreaking, robbery, grievous hurt and hurt were committed by the accused acting in furtherance of a common intention within the meaning of section 32 of the Penal Code.

Held, that it was not competent to the jury to return a verdict of guilty under sections 443, 380, 383 and 382 read with section 32 when those offences did not form the subject of separate charges but were referred to in charges coupled with section 146. The charges under the former sections were not implicit in the charges under the latter sections.

APPEAL, with applications for leave to appeal, against two convictions in a trial before a Judge and Jury.

M. M. Kumarakulasingham, with V. S. A. Pullenayagam and R. S. Wanasundera, for accused appellants.

H. A. Wijemanne, Crown Counsel, for the Crown.

Cur. adv. vult.

February 27, 1958. JAYATILEKE S.P.J.-

The appellants were charged with the following offences: -

1. That they with others unknown to the prosecution were members of an unlawful assembly the common object of which was to commit house-breaking and robbery and thereby committed an offence punishable under s. 140 of the Penal Code.

2. That they, being members of the said unlawful assembly, in prosecution of the said common object, committed house-breaking by night by entering the house of one Thevani Amma in order to the committing of robbery and thereby committed an offence punishable under s. 443 read with s. 146 of the Penal Code.

3. That they being members of the said unlawful assembly, in prosecution of the said common object, committed robbery of cash and other articles of the value of Rs. 2,675 property in the possession of Thevani Amma and thereby committed an offence punishable under s. 380 read with s. 146 of the Penal Code.

4. That one or more members of the unlawful assembly, at the time of committing robbery, in prosecution of the said common object, caused grievous hurt to one Muthiah, which offence-was committed in prosecution of the said common object or was such as the members of the said unlawful assembly knew to be likely to be committed in prosecution of the said common object and they being members of the said unlawful assembly at the time of the commission of the said offence thereby committed an offence punishable under s. 386 read with s. 146 of the Penal Code.

5. That they, being members of the said unlawful assembly, in committing or in attempting to commit robbery in prosecution of the said common object caused hurt to Thevani Amma and thereby committed an offence punishable under s. 146 read with s. 382 of the Penal Code.

6. That they, being members of the said unlawful assembly, in committing or in attempting to commit robbery in prosecution of the said common object, caused hurt to one Poornan and thereby committed an offence punishable under s. 382 read with s. 146 of the Penal Code.

The jury acquitted them on all the charges but, acting on a direction given to them by the presiding Judge that it was competent to them to do so, they found them guilty under sections 443, 380, 383 and 382 read with section 32. The verdict of the jury was