Regina V. Somapala Et Al.,

[IN THE COURT OF CRIMINAL APPEAL]

1956 Present : Basnayake, A.C.J. (President), Gratiaen, J., and
Fernando, J.

REGINA v. P. M. SOMAPALA et al.

APPEALS 66-68, WITH APPLICATIONS 106-108, OF 1955

S. C. 28-M. C. Walasmulla, 12,723

Mens rea-Joint indictment-Several accused-Common intention--Guilty knowledge- Misdirection-Penal Code, ss. 32, 146, 294, 317.

By Section 32 of the Penal Code -

" When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. "

Held (by the majority of the Court), that the Section has only a limited scope in relation to offences in which guilty knowledge is an element. It does not constructively impute to one socius criminis the guilty knowledge of another. In order to decide whether an accused person, to whom liability is imputed for another person's criminal acts, has committed an offence involving guilty knowledge, the test is whether such guilty knowledge has been established against him individually by the evidence.

APPEALS, with applications for leave to appeal, against certain convictions in a trial before the Supreme Court.

Calvin R. de Silva, with M. L. de Silva, T. Velupillai and S. M. H. de Silva, for the accused-appellants.

V. S. A. Pullenayegum, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

351

February 13, 1956. GRATIAEN, J.-

There were three appellants in this case, the second and third being brothers-in-law of the first. They were jointly indicted for the murder of V. P. Sirisena who died at the Civil Hospital, Galle, on August 13th, 1954, in consequence of injuries inflicted on him two days previously in the 2nd appellant's house in Kirama. The appellants were acquitted of murder, but the jury unanimously found each of them guilty of culpable homicide not amounting to murder.

The appeal of the 1st appellant was not pressed before us and his conviction was accordingly affirmed. At the conclusion of the argument, however, the Court quashed the convictions of the other appellants for culpable homicide not amounting to murder and substituted in each case a conviction for grievous hurt punishable under S. 317 of the Penal Code.

The case for the Crown was largely based on certain statements (admissible under S. 32 of the Evidence Ordinance) which the deceased person had made to reliable witnesses as to the circumstances of the transaction which resulted in his death. Has version was corroborated in part by the witness Charles who was present during the earlier stages of the incident. It is safe to assume that the jury was perfectly satisfied that, when the deceased and Charles were passing the 2nd appellant's house at about 8.30 p.m. on the night in question, all three appellants waylaid the deceased and dragged him forcibly into the house. Charles escaped, and was unable to say what took place thereafter behind the closed doors of the 2nd appellant's house, but, according to the dying declaration previously mentioned, all the appellants assaulted the deceased very severely with hands and with clubs.

The motive suggested for this high-handed conduct was that enmity had arisen between the parties owing to friction engendered during a recent election campaign ; there had also been bad feeling in connection with a trivial incident which took place three weeks previously in a neighbour's boutique.

After the assault, the appellants ran away, leaving their victim behind in the empty house. In the meantime Charles had spread the alarm in the locality and a crowd of neighbours collected outside the house, but none of them had the courage to enter it. At about 11.30 p.m. a Police Inspector who happened to be passing in a jeep arranged for the injured man to be conveyed to Walasmulla for medical attention. As surgical treatment was considered to be necessary, the man was taken

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