[IN THE COURT OF CRIMINAL APPEAL]

1959 Present: Basnayake, C.J. (President), Sansoni, J., and
H. N. G. Fernando, J.

THE QUEEN v. J. MAHATUN and another

APPEALS 108 AND 109 APPLICATIONS 138 AND 139
OF 1959

S. C. 28-M. C. Matugama, 30504

    Common intention-Meaning thereof- Vicarious criminal liability-" Criminal act "- Done by several persons "-Penal Code, ss. 31, 32, 33, 34, 35, 36, 113A,113B.

Under section 32 of the Penal Code, when a criminal sot is committed by one of several persons in furtherance of the common intention of all, each of them is liable for that sot in the same manner as if it were done by him alone. If each of several persons commits a different criminal sot each act being in furtherance of the common intention of all, each of them is liable for each such as if It were done by him alone.

To establish the existence of a common intention it is not essential to prove that the criminal sot was done in concert pursuant to a pre-arranged plan. A common intention can come into existence without pre-arrangement. It can be formed on the spur of the moment.

APPEALS, with applications, against two convictions in a trial before the Supreme Court.

Colvin R. de Silva, with M. L. de Silva and Anil Moonesinghe, for Accused-Appellants.

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

Cur. adv. vult.

December 21,1959. BASNAYAKE, C.J.-

The only ground of appeal which learned counsel has argued is that the learned Judge's directions as to the liability of the second accused for the acts committed by the first accused are wrong in law.

The first accused Jayaweerage Mahatun is the younger brother of the second accused Jayaweerage Dharmadasa. They were indicted on the following charges:-

1.That on or about the 30th of September, 1958, at Agalawatte in the division of Matugama, in the division of Kalutara, within the jurisdiction of this Court, you did throw a hand bomb at Pitagoda Hewage Dharmadasa with such intention or knowledge and under such circumstances that had you by such act caused the death of the said Pitagoda Hewage Dharmadasa you would have boon guilty of murder, and by such act you did cause hurt to the said Pitagoda Hewage harmadasa, and you have thereby committed an offence punishable under Section 300 of the Penal Code.

2. That at the time and place aforesaid and in the course of the same transaction you did throw a hand bomb at Hewage Romanis with such intention or knowledge and under such circumstances that had you by such act caused the death of the said Hewage Romanis you would have been guilty of murder and by such act you did cause hurt to the said Hewage Romanis, and you have thereby committed an offence punishable under Section 300 of the Penal Code."

In respect of the attempted murder of Pitagoda Hewage Dharmadasa the jury returned a verdict of guilty against both of them and in respect of the attempted murder of Hewage Romanis a verdict of not guilty. The first acc was sentenced to 12 years' rigorous imprisonment and the second to 8 years' rigorous imprisonment.

Shortly the facts are as follows: Pitagoda Hewage Dharmadasa one of the injured men was the lessee of the field known as Medagonaduwa belonging to the Pathiraja Pirivena of Agalawatte. I was leased to him by one K. D. Dharmasena on deed No. 4901 of 13th September 1958 (P2). On 30th September the date on which he was injured Dharmadasa went along With William his elder brothe, Romanis alias It hapanhadaya, and about six others at 9 a.m. to plough and prepare the field for sowing. About noon when they were engaged in their work the two accused came from the direction of the adjoining temple, the Pathiraja Pirivena, with a crowd of followers carrying swords, katties, and other weapons and shouting: "Get out of the field you fellows. Wait there to eat you fellows. You fellows will be eaten up." The two accused were: leading the crowd. The first accuse