The Queen V. Appuhamy, N.K.A.

[IN THE COURT OF CRIMINAL. APPEAL]

1960 Present : Sansoni, J. (President), H. N. G. Fernando, J., and
Sinnetamby, J.

THE QUEEN v. N. K. A. APPUHAMY et al.

Appeals 170-172 and 175-177, with Applications 190-192 and 195-197

S.C.5-m.c.Polonnaruwa,15428

Unlawful assembly-" Common object "-Distinction between common object and common intention-Presence of a person at scene of offence--lnference of guilt therefrom---Penal code, s. 138.

Certificate for appeal given by trial Judge-Bearing on the appeal-court of criminal Appeal Ordinance, No. 23 of 1938, s. 4 (b).

The accused-appellants were indicted, on the 1st count, for having been members of an unlawful assembly, the common objects of which were to commit mischief by fire, murder and rape and, on the 2nd, 3rd and 4th counts, for the commission of the offences of mischief by fire, murder and rape in prosecution of the respective common objects.

Held, (i) that a common object in an unlawful assembly is different from a, common intention, in that it does not require prior concert and a common meeting of minds before the offence is committed. If each member of the assembly has the same object, the their object would be common, and if there were five or more with this object, then they would form an unlawful assembly without any prior concert among themselves.

(ii) that s, person can become a member of an unlawful assembly not only by the doing of a criminal act but also by lending the weight of his presence and associating with a group of persons who are acting in a criminal fashion.

(iii) that the common objects of an unlawful assembly may come in succession and need not necessarily exist together at the beginning.

Held further', that the grant of a certificate by a trial Judge under section 4 (b) of the Court of Criminal Appeal Ordinance is not a ground by itself for quashing the conviction even when the verdict of the jury is reasonable and there has been no misdirection.

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

Colvin R. de Silva, with M. L. de Silva, A. A. de Silva and B. Bodinagoda (Assigned), for the Accused-Appellants.

V. S. A. Pullenayegum, Crown Counsel, for the Crown.

Cur. adv. vult.

December 5, 1960. SANSONI, J.

Seven accused were indicted in this case on four counts which charged them (1) with having been members of an unlawful assembly, the common objects of which were to commit mischief by fire, murder and rape, (2) with having committed mischief by fire in respect of the house of D. B. Podiya in prosecution of the common object, (3) with having committed murder by causing the death of Thuraisamy Mani, daughter of the said D. B. Podiya, in prosecution of the common object and (4) with having committed rape on Thuraisamy Kiruvanesan, another daughter of D. B. PODIYA in prosecution of common object.

These offences were alleged to have been committed on 26th May, 1958, at Ulpathwewa, a village about Ii miles from Hingurakgoda. At the close of the prosecution case, the 7th accused was acquitted because there was no evidence against him, while all the other accused were ultimately convicted on all the counts by a majority verdict of 5 to 2. The present appeal has been brought after a certificate had been obtained from the trial Judge under section 4 (b) of the Court of Criminal Appeal Ordinance
No. 23 of 1938. '

The case for the prosecution rested mainly on the evidence of Podiya, his daughter Kiruvansesan, and James Singho who lived in a house very close to that of Podiya. Podiya himself is the child of a Tamil mother and a Sinhalese father, and he had married a Tamil woman who died shortly before the day in question. He had five children living with him -a daughter Kiruvanesan aged 12! years, 3 sons who were younger than Kiruvanesan, and another daughter, Mani aged It years. He was employed as a Kangany in the Railway Department a

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