Queen, The V. Vincent Fernando

[IN THE COURT OF CRIMINAL APPEAL]

1963 Present : Basnayake, C. J. (President), Herat, J.,
and Abeyesundere, J.

THE QUEEN v. S. VINCENT FERNANDO and 2 others

APPEALS Nos. 4, 5 AND 6 OF 1962, WITH APPLICATIONS Nos. 4, 5 AND 6

S. C. 78-M. C. Negombo, 2,686

Trial before Supreme Court-Inspection of scene of offence by jury-Procedure- Illegality of recording evidence at the scene-Criminal Procedure Code, ss. 153, 238-Courts Ordinance, ss. 52, 53, 85.

In a trial before the Supreme Court the recording of evidence at the place where the offence was committed is illegal and not warranted by the provisions of section 238 of the Criminal Procedure Code. Nor is it proper for the jury to be taken from place to place during the inspection.

Evidence Ordinance-Section 32-Statement of deceased person as to the cause of his death-Weight to be attached to it-Misdirection.

It would be a misdirection to tell the jury that the statement of a deceased person as to the cause of his death which is admissible Under section 32 of the Evidence Ordinance as a relevant fact is diminished in weight by the absence of cross-examination or that it is an inferior kind of evidence which must not be acted upon unless corroborated.

Common intention-Meaning of term-Penal Code, ss. 30, 31, 32.

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, that, to be liable under section 32, a mental sharing of the common intention is not sufficient; the sharing must be evidenced by a criminal act or illegal omission manifesting the state of mind.

Where the trial Judge, in the course of his summing-up, said :-

" If there is a common intention, even if one of them does not do any act, he would still be liable as though he too committed the same act. The reason is the mere presence of those who shared a common intention gives encouragement and support and a sense of protection and security to the person actually committing the act."

Held, that the direction was wrong in law.

APPEAL against three convictions in a trial before the Supreme Court.

G. E. Chitty, Q. C., with D. S. D. Senanayake and D. J. Walpola (assigned), for Accused-Appellants.

S. S. Wijesinha, Crown Counsel, for Attorney-General.

Cur. adv. vult.

266

May 13, 1963.   BASNAYAKE, C. J.-

The appellants Vincent Fernando, Leelaratne Fernando and Godwin Fernando were indicted with jointly committing the murder of David Fernando on 1st November, 1960.

The case for the prosecution rests on the evidence of Mary Margaret and the statements of the deceased. All three accused gave evidence on their behalf and denied the charge. The 1st accused said he was at Puttalam and called a witness in support. The 2nd accused said he was at his father's house at Pottukulama and the 3rd accused said he was at his aunt's house at 91 Weboda Road.

The story for the prosecution is that on 18th September Thobias the father of Godwin Fernando the 3rd accused assaulted the husband of Mary Margaret. On that occasion the deceased helped to take the injured man to the Police Station and the hospital. The 1st accused, the 3rd accused and his father were warned by the headman, and on a complaint made by the 1st accused's wife the deceased was also warned by him. This incident estranged the parties. On 1st November, the day of the murder, the deceased and his household had their night meal at about 8.30 p.m. After dinner the deceased got out of the front entrance of his house, but soon returned saying that someone was going to the rear of the house with a gun. He picked up a pingo stick that was at hand and went up to the entrance followed by the witness Mary Margaret and his wife. At that moment a shot was fired in front of them. The deceased pushed the two women insid

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