KING v. MARSHALL et al

• Jurisdiction: Sri Lanka
• Date: 27 August 1948
• Type of Document: Case report

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[COURT OF CRIMINAL APPEAL.]

1948 Present : Dias J. (President), Nagalingam and Gratiaen JJ.

THE KING v. MARSHALL et al.

APPLICATIONS 173-176.

S. C. 28-M. C. Walasmulla, 1,269.

Court of Criminal Appeal-Alibi-Abetment of murder-Intention to assist offender- Essentials of abetment-Non-direction-Penal Code-Sections 102, 296.

(i) An alibi is not an exception to criminal liability, like a plea of private defence or grave and sudden-provocation. An alibi is nothing more than an evidentiary fact, which, like other facts relied on by an accused, must be weighed in the scale against the case for the prosecution. If sufficient doubt is created in the minds of jury as to whether the accused was present at the scene at the time the offence was committed, then, the prosecution has not established its case beyond reasonable doubt, and the accused is entitled to be acquitted. Rex v. Chandrasekera (1942) 44 N. L. R. at p. 126, and Rex v. Fernando (1947) 48 N. L. R. at p. 251, applied.

(ii) The jury found the second accused guilty of murder and the first, fourth, and seventh accused guilty of abetment of murder. The facts were that a quarrel having arisen, the first, fourth and seventh accused were holding the deceased man and dragging him along for some purpose of their own. The second accused who was some distance behind, taking advantage of the defenceless position of the deceased, rushed up from behind and struck the deceased from behind causing a fatal injury.

Held, that in order to convict the first, fourth and seventh accused of abetment their mere presence with the intention of giving aid to the principal offender was not enough. There must also be the doing of something, or the illegal omission to do something, in order to facilitate the commission of the offence by the principal offender.

Held further, that the aid given by an alleged abettor must be " intentional " and, where the offence abetted is murder, the aid must be " murderously intentional aid ". Furthermore, the facility or aid afforded by him to the doer of the act must be such as was essential for the commission of the crime abetted.

APPLICATIONS for leave to appeal from certain convictions in a trial before a Judge and Jury.

F. A. Hayley, K.C., with M. H. A. Aziz and K. A. P. Rajakaruna, for the first, second, fourth, and seventh accused, appellants.

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

August 27, 1948. DIAS J.-

At the close of the argument we intimated to learned counsel that we were of the opinion that the conviction of the second accused should be affirmed, while the conviction of the first, fourth, and seventh accused should be set aside. We intimated we would give our reasons later.

The indictment charged eight persons with being members of an unlawful assembly, the common object of which was to cause hurt to S, Jamis and S. Dionis-section 140 of the Penal Code : with the offence

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of rioting-section 144 ; and with murdering S. Jamis-sections 296 and 146 of the Penal Code. Count 4 of the indictment charged the second accused .alone with committing the murder of S. Jamis under section 296-of the Penal Code, and count 5 charged the first, fourth, and seventh accused with abetting the first accused to commit the murder of Jamis-which said offence was committed in consequence of such abetment '' under sections 296 and 102 of the Penal Code
.
The Jury acquitted all the accused under the unlawful assembly counts-1 to 3. They convicted the second accused under count 4, and the first, fourth, and seventh accused of abetment under count 5.

The facts as found by the Jury indicate that on October 2, 1947, S. Deonis and his father, the deceased S. Jamis, went to the boutique of Elias Appuhamy. They had tea at the boutique and the deceased having purchased some dried fish, the two started to go towards Hakmana, Neither of them was armed. On the way a quarrel arose between the sixth accused and Deonis. The other accused who were on the road joined in. They surrounded the father and son and began to assault them. Thereupon, Don Carolis and Vidane Appu intervened and rescued Deonis and took him back to the boutique of Elias Appuhamy. They then returned to extricate the deceased. At that time, the first, fourth, and seventh accused were holding the deceased man and dragging him along. The first accused was holding the deceased by his right arm.,, the fourth accused by his left arm and the seventh accused was grasping the hair of the deceased. Then the second accused, who was some distance away, rushed up from behind, ran up with a katty and struck the deceased a blow which proved fatal. Thereupon the first, fourth, and seventh accused let go of the deceased and dispersed.

The motive for the original quarrel between the sixth accused and Deonis is not very clear. About ten days prior to this incident a land, dispute between the deceased man and his people and a woman called Lucyhamy had been settled by the headman. The deceased and his son belong to the goi-gama community. Lucyhamy is the mother-in-law of the seventh accused. Deonis however says that there had been displeasure between his people and the hunu people over the possession of this land. There is evidence that the seventh accused had been cited; by Lucyhamy as her witness in various criminal cases about this land,, but he gave no evidence. There is also evidence that Lucyhamy had come armed with a katty to the garden of the deceased and had a quarrel with the deceased's daughter.

The medical evidence proves that the injury inflicted by the first accused was a penetrating cut 13 inches long from the point of the left shoulder downwards to the abdomen, cutting through seven ribs, opening into the chest cavity and slicing the heart in two. Having regard to the circumstances under which that injury was inflicted and its nature, we think there can be no doubt as to the intention with which it was inflicted,

The defence of the second accused was an alibi. According to him, at the time...