[ Tx the Court of Criminal Appeal]
1956 Present: Basnayake, C.J. (President), Gunasekara, J., and
D. WEERASINGHE, Appellant, ancl THE QUEEN,Respondent
Appeal No. 51 of 1956S. G. 16—M. C. Badulla, 3,9S3
<Court of Criminal Appeal—Sentence—Grounds for reduction.
Tho Court of Criminal Appeal will reduce a scntenco when it is excessive, ifthe sentence does not give effect to tho jury’s verdict or if the accused has notbeen given the benefit of any doubt as to tho view of the facts upon which thojury liavo based their verdict.
APPE AT, against a sentence.
Colvin Ii. de Silva, with S. B. Lekamge and M. L. de Silva, for thoaccused-appellant.
A. G. AUes, Crown Counsel, for the Attorney-General.
Gar. adv. vult.
August 10, 1956. Gunasekara, J.—
This is an appeal against a sentence.
The appellant was tried at an assize held at Bandarawela on an indict-ment charging him with the attempted murder, at Buttala, of oneMahasoof whom he had stabbed .with a knife. The jury, by a unanimousverdict, found him guilty of attempted culpable homicide not amounting
to murder, punishable under sectinn 301 of the Penal Code, and ho wassentenced to rigorous imprisonment ior 7 years, which is the maximum'term of imprisonment for the offence.
The appellant had inflicted six wounds on Mahasoof which weredescribed by a medical witness as follows :
“ (1) an incised wound £ * deep and scalp deep over the right sideof the vertex about 4 " above the right car.
an incised wound £ " in length £ * wide 1 " deep over the bark of
right side of the chest about 2 " below the neck and 3£ " lateralto the mid-line of the chest.
an incised wound 1 in length, ” wide, 1 " in depth over the back
of right shoulder.
an incised wound 3" in length,wide over the bank of right
side of chest just below the arm pit placed more or loss verticallypenetrating into the chest ravitv.
an incised wound 1 ^ * long, " wide, 1£ ” deep over the upper
part of right buttock about 4 " from the mid-line of the body.
an incised wound I " long, £ " wide and skin deep over the back of
left side of chest " from mid-line at about the level of the4th rib
The doctor who gave this evidence also stated that the wound whichpenetrated the chest cavity was one ' ‘ at was sufficient in the ordinary-course of nature to cause death. Th appellant’s case was that thesewounds had been inflicted l>3' him in e exercise of a right of privatedefence. According to him, he had -on set upon by Mahasoof andseveral other men and in the course of a struggle with his assailants lie hadStruck at them with a knife that he held in his left hand.
The trial judge addressed the appellant in the following terms whenhe passed sentence :
“ I have taken into account the number of the injuries you inflicted,it- does not matter witli which hand, on Mahasoof. The story of yourleft hand is merely a red herring across the trail. A good number ofinjuries have been inflicted and one of the injuries at any rate was agrievous one and without meilieal attention the man would have (lied.
1 am of the opinion that you should be prevented as long as possiblefrom returning to liut-tala where neither the air nor the environment-,if I may say so, is so healthful as that of this place. The sentence isseven (7) years R. I. ”
It is contended in support of the appeal that the jury’s verdict- impliesacceptance of the appellant's version coupled with a finding that ho hadexceeded the power given to him by law, and that in this view of hisconduct the sentence is grossly excessive.•
We are unable to agree with the contention that the verdict impliesthat the jury were satisfied that the appellant acted in the exercise of aright of privat e defence. In accordance with the directions that had beengh en to them in the learned judge’s summing up a juror could have basedthe verdict on any one of four grounds : that it was not proved that theacts which caused the injuries were done by the appellant with the
intention of causing death (or with an equivalent intention) hut it wasproved that the.y were done with the knowledge that he was likely by thoseacts tc cause death ; or that they were done with such an intention but incircumstances that brought the case within one of the exceptions re-hating respectively to exceeding the right of private defence, provocationand sudden fight. While the verdict may well have been based on anyone of those grounds by all the jurors, it is not impossible that it wasbased by son-c jurors on one ground and by others on others. Nor is itimpossible that there was such a divison of opinion that there was nomajority in favour of any one of the four grounds.
The remarks made by the presiding judge suggest that his own viewwas that there was no truth in the version that the injuries were inflictedin circumstances that brought the case within any of the exceptions.It appears, therefore, that he has assessed the punishment that heimposed on the appellant upon the footing that the offence was onecommitted without any intention to cause death or an equivalent inten-tion. In such a case the maximum term of imprisonment that he couldhave imposed for the completed offence, if the appellant had actuallycaused the death of the injured man, was only ten years. Viewed inthe light of this consideration in the circumstances of the case the sentenceof seven years’ rigorous imprisonment for the attempt appears to thecourt to be palpably excessive.
Our attention has been drawn by the learned counsel for the appellantto the case of R. v. Fernando *, where it was held that the sentence mustgive effect to the jury’s verdict, and by the learned crown counsel to thecase of R. v. Ponnaeamy 2, where it was held that the accused should bogiven the benefit of any doubt as to the view of the facts upon which thejury have based their verdict. In the latter ease this court reduced theterm of a sentence of imprisonment for attempted culpable homicidenot amounting to murder from seven years to five years on the groundthat although the trial judge was of the view that the accused had theintention to cause death it was possible that the jury held that he hadno suc h intention but merely had the knowledge that what lie was doingwas likely to result in death. In the present case it is contended for theappellant that the view most favourable to him is that his offence isreduced from attempted murder to the lesser offence by reason of circum-stances that bring the case within the exception relating to exceeding theright of private defence. In a case falling within that exception themaximum term of imprisonment for the c-omptuted offence of culpablehomicide not amounting to murder would be twenty years, aa in a casoof culpable homi.-ido falling within any of the other special exceptionsto the definition of murder ; but it is difficult, if n.i.t impossible, to con-ceive circumstances in which an offence of culpable homicide falling withinthis exception should be punished with the maximum term of imprison-ment. Viewed in the light of the principle laid down in R. v. Ponmisamytoo, the sentence passed in the present calls for reduction.
We reduce the sentence to one of rigorous imprisonment for four years-
1 (1916) 47 N. L. It. 261.
(1942) 43 N. L It. 353.
D.D. WEERASINGHE, Appellant, and THE QUEEN, Respondent
[ Tx the Court of Criminal Appeal]