Dingiri Banda v. The Queen
[Court of Criminal. Appeal]
1952 Present : Nagalingam A.C.J. (President), Gunasekara J.and Pulle J.
DINGIRI BANDA, Appellant, and THE QUEEN, RespondentApplication 24 of 1952S. C. 18—M. C. Kumnegala, 2,019
Criminal procedure—Charge of murder—Plea of lesser offence put to Jury in firstinstance—Rejection of plea—Regularity of procedure.
During a trial for murder, before the close of the case for the prosecution,the Judge left it to the Jury to accept or not, on their own responsibility, a pleaof culpable homicide not amounting to murder that was tendered by theaccused. The Jury after consideration decided that “ the case must proceed ”,and the accused was ultimately convicted of murder.
Held, that the procedure that was adopted caused no prejudice to the defence
GTJNASE KARA J.—Dingiri Banda v. The Qzieem
A-PPI/ICATION for leave to appeal against a conviction in a trialbefore the Supreme Court.
Austin Jayasuriya, for the accused appellant.
jR. A. Kannangara, Crown Counsel, for the Crown.
Cur. adv. vvZl.
April 24, 1952. Gthnasekaba J.—
The appellant, a young man of twenty, was convicted of the murderof one Punchi Banda, his uncle, by stabbing him on the afternoon of the17th July last. The date of the conviction was the 29th February, and.the only ground upon which the appeal was pressed is a supplementaryground of appeal that was submitted by Mr. Jayasuriya on the 7th April.It has been formulated by him as follows :—
“ After the three eye-witnesses for the prosecution had given evidencebut before the case of the Crown had been closed the Counsel for theaccused submitted a plea of culpable homicide not amounting tomurder be accepted and suggested that matter be put to the jury atthat stage. Neither the presiding judge nor the Crown Counsel wasprepared to accept such a plea but His Lordship put the matter to thejury. The jury however after deliberation decided to go on with thecase. It is submitted such procedure was irregular and gravelyprejudiced the defence of the accused ”.
The deceased man died of a penetrating stab wound on the frontof the chest that injured the left lung and he had also received,two incised wounds on the left cheek and left arm respectively. Theappellant, who gave evidence at the trial, admitted that these woundswere inflicted by him. The scene of the stabbing was a place of amuse-ment run by the deceased, which consisted of a boutique equipped witha couple of billiard or bagatelle tables. It is common ground that whenthe appellant arrived there a game was being played at one of the tables,which was on the verandah of the boutique, and that the deceased waspresent among a group of spectators. According to the appellant, someof them were drinking arrack that was being supplied by the deceased andhe asked one of them jokingly whether he too could get a drink, a-nflthereupon the deceased abused him and struck him with a bottle and hestabbed the deceased in self-defence. According to the case for theprosecution, the appellant entered the verandah and stood for a shortwhile among those who were watching the game and suddenly stabbed thedeceased a couple of times and ran away. This was the version givenby three eye-witnesses whose presence on the verandah at the timeof the stabbing is admitted by the appellant. Under cross-examinationby Hr. Sri Nissanka Q.C. who defended the appellant at the trial, itwas admitted by two of these witnesses that the deceased had a criminalrecord, and one of them also agreed that the appellant on the other hand.
GUNASEKARA J.—Dingiri Banda v. The Queen
was a well-behaved man. All of them, however, denied a furthersuggestion that before the appellant stabbed the deceased the latterscolded him for-betting on the game and had struck him on the headwith a bottle.
After the medical witness who held the post-mortem and the threeeye-witnesses had given evidence and before the close of the case for theprosecution Mr. Sri Nissanka made the submission referred to in thesupplementary ground of appeal, stating that the appellant was willingto plead guilty to culpable homicide not amounting to murder on thefooting that he had acted under grave and sudden provocation. TheCrown Counsel indicated that he did not agree to the proposed plea beingaccepted, but the learned Judge acceded to Mr. Sri Nissanka’s requestand Invited the Jury to consider whether they were prepared to acceptthe plea or whether they wished to hear the rest of the case. He toldthem that the Crown Counsel was not prepared to accept the plea and hehimself was not prepared to commend it to them, but that it was opento them to accept it if they thought it was probable that “ this was nota premeditated murder but something that happened while the accusedhad lost his power of self-control by reason of some grave and suddenprovocation that transpired at the bagatelle table ”. He also told themthat the case was entirely in their hands at that stage and the responsi-bility for the verdict would be theirs, while it would have been his if hehad accepted the plea at an earlier stage. He went on to say :
“ At this stage if you think it would be a sheer waste of time to waittill the accused comes into the witness box and says that the stabbingoccurred in the way suggested in the cross-examination of thewitnesses, then you can say so now. And remember where an accusedperson wants to bring himself within an exception to criminalliability it is sufficient if he proves the facts on which he relies to beprobably true. If you think it is utterly improbable that this manwho bore a good character up to the time of this incident would haveattacked the deceased in this way for no reason, if you think it isprobable that there was a grave and sudden provocation offered to theaccused by the deceased who did not bear an unblemished character,you may on your own responsibility accept the plea ”.
The Jury after consideration declared that they were “ unanimously ofthe opinion that the case should proceed ”. The Crown Counsel thenadduced the evidence of a witness who identified the deceased’s body atthe post-mortem and of the officer who conducted the police investigation,and closed the case for the prosecution. The police officer deposed,among other things, to a statement alleged to have been made to himby the deceased shortly after the stabbing, according to whicj? theappellant suddenly went up to him when he was watching the game andstabbed him without any provocation. The case for the defence consistedof the evidence of the appellant.
It was contended in appeal that the Jury’s refusal to accept the pleathat was tendered on the appellant’s behalf involved a prematureacceptance of the prosecution evidence and a disbelief of the appellant’s
Murugesu v. The Northern Divisional Agricultural Producers^
Co-operative Union Ltd.
version before he gave evidence. In our opinion there is no substancein this contention. The plea could have been accepted only upon thebasis that the appellant did an act which would amount to murder unlessit was done in circumstances of extenuation, the burden of provingwhich lay upon him. Until the appellant gave his own account of theincident there was no evidence at all of the existence of any such-circumstances. Consequently the Jury’s view that “ the case mustproceed ” implied only that they were not prepared to assume withoutevidence that the homicide was committed whilst the appellant wasdeprived of the power of self-control by grave and sudden provocation.The refusal to make that assumption was a perfectly proper decisionand could not cause any prejudice to the defence. On the other hand theprocedure adopted by the learned Judge gave the appellant an■opportunity, to which he was not entitled, of obtaining the benefit of anexception without any evidence of the existence of circumstances bringingthe case within the exception.
The appeal is dismissed.
DINGIRI BANDA , Appellant ,and THE QUEEN , Respondent