SOERTSZ A.CJ.—The King v. A. C. Appuhamy.
[Court of Criminal Appeal]
1946 Present: Soerisz A.C J. (President), Wijeyewardene and
THE KING v. A. C. APPUHAMY.
Appeal 62 of 1946, with application 183.
S. C. 10—M. C. Gampaha, 28 £16.
Misdirection—Alternative verdict possible—Duty of Court to give directionsregarding it to the Jury.
Where the accused was convicted of the offence of attempt tocommit culpable homicide not amounting to murder and the Jury mighthave found on the evidence that he was guilty of voluntarily causinghurt—
Held, that the Judge should have submitted to; the Jury for their con-sideration the alternative of finding the accused guilty of voluntarilycausing hurt and that his omission to do so amounted to misdirection.
^^PPEAL against a conviction in a trial before the Supreme Court.
A. Hayley, K.C. (with him Ian de Zoysa), for the appellant-
M. M. Kumarakulasingham, for the Attorney-General.
December 6, 1946. Soertsz A.C.J.—
At the conclusion of the argument in this case, we set aside the con-viction of the appellant of the offence of attempt to commit culpablehomicide not amounting to murder and we substituted a convictionunder section 315 of the Penal Code and sentenced the appellant to a.term of one year’s rigorous imprisonment.
We now give our reasons for that order. The main submissions madeto us by Counsel for the appellant were—(a) that serious contradictionsand discrepancies between the versions of the transaction that resultedIn the injury to the injured woman were not adequately presented by theJudge to the Jury in his charge to them; (b) that the defence whichwas an alibi was prejudiced by the Judge forming an erroneous view ofan entry in-the diary of the Korale which supported the defence ; (c) thatthere was misdirection in that the Judge did not direct the Jury toconsider, alternatively, a conviction under section 315 of the Penal Code.
In regard to the first point we are satisfied that,* on the whole, theJury were sufficiently directed in that respect. We have carefullyexamined the question arising on the second submission and we wouldsay that, for our part, we do not think that there was an alteration in thediary from 8 p.m. to 3 p.m. The two letters affixed to the numeral indicateclearly that the original numeral could not have been 8, and if it had notbeen 8, it could not have been anything but 3. We find, however, thatalthough the Judge put his view to the Jury as being that there hadbeen an erasure, he told them that it was for them to come to a conclusionon that point and that they were, perhaps, in a better position in that
DIAS J.—Perera v. Jirasinghe.
respect. The view we ourselves are inclined to take is that the entry inthe diary is highly suspicious quite apart from the question of erasureor no erasure and the Jury were, probably, of the same opinion. Thereare strong indications that this entry was fabricated to support theappellant’s alibi.
In regard to the third point, we agree that, in the peculiar circumstancesof this case, the occasion arose for the learned Judge to submit to theJury for their consideration the alternative of finding the appellantguilty of an offence under section 315 and that his omission to do soamounted to misdirection. It is on this ground that we made the orderwe did.
Conviction and sentence altered.
THE KING v. A. C. APPUHAMY