SOERTSZ A.CJ.—The King v. Af. G. P. Fernando.
[Court of Criminal. Appeal.]
1946 Present : Soertsz A.C-.J. (President), Wijeyewardene and
THE KING v. M. G. P. FERNANDO.
Appeal 46 of 1946, with Application 170.
S- C. 88—M. C. Chilaw, 27,953.
Non-direction—Alteration of conviction by Court of Criminal Appeal.
In a prosecution for attempt to commit murder the verdict which thejury returned was one of voluntarily causing grievous hurt. Havingreturned that verdict, they went on to say that in their opinion therewas “ latent provocation ”. In the summing-up the existence of theoffence of causing grievous hurt on grave and sudden provocation wasnot brought to the attention of the jury.
Held, that, in the circumstances, the conviction should be altered andthat a conviction should be entered under section 326 of the Penal Code.
PPEAL, with application for leave to appeal, against a convictionin a trial before the Supreme Court.
A. H. C. de Silva, for the appellant.
H. A. Wijemanne, C.C., for the Attorney-General.
November 18, 1946. Soertsz A.C.J.—
This is a case in which the appellant appeals against a conviction ofcausing grievous hurt entered against him. The charge preferred againsthim was that he attempted to commit the murder of the injured man,his brother. The learned trial Judge in the course of his charge to thejury dealt adequately with the charge of attempt to commit murder andwith the charge attempt to commit culpable homicide not amountingto murder. He indicated to the jury sufficiently that for the constitutionof the offence of attempt to commit murder a murderous intention isessential and he went on to say that if that murderous intention was notsufficiently established in their view it was open to them to considerwhether the case was more properly one of attempt to commit culpablehomicide not amounting to murder on the ground that the assailant knewor ought to have known that what he was doing was likely to cause death.He also told them that even if they found a murderous intention it wasnevertheless open to them to return a verdict of culpable homicide notamounting to murder if they found grave and sudden provocation.The verdict of the jury indicates clearly, we think, that in their viewthere was neither a murderous intention nor the requisite knowledge forthe constitution of the offence of attempt to commit culpable homicidenot amounting to murder, because the verdict they returned was one ofvoluntarily causing grievous hurt. Having returned that verdict, theywent on to say that in their opinion there was “ latent provocation ”.It is rather difficult for us to speculate as to what exactlythe foreman of the jury meant when he used the words “latentprovocation ”. Provocation of whatever degree or quality it might
Kumarappa Chettiar v. Gunawathie.
have been still was provacation and seems to indicate to us that whatthe jury meant to convey somewhat artlessly was that they thought thatthe injury was caused on provocation. That might have been moreclearly expressed by the jury, we think, if the learned trial Judge haddirected them that in the circumstances of this case it would be relevantto consider whether the attack upon the injured man was an attackdelivered by the accused on grave and sudden provocation in which casehe would have directed them that it would be possible for them to returna verdict of causing grievous hurt on grave and sudden provocation. Inother words, the existence of such an offence was not brought to theattention of the jury.
In all the circumstances of this case we think that the convictionshould be altered and that a conviction should be entered under section326 of the Penal Code and on the facts of this case we think it will besufficient in respect of that offence to sentence the appellant to a term of2 years’ rigorous imprisonment.
Conviction and sentence altered.
THE KING v. M. G. T. FERNANDO