KEUNEMAN S.P.J.—ATackeen v. Pulle.
[CotntT of Criminal. Appeal.]
1946 Present: Keuneman S.P.J. (President), Wijeyewardene andDias JJ.THE KING v. MUTTU.
Appeal No. 45 and Application No. 166.
S. C. 2—M. C. Mallalcam, 28,356.
Charge of murder—Plea of self-defence—Misdirection.
On a charge of murder, when there is sufficient evidence of the exerciseof the right of private defence, it is a grave misdirection if the summing-up misleads the jury into thinking that the accused had exceeded theright of private defence.
KEUNEMAN S.P. J.—The King v. Multu.
PPEAL, with application for leave to appeal^ against a convictionin a trial before the Supreme Court.
A. Hayley, K.C. (with him H. Wanigatunga and T. A. de S. Wije-sundera), for the accused, appellant.
T. S. Fernando, C.C., for the Crown.
Cur. adv. vuU.
November 11, 1946. Kutoemam S.P.J.—
The accused appeals against a conviction for culpable homicide notamounting to murder. The Jury on being questioned by the trial Judgesaid they held that the accused had exceeded the right of private defence.
The deceased had received two gunshot injuries.. The first consistedof nine pellet marks spread over the left side of the chest. The pelletshad barely penetrated the skin, and the expert evidence for the prose-cution established that the shot was fired at extreme range, viz., over70 feet. The second injury consisted of a hole 3 inches by 1£ inches,where the wadding and the shots had gone in as a solid column just abovethe right nipple, two of the slugs had made exit wounds in the back andothers were embedded in the back of the chest. The expert evidenceestablished that the shot was fired from not less than 8 feet or more than15 feet.
The accused admitted that he had caused these injuries, but pleadedthat he had acted in the exercise of the right of private defence. Hestated that he had set out with his gun to go to Point Pedro. He sawthe deceased man coming with a sword and calling on him to stop. Theaccused ran or hurried away in order to escape, and at the same timeloaded his gun. He warned the deceased and when the deceased wassome distance away—about 46 feet—fired the first shot at the deceased.That shot did not stop the deceased who continued to come on. Theaccused still retreated, at the same time warning the deceased not tocome near him. The accused was unable to retire further because hereached a deep ditch or pit. So when the deceased came on with thesword the accused fired the fatal shot, at a distance of 8 to 10 feet. Thiswas done because the accused feared he would be killed.
I may also add that the prosecution called no actual eye-witness of theshooting, but there was evidence that shortly before the event the deceasedwas not carrying a sword. It is most likely that the Jury accepted thestory of the accused. Mr. Hayley contended that there were certainmisdirections by the trial Judge which probably misled the Jury intothinking that the accused had exceeded the right of private defence. Inthe first place he contended that the trial Judge did not deal with theexpert evidence called by the prosecution, and said that that evidencecorroborated the evidence of the accused. He urged that it was veryimportant that the shots had been fired one at extreme range and theother at very close quarters. Also the failure to comment on the expertevidence resulted in the fact that the Jury were not informed of therange at which each of the shots was fired. In addition to this the trialJudge inadvertently made an error in stating the distance at which thesecond shot was fired. In one part of the charge the Judge speaks of the
KEUNEMAN S.P.J.—-The King v. MuUu.
accused “ Btandiug far off with the sword in hand ”—which is hardly anaccurate description of what occurred. Later he said—“ Consider thedistance the deceased was at the time—at least 8 to 16 yards ”. Stilllater he said “ At least the deceased was about 10 yards away and hefired the fatal shot. The deceased could hardly strike the accused witha sword at that distance …. The accused might well havetaken other steps ; he could have run off, or fired at his legs. Why fireat a vital part of the body like the chest or the upper part of the body ? ”It is true that at one stage the trial Judge made the distance “ 8 or 9feet away ” but this he did in presenting the accused’s version of whathappened, and he did not add that the expert evidence supported that.
We think there is substance in the contention that the Jury may havebeen confused by the charge, and may have been under the impressionthat the shot was fired at a distance three times as great as the factsdemonstrated. Also the trial Judge did not point out that the furtherretreat of the accused was prevented by the deep ditch or pit, accordingto the accused’s story. The omission to mention this fact may haveaffected the minds of the Jury.
In our opinion these are misdirections relating to a very vital matter.The distance at which the fatal shot was fired was of the utmost signi-ficance and had an immediate bearing on the question whether theaccused exceeded the right of private defence or not. Had the correctfacts been put to the Jury, we think they may well have considered thatthe accused had justification for firing as he did, with fatal results. It isdifficult for us now to reconcile the verdict of the Jury with the facts asestablished in the case.
Our attention has also been drawn to another matter. It was inevidence that a woman Maniekam had also met her death by gun shotinjuries on this occasion. The accused had been tried for the murderof Maniekam and had been acquitted. The trial Judge referred to thefact that “ there were two persons murdered on this day ” and asked theJury to eradicate from their mind that the accused had killed the otherperson Maniekam. “ You should not take into consideration that hemurdered another person on that day, and you must not therefore thinkhe is a very bad man ”. The use of the word “ murder ” in this connec-tion was not justified, and the trial Judge failed to point out that theaccused was found not guilty of the murder of Maniekam. Unfortunatelythe trial Judge returned to this matter again in the latter part of hischarge. “ Why was the woman about ? Was she also trying toinjure the accused ? Why was she killed ? Was it because she wouldbe the only witness if she remained alive ? ”
We are of opinion that these remarks of the trial Judge probablycaused considerable prejudice in the minds of the Jury against theaccused, and were not justified.
For these reasons we are of opinion that the conviction in this casecannot stand. We therefore set aside the conviction and sentence andacquit the accused.
Conviction set aside.
THE KING v. MUTTU