TTRARWF, J.The King v. Paulu Petris.
[Court of Criminal Appeal.]
1944Present: Moseley S.P.J., Heame and Jayetlleke J.THE KING n. PATJLTJ PEIRIS.
45—M. C. Panadure, 26,400.
Sentence—Cuipable homicide not amounting to murder—Right of privatedefence—Grave and sudden provocation or sudden fight—Propriety ofsentence—Penal Code, s. 294, Exceptions 1 and 4.
Where a jury finds an accused guilty of culpable homicide on theground that he has exceeded the right of private defence, a sentence often years may be regarded as having erred on the side of severity.
If, however, he is found guilty of culpable homicide because he hadlost his self-control by reason of grave and sudden provocation or becausehe inflicted the fatal injury in a sudden fight, the sentence may be regardedas a proper one.
PPEAL from a conviction by a Judge and Jury before the WesternCircuit, 194.3.
S. P. C. Fernando and S. S. Saravanamuttu for appellant.
E. H. T. Gunasekera, C.C. for the Crown.
Cut. adv. vuit.
January 31, 1944. Hearne J.—
This is an appeal with the leave of this Court from the conviction of theappellant by the unanimous verdict of a Jury of the offence of culpablehomicide not amounting to murder. He was sentenced to ten years’rigorous imprisonment.
t the trial the appellant admitted that he had stabbed the deceased;with a knife and in answer to the Judge, the foreman stated that in theopinion of the jury he had done so with a murderous intention. Of thisthere can be no doubt. The knife penetrated the heart of the deceasedwho, in the words of the medical witness, “ could have survived a veryshort time after the receipt of the injury which was necessarily fatal ”.
Giving evidence the appellant said “ On the day in question I returnedhome after work and I was at home. When I was in my house thedeceased came close to my house and abused somebody in indecent-words. I then went up to him and said, ‘ Simon, do. not indulge inobscene language. You go home ’. He .then struck me with' a club.That blow alighted on my left eyebrow and I fell down. After I felldown he began to strike me several times. I then raised an unconscious-cry of murder. For my cries my son Lionel came up and raised me.Then the deceased struck my son also and he cried out ‘ Father, I amfinished ’. At this time I had a knife in my hands and for fear that we-would be killed I stabbed the deceased. From that spot we were takento the Police Station in a cart
Counsel for the appellant argued that the only reasonable verdict thejury could have returned upon that evidence and the evidence of theInspector that the appellant and his son “ with bleeding injuries ” wentto the Police Station after the incident was over was one of acquittal.
The jury, it was claimed, should have found that the appellant actedwithin the limits of the right of private defence which the law conferredupon him.
This argument is of course based upon the supposition that .the juryAccepted, or the contention that they should have accepted, the accountgiven by the appellant of what Ts alleged to have transpired. But thejury, with good reason, may have taken the view that the evidenceof the appellant did not represent the entire truth even as a bareprobability.
The stabbing took place at 9.30 p.m. The deceased’s son made acomplaint at the Police Station at 9.50 p.m. The appellant arrivedat the Police Station at about 11 p.m. and the statement he made was asfollows. “ I heard Simon (the deceased) abusing my brother Peter.1 do not know why. Then I asked him not to quarrel. Then Simonassaulted me with a club. That blow alighted on my shoulder. Thenhe stabbed me with a long knife. Again he stabbed me on my shoulder.1 do not know what sort of a knife it was. I then fell unconscious. 1do not know who saw this
Having regard to the discrepancies between the appellant’s evidenceand the statement he made to the Police, the fact that/ the appellant’sson was not called by the defence, the opportunity the appellant had ofinflicting injuries on his son, and the finding near the body of the deceasedof a knife which, although in his evidence the appellant says was notused, gave or was calculated to give verisimilitude to the statementhe made to the police, the jury may well have doubted the truth of theappellant’s evidence. If they concluded, as apparently they did, that theappellant had not established the existence of circumstances whichentitled him to an acquittal, it is impossible for us to say that the viewthey took was unreasonable.
In regard to the sentence passed by the learned Judge we think that ifthe jury found the appellant guilty of culpable homicide on the ground.that he had exceeded the right of private defence, the sentence passedmay be regarded as having erred on .the side of severity. If, however,he was found guilty of culpable homicide because he had lost his self-control by reason of grave and sudden provocation or because he inflictedthe fatal injury in a sudden fight, we do not think that the sentence can beregarded as otherwise than a proper one. At the least it can be said thatit is not one with which we could, with propriety, interfere.
It is, we think, a fair comment to make that the Judge indicated .to thejury, without pressing his own view, that the appellant should beacquitted if it was found that the right of private defence arose at all.He also dealt with the mitigating circumstances which can be held to arisein law from grave and sudden provocation or a sudden fight. When theforeman stated that “ the prisoner had the intention but there weremitigating circumstances ”, it is clear to us that the verdict of the Jury■was based upon exception (1) or (4) of section 294 of the Penal Code andnot upon a finding that he had exceeded the right of private defence.
The appeal from conviction and sentence is dismissed.
THE KING v. PAULU PEIRIS