The King v. Podimahatmaya.
[Court of Criminal Appeal.]
Present: Soertsz S.P.J., de Kretser and Jayetilleke JJ.
THE KING v. PODIMAHATMAYA
73—M. C. ltatnapura, 38,594.
Accident—Charge of murder—Evidence of exception of accident—Burden of'proof—Statement of presiding Judge that accident reduces the offence—Misdirection—Penal Code, s. IS—Evidence Ordinance, s. 105.
The exception of “accident” on . behalf of an accused person in termsof section 73 of the Penal Code does not arise for consideration unlessthe accused adduces some material in support of it either by way ofevidence led by him or by way of matters elicited from the witnessesfor the Crown or by way of some circumstance clearly pointing to-accident or misfortune.
1 A. I. R. (1916) P. C. 22.1 A. I. R. (1934) P. C. 81.
(1936) 1 A. E. R. 356.
80ERTSZ J.—The King v. Podinahatmaya.
PPEAL from a conviction by a Judge and Jury before theWestern Circuit.
F. W. Obeyaekera for appellant.
E. H. T. Gunasekara, C.C., for the Crown in the appeal.
Cur. adv. vult.
.December 18, 1944. Soejitsz J.—
Of the many grounds of appeal set forth in the notice filed by theappellant, only three appeared to us, on the facts of this case, to call for.discussion, and on our intimating our view to Mr. Obeysekera, he confinedhis argument to them. They are grounds (1), (5), and (13).
(1) Error lay in expressly directing the jury that the burden ofproof of accident, by preponderance of evidence was upon the defencein the case.
(5) The defence of accident or misadventure as emerged from bothlay and expert evidence was not specifically put to the jury butpassed over.
(13) The jury were misdirected on the law relating to excejption,.proof, and accident.
The first point submitted for our consideration, was that the Com-missioner's charge when he said to them—
“ There are certain exceptions in the Penal Code which would reducethe offence of murder to culpable homicide not amounting to murder.The onus of proving the exceptions, both general and special exceptions,lies on the accused …. When death is caused by accident,it comes within an exception, and the burden of proving the accident ison the accused,”
-was on the facts of this case incomplete, and that it must have left thejury with the impression that the exception of “ accident ”, if satis-factorily established, would only reduce the offence, not that it would-excuse it, whereas, of course, in law ” accident ” if found by thejury would completely exonerate the accused.
Counsel pointed to the fact that the Commissioner, in the course of his•charge, dealt with the question of accident at some length, and hesubmitted that the verdict of the juijy might well mean that they foundthat the death of the deceased was due to an accident, and yet returnedhim guilty of culpable homicide not amounting to murder in view of the■direction they had been given. There, undoubtedly, is great force in thisArgument in abstracto, but in relation to the facts of this case, it is ofhardly any consequence for, in our view, on a careful consideration of allthe evidence, there was no case of " accident ” to go to the jury at all.Our law in regard to accident as a defence to a criminal charge is containedin section 73 of the Penal Code. It enacts that—
“ Nothing is an offence which is done by accident or misfortune,•and without any criminal intention or knowledge, in the doing of alawful act, in a lawful manner, by lawful means, and with proper careand caution ".
SOEKTSZ J.—The King v. Podimahatmaya.33
Then, there is section 105 of the Evidence Ordinance which providesthat—
•' When a person is accused of any offence, the burden of provingthe existence of circumstances bringing the case within any of thegeneral exceptions in the Penal Code …. is upon him and theCourt shall presume the absence of such circumstances ”.
These provisions make it manifest that for the exception of accident toarise for consideration the person accused must, at least, adduce somematerial in support of it either by way of evidence led by him, or by wayof matters elicited from the witnesses for the Crown, or by way of somecircumstance clearly pointing to accident or misfortune. We find nothingof the kind here—not the last scintilla of evidence direct or circumstantialto support or even suggest it. And there, certainly, is no burden on theCrown to eliminate all fanciful theories of ingenious minds, as a part ofits case. All the evidence there is, tends to negative accident.
When the appellant was charged in the Court below, his answer simplywas “ 1 am not guilty ". At the trial he did not elect to give evidenceor to make a statement. The medical evidence to which there was somereference in the course of the argument does not make it clear or evenhighly probable that the injuries were sustained by misadventure. Inregard to the argument based on the appellant’s immediate reaction tothe realization that death had occurred, the fact that he is said to havebeen in tears when he was found seated near the dead man, does notnecessarily mean that he was deploring an accident. That lachrymositymight well have flowed from other causes.
On the other hand, the evidence led by the Crown was that theappellant- and the deceased had quarrelled and exchanged blows, earlierthat day; that in the early afternoon, when the two. of them were ontheir way home—they were brothers and lived in the same house—theprisoner fhoving in a manner that indicated an angry mood, overtookthe deceased, entered the house, came back armed with a gun, confrontedthe.deceased with it, pushed the end of the barrel against his chest andsaid “ I will strike you the two men, quarrelling in that way, went intothe interior of the house and were lost to view; shortly afterwards areport of a gun was heard from within the house; witnesses who ran upto see what had happened, found the deceased lying dead and the prisonerseated near him, with the gun by his side; he appeared to be weeping.
On an interpretation of all this evidence most favourable to the prisoner,it is impossible to say that the death of the deceased occurred in thecourse of the appellant doing a lawful act, in a lawful manner, by lawfulmeans, &c., and that is made by section 73 a condition sine qua non.The transaction that resulted in the death of the deceased in this casebears not the slightest resemblance to the hatchet transaction in theillustration appended to section 73.
If then, on the facts of this case, the defence of accident did not arise,and that is our view, the misdirection complained of, that is to say,the failure of the Commissioner to tell the jury that the general exceptionof accident served to exculpate, not merely to mitigate the offence, couldhave no material consequence and could not prejudice the appellant.
27. N. A 98*15 (8/50)
SOERTSZ J.—The King v. Podimahatmaya.
And so in regard to the objection taken to the Commissioner s directionon the nature and extent of the burden of proof, that too was immaterial,although we should wish to guard ourselves against being understood tosay that we agree that, in that respect, there was misdirection. We havenot thought it- necessary to consider it.
The only other point that arises on the argument is whether the Crownhas discharged the burden that rested on it to establish that the appellantwas the assailant, that he did the act that caused the death of the deceased,that it entirely was a voluntary act or, at least, that the voluntary partof his acts was likely to have the effect it produced, and that it wasaccompanied by the requisite intention or knowledge. In regard to thesematters it is true that there was no direct evidence to show that theappellant actually pulled the trigger that fired the gun, aiming the gunat the deceased, but on the indirect evidence to which reference hasalready been made and in the absence of any explanation, that was aninference the jury might reasonably draw. Similarly, in regard to the ■intention of the assailant, ordinarily, the only inference reasonablypossible was that he intended to kill or, at least, to inflict injury sufficient,in the ordinary course of nature, to kill. But, there was, in this instanceevidence to show that the appellant was in a state of intoxication at thetime, and the jury were directed that, on the law as it stands todayin view of the ruling given by a Divisional Bench of the Supreme Courtin the ease of The King v. Rangasamy', if they found that the degree ofthe appellant’s intoxication was such as to incapacitate him from formingthe intention necessary for the constitution of the offence of murder,they should return a verdict of culpable homicide not amounting tomurder.
The conclusion to which we are thus led is that on all the evidenceand all the matters before the jury, two verdicts were reasonably opento them. If they found that the appellant was capable of forming therequisite intention and did form it, the offence would be murder; but ifhe was not so capable, or did not, in fact, entertain that intention, theoffence would be culpable homicide not amounting to murder. Theverdict they returned is a reasonable verdict, that is to say there isevidence to support it.
We dismiss the appeal. The application fails.
Appeal dismissed. 1
1 25 A'. L. R. 438.
THE KING v. PODIMAHATMAYA