HOWARD CJ.—The King v. Premaratne.
[Court of Criminal Appeal.]
1947Present: Howard C.J. (President), Keuneman and
THE KING v. PREMARATNE.Application 12 of 1947
S. C. 95—M. C. Panadure, 40,687.
Charge of murder—Evidence suggestive of offence of culpable homicide notamounting to murder—Duty of Judge to give directions to jury on thelesser offence.
Where in a trial for murder the evidence is such as might satisfy thejury that the elements were present which would reduce the crime toculpable homicide not amounting to murder it is the duty of the trialJudge to include in his summing-up to the jury observations on thesubject of culpable homicide not amounting to murder.
PPLICATION for leave to appeal against a conviction in a trialbefore the Supreme Court.
H. V. Perera, K.C. (with him K. A. P. Rajakaruna and Siri Perera),for the accused, applicant.
T. S. Fernando, C.C. (with him E. L. W. de Zoysa, C.C.), for theAttorney-General.
Cur. adv. vult.
March 3, 1947. Howard C.J.—
The applicant was found guilty of the offence of murder by a majorityverdict of five to two. Mr. H. V. Perera on his behalf, whilst not com-plaining that the Jury have rejected the plea put up by the applicantat his trial that he was exercising the right of private defence, maintainsthat the learned Judge has not properly put before the Jury the defencethat the applicant committed the act when he had lost the power ofself-control by reason of grave and sudden provocation. The learnedJudge before dealing with the facts in this particular case dealt with thepossible defences available to the applicant. On page 9 of the recordhe says that “ it may be urged that it is possible to say in this case thatthere was grave and sudden provocation On page 10 he again refersto this defence and again on page 13. The learned Judge then goeson to deal with the facts in the case, and having done so asks the Juryto consider those facts so far as the defence based on the exercise of theright of private defence is concerned. The Jury, however, is not askedto consider the facts and decide whether a defence based on the factthat the applicant had lost his power of self-control by reason of graveand sudden provocation. In Mancini v. Director of Public Prosecutions(28 Criminal Appeal Reports p. 73) Viscount Simon, L.C. states asfollows : —
“ To avoid all possible misunderstanding, I would add that this isfar from saying that in every trial for murder, where the accusedpleads Not Guilty, the Judge must include in his summing-up to thejury observations on the subject of manslaughter. The possibility
'200The King v. Suriya Aratchige Fernando.
of a verdict of manslaughter instead of murder only arises when theevidence given before the jury is such as might satisfy them as thejudges of fact that the elements were present which would reducethe crime to manslaughter, or at any rate might induce a reasonabledoubt whether this was, or was not, the case
The Crown in this case put before the jury the evidence of two eye-witnesses, Eradias and Rodrigo. Eradias, a boutique-keeper, statedthat it was a moonlight night and the applicant was seated in hisboutique when the deceased came in and addressed the applicant saying“ Are you Banda ? Eradias told the deceased not to have any dis-cussion in the boutique. The deceased left the boutique and the appli-cant followed and said something which could not be heard. The deceasedthen came close to the applicant saying “ Tho—what did you say ? ”.The deceased raised his hand but before he could hit the applicant, thelatter stabbed him with a knife several times. The evidence of Eradiaswas corroborated by that of Rodrigo, who also stated that the deceasedwhen he came into the boutique approached the applicant who wasseated, in a threatening manner. The majority of us consider that theevidence of these two witnesses is such as might satisfy the jury as thejudges of fact that the elements were present which would reduce thecrime to culpable homicide not amounting to murder. In these circum-stances we set aside the conviction for murder and substitute a convictionfor culpable homicide not amounting to murder. In respect of thisoffence we pass a sentence of 15 years’ rigorous imprisonment.
THE KING v. PREMARATNE