HOWARD OUT.—The King t>. W. F. Fernando.
[Coubt of Criminal Appeal.]
1946 Present: Howard C.J. (President), Jayetileke and Canekeratne JJ.THE KING v. W. F. FERNANDO.
Appeal No. 26 of 1946.
S. C. 39—M. C. ChUaw, 28,029.
Court of Criminal Appeal—Sentence—Reduction—Verdict of Jury should begiven effect to.
The Court of Criminal Appeal -will reduce the sentence passed on anaccused where such sentence does not give effect to the verdict of theJury and is excessive.
^ PPEAL, with leave obtained, against sentence.
S.Sivamtbramaniam, for the appellant.
T.S. Fernando, C.C., for the Crown.
June 10, 1946. Howard C.J.—
In this case the appellant was charged with the offence of murder andwas found guilty by the Jury of culpable homicide not amounting tomurder. After this verdict had been recorded, the learned Commissionerput certain questions to the Foreman of the Jury. The first question was“ Was it in self-defence or under grave and sudden provocation ? ”.The Foreman answered “ Self-defence ”. The learned Commissionerthen put the question “ Did he exceed his right ? ”. Apparently therewas no answer to that question, but it must be assumed that the Jurybrought in the verdict they did on the ground that the appellant had beenattacked and had used his knife in the exercise of the right of privatedefence but had exceeded that right. I would further observe thatbefore he passed sentence the learned Commissioner addressed theprisoner as follows :—“ You are a very lucky man. My own view isthat you are guilty of murder. Still the Jury are the judges offacts. They have taken a merciful view of your case ”. The learnedCommissioner then proceeded to pass a sentence of 10 years’ rigorous
HOWARD C.J.—James Perera v. Waldron (SP.).
We think that the learned Commissioner has erred in not giving effectto the verdict of the Jury. The verdict of the Jury indicates that they,generally speaking, accepted the appellant’s story. We think that asentence of 10 years’ rigorous imprisonment, having regard to theacceptance of that story, is excessive. In these circumstances we reducethe sentence to one of 5 years’ rigorous imprisonment.
THE KING v. W. F. FERNANDO