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COURT OF APPEAL.
H A. G. DE SILVA. J.. ABEYWARDENE, J. & SIVA SELLIAH, J.
APPLICATION No. 122/82 – HIGH COURT COLOMBO CASE No. 649/79.
JUNE 5. 6. 7, 8 AND JULY 2 AND 3. 1984.
Murder – Sections 293 and 294 of the Penal Code – Requirements to provea charge of murder under the fourth limb of Section 294 – Propriety of questioning ofJury by Judge to elicit reasons for verdict – Sections 235 (1) and (2) of the Code ofCriminal Procedure Act.
The appellant in this case was indicted in the High Court on the charge of havingcommitted the murder of one Jezima Gray by inflicting fatal gunshot injuries. At theconclusion of the trial the Jury returned an unanimous verdict of culpable homicide notamounting to murder. The presiding Judge purporting to act under Sec. 235 (1) of theCode of Criminal Procedure Act No. 15 of 1979 inquired from the Jury as to the basison which they arrived at this decision. In answer, the Foreman replied that they haddoubts as to whether the gunshot wan directed solely at the deceased. On furtherquestioning by the Trial Judge the Foreman of the Jury informed court that they wereunanimous in their view that the gunshot was fired by the accused. The learned TrialJudge no; satisfied by the verdict, purporting to act under Sec. 235 (2) of the Code ofCriminal Procedure Act gave further directions to the Jury in respect of the charge ofmurder dealing particularly with the fourth limb of Sec 294 of the Penal Code.Thereafter the Jury unanimously found the appellant guilty of murder.
Jinadasa v. Attorney-General
The accused appealed against the conviction to the Court of Appeal.
In view of the direction given by the Trial Judge in his onginal summing up pertainingto the question of culpable homicide not amounting to murder on the ground ofknowledge, the original verdict brought in by the Jury is not perverse.
The verdict returned on the first occasion by the Jury was unambiguous andunanimous
If the learned Trial Judge disagrees with the verdict of the Jury he could give furtherdirections under Sec. 235 (2) and ask the Jury to reconsider their verdict.
In terms of Sec. 235 (1) the learned Trial Judge can only pose questions to the Juryas to the reason for their verdict only for the purpose of ascertaining their verdict andnot to find out the reason or basis therefor
The learned Trial Judge has failed to direct the Jury, that to prove that the accusedis guilty of murder under the fourth limb of Section 294 of the Penal Code theprosecution must prove beyond reasonable doubt that the person committing the actknew that it was so imminently dangerous that (1) it must in all probability cause deathor (2) in all probability cause such bodily injury as is likely to cause death, and that theaccused committed such act without any excuse for incurring the risk of causing deathor such injury as aforesaid.
Cases referred to:
M E A. Cooray v. The King. (1952) 53 NLR 73.
The Queen v. H. Ekmon (1966) 67 NLR 49.
Emperor v. Derajtulla Sheik. 31 Cr. L. J. (1930) 1150.
Henry Larkin 29 Cr. App. Rep: 18.
Emperor v. Mukhun Kumar (1878) 1 Cal. L R. 275.
In the Ma tter of Trial of Thomas Perera alias Banda (1929) 29 NLR 6
Queen v Arnolis Appuhamy (1968) 70 NLR 256.
King v. Rajakaruna (1941) 42 NLR 337.
Rafat Sheik v. King Emperor (1933) AIR Cals. 640
King v. Navaratnam (1946) 46 NLR 181
R M Gunatillake Appuhamy v. Queen (1972) 74 NLR 536.
Somapala v. Queen H 970) 72 NLR 121.
Dr. Colvin R. de Silva for the accused-appellant
Hector YapaS.S.G for Attorney-General.
Cur. adv. vult.
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August 10, 1984.
H. A. G. DE SILVA, J.
The 1 st accused-appellant and two others viz : H. L. A. Sumathipalaand R. A. Sumanadasa alias Edwin stood indicted on four counts. Incount 1 all three accused were charged with having committed on17th September 1977 at Stace Road, Grandpass, the murder of oneJezima Gray, an offence punishable under Section 296 of the PenalCode. On count 2, the 2nd accused Sumathipala stood charged withattempting to commit the murder of one H. N. R. Alwis by means of abomb, an offence punishable under Section 300 of the Penal Codewhile on count 3 he was charged with the attempted murder of thesaid A. N. R. Alwis with a bomb but made punishable under Section4(2) of the Offensive Weapons Act No. 18 of 1966. On count 4 the3rd accused R. A. Sumanadasa alias Edwin stood charged withvoluntarily causing hurt with a sword to one U. G. Dayaratne, anoffence punishable under Section 315 of the Penal Code.
At the end of the prosecution case the State Counsel withdrewcounts 2 and 3 against the 2nd accused and he was thereforeacquitted on those two counts at that stage. Later the Court directedthe jury to acquit the 2nd and 3rd accused on count 1 with the resultthat counts 2 and 3 against the 2nd accused having already beenwithdrawn, lie was acquitted on all charges against him while the 3rdaccused was acquitted on count 1.
The 1 st accused was called upon for his defence on count 1 whilethe 3rd accused was called upon for his defence on count 4.
The jury by an unanimbus verdict acquitted the 3rd accused oncount 4 and found the 1 st accused guilty of murder on count 1 and hewas accordingly sentenced to death.
Evidence of the incident in which Jezima Gray came by her deathwas provided by one Dayaratne who had been living in Jezima's housefor about 12 years and Farook, her brother.
Dasa the 1 st accused was known to these two witnesses for about4 to 5 months prior to the date of the incident and he was living nearthe Grandpass Police Station. The 2nd accused Sumathipala wasknown to Dayaratne for about 12 years while Farook did not give theperiod of time he had known the 2nd accused. The 2nd accused too
Jmadasa v Attorney-General (H A G De Silva, J.)
was living near the Grandpass Police Station, this Police Station beingabout 500 yards from the Jezima theatre where the incident tookplace.
Two days prior to this incident i.e. on 15th September 1977,Dayaratne had made a complaint to the Grandpass Police Stationagainst the 2nd and 3rd accused. The 1st accused was a closeassociate of these two accused.
Jezima theatre has two gates, the one on the right hand side waskept closed and it was near the open left hand side gate that theshooting had taken place. Leading from Stace Road was a motorablegravel road leading to Jezima Gray's house bounded on two sides bywalls, one 12 ft. high on the boundary of the land of one Sirisena, andthe other 5 to 8 ft. high being the wall of the Jezima theatre. Near theleft hand side gate was the boutique of one Kesawan, and was alsoknown as Kochchiyage kade.
.The incident had taken place between 10.30 and 11.30 p.m.Dayaratne and Farook had come to see the 9.30 p.m. show at Jezimatheatre along with one Tilak and Rohita. While they were watching thefilm, Jezima Gray had come to the cinema hall at about 10.30 or11.30 p.m. and informed them that Dasa, the 1 st accused had cometo meet them. Farook, Dayaratne, Rohita and Tilak came out of thecinema hall and with the deceased got on to Stace Road. The 1staccused was near the boutique of Kesawan with an unidentified manin a red shirt. When Dayaratne went close, the 1 st accused in generalasked that the complaint made on 15th September be withdrawn. The2nd and 3rd accused said they cannot do anything and to askDayaratne. Then Dayaratne had said that he was not going towithdraw the complaint he had made and to do whatever theywanted. At this time the deceased too was present but she did notspeak a word. The 1st accused told Ranjith and Tilak not to interferebut Ranjith had said that if anything happened to Dayaratne, he wouldcome forward. At this stage, the 1 st accused pulled out a pistol fromhis waist and said in general, "I will kill you now". Then the deceasedcame forward saying "Dasa, don't, don't". The 1st accused saying"who are you to stop me' aimed the pistol in the direction of thedeceased and when she tried to turn the shot was fired. The deceasedfell down on receipt of the gunshot. Dayamtne ran to Sinsena’s landwhile Farook ran in the direction of the house for about 75 yards andlooked back.
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Dayaratne entered Sirisena's land near the boutique and he hadhardly gone 5 or 6 ft. when the 3rd accused who was near theboutique called out “ado" and aimed a blow with a sword at Dayaratnewhich Dayaratne took on his left hand. Dayaratne had run across theland, jumped over the boundary wall and entered the deceased'sgarden. There he met Farook who saw him with bleeding injuries andDayaratne had told him that the 3rd accused had cut him. Noevidence was led by the prosecution against the 2nd accused withregard to injuring of Ranjith Alwis by means of a bomb, though Farookas well as the Police Officers who came to the scene say that therewas the sound of an explosion of a bomb and pieces recovered fromthe scene by the Police Officers have been identified by theGovernment Analyst as parts of an exploded bomb.
The medical evidence regarding the injuries on the deceased wasthat the bullet had entered in the area of the right armpit, travelledthrough the body causing injuries to vital organs of the body such asthe liver, spleen and the aorta and had come out of the body in thearea of the left armpit. This was a necessarily fatal injury and had beencaused by a revolver or pistol. The shot had been fired with theweapon held slightly downwards and between two to five or six feetfrom the deceased. Death was due to shock and extensivehaemorrhage resulting from this injury.
The Police Officers who investigated into this incident had arrived atthe scene shortly after the incident. They had found blood near the lefthand side gate post of the cinema on the road. Pieces of a bomb werealso recovered from the viginity. Inspector David had gone that nightitself in search of the suspects. He had gone to the house of oneSokkalingam at Urugodawatte. Behind this house there was a smallroom like structure. He heard noises coming from that room and whenthe Police entered the room, the three accused were seen jumping outof a window and running away. The 1st and 3rd accused wereapprehended.
The 1 st accused neither gave evidence nor called witnesses but the3rd accused made an unsworn statement from the dock. After thesumming up of the learned Trial Judge, the jury returned their verdict.It is necessary at this stage to reproduce verbatim what transpired inCourt.
Jinadasa v Attorney-General (H. A G De Silva. J.)
'The Officiating Registrar questions the Jury as follows
QAre you unanimous in your verdict against the 1st
accused Mudunkotuwage Jinadasa alias Dasa oncharge No. 1 against him ?
Q.Is the 1st accused Mudunkotuwage Jinadasa alias
Dasa guilty or not guilty of the offence of murder ofJezima Gray ?
Q. If so, is he guilty or not guilty of a lesser offence ?
Q.Guilty to what ?
A.To culpable homicidenotamountingto murder.
Court from the Foreman of the Jury :
Q.On what basis did you find the 1 st accused guilty to
culpable homicide not amounting to murder ?
A.We had a doubt amongst ourselves as to whether the
shot was directed solely on the deceased.
Q. Did you come to a decision that a shot was fired ?
Q.Who fired the shot ?
A.Upon the unanimousverdict the1 staccusedfired the
1 inform the Jury that I am directing them to reconsider theirverdict on charge No. 1 under Section 235 (2) of the CriminalProcedure Code".
The learned trial Judge then went on to ascertain the verdict otthe jury in respect of the 3rd accused on Count 4 of the indictment.The jury found the 3rd accused not guilty on that charge. Thelearned trial Judge thereafter, purporting to act under Section235 (2) of the Code of Criminal Procedure Act No. 15 of 1979went on to give further directions to the jury in respect of the 1 staccused on count 1 of the indictment i.e. on the murder charge.This further summing-up dealt mainly with the applicability of"fourthly" of Section 296 of the Penal Code to facts as found by thejury.
Learned Counsel for the 1 st accused-appellant submits that afterthe jury returned a verdict of culpable homicide not amounting tomurder, and particularly in view of the fact that directions had been
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given by the learned trial Judge in the course of the mainsumming-up on culpable homicide not amounting to murder on theground of knowledge, the learned trial Judge should have acceptedthe verdict returned by the jury. He further submitted that the jurorshad taken an oath of secrecy and the learned trial Judge could notand should not, ha,;c probed the reasons for their verdict. It waslearned Counsel's contention that in any event the direction on the"fourthly" of Section 294 were wrong. In the circumstances hesubmitted that asking the jury to reconsider their verdict amountedto an usurpation of the jury’s functions and hence the later verdictwas tainted with illegality. I will now deal with each of thesesubmissions in turn.
Section 235 (1) of the Code of Criminal Procedure Act No. 1 5 of1979 states "unless otherwise ordered by the Judge the jury shallreturn a verdict on all the charges on which the accused is tried andthe Judge may ask them such questions as are necessary toascertain what their verdict is".
Learned counsel contends that the first verdict returned by the juryof culpable homicide not amounting to murder in the light of thedirections given by the learned trial Judge could have been basedsolely on the ground of knowledge and nothing else as the facts in thiscase did not give rise to any of the special exceptions enumerated inSection 294 and in fact no directions were given by the learned trialJudge on the special exceptions. It therefore followed that if the jurybrought in a verdict of culpable homicide not amounting to murder itcould have only been brought in the circumstances of this case, on thebasis of knowledge and no other, hence the need to probe the jury'sverdict did not arise.
In M. E. A. Cooray v. The King.i'l) the appellant was charged underSection 392 of the Penal Code with committing breach of trust of asum of Rs. 1 55,557.93 in the way of his business as an agent. In thecourse of the trial the prosecution narrowed down the sum in respectof the charge to Rs. 94,976.93. The jury found the appellant guilty ofcriminal breach of trust in respect of a sum of about Rs. 57,500. Itwas held that (1) the verdict of the jury could not be said to be vagueon the ground that it did not specify the exact amount that had beenmisappropriated. The jury need not have mentioned any sum at all intheir verdict and (2) that as the verdict was clear and unambiguous it
Jinadasa v Attorney-General (H A G De Silva. J.)
was not competent for the trial judge to have asked the jury as to howthey arrived at the figure of Rs. 57.500. Neither Section 248 norSection 247 of the Criminal Procedure Code permitted suchquestions
Nagalingam J. delivering the judgment of the Court at pages 82 and83 stated as follows :
"In regard to the contention that the learned trial Judge shouldhave asked the Jury as to how they arrived at the figure of Rs57,500 I need only say that such a course would have been entirelyoutside the province of the Judge, for such a question would seek toascertain the ground or grounds upon which the Jurors came toarrive at their verdict. According to the majority of us it isconceivable, though we do not say it must be so in this case, thatthe Jurors themselves may each have differed widely in regard tothe quantum which in their individual opinion .had beenmisappropriated by the prisoner but they may all have agreedarriving by different methods that at the lowest a sum of aboutRs. 57,500 had been misappropriated by the appellant. On thisbasis they may have agreed upon their verdict. Section 248 of theCriminal Procedure Code confers and limits the powers of a Judgeto question a jury in regard to its verdict and provides that a Judge isonly empowered to ask the Jury such questions as may benecessary to ascertain what their verdict is. So that where theverdict is clear and unambiguous such as it is in this case, nooccasion arises for a Judge to put any question to the Jurors inregard to the verdict, and if he did so he would run the risk ofsubjecting such procedure to well founded criticism of an adversecharacter. . The verdict should therefore be one of guilty or notguilty. It need not have been qualified by the addition of the amountwhich in the opinion of the Jury had been the subject of criminalbreach of trust by the prisoner. These added words relating to theamount may, if need be, according to the majority of us, be treatedas more surplusage and ignored, because the verdict is notrendered uncertain or vague by the addition of those words and theverdict that the prisoner is guilty is clear and precise without theiraddition. These observations of ours however have no reference tothe undoubted right that a Judge has to question a Jury with a viewto assess the appropriate sentence that he should pass on aprisoner".
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In The Queen v. H. Ekmon (2)-
"Where in a trial before the Supreme Court, the verdict of the jury isclear and unmistakable, the presiding Judge has no power to putquestions to the jury. The power to ask questions conferred bySection 248 (i) of the Criminal Procedure Code is limited to suchquestions as are necessary to ascertain what the verdict of the jury
is" It transpired that “After the Foreman of the jury had
delivered the verdict of the jury on the first five counts of theindictment the presiding Judge asked him a number of questionsand stated that it was impossible to accept that part of the verdictaccording to which none of the accused-appellants was guilty ofmurder (count 2 in the indictment). He directed them to retire andreconsider their verdict on the charge of murder. When the juryreturned forty-five minutes later the Foreman stated again in answerto Court, that the jury wished to be directed on certain points. TheJudge then re-charged the jury and asked them to retire andreconsider their verdict. In no uncertain terms he indicated that theyshould return a verdict of guilty of murder against all the appellants.Thereafter the jury unanimously found the appellants guilty ofmurder also." It was held inter alia "that the trial Judge actedwrongly (a) in refusing to take the verdict returned by the jury afterthe first summing-up, (b) in questioning them when their verdict wasunmistakable (c) in giving them further directions on one aspect ofthe case alone after the summing-up, (d) in not taking the verdict onall the counts once he had directed the jury to reconsider theirverdict (e)in expressly telling them what their verdict should be ohthe charge of murder".
In the case of Emperor v. Derajtulla Sheik (3) it was held that-
where the verdict of the jury is clear and precise the Judge is notentitled to examine the Jurors as to the grounds upon which theyhave based their verdict."
In the case of Henry Larkin (4) it was held that-
"where the verdict of a jury is entirely inconsistent, properquestions may be put by the Judge to invite the jury to explain whatthey mean, but where the verdict is plain and unambiguous, it ismost undesirable that the Judge should ask the jury any furtherquestion about it".
Learned Senior State Counsel submitted that the learned trial Judgehad the power under Section 235 (1) to ask the questions he did ask,if he considered the verdict to be perverse.
Jinadasa v. Attorney-General (H. A. G. De Silva. J.)
Sohoni's The Code of Criminal Procedure (16th edition) Vol :ll page1999 commenting on Section 303 (1) of the Indian Code which isanalogous to Section 235 (1) of our Code says :
"A Judge ought not to put any question to any of the jury as to hisreasons for the verdict he has given. . . A Judge is not entitled toask the jury their reasons for the verdict. He is not entitled to putquestions to them to show that the conclusions at which they
arrived were not logical or consistentAny ambiguity in the
verdict is the only justification for any question by the
JudgeThe Code does not empower a Judge to question the
jury as to their reasons for a unanimous verdict where there isnothing ambiguous in the verdict itself. It is a serious irregularityopposed to the fundamental principle and scheme of trial by jury if aJudge puts questions to each of the jurors and record their opinions.A judge should not treat them as assessors."
In the case of Emperor v. Mukhun Kumar (5) Prinsep, J. held that thelaw did not prevent the Judge from questioning the jury as to theground on which they based their verdict and such a course isdesirable in the ends of justice, but Markby J. held to the contrary. Itappears from the judgments of Prinsep J. and Markby J. that the rightto question the jury is permissible when the trial Judge considered theverdict to be an unreasonable or perverse verdict.
Learned Senior State Counsel submitted that in the instant casetoo the course adopted by the learned Trial Judge was permissibleunder the provisions of Section 235 (1) if he considered the verdictto be perverse, as he submitted it was, when the jury returned averdict of culpable homicide not amounting to murder. Though theabove quoted case appears to justify atrial Judge inquiring from thejury the grounds for their decision, it seems to me that the majorityof the cases veer the other way and justify such procedure onlywhen the verdict is ambiguous.
Learned Senior State Counsel drew our attention to certainpassages in the evidence of Dayaratne and Farook to show thatwhen the first accused shot he had aimed the pistol at the deceasedJezima Gray and no other.
Dayaratne in his evidence in chief describing the incident hasstated that the 1 st accused pulled out a pistol from his waist andsaid "I will kill you now". In answer to Court he stated that the 1st
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accused had addressed these words in general. Then the deceasedJezima came forward saying "Dasa, don't. Dasa don't". Then the1st accused saying "who are you to stop me" levelled the pistoltowards Jezima. Farook in his evidence stated that Dayaratne,himself, Ranjith, Tilak, the deceased and the 1st accused weretalking to Ranjith and Tilak jumped backwards about a foot Whenthey were jumping, his elder sister the deceased, saying somethingwent forwards. At that time he saw the 1 st accused taking a pistolfrom his waist. His elder sister saying something turned and as shewas turning the 1st accused shot.
Our attention was also drawn to items of evidence given byDayaratne and Farook showing displeasure between the 1 st accusedand the deceased. Dayaratne had stated that there may have beendispleasure between the 1st accused and the deceased. Incross-examination in the absence of the jury this witness had said thatthree months prior to this incident the 1 st accused and his friend hadthrown a bomb at the gate of the cinema hall and the deceased hadmade a complaint to the Police about it. When the 1st accusedrequested the deceased to withdraw the complaint, the deceased hadcomplied with it, but the 1 st accused may have had a grudge againstthe deceased for having made the complaint in the first place. Thisevidence was not placed before the jury as it connected the 1staccused with the earlier bomb incident.
Farook in cross-examination gave as a motive for the shooting of thedeceased by the 1 st accused that complaints had been made againstthe friends of the 1 st accused before this incident took place. Theywere angry because they thought his sister did not allow thecomplaints to be withdrawn.
Learned benior State Counsel submitted that in the light of theprosecution evidence only two verdicts were possible (1) of acquittalon the basis that the 1st accused did not fire that shot and (2) ofmurder if the jury held that it was the 1 st accused who had fired theshot. He submitted that any other verdict would have been perverse,accordingly he submitted that the verdict brought in by the jury ofculpable homicide not amounting to murder was a perverse verdict. Iflearned Senior State Counsel's submission is to be accepted, onecannot understand why the learned trial Judge gave directions to thejury on culpable homicide not amounting to murder on the ground ofknowledge. He did not desist from giving directions on this matter nor
Jinadasa v Attorney-General (H. A. G. De Silva, J.)
did he specifically withdraw this possible verdict from the jury. Havingbeen so directed it was open to the jury to have returned a verdict ifthey came to a finding that what the 1st accused had was theknowledge that the act done by him was likely to cause death withoutthe intention to cause death or to cause bodily injury as was likely tocause death. We therefore do not consider that the 1st verdictbrought against the 1 st accused on the charge of murder is a perverseverdict and even if it is correct that the learned trial Judge has thepower to ask questions from the jury if he considered the verdictperverse that situation did not arise in this instance.
The second question that arises for decision is whether the learnedtrial Judge could have in the circumstances have disagreed with thefirst verdict and not accepting the verdict requested them toreconsider their verdict after further directions Such a course ofaction is sought to be justified under the provisions of Section 235(2)of the Code of Criminal Procedure Act. This sub-section enacts that-
“If the Judge does not approve of the verdict returned by the juryhe may direct them to reconsider their verdict, and the verdict givenafter such re-consideration shall be deemed to be the true verdict".
Learned Counsel for the 1 st accused-appellant submitted that in theface of a dear and unambiguous verdict the learned trial Judge wasnot entitled to enter upon the procedure that he appears to haveembarkod on.
Section 21 6 of the Code of Criminal Procedure Act states that-
"The Judge may also discharge the jury whenever the prisonerbecomes incapable of remaining at the bar and whenever in theopinion of the Judge the interests of justice so require".
it may be argued that a combination of Section 235(2) and Section21 6 would enable a Judge to make it impossible for a jury to return averdict with which he dose not agree. "In the Matter of Trial of ThomasPerera alias Banda (6) Garvin, J. says-
"But I am free with reference to the argument addressed to me toexpress my own opinion that to exercise in combination the powerscommitted by S.248(2) and S.230 solely for the purpose ofpreventing a jury from returning a verdict which is not in accord withthe presiding Judge's view, of the case is not a use to which those
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powers should be put. So long as a jury remains an essential part ofthe tribunal constituted by law for the trial of persons indicatedbefore the Supreme Court the final verdict of the jury must prevail,and not the opinion of the presiding Judge".
and in Queen v. Arnolis Appuhamy (7) it was held that Section 230 ofthe Criminal Procedure Code does not entitle the Judge to dischargethe jury in which he disagrees with the view of the facts taken by thejury.
Learned Senior State Counsel relied on the case of King v.Rajakaruna (8) where it was held that –
"where a Judge is not disposed to accept the verdict of a jury heis entitled to redirect them on the law as well as on the facts of thecase".
Howard, C. J. cited with approval the case of Rafat Sheik v. KingEmperor (9) where it was held that-
"where a Judge is not minded to accept what is obviously andedmittedly an inconsistent verdict of the jury, he can make furthercharge to the jury".
King v. Navaratnam (10) followed King v. Rajakaruna and held that –
"where a jury is divided 4 to 3, the Judge is entitled to rechargethe jury on a specific matter which he thinks relevant in order to cleartheir minds and enable them to arrive at a proper verdict".
In the case of R. M. Gunatillake Appuhamy v. Queen (11) it was heldthat-
" where, at a trial before the Supreme Court, the question whichthe jury have to decide is purely one of fact, the provisions of Sec.248(2) of the Criminal-Procedure Code do not enable the Judge todirect the jury to reconsider their verdict, unless it is quite clear thatthe verdict is unreasonable or perverse. When two views of thefacts are possible, and the view taken by the jury is different fromthat taken by the Judge, it would be improper to use Section 248(2)in such a manner as to substitute the Judge's view of the facts forthat of the jury".
Jinadasa v Attorney-General (H. A. G. De Silva. J.)
Per curiam . "when a trial judge uses Section 248(2), we think itis very desirable that he should give further directions to the jury andspecifically inform them that they are still the judges of fact andperfectly free to bring the same verdict after reconsideration if theyremained of the same view and further that the second verdict shallbe deemed to be the true verdict which would be binding on theJudge as well".
In my view the verdict returned on the first occasion by the jury wasunambiguous and unanimous. It is clear that the learned trial Judgequestioned the jury as to the basis or reasons for their verdict as he didnot agree with it. I have already held that it could not be considered aperverse verdict in the light of the learned trial Judge's directions in thefirst summing-up. Under these circumstances if the learned trial Judgedisagreed with the verdict it was open to him to have given furtherdirections under Section 235(2) and asked the jury to reconsider theirverdict but it was not open to him to question the jury as to thereasons for their verdict .under Section 235(1) as this sub-sectionempowers the Judge to pose questions only to ascertain their verdictand not to find out the reasons or the basis therefor. The learned trialJudge not having summed-up on the special exceptions enumeratedin Section 294 of the Penal Code, and having directed the jury on theavailability of a verdict of culpable homicide not amounting to murderon the basis of knowledge, the need did not arise to find out thegrounds on which their verdict was based to determine the sentencethat should be imposed on the 1 st accused. The only possible groundon which the verdict could have been brought was, that the jury hadfound that the 1 st accused had no intention but only knowledge. I amtherefore of the view that the procedure adopted by the learned trialJudge after the first verdict was returned was not warranted by theprovisions of the Code of Criminal Procedure Act.
The next submission that comes up for consideration is that thelearned trial Judge was not entitled to direct the jury to reconsidertheir verdict on an entirely new basis of fact and law. Learned Counselfor the 1st accused-appellant submitted that the 1st accused wascharged and apparently the prosecuting counsel presented his caseand the learned trial Judge summed up to the jury on the firstoccasion, on the basis that the 1 st accused entertained a murderousintention but the learned trial Judge in his further summing-up directedthe jury on an entirely new basis viz : "fourthly" of Section 294. Hefurther submitted that no directions were given by the learned trial
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Judge in his second summing-up on the ingredients that theprosecution should prove in respect of "fourthly" of Section 294 butcontented himself by merely explaining illustration(d) to Section 294of the Penal Code.
Section 293 of the Penal Code enacts that-
"whoever causes death by doing an act with the intention ofcausing death, or with the intention of causing such bodily injury asis likely to cause death, or with the knowledge that he is likely bysuch act to cause death, commits the offence of culpablehomicide".
Section 294 states that –
"Except in the cases hereinafter excepted, culpable homicide ismurder –
Fourthly – "If the person committing the act knows that it soimminently dangerous that it must in all probability causedeath, or such bodily injury as is likely to cause death,and commits such act without any excuse for incurringthe risk of causing death or such injury asr aforesaid"
"Firstly and thirdly" of Section 294 is on the basis of intention and iscovered by the first two limbs of Section 293. "Secondly and fourthly"depend on knowledge and is based on the third limb of Section 293
e. the knowledge of the doer of the act that someone’s death wouldbe caused (Somapala v. Queen (12)). The learned Trial Judge has, assubmitted by learned Counsel for the 1 st accused-appellant dealt atlength with illustration (d) to Section 294 and has failed to direct thejury that to prove that the accused is guilty of murder under the fourthlimb the prosecution must prove beyond reasonable doubt that theperson committing the act knew that it was so imminently dangerousthat (1) it must in all probability cause death or (2) in all probabilitycause such bodily injury as is likely to cause death and that theaccused committed such act without any excuse for incurring the riskof causing death or such injury as aforesaid.
Jtnadasa v Attorney-General (H. A. G. De Silva. J j
It was also submitted that in his second summing-up the learnedTrial Judge applying the illustration (d) to Section 294 to the facts ofthe case as found by the jury, as elicited from the jury by the questionsput to them by the learned trial Judge, stated in no uncertain termsthat it was a direction of law meaning thereby that they would have tofollow such directions and bring in a verdict accordingly i.e. a verdictof murder. It was not left to the jury to bring in a verdict of their choiceand as was stated in R. M. Gunatilleke Appuhamy v. Queen (supra) didnot inform the jury "that they are still the judges of fact and perfectlyfree to bring the same verdict after re-consideration if they remained ofthe same view and further that the second verdict shall be deemed tobe the true verdict which would be binding on the judge as well".
I am of the view that Jhe submissions of learned Counsel for the 1staccused-appellant are entitled to succeed and the conviction of the1st accused-appellant on count 1 cannot be allowed to stand. Itherefore set aside the conviction and sentence on count 1 in respectof the 1 st accused-appellant.
The next question that has to be decided is whether we shouldorder a re-trial or convict him in conformity with the verdict first broughtby the jury. It appears to me that the second verdict brought by thejury is tainted with illegality and the first verdict brought in by the jury ofguilt of culpable homicide not amounting to murder, necessarily on theground of knowledge, is the true verdict and one that they could havebrought in terms of the directions given by the learned Trial Judge in thefirst summing-up. The facts as found by the jury are capable ofsustaining a conviction for culpable homicide not amounting to murderand I therefore convict the first accused-appellant of culpablehomicide not amounting to murder on the ground of knowledge, anoffence under Section 297 of the Penal Code, and sentence him toseven years' rigorous imprisonment.
ABEYWARDANE, J. – I agree.
SIVA SELLIAH, J. – l agree.
Conviction and sentence set aside and conviction for culpablehomicide not amounting to murder substituted.