044-NLR-NLR-V-46-THE-KING-v.-APPUHAMY.pdf
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The King v. Appuhamy.
[Court of Criminal Appeal.]
1949Present – Kenneman, Vijeyevardene and Rose JJ.
THE KING v. APPUHAMY.
59—M. C. Ratnapura, 38,273.
Court of CriminalAppeal—Charge of Murder—Circumstantialevidence—
Deceased last seen with accused—Exact time of death of deceased must beproved—Absence of- motive for murder—Prompt explanation by accused.
In order to justify the inference of guilt from purely circumstantialevidence, the inculpatory facts must be incompatible with the innocence-of the accused and incapable of explanation upon any other reasonablehypothesis thn that of his guilt.
In considering the force and effect of circumstantial evidence, in a.trial for murder, the fact that the deceased was last seen in the companyof the accused loses a considerable part of its significance if the prosecu-tion has failed to fix the exact time of the death of the deceased. Amongother points which may be emphasised in favour of the accused are (1)the absence of any motive whatever for the accused to murder thedeceased, and (2) a reasonable explanation given by tbe accused fairlypromptly after his arrest.
A
PPLICATION for leave to appeal against a conviction by a Judge-and Jury before the Western Circuit.
A. Rajasingham, for the 1st accused, appellant.
E. H. T. Ounasekere, C.C., for the Crown.
Cur adv. vult_
(1790) 100 English Reports 740.
KEtJNEMAN J.—The King v. Appuhamy.
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March 15, 1945. Keuneman J.—
In this case this accused was found guilty of murder on purelycircumstantial evidence. The material evidence in the case was givenby Dingiri Appu, a trader in a boutique at Lelopitiya, and by his nephewJainhamy to this effect. Dingiri Appu, the deceased his brother, and Jain-hamy were seated in Dingiri Appu’s boutique on the night of December 3,1943, when the 1st accused came to the window and said that two peoplehad brought a couple of fine gems and that the people were on the estateroad. Dingiri Appu was not willing to go out, but the deceased left theboutique with the 1st accused. They carried a lighted candle in acoconut shell.
In about half or quarter of an hour the 1st accused returned to theboutique of Dingiri Appu and said—“ Your brother has looked at thegems, and you are required to come and assess them ”. The first accusedtried his best to induce Dingiri Appu to go- with him but Dingiri Appuwas unwilling and the 1st accused went away. He returned a thirdtime and told Dingiri Appu that his brother was coming along the estateroad with the other men, and wanted him to go out and meet them.Dingiri Appu became suspicious and refused to go out, and in.fact loadedhis gun and kept it beside him. According to Dingiri Appu, the 1staccused came about 11 p.m., while according to Jainhamy the deceasedleft the boutique about 8.30 or 9 p.m.
Dingiri Appu took no action to search for the deceased for about anhour, and then he sent Jainhamy to the deceased’s boutique. In conse-quence the two sons of the deceased went in search of him towards therubber estate, actually passing not far from where the deceased’s bodywas found later, but they saw nobody. They carried a lantern whichdid not throw' its light very far, and it was possible that if the body wasthere it may have been hidden behind some rocks at the spot. The two.sons of the deceased returned to their boutique.
Early next morning Sirisena . went out and discovered the body of thedeceased near the top of a hill, beside a rock.
The medical evidence showed that the deceased had three incisedwounds in the region of the neck, the longest 6 inches long, which couldhave been caused by a heavy sharp cutting instrument. The post-mortemexamination was held at 2.30 p.m. on December 4, 1943, and the doctorfound that signs of rigor mortis were well marked.He however gave
no details with regard to the onset of rigor mortis.He was not able
to say “ with mathematical accuracy ” how -many hours after deathhe held the post mortem. He added—“ Rigor mortis usually sets inabout 4 or 5 hours after death. It is well marked in many cases afterabout 18 hours. Rigor mortis disappears about 36 hours after death.It commences to vanish in about 24 hours after death and completelyvanishes in about 36 hours. ” The doctor said it was “ possible ” for theman to have died about 9 p.m. the previous day. The Trial Judgecorrectly summed up this evidence as being “ not inconsistent withthe deceased having died about this time, but the evidence is not sufficientto establish the exact hour of the death.
V. A 99415 (8/60)
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KEUNEMAN JThe King. v. Appuhamy.
The doctor also found in the deceased’s stomach a small quantityof rice and curry undergoing digestion, and said that the deceased musthave had the meal three or four hours before death, and that traces ofrice and curry could be found three or four hours after death. Hereagain there is an absence of details as to the extent to which digestionhad progressed, but the point is not without significance in this case. Theevidence of the deceased's son Upasena was that the- deceased had notpartaken of rice and curry since “ the midday meal ” but the exacthour of that meal has not been spoken to. At any rate it was not un-reasonable for the defence to make the suggestion that the deceased hadactually partaken of a meal of rice and curry that night, and on theevidence he must have done so after he went out with the 1st accused,and have been killed some hours after he had this meal.
As regards motive on the part of the 1st accused, the Trial Judgerightly said that there was “ no real evidence with regard to motive ”and that the suggestion that robbery was the motive hardly fitted inwith .the death of the deceased.
Two other matters have been suggested against the 1st accused.The first is that on December 6, 1943, he brought the sword (P 9) to thewitness Suwaris and suggested that Suwaris should give him even Rs. 2and keep the sword in pawn. Suwaris refused to lend the money, and the1st accused then left the sword with Suwaris saying that he was goingon an urgent journey and would return for the sword on the 10th. The1st accused did not in fact return to claim the sword which was latergiven to the Police. The doctor said that the injuries could have beencaused by a weapon like P 9 but in fact there was not a vestige of evidenceto connect this sword with the injuries found on the deceased. Thoseinjuries could have been caused by a heavy sword or by a heavy longmanna knife. The sword does not appear to have been sent to theGovernment Analyst for examination for traces of human blood, and theevidence of Suwaris was that it was not rusty but shining when he receivedit.
The other point alleged against the 1st accused was that “hedisappeared entirely from the neighbourhood where the killing tookplace . It is true that some search was made for the 1st accused inLelopitiya where the body was found; but this is perhaps of littlesignificance, for admittedly the 1st accused was living in Kuruwita, about15 miles away and only came to Lelopitiya on casual visits. There isno evidence that he had disappeared from Kuruwita, and it is not un-reasonable that the 1st accused should have returned to his village Kuru-wita where he had employment. Certainly the witness Suwaris saw theaccused close to Kuruwita on December 6 and 7, and it was not untilthat day that the accused set out on his journey. There is really noevidence of a flight immediately after the night of December 8. I mayadd that it was only on the 6th that the accused tried to pledge the swordP 9, and there is no evidence that the 1st accused had any weapon at allwhen he was seen on the night of the 3rd.
The Trial Judge summed up the evidence of the prosecution asfollows:—“To sum up the whole case against the accused as it is putforward by the Crown, first of all you have got it established that he had
KEONEMAN J.—The King v. Appuhamy.
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come to the house of Dingiri Appu that night and Dingiri Appu’s brotherthe deceased, went away with him; that he came back twice after thatin an attempt to get Dingiri Appu himBelf to go out, and therefore hewas the last person with whom the deceased was seen alive.
“ The doctor’s evidence is not inconsistent with the deceased havingmet his death some time about the time he was last seen in the companyof the ' accused; that he disappeared from the neighbourhood wherethe killing took place; that he attempted to dispose of this weaponwhich the doctor said could have caused the death of the deceased
The accused was arrested on December 12, and on the 15th he made avoluntary statement to the magistrate which has been proved by theprosecution. In this the accused stated that he came to Lelopitiyaon December 3, on the invitation of Amisa. At Amisa’s house he metMendis and an unknown man. Amisa told him that he had a gem whichwas a stolen gem, and wanted him to find a buyer. Amisa asked him toarrange with the Mudalali of the boutique, so the accused went to the.Mudalali and spoke to him about the gem but the Mudalali refused togo to the jungle to see the gem. The accused returned to the men whohad sent him, who were now on a footpath. These men refused to goto the boutique but said they would go to the estate. Accused returnedto the Mudalali, who refused to go out but sent his elder brother.Accused and the elder brother of the Mudalali went out with a lightedcandle to the place where the other three men were. Amisa howeverwanted the Mudalali himself to come, so the Mudalali's brother wasasked by Amisa to stay there and the accused was again sent to fetchthe Mudalali, whose brother sent a message to the Mudalali not to beafraid. The Mudalali and Jainhamy got out of the boutique with alantern but did not go further than the smoke room. Then the Mudalalicomplained that he was bitten by leeches and went back to his boutique.The Mudalali asked accused to fetch his brother. When the accusedwent back to where the men had been there' was no light there and themen were not there. Accused called out and there was no reply; he .thought the men had gone somewhere else so he himself went away.
As the Trial Judge said, this story “ agrees almost word for wordwith the story told by Dingiri Appu himself and Jainhamy. ” Theonly difference was that Dingiri Appu and Jainhamy had said thatthe deceased left with the accused on the first occasion, while the accusedsaid that it was on the second occasion. This, the Trial Judge added,was “ no real difference ", and suggested that probably some duty restedon the accused “ as he induced the deceased to go with him, to go and tellDingiri Appu that he found no signs of his brother. ’’ Strictly speakingno inducement was offered to the deceased, who went voluntarily; hutthe comment does yeofc lack justification.
The learned Trial Judge had on more than one occasion adequatelyinstructed the Jury with regard to circumstantial evidence, viz., thatthey must be satisfied " that the circumstances are incompatible with theaccused’s innocence and that they were only consistent with his guilt.
If the circumstances are consistent with his innocence then it is yourduty to acquit him. ”
KEUNEMAN 3.—The King. v. Appuhamy.
It is perhaps a little unfortunate that towards the end of his chargethe Trial Judge said—“ It is for you to say whether that statement-explains his conduct, and whether the circumstances are consistent withhis guilt
We have anxiously considered the whole of the evidence, and we thinkthat while the circumstances were perhaps consistent with the guiltof the accused, it was not possible to exclude a hypothesis pointing tothe fact, that the accused was not guilty of the offence with which he was-charged.
The following points in favour of the accused may be emphasised:
The absence of any motive whatever for the accused to murder the‘ deceased.
The really suspicious element iu the evidence was the persistent
return ofthe accused to the boutique of Dingiri Appu, butthepoint in
favour ofthe accused is that he went, therequite openlyanddid not
attempt to conceal'his identity.
The evidence does point strongly to the fact that there were othermen in the background who may have had 3 motive for the murder,and who may have used the accused as an innocent tool to lure thedeceased and Dingiri Appu from the boutique.
C4) The accused was not in contact with the deceased on two occasions,and the murder could have been committed in his absence, i.e., on his twosubsequent visits to Dingiri. Appu s boutique. More particularly thereis a strong possibility that the murder may have been committed duringthe accused’s last visit to the boutique.
Theprosecution failed to fix the exacttime of thedeath of the
deceased,and the fact that the deceased waslast seen intheeompany
ot the accused loses a considerable part of its significance. The presenceof rice and curry in the stomach of the deceased also indicates a strongpossibility that the death took place some hours after the deceased setout with the accused.
The absence of evidence that on the night in question the" accusedwas seen to carry a weapon neutralises to a large extent the evidencethat the accused had the weapon P 9 and attempted to pawn it nearXuruwita. Further no connection between P 9 and the injuries causedto the deceased has been shown.
There is no evidence that the accused was absconding immediatelyafter December 3.
The explanation of the accused was given fairly promptly afterhis arrest and is not unreasonable.
In all the circumstances we are of opinion that it was not open to theJury to say that every reasonable hypothesis consistent with the innocenceof the accused on the charge of murder had been eliminated. The caseis uudoubtedly a case of some suspicion but we do not think it amountsto more than that.
In the circumstances the application of the accused is allowed and he isacquitted.
Conviction quashed.