124-NLR-NLR-V-55-E.-CHANDRADASA-Appellant-and-THE-QUEEN-Respondent.pdf
Chandradasa v. The Queen
439
[Cotxrt op Criminal Appeal]
1953 Present: Rose C. J. (President), H. A. de Silva J. and K. D. de Silva J.E. CHANDRADASA, Appellant, and THE QUEEN,RespondentAppeal No. 60, with Application 104, oe 1953S. C. 9—M. C. Kalutara, 16,544=-Charge of murder—Plea of self defence—Summing-up—Circumstances when Judgeshould give adequate direction on sudden fight and provocation—Penal Code,s. 294, Exceptions 1 and 4.
In a trial for murder, questions of sudden fight or grave and suddenprovocationshould be left to the jury and adequately explained by the trial Judge wherethe facts, or the necessary inference to be drawn from them, would make itpossible for tile jury reasonably to form such a verdict. The mere fact thatthe accused himself, or his counsel, has contended for a complete acquittalon the ground of self-defence does not excuse the jury from considering, or thetrial Judge from directing them upon, the question as to whether the truefacts would not necessitate a verdict of culpable homicide not amounting to•murder.
(1952) 54 N. L. R. 469.
440
ROSE C.T.—Ohandradasa v. The Queen
^^.PPEAXi, with application for leave to appeal, against t* convictionin a trial before the Supreme Court.1
A. B. Perera, with J. G. Thurairatnam and Z>. A. Jayasuriya, for theaccused appellant.
G. P. A. Silva, Crown Counsel, with N. T. D. Kanekeratne, CrownCounsel, for the Attorney-General.
Cur. adv. vult.
November 16, 1953. Rose C.J.—
The appellant was convicted by an unanimous verdict of the jury ofthe murder of one Egodahettiaratchige Albert Silva. The main pointtaken by learned counsel for the appellant is that there was no, orinsufficient, direction to the jury on the question of grave and suddenprovocation or sudden fight, so that in effect the jury were denied theopportunity of returning a verdict of culpable homicide not amountingto murder on the basis that either one or the other of those exceptionshad been established.
The case for the prosecution was that exeiteident prevailed in"the villageowing to a recent Village Committee Election and that on the day inquestion the accused and a man called Dionis approached the deceased ;that Dionis struck a blow on the deceased with his hand ; and that theaccused delivered one stab blow on the deceased which alighted on theleft side of the chest and penetrated the heart. The injury wasnecessarily fatal. The appellant, who agrees that there was electionexcitement in the village but who attributes the ill-feeling between thedeceased and himself to an episode regarding impersonation which healleges he detected and in which the deceased was implicated, gaveevidence on his own behalf and took up the position that he was setupon by the deceased and two other men and that in the course of thestruggle he grappled with the deceased for the possession of the deceased’sknife and that in the course of that struggle he inadvertently pressed theknife into the body of the deceased man.<•
The learned trial Judge appears himself to have formed the view,which logically speaking is of course quite tenable, that the appropriateverdicts for the jury should be either guilty of murder or not guilty ofany offence, on the ground that if the defence version was accepted infull it would seem to be quite clear that the appellant was acting in selfdefence and had not exceeded his right.
The only reference that the learned trial Judge made to the questionof grave and sudden provocation was at page 27 of his charge where hesaid : “ Teamed Counsel asked you to consider whether the accused actedunder grave and sudden provocation. If you hold that tne circumstancesnarrated by the accused were the circumstances in which the accusedcame to stab the deceased then there is grave and sudden provocation.Why consider that matter ? If the accused acted in the exercise of theright of private defence and if he did not exceed that right, then he isentitled to an acquittal. ”
ROSE C.J".—Chandradasa v. The Queen
441
Tn effect, therefore, the learned Judge is directing the jury that theyshould disregard the possibility of their adopting a middle course on theground that; ,the exception of grave and sudden provocation had beenestablished and that they were limited to the choice of two verdicts only,namely, guilty of murder or not guilty of any offence. Moreover, thereis no reference at all at any stage of the charge to the question asto whether or not the accused should be convicted of culpable homicidenot amounting to murder on the ground that the injuries on the deceasedwere caused in the course of a sudden fight.
Counsel for the appellant contended that, as in so many other murdercases of this type, it is open to the jury to come to the conclusion that thetrue version of what occurred may lie somewhere between the prosecutionversion and the defence version and that in the event of their formingsuoh a view a verdict of culpable homicide not amounting to murderwould be appropriate.
There is a long line of authorities to the effect that questions of suddenfight or grave and sudden provocation should be left to the jury andadequately explained by the learned trial Judge in any case where thefacts, or the necessary inference to be drawn from them, would make itpossible fcr the*jrry reascftiably to form such a verdict.
The mere fact that an appellant himself, or learned counsel on bisbehalf, may contend for a complete acquittal on the ground of self defencedoes not excuse the jury from considering, or a learned trial Judge fromdirecting them upon, the question as to whether the true facts wouldnot necessitate a verdict of culpable homicide not amounting to murder.
A passage from a judgment1 of Moseley S.P. J. is relevant :
“ The learned Judge did in fact put it to the jury that if they wereconvinced beyond reasonable doubt by the evidence of the prosecutionit was clearly their duty to find the appellant guilty of murder, butthat if they believed the defence they should not hesitate to acquithim. No question of culpable homicide not amounting to murder,he said, arose on his defence. It is a fact that no such defence wasput forward by him or on his behalf. In William Hopper 1 2 the defence,as in this case, was that of accident. In that case, however, counselfor the defence indicated that, if that defence failed, he should hopefor a verdict of manslaughter only. But the court expressed its viewthat even if counsel had not contended for a verdict of manslaughter,the Judge was not relieved of the necessity of giving the jury theopportunity of finding that verdict. Moreover, in The King v. BellanaVitanage Edin 3, Howard C.J. in referring to a defence that had notbeen raised nor relied upon at the trial said that that fact was not initself sufficient to relieve the judge of the duty of putting this alter-native to the jury if there was any reasonable basis’ for such a finding inIhe evidence on the record. ”
1The King v. Vidanalage Lanty (1941) 42 N. L. R. at page 319.
211 Or. App. R. 136.
■* (1940) 41 N. L. R. 345.
442
Mai Bcti v. Perera
It is perhaps hardly necessary to refer to other cases in which similarexpressions of opinion have been made, but learned counsel for theappellant did refer us to a number of authorities 1 to the same effect.
I consider that had the jury been invited to consider the applicabilityof either or both the exceptions of sudden fight or grave and suddenprovocation they might well have found, as it was open to them to find,that the accused was not guilty of the offence of murder. As tuey werenot so invited I am of the opinion that the appellant must have thebenefit of the lesser verdict.
It is perhaps significant that when the foreman of the jury war askedby the Clerk of the Court:" Q. Do you find the prisoner guilty of thecharge of murder with which he is indicted ? ” he replied “ Yes ; Jratfive gentlemen of the Jury wish to bring in a rider that mercy shouldbe considered for the prisoner on account of the age of the prisoner. ”
We were informed from the Bar that the appellant was 27 years oldat the time of the commission of the offence. TTia youth, therefore,could hardly have been a compelling reason for the jury’s rider.
It was for these reasons that we set aside the conviction and sentenceand substituted a conviction for culpable homicide not amounting tomurder and imposed a sentence of 10 years rigorous imjSrfsonnfent.
Conviction altered-