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.