REPUBLIC OF SRI LANKA
COURT OF APPEAL.
DR. GUNAWARDENA J. (P/CA)
J.A. N. DE SILVA, J.
C. A. 102/94
C. AMPARA 424/87MAY 15,1996
Criminal Procedure Code – Murder – Conviction – S. 209 (2), S. 234 and S.234(1) – Failure to direct the Jury on possible Verdicts – Fatal – Requirementthat the Registrar should ask the Jurors whether they are Unanimous -Imperative.
Comprehensive direction on possible verdicts is required under thelaw.
It is an imperative requirement – S. 234(1) Criminal Procedure Code -that the Registrar of the High Court should ask the Jurors whether they areunanimous. Failure to follow the aforesaid procedures set down in law arefatal to the Conviction.
AN APPEAL from the High Court of Ampara.
Case referred to:
Rathinam v. Queen 71 NLR 275.
Dr. Ranjith Fernando with Ms. Yasanthi Kumari for Accused-Appellant.
C. R. de Silva DSG for Attorney General.
Cur. adv. vult.
DR. GUNAWARDENA J. (P/CA)
The Accused-Appellant along with two others were indicted in theHigh Court of Ampara with having committed the murder of one MichaelFernando on 15.10.1981, an offence punishable under Section 296 ofthe Penal Code. After trial, the jury had convicted the Accused-Appellanton the said charge and Accused had been sentenced to death. Thisappeal is from the said conviction and sentence.
The Counsel for the Appellant submitted that there is a fatalirregularity in the procedure adopted at the trial, in that, the learnedtrial Judge has failed to direct the jury on the possible verdicts. Hecited the Section 209 (2) of the Criminal Procedure Code where it isstated that,
“The verdict returned shall be unanimous or by a majority of notless than five to two.”
He referred to the case of Rathinam v. The Queeri''1 wherein it isstated as follows:
“(1) at the conclusion of his summing-up the trial Judge addressedthe jury asfollows:-
“Try to be unanimous in your decision; but if you cannot beunanimous, at least bring in a 5 to 2 verdict. Any other verdict is notacceptable in law. You may now retire and consider your verdict.”
Held, that direction, such as it was, was inadequate. The jury shouldhave been further informed as to what would be the position if theywere finally divided 4 to 3.”
The Counsel submitted that even such a direction was held to beinadequate. Thus this shows that comprehensive direction on possibleverdicts is required under the law.
The Counsel for the State conceded that the summing up of thetrial Judge does not contain any directions on the possible verdicts.
We note further that the trial Judge himself has stated that thesumming up was written out, before it was read out to the jury, as therewere complaints about difficulties in taking down the summing up. Thus,we are assured that what is on record is an accurate copy of thedirections given to the jury by the learned trial Judge.
The learned Counsel for the Appellant further contended that underSection 234 of the Criminal Procedure Code it is an imperativerequirement that the Registrar of the High Court should have asked thejurors whether they are unanimous.
Section 234(1) of the Criminal Procedure Code state as follows:-
“when the jury are ready to give their verdict and are all present theRegistrar shall ask the foreman if they are unanimous.”
Upon a careful examination of the record we are unable to find thatsuch a question had been asked by the Registrar from the foreman ofthe jury as required by law. Thus, there is no evidence to show thatinfact the Registrar did ask the foreman of the jury whether they areunanimous or not. This assumes special significance in view of thefact that no directions have been given in regard to the possible verdicts.
We are of the view that the failure to follow the aforesaid proceduresset down in law are fatal to the conviction and therefore it is illegal toallow the verdict to stand. We hereby set aside the said verdict and thesentence of death imposed on the Accused-Appellant. We hereby directthat a fresh trial be held in this case, as early as possible, in view ofthe fact that the offence had been committed in 1961.
A.N. DE SILVA, J. -1 agree.
Fresh Trial Ordered.