106-NLR-NLR-V-53-MURUGESU-Appellant-and-THE-KING-Respondent.pdf
Murugesu v. The King
469
[Court of Criminal Appeal]
1951 Present : Nagalingam S.P.J. (President), Gratlaen J. andGunasekara J.MURUGESU, Appellant, and THE KING, Respondent.
Appeal 64 of 1951, with Application 93. S. C. 4—M. C. Kayts, 1,515
Charge of murder—Plea of self defence—Summing-up—Duty of Judge to give adequatedirections on “ provocation " and " sudden fight ”—Penal Code, s. 294,Exceptions 1 and 4.
In a prosecution for murder, the accused pleaded that he had acted in self-defence, and the jury were adequately directed by the presiding Judge on thatissue.
Held, however, that, as the mitigatory pleas of “ grave and suddenprovocation ” and of “ sudden fight ” would also have arisen for the jury’sconsideration in a possible view which they might have taken of the evidence,the presiding Judge should have given the jury adequate direction on thataspect of the case as well.
A. PPEAii, with application for leave to appeal, against a convictionin a trial before the Supreme Court.
M. M. Kumarakulaaingham with T. Ganeshalingam and S. Sharvananda(assigned) for the- accused appellant.
Boyd Jayasuriya, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
470
GRATIAEN J.—Murugesu v. The King
November 15, 1951. Gratiabn J.—
This is an appeal from a conviction for the murder of a man namedAiyan Kandiah alias Singarayar.
The appellant and Kandiah were the owners of rival toddy booths,and it is not in dispute that some days before the 6th June, 1951, they hadquarrelled over a seemingly trivial dispute concerning the price of toddy.The case for the prosecution is that about mid-day on 6th June, 1951,the accused attacked Kandiah with a “ toddy-pole ” when the latterwas passing his booth. Kandiah was removed to the Jaffna -Hospitalat 1.15 p.m., and he died there about an hour later. Dr. Vanniasekaram.who conducted the post-mortem| examination on his body has testifiedto the deceased having sustained a single injury on his head. The skullwas fractured and the injury was necessarily fatal.
The appellant gave evidence on his pwn behalf at the trial. He didnot deny that it was he who had dealt the blow in consequence of whichKandiah came by his death. His version of what took place is, however,entirely different from that relied on by the Crown. He states thatwhen he was about to enter his toddy booth he was waylaid by Kandiahand a man called Nagamany each of whom assaulted him with a club.He claims that in these circumstances he acted justifiably in self-defence,and that he was entitled to an acquittal of the charge against him.
The appellant ran away from the scene after attacking Kandiah,and the evidence establishes that shortly afterwards he went to the VillageHeadman who gave him a letter reporting the incident to the Inspectorof Police. In the meantime the Inspector had arrived at the spot. Whenthe appellant returned to the scene and discovered that the Inspectorhad already arrived there he attempted tc> run away. He was howeverpromptly arrested. A short while afterwards he too was examined bythe doctor who speaks to 6 separate contusions on the appellant’s shoulderblades and left forearm. These injuries were non-grievous, but in theopinion of the doctor they must have been caused by two separate weaponswhich were in all probability clubs.
The defence relied strongly on the evidence of these injuries assupporting the appellant’s version of the incident. The crown, on theother hand, suggested that the injuries had been inflicted by a friendlyhand during the comparatively short interval between the appellant’shurried escape after attacking Kandiah and the time of his ultimatearrest.
Having regard to the manner in which the case was conducted at thetrial, a great deal of the learned Judge’s summing-up was confined tomatters relating to the appellant’s special defence that he had acted inthe exercise of the right of self-defence. In our opinion the jury receivedadequate directions on the law applicable to this defence and on the issuesof fact arising for consideration on this part of the ease.
Learned' Counsel for the appellant complains, however, that the jurywere not adequately directed on certain other defences which, upon theevidence, also called for the consideration of the jury—namely, the issuesof “ grave and sudden provocation ” and of “ sudden fight- ”.
trHATIAEN J.—Mvrugesu v. The King
471
We are of the opinion, and we understood learned Crown Counsel toagree, that the issues of “ grave and sudden provocation " andalternatively of “ sudden fight ” were matters which would necessarilyarise for the consideration of the jury if they believed that Kandiah,either alone or with someone else, had in fact assaulted the appellant,even if they rejected the rest of the appellant’s version wherein he claimedto have struck Kandiah in self-defence. It was possible, for instance,to take the view that it was Kandiah who first attacked the appellant,whereupon the appellant retaliated—not in self defence but under theinfluence of the provocation received—by hitting Kandiah with a“ tapping pole In that possible view of the facts, the question arosewhether, in the opinion of the jury, the accused’s offence was reducedto one of culpable homicide not amounting to murder within the meaningof Exception 1 of section 294 of the Penal Code. Alternatively, inanother possible view of the facts, the application of Exception 4 arosefor consideration.
Upon an examination of the summing-up as a whole, we think itunlikely that when the jury finally retired to consider their verdict,they sufficiently appreciated that, if the plea of self-defence was rejectedby them, the issues of “ provocation ” and “ sudden fight ” still remainedfor their consideration. Even if this matter was appreciated by the jury,we do not think that they had received adequate directions as to thelaw relating to “ provocation ” and “ sudden fight The only referenceto the law on these issues appears in a single sentence at a comparativelyearly stage of the summing-up, where the learned Judge said: —
“ Gentlemen of the Jury, even if this man was not defending hunseltbut if there was r,rovocation by the deceased and the other man orthere was a sudden fight, then his offence would not be murder butculpable homicide not amounting to murder. ”
We do not regard this sentence as containing a sufficient direction as tothe law or the circumstances in which the issues of “ provocation ” and“ sudden fight ” would properly arise for consideration. It is importantto note that at the conclusion of the summing-up which was in otherrespects entirely adequate (and, indeed, favourable to the defence) thelearned Judge summarised for the.benefit of the jury the various issueson which the verdict must ultimately depend: —
“ Gentlemen of the Jury ”, he said, ” if you believe that the deceasedand Nagamany lay in wait and assaulted the accused, then you willask yourselves the further question whether in these circumstancesyou can reasonably say that he has exceeded his right of private defence.I have answered that question. In my opinion he was within his right.If he was not attacked, then you will ask yourselves was it his handthat caused the fatal injury ? When he dealt that blow, did he havea murderous intention ? If you have no doubt that it was his handthat caused the fatal injury then proceed to ask yourselves whetheryou can hold that he had a murderous intention. If you come to theconclusion that he had a murderous intention then his offence wouldbe murder ; but if you think that he had no murderous intention,then proceed to consider if he had the knowledge, that his act waslikely to cause death or bodily injury sufficient in the ordinary course
472
VetupiUai v. Pulendra
of nature to cause' death. If he had the knowledge then his offencewould be culpable homicide not amounting to murder. If, however,even that knowledge has not been established by the evidence, he wouldbe guilty of voluntarily causing grievous hurt. ”
Having regard to the specific issues which were so prominently placedbefore the jury at this stage of the trial, it is in our opinion impossibleto state with certainty that, when considering their verdict, they had alsoreminded themselves of the very brief and inadequate direction thatthey should also consider the issue of “ provocation ” or of “ suddenfight ”.
Although the jury’s verdict clearly involves, a rejection of the plea ofself-defence, it does not necessarily follow that they had rejected thatpart of the appellant’s version which asserted that it was Kandiah whofirst attacked him. In the result, we cannot say that' the jury might notreasonably, if properly directed, have returned a verdict that the appellantwas guilty only of culpable homicide not amounting to murder on theground of “ provocation ”, or, alternatively, of “ sudden fight Weaccordingly quash the conviction for murder and substitute in its placea conviction for culpable homicide not amounting to murder. For thisoffence we sentence the appellant to undergo a sentence of eight years'rigorous imprisonment.
Conviction altered.