003-NLR-NLR-V-79-1-N.-PALANIANDY-and-TWO-OTHERS-Accused-Appellant-and-THE-REPUBLIC-OF-SRI-LANKA.pdf
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N. PaUmiandy and two others r. Republic of Sri Lanka
1976 Present: Tennekoon, C.J., Thamotheram, J. and Sirimane, J.N. PALANIANDY and TWO OTHERS, Accused-Appellant andTHE REPUBLIC OF SRI LANKA. Respondent.
S. C. 147—149/75—M. C., Kandy Case No. 5474, M. C. Gampola,
Case Nn. 25204
Administration of Justice Law—Duty of Judge when he does not
approve of Jury’s verdict Section. 223 (2).
Sections 223(2) of the Administration of Justice Law reads: —
‘ If the Judge does not approve of the verdict returned by theJury, he may direct them to reconsider their verdict, and theverdict given after such reconsideration shall be deemed to bethe true verdict
In the present case the learned trial Judge after the Juryreturned a divided verdict finding the accused not guilty of thevarious counts in the indictment informed them that he did notagree with their verdict and asked them to reconsider theirdecision.
Held; That there was a clear non-direction inasmuch as thelearned trial Judge after requesting the Jury to reconsider theverdict had failed to impress upon them that they were still soleJudges of fact, and ■'that their verdict after reconsideration wouldbe binding on him even if it was the same as the one alreadyreturned.
TENTSTBKOON, C. J.—N. Palaniandy v. Republic of Sri Lanka
45>
A. PPEAL against a conviction from the High Court, Kandy.
M. M. Deen jor the accused-appellants.
I. F. B. Wickramanayake, Acting Attorney-General, withD. S. Wijesinghe for the State
Cur. adv. vult.
June 2, 1976. Tennev:oon, C. J.—
In this case there were 6 accused indicted before the HighCourt of Kandy. The indictment contained 11 charges.
Count 1 was a charge of unlawful assembly against all theaccused. (Section 140 of the Penal Code).
Count 2 was against all the accused for robbery committedin the prosecution of the common object of theunlawful assembly. (Section 146 read withSection 380 of the Penal Code).
Count 3 was against all the accused for murder of oneMurugan committed in the prosecution of thecummon object of the unlawful assembly (Section146 read with section 296 of the Penal Code).
Count 4 was against all the accused for murder of oneSubramaniam committed in the prosecution of thecommon object of the unlawful assembly. (Section146 read with section 296 of the Penal Code) .
Count 5 was against all the accused for the offence ofgrievous hurt caused to one Selvaratnam by the2nd accused. (Section 146 read with section 316 ofthe Penal Code).
Count 6 was against all the accused for the voluntarycausing of hurt to one Muthuratu by the 2nd, 3rd,and 4th accused. (Section 146 read with section282 of the Penal Code).
Count 7 was for robbery against all the accused. (Section380 read with Section 32 of the Penal Code).
Count 8 was for murder of Murugan, against all the accused.
Section 296 read with section 32 of the PenalCode).
Count 9 was for murder of Subramaniam against all theaccused. (Section 296 read with section 32 of thePenal Code).
Count 10 Was against 2nd, 3rd and 4th accused forvoluntarily causing hurt in committing robbery.(Section 382 read with section 32 of the PenalCode).
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TEjNfNKKOON, C. J.—N. Palaniandy v. Republic of Sri Lanka
Count 11 ‘was against the 2nd accused for voluntarilycausing grievous hurt to one Selvaratnam. (Section316 of the Penal Code).
After a lengthy trial the learned trial Judge summend-up to theJury. The Jury returned within tj hours. The record thenreads as follows : —
'■ Jury returns at 2.05 p m.Court resumes.
The Jury is asked as to whether their verdict is unanimous or divided.The Foreman of the Jury states. “Our verdict is a 5 to 2 dividedverdict. ”
“ By our 5 to 2 verdict
of the indictment.
“ By our 5 to 2 verdict
of the indictment.
“ By our 5 to 2 verdict
of the indictment.
“ By our 5 to 2 verdict
of the indictment.
we find thesewe find thesewe find thesewe find these
accused not guilty onaccused not guilty onaccused not guilty onaccused not guilty on
“ By our 5 to 2 verdict we find the 2nd accused not guilty on5 of the indictment.
count
count
count
count
count
“By our 5 to 2 verdict we find the 2nd, 3rd and 4th accused not;guilty on count 6 of the indictment.
“ By our 5 to 2 verdict we find that all these accused are not guilty oncount 7 of the indictment.
“ By our 5 to 2 verdict we find that all these accused are not guilty oncount 8 of the indictment.
“ By our 5 to 2 verdict we find that all these accused are not guilty.on count. 9 of the indictment.
“ By our 5 to 2 verdict we find the 2nd, 3rd and 4th accused notguilty on count 10 of the indicmtent.
“ By our 5 to 2 verdict we find the 2nd accused not guilty on count11 of the indictment.
The Jurors are told that I do not agree with their verdict and they
are asked to reconsider their decision.
The Jury retires to the Jury Room at 2.11 p.m. to reconsider theirdecision.
Court adjourned till then.
E. F. de Zilva,High Court Judge,Kandy.
2.11.p.m.
10.3.75
Jury returns at 3.30 p.m.
Court resumed.
The Jury is asked whether their verdict is a unanimous verdict or adivided verdict.
The Foreman states. “ Our verdict is a unanimous verdict ”.
“ By our unanimous verdict we find all these accused not guilty oncount 1 of the indictment.
“ By our unanimous verdict we find all these accused not guilty oncount 2 of the indictment.
“ By our unanimous verdict we find all these accused not guilty oncount 3 of the indictment.
“ By our unanimous verdict we find all these accused not guilty oncount 4 of the indictment.
TENNT5KOOX. C. J. -N. Palaniandy v. Republic af Sri Lanka
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“ By our unanimous verdict we find that the 2nd accused riot guilty oncount 5 of the indictment.
"By our unanimous verdict we find the 2nd. 3rd and 4th accusednot guilty on count 6 of the indictment.
“By our unanimous verdict we find the 2nd, 3rd and 4th accusedguilty on count 7 of the indictment.
“ By our unanimous verdict we find the 2nd, 3rd and 4th accusedguilty on count 8 of the indictment.
“ By our unanimous verdict we find the 2nd, 3rd and 4fh accusedguilty on count 9 of the indictment.
“By our unanimous verdict we find the 2nd, 3rd and 4th accusedguilty on count 10 of the indictment.
“By our unanimous verdict we find 2nd accused guilty on count 11of the indictment.
Verdict signed by Foreman of Jury.
Accused informed of the verdict.
State Counsel states that the 2nd, 3rd and 4th accused have no pre-vious convictions. ”
I have added emphasis to those parts of the above as arerelevant to what follows.
The court sentenced the 2nd. 3rd and 4th accused on count 7to 8 years rigorous imprisonment, and in respect of count 11the 2nd accused was sentenced 3 years rigorous imprisonment.The sentences to run concurrently with the sentence on count10. The 2nd, 3rd and 4th accused were also sentenced to deathin respect of the verdicts on counts 8 and 9.
The 2nd, 3rd and 4th accused have taken an appeal to thisCourt. However, although the appeal was not ready for hearing,the learned Acting Attorney-General appeared before us inperson and mentioned that this case is one in which a miscarriageof justice had occured, as there had been a misuse or improperattention to the case of Appuhamy vs. The Queen, 74 N.L.R. 536in which the Supreme Court considered a similar situation whicharose under section 248 (2) of the old Criminal Procedure Code.In that case upon the Jury returing a verdict of ‘ not guilty thetrial Judge said : ‘‘I do not approve of the verdict, will youplease go and consider it again-’’ The Jury retired and comeback with a verdict of ‘guilty’. Sirimane J. in the course ofhis judgment in that case said :
“ Section 248 undoubtedly gives the judge very widepowers but without in any way suggesting that there shouldbe any limitations or fetters placed on the powers granted tothe judge by the plain words in the section, yet, having regardto the context in which the section appears, we would like toobserve, that the section should be very sparingly usedgenerally in those cases where there is some ambiguity in
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TENNEKOON, C. J.- N. Palaniandy v. Republic of Sri Lanka
the verdict or an apparent misunderstanding of the sum-mingup (see Henry Crisp, 7 Criminal Appeal Reports, 273)or where the verdict on the face of it shows that the juryhas misapplied the law to the fact proved, or again where theverdict is incomplete or uncertain. When the verdict isbased on a pure finding of fact a reconsideration by theJury should be ordered only when it is quite clear that itis unreasonable or perverse. When two views on the factsare possible, and the view taken by the Jury is differentfrom that taken by the judge, it would be improper to usethe section in such a manner as to subsitute the judge’s viewof the facts for that of the jury. That would be an encroach-ment on the duties of the jury set out in section 245, andwould render meaningless the familiar direction given tojuries in all cases (and this one was no exception) to remem-ber that they and they alone are the sole judges of fact. ”
Later in the judgment he added :
“When a trial Judge uses section 248(2) we think it isvery desirable that he should give further directions to thejury and specifically inform them that they are still thejudges of fact and perfectly free to bring the same verdictafter reconsideration if they remained of the same view,and further that the second verdict will be deemed to bethe true verdict which would be binding on the Judge aswell. ”
In the present case the learned Acting .Attorney-General point-ed out that the trial Judge after requesting the jury to reconsiderthe verdict failed, as did the Judge in the Appuhamy’s case toimpress upon the Jury that they were still the sole Judges of factand that their verdict after reconsideration whatever it was andeven if it was the same as one already relurned would be bind-ing on him. This was a clear non-direction and we do not thinkthat the convictions and sentences can be permitted to stand inthis case.
The learned Acting Attorney-Genera] indicated to us that thecase was at all times a week one and the position has not beenimproved by this abortive trial; he further submitted that nouseful purpose would be served by sending the case back forretrial. In the face of this personal statement from the ActingAttorney-General himself, we do not think that an order forretrial should be made in this case. The convictions are quashed,and the appellants are acquitted.
Thamotheram, J.—I agreeSir ima ne, J.—I agree.
Convictions quashed