ROSE C.J.—Peer is Singho «. The Queen
[Court of Criminal Appeal]
1953 Present: Rose C.J. (President), H. A. de Silva J. andK. D. de Silva J.PEERIS SINGHO et al., Appellants, and THE QUEEN, RespondentAppeals 62-64, with Applications 100-102S. G. 32—M. C. Kanadvlla, 1,708
Court of Criminal Appeal—Unreasonable verdict—Certificate of trial Judge—Weightwhich should be attached to it—Court of Criminal Appeal Ordinance, No. 23of 1938, as. 4 (b), 5 (I).
Although the certificate of the trial Judge that a case is fit for appeal is noground in itself for setting aside a verdict, it is, however, an element whichthe Court of Criminal Appeal will take into consideration together with otherelements in deciding whether or not a particular verdict should stand.
The Court of Criminal Appeal may, though rarely, decide that a verdictis unreasonable if upon a consideration of the case as a whole it is felt that theverdict is not satisfactory. It is not necessary for the Court to single out anyparticular item upon which it bases its view.
PPEAT.S, with applications for leave to appeal, against threeconvictions in a trial before the Supreme Court.
E. Mackenzie Pereira, for the accused appellants.
G. P. A. Silva, Crown Counsel, with N. T. D. Kanekeratne, CrownCounsel, for the Crown.
Cur. adv. vult.
November 3, 1953. Rose C.J.—
In this case the three appellants were convicted of the murder of aman called Babasingho. It is one of those somewhat difficult cases inwhich we are invited to say that the verdict of the jury was unreasonable.There is no doubt from a perusal of the learned trial Judge’s charge thathe himself had formed a view upon the evidence that was favourable to theappellants. Moreover, he has himself certified that this is a fit case forappeal. As, of course, has been said in very many cases, the fact that alearned trial Judge himself might have come to a different conclusionfrom that of the jury is no ground in itself for setting aside a verdict.It is, however, ag. element which this Court will take into considerationtogether with other elements in deciding whether or not a particularverdict should stand.
Now, on the facts of this case, the case for the prosecution depends insubstance upon the evidence of a single witness, an alleged pye-witness,a woman called Leelawathie, who was the daughter of the deceased man.
2*J. N B 30402 (10/53)
BOSE C.J.—Peeris Singho v. The Queen
She states that upon the evening of the 2nd of March, 1953, the threeappellants who are related to each other, the 1st appellant being thefather of the 2nd and the 3rd being a son-in-law of the 1st, accosted herand her father on the road in the vicinity of their house, made a jointattack upon her father and removed him into the compound of theirhouse where he was subsequently done to death with a katty. She saysthat she saw these events by means of an electric torch she had in herhand and that she then returned to her house and in the course of thenight she says that she informed her husband and the Village Headmanof the complicity of these appellants in these events.
Now, in considering this matter, very strong criticisms have beendirected against the witness Leelawathie and as to why we should saythat her evidence should not have been accepted by the jury. First it issaid that her evidence is belated. The episode in question took place at8 or 8.30 p.m. on the evening of the 2nd of March and according to theevidence which it is suggested we must accept apart from that of Leela-wathie herself, the first statement that she made to anyone in authoritywas at 9.45 a.m. on the following morning, the 3rd of March, when thePolice came to her house. The Village Headman denies that she made astatement to him that night and he was called as a witness for the prose-oution. The question of course whether a statement of aptness is belatedand whether therefore it should be rejected upon that ground is eminentlyone for the consideration of a jury. We do not suggest that in this caseor in any case a matter like that should be decisive in coming to a con-clusion on the question of whether a jury’s verdict is unreasonable, butit is of course an element which may be taken into consideration withother elements in the case.
The second point why it is suggested that this woman’s evidence isunlikely to be true is that she puts the beginning of the contest in theroad. It appears that the spot on the road which she indicated to thePolice as being where these events began is some 88 feet from the spotwhere the unfortunate deceased man was subsequently found fallen,that is according to the evidence of the Police which has not been chal-lenged in this case. The defence case is that the episode began in their(the appellants’) house and the distance from where the episode beganin their house to where they say the struggle concluded is only a matterof some 30 feet. Now, Counsel for the appellant points out that one wouldhave expected, if there had been anything in the nature of a scuffle or astruggle between these men from the road to this point in the compound88 feet away, that there would have been some evidence of marks on theground or something of that sort which might tend to corroborate thefact that the struggle or episode had taken place over such a considerablearea. The Police Sergeant who made investigations into this matterstated, and apparently that was not challenged, that the only bloodmarks that he found were at the point in the compound where the deceasedman was found fallen and that he found no other marks either in the houseor in the compound or in the road, which led him to conclude that any-thing untoward had occurred there. We then have the further relativelyminor critibism which relates to the medical evidence. The medicalevidence is that the only injuries found upon the deceased man were
ROSE C.J.—Peeris Singho v. The Queen
three injuries, two on the head and one on the shoulder, the two on thehead being necessarily fatal, and that they were all caused with a cuttinginstrument such as a katty. There is no evidenoe of any contusions ormurks such as might have been expected to be caused by a club or anyweapon of that kind. Now, Leelawathie’s evidence is that upon the roadthis episode began with a series of club blows and that it was only at alater stage that the 3rd appellant handed the katty to the 1st appellantwho then inflicted the fatal injuries.
We have then, before coming to the evidence on the appellants’ side,two further matters which might have a slight bearing on this matter.We have first the fact that the deceased man had, according to themedical evidence, been taking alcoholic drink shortly before this incident,that is to say, the stomach contents still contained traces of alcohol.We have next the fact that, according to the Village Headman, thedeceased man was known to be a man of violent character in the village.He was also a reconvicted criminal and was apparently a powerfullybuilt man. Evidence of good character was led on behalf of the threeappellants which was not in any way challenged by the prosecution.We have also the fact that there was a motive, although as learned GrownCounsel correctly points out, that motive was a double edged motive,annoyance over a land dispute, which might of course have operated as amotive for an attack by the deceased man upon the appellants or anattack by the appellants upon the deceased man.
Now, the story of the appellants as told by the 2nd appellant, theson of the 1st appellant, who was the only one of the three to give evidence,was that at 8 or 8.30 p.m. that evening Babasingho accompanied byanother man, Punchi Banda, who as soon as the fight began ran awayand took no further part in the proceedings, came in an aggressive moodto their house and made an attack upon the 1st appellant, the 2ndappellant’s father. He says that the attack was made with a club, thatthe father who was lying down at the time got up and struggled for theclub, that the two men grappled with each other, that he and the 3rdappellant, the son-in-law, went to the assistance of the father and thatbeing unable to separate them a blow was struck, or more than one blowwith a katty as a result of which this man Babasingho met with hisdeath.
Learned Crown Counsel says to us, and there is reason in his obser-vations, that all these are eminently matters for a jury and that this isnot a class of case in which we should interfere. We have given the mattervery anxious consideration and we are fully alive to the evils that mayflow from this Court too freely intervening in matters which have beendecided by a jury and in which there was, technically at any rate, materialupon which they could properly have come to their conclusion. Wefeel, however, tha'3 in all the circumstances of the case and paying regardto the learned trial Judge’s own view of the matter, that this is one ofthose rare cases in which we should interfere. I may perhaps repeatwhat was said by Mr. Justice Humphreys, in the case of Rex v. FrederickBarnes “Those cases tend to show that it is often, as we think it is in1 28 Criminal Appeal Reports 144.
Sivasambu v. Kaihiresar Ambagar
this case, difficult to place upon a single legal ground the reason whywe have come to the conclusion at which we have in fact arrived, thatthe verdict of the jury in this case was not satisfactory ”. We preferin this ease not to single out any particular item upon which we baseour view. We say that upon a consideration of the case as a whole andof the matters which have been put before us by learned Counsel wefeel that the verdict of the jury is not satisfactory and that upon theevidence at their disposal it must be held to be unreasonable within themeaning of the appropriate section of the Court of Criminal AppealOrdinance. That being so, we think that the convictions cannot standand the appeals must he allowed and the appellants acquitted.