105-NLR-NLR-V-58-REGINA-v.-PERIYASAMY-and-another.pdf
[In The Court of Criminal Appeal]
1957 Present :Basnayake C.J. (President), Pulle J., and Sinnefamby J.REGINA v. PERIYASAMY and anotherAppeals 86 axd 87 of 1956, with Applications 116 and 117S. <7. 4—M. C. Kalutara, 27552
Charge of murder—Verdict of attempt to commit culpable homicide not amounting tomurder—Legality—Crimitial Procedure Code, ss. 1S3 (I), 133a—Penal Code,ss. 204, 300, 301, 490.
A person charged with murder can, if the evidcnco warrants it, bo convictedof attempt to commit murder or of attempt to commit culpable homicide notamounting to murder within the moaning of section 300 or section 301respectively of tho Penal Code although ho was not charged with such offences.
-Al-PPEALS, with applications for leave to appeal, against two convic-tions in a trial before the Supreme Court.
Colvin B. de Silva, with P. B. Tampoe and D. Vilkanage, for Accused-Appellants.
V. T. 1'Iiamotheram, Senior Crown Counsel, for Attorney-General.
Cur. ado. vull.
March 25, 1957. Basnayake, C.J.—
The accused-appellants Periyasamy son of MuttuWeeran and Singaramson of Muttu ICaruppan were indicted on a charge of murder of oneVella Ivutti son of Kutt-i Thevar on 20th November 1955. The firstappellant was by a unanimous verdict found guilty of culpable homicidenot amounting to murder and sentenced to undergo a term of 10 years’rigorous imprisonment, while the second appellant was found guiltyof attempted culpable homicide not amounting to murder by a verdictof 5 to 2 and sentenced to undergo a term of 5 years’ rigorous imprison-ment-.
Shortly the material facts are as follows. The deceased and thefirst appellant were Indian immigrant labourers resident on CuIIodenEstate in the Kalutara District. The second appellant was a kanganyon the same estate. On the day of the tragedy towards nightfall therewas a quarrel in which the participants -were Ramalingam, the secondappellant, and one Pandian, In the course of it Pandian attackedRamalingam and injured him. The deceased who lived in a line roomnearby was asleep at' the time. Being disturbed by the quarrel ho camoout of his room. Seeing the second appellant, he advised him thus :
“ We need not fight, you had better get to your room.” Then the first
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2J. N. B 65337-1.503 (6/57)
appellant came on the scene and dealt the deceased a blow on his headwith a black rod, saying : “ IVho are you to question us ? As the deceas-ed staggered on receiving the blow the second appellant stabbed thedeceased in his abdominal region and held him by his neck' and pushedhim. The deceased fell in the drain nearby. The appellants then ranaway and the deceased was removed to hospital. The deceased’s deathwas caused by the blow given by the first appellant which caused afracture of his skull and laceration of his brain. The stab injuries weresufficient in the ordinary course of nature to cause death. They damagedthe deceased’s right kidney and the intestines. The kidney had to beremoved and the intestines to be sutured.
The evidence is that the second appellant stabbed with a long-handledtapping knife ; but one witness says that he pushed the deceased with astick or club and did not use a knife. The District Medical Officer whoheld the post-mortem examination is of opinion that a short pointedknife with a cutting edge had been used and not a tapping knife whichis a bifurcated weapon.
The first appellant did not give evidence but the second did. Hodenied that he stabbed the deceased or that he even saw him that night.He said it was at the hospital where ho had gone to see some personswho were injured that evening that he heard that lie had been accusedof stabbing the deceased.
The Crown which had opened its case on the footing of a commonintention to commit" murder on the part of the two appellants submitted,at the end of the trial, that there was no evidence of common intentionand invited the jury to consider the act of the first appellant as indepen-dent of that of the second. The learned Commissioner directed theJury that they were free to return a verdict of attempted murder againstthe second appellant if they accepted the evidence that he stabbed the'deceased. He also directed them in view of the medical evidence thatdeath resulted from the head injury and not the injuries caused by thesecond ajipcllant and that he could not be found guilty of murder, butthat it was open to them to return a verdict of attempted murder,attempted culpable homicide not amounting to murder, or voluntarilycausing grievous hurt with an instrument for cutting or stabbing.
Learned counsel for the appellants did not question the correctnessof the conviction of the first appellant but pressed the appeal of thesecond on the ground that the verdict was unreasonable.
It was submitted to us as a matter of law that the second appellanthaving stood his trial on a charge of murder and not on a charge undersection 300 of the Penal Code, was entitled to an acquittal and that itwas not open to the trial Judge to direct the Jury to find a verdict eitherunder section 300 or section 301 of the Code. Although the marginalnote to section 300 reads ‘‘'Attempt to murder ”, it was contended thatthat section creates an offence defined by its own limits and that it doeshot penalise the attempt to commit the offence defined in the first fourparagraphs of section 291- On this jaremiss it was argued that sectionJS3A of the Criminal Procedure Code which provides that a personcharged with an offence can be convicted of an attempt to commit that
offence although not charged with such attempt has no application.In regard to section IS3A it was further argued that its applicability wasrestricted to the class of attempts covered by section 490 of the PenalCode and that there was no room to call section 490 in aid where theoffence attempted is murder. In regard to the latter submission reliancewas placed on the judgment of Straight J. in Queen-Empress v. Niddah1where he held that section 511 of the Indian Penal Code, which corres-ponds to section 490 of our Code, docs not apply to attempts to commitmurder which are fully and exclusively provided for by section 307. Thelearned Judge declined to follow an earlier judgment of the Bombay'High Court in Regina v. Cassidy 2 in which a conviction under section 307was set aside in appeal and a conviction under sections 299 and 300 readwith section 511 was substituted therefor.
The precise point raised on this appeal did not fall to be determinedin the Indian cases referred to, for in neither of them was the chargeone of murder. Having regard to the charge in the indictment and theevidence placed before the jury in support of that charge it Avas open,in our opinion, to the Judge to direct the jury to find a verdict undersection 300 or section 301 if the ingredients constituting either offenceuere proved.
The prosecution set out to establish as against the second appellantthe following facts :—
that he “ caused ” two injuries of Avhieh the one on the head of the
deceased inflicted by Periyasamy Avas the immediate cause ofdeath—section 32 of the Penal Code.
that he had the requisite murderous intention..
Under (1) aboAre the prosecution Avas able to proA'c that he causedonly one injury, namely the injury to the abdomen which did not hoAveA'erresult in death. Under (2) the prosecution Avas able to prove that thesecond appellant only had the knoAvledge that by cutting the deceasedhe Avas likely to cause his death. What Avas eventually proA-ed fellAvithin the larger area of facts Avhieh AA'ere necessary to establish thecharge in the indictment. Had the jury held under (2) that he had theintention to cause grieA'ous hurt a conviction under section 317 wouldhave been beyond question.
Docs it make any difference to the propriety of the conviction thatthey held that the second appellant kncAv at the time he cut the deceasedthat his act Avas likely to result in death? I see none. Both, in ouropinion, are coA'ered by section 1S3 (1) of the Criminal Procedure Code.
The argument that the constituent elements of the offence madepunishable under section 300 must be regarded independently of section294 cannot be supported because section 300 explicitly refers to "murder”and the only place Avhere one can look for a definition of that Avord.issection 294. For the dbo%'e reasons avc dismiss the appeals of both theappellants but direct that their respcctiA'o sentences should commenceto run from 8th October 195G.
Appeals dismissed.
1 14 Allahabad 3S.
* 4 Bombay H. C. R. 17.