130-NLR-NLR-V-57-REGINA-v-Y.M-.DHARMADASA-BANDARA.pdf
[Is the Court of Criminal Appeal]
1954 Present: Nagalingam, A.G.J. (President), Pulle, J., and Swan, J.REGINA v. Y. 31. DHAR3IADASA BANDARAAppeal 78, with Application 131, of 1953S. C. i—-V. O. llalnapura, 33,311
Charge of murder—Circumstantial evidence—JVo evidence of use of lethal weapon—
Inference of intention requisite to constitute offence of murder.
Tho accused was convicted of murder. The verdict of t-lio jury implied thatthe death of the deceased was caused by the accused. According to the evidence,however, which was purely circumstantial, thcro were no signs of tho use of alethal weapon.
Held, that in the circumstances tho verdict should bo altered to or.o ofvoluntarily causing grievous hurt.
jA-PPEAD with application for leave to appeal, against a convictionin a trial before the Supreme Court.
A. B. Perera, with J. G. Tharairatnam and Austin Jayasuriya (assigned),for the Accused-Appellant.
Ananda Pereira, Crown Counsel, for the Attornej'-General.
Cur. adv. vuU.
February 1, 1954. Pclle, J.—.
The appellant by a verdict of five to two was convicted on the chargethat he did on or about the 15th November, 1952, commit murder bycausing the death of one Welikala irudiyanselage Danawardena Ban-dara and was sentenced to death. The evidence against him was purelycircumstantial and the principal submission on his behalf which we haveto consider is that there was no evidence on which the jury could properlyfind that the deceased died of violence at the hands of the appellant-.
The deceased and the appellant were related to each other as cousinsand had since 3Iay, 1952, been jointly working a rubber land as sub-lessees.They lived in a hut on this land which had a verandah and one room.On the evening of the 21st November, 1952, the body of the deceased wasdug out of this room. The information which led to the discovery of thebody had been given by the appellant to one J. G. A. Weerakoon on the20th November and on the following day he communicated that
information to the Police. But for a loin cloth the body was naked. Theknees were drawn up to the chest and tied with a rope one end of which wasdrawn round the neck. The body was in an advanced state of deedmposi-t ion. Two post-mortem examinations were held one on the 23rd Novem-ber by the District Medical Officer, Kahawatte, and the other on the 24thNovember by the Assistant Judicial Medical Officer, Colombo. Neitherof the medical officers could state what the cause of death was. Therewere no signs of any external ante-mortem injuries. The lungs haddecomposed, the heart dried up and the brain had melted into pulp. Thecondition of these organs precluded the expression of any opinion as towhether the deceased was asphyxiated or not. On the* other hand theappellant had numerous linear abrasions on his left arm and left side ofchest which might have been caused on the date of the alleged murder.
The inconclusive character of the medical evidence was strongly reliedon at the argument in appeal to show that there was no case of any kindto go to the jury. The question, therefore, has to be considered whetherthe rest of the evidence which was not met by anj' evidence called for thedefence was sufficient to entitle the jury to find that the deceased died as aresult of violence inflicted by tlic appellant.
The deceased was an able bodied young man who was about 22 yearsold. He and the appellant, who to all appearances were friendly, usedto tap tlie l ubber trees on a land called Nebelligodelewatte. The driedlatex used to be delivered to a rubber maker and thereafter the sheetssold to a trader in a neighbouring village. There was nothing to suggestt lint the deceased was otherwise than in normal health on the day of hisdeatli which on the appellant’s statement to Weerakoon occurred ontlie J fit li November. The deceased was last seen alive about noon-day onthe 15th November. He was then returning to his land after a bath ina neighbouring stream. About 3 p.m. the witness Jayasckerage Piyadasaheard the cry of “ minimaranawo ” coming from the direction of the rubberland. Piyadasa was then weeding his land at a point about 300yards from the hut. At the same time a woman named Alpi Nona livingon a land adjoining Piyadasa's who also heard the cries asked him to findout what they were about. He then set out a short distance and then metthe appellant coming towards him. He asked him, “ What is the noise Iheard from your direction ? He replied that a boy called Me thy a Koliaand the deceased were joking and both of them had cried out in fun.Piyadasa was satisfied with this explanation and they separated, theappellant stating that he was going for a bath and that thereafter howould take some rubber sheets to be smoked. Methya Kolia was calledfor the prosecution and he stated that he did not know who the deceasedwas and that he had never visited the hut. The story about Metliya wasthe first of a scries of falsehoods uttered by the appellant to allay suspicionas to the fate of the deceased and to prevent those inquiring about hiswhereabouts from visiting the rubber land or the hut. The appellanthad his night meal at Alpi Nona's and slept at Piyadasa’s'. The reasonhe gave to Piyadasa for not sleeping in his hut was that ho was alone,lie said that the deceased had decamped with Rs. 250. On the nextday he leit saying that ho was going to his village. The mother of the
deceased was expecting him to be present at her house on the 19th Novem-ber being the day fixed for giving notice of his sister’s marriage. Theappellant met the mother and delivered a false message to the effect thatthe deceased had said that he could not attend the ceremony because hehad obtained employment on an estate. It is needless to advert toother falsehoods which clearly indicate that the appellant’s consciencewas not at ease. Fearing that discovery was bound to come soon hedecided on the 20th November to disclose to J. G. A. AVeerakoon a relationof liis that the deceased lay buried in the hut. According to the accountgiven by the appellant to Weerakoon the deceased, one Hendrick Mudalaliand one Arnolis, the husband of Alpi Nona referred to earlier, came to thehut at about midnight of the 15th November. They were all drunk.He opened the door and the deceased took his plate of rice to the verandah.Tho ajjpellant was inside the room reclining on a “ messa ” when he heardthe deceased crying out loudty “ minimaranawo ”. He came out of theroom and saw the deceased fallen dead on the ground. On one side ofthe deceased was Arnolis who was armed with a katty and on the otherside Hendrick Mudalali with a long pointed knife. Under threat of instantdeath he assisted them in tying up the body and burying it inside the hut.Both Hendrick Mudalali and Arnolis were called for the prosecution.Their evidence which appears to have been accepted by the jury showsthat they had been falsely implicated. As a result of the appellant’sstatement these two witnesses were held in custody for three weeks.
The loud cry of distress uttered by the deceased and the admission bythe appellant that the deceased was dead before he was buried unmis-takably point to violence as being the cause of death. If, as was suggestedat the argument that the deceased died suddenly owing to natural causes,the conduct of the appellant in circulating numerous false accounts ofthe movements of the deceased whom he knew to be buried is whollyinexplicable. In so far as the verdict of the jury implies that the deathof the deceased was caused by the appellant we see no reason to differfrom them. The evidence, however, throws no light on the mode ofviolence from which one could infer the intention requisite to constitutethe offence of murder. The complete absence of any signs of the use ofa lethal weapon on the deceased renders it unsafe to allow the verdictof murder to stand. On the other hand the cries of distress raised by thedeceased indicate that he either apprehended or suffered grave violenceat the hands of the appellant and that coupled with the fact that he musthave died almost immediately afterwards lead to the conclusion thatwhile the appellant may not be guilty of murder he was guilty of theoffence of voluntarily causing grievous hurt. To reach such a verdictit is not necessary that we should be in a position to state precisely themanner in which death was brought about.
AY'c accordingly set- aside the conviction and sentence under appealand substitute therefor a verdict under section 316 of the Penal Code andsentence the appellant to six years’ rigorous imprisonment-
I 'cidicl altered.