Charles Silva v. The Queen
1954[Court os' Criminal Appeal]
Present: Nagalingam A.C.J. (President), Puile J. and Swan J.
S. CHARLES SILVA, Appellant, and THE QUEEN, RespondentApplication 131 op 1953
8. C. 12—M. C. Gampaha, 11,680 r.
Charge of murder—Defence of alibi—Intoxication alleged in dying de-position of deceased
In a prosecution for murder, the defence-was an alibi. In his dying deposition,however, the. deceased had stated that the accused was drufUd'and staggering atthe time he inflicted the fatal injury and that there was no altercation orprevious ill feeling between the accused and the deceased.
Held, that in the circumstances it was the duty of the trial Judge to have con-sidered in his summing-up whether the accused by reason of intoxication wasincapable of realising the natural and probable consequences of the violence heused on the deceased.
APPLICATION for leave to appeal from a conviction in a trial beforethe Supreme Court.
It. JR. Crossette-Thambiah, Q.C., with S. B. Lekamge and S.Sharvananda, for the accused appellant.
Ananda Pereira, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
PTJLiLE J.—Charles Silva v. The Queen
February 1, 1954. Pulle J.—
By a vercfact of six to one the appellant was convicted on the chargethat on the 13th April, 1953, he committed murder by causing the deathof one Senasige Isadoru Silva alias Isan Silva. The case for the prosecu-tion was that on the night of 13th April the appellant inflicted on thedeceased* one stab wound on the abdominal wall one inch long andpenetrating to a depth of two inches as a result of which he died on the15th April. The scene of the offence was a public highway close to thehouse of the witness S. Sebastian Fernando. This witness did not seethe stabbing. He heard the voice of a person crying out, “ Mudalali,Chaipolis stabbed me with a knife He came out of the house with anelectric torch and as he flashed it he saw the appellant running away.Another witness Senasige Marthinu Silva who happened to be on the roadstated that he also heard the same cry and as he proceeded towardsSebastian Fernando’s house he saw the appellant running past himtowards the house of one D. M. de Soysa, a Police constable, who wasmarried to a niece of the appellant. The defence was an alibi. Theappellant in his evidence stated that at about 7.30 p.m. he was sleepingin the veranda!} of the boutique of his brother one Kulasekera. Thisboutique is on the same road, a short distance away from the house ofde Soysa. When he was sleeping he heard a commotion from the direc-tion of de Soysa’s house and he then went to that house where, later inthe night, he was arrested.
In appeal the finding of the jury that the appellant stabbed the deceasedwas not canvassed. It was submitted on his behalf that the learnedCommissioner had inadvertently omitted to ask the jury to considerwhether the appellant by reason of intoxication was incapable of formingthe intention necessary to constitute the offence of murder. The submis-sion was based on the dying deposition which was read at the trial aspart of the evidence for the prosecution. It was taken at the hospitalon the 14th April and is as follows :
“ Yesterday at about 8 p.m. one Charles Silva stabbed me on myabdomen. This happened on the high road near Charles’ house. Iraised cries and 10 or 12 people came up.
“ Sebastian Mudalali saw Charles running away with the knife inhand. (Charles is no relative of mine. Charles was drunk, I saw himcome staggering. There is no previous ill feeling between me andCharles. There was no talk or altercation before the stabbing. ”
The whole of this deposition was read out by the Commissioner to thejury but only as relevant to the issue whether it was the appellant whostabbed the deceased. He dealt with the question of knowledge butin that context he made no reference to intoxication.
The question we have to decide is whether there was no evidence onwhich the jury, properly directed, could find that by reason of intoxica-tion the appellant could not form a murderous intention at the time heinflicted the injury. point was made by learned Crown Counsel thatthe appellant stated in his evidence that he did not take any liquor on
PTJXvUB J.—Charles Silva v. The Queen
the 13th April but it is conceded that his claim to have been sober onthat night did not conclude the question whether in fact he was intoxicatedor not.
It is a circumstance of some weight in this case that there was no proofof any motive for the offence and that the attack on the deceased wasnot preceded or accompanied by an exchange of blows or words. Thedeceased said that the appellant was not merely drunk but staggering.When one regards the totality of the evidence it cannot be said that thejury could not possibly infer that the appellant by reason of intoxicationwas in such a condition that he was incapable of realising the. naturaland probable consequences of the violence he used on the deceased.
We are of the opinion that there has been a non-direction on a materialissue arising on the dying deposition and we accordingly set aside theconviction and sentence. We do not think that there should be a re-trial. Accordingly we substitute a verdict under section 297 of the PenalCode and sentence the appellant to eight years’ rigorous imprisonment.