111-NLR-NLR-V-56-S.-LUVIS-Appellant-and-THE-QUEEN-Respondent.pdf
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WEERASOORIYA J.—Lvvts t>. The Queen
[Court of Criminal Appeal]
1954 Present: Pulle J. (President), Swan J. and Weerasooriya J.S. liUVIS, Appellant, and THE QUEEN, RespondentAppeal No. 1 of 1954, with Application 4S. C. 19—M. C. Chilaw, 1,979
Charge of murder—Plea of sudden fight—Not specifically raised—Disclosure inevidence—Summing-up.
In a trial for murder, although it was an integral part of the accused person's.defence that the deceased came by his death in the course of a sudden fight,it was not specifically reised as a defence that the accused was the person whoinflicted the fatal injury in the course of that fight.
Held, that, having regard to the evidence, the fact that sudden fight wasnot specifically raised as a defence did not relieve the trial Judge of the dutyof placing before the Jury that aspect of the case.
j^PPEAL, with application for leave to appeal, against a convictionin a trial before the Supreme Court.
Colvin R. de Silva, with O. C. Niles and A. K. Premadam, for the accusedappellant..
Ananda Pereira, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
February 15, 1954. Weerasooriya J.—
The appellant in this case was convicted, on the unanimous verdictof the Jury, of the offence of murderi
The case for the prosecution was that as the deceased was proceedingfrom a boutique where he had gone to buy a cigarette, the a]3pellantcame up to him from the opposite direction and dealt him a blow withhis hand on the face which caused the deceased to fall, and thereuponthe accused pulled out a pointed weapon from his waist, stabbed thedeceased once in the chest saying “ I will go away only after killingyou ”, and ran away carrying the weapon with him. According to themedical evidence the deceased mugfe'TfiSve died almost instantaneouslyon receiving this injury which had penetrated the chest cavity and cutthe right ventricle of the heart. The prosecution was unable to adduceany evidence as to why the appellant should'have delivered this suddenattack on the deceased. There was evidence that the deceased wasnot a man of good character and that he had at least on one occasionbeen convicted of an offence for which he received a jail sentence. Therewas also evidence that shortly before the stabbing the deceased hailbeen drinking some arrack.
WEERASOORIYA J.—Zuuia v. The Queen
443.
The appellant in giving evidence on his own behalf related a versionas to how the deceased could have received the fatal injury which wassubstantially different from the circumstances as deposed to by thewitnesses called by the prosecution. His version was that when hewas casually passing the scene of the stabbing he noticed two groupsof people who were abusing each other and “ getting ready for a fight ”,to use his own words; that in one of these groups was the deceased,that he went up to the deceased and told him to go away and not toquarrel, but the deceased resented his intervention ; and he describedthe subsequent stages of the incident as follows :—
“ The deceased scolded Ae dragging the name of my mother. [also returned the abuse in the same terms. He then struck me withhis hand and I also struck him in return. Then Sardiris, Sardiel andMartin got hold of the deceased. Then there was a free fight on theroad. I then went home …. ”
The appellant denied that he had a knife or used one on the deceased.The suggestion implied in his evidence was that the deceased came byliis death in the course of the fight which took place as he left the scene.Tn re-examination he stated :—
“ …. At the time I left they were surrounding and fighting
in a group. One was fallen. That person appeared to be Hendy(the deceased). At the time I left I thought that was Hendy who wasfallen. It was after that that I left the scene.
Q : Was it due to any blow dealt by you that Hendy fell down ?
A : Due to my blow. I cannot Bay which blow but I dealt blow forblow. He dealt me a blow and I dealt him a blow. I cannotsay whether he fell for that blow because the blows began torain and he fell …. ”
It appeared to us that from the admissions made by the appellant in theabove quoted portions of his evidence, and notwithstanding his denialthat he caused the fatal injury on the deceased or that he was even armedwith a knife, it was open to the Jury to hold it as established beyondreasonable doubt that the appellant was the person who caused thedeceased’s death ; and also that more probably than not, and despite-the version presented by the prosecution eye witnesses of an almost coldblooded murder, the circumstances in which the appellant came toinflict the fatal injury were those of a sudden fight between him and thedeceased in wliich others too were involved. This was a conclusionwhich the Jury could all the more, readily have reached in view of certainother aspects of the case which were matters of common ground, namely,the absence of a motive and the failure of those surae witnesses to giveprompt information to the Police after the deceased was killed.
Learned Crown Counsel submitted that the only process by whichthe Jury could have reached the conclusion envisaged in the precedingparagraph was on an elimination of certain material portions of theevidence, not only of the prosecution but also of the defence, as unworthy*>f credit, and a piecing together of such other portions of that same
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WEE RASOORTYA J.—Luvia v. The Queen
evidence as appeared to them to represent the truth ; and be furthersubmitted that a conclusion bo reached would have been vitiated by theconsideration that if the Jury were of the' view that the prosecutionevidence on such material points as the circumstances in which thedeceased came to be stabbed was not true, it would have been theirclear duty to reject the entirety of the case against the appellant insteadof proceeding somewhat laboriously to form a composite picture of theevidence which represented neither the prosecution nor the defenceversion.
But while, generally speaking, it is undoubtedly within the competenceof a Jury to reject the whole of the evidence of witnesses who are shownnot to have spoken the truth on material points, we do not think that inthe present case the rejection of the evidence of the alleged eye witnessescalled by the prosecution as to the' circumstances in which the deceasedwas stabbed necessarily entitled the appellant to an acquittal sincethere was before the Jury the evidence of the appellant himself, theadmissions in which, taken in conjunction with the other features in thecase to which attention has already been drawn, and the evidence of theprosecution witnesses that the fatal injury was inflicted by the appellant,could well have formed the basis of a verdict that even if the death ofthe deceased had been caused by the appellant with such an intentionas would otherwise have constituted the offence of murder, the appellant’soffence was nevertheless that of culpable homicide not amounting tomurder in that the killing of the deceased was in the course of a suddenfight between himself and the appellant. It is on the premise that theJury could reasonably have returned such a verdict in this case thatlearned Counsel for the appellant made the submission that the convictionon the charge of murder cannot be allowed to stand inasmuch as thetrial Judge did not deal with that verdict in his charge. In this connectionhe. drew attention to the fact that the directions of the learned Judge inregard to the returning of a verdict that the appellant was guilty of thelesser offence of culpable homicide not amounting to murder were con-fined to a possible finding by the Jury that the infliction of the fatalinjury was not accompanied by a murderous intention.
In the present case, although it was an integral part of the appellant’sdefence at the trial that the deceased came by his death in the courseof a sudden fight, it was not specifically raised as a defence that theappellant was the person who inflicted the fatal injury in the course ofthat fight, but having regard to the evidence we were satisfied that thefact that such a defence was not specifically raised did not relievd thelearned trial Judge of the duty of placing before the Jury that aspectof the case, and following a series of decisions of this Court (of which,to mention two, are the cases of Rex v. Vidanalage Lanty 1 and Rex v.Murugesu a) we set aside the conviction on the charge of murder andsubstituted therefor the verdict that the appellant was guilty of theoffence of culpable homicide not amounting to murder and imposed asentence of ten years rigorous imprisonment-. We how set out the reasonsfor our order.‘
. Conviction altered.
■• (1941) 42 N. L. R. 317.* {1951) 53 N. L. R. 469.