Sri Lanka Law Reports
 3 Sri L.R.
COURT OF APPEAL.
GUNASEKERA, J. (PICA)
DE SILVA. J.
C.A. NO. 158/95.
C. NEGOMBO 49/94.
M.C. MINUWANGODA 38536.
MAY 29. JUNE 03.1997.
Murder – Section 296 Penal Code – Proper Directions to be given by a Judge to aJury at a Trial for Murder.
The appellant was indicted with having committed murder by causing the deathof one C. The Prosecution relied on two main witnesses, the wife of the deceasedand the evidence of an eye witness. The accused was found guilty by a dividedverdict of five to two. The conviction was challenged on the grounds of –
that the Trial Judge withdrew from the consideration by the Jury of thepossible defence of the right of Private defence.
failure to apply to the facts the law relating to the exception of a sudden fight.
It is to be noted that there is no prescribed form of a summing up in a trial formurder. The adequacy of a summing up will depend on the evidence in aparticular case. If there is evidence which the jury can reasonably take intoconsideration as reducing the offence of murder to one of culpable Homicide,then it is the duty of the Judge to include in his summing up directions relating toculpable homicide not amounting to murder.
Where there is evidence of provocation the entirety of the evidence bearing onthe question of provocation should be put to the jury even though the accusedexpressly says that he was not provoked. It is undoubtedly the duty of the Judgein summing up to the Jury to deal adequately with any defence which mightreasonably arise on the evidence given and which would reduce the offence fromMurder to culpable homicide.
If there is no evidence before court to reduce Murder to culpable homicidethen the Judge cannot be faulted for not inviting the Jury to consider a lesseroffence.
Saranelis Silva v. Attorney-General (J. A. N. de Silva, J.)
Per De Silva, J.
"If the prosecution case is that the accused has committed murder by secretlyadministering poison, this does not give room for the defence to complain thatJudge should invite the jury to consider provocation."
APPEAL from the High Court of Negombo.
Case referred to:
R. v. Mohideen Meera Saibo -19 CLW 129.
Dr. Ranjith Fernando with Ms. Kishali Pinto – Jayawardena and Ms. Premali deSilva.
Kapila Waidyaratne, S.S.C. for Attorney-General.
Cur. adv. vult.
June 18, 1997.
J.A. N. DE SILVA, J.
The appellant in this case was indicted before the High Court ofthe Western Province holden in Negombo with having committedmurder by causing the death of Kadupitiya Chandrasena on the 17thof December 1983 at Heenatiya, an offence punishable undersection 296 of the Penal Code.
The trial was in November 1995 and after the conclusion of thecase by a divided verdict of five to two (5:2) the accused-appellantwas found guilty of the said charge and was sentenced to death,
The prosecution relied on two main witnesses to establish the caseviz. Mallika Jayawathie, the wife of the deceased, who described theevents that took place prior to the incident and the evidence of eyewitness Somadasa who spoke about the incident proper. The otherwitnesses for the prosecution were the Doctor who conducted thePost-Mortem examination and Police Inspectors Dassanayake andSunil Perera who conducted the investigations.
According to witness Mallika on the day of the incident around
a.m. she left the house with her husband to visit the mother ofthe husband who was living a short distance away from their house.
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(1997} 3 Sri L.R.
When they came on to the road they met one Somadasa, a friend anda co-vitlager who was also going in the same direction and theyproceeded together talking to each other. As they approached theresidence of the accused's father-in-law, the accused who was livingwith him spoke to the deceased and invited them to his house sayingthat he has nothing against the deceased and to settle anymisunderstanding the accused had with the deceased, Mallika hadnot agreed to this but the deceased had gone to the house withSomadasa.
Mallika recounted that a person by the name of Martin had died afew days back by drowning in the river. When the corpse wasretrieved it was in a state of putrification and was emanating a foulsmell. The villagers had taken the body to a cemetery and buried it.Apparently Martin's body had been carried over the land of theaccused causing much annoyance to the accused. The deceasedhad taken a prominent part of Martin’s funeral and over this there hadbeen some displeasure between the accused and the deceased.
Mallika had refused to go with the husband but had proceeded toher mother-in-law’s house which was close by. Shortly thereafter shehad heard a report of a gun from the house of the accused-appellantand she had run back in that direction. On the way she had metSomadasa who was running towards her and he had said Chandare,the deceased was shot at by Balamahattaya, the accused-appellantand he is dead. On hearing this information she had not gone to thehouse but had run to the Police Station which was about 4-5 milesaway.
Eye witness Somadasa testified to the fact that he went to theaccused-appellant’s house with the deceased which was about 25-30 yards from the road. There they had been asked to sit andaccused-appellant had spoken to the deceased for about 2 or 3minutes and as they were about to leave the accused had taken agun from behind a door which was ajar and shot the deceased on thehead. He left the house and had seen Mallika come running towardshim and he had informed her what happened and had gone to hishouse which was about 1/4 mile away from the scene. A few minutesafter he reached his home he had heard sounds of several gun shotsfrom the direction of the accused’s house.
Saranetis Silva v. Attorney-General (J. A. N. de Silva, J.)
Dr. Gamini Jayasekera, who conducted the Post-Mortemexamination has stated in his evidence that there were sixpenetrating injuries on the scalp over the left and right frontal bone ofthe deceased. According to him all six wounds could have beencaused by a single shot fired from gun at a close range. He has alsofound five irregular shaped lead pieces in the brain matter.
Inspector Dassanayake of the Minuwangoda Police had givenevidence to the effect that on receipt of information about the murderfrom the wife of the deceased Mallika, he visited the scene at 11.30 inthe morning. When he approached the place of incident he heard thefiring of 7-8 gun shots. The doors were closed. He had ordered thepeople in the house to come out having identified himself. After ashort while the accused had come out with another person. Thatother person had received a gun shot injury on his leg. The Inspectorhad found the body of the deceased in the verandah and the deadbody of the father-in-law of the accused inside the house. He hadtaken three guns into his custody. There had been several pelletmarks on the outer wall and inside the house.
Officer-In-Charge Sunil Perera who visited the scene subsequentlyhad observed the body of the deceased on the verandah. There hadbeen two live cartridges wrapped in a cellophane bag between thefingers of the deceased and another tin foil containing somesubstance. He also stated that there was a pistol underneath thebody of the deceased and a opened clasp knife near him. Twenty-eight waddings also had been recovered by him from the scene.
When the prosecution case was closed no evidence for thedefence had been led. The accused-appellant had remained silent.
The learned Counsel for the appellant sought to challenge theconviction and sentence on the following grounds.
that the learned Trial Judge withdrew from the consideration by theJury of the possible defence of the right of private defence arisingout of the prosecution evidence.
The learned Trial Judge erred in law by failing to apply to the factsof the case the law relating to the exception of a sudden fight.
Sri Lanka Law Reports
11997) 3 Sri L.R.
The learned Trial Judge erred by misdirecting the Jury on the
Evidence militating against premeditation.
The significance of the discovery of items such as anotherdead body – recently used fire arms-marks of gun shots on thewalls outside the house as well as inside – finding of a pistolunder the body of the deceased and a opened clasp knifenear the body.
The above three grounds raised the question as to what are theproper directions to be given by a Judge to a Jury at a trial formurder. It is to be noted that there is no prescribed form of asumming up in a trial for murder. The adequacy of a summing up willdepend on the evidence in a particular case. If there is evidencewhich the jury can reasonably take into consideration as reducing theoffence of murder to one of culpable homicide, then it is the duty ofthe Judge to include in his summing up directions relating toculpable homicide not amounting to murder. In the case of Rex v.Mohideen Meera Saiboit was held that in a charge for murderwhere there is evidence of provocation the entirety of the evidencebearing on the question of provocation should be put to the Juryeven though the accused expressly says that he was not provoked.The rationale in this case is that it was undoubtedly the duty of theJudge in summing up to the Jury, to deal adequately with anydefence which might reasonably arise on the evidence given andwhich would reduce the offence from murder to culpable homicide. Ifthere is no evidence before the Court to reduce murder to culpablehomicide then the Judge cannot be faulted for not inviting the Jury toconsider a lesser offence. For example if the prosecution case is thatthe accused has committed murder by secretly administering poison,this does not give room for the defence to complain that Judgeshould invite the Jury to consider provocation.
In the present case the appellant's Counsel contended that theJudge should have directed the Jury on the right of private defenceand sudden fight.
Saranetis Silva v. Attorney-General (J. AN. de Silva. J.)
The entire evidence in this case as narrated by the wife of thedeceased and eye witness Somadasa is that when they were walkingon the road the accused-appellant beckoned the deceased into hishouse on the pretext of settling an old misunderstanding and after ashort conversation when they were about to leave suddenly shot thedeceased on the head having taken a gun from behind a door.Witness Somadasa further stated that after this incident he informedthe wife of the deceased who was running towards him and wenthome. When he was in his house he heard several gun shots from thedirection of the accused's house. He had been questioned as towhether the deceased was armed, to which the witness hadanswered in the negative. Further according to this witness theconversation was very cordial. In these circumstances, it is our viewthat the question of a sudden fight and or private defence does notarise. It is also relevant to note that the Senior Defence Counsel hadsuggested to witness Somadasa that when they were having aconversation on the verandah the deceased received a shot firedfrom outside by a 3rd party and he died. This suggestion too wasdenied by witness Somadasa. In the light of this suggestion thecontention of the Appellant's Counsel bears no merit. There are twothings implicit in this suggestion by the defence. Firstly that thedeceased and accused were present at the scene of the crime andsecondly that the deceased had not done any aggressive act at thetime he was shot.
The evidence of Somadasa reveals that shortly after the deceasedwas shot there had been several incidents. According to him whenhe was at home he heard several gun shots from the direction of theaccused-appellant's house. When the defence counsel suggested tohim that there were 50-60 such shots he accepted that. Even thePolice Officer Dassanayake says that when he went to the scene at
a.m. i.e. three hours after the incident he had heard 7-8 gunshots from the direction of the house of the accused.
Learned Counsel for the appellant contended that witnessSomadasa is not a truthful witness for the reason that he did notreport the incident to the Police immediately and because he did notrun from the scene soon after the incident but had casually left thescene. The Jury at page 70 had questioned the witness on this
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aspect and it was his answer that he did not know what to do whensuddenly accused shot the deceased on the head. Somadasa’sevidence that the deceased was shot on the head is corroborated bymedical evidence. It was Somadasa's evidence that he saw the wifeof the deceased corfie running towards him on the road and told herthat Chandare was shot by the accused and went home. As far asSomadasa was concerned he had given the information to the partyconcerned and there was no further duty on him. When the Policequestioned him he gave a statement later in the day. It is to beobserved that on receipt of the information from Somadasa, the wifeof the deceased had run to the Police Station which was 4-5 milesaway. In the circumstances, we are unable to accept the contentionthat Somadasa is not a truthful witness.
It is relevant to observe that two dead bodies were found in theaccused house. The accused was present in Court when witnessSomadasa said it was the accused who shot the deceased. However,accused chose to remain silent at the trial and expected theprosecution to establish as to what happened in his house which theprosecution did through the evidence of Somadasa. From the Policeobservations one gets the impression that the scene of crime hadbeen dressed up to a certain extent after the main event for reasonsbest known to the accused-appellant.
In this case the Jury has convicted the accused by a S:2 verdictwhich is an acceptable verdict. The conclusion on the facts is for theJury. We are unable to accept that there are errors in the summing uphaving considered the evidence in this case. We, therefore, affirm theconviction and sentence imposed on the accused-appellant anddismiss the appeal.
D. P. S. GUNASEKERA, J. (P/CA) -1 agree.Appeal dismissed
SARNELIS SILVA v. ATTORNEY-GENERAL