THE KING v. BELLO SINGHO et al

167-NLR-NLR-V-48-THE-KING-v.-BELLO-SINGHO-et-al.pdf


942
The King v. Bello Singho.
[Court of Criminal Appeal]
1947 Present: Jayetileke (President), Canekeratne and Dias JJ.
THE KING v. BELLO SINGHO et al.
Applications Nos. 236-239.
S. C. 55—M. C. Dandegamuwa, 18,885.
Court of Criminal Appeal—Charge of murder—Grounds of appeal—Not statedin notice of appeal—Provision of Ordinance No. 23 of 1938, section 8(1)—Strict compliance insisted on.
A person who desires to- appeal to the Court of Criminal Appeal mustcomply strictly with the provisions. of the Ordinance. The Court willnot hear any grounds of appeal which are not stated in the notice requiredby section 8 (1) of the Court of Criminal Appeal Ordinance.
JAYETOjEKE J.—The King v. Bello Singho.
543
A
PPLICATIONS for leave to appeal against certain convictions in atrial before a Judge and Jury.
H. V. Perera, K.C. (with him M. M. Kumar akulasingham, MahesaRutnam, and L. G. Weeramantry), for the applicants.
T. S. Fernando, C.C. (with him E. L. W. de Zoysa, C.C.), for the Crown.
Cur. adv. vult.
October 28, 1947, Jayetillexe J.—
The accused in this case were charged on an indictment which containedthree counts. The first count charged them with'being members of anunlawful assembly, the common object of which was to commit robbery.The second count charged them with, being members of an unlawfulassembly, and, in prosecution of the common object, having committedmurder by causing the death of one Bempy Singho. The third countcharged them with having committed murder by causing the death ofBempy Singho in furtherance of the common intention of all. The juryunanimously found them guilty on counts 1 and 2 and not guilty oncount 3. On the second count, the accused were convicted purely oncircumstantial evidence. The material witnesses for the Crown wereUkku Banda, a brother of the deceased, Jayasekere, a son of Ukku Banda,and Nonohamy, a sister of the deceased.
Ukku Banda said that he lived at Pethigodagedera in the District ofKurunegala with his wife, who was insane, his son Jayasekere, anddaughter Podi Nona. On March 28, 1946, he slept in the office room,his wife and son slept on the outer verandah, and his daughter in a room.Between 10 and- 12 p.m. he was awakened by the report of a gun. Hegot up and went to the verandah when he was seized by someone, draggedinto the compound, and struck several blows with clubs. He raised criesand fell on the ground. He then heard the sound of doors beingbroken open inside the house. There was starlight, and he was able toidentify the third accused as one of those who struck him, and-the fourthaccused as one of those who went inside the house. After the thievesleft, he saw Bempy lying dead on the compound, and several personsgathered there.
Jayasekere said that he was awakened by the report of a gun andalmost immediately he was held by four persons, pressed against thewall, and struck several blows with clubs. One of them forced open thedoor of the house with a stone which he had brought with him from thefirewood shed, and several of the thieves went inside the house. Hethen released himself, picked up his sword from under his mat, rushedup to a thief who was in the compound with a gun in his hand, andattacked him with the sword. The thief fell down, whereupon, he tookthe gun and ran towards the house. He then saw his uncle Bempylying in the compound bleeding profusely, and also his father lyingfallen in the compound. When he saw them he fell down in the compoundin a faint. There was starlight at the time, and he clearly identified thefirst accused and second accused among the thieves.
48/41
544
JAYETILEKE J.—The King V. Bello Singho.
Podi Nona, who was called by the accused, said that, as soon as thethieves entered the house, she ran out of the house into the jungle andcame back towards morning.
Nonohamy, a sister of the deceased, said that the deceased lived inher house. On the night in question, hearing gunshots and shouts fromthe direction of Ukku Banda’s house, the deceased went out of the housetaking with him the club P 10. After the thieves left she went up toUkku Banda’s compound and saw her brother lying dead.
The medical evidence shows that the deceased had a pond-shapeddepressed fracture on the right side of the head, roughly jabout twoinches in diameter, with radiating fractures from the sides of this fracturerunning to either side of the base of the skull.
Dr. Thamotheram was of opinion that a very great degree of force hadbeen used to inflict the injury. He was also of opinion that it was moreprobable that it was caused by the ring end of a mammotty than by thebutt end of a gun. A mammotty belonging to Ukku Banda was foundby the side of the deceased, but there was no blood on any part of it.
Mr. Perera contended that, upon this evidence, it was not open to thejury to say that every reasonable hypothesis consistent with the innocenceof the accused on the charge of murder had been eliminated and that,therefore, the verdict is ui-reasonable. He said that the deceased mayhave been mistaken for a thief and struck by the wife of Ukku Banda orby someone who came up hearing cries. It must be remembered thatthe witnesses said that there was starlight at the time, which enabledthem to identify these accused. It is, therefore, improbable that thedeceased could have been mistaken for a thief. Having regard to thenature and position of the injury, it is equally improbable that it wasinflicted by Ukku Banda’s wife. She is over 50 years of age and has notbeen in possession of her senses for sometime. It is unlikely that shecould have struck a blow with a very great degree of force. The sug-gestion that a neighbour may have inflicted the injury is not supportedby the evidence. None of the witnesses said that any one came upbefore the thieves left. We, therefore, think that the first groundcannot be sustained.
The next point taken by Mr. Perera was that the presiding judgefailed to direct the jury as to the facts and circumstances on which thejury could have based a finding as to the intention of the unknownassailant of the deceased.
On the question of intention, there is the following passage in theSlimming up : —
“ You have to ask yourselves first of all, was the assailant of Bempione of the members of the unlawful assembly ? If he was a memberof the unlawful assembly, dad he intend to cause the death of Bempior did he intend to cause Bempi bodily injury sufficient in the ordinarycourse of nature to cause death? ' In regard to intention, it is a matterfor inference, and the case for the Crown as established by the medicalevidence is that Bempi had received the wound on his head which madedeath inevitable. He must have died within a few minutes of havingreceived that injury. In fact, I recall the very vivid manner in which
JAYETTLEKE J.—The King v. Bello Sing ho.
545
Crown Counsel referred to that part of the case, because he said whenhe was opening his case that Bempi’s head had been bashed in. Itwas a very grievous injury that was inflicted on Bempi. He must havedied more or less on the spot—so to speak—certainly he was dead bymorning. His corpse was taken into the house of his brother at dawn.Now every man is presumed to intend the natural and probable conse-quences of his acts. So that, when you are considering the matter ofintention, you will ask yourselves the question whether the assailantof Bempi intended to kill him or- intended to cause bodily injurysufficient in the ordinary course of nature to kill. If you are satisfiedon that point, then the assailant of Bempi would be guilty of murder.But in a case of this kind where the assailant'of Bempi had not beenidentified, where the Crown alleges that a member of the unlawfulassembly was the assailant of Bempi, you have to be satisfied that itwas a member of the unlawful assembly that caused' the death ofBempi, and you have also to be satisfied that the intention. of thatmember was to cause death or to cause bodily injury sufficient, in theordinary course of nature to cause death … But,- suppose
– you are in doubt as to whether the assailant of Bempi intended tocause his death or to cause him bodily injury sufficient in the ordinarycourse of nature to cause death, then you may not find the assailant ofBempi or any other member of the unlawful assembly guilty of murder ;in that event, you will go on to ask yourselves the question .whether theassailant of Bempi knew what he was doing was likely to cause thedeath of Bempi, and in that case, the assailant of Bempi would beguilty of culpable homicide not amounting to murder which is thelesser offence.”
Relying on the case of Rex v. Steane Mr. Perera argued that, on theevidence taken as a whole, there was room for more than one view as tothe intent of the assailant, and, therefore, the rule of law that a personmust be taken to intend the natural and probable consequences of hisacts did not apply. For instance, he said, the assailant may not haveknown where the blow would alight or he may have inflicted the injuryin the course of a struggle.
We do not think that it was possible for the jury to take the view thatthe assailant may not have known where the blow would alight, as theyhad accepted the evidence that there was sufficient light at the time ;nor do we think that it was possible for them to return a verdict favourableto the accused, even if they took the view that the assailant inflicted theinury in the course of a struggle, as the exception -relating to privatedefence is not available to a person who enters another’s house withintent to commit robbery. We are of opinion that the directions givenby the presiding judge on the question of intention were quite adequate.
Mr. Perera sought to raise another point, namely, that, in the cir-cumstances of the case, it could not be said that the Commission of theoffence of murder was involved in the common object of robbery. CrownCounsel objected to the point being argued on the ground that it was nottaken either in the petition which was filed on September 25, 1947, or in
1 (1947) 1 A. B. R. 813.
18
546
JAYETH.EKE J.—The King v. Bello Singho.
the supplementary notice setting out a further ground of appeal whichwas filed, out of time, by assigned Counsel on October 19, 1947, and hestated that, in any event, he was not ready to argue the point on thatday. Mr. Perera said that he could not take the point earlier as he hadnot studied his brief. We did not think that the reason given byMr. Perera for not raising the point within the time prescribed wassufficient in law, and we decided to uphold the objection.
The law on the subject seems to be fairly clear. Section 8 (1) of theCourt of Criminal Appeal Ordinance, No. 23 of 1938, provides that wherea person convicted desires to appeal under this Ordinance to the Court ofCriminal Appeal, or to obtain the leave of that Court to appeal, he shallgive notice of appeal or notice of his application for leave to appeal, insuch manner as may be directed by rules of Court, within 14 days of thedate of conviction. Rule 3 of the Court of Criminal Appeal Rules, 1940,provides that the forms set out in the Schedule to the Rules, or formsas near thereto as circumstances permit, shall be used in all cases towhich such forms are applicable. The forms relevent to appeals onquestions of law and to applications for leave to appeal on the facts areNos. IV and VI. They show that the grounds must bo fully set out.
There are several decisions under the corresponding section cf theEnglish Act.
In Rex v. Wyman the following passage appears in the judgment ofDarling J. : —
“ The Court wishes it to be understood that in future substantialparticulars of misdirection, or of other objections to the summing-up,must always be set out in the notice of appeal, even if the transcriptof the shorthand note of the trial has not been obtained. Suchparticulars must not be kept back until within a few days of thehearing of the appeal. If Counsel has a genuine grievance regarding asumming-up, he knows substantially what it is as soon as the summing,up is finished, and can certainly specify his general objection when hesettles the notice of appeal.”
In Rex v. Cairns an application was made for leave to add misdirectionto the grounds of appeal. The Court granted leave as it was a capitalcase. The Lord Chief Justice, after citing the passage quoted above,said : —
“This direction the Court has repeated in later cases. In future itwill act upon it.”
There are several local decisions, too, on the point. In the King v.Seeder de Silvaa, which was the first case to be heard under the Court ofCriminal Appeal Ordinance, No. 23 of 1938, Howard C.J. said : —
“ Generally speaking this Court will refuse to give effect to groundsnot stated in the notice, but where the appellant is without means to1 13 C. A. R. 1C5.* 20 C A. R. 44.
(1940) 41 X. L. R. 337.
547
JAYETILEKE J.—The King v. Bello Singho.
procure legal aid and has drawn his own notice the Court will not as a
rule confine him to the grounds stated in his notice.”
In. the King v. Burke in which the appellant was convicted ofattempted rape, an application was made for leave to amend the noticeof appeal on questions of law by adding a further ground. After conside-ration of Rex v. Wyman (supra) and Rex v. Cairns (supra), the applicationwas refused.
In the King v. Marthino * an application to amend an application forleave to appeal on the facts by alleging misdirection in the charge to thejury was refused on the authority of Rex v. Wyman (supra) and Rex v.Cairns (supra).
In the King v. Hemasiri*, four grounds of appeal were set out in thenotice of appeal. After a copy of the proceedings was obtained a supple-mentary notice setting out a further ground of appeal was filed. In thecourse of the argument in appeal, Counsel sought to address the Court ona point not set out in the notice of appeal. It was held that, the case notbeing a capital case, application to argue the new ground of appealshould not be allowed as there was delay in applying for a copy of theproceedings. It does not appear from the judgment whether the obser-vations of the Lord Chief Justice in Rex v. Cairns (supra), quoted above,were considered by the Court.
In the King v. James Singho* a statement filed out of time settingforth four additional grounds of appeal was rejected. In the course ofhis judgment, Soertsz J. said : —
“ This Court has repeatedly laid down that it will not entertain
additional grounds of appeal, except in very exceptional circumstances
unless a substantial question of law is seen to arise.”
These decisions show that the practice of raising points which are not setout in the notice, which I regret to say, seems to be growing, has beencondemned in no uncertain terms. In Rex v. Sella hurai the Court hadto adjourn to enable Crown Counsel to study a question which was raisedby Counsel for the appellant without previous notice. We think it isdesirable that this Court should act upon the words of the Lord ChiefJustice in Rex v. Cairns (supra), and insist on a strict compliance with theprovisions of the Ordinance.
The applications are refused and the appeals are dismissed.
Dismissed.
1 (1940) 43 X. L. R. 46S.1 * 3 (1942) 43 X. L. li. 467.
3 (1941) 43 N. L. R. 521.4 (1942) 44 X. L. R 54.
3 73-83 ilallakam 1093 S. C. M. 20110147.