The King v. D. Babanis.
[Court of Criminal Appeal.]
1944Present: Howard C.J., Hearne and Keuneman JJ.THE KING v. D. BABANIS.
9—M. 0. Dandagamuwa, 12,624.
'Murder—Conflictingpassages insumming-up—Murderousintention or
merely knowledge—Verdict of culpable homicide not amounting to murdersubstituted.
Where, in acharge of murder, it isimpossibletosay, owing to conflicting
passages in the summing-up,whetherthe jury,ifproperly) directed, would
have come tothe conclusionthat the accusedhada murderous intention
or merely the knowledge that he was likely to cause death,—
Held, thata verdict ofculpablehomicidenotamounting to murder
should be substituted for that of murder.
PPEAL against a conviction by a Judge and Jury before the WesternCircuit.
S.C. E. Rodrigo, for the applicant.
E. H. T. Ghinasehera, C.C., for the Crown,
Cur. adv. vult.
2 fi Cr. App. R. 285.
1 4 Cr. App. R. 225.
* 41 N. L. R. 433.
HOWAHD C.J-—The King v. D. Babanis
February 14, 1944. Howard C.J.—
At the outset of the summing-up in this case, the learned Judge madethe following statement: —
“ Of course if a person knows that the injury which he is inflictingis likely to kill, then he intends to kill.
That statement is obviously not in accordance with the law. Againa little further on he stated: —
“ It is murder if it is done with the intention of causing such injuryas the offender knows to be likely to cause the death of the personto whom the harm is caused.
Of course, if this statement has reference to a case which came underthe second paragraph of section 294 of the Penal Code, no exceptioncan be taken, but this is not such a case. It, therefore, seems to us thatthat statement is also open to question. It is true that the learnedJudge at. the end of his summing-up stated: —
“It is not contested that any ordinary person would know that togive any woman or any man a beating is to rim risk of killing. Ifthat is so, it would be culpable homicide not amounting to murder,but if you go further and say he intended to kill that woman, he wouldbe guilty of murder. ”
That is a correct statement of the law, but it is impossible to say whetherthe Jury, in coming to a decision, would be more influenced by what theyheard at the end of the summing-up as compared with what the learnedJudge told them when he commenced his charge. In these circumstan-ces, it is impossible to allow the verdict of murder to stand. We,therefore, set aside the conviction of murder and substitute a verdict ofculpable homicide not amounting to murder, as it is impossible to saywhether the Jury, if properly directed, would have come to the conclusionthat the appellant had a murderous intention or merely the knowledgeconstituting the offence of culpable homicide not amounting to murder.We substitute for the sentence of death a sentence of 10 years’ rigorous-imprisonment.
THE KING v. D. BABANIS