WUEYEWABDENE A.C.J.—The King v. Dingo
[Court of Crimen ax, Appeal]
1948 Present: Wijeyewardene A.C.J. (President), Canekeratne andNagalingam JJ.THE KING v. DINGO et el.
Applications Nos. 248—249. S. C. 13—M. C. Matara 3,366
Court of Criminal Appeal—Evidence of child of tender^ years—Omission totake oath—Deliberate—Admissibility—Oaths Ordinance—Chapter 14—-Section 9.
Section 9 of the Oaths Ordinance applies not only in cases where theomission to administer the oath occurs per incuriam but also wherethe Court deliberately refrains from administering the oath.-
The King v. Kamasamy (1941) 42 N. L. It. 529 doubted.
Mohamed Sugal Esa Mamasan Her Alalah 1946 A.O. 57 referred to.
Applications for leave to appeal against two convictions in atrial before a Judge and Jury.
A. Chandrasena, for the applicants.
R. A. Kannangara, Crown Counsel, for the Crown.
Cur. adv. vult.
October 22, 1948. Wijeyewardene A.C.J.—
The second accused is the son of . the first accused and the deceased.The two accused were found guilty of the murder of the deceased onAugust 16, 1947.
About six years before his death, the deceased left his village Pallewellaand got employed on a rubber land at Rotumba about twelve miles away.He also cultivated in ande a paddy field at Rotumba. The first accusedand the children continued to live at Pallewella, but the first accusedvisited the deceased at Rotumbe occasionally for a few days and thedeceased himself used to visit his family at Pallewella. The first accusedadmitted that she was greatly annoyed, as the deceased was keepinga mistress. The deceased, however, went to Pallewella and invited thefirst accused to go to Rotumbe and help him to reap the harvest. Accord-ingly, the first accused went there on August 9, with her young sonDeonis, a boy of four or five years. The second accused got marriedone or two years before the death of the deceased and lived with biswife in the house at Pallewella. In July, 1947, there appears to have,been some unpleasantness between the deceased and the second accused’swife and the second accused sought the assistance of the Village Headmanto “ obtain by peaceful means ” some brass utensils, tumblers, &c„
1-J. N. A 86422—1,041 (2/49)
WXJEYEWARDENE A.C.J.—The King v. Dingt
belonging to his wife, and in the possession of the deceased. Shortlyafterwards, the second accused and his wife appear to have gone andlived somewhere else in the vicinity. The deceased had been issueda permit P5 under the Land Development Ordinance in respect of a lotat Pallewella and the deceased had nominated the second accused as hissuccessor. The deceased took no steps to cancel that nomination inspite of the incident in July. The Crown witness Deonis, and the firstaccused both gave evidence stating that the second accused came toRotumba a few days before August 16th and worked in the deceased’sfield. In fact, the first accused said the second accused came at theinvitation of the deceased. The Crown witness, TJdenis—brother of thedeceased—stated that the second accused went to Rotumba on August15. The evidence of TJdenis does not show that he was in a positionto say from his own knowledge when the second accused went toRotumba.
The deceased was murdered in the early hours of August 16 when hewas sleeping in the hut. The other occupants of the hut at the time werethe first accused, second accused and Deonis. The deceased hadfour injuries. Two of them were very seriousinjuries—one
being necessarily fatal. They caused a fracture of the jaw and acomminuted fracture of the cheek bone one inch from the right eye.These injuries had been admittedly caused by an axe. Close to eachof these injuries was found an incised wound about f" long and skin deep.The Doctor undertook to say that these injuries could not have beencaused by a glancing blow of the axe and that they must have beencaused by a “ sharp cutting weapon like a knife ”. Unfortunately, thisexpression of opinion does not appear to have been sufficiently tested bycross-examination.
The Only eye witness for the Crown was the little boy Deonis. Heappears to have been in the arms of the deceased’s mother when he gaveevidence from the -witness box.. He has been living with the deceased’smother and brother ever since the murder. The learned trial Judgewas satisfied that he was a competent witness in spite of his tenderyears. Assuming that the trial Judge had deliberately omitted toadminister an oath or affirmation to Deonis, the appellant’s Counselcontended that Deonis’ evidence was inadmissible, on the authority ofRamasamy’s case (1941) 42 New Law Reports 529. That assumptionwas found to be erroneous as the Judge had, in fact, affirmed the boy.It must, of course, be presumed that in spite of the boy being about fiveyears old the trial Judge was satisfied that he understood the sanctityof an affirmation and the necessity of speaking the truth. However,as reference has been made to Ramasamy’s case' (supra) I wish to statethat the decision in that ease would have to be reconsidered in view ofthe Privy Council decision in Mohamed Sugal Esa Mamasan Rer Alalah"1946 Appeal Cases 57) that section 13 of the Indian Oaths Act, 1873,which is in identically the same terms as section 9 of our Oaths Ordinanceapplied not only in cases where the omission to administer the oathoccurs per incuriam but also where the Court deliberately refrains from- administering the oath.
WTJE YE WARDENS A.C.J.—The King v. Dingo
Deonis who was examined in the Magistrate's Court only some monthsafter the incident stated at the trial —
“ I saw my mother (first accused) and my elder brother (second
accused) attacking my father that night with the axe and the knife.
I saw that by the lamp light (i.e., light from a clay lamp with coconut
oil and a wick). When my father was attacked he was lying down.
Mother used the axe. Brother used the knife ”.
The first accused gave evidence to the effect that she used an axeand caused the injuries under grave and sudden provocation, as shesaw the deceased sleeping with his mistress on -the verandah. Shestated that the second accused did not join in the assault.
The Counsel for the appellant pointed out that the evidence of thefirst accused was supported by Deonis who said that the mistress wasin the house at the time that his father was killed. Unfortunately,no reference was made to this evidence in the charge. But, on theground of this omission we are unable to interfere with the verdict ofthe Jury against the first accused.
On the evidence in the case the convictions of the second accusedcould he sustained only on the ground that the murder was committedin pursuance of a common murderous intention shared by the first andthe second accused. The facts alleged to prove the common intentionand referred to in the charge to the Jury are—
(а)Motive. —The first accused was annoyed with the deceased, as
he kept a mistress and the second accused was not only dis-pleased with the deceased over the incident of July buff stoodto benefit by the death of the deceased, as he would thenbecome the permit-holder under P5.
(б)The second accused joined his mother at the hut at Rotumba
on August 15, and the deceased was killed that very night.
The second accused made a false statement P8 to the Village
Headman the morning after the murder.
The second accused hid the axe with which the first accused hacked
The second accused inflicted certain injuries on the deceased at
the same time as the first accused. I
I shall deal with each of the matters in order :—
(a) It is, no doubt, correct that in a criminal case it is futile to inquireinto the question of the adequacy of a motive when a motive is proved.iBut when the Crown relies on this alleged motive to' prove community ofintention and makes one person liable for the injuries inflicted by anotherthe question of motive deserves some consideration. The fact that twopersons have motives for killing a third party do not necessarily provea common intention. They may each have an intention to kill thethird party but they need not necessarily have a common intention.Moreover, with regard to the alleged motive of- the second accused there
W1J iDYEWARDENE A.C.J.—The King v. Dingo
is no evidence that the second accused was impatient to succeed his fatheras permit-holder on P5. No doubt, in a sense the second accused stoodto gain by the death of his father. But in that sense every child may besaid to have a motive for killing his father as he may then expect tosucceed to a share of the ' father’s estate by intestate succession if, ofcourse, it is not proved that he was responsible for the death.
As for the incident in July we find that the deceased does not appearto have been annoyed very much by it. He does not seem to havetaken any steps to cancel the nomination of the second accused as hissuccessor.
In referring to this point the learned trial Judge has failed to drawthe attention of the Jury to—
the evidence of Deonis and the' first accused that the second
accused came to Rotumba a few days before the minder ;
the fact that Udenis’ evidence on the point has to be carefully
the evidence of the first accused that the second accused came at
the invitation of the deceased.
No doubt, the second accused made a statement to the Headmansuggesting that the deceased had been killed by some unknown manin the night. That statement was, of course, untrue. But I fail to seewhy any inference of common intention should be drawn from this factwhen the most natural explanation is that the second accused wastrying to protect his mother who, he thought, had been badly treatedby his father.
The second accused hid the axe as he wanted to protect his motherand at her request.
Even accepting the evidence of Deonis that he saw the secondaccused using a knife it is impossible to infer from the infliction of thoseinjuries either a murderous intention or a common murderous intention.Is such an intention established by the fact that the second accusedinflicted two injuries skin deep ? Moreover there is an error in thecharge of the learned trial Judge on this point. Deonis’ evidence wasthat having gone to sleep he got up at midnight and saw by the lightof the coconut lamp that the second accused was using a knife. Thefirst accused admitted that there was such a lamp in the house but sheadded, “ I blew out the light when I went to sleep ”. There was nothingin the statement P8 of the second accused to contradict that statement.In that statement the second accused said :
“ About midnight my mother put me up and told me that she
heard a noise outside. Opening the door and lighting the lamp I and
my mother came out ”.
In the course of his charge to the Jury the learned trial Judge said :
“ Then what about the lamp ? Deonis says there was a lamp.
P8, the statement of the second accused, says there was a lamp.
Eirst accused says, ‘ No, there was no lamp ’ ”,
DIAS J-—Dhirrnadasa v. Meraja
The question whether there was a light at the time of the murder isvery important. If there was no light then Deonis could not have seenthe second accused using his knife to inflict those two trivial injuriesquite close to the serious injuries inflicted by the first accused.
If the attention of the Jury had been directed to all these matters,we do not think the Jury would have found the second accused guiltyof murder.
We would therefore acquit the second accused.
Second accused acquitted.
THE KING V. DINGO et el