082-NLR-NLR-V-46-THE-KING-v.-JINASEKERE-et-al.pdf
The King v. Jinasekere.
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1018 Present: Howard C.J., Keuneman and Jayetileke JJ.THE KING v. JINASEKERE et al.
43—M. C. Gampaha, 23,673.
JSvidence—Misdirection of fact—Statement of one accused exonerating another
Evidence in rebuttal—Death caused in course of sudden fight without
premeditation—Penal Code s. 294 exception 4—Misdirection of law.
Where the presiding Judge’s comment on the evidence of a headmanto the effect that he was in a position to say that the accused did notcarry a pointed knife, with which the deceased was alleged to have beenstabbed, did not put accurately to the jury the effect of the headman's-evidence.
Held, that there was a misdirection of fact.
Where the2nd accusedgave evidence to the effect that heandnot
"the 1st accused stabbed the deceased,
Held, that the jury should have been directed that the testimonythe 2nd accused, as stated above, by means of a statement made tobe consideredby the juryin determining the guilt or innocenceof each
of the accused.
Where anInspector ofPolice was called to rebut the evidenceof
the 2nd accusued, as stated above, by means of a statement made tohim by the 2nd accused, any further information from that statementbeyond that called in rebuttal should not be admitted.
Where the circumstances showed that the deceased received fatalinjuries in the course ofa sudden fight without premeditation inthe
heat of passion upon a sudden quarrel,
Held, that the Judge should have asked the jury to say whetherthe case came within exception 4 of section 294 of the Penal Code.
H»*HOWARD O.J.—The King Jinetekere.
A
PPEAL against a conviction by a Judge and jury before the Western, Circuit.
H. V. Perera, K.G. (with him E. A. O. de Silva and Mackenzie Pereira}^.for 1st appellant.
Mackenzie Pereira for 2nd and 3rd appellants.
D. Jansze, C.C., for the Crown.
Cur. adv. vvlt.
June 11, 1945. Howabd C.J.—
The three accused in this case were jointly indicted on a charge ofmurder. The first accused was found guilty of murder and the secondand third accused of intentionally causing grievous hurt. All threeaccused appealed against their convictions. The convictions of thesecond and third accused have already been set aside and they have beendischarged. The only points of substance taken by Mr. Perera on behalf"of the 1st accused are as follows: —
That the trial Judge told the jury that the headman’s statement
about not seeing a knife with the first accused is not worthyof much consideration, whereas the headman’s evidence was-that he was in a position to say that the first accused did n.othave the knife with which he was alleged to have stabbed the-deceased.
That certain portions of the second accused’s statement to the
Police were wrongly admitted in evidence.
That the learned Judge should have told the jury that the evidence
of the second accused could have been taken into considerationwhen they were determining the guilt of the first accused.
That on the evidence it was open to the jury to give the first
accused the benefit of exception 4 to section 294 of the Penal'Code. The failure of the trial Judge to so direct the juryvitiates the verdict.
With regard to (1) the headman, W. D. Elaris, was called by the-Crown. In cross-examination he stated as follows: —
“ The 1st accused was in my company for half an hour. I did notfind this pointed knife (P 1) in his possession. I did not see it at anytime in his hand or in his waist. I did not see the handle of a pointed'knife which had been stuck between his sarong and' shirt. I am in aposition to say that this knife (P 1) was not with him.”
In reply to questions put by the Court the headman stated as follows:
“ I found P 1 near the 3rd accused’s house- in. the garden. Oninformation I picked up the knife. At that time the 1st accused waswearing a sarong and a shirt. As we were walking side by side talking-it was difficult for me to see what he had. When I came to the scenewhere Jane Nona was lying fallen I saw these- wounds and when Isearched the 1st accused he had a clasp knife with him.”
The Crown case was based on the theory that the- first accused stabbed'the deceased with the pointed knife (P 1). The headman says he arrived'
HOWARD CJ.—The King v. Jmatekere. ZiB
at the scene four minutes after the 1st accused, who was with him, hadturned baok and run towards the cries. The headman saw no bloodon the 1st accused and the clasp knife (P 3) was in his waist. The questionas to whether the 1st accused was carrying the knife P 1 was in thecircumstances of the case a most important one. We think that thelearned Judge misdirected the jury in brushing pside the evidenceof the headman on this point. It was open to the jury to take the viewthat theheadman might possibly not have noticedthe possessionby the
first accused of P 1. Onthe other hand the headman stated thathe and
the firstaccused were ineach other’s company forhalf an hour.More-over theheadman statedthat he was in a positionto say that P1 was
not with him. The jury might therefore take the view that, if thefirst accused had P 1, the headman must have seen it. The Judge’scomment on the headman’s evidence on the point does not accuratelyput to the jury the effect of the headman’s evidence and in our opinionamounts to misdirection.
With regard to (2) it would appear that when the case for the defencewas closed, Crown Counsel called Inspector Wijesinghe who stated that,on being taken into custody, the second accused made a statementin the course of which he said “ We fell in a bunch and therefore I do notknow who stabbed Jane Nona ". Although the record does not say so,the Inspector was no doubt called to rebut that part of the evidence ofthe second accused in which he said he stabbed the deceased. InspectorWijesinghe was not cross-examined. But in reply to a question put- by the Court he read out a further statement made by the second accusedin which the latter was supposed to have said: —
“ Karamanis, Gunasekere, Sediris and Jane Nona chased after meto our laud. Karamanis assaulted me with a club, I fell down. Idid not assault Karamanis. She came up to the spot. (She is LaisoHamy.) When 1 was assaulted we fell in a bunch. Gunasekerewas not at the spot. I do not know who stabbed Jane Nona. I donot know who assaulted Karamanis. I am not angry with Jane Nonaor Karamanis. I do not know who murdered Jane Nona.”
This further statement should not have been produced in evidenceinasmuch as it was not called in rebuttal of anything the second accusedhad said in evidence. Moreover, the learned Judge used this statementin his summing up to reinforce the contention that the second accusedwas not speaking the truth and therefore a witness on whose evidencethe jury could place no reliance.
With regard to (3) the second accused went. into the witness box andgave evidence to the effect that he and not the first accused stabbedthe deceased. This evidence if accepted by the jury would haveexonerated the first accused. In commenting on the evidence of thesacond accused the learned Judge stated as follows: —
** Then gentlemen, in considering the case for the second accusedyou must consider his case entirely. You must keep the first andthird accused aside in anything which might implicate either of them.This passage is somewhat obscure. It might mean that the evidenceof the second accused could 'not be taken into consideration in considering
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Coomaraswamy and Vinagagamoorthg.
the guilt of the first and third accused. In this case it was too favourableso. far as the first and third accused were concerned. Or by the use of theword “ entirely ” it might mean that his evidence could not either beused as testimony in favour of the first and third accused. We thinkthat the jury should have been told that the testimony of the secondAccused formed part of the evidence in the case and could be consideredby the jury in determining the guilt or innocence of eaoh of the accused.
With regard to (4) the case for the first accused, based on the injuriesfound on the Beoond and third accused which were to a certain extentunexplained, was that the deceased received her fatal injuries in the courseof a sudden fight and therefore the circumstances were such as to bringthe oase within exception 4 of section 294 of the Penal Code. Moreover,if the evidence of the second accused is accepted there' was evidence tosupport the argument that the injuries found on the deceased werereceived in the course of a sudden fight without premeditation in theheat of passion upon a sudden quarrel. In these circumstances wethink that the jury should have been asked by the learned Judge to saywhether the case came within this exception.
We have been very much impressed by the argument of Mr. Jansze,on behalf of the Crown, that there can be no doubt about the guilt of thefirst accused inasmuch as he was implicated immediately after the arrivalof the headman on the scene by Karamanis and Gunasekere. In spite,however, of the manifest force of this contention we do not think we canallow the conviction to stand. We therefore set it aside and direct thatthe first accused be tried before another jury.
Conviction- set aside.
Retrial ordered.