HE ARNE J.—The King v. Johanis.
[Court of Criminal Appeal.]
1943Present: Moseley A.C.J., Hearne and de Kretser JJ.
THE KING v. JOHANIS et el.
1—M. C. Kalutara, 14,942.
Murder—Plea of sudden fight upon a sudden quarrel—Circumstances bringingthe case within the exception proved—Jury in doubt as to view theyshould take—Exception 4 to Penal Code, s. 294.
Where, in a charge of murder, exception 4 to section 294 of the PenalCode is pleaded on behalf of an accused and circumstances are inevidence which bring the case within the exception and which the Juryregard as having been proved, they may or' may not hold that thosecircumstances established that there was a sudden fight upon a suddenquarrel and that the accused did not take undue advantage of it.’
In such a case the principle laid down in The King v. JamesChandrasekere (44 N. L. R. 97) does not apply.
It is only if they are in doubt as to whether they should or shouldnot hold that circumstances existed which brought the case within the.exception, that the existence of such circumstances cannot be held proved.
rPHIS was an application for leave to appeal on the facts from aconviction by a Judge and Jury.
M.M. Kumarakulasingham, for appellants.
H. W. Weerasooriya, C.C., for respondent.
rFebruary 1, 1943. Hearne J.—
The first accused was found guilty of the murder of P. V. Agiris aliasKalenis and the second accused of the abetment of “ the offence aforesaid,which said offence was committed in consequence of such abetment ”.
In supporting _ the application of the , first accused for leave to appealCounsel argued that the verdict of murder was unreasonable for thereason that, although the accused did not give evidence, there was amplematerial in the prosecution case on which the Jury could have foundthat the homicide was committed in “ a sudden fight ”. In the courseof his argument it was pointed out that the presiding-Judge had notdirected the Jury on the law relating to exception 4 of section 294 of thePenal Code or invited them to consider whether a defence based uponthe exception arose out of the evidence. We felt that this omission wasso closely related to the application before us that it was desirable toconsider it and, although a point of law was thus raised in an applicationto appeal on the facts, a proceeding of which this Court in principle hasdisapproved, we gave leave for it to be argued.
The deceased alone was in a position to speak to all the circumstanceswhich preceded the infliction upon him of fatal injuries, the nature ofwhich left no doubt of his assailant’s murderous intentions. Threestatements alleged to have been made by him and his deposition to theMagistrate were put in evidence and Counsel directed our attention to
HEARNE J.—The King v. Johanis.
variations in what he said at. different times. A fair summary of thpprosecution case against the first accused, based upon the dyingstatements and the deposition of the deceased, as well as the evidenceof the witness, Emalin Nona, would be as follows. Emalin Nona, the wifeof the deceased, told him she had been abused by the first accused.This was in their house where the first accused also lived. The deceasedquestioned the first accused, his brother, who said that “ he was entitledto abuse her if he so wished ” or words to that effect. It is in doubtas to whether the deceased had spoken to his brother in the latter’s roomor had done so from the room in which he had been engaged in conversa-tion with his wife. On coming out of one or the other of these two'rooms the deceased heard a noise, which suggested to him that a gun wasbeing loaded. The first accused “ opened the door, of his room ” (thissuggests he had been in his room by himself behind a closed door) and“ put the gun out ”. There is no suggestion that the gun was pointedat the deceased or that any attempt was made by the first accused toshoot the deceased. The deceased “held the muzzle, the gun went off,and seizing the first accused by one hand he wrenched and threw the gunaway ” with the other. A struggle took place, in the course of which thedeceased held the first accused by his neck. The latter asked Piyasena,the second accused, to bring a knife, 'which he did. With this knife the-first accused stabbed the deceased.
It was conceded by Crown Counsel that the deceased met his deathin the course of a sudden fight and that premeditation on the part of thefirst accused was excluded by the evidence. These two facts being inhis favour the question arises of whether the sudden fight was “ upon asudden quarrel ”. In the argument of Crown Counsel the sudden fightwas occasioned by the act of the deceased in dispossessing- the firstaccused of the loaded gun which he had in his hands, that he was entitledto act' as he did assuming, as is very probable, he thought his life was indanger and that this in itself could not be regarded as “ a sudden quarrelBut even, ‘ Crown Counsel went on, if the aggressive attitude adoptedby the deceased when he questioned the first accused led the latter, toload the gun and point it beyond the door, and even if the quarrel may beregarded as having started then and. continued till the “ gun incident ”occurred, so that it may be, said the sudden fight was “upon a suddenquarrel ”, the Jury, if directed in accordance with the judgment of thisCourt in The King v. Chandrasekere (supra) could not have held that adefence based upon exception 4 of section 294 of the Penal Code had beenproved.
The submission that was made was that, as it was possible for the Juryto take two views of the evidence only one of which, according to theargument, could have led them to return a verdict of culpable homicide,the accused had left in doubt “ the circumstances which would bringthe case within one of the exceptions” and in consequence had notdischarged the onus which section 105, read with section 3 of the EvidenceOrdinance, placed on him.
That, I think, is a misunderstanding of what was decided in The King v.Chandrasekere (supra). This case lays down that if the existence ofcircumstances which would bring “ the case within one of the exceptions ”
de Mel and Marikar.
is- involved in doubt, the existence of those circumstances cannot be said tohave been proved. It does not lay down that if two possible viewsmay be taken of a set of proved circumstances, the Jury is precludedfrom adopting either or those two views. In fact, as it appears to me,just as inevitably as one cannot have one side of a sheet of paper withoutthe other, there cannot be one view of a matter and not the contraryview as well. If, for instance, an accused rests his defence uponexception 1 of section 294 of the Penal Code, the Jury may decide thathe has proved, within the meaning of proof in section 3 of the EvidenceOrdinance, the circumstances alleged by him and yet may hold or nothold that he lost his self-control in consequence' of the provocationto which he was subjected. Similarly, when circumstances are inevidence which the Jury regard as having been proved, thay may or maynot hold that those circumstances established that there was a suddenfight, upon a sudden quarrel, and that the accused “ did not take undueadvantage, &c.”. It is only if they are in doubt as to whether theyshould or should not hold that circumstances existed which brought thecase within exception 4 of section 294 of the Penal Code, that theexistence of such circumstances cannot be said to have been proved..Even if two views are possible they may have no doubt as to which ofthese views they prefer to take on the basis of probability.
In our opinion, had the Jury been invited to consider the applicabilityof exception 4 to the evidence of the case, they may have found, as it wasopen to them to find, that the accused was not guilty of the offence ofmurder. As they were not so invited, we think that the first accusedmust have the benefit of the lesser verdict. The King v. Vidanelage Lanty
In regard to the second accused, it appears that if the first accusedhad been found guilty of culpable homicide the Jury, following thelearned Judges’s directions oh the law, would probably have found himguilty of an abetment of that offence.
We set aside the verdicts and sentences, and substitute in respect of thefirst accused a verdict of culpable homicide and in respect of the secondaccused a verdict of abetment of, that offence. The first accused issentenced to ten years’ rigorous imprisonment and the second to five years’,rigorous imprisonment.