The King v. Joseph Perera.
[Court of Criminal Appeal.]
1941Present: Howard CJ., Moseley S.PJ, and Cannon J.
THE KING v. JOSEPH PERERA et al.
M. C. Chilaw, 12,292.
Evidence—Statement indicating a motive—Statement explaining conduct
Statement as to cause of facts in issue—Admissibility—Evidence Ordi-nance (Cap. 11), ss, 7, 8 (J) and (2)—Charge of murder—Failure todistinguish between intent to cause death and knowledge that it is likelyto be caused—Misdirection.
The appellants, who were charged with murder, were employed on afarm owned by one P. The deceased and his wife M were also employedunder P but had left his employment in consequence of certain improperadvances made to M by P. Two days before the incident, E, who knewthe appellants as workers on the farm, saw the latter in the company of Pand overheard some remarks uttered by P. In consequence E made astatement to M, which he asked her to convey to the deceased by wayof warning. P was not called.
1 24 If. L. R. 327.
MOSELEY CJ'.—The King v. Joseph Perera.
E, when he gave evidence, was not questioned what the words werewhich were uttered by P but M in cross-examination said that “ E inform-ed me that P told the two men that they would be given Rs. 5 if they wereto bring my husband to the estate and further he warned me to cautionmy husband. It' is not true that because of that my husband took thefirst opportunity to fight the first accused ”,
Held, that the evidence of E’s warning to the deceased was relevantunder section 8 (1) of the Evidence Ordinance as indicating a motivefor the acts of the appellants.
It was also admissible as, not being evidence of a statement the truthof which is in issue, it did not infringe any provision relating to hearsay!.
Held, further, that the evidence of M regarding the passing of theinformation to the deceased was relevant under section 8 (2) of theEvidence Ordinance as a statement explaining the conduct of thedeceased.
Held, also, that the evidence of M in regard to the conduct towards herof P was relevant under section 7 of the Evidence Ordinance as beingthe occasion, cause, or immediate cause of facts in issue.
Where in a charge of murder it was open to the jury to convict theaccused of culpable homicide not amounting to murder the omissionon the part of the trial Judge to direct the Jury whether in causing thedeath the accused had the intention of causing death or merely knowledgethat he was likely to do so is a material misdirection.
PPEAL from a conviction by a Judge and jury before the 2ndWestern Circuit.
H. V. Perera, K.C. (with him J. E. M. Obeyesekere, M. Balasunderam,and M. M. Kumarakulasingharri) for accused, appellants.
E. H. T. Gunasekera, C.C., for the Crown".
January 13, 194L Moseley S.P.J.—
The appellants were convicted of murder at the Colombo Assizes onNovember 18, 1940, and were sentenced to death by Soertsz J. The casefor the prosecution is that the deceased came by his death as the result ofa blow on the head inflicted with a club by the first appellant, and thatthe second appellant was present at the time and that he and the firstappellant were acting in the furtherance of a common intention. The firstappellant admitted striking the deceased with a stick, but says that hestruck at the latter’s hand and that he did so in the exercise of the rightox private defence. The Jury by their verdict rejected this defence.In order that the points raised in appeal may be properly appreciateda short statement of the facts as they emerged from the prosecutionwitnesses is necessary.
At the time of the incident the two appellants were employed on a farmowned by one Proctor. The deceased and his wife, Mango Nona, hadat one time been employed on the estate but had left before the appellants’term of employment began. According to Mango Nona the proprietormade advances to her which were not acceptable. She and the deceasedtherefore left the estate and went to live on some Crown land near byand in sight of Proctor’s farm. The latter, according to the woman,persisted in his overtures. Two days before the incident one Elaris,
MOSELEY S.P.J.—The King v. Joseph Perera.
who knew the appellants as workers on the farm, saw the latter in thecompany of Proctor and another and overheard some words uttered byProctor. In consequence he made a statement to Mango Nona, whichhe asked her to convey to the deceased by way of warning. Elaris wasnot questioned as to what the words were which were uttered by Proctorbut Mango Nona in cross-examination said: “ Elaris had told me thatMr. Proctor had told two men on the estate that they would be givenRs. 5 if they were to bring my husband to the estate, and further he(Elaris) had warned me to caution my husband. I conveyed that inform-ation to my husband. It is not true that because of that my husbandtook the first opportunity to fight the first accused.”
Two days later the witness Ramasamy fell in with the deceased whomhe had known for six months at a fair and accompanied him on his wayhome. At a spot on the road near the entrance to Proctor’s farm he sawthe second appellant, club in hand, under a milla tree. The firstappellant was a short distance away, and accosted the deceased, saying“ Stop you fellow, you and I have a matter to discuss ”. The deceasedseized the first appellant, saying “ What are you going to do ? ” Thesecond appellant then ran up with the club, whereupon the deceasedturned and fled along a bund pursued by the appellants. After goingsome distance the first appellant snatched the club from the hands ofthe second, and after going a little further, struck the deceased on thehead with the club. The deceased fell on the slope of the bund. Thesecond appellant pulled him up the slope by the hair and saying thathe must kill him, trampled on him with his heels. The deceased wasthen dragged by the hair by the appellants, preceeded by Proctor whoseems to have appeared very quickly on the scene, to the latter’s bungalowwhere the deceased collapsed.. He died early on the following day.
The first point of law taken in appeal is that the evidence of Elarisof the warning which he conveyed to the deceased through the latter’swife consequent upon overhearing the words alleged to have been spokenby Proctor is inadmissible. The same objection is taken to the evidenceof Mango Nona as to what Elaris told her, and what she, in consequence,told her husband, also to her evidence regarding the conduct of Proctortowards her.
In the first place it was argued that the words uttered by Proctorin the hearing of Elaris are hearsay and not admissible since Proctor wasnot called as a witness. This is a point which might have some substanceif it were sought to put in evidence a statement of fact made by Proctor,the truth of whch was in question, as, for example, a statement madeafter the commission of an dffence which implicated a certain person.The English authority cited by counsel for the appellants, The King v.Christie was in respect of such a case. It seems to us therefore to haveno bearing on the point. The same observation applies to the case ofKhijiruddin Sonar v. Emperor’, where evidence given of a statement,made by a person not called as a witness, which implicated the accusedin the commission of an offence committed a year previously, was heldto be inadmissible. The prosecution in the present case was endeavour-ing to strengthen the case of unprovoked murder against the appellants» (1914) A. C. 545.*I.L. R. 53 Calcutta 372.
MOSELEY S.P.J—The King v. Joseph Perera.
by giving evidence of motive. It did not appear that the appellantshad a private grievance against the deceased or that they even knew himbefore the date of the incident. The prosecution, however, had in itspossession evidence of an inducement which had been offered to theappellants to take some hostile action against the deceased. If an errorwas made in the examination-inchief of Elaris, it was not in pursuingthe matter further and eliciting from the witness the exact words whichwere uttered. The failure to do this might have prejudice the appellantsin the minds of the Jury who might well have thought that the wordsupon which Elaris based his warning demanded more drastic actionagainst the deceased than they actually did. The possibility, however,of such prejudice was removed by the statement in cross-examination ofMango Nona, to which reference has been made. The evidence, then,of the words which Elaris told Mango Nona that he heard Proctor utter,goes a long way towards attributing to the appellants a motive whichotherwise seemed to be lacking. This has been described by Counselfor the appellants'as a “speculative” motive, but it. seems to us thatthe evidence provides a real motive for the otherwise inexplicable conductof the first appellant in accosting the deceased. It may be that theintention of the appellants, at the moment df accosting, was to do nomore than Proctor had asked them to do and that the subsequent' eventswere brought about by the deceased’s failure to acquiesce.
This evidence, then, seems to us, in so far as it indicates a motive forthe acts of the appellants, to be relevant under section 8 (1) of theEvidence Ordinance. It is also, as we have indicated, admissible, since,not being evidence of a statement the truth of which is in issue, it doesnot infringe any provisions relating to hearsay.
Was it then permissible to bring out in evidence the fact that Elarishad deemed it prudent to convey, through Mango Nona, a warning to thedeceased, and that Mango Nona had in fact conveyed such a warning?That Elaris repeated what he had heard to Mango Nona and that thelatter passed the information on to her husband seems to us to carry thecase for the prosecution no further. The evidence of their respectivestatement could only be relevant as explanatory of the conduct of thedeceased, who appears to have adopted a somewhat belligerent attitudewhen accosted by the first appellant. That attitude, in itself, might be ofno importance. But the defence was that the first appellant was actingin the exercise of the right of private defence. Mango Nona had saidthat she had conveyed the information given her by Elaris to her husbandand went on to say: “ It is not true that because of that my husbandtook the first opportunity to fight the first accused ”. The conduct ofthe deceased in respect of what we have called his belligerent attitudewas then in issue, and is explicable by the receipt, through his wife,of Elaris' information. The evidence then as to the passing on of theinformation is relevant under section 8 (2) (explanation 2) of the EvidenceOrdinance.
The' remaining objection, so far as the admissibility of evidence isconcerned, is to the evidence of Mango Nona in regard to the conducttowards her of the proprietor of the estate. Counsel for the appellantscontended that there was no nexus between Proctor and the appellants
MOSELEY SJ*J.—The King v. Joseph Per era.
in the light of which there could be attributed to the appellants a motiveconceivably possessed by Proctor. As, however, has already beenobserved, the appellants had no grievance against the deceased. Theassault on the deceased took place at the boundary of Proctor’s estate,the latter was almost immediately on the scene, and the appellants,-led by Proctor, conveyed the deceased to their employer’s bungalow.The latter appears to have approved of the appellants’ conduct, and hisown previous conduct towards the wife of the deceased seems to berelevant under section 7 of the Evidence Ordinance as being the occasionor cause, immediate or otherwise, of facts in issue. It seems to us there-fore that the objection as to the admissibility of this evidence is withoutsubstance.
The point was then taken that there was no evidence that the firstappellant committed the act imputed to him in furtherance of an intentioncommon to both appellants, or to put it more plainly and appropriately,that there is no evidence that the second appellant shared the firstappellant’s intention, whatever that may have been. Counsel for theappellants cited the case of Queen-Empress v. Duma Baidya and othersin which three persons assaulted the deceased and gave him a beating,in the course of which one gave him a blow on the head which resultedin his death. It was held that, in the absence of proof that the accusedhad the common intention to inflict such injury as would cause death,they could not be convicted of murder.
Gouridas Namasudra v. Emperor', was a case in which several personsstruck several blows, only one of which was fatal, and it was not foundwhich one of the accused was responsible for that blow. It was heldthat those who did not strike the fatal blow could not be said to contem-plate the likelihood of such a blow being struck by the others in prosecu-tion of a common object, and the conviction of murder was altered to oneof grievous hurt. We have considered these cases since they were broughtto our notice by counsel for the appellants, but it seems to us that theyshed no useful light on the present case. Indeed, it sgems to us that allsuch cases must be judged on their own merits. We Wave already drawnattention to the p£rt played by the second appellant in this incident,and in our view there was ample evidence from which the Jury couldinfer that the second appellant, although his part was less spectacularthan that played by the first appellant, had some intention, in commonwith the latter, inimical to the deceased. It might be that the firstappellant, in furtherance of that intention, exceeded the act intended,but the common intention to perform the act originally intended remains.
The next point to be taken is that the learned trial Judge did notdirect the jury, except in the light of the exceptions of section 294 of thePenal Code, as to their competence to return a verdict of culpable homi-cide not amounting to murder, that is to say, the Jury were not toldthat, if they absorbed the first appellant of the intention to cause death,or to cause a bodily injury sufficient in the ordinary course of nature tocause death, but imputed to him the knowledge that he was likely by hisact to cause death, they could convict of culpable homicide not amounting
119 Madras 483.
9 T. L. R. 38 Calcutta 6S9.
MOSELEY—The King v. Joseph Perera.
to murder. Counsel for the appellants described such a verdict as amiddle course between murder and grievous hurt. As far as punishmentfor the offence is concerned, that may be an apt description where the casefalls within the first part of section 297 of the Penal Code, but the des-cription does not truthfully apply to, cases falling within the secondpart of the section since the punishment is no greater than that providedfor cases of grievous hurt under section 317 Of the Code. To lay men,however, such as constitute a jury, there can be little doubt that theoffence of culpable homicide not amounting to murder appears a moreheinous offence than that of grievous hurt even where in the commissionof the latter offence a dangerous weapon is used.
It must be conceded that in the present case the learned trial Judgewas silent in regard to the proper verdict if no more than knowledge Ofthe likelihood of death could be imputed to the first appellant. It iscontended by Counsel for the appellants that, in the absence of such adirection, the Jury, if they thought the case more serious than one ofgrievous hurt, would feel compelled to return a verdict of murder. Inthe case of Queen v. Shwmshere Beg1 the trial Judge had in effect decidedthat the accused intended to cause the death of the deceased and simplyleft it to the Jury that if they should convict of culpable homicide notamounting to murder they should say under which one of the exceptionsthe case fell. It was held that it was the duty of the Judge to point outaccurately the difference between murder and culpable homicide notamounting to murder. In Natasar Ghose v. Emperor* the omission onthe part of the trial Judge to direct the Jury on the question whether incausing death the accused had the intention of causing death or merelyknowledge that he was likely to do so was held to be a materialmisdirection.
Counsel for the Crown relied upon the case of Rex v. Bellana VitanageEddin’, in which it was held that, in a case where the Jury could havearrived at no verd.ict other than one of murder, it was not the duty of theJudge to put before the Jury an alternative issue in regard to culpablehomicide not amounting to murder, and that to do so would merelyconfuse their minds. Those observations do not seem to us to apply tothe present case. In the light of the medical evidence and the nature ofthe weapon used, we think that it was open to the Jury to find that thefirst appellant had no more than the knowledge that he was likely by hisact to cause death and that the Jury should have been directed that itwas within their province to find accordingly. The verdict of murderagainst the first appellant is therefore set aside and, in the exercise of ourpowers under section 6 (2) of the Court of Criminal Appeal Ordinance,we substitute a verdict of culpable homicide not amounting to murder.
Since the verdict of murder against the second appellant is on thefooting of . common intention, it follows that the verdict must, in his casealso, be set aside. Of what offence then can he be found guilty ? If heshared with the first appellant the intention to cause harm to the deceasedand knew that what they were doing was likely to cause his death,he could have been convicted of culpable homicide not amounting to
1 9 Sutherland’s W. R. 51 Criminal Rulings. '0 I. L. R. 35, Calcutta 531.
» 17 C. L. W. 128.
Mayor of Galle v. The Estate & Motor Engineering Co.
murder. But it seems to us that this is putting the case rather hardlyagainst him. In chasing the deceased with a club it can safely be assumedthat he intended to use it. He was deprived of the opportunity byhaving his weapon snatched from him. While discounting the sincerityof his expressed intention to kill the deceased while the latter was on theground, it seems to us safe to impute to him, in the light of his actionin trampling upon the deceased, an intention to cause grievous hurt,although he did not actually do so. Nevertheless, under the provisionsof section 32 of the Penal Code, sharing the first appellants intentionto the extent we impute to him, he can properly be convicted of causinggrievous hurt punishable under section 317 of the Code. Weaccordingly substitute that verdict.
None of the remaining points of law appear to us to be of any substance.The applications for leave to appeal on questions of fact, the groundsof which comprise allegations of non-direction and misdirection, areequally without substance and are dismissed.
The convictions for murder and the sentences of death are in the caseof each appellant set aside, as was announced by the Court at theconclusion of the hearing of this appeal.
In the case of the first appellant a verdict of culpable homicide notamounting to murder is substituted and a sentence of ten years’ rigorousimprisonment is. imposed. We find the second appellant guilty ofcausing grievous hurt under section 317 of the Penal Code and sentencehim to eight years’ rigorous imprisonment.
THE KING v. JOSEPH PERERA et al.