120-NLR-NLR-V-43-THE-KING-v.-LEWIS-SINGHO.pdf
1941
The King v. Lewis Singho.
491
[Court of Criminal Appeal.]
Present: Howard C.J., Nihill and Cannon JJ.
THE KING v. LEWIS SINGHO.
f
35—M. C. Gampaha, 9,193.
Murder—Committed in a sudden fight without premeditation—Lesser offence—Immaterial which party offers the provocation -or- commits the firstassault—Penal Code, s. 294, Exception 4.
Where in a charge of murder the evidence discloses that the accusedmay have committed the offence without premeditation in a suddenfight in the heat of passion upon a sudden quarrel and without theoffender having taken undue advantage or acted in a cruel or unusualmanner, it is the duty of the Judge to direct the Jury to bring in thelesser verdict.
In such a case it is immaterial which party offers the provocationor commits the first assault.
1 27 Calcutta 210.
492
HOWARD C.J.—The King v. Lewis Singho.
A
PPEAL from a conviction by a Judge and Jury before the FourthWestern Circuit, 1941.
Dodwell Gunawardene for accused, .applicant.
H. W. R. Weerasooriya C.C., -for the Crown.
Cur. adv. vult.
December 15, 1941. Howard C.J.—
In this case three points are raised by Mr. Gunawardene on behalf ofthe appellant. He, first of all, complains that evidence with regardto the death of Brampy, the husband of the deceased, was improperlyadmitted. We think that there is no substance in this point, as the deathof Brampy occurred in the same transaction as that of the deceased.In these circumstances, the prosecution was entitled to lead in evidencethe fact that Brampy was killed in the circumstances related by thewitnesses for the prosecution.
The second point made by Mr. Gunawardene is that the learned trialJudge has not given a full and adequate explanation of the defencerelating to the exercise of the right of private defence. We think thatthe explanation given of this evidence by the learned trial Judge wasadequate.
The third point raised by Mr. Gunawardene is, however, one which wethink is substantial. He complains that the learned trial Judge hasfailed to direct the Jury that the offence might come within the fourthexception to section 294 of the Penal Code, or, in other words, that theoffence might have been committed in the course of a sudden fight.It is true that no mention is made by the trial Judge in his summing-upof this possible defence. He dealt adequately with the question as towhether the appellant was exercising the right of private defence. Hehas also asked the Jury to consider whether the offence came withinthe first exception to section 294, namely, whether the appellant committedthe offence when deprived of the power of self-control by grave andsudden provocation. It is obvious that the Jury by their verdict haverejected any suggestion that the appellant committed the offence whendeprived of the power of self-control by grave and sudden provocation,or that he was exercising the rights of private defence. On the otherhand, the evidence of the prosecution establishes that the appellantarrived on the scene and upbraided the deceased and her husbandwith regard to the disappearance of his child, and according to thestory of the prosecution-witnesses, he stabbed each of them in successionafter this upbraiding had taken place. So that it is obvious that therewas a battle of words. Moreover, the accused and his wife were after-wards found suffering from injuries which might indicate that therehad been a fight. In these circumstances, we think the trial Judgeshould have directed the Jury that it is possible that the appellantcommitted this offence without premeditation in a sudden fight in theheat of passion upon a sudden quarrel, and without the offender havingtaken undue advantage or acted in a cruel or unusual manner. Withregard to this defence, I might point out that it is immaterial in such
DP. ICRBTSER J.—Arumogam v. Vaithialingam.
493
cases which party offers the provocation or commits the first assault.We think it possible that the offence may have been committed in thecircumstances which would bring it within the phraseology of exception 4.We are, therefore, unable to distinguish it from the case of The King v.LantyWe think that the appellant was entitled to have the benefitof the lesser verdict. We set aside the conviction of murder and substitutea conviction for culpable homicide not amounting to murder. Weimpose a sentence of fifteen years’ rigorous imprisonment.
Conviction varied.