THE KING v. N. A. FERNANDO et al

084-NLR-NLR-V-46-THE-KING-v.-N.-A.-FERNANDO-et-al.pdf


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S0EET8Z 8.P.J.—The King v. N. A. Fernando.
[Court of Criminal Appeal. ]
1945 Present: Soertez S.P.J., Keuneman and Wljeyewardene JJ.
3—M. C. Colombo, 32,915.'
THE KING v. N. A. FERNANDO et al.
Evidence—Value of evidence of adverse witness—Duly of jury—Meaning of
word “ premeditation "—Penal Code, s. 294, Exception 4.
The fact that a witneBB is treated as adverse and is cross-examinedas to credit does not warrant a direction to the jury that they inbound in law to place no reliance on his evidence.
It is for the jury to examine the whole of the evidence of such witness,so far as it affects both parties favourably or unfavourably for whatin their opinion, it is worth.
Where the trial Judge explained to the jury the meaning of “ pr©–meditation ” in exception 4 of section 294 of the Penal Code as if it.
were synonymous with “ intention ”.
Held, that there was a misdirection in law.
A
PPEAL against .a conviction by a Judge and jury before the WesternCircuit.
H. V. Perera, Ii.C. (with him Nihal Gunesekere and S. W. Jaya.8v.riya)for the appellant.
E. H. T. Gunaeekara, C.C., for the Crown.
Cut. adv. vult.
May 17, 1945. Soertsz S.P.J.—
The appellant and another were put on their trial on a charge ofmurder. The jury returned a unanimous verdict acquitting the otheraccused and finding the appellant guilty of the offence charged. The-main points Counsel for the appellant submitted for our consideration!were : —
That the jury were wrongly directed in that the evidence of the-witness Wijepala called by the Crown and treated by it, with the-permission of the Court, as an adverse or hostile witness was-submitted by the Judge for the consideration of the jury.Counsel’s contention was that Wijepala’s evidence should have-been excluded altogether, and that, if that had been done, there-was no other evidence to go to the jury in support of the charge.
Alternatively, that in view of the fact that Wijepala began hisevidence at the trial by recanting a substantial part of the-evidence given by him in the Court below, to’ the effect that theassailant of the deceased was the appellant, and reverting to*that statement only when he was treated as an adverse witnessand confronted with his deposition in the Court below, therewas non-direction when the trial Judge failed to caution thejury to 'examine his evidence critically, and to invite their'attention to the contradictory and otherwise unsatisfactorynature of his evidence at the trial.
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SOERTSZ S.P.J.—The King v. N. A. Fernando.
That the Judge, as it would appear from his charge, .having formedthe view that corroboration of Wijepala’s evidence was necessary,misdirected the jury by telling them that such corroborationwas forthcoming from the fact that Wijepala was clearly shownto have been present on the scene.
t(d) That the trial Judge misdirected the jury in regard to the operationof exception 4 under section 294 of the Penal Code by the termsof his explanation of the words “ without premeditation ” and bytelling them that if they were not satisfied that the appellantwas acting without premeditation in the meaning of the wordsas given by him to them, they need not address themselves anyfurther to a consideration of that exception. '
t(e) Counsel also submitted that the charge taken as a whole must haveserved to confuse rather than assist the jury, and he asked for aretrial.
To deal with the last objection first, we find that although parts of thecharge were somewhat obscure and misleading, it is quite impossible for usto hold that, in consequence, there was such a miscarriage of justice asCounsel contends there was.
t
In regard to (a) we are in respectful agreement with the view taken bya full Bench of the Calcutta High Court in Prof-ulla Kumar Saker v.King Emperor 1 that the fact that a witness is dealt with as adverse and iscross-examined to eredit, in no way warrants a direction to the jurythat they are bound in law to place no reliance on his evidence. It isfor the jury to examine the whole of the evidence of such a witness sofar as it affects both parties favourably or unfavourably for what, in their- opinion, it is worth. We, therefore, rule that the evidence of Wijepalawas rightly admitted for consideration by the jury.
As for contention (6), although we are of opinion that some part ofCounsel’s criticism of the Charge was justified, we find that, on the whole,the jury had before them in consequence of the examination-in-chief and.cross-examination of that witness all the assistance necessary to enablethem correctly to appraise the value of that evidence, for the trial Judge,although he indicated his own view of that evidence, quite clearly directedthe jury that they were not bound by his view but could form their.own upon the evidence.
In regard to (c) we agree that the Judge’s observation that the factthat Wijepala was clearly shown to hive been present afforded corrobora-tion of his evidence, was quite erroneous, but that error was dispelledI>y the intervention of Crown Counsel and, in our opinion, no prejudice.could have been caused to the appellant by that error of the Judge.The learned Judge appears to have entertained the impression that, in all-cases, a rule of practice requires a jury to be warned not to convict a man•on the uncorroborated testimony of a single witness. There is. of course,no sueh rule. The Judge was evidently thinking of the evidence of accom-plices. But, in this instance, although the jury could have acted onWijepala’s evidence, even if it was uncorroborated, and although thelearned Judge invited their attention to the fact of his presence at the
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1 A. I. R. 1931 Calcutta 401.
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S. K, J. Perera and W. W. Nonaikamy.
scene as constituting corroboration, we do not think any prejudice wascaused by that fact. Examining the case for ourselves, we find thatthere was some circumstantial corroboration of Wijepala's evidence in-regard to the deceased man’s assailant, afforded by the blood stains found'on the shirt of the appellant. The location of those stains supportsWijepala’s description of the attack. The appellant’s explanation, inCourt, of those stains on the shirt, was oontradicted by the statement he-had made to the police.
In regard to (d) we are in agreement in with Counsel for the appellant.The trial Judge explained “ premeditation ” as if it was synonymous with,
“ intention ”. There was, then, misdirection in that respect. The-jury, in view of that misdirection, and also in view of the observationmade by the Judge that if they were not satisfied that the condition-“ without premeditation ” was present on the evidence, they need not'consider that exception any further, probably refrained from such furtherconsideration.
On a careful examination of the evidence we think that, properlydirected, the jury could reasonably have found that the appellant’s case-oame within that exception. There is evidence forthcoming from the-prosecution that a quarrel arose suddenly, that upon it the deceased!struck the first blow and a fight so arose, and that the appellant dealt'only one hlow with his knife.
For these reasons, at the conclusion of the hearing of the appeal, we set-aside the conviction for murder and found the appellant guilty of culpable-homicide not amounting to murder and sentenced him to twelve year*rigorous imprisonment.
Conviction altered_