MOSELEY S.P.J.—The King v. Tikiriya.
[Gotjrt of Criminal Appeal]
1944 Present: Moseley S.P.J., Wijeyewardene and Jayetlleke JJ.
THE KING u. N. TIKIRIYA.
15—M. C. Kandy, 12,347.
Murder—Conviction by majority of five to two—Verdict against the weight of
evidence—Court of Criminal A-ppeal.
The accused wasconvictedof murderby amajorityverdict of five to-
two. The deceasedwas anephew of theaccused.They were culti-vators, who occupied adjoining gardens.On thedayin question,the
deceased who appears to havebeen weedingamongthe tea-bushes
in hisgarden received gun-shotinjuries, whichresultedinhis death
twodays later. Three days after theincident,theaccusedmade a
statement to the Magistrate under the provisions of section 134 of theCriminalProcedure Code.In thisstatement he saidthat onthe
morning in question he had fired a shot at some crows without effect.Twohours later the crows returned andhe fired again.It wasonlythen
that he saw his nephew who attracted his attention by asking, whofired the shot.
There was* no evidence from which it could be inferred that the accusedfiredat the deceased with a murderousintention.
Held,that the verdictcould notbe supported havingregard tothe
evidence in the case.
HIS was an application for leave to appeal against a convictionby a Judge and Jury before the Second Midland Circuit, 1944.
S. Subramaniam., for applicant.
E. H. T. Gunasekera, C.C., for the Crown.
Cut. adv. vult.
September 20, 1944. Moseley S.P.J.—
The applicant was convicted of murder by a majority verdict of fiveto two. The deceased was a man of about 50 and was the nephew ofthe accused who is said to be about 75. They occupied adjoininggardens where each carried on mixed cultivation. At about 11 A.M.on November 26, 1943, the deceased who appears to have been weedingamong the tea bushes in his garden received gun-shot injuries whichresulted in his death two days later. According to his widow, she heardthe shot and saw accused running towards his house with the gun. Theaccused admits having fired the fatal shot. Three days after the incidenthe made a statement to the Magistrate under the provisions of section 134of the Criminal Procedure Code. In this statement he said that on themorning in question he had already fired a shot at some crows withouteffect. Two hours later the crows returned, so he reloaded the gun,
MOSELEY S.P.J.—The King v. Tikiriya.
a somewhat primitive trap-gun, and fired again. It was only then thathe saw his nephew who apparently attracted his attention by askingwho had fired the shot.
The only point which the Jury had to decide was whether or not theaccused at the time of firing the shot, knew that the deceased was in theline of fire. The widow of the latter alleged that there was enmitybetween the accused and the deceased and that there had been enmitybetween them for 20 years. Her disclosure of this circumstance to theheadman was somewhat belated, and the headman disclaimed all know-ledge of such enmity. Moreover the widow admitted that the deceasedhad witnessed the execution of a deed by one Jotidasa in favour of theaccused, a fact which seems to indicate that they were on friendly terms.It cannot be said that the existence of a motive was proved.
There is evidence that from the firing point to the spot at. which thedeceased was shot there was a clear view, but the fact that the deceasedwas engaged in weeding suggests his close proximity to the tea busheswhich grew there. The age of the accused, a certain weakness of visionindicated by the fact that he wore glasses, and the range which is saidto have been 90 feet, seem to us to render it highly probable that, theaccused did not in fact see the deceased. Moreover, if the deceased wasengaged in weeding, a stooping position might well result in theconcealment of his body from view.
It is not in favour of the accused that he ran away after firing the shot.Hut, according to his own account, he was dazed when he realised whathe had done and his first impulse might well have been to run. Thefact that he had already shot at the crows that morning is borne out bythe evidence of the widow who said that she had heard such ashot.
There is one other feature in this case that seems to us to negative amurderous intention on the part of the accused. He had in his house amuzzle-loading gun which would seem a more appropriate weapon to beused if one intended to take the life of a human being, while for killingor securing crows the trap-gun might be eminently suitable.
A careful examination of the evidence has led us to the conclusionthat there are no facts from which it can be inferred that the accusedfired at the deceased with a murderous intention. The verdict cannot besupported having regard to the evidence.
The appeal is allowed. Conviction and sentence are quashed.
THE KING v. N. TIKIRIYA