THE KING v. NAVARATNAM

062-NLR-NLR-V-46-THE-KING-v.-NAVARATNAM.pdf


KE UN EM AN J.—The King v. Navaratnam.
181
[.Court of Criminal Appeal.]
1945 Present: Kennem&n, Wljeyewardene and Jayetileke JJ.THE KING .v. NAVARATNAM.
8—M. C. Mallakam, 26,492.
Right of judge to recharge jury—Jury divided 4 to 3—Judge directs jury on amatter relevant—Criminal Procedure Code s. 243 (2).
Where a jury is divided 4 to 3, the Judge is entitled to recharge thejury on a specific matter which he thinks relevant in order to clear theirminds and enable them to arrive at a proper verdict.
The King o. Rajakaruna 1 followed.
A
PPEAL against a conviction by a Judge and jury before theNorthern Circuit.
M.M. Kumarakulasingham. for accused, appellant.
E. H. T. Gunasekem, G.C., for the Crown.
March 29, 1945. Keuneman J.—
The appeal in this case arises under the following circumstances.After the charge by the Trial Judge, the jury retired and returned afteran interval. The Clerk of Assize then asked the Foreman whether she.jury was unanimous. The Foreman replied in the negative, and addedin reply to a further question that the jury were divided 4 to 3. TheTrial Judge then asked the Jury—“ Is there anything on which I can beof assistance to you ? ” The Foreman mentioned one matter and the
1 42 N. L. R. 337.
182KEUNEMAM J—The King v. Navaratnam.
Trial Judge explained tke facts relating to that matter and pointed outthe burden that rested on the Crown.
The record then runs as follows: —
“ Foreman.—Will you give us further time to consider ?
" Court.—Very good, do so.”
The jury do not appear to have retired at this point, but probablyconsulted among themselves. Thereafter the record runs—
” Foreman: We are agreed upon the verdict. We think the identityof the accused is not proved beyond any reasonable doubt, as the story‘ Move away ’ looks artifical. Besides these witnesses belong to thesame group. So it creates some doubt in our minds.”
At this stage the Foreman handed over to the Trial Judge a papermarked X in almost the same terms as his statement. This the Judgeread and handed over to the Clerk of Assize.
The record goes on—
“ Court: The doubt must be a reasonable one. It should not be afanciful doubt, it should be a doubt which would make you hesitateto act, and say you are not satisfied. It must be a real doubt, such adoubt which might occur before you come to an important decision.Do you wish to discuss it any further ? ”
The record does not show that the jury retired thereafter, but it islikely that they consulted together. Later, in reply to the questionsput by the Clerk of Assize, the Foreman said that the jury was unanimous,and that the accused was guilty of voluntarily causing hurt with adangerous weapon under grave and sudden provocation.
It was argued for the appellant that there were three verdicts in thecase—(1) when the Foreman said the jury were divided 4 to 3,
when the Foreman said " We are agreed upon our verdict. We thinkthe identity of the accused is not proved beyond reasonable doubt ”, &c.,and (3) when the verdict of guilty of grevious hurt under grave andsudden provocation was entered. It was also contended that the TrialJudge had no power to address the jury again, more particularly after (2).It was urged that all these were irregularities which vitiated theconviction that was finally entered.
The argument that the statement by the Foreman that the jurywas divided ■ four to three amounted to a verdict was not put forward■with any zest, and it is obvious that this cannot in any sense be regardedas a verdict in view of section 223 (2) of the Criminal Procedure Code whichruns as follows :—“ The verdict returned shall be unanimous or by amajority of not less than five to two
Counsel quite properly abandoned this argument very early.
The statement by the Foreman—“ We are agreed upon a verdict ”,&c., is claimed as the return of a verdict of not guilty. We do notagree with this contention. Under section 247 (3) and (4) the procedurewhereby a verdict is given is set out. The Begistrar or Clerk of Assizeasks—" Do' you find the accused person (naming him) fjuilty or notguilty of the offence (naming it) with which he is charged ”. It is upon
KK UN EM AN J.—The King v. Navaratnam.
183
-this that the Foreman states what is the verdict of the jury. Now inthe present case the jury were originally divided four' to three, and since .their return they had not been asked whether they were unanimous andif not how they were divided. It is urged that the Foreman’s statement“ We are agreed upon our verdict ” must mean that they were unanimous.This view' is probable but we do not think it is the only view that can betaken. Next the Foreman made no pronouncement on the vitallyimportant question as to whether the accused was guilty or not guilty,And that is what the verdict should contain. It may be argued that averdict of not guilty should follow on what the Foreman said, but thatis not the same thing as giving a verdict. As we understand the matter,the Foreman was trying to explain to the Judge th'e view the jury hadreached at that point on the facts. In reality he was explaining to the-Judge how the minds of the jury were working. It was utterly un-necessary to do so, and although the common sense of the ordinaryjuror is and can be relied upon by our Courts he is not always the personbest qualified to explain the logical processes by which his mind workB,and still less how the minds of all the jurors work. We think the Judgeregarded this statement in that light, and to assist the jury he explainedfurther to them what was meant by “ reasonable doubt ”, a point ofwhich they may not have had a clear recollection at that stage. Withthat explanation before them the jury came to a conclusion .whichcertainly appears to be different from the conclusion they entertained alittle earlier.
In the Kin j v. Rajaharuna 1 it was held that when the jury weredivided four to three the Judge was entitled to recharge the jury not onlyon the law but also on the facts, although there was no special provisionin our Code to that effect. A passage from the judgment in Hamid Aliv. Emperor 2 was quoted with approval.
‘II he (the Judge trying the case) thought it fairer and clearer andsimpler to recharge the jury on certain specific points and to tell them togo and get their heads clear on the subject, there is nothing in the Codeagainst it ”.
In our opinion the Trial Judge in this case was entitled to recharge thejury on the specific matter which he thought relevant in order to cleartheir heads and enable them to arrive at a proper verdict. No doubt thislight should be wisely and sparingly us?d, but we do not think that in thepresent case objection can be taken to the recharge.
We may add that, under our Code the specific right is reserved to theJudge, if he does not approve of a verdict returned, to direct the jury toreconsider their verdict, and the verdict given after 6ueh reconsiderationmust be deemed to be the true verdict—see section 248 (2). In view ofthis it is difficult to see why the right should be denied to the Judge toassist the . jury in any matter at any stage before the actual verdict isreturned, if in the opinion of the Judge circumstances have arisen whichindicate that such assistance is essential.
The appeal fails and is dismissed. The application for reduction of the•sentence is also dismissed.
Appeal dismissed.
* A. J. R-, 1930, Calcutta 320.
1 42 N. L. R. 337.