THE KING v. SURIYA ARATCHIGE FERNANDO, et al

064-NLR-NLR-V-48-THE-KING-v.-SURIYA-ARATCHIGE-FERNANDO-et-al.pdf


The King v. Suriya Aratchige Fernando.
"200
[Court of Criminal Appeal]
1947Present: Wijeyewardene J. (President), Jayetileke
and Canekeratne JJ.
THE KING v. SURIYA ARATCHIGE FERNANDO, et al.
Appeals 5-8, with Applications 44-47.
S.,C. 124—M. C. Panadure, 43,725.
Misdirection—Failure of trial Judge to direct Jury on a possible verdict—
Unlawful assembly—Conviction of less than five persons—Penal Code,
s. 146.
The appellants were convicted of murder.
Therial Judge directed the Jury not to consider the verdict of culpablehomicide not amounting to murder when, in fact, it was open to themto consider such a verdict.
Held, that there was misdirection.
Less than five persons can be convicted of having been members ofan unlawful assembly if it can be proved that there were of her personswho, though not charged, had the same common object as the personsconvicted and were sufficient in number to constitute with those personsan unlawful assembly.
WIJEYEWARDENE J.—The King v. Suriya Aratchige Fernando. 201
A
PPEALS, with applications for leave to appeal, against fourconvictions in a trial before the Supreme Court.
A. H. C. de Silva (with him Mahesa Ratnam), for the first accused.
H. Wanigatunga (with him Mahesa Ratnam), for the second accused.
P. J. Kurukulasuriya (with him Dodwell Gunawardana), for the thirdaccused.
M.M. Kumarakulasingham, for the fourth accused.
Boyd Jaynsuriya, C.C., for the Attorney-General.
Cur. adv. vult.
April 2, 1947. Wijeyewardene J.—
The four appellants and one Daniel Fernando were indicted on twocounts The first count was that they were members of an unlawfulassembly, and the second count was that they, as members of an unlawfulassembly, committed murder by causing the death of one Carolis Perera.The Jury found the four appellants guilty of murder and returned averdict of not guilty in favour of Daniel Fernando.
It was contended in appeal that, in view of the acquittal of DanielFernando, it was not open to the Jury to return a verdict against theappellants under section 296 read with section 146 of the Penal Code.We do not think there is any merit in that contention. . In the firstplace, it was not the case for the Crown that the five accused who wereindicted were the only members of the unlawful assemby. Moreover,it is quite clear from the proceedings that, while there was overwhelmingevidence that the four appellants and another took part in the transactionwhich resulted in the death of Carolis Perera, there were circumstanceswhich involved in some doubt the identity of the fifth person—whetherit was Daniel Fernando or a brother of his.
There remains, however, the second point argued in appeal—thatthere was a misdirection when the learned. trial Judge stated in thecourse of his charge that a verdict of culpable homicide not amountingto murder did not arise for consideration in this case.
The evidence led by the Crown showed clearly that the appellantsand another had inflicted a number of injuries on Carolis Perera. Thedefence was that the second accused inflicted some injuries on CarolisPerera in the exercise of the right of private defence and that later someother persons—not the other accused in the case—came and joined inthe attack on Carolis Perera. The trial Judge asked the Jury to considerwhether any of the accused were guilty of murder or of voluntarilycausing grievous hurt and invited them to acquit the accused if theyrejected the evidence for the Crown or thought it probable that theinjuries on Carolis Perera were caused in the circumstances deposed toby the second accused. He proceeded to say' “ Counsel for the defencehas referred to culpable homicide not amounting to murder, but I willask you not tc consider that”. After careful consideration, we havereached the decision that this was a misdirection. It is not possible
202WIJEYEWARDENE J.—The King v. Keerala.
for us to speculate as to whether the Jury would or would not havereturned a verdict of culpable homicide not amounting to murder if theydid not receive the direction not to consider such a verdict. It wasopen to the Jury to consider such a verdict in this case, though it issomewhat difficult, to say how a reasonable Jury could have broughtsuch a verdict.
The decision of the Court is that a verdict of culpable homicide notamounting to murder should be substituted for the verdict of murder.We sentence each of the appellants to undergo rigorous imprisonmentfor ten years and pay a fine of Rs. 1,000 and in default undergo rigorousimprisonment for a further period of three years. We direct that halfthe fine paid or recovered should be given as compensation to the heirsof Carolis Perera.
Conviction altered.