The Kina v. Vidanalage Lanty.
[Court of Criminal Appeal.]
1941 Present : Moseley S.P.J-, Keuneman J. and de Kretser JJ.
THE KING v. VIDANALAGE LANTY.
4—M. C. Kalmunai, 25,096
Misdirection of law—Evidence to support lesser verdict—Failure to give properdirection—Statement made under section 122 of the Criminal ProcedureCode signed by witnesses—No prejudice to accused—Court of CriminalAppeal Ordinance, s. 6 12).
There was evidence in this case upon which it was open to the juryto say that it came within exception 4 to section 294 of the PenalCode and that the appellant was guilty of culpable homicide not amount-ing to murder. No such plea, however, was put forward on his behalf.
In the course of his charge the presiding Judge referred to this evidenceas part of the defence story but not as evidence upon which a lesserverdict might possibly be based.
Held, that it was the duty of the presiding Judge to have so directedthe jury and that in the circumstances the appellant was entitled to havethe benefit of the lesser verdict.
Held, further, that where statements of witnesses recorded undersection 122 (1) of the Criminal Procedure Code have been signed by themcontrary to the express provision found in the section, the use at the trialof such a statement is not a ground for quashing the conviction whereno prejudice has been caused to the appellant thereby.
318MOSELEY S.P.J.—The King v. Vidanalage Lanty.
HIS was an application for leave to appeal against a conviction formurder before a Judge and jury at the Batticaloa Assizes.
C. Suntharalingam (with him S. W. Jayasooriya and J. A. P. Cherubim),for accused, appellant.
-Vthal Gunasekera, C.C., for the Crown.
May 8, 1941. Moseley SP.J.—
This was an application for leave to appeal against conviction. Theappellant was convicted at the Batticaloa Assizes, on March 20, 1941,before Nihill J. of murder, and was sentenced to death. At the hearingCounsel for the appellant was allowed to raise certain questions of law.We may say at at once that, in spite of several unsatisfactory features inconnection with the evidence of the principal witnesses for the prosecution,we are unable to say that the verdict of the jury is unreasonable, or thatit cannot be supported having regard to the evidence before it.
In regard to the facts it is common ground that, at the time when thedeceased received the stab injury which caused his death, there werepresent the deceased, appellant and the principal Crown witness Kanagan.The defence version brings another person, William Silva, to the spotas an eye-witness of at least the beginning of the transaction. Kanagan’sstory is that the appellant made an unprovoked attack with a knifeon the deceased. The appellant says that the injury to the deceased wascaused by Kanagan in an abortive attempt to stab appellant.
Shortly after the incident appellant, who was not then suspect, andWilliam Silva were examined by a police officer as provided by section122 (1) of the Criminal Procedure Code (Cap. 16) and their statementswere reduced into writing and signed by them. These written statementswere subsequently used at the trial for the purpose of proving that eachhad made a different statement at a different time. It is contended onbehalf of the appellant that the fact that the statements were signedby the persons making them renders them inadmissible. It is true thatsection 122 (1) contain an express provision that a statement madein such circumstances shall not be signed and we were referred to adecision upon the corresponding section of the Indian Code in support ofCounsel’s contention. In Bhuneshari v. Empress ‘ Srivastava J. expressedthe opinion that it was impossible to say what the statements of thewitnesses might have been if their signatures had not been obtained andhe was unable to agree that the fact had not occasiond a failure ofjustice. This was a judgment of a single Judge, a fact which wasremarked in Muhamad Panab and another v. Emperor= in which the Courtheld that, while the signature by the maker of such a statement was anirregularity, “ it would not by itself be ground sufficient for quashing aconviction ”. With this view we respectfully agree. We do not thinkthe appellant has been in any way prejudiced by this breach of theprovision of the section which, it is to be feared, is not ar. unusual one.
Counsel then argued that the use of the statements of the appellantand William Silva was illegal. In the course of the trial' the learnedJudge made an order allowing Crown Counsel to use the statement madeto the Police Inspector by the accused “ for the purpose of showing that* A. I. R. (1931) Oudh 172* A. I. R. (1934) Sind 82
MOSELEY S.P.J.—The King v. Vidanalage Lanty.319
he has made different statements at different times, that is, statementsdifferent from the evidence he is now giving in the witness box Suchprocedure appears to us to come within the clear wording of section 122
and is therefore unobjectionable. The same observation applies tothe statement of William Silva.
Another ground of appeal is that there had been a mistake in the caseby the prisoner or his adviser. This appears to be without substance,as does the objection that William Silva was discredited by the incorrectobservations of the presiding Judge. In our view the criticism expressedby the learned Judge was well founded.
The remaining ground of appeal is that the jury were not directedproperly on the matter of a fight before the deceased was stabbed. Thatis to say, that it was not brought to the notice of the jury that there wassome evidence upon which, if they believed it, it was open to them to findthat the appellant was guilty of culpable homicide not amounting tomurder, as provided by exception 4 to section 294 of the Penal Code.The learned Judge did in fact put it to the jury that, if they were con-vinced beyond reasonable doubt by the evidence for the prosecution,it was clearly their duty to find the appellant guilty of murder, but that,if they believed the defence, they would not hesitate to acquit him. Noquestion of culpable homicide not amounting to murder, he said, aroseon his defence. It is a fact that no such defence was put forwardby him or on his behalf. In William Hopper1 the defence, as inthis case, was that of accident. In that case, however, Counsel forthe defence indicated that, if that defence failed, he should hope for averdict of manslaughter only. But the Court expressed its view that,even if Counsel had not contended for a verdict of manslaughter, theJudge was not relieved of the necessity of giving the jury the opportunityof finding that verdict. In The King v. Bellana Vitanage Eddin ‘Howard C.J. in referring to a defence that had not been raised nor reliedupon at the trial, said that that fact was not in itself sufficient to relievethe Judge of the duty of putting this alternative to the jury “ if therewas any basis for such a finding in the evidence on the record ”. Asimilar view was expressed in The King v. Albert Appuhamy3.
Is there then in the present cash any basis for a finding that the injurywhich the jury have found to have been inflicted by the appellant on thedeceased, was inflicted without premeditation in a sudden fight withinthe meaning of exception 4 to section 294 of the Penal Code ? There isthe evidence of the appellant to the effect that he was seized by thedeceased and that he held the deceased by the waist, and that, when heasked the deceased for an explanation, the latter replied “ Wait and I’lltell you the reason ” and called updn Kanagan to stab. This is to someextent corroborated by William Silva. There is, as well, the evidence ofMartin to the effect that the appellant ran into his house saying :
“ Sinhalese people are coming to assault me ”, and that the appellantsaid he was afraid to go back to the road. Some of these matters werereferred to by the learned Judge, but only in setting out the defencestory and not as evidence upon which a lesser verdict might possibly bebased.
1 11 Cr. App. R. 136.-11 X. L. R. 345.3 41 X. I.. R. 305.
320 jKEUNEMAN J.—Feldano v. The Magistrate, Anurndhapura.
In our view the defence of accident should not, in the words of ReadingL.C.J. in William Hopper (supra), be taken “to the exclusion of anyother possible view of the facts and circumstances. The Court, with theassistance of the jury, must arrive, not at the view presented, but at atrue view of the facts
We do not go so far as to say that a verdict of culpable homicide notamounting to murder should have been found. The question was1 notput to the jury, and we think that the appellant must have the benefit ofthe lesser verdict.
In the exercise of our powers under section 6 (2) of the Court of CriminalAppeal Ordinance, we set aside the verdict and sentence and substitutetherefor a verdict of culpable homicide not amounting to murder and asentence of ten years’ rigorous imprisonment.
Conviction for murder set aside.
Conviction for culpable homicide not amounting to murder entered.
THE KING v. VIDANALAGE LANTY