051-NLR-NLR-V-48-THE-KING-v.-WIJERATNE.pdf
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SOERTSZ A.C.J.—The King v. Wijeratne.
[Court of Criminal Appeal.]
1947Present: Soertsz A.CJ. (President), Jayetileke and
Canekeratne JJ.
THE KING u. WIJERATNE.Appeal No. 64 of 1946.
S. C. 15—M. C. Kalutara, 37,375.
Jury—Puzzling verdict—Validity of such verdict.
Where the verdict returned by the jury was extremely puzzling—Held, that the verdict ought not to be allowed to stand.
A
PPEAL, with leave obtained, against a conviction in a trial beforethe Supreme Court.
M.M. Kuma.rakulasiP.gham, for the appellant.
T. S. Fernando, C.C., for the Attorney-General.
Cur. adv. vult.
February 3, 1947. Soertsz A..C.J.:—
In this case the appellant was charged with attempt to murder a mancalled Seemon Appuhamy. The appellant’s defence was that he inflictedthe injuries found on the injured man in the course of defending himselfagainst an attack on him by the injured man which gave rise to areasonable apprehension in his mind that if he did not defend himself inthe way he did he would be killed or, at least grievously injured. Uponthat plea the questions that arose for consideration were whether anoccasion arose for the appellant to exercise the right of self-defence,whether he exercised it reasonably without inflicting more harm thanwas necessary for the purpose of defence, or whether he exceeded theright given to him by law.
The learned trial Judge directed the Jury on this part of the case asfollows: —
“ If you find that as the accused says he went there on a very peace-ful mission to buy some nails, that he was taken unawares and the com-plainant attacked him with a knife on his head, that he rushed andpicked up a manna knife or any other knife that was lying somewherethere and used that knife on the complainant, well then the question is—two questions arise : firstly, as to whether he was justified in inflictingthose wounds and secondly, whether he had exceeded his right of privatedefence. Well, in view of the nature of the injuries on the accused him-self it would be a correct proposition of law to say that where he appre-hended or reasonably apprehended that his life was in danger or thathe would sustain grievous injury at the hand of his assailant he wasentitled, in order to defend himself against that attack, to use the knifeor any other weapon and use it in such a way as to cause the deathof the assailant. If you accept those facts the accused will be entitledto ask for a verdict of acquittal at your hands, because the law does notsay that a man whose life is being threatened must sit with his arms
SOERTSZ A.C-T.—The King v. Wijeratne.
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folded and suffer death. It gives the right of self help to every indi-vidual. In this case, although the complainant denies it, yet in view o£the nature of the injuries on the accused, if you think the complainant wasarmed, and if you accept the accused's evidence that he was unarmed,that this man attacked him, that in order to protect himself he pickedup the knife that was lying nearest to him and started slashing at theother man in order to save himself, it would be very difficult to say inthose circumstances that the man had exceeded the right of privatedefence, and in that case you will bring in a verdict of not guilty. ”
The learned Judge also invited the Jury to consider another defencewhich the appellant might have advanced, namely, that these injurieswere inflicted in a sudden fight upon a sudden quarrel and without pre-meditation and that, therefore, they might find the appellant guilty ofattempt to commit culpable homicide not amounting to murder. Thirdly,he asked them to consider the question whether the appellant had amurderous intention or only the knowledge that death was likely to resultfrom his act and he directed them that in the latter case the offence wouldbe again attempt to commit culpable homicide not amounting tomurder.
The Jury retired to consider their verdict and when they returned toCourt, they said to the Clerk of Assize that they were divided by 5 to 2in regard to the verdict. Thereupon, the Clerk of Assize said to them“Do you find the prisoner guilty or not guilty of attempted culpable homi-cide not amounting to murder?” (sic). The Foreman answered “No”.The next question the Clerk of Assize put to them was “ Do you findhim guilty of a lesser offence ? ” The answer was “ He has exceededthe right of private defence.” The Court then said “ Then do youfind him guilty ? ” and the Foreman replied “ Definitely not ”. There-upon, the Court said “ It is difficult to understand your verdict. Ifhe exercised the right of private defence and did not exceed the rightthen he is not guilty. But if he exceeded the right of private defencethen he is guilty of attempted culpable homicide not amounting to murder.Will you go and reconsider your vedict ? ” They then retired again,and when they came back the Clerk of Assize said to the Foreman“ Mr. Foreman, are you unanimously agreed upon your verdict ? ”Foreman:“ Yes Clerk of Assize:“ Do you find the prisoner
guilty or not guilty of attempted culpable homicide not amountingto murder ? ” Foreman : “ Guilty. ” Court:“On what grounds ? ”
Foreman : “ Exceeding the right of private defence to a certain extent ”.Court: “ I am bound to accept this verdict. I sentence you to a termof two years’ rigorous imprisonment. ”
To say the least, this is extremely puzzling. Firstly, the Jury by amajority of 5 to 2 declared that the prisoner was not guilty of attemptingto commit culpable homicide not amounting to murder, on the footingit must be supposed that he had not exceeded the right of private defence.If the appellant had not acted in excess of that right, he was entitledto be acquitted and yet, in the next breath, the Jury say that “Hehas exceeded the right of private defence” and again definitely thathe was not guilty.
it>4CANEKERATNE J.—Wijeycratne v. Menon.
On reconsidering their verdict, they found unanimously that theprisoner was guilty of attempt to commit culpable homicide not amountingto murder because he had exceeded the right of self-defence to some extent.This is extremely unsatisfactory and we are of the opinion that their verdictought not to be allowed to stand. We have examined the evidencein the case and we are of the opinion, which appears to have been the opin-ion of the trial Judge too, that once the Jury found as they did thatoccasion for self-defence arose, it cannot be said, having regard to theinjuries the appellant inflicted, that he did more harm than was necessaryfor his defence.
Appeal allowed.