057-NLR-NLR-V-58-THE-QUEEN-v.-H.-G.-HARAMANIS.pdf
[lx the Court of Cri.mix.au Appear]
1956 Present: Basnayake, A.C.J. (President), Pulle, J., and
Weerasooriya, J.
THE QUEEX r. H. G- HAR A MAX ISApplicatiox 160 of 1955Appeal 113 of 1935 (with leave obtatxed)
S. C. 35—31. G. 31 a (ale, 5,265
Court of Criminal Appeal—Sentence—Application for leave to appeal—formalitiesaccess arp—h'n/ianeemcut of sentence—Court of Criminal Appeal Jlutes, 1010,'Jlule I.
An ^plication for lenvo to appeal against the sentence passed on a convictionmust bo expressly inndo and must be in conformity with Rule 4 of tlio Court ofCriminal Appeal Rules, 1040. In the absenco of such an application the Court ofCriminal Appeal has no power to inerenso tho sentence.
-A^rPLICATIOX for leave to appeal on sentence.
„/. C. Tkurairatnam, for accused-appellant.
1’. T. Thamothcram. Crown Counsel, for Attorney-General.
Cur. ndr. rulf.
June 5.Hasxayakk. C.J.—
This is an application for leave to appeal by the accused who Mas triedon an indictment containing five charges of attempted murder committedin the eoiuso of the same transaction and sentenced to undergo a term often years’ rigorous imprisonment on each of the first four charges and toa term of six months’ rigorous imprisonment on the fifth charge, thesentences to run concurrently.
The grounds urged by the appellant arc :—
that the trial Judge misdirected the Jury in his summing-up.
that though there were several houses at the scene of this incident
no one came forward with any evidence :
that the lawyer who acted in place of the one retained by the
appellant failed to cross-examine the complainant.
Learned counsel who appeared in support of the application indi–cated to us that, ho sought leave to appeal only on the ground of sentence.Before pjerusing it we granted leave to appeal on the assumption that the•application signed by the applicant contained tiiat ground.
The sentence piasscd on the appellant is utterly' inadequate. He hascommitted a number of very grave offences. He invaded the houseof his victims, four of whom arc. women, armed with a gun and shotthem despite the fact that they made every endeavour to cseapje fromhis attach. Karlier he had threatened to shoot the Village Headman•who was on his way to investigate a complaint made against theappellant in regard to an offence involving violence committed byhim against one of the female inmates of the house whom he shot later.The appellant enacted a “ reign of terror ” that night for his unfortu-nate victims. Having fired through gapis in the wooden shutters andhaving injured them he went on banging at the doors of the houso andat the same time he kept on shouting “ Are you fellows all dead ? ”Why don’t you fellows open the door ? ” Are you fellows all deador finished ? ”. When ho was arrested by tlio Police lie had sixteen livecartridges in his pocket and the gun was loaded with another cartridge.Another grave circumstance against the appellant is that the cartridgeshe used in shooting the injured piersons were S. G. cartridges.
Leave was granted with a view to enhancing the sentence because ofthe gravity of the appellant’s crime ; but when the appeal was taken up>
for hearing learned counsel moved to withdraw it. He relied on Rule-22 of the Court of Criminal Appeal Rules, 19-10. That rule reads :—
“ An appellant at any time after ho has duly served notice of appeal,or of application for leave to appeal, or of application for extension oftime within which under the Ordinance such notices shall be given,may abandon his appeal by giving notice of abandonment there-of in the Form III to the Registrar and upon such notice being given,the appeal shall be deemed to have been dismissed by the Court of
nrw*n !**
The form referred to in the rule is as follows :—
Form III
IN THE COURT OF CRIMINAJ, APPEAL
Criminal Appeal No. of 19
Rex v.
(Supreme Court,Circuit, 19, Case No.of 19)
Notice of abandonment of Appeal
, having been convicted of at the Assizes at
—tand having been desirous of appealing and having duly sent
notice to that effect to the Court of Criminal Appeal against my said.
conviction {or the sentence ofpassed upon me on my said
conviction) do hereby give you notice that I do not intend further toprosecute my appeal, but that I hereby abandon all further proceedingsin regard thereto as from the date hereof.
bgd.
Witness to signature :
Dated thisday of, 19.
To the Registrar of the Court of Criminal Appeal.
The appellant has in this case not given notice of abandonment in;Form HI, but counsel relics on a decision in the case of Joseph Gibbon- LIt is unnecessary to discuss that case or the question whether an appli-cation for leave to appeal once granted can be withdrawn except in thc-manner provided in Rule 22, as in the instant ease there is before us noproper application for leave to appeal on sentence. An application forleave to appeal against the sentence passed on a conviction must be ex-pressly made and must be in conformity with Rule 1 of the Court ofCriminal Appeal Rules, 1910. In the absence of such an applicationwo have no power to increase the sentence.
As stated earlier counsel did not urge the other grounds of appeaL.
The appeal is therefore dismissed.
Appeal dismissed.
1 31 Cr. App.