090-NLR-NLR-V-70-THE-QUEEN-v.-P.-G.-ARASA-and-another.pdf
H. N. G. FERNANDO, S.P.J.—The Queen v. Arasa
403
[Court of Criminal Appeal]
Present: H. N. G, Fernando, S.P.J. (President), T. S. Fernando, J.,and Abeyesundere, J.THE QUEEN v. P. G. ARASA and anotherC. C. A. 76 and 77 of 1966, with Applications 125 and 126S. C. 111/65—M. C. Matale, 20491
Evidence—Trial before Supreme Court—Dock statement of accused—Duty of Judgeto refer to it in his summing-up.
The 1st accused, who was charged with murder, made a dock statementin which he said that before he stabbed the deceased man, the latter hadstruck him with a club. The cross-examination of the prosecution witnessesand the accused’s statement from the dock set up defences either of self-defence or of provocation or both.
Held, that it was the duty of the Judge to have directed the Jury that thedock statement was a matter before the Court which could be taken intoconsideration.
Appeals
against two convictions at a trial before the Supreme Court.
J.Muthiah (Assigned), for Accused-Appellants.
T. A. de S. Wijesundere, Senior Crown Counsel, for the Crown.
Cur. adv. vult.
November 28, 1966. H. N. G. Fernando, S.P.J.—
The two appellants were charged with the murder of one Kalinguwaand the second appellant was charged in addition with the attemptedmurder of one Kiri Honda.
According to the evidence the two appellants both lived near the houseof the deceased but on different sides of that house. On the night inquestion the two appellants stood on the road opposite the deceased’shouse, and the first accused abused the deceased. The two men thenwent towards the first appellant’s house and again returned soon after-wards along the road. On this occasion also the first accused abusedthe deceased man. The latter then went up to the road and asked thefirst appellant why he was being abused. At this stage, according to theprosecution witnesses, the first accused stabbed the deceased twice onhis chest.
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H. N. G. FERNANDO, S.P.J.—The Queen v. Arasa
It will be seen that there was literally no evidence to justify a conclusionthat the second appellant shared an intention to assault the deceasedman. He participated neither in the abuse nor the assault. The onlycircumstance against him was his presence with the first appellant on bothoccasions. Indeed if the deceased man himself had not left his houseand gone up to the first appellant on the second occasion there might havebeen no stabbing at all. This Court has held on numerous occasionsthat mere presence is not a sufficient circumstance to justify an inferenceof common intention. Such an inference would not have been reached inthis case but for a reference by the learned trial Judge to the fact thatthe second appellant “ did nothing to prevent the first accused fromstabbing ”. According to the evidence the stabbing took place sosuddenly that it was in our opinion quite unreasonable to suggest to theJury that the second appellant should have tried to interfere.
For these reasons we set aside the conviction of the second appellanton the charge of murder and acquitted him on that charge.
The Police found a club at the scene, lying by the side of the body ofthe deceased man. The club was found to bear blood stains. Whenthe first appellant was arrested early the following morning InspectorAmeresinghe noticed an injury on his head. When the Inspector firstmentioned this injury in his evidence, he said :—
“ he had a bleeding injury on the left side of his head. The bloodwas dried up and there were stains of blood on his sarong.”
Thereafter in the course of his evidence he said on numerous occasionsthat the blood was dried up, and he said this emphatically when questionedby the Court three or four times on the point. Inspector Hettiarachi hadalso noticed the same injury and said in answer to Court :—
“ A. It was dried blood.
Q.Then it is not a bleeding injury ?
A. Yes. ”
Manifestly then the evidence concerning this injury was that therewas dried blood noticed at the site of the injury early in the morningafter the night of the incident. But unfortunately the learned TrialJudge despite his ovm questioning appears to have misunderstood thetenor of the evidence concerning the injury. On this point there was thefollowing passage in the summing up :—
“ If Sergeant Amerasinghe saw a bleeding injury at 6 a.m., do youthink it likely that the first accused would have received that injuryat 10 o’clock on the previous night ? Do you not think that blood onthat injury would have dried ? There would have been no bleedinginjury after nearly eight hours. ”
The learned Judge in this passage invited the Jury to take the viewthat the injury noticed by the Police Officers in the morning was a very
Sameen v. Maliha i3aby
405
recent one and was probably sustained subsequent to the time of theincident. Having regard to the evidence on the point, this was a veryserious misdirection on the facts.
The first appellant made a dock statement in which he said that beforehe stabbed the deceased man, the latter had struck him with a club.The cross-examination of the prosecution witnesses and this statementfrom the dock set up defences either of self defence or of provocation orboth. In directing the Jury on the case for the defence the trial Judgesaid :—
“ But gentlemen, please remember, to prove that fact to your satis-faction, it is not sufficient by merely establishing that this stick wasfound close to the head of the deceased and that an injury was foundon the head of the first accused. ”
The direction here substantially was that the evidence available wasinsufficient to establish the fact that the first appellant had been struckwith a club by the deceased and it virtually withdrew from the Jury theright to decide that fact. The Judge failed to direct the Jury that thedock statement was a matter before the Court which could be taken intoconsideration. But even without that matter, the two circumstancesmentioned by the Judge would in our opinion well have justified a findingby the Jury that the first appellant must have been injured with a clubin the course of his meeting with the deceased and before the stabbingincident.
In view of these misdirections the verdict of murder could not be allowedto stand. We therefore set aside that verdict and altered the convictionof the first appellant to one of culpable homicide not amounting to _.urderand imposed on him a period of seven years rigorous imprisonment.
Verdict against 1st accused altered.
2nd accused acquitted.