025-NLR-NLR-V-69-THE-QUEEN-v.-SETHAN.pdf
SANSONI, C.J.—The Queen v. Sethan
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[Court of Criminal Appeal]
1966 Present: Sansoni, C.J. (President), H. N. G. Fernando, S.P.J.,and Abeyesundere, J.THE QUEEN v. G. SETHANAppeal No. 56 of 1966, with Application No. 96S. C. 124—M. C. Ratuapura, 4996
Trial before Supreme Court—Words used in an unusual sense—Duty of Jury todetermine meaning thereof—Summ ing-up—Duty of Judge to refer to evidencefavourable to the accused—Criminal-Procedure Code, s. 245 (b).
In a trial for murder, E, who was one of the two prosecution witnesses,_ testified that the accused had used the word “ budhikarala ” in respect of whatho had done to the deceased and that the word, as understood in their circlesif not everywhere, meant that the accused had “ killed ” the deceased. Thiswas E’s interpretation of the expression “budhikarala ”, but, in the summing-upof the Judge, it was put to the Jury as the only possible interpretation of thatexpression, although the evidence of the other prosocution witness anil theaccused was in conflict with that of E as to whether the deceased was “killed ”or only “ stabbed ” by the accused.
Held, that it was the duty of the Judge, under section 245 (6) of the CriminalProcedure Code, to have left it to the Jury to determine themeaning of theword “ budhikarala ” which was used in an unusual sense.
Held further, that it was the duty of the Judge to have put the case for thedefence fairly and adequately to the Jury iu his summing-up. He should havereferred not only to the evidence adverse to the accused but also, adequately,to the evidence favourable to him..
A.PPEAL against a conviction at a trial before the Supreme Court.
E. R. S. R. Cooniaraswamy, with G. C. Wanigasekera and Miss AdelaP. Abeyratne (Assigned), for the Accused-Appellant.
V. 8. A. Pullennyegum, Crown Counsel, for the Attorney-General.
Cur. adv. wit.
September 14,1966. Sansoni, C.J.—
The accused was convicted of murder by a 6 to 1 verdict, on an indict-ment which charged him with having on or about the 19th August 1964,with another, committed the murder of one Mudiyanse.
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SANSONI, C.J.—The Queen v. Sethan
It was common ground that on the evening of that day the accused,Mudiyanse and one Heenmahathmaya drank pot arrack in the house ofHeenmahathmaya from about 5.30 p.m. At about 6.30 p.m. the accusedand Mudiyanse left Heenmahathmaya’s house, and went walkingtogether towards their respective houses. The next day Mudiyanse’sdead body was found on the threshing floor of a paddy field calledHalgahakumbura.
The medical evidence pointed to the deceased having received 5 incisedwounds on various parts of his body, none of which were grievous. Therewere also what the Doctor described as 17 gun shot entrance wounds inthe front of his chest and 3 exit wounds in his back. No pellets werefound in the body, nor was any wadding found at the spot. The Doctor’sopinion that they were gun shot injuries was based on the appearance anddistribution of those entrance and exit wounds. When it was suggestedto him by Crown Counsel that they could have been caused with a sharppointed weapon like a spoke, or by a cylindrical weapon, he said that itwas possible. The body was in an advanced state of putrefaction andthat may have caused difficulty in diagnosing the exact nature of theweapon used.
The accused gave evidence. He said that while he and the deceasedwere walking home together from Heenmahathmaya’s house on theevening in question, after they had drunk a lot of pot arrack, they cameto Halgahakumbura. There the deceased took a knife into his hand andstabbed him. He held up his hand and received a cut injury. Thedeceased stabbed him again, and when he tried to stab him a third timehe took a knife from his waist and stabbed the deceased three times.The deceased retreated, and he got frightened and ran away. He saidmore than once that the deceased had not fallen down or died althoughhe appeared to be becoming lifeless. From the threshing floor, the accusedsaid he went to the house of one Einanis and called him out. He alsowent to the house of one Pod i m al la thro aya and fetched him. The threeof them then walked to the accused’s house. The accused said that onthe way he told them that at Halgahakumbura Mudiyanse stabbed himwith a knife, and fearing that he would be killed he stabbed Mudiyanse.He also told Pabilis, another friend of his, the same thing.
The accused’s position throughout his evidence was that when he leftthe threshing floor he thought Mudiyanse was still alive, althoughinjured. But Emanis’ evidence was to the effect that on the night inquestion the accused came to his house and told him that at Halgaha-kumbura threshing floor he stabbed Mudiyanse with a knife, the wordsused being “ Halgahakumbura kamathadi Mudiyanseta pihiyen analabudhikaralamai ave ”. Emanis also said “ When a person is killed in•that village it is said ‘ budhikarala ” In answer to Court he said theword used was not " bawala ” which means “ to lay low ”, but “ budhi-karala ” which means “ to kill ”. Pabilis, however, said that the accusedonly told him that he had come after stabbing Mudiyanse with a knife,
SANSONI, C.J.—The Queen v. Selhan
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and that he was left at Halgahakunibura threshing floor. Since muchturns in this case on the expression said to have been used by the accusedto Emanis, it should be remembered that the accused denied that he toldEmanis that he used the words “ Budhi karala awa
Thus at the close of the evidence, there was on t he one hand the evidenceof Pabilis and the accused which onlv referred to the stabbing of the
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deceased by the accused ; and on the other hand, there was the evidenceof Emanis that the accused had used the word :: budhikarala ” in respectof what he had done to the deceased.
The chief complaint, made against the learned Commissioner’s summing-up in this case is that on several occasions, in fact whenever he referred toEmanis’ evidence, lie instructed the Jury that the accused told Emanisthat he had slabbed and killed the deceased. For instance, he said this,and there are other similar passages : “ The important point is, Emanissays that the accused when asked by them ‘ why all this ’ said, ‘ I havestabbed Mudiyanse with a knife and I have put him to sleep—mammaMudiyanseta pihiycn anal a budhikarala thamai ave’. And, you willremember, that the witness himself explained that by that term ‘ T haveput him to sleep ’ literally in the English, as understood in the Sinhalese,certainly in their circles if not everywhere, that the man had been killed.In other words, ' I have stabbed and killed Mudiyanse’ that is what itmeans.”
Mr. Coomaraswamv said that when the learned Commissioner on aboutten occasions told the Jury that the accused had informed Emanis thathe stabbed and killed the deceased, lie, left them with no option but tohold that the words used meant that the accused stabbed and killedMudiyanse. This was Emanis’ interpretation of the expression '‘budhi-karala ”, but it was put to the Jury as the only possible interpretation ofthat expression.
Under section 245 [b) of the Criminal Procedure Code it is the duty oft he Jury to determine the meaning of the wolds used in an unusual sense,but the Commissioner never left it to the Jury to determine what thatexpression meant.
When the Commissioner was dealing with the accused’s evidence hosaid “ Ho (the accused) was at pains to make it quite clear that at thetime he left the scene of the incident, Mudiyanse was still alive andstanding … .How is it then, having set out from that place, he goes andtells Emanis ‘ I have stabbed and killed him ? ’ The point again.Gentlemen, is if the accused had used the gun. why' did accused want tohide that and take the credit on himself that he stabbed and killed ? ”It is quite clear that the Jury were told to put one and only one interpre-tation on what the accused is said to have told Emanis, as if no otherinterpretation was possible.
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SANSONI, C.J.-—The Queen e. Sethan
Moreover, in this passage, and elsewhere, the accused’s evidence is putto the Jury as being false. They were not asked to consider whetherEmanis may not have been lying rather than the accused. Time and againin the summing-up, even when the accused’s defence was being dealtwith, it was put to the Jury that the accused came to Emanis and saidthat he had killed the man. Pabilis’s evidence as to what the accusedtold him was not given anything like the same attention, and this wouldhave gravely prejudiced the accused, for Pabilis’s version was favourableto the accused. The Jury were therefore not given the opportunity toconsider fairly the defence put forward. The summing-up proceedsthroughout on the basis that the accused did utter the words whichEmanis says he uttered, and they bore only one meaning. Even whenit came to the question of the Jury deciding what the accused’s intentionwas when he inflicted the injuries on the deceased, they were told thatthey could take into account that the accused said “ I have killed himwith a knife and come ”.
We have considered the sunnning-up carefully, and we have come tothe conclusion that the case for the defence was not adequately orproperly put to the Jury. We therefore quash the conviction anducquit the accused.
Accused acquitted.