073-NLR-NLR-V-63-THE-QUEEN-v.-SINDARAM.pdf
BASNAYAKE, CJ.—The Queen v. Sundaram
363
[In the Court of Criminal Appeal]
Present: Basnayake, C.J. (President), de Silva, J., and Tambiah, J.THE QUEEN v. SUNDARAMAppeal 226 of 1960, with Application 2498. C. 7—M. C. Nawalapitiya, 6,583
Charge of murder—Plea of accident—Existence of circumstances sharwing exerciseof right of private defence—Summing-up—Misdirection—Penal Code, ss. 73,89—Criminal Procedure Code, s. 245.
Where, in a trial for murder, the accused expressly pleads the general exceptionof accideut (section 73 of Penal Code) but there are circumstances which makeit necessary for the jury to consider the general exception of the right of privatedofence (section 89 of the Penal Code), the trial Judge must not withdrawfrom the jury the consideration of the exception of private defence.
j/_PPEAL against a conviction in a trial before the Supreme Court.
A. H. C. de Silva, Q.C., with A. Deva Rajah and F. X. J. Rasanayagam(Assigned), for Accused-Appellant.
B. White, Crown Counsel, for Attorney-General.
March 6, 1961. Basnayake, C.J.—
The accused has been convicted of the offence of murder. Learnedcounsel for the appellant has urged that the existence of circumstanceswhich brought the accused’s case within the general exception of section 89
364
BASNAYAKE, C-J.—The Queen v. Sundaram
of the Penal Code were withdrawn from the jury by the learned trialJudge when he directed them as follows :—
“ Now, you were told by defending Counsel about the right of privatedefence that a person has. He began his speech with the right of"private defence and he ended it by referring to the right of privatedefence. Now on the evidence in this case, gentlemen, I really donot see what the right of private defence has to do with the matter.You see a person has the right of defending himself and to defend otherpeople when there is any attack threatened or any injury threatenedor attempted and you can even cause death if there is a reasonable-fear that death or grievous hurt would be the result of that attack.Nobody disputes those propositions. But for the right of privatedefence to arise at a particular point of time, and I am now onlydealing with the relevant time in this case, that is at the time of thefiring of the first shot, the question is when that first shot went off—whether it was deliberately or accidentally is for you to decide—when that first shot was fired and struck this man Sandanam what wasthe accused’s position ? Of course, his position in evidence is that itwent off accidentally. Well then if it was accidental the right ofprivate defence does not come in at all. The defence then is accident,not private defence. Private defence only comes in if the positionis that he fired deliberately, if he fired deliberately. But then privatedefence only comes in not only if the shot is fired deliberately but ifthe shot was fired at somebody who was attacking him, or if somebodyelse was attacking him at that time and he fired at the attacker andwhere the attacker or somebody else got injured as a result of thatfiring. On the evidence before you no such position arises. NeitherMariammal nor Rasalingam says that when the accused fired anybody^was attacking him or that there was anybody near him from whomhe could have feared injury. So certainly on the prosecution evidencethere is no question of private defence. Then on the accused’s evidencehe says : ‘ I never fired that first shot deliberately, it went off acciden-tally ’. So then there is no right of private defence arising in regardto that first shot and that is the only shot we are concerned with inthis case because that is the shot which, whether you take the prosecutionevidence or the accused’s evidence, caused the fatal injury—notthe other shots. Accused says : * I fired the other shots ; I fired themdeliberately, but I fired those in such a way that nobody was anywherein the direction in which I fired ’. And he is not charged with regardto those shots at all. So we really do not care what was happeningwhen he fired those shots and that is why X think it is important foryou to ask yourselves : Then what were the circumstances underwhich that first shot came to be fired ? There is no question of aprivate defence or shooting in exercise of the right of private defenceso far as that first shot was concerned—neither on the prosecutionnor on the defence evidence. And the only point you have to decideis : was the first shot fired deliberately or not ”
KarunarcUne v. KarunarcUne
365-
Under the law (section 245 Criminal Procedure Code) it is the dutyof the jury—
(а)to decide which view of the facts is true and then to return thfrverdict which under such view ought according to the direction of theJudge to be returned,
(б)to decide all questions which according to law are to be deemedquestions of fact.
Although in the instant case the accused expressly pleaded the generalexception of accident (section 73 Penal Code) there were circumstanceawhich made it necessary for the jury to consider the geneial exceptionof the right of private defence (section 89 Penal Code). The fact thatan accused person chooses to plead specifically one of the general exceptionsin the Penal Code does not absolve the jury from the duty of consideringwhether the facts and circumstances proved bring the accused withinany of the other general or special exceptions in the Penal Code. Theversion of the accused is that on the day in question a hostile crowdarmed with batons and sticks converged on the lines be occupied andattacked his line room with a rain of stones, in consequence of. whichhis roof was damaged and the frontside planks of his room were broken.His wife and children were also injured in the attack. He says thatwhen he saw his wife injured by the falling stones he loaded his gunand came out. Although he stated that in the first encounter with themembers of the mob the gun went off accidentally it would appearfrom the sum total of his evidence that there were sufficient facts and.circumstances narrated by him which merited a consideration of theexception of the exercise of the right of private defence in relation tothose facts and circumstances. The jury were wrongly precluded fromdoing so by the direction of the Judge.
We therefore quash the conviction and direct a new trial.
Case sent back for a new trial.