050-NLR-NLR-V-73-U.-WICKRAMANAYAKE-Appellant-and-THE-QUEEN-Respondent.pdf
H. N. G- FERNANDO, C.J.—Wickramanayake v. The Queen
273
[CoORT OF CRIMINAL APPEAL]
1970 Present: H. N. G. Fernando, C.J. (President), Samefawlckrame, J.,and Tennekoon, J.U.WICKRAMANAYAKE, Appellant, and THE QUEEN, RespondentAppeal No. 105 of 1969, with Application No. 14GS. C. 270168—31. C. Chilaxu, 16100
■Charge of murder—Summing-up—Non-direction.
In tho summing-up on a charge of murdor, tho trial Judgo ropeatodly expressedhis own opinion that the accused had actod with murderous intention. Analternative verdict of culpable homicide not amounting to murder was netoven mentioned.
Iletd, that it is only in a raro caso that tho omission from a summing-up of adirection as to tho alternative verdict of culpable homicide can bo justified.
./V.PPEAL against a conviction at a trial before the Supreme Court.
Colvin R. de Silva, with Mark Fernando, S. D. P. Valentine and HannanIsmail (assigned), for the accused-appellant.
Noel Titlaicella, Crown Counsel, for the Crown.
February 2, 1970. H. N. G. Fernando, C.J.—
In the summing up of the learned Commissioner on the charge ofmurder ho repeatedly expressed his own opinion that if the cvidcncoof the prosecution principal witness was true the accused had acted withtho murderous intention. The alternative that they might find himguilty only of culpable homicide not amounting to murder on thoground that ho did not act with a murderous intention -was not evenmentioned. In fact the learned Commissioner at the end of the summingup definitely directed the jury that the only alternative to a verdict ofmurder was one of acquittal.
It is only in a rare caso that the omission from a summing up of adirection as to the alternative-verdict of culpable homicide can bojustified.
In the instant case, the evidence elicited by the prosecution did notsuffice to found the inference that the accused must have continued tostab the deceased again and again until he made sure that the latterwas dead. It is thus quite possible that a lesser verdict may have beenreturned if the directions to the jury had not precluded It.
274
Rajakaruna v. Dc Silva
We set aside the verdict of murder and sentence of death, and substi-tute a verdict of culpablo homicide not amounting to murder and imposefor .that offence a sentence of ten (10) years’ rigorous imprisonment.
Verdict altered.