Samerakoon Banda v. The Queen
[Cottbt of Cbiminal Appeal]
1971 Present: Sirlm&ne, A.C.J. (President), Samerawlckrame, J.,
and Wljayatllake, J.
W. M. SAMERAKOON BANDA, Appellant, and THE QUEEN.Respondent
C. C. A. No. 115 of 1970, with Application No. 1793. Q. 94/70—M. C. Dambulla, 20221
Charge of murder—Evidence showing that accused struck, deceased one blow only—Direction that should be given then by the Judge to the Jury—Whether accusedhad " lie intention " or only Jt the knowledge ''—Question Jar Jury to decide. 1
1 (1S61) S2N. L. B.otSiO.
SERIMANE, A.C.J.—Samerakoon Banda v. The Queen
In a prosecution for murder, the evidence showed that the accused-appellanthad struck one blow on the neck of the deceased with a sword. The injurywas only half an inch deep, but death resulted becauso the jugular vein wascut. Little force was needed to indict that injury.
Held, that it was the duty of the Judge to have directed the Jury that if'having regard to the fact that only one blow was struck which caused an injuryhalf an inch in depth, they took the view that the appellant had no murderousintention but had only the knowledge that death would be the likely result ofhis act, then he would bo guilty of the lesser offence of culpable homicide notamounting to murder. Whether a person had “ the intention ” or only “ theknowledge " is always a question of fact which must be left to the Jury todecide.
PEAL against a conviction at a trial before the Supreme Court.
K. Shinya, with Nihal Singaravelu and B. B. D. Fernando (assigned),for the accused-appellant.
P.Colin Thome, Senior Crown Counsel, for the Crown.
Cur. adv. vult.
January 13, 1971. Shumane, A.C.J.—
The appellant had struck one blow on the neck of the deceased witha sword. The injury was only half an inch deep, but death has resultedas the jugular vein was cut. The evidence also showed that the deceasedwho was walking away from the appellant had suddenly turned round,on hearing a cry of warning from his wife, when the blow alighted on hisneck. The learned trial Judge in dealing with the injury told the Jury—
"it must have been inflicted with considerable force for
the jugular vein to be cut.”
The Medical evidence does not support this direction. The swordwhich was a production in the case is a heavy sharp weapon, and learnedCrown Counsel concedes that little force would have been needed to inflictan injury half an inch deep with that weapon.
Immediately after telling the Jury that considerable force must havebeen used, and that the injury was on the neck of the deceased, the learnedJudge said—
“ Having regard to these matters, have you any reasonable doubtthat the person who caused an injury of that nature had the intentionat least to inflict an injury which is sufficient in the ordinary Course ofnature to cause death. If that is your view, on an estimation of theevidence then the aooused is prima facie guilty of the offence ofmurder.*'
Kamagin v. Karonchihamy
There was evidence that the accused was smelling of liquor at thetime, and the learned Judge said a little later—
“ The only 'point in favour of the accused in this case on which youmight consider whether a lesser offence is possible is whether he wasso drunk that at the time he caused the death of the deceased he didnot know that what he was doing was wrong or contrary to law.”
He gave no direction at all to the Jury that if having regard to the factthat only one blow was struck, which caused an injury half an inch indepth, they took the view that the appellant had no murderous intentionbut had only the knowledge that death would be the likely result of hisact, then he would be guilty of the lesser offence of culpable homicide notamounting to murder.
Whether a person has “ the intention ” or only “ the knowledge ” isalways a question of fact, which must be left to the Jury to decide. Onlyvery exceptional circumstances would justify a non-direction on thispoint which would amount to a withdrawal of this issue from the Jury.
The non-direction in the circumstances of this case, in our view,amounts to a mis-direction. Had such a direction been given, we areof the view that the Jury may very well have found the appellant guiltyof the lesser offence.
We therefore set aside the conviction for murder and substitute oneof culpable homicide, and sentence the appellant to 7 years’ rigorousimprisonment.
W. M. SAMERAKOON BANDA, Appellant, and THE QUEEN, Respondent