019-NLR-NLR-V-76-WEERAPPAN-Appellant-and-THE-QUEEN-Respondent.pdf
H. N. G. FERNANDO, C.J.—Weerappan v. The Queen
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[Court of Criminal Appeal]
Present: H. N. G. Fernando, C.J. (President), Sirimane, J.,and Weeramantry, J.'WEERAPPAN, Appellant, and THE QUEEN, RespondentC. C. A. Nos. 35-36 of 1971, with Applications Nos. 48-498. C. 325/70—M. O. BaduUa, 31710
Charge of murder—Statement of deceased person after he was injured—Evidential valuethereof—Maxim that a rational man must be presumed to intend the naturaland probable consequences of his acts—Rebuttable presumption—EvidenceOrdinance, 8. 114—Evidence that only one stab was inflicted on the deceased—Inference of absence of murderous intention—Misdirection.
.Where, in a prosecution for murder, a witness testifies that the deceasedperson, after he had been injured, stated that the accused had injured him,it would1 be a .^on-direction amounting to misdirection if the trial Judge omitsto direct the Jury that a statement of a deceased person must be consideredwith care because the person himself is not before the Court, is not undor oath,and cannot be cross-examined.
JJFhe maxim that a rational man must be presumed to intend the naturaland probable consequences of his acts is not a rule of law giving rise to apresumption of law which leaves the jury no choice in the matter. It is nothingmore than a presumption of fact of the class enumerated in section 114 of theEvidence Ordinance, which the Jury may or may not draw.
Where a person is charged with murder, evidence showing that onlyone stab was indicted by him on the deceased may indicate the absence ofmurderous intention. In such a case, it is the duty of the Judge to giveappropriate direction to the Jury.
-A.PPEALS against two convictions at a trial before the Supreme Court.
E. R. S. R. Goomaras’uiamy, with M. A. Jesuratnam, G. Chalcradaran,T. Joganathan, P. H. Kurukulasooriya, N. J. Vilcassim and L. Jayetilelce(assigned), for the accused-appellant.
N. Tittawella, Senior Crown Counsel, for the Crown.
Cur. adv. vult.
July 16, 1971. H. N. G. Fernando, C.J.—
The two accused in this case, who are a son (1st accused) and his father(2nd accused), have appealed against their convictions on the charge ofthe murder of one Ramalingam.
The case for the prosecution was that Ramalingam was stabbed witha long knife at the top of a flight of steps leading away from the premisesof a kovil. The evidence was that a large crowd of people had attendeda ceremony in the kovil; the 2nd accused had there abused one Mariae,the mother of Ramalingam, apparently because Mariae had trampled
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H. N. G. FERNANDO, C.J.—Weerappan v. The Queen
the 2nd accused’s foot. Ramalingam, after hearing this abuse, said:that he was going home, and ascended the flight of steps. The 2ndaccused, and after him the 1st accused, followed Ramalingam ; whenRamalingam had reached the top of the flight, the 2nd accused heldRamalingam’s hands from behind, and thereupon the 1st accused stabbedRamalingam on his chest and inflicted an injury which cut the cartilageof two ribs, and cut also the wall of the pericardium and the right ventricle.The injury was necessarily fatal.
Two of the prosecution witnesses testified that Ramalingam, after hehad been stabbed, stated that these two accused had stabbed him. Inreferring to this testimony the learned Commissioner omitted to directthe Jury that a statement of a deceased person must be considered withcare because the person himself is not before the Court, is not under oath,and cannot be cross-examined. We agree with Counsel for the accusedthat there was thus non-direction amounting to misdirection as to thistestimony. But we are satisfied that no miscarriage of justice occurredin this case on that account.
The case for the prosecution depended very largely on the evidenceof a young woman Sengodi Amma, who had herself been standing nearthe top of the flight of steps. We see no reason for an opinion that theJury reached an unreasonable conclusion in accepting her evidence,from which it was clear that the 1st accused stabbed Ramalingam afterthe 2nd accused had held his hands in order to facilitate the act ofstabbing. The stabbing undoubtedly took place in pursuance of acommon intention.
As to the possible verdicts which might be returned upon thatconclusion, the learned Commissioner gave the usual directions as to thedifference between a “murderous intention”, and knowledge of thelikelihood of causing death. But towards the end of the summing-upthe learned Commissioner gave the following direction:—
“A person does not declare why he is doing a thing. His intentionis silent and can be presumed or gathered only from his acts. But,a person is presumed to intend the ordinary and foreseeable consequencesof his acts. In law that is presumed. ”
A direction in these terms is undoubtedly incorrect, the law on thequestion having been stated in the judgment of this Court in the caseof R. v. Wijedasa Per era 1:—
“ It seems to us that these authorities make it plain that the maximthat a rational man must be presumed to intend the natural andprobable consequences of his acts is not a rule of law giving rise to apresumption of law which leaves the jury no choice in the matter. Itis nothing more than a presumption of fact of the class enumerated insection 114 of the Evidence Ordinance, which the Jury may or maynot draw. ”
(1950) 51 N. L. R. 29.
Weerakoon v. Fernando
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In the case just cited, the trial Judge had at one stage directed theJury that the law presumes that a person did intend the natural andinevitable consequences of his act. Nevertheless because of other• directions in the summing-up concerning the consideration by the Juryof this same question of intention, the majority of the Bench was ofopinion that when the summing-up was read as a whole there had beenin effect no misdirection. Moreover, in that case the Bench wasunanimously of opinion that even if there had been a misdirection, theproviso to section 5 (1) of the Court of Criminal Appeal Ordinance shouldbe applied. In the instant case there was not in the summing-up anydirection which could have compensated for the prejudice caused to thedefence by the' misdirection to which we have referred.
Moreover, although only one stab was inflicted on Ramalingam,the learned Commissioner did not advise the Jury that these circumstancesmight indicate the absence of the murderous intention. If the Juryhad been properly directed on this question, a verdict of culpable homicidenot amounting to murder may well have been returned.
For these reasons we set aside the verdict and sentences of death, andsubstitute a conviction of each accused for the offence of culpable homi’cide-not amounting to murder. We sentence each of the accused to a termof 7 years rigorous imprisonment.
Verdict altered.