JUDGMENTBY: MATHEW, CJ

In this case the appellant was convicted of culpable homicide not amounting to murder, and was sentenced to three years rigorous imprisonment. There are two accounts of what happened on the evening when the deceased received the blow from which he subsequently died. The prosecution witnesses state that the appellant made an unprovoked attack on the deceased, while the appellant and his witnesses state that it was the deceased who attacked the appellant without warning.

It is significant, as the learned trial judge pointed out, that no evidence was given by the prosecution witnesses as to how the appellant came to receive the serious injuries that were in fact inflicted on him. What is quite clear is that certain of the injuries inflicted on the appellant and the fatal injury inflicted on the deceased were all caused by the same instrument, an iron trident, which could be used as an anchor for a small fishing boat. The appellants defence was that he did no more than exercise his right of private defence, and that the blow he inflicted on the deceased was, in all the circumstances of the case, justified.

The learned trial judge in a full and careful summing-up set out the three conclusions to which the assessors might come. It is convenient to examine what the learned trial judge said:--

"If the blow is struck in self-defence, then, subject to what I am

going to tell you in a minute or two, no offence is committed. Or

again, if two people get into a fight and in the course of the fight

which has been unpremeditated fatal blows were struck, then the killing

is not murder. It is then not murder but culpable homicide not

amounting to murder or what the law in England calls manslaughter.

Coming to the first question of self-defence, Counsel have told you

that every man is entitled to defend himself. But that right is subject

to very substantial limits. In particular in connection with this case

I am going to read you something from the Penal Code:--

"The right of private defence in no case extends to the

inflicting of more harm than is necessary to inflict for the

purpose of defence."

Now, gentlemen, I am not taking the question from you, but you will

remember that even on the prisoners own story that he was attacked

with the iron, by the time he struck the blows the iron had passed from

the deceaseds possession into his own possession, and I think it is

very very difficult to say that once he had the iron and when he went

on to strike blows with it he was acting in self-defence because,

however the incident started, at that stage of the proceedings the Imam

was unarmed and the prisoner was in possession of a very

very dangerous weapon and so, gentlemen, I think you will find it very,

very difficult to say that in striking the Imam with the iron he was

striking in pursuance of the right of self-defence.

But, gentlemen, even if he went further than exercising his right of

private defence he may well be guilty of something less than murder. He

may be guilty of culpable homicide not amounting to murder and that of

course is for you to say. You can look at it, the law looks at it, on

one of two ways. If a man is attacked and if in self-defence he goes

further than is necessary to defend himself and kills the attacker that

is manslaughter.

Then again, if two persons get into a fight and in the course of the

fight a fatal blow is struck, again that is manslaughter.

And so in practice in this case you will have to decide whether the

killing amounted to murder or manslaughter and that will depend on

whose story you accept."

It is quite clear from this passage that the learned trial judge left to the assessors the three alternative opinions of murder, culpable homicide not amounti

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