King V. Andris Silva Et Al.,

1940 Present: Moseley S.P.J. and de Kretser and Wijeyewardene JJ. 

THE KING v. ANDRIS SILVA  et al.

9-M. C. Balapitiya, 35,765. 

Court of Criminal Appeal-Appeal on question of fact-Function of Court- Expression of opinion by Judge on question of fact after a warning to the Jury-Court of Criminal Appeal Ordinance, No. 23 of 1938, s. 5 (1).

 In an appeal involving questions of fact only it is not the function of the Court of Criminal Appeal to retry a case, which has already been decided by a Jury. 

The Court in such a case is only required to say whether the verdict of the Jury is unreasonable or whether it cannot be supported having regard to the evidence. 

It is not a misdirection to tell the Jury that they must not pay the slightest attention to any suggestion put to the witness in cross-examination unless such suggestion is supported by proof. 

There is no objection to the expression by the Judge in his charge to the Jury of opinions on questions of fact where he cautioned the Jury that such matters were entirely within their province and that they should reject his views unless they happened to coincide with their own. 

Evidence that the accused were discharged after the preliminary inquiry before the Magistrate is irrelevant and should not go to the Jury. 

APPEALS from a conviction for murder at the 1st Southern Circuit on questions of law and an application for leave to appeal on the facts 

The Court granted leave to appeal on the facts which were argued in the first instance. The grounds of appeal are stated in the judgment. 

R. L. Pereira, K.C. (with him M. T. de S. Amerasekere, K.C., S. Alles, and N. M. de Silva), for the accused, appellants.-The appeal on the law is accompanied by an application for leave to appeal on the facts. To deal first with the fact, the verdict of the jury is unreasonable and cannot be supported on the evidence of the three alleged eye-witnesses, viz., Upasiri and Anulawathie, two children of the deceased, and one Simon. The evidence given by Upasiri at the trial relates only to the fact of the shooting of William by the first accused and is totally contra­dictory of all matters the witness had sworn to in the Magistrate's Court and in the first information given to the Police. Similarly, the other two witnesses too have contradicted each other and themselves grossly. It is clear that the witnesses were tutored to implicate not only these two accused, but also one David, who was discharged at the end of the Magistrate's investigation. Even these two accused had been discharged by the Magistrate and it was only at the instance of the Attorney-General that the proceedings were re-opened against them. 

[At this stage leave to appeal on the facts was granted and the Court asked

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