King V. Fernando, U.A. Et Al.,

[COURT OF CRIMINAL APPEAL.]

1945 Present: Soertsz S.P.J., Keuneman and Wijeyewardene JJ.

THE KING v. U. A. FERNANDO et al.

44-M. C. Chilaw, 24,345.

Court of Criminal Appeal-Charge of murder-Two accused-Issue of common intention-Inconsistency between verdict of jury and rider they added- Penal Code, s. 32.

The two accused were convicted of the offence of murder. On the question whether they acted with common intention the Crown relied mainly upon the evidence that the deceased man and his companions went to the house of the 1st accused on the invitation of the 1st and 2nd accused to come there and discuss a settlement of some cases then pending between the parties, and that they were attacked when they went there in response to that invitation. On this material, as put to them by the trial Judge, the jury considered the question of common intention and returned the verdict of " guilty of murder " and, at the same time, added a rider to their verdict recommending the accused to mercy on the ground that there was no premeditation.

Held, that the rider of the jury was not consistent with their verdict and negatived their finding as regards common intention.

APPEAL against a conviction by a Judge and Jury before the Western Circuit.

A. H. C. de Silva (with him M. M. Kumarakulasingham and Mahesa Rutnam) for the accused, appellants.

E. H. T. Gunasekera, C.C., for the Crown.

Cur. adv. vult.

May 17, 1945. SOERTSZ S.P.J.-

Counsel for the appellants, in the course of his argument, invited our attention to various passages in the notes of evidence, and in the charge to the jury and he submitted, upon them, that the learned trial Judge had formed a very strong view of the case and had, in enforcement of

that view, dealt unequally with the case for the Crown on the one side, and the case for the defence on the other, treating with indulgence the infirmities of the evidence given by the witnesses favourable to the case for the Crown, and with elaborate criticism those of the witnesses who supported the defence. Counsel asked us to hold that, in consequence, the appellants had not had a fair trial. In regard to this submission, we do not think it necessary to say anything more than that, in our opinion, no case has been made out for a retrial. We find that although the trial Judge did indicate, perhaps somewhat too clearly and strongly, his own views on the facts in the case, he told the jury more than once that, ultimately, they were the sole judges on questions of fact, and that they were free to form their own opinions of the witnesses and of the weight to be attached to their evidence. Upon an examination of the whole charge we cannot say that there was any violation or disregard of any principle of law or of any rule of procedure that would justify us in ordering a retrial in this case.

The question that has caused us great anxiety is whether, upon all the evidence, and upon the terms of the verdict returned by the jury, the conviction of the two appellants of the offence of murder should be upheld. We find that it is clearly established by the evidence that the fatal injuries on the deceased man were inflicted by the second appellant. The first appellant is shown, as clearly, to have caused a non-grievous injury with a long-bladed weapon. Those being the facts, it follows that, when the Crown indicted both appellants on a charge of murder, it based itself upon section 32 of the Penal Code to impute to the appellants a common intention to cause death. In support of that allegation the Crown appears to have relied mainly upon the evidence led to show that the deceased man and his companions went to the house of the first appellant on an invitation to them to come there and discuss a settlement of some cases then pending between the parties, and that they were attacked when they went there in response to that invitation. The case for the Crown w

Click Here to Read the rest of this document