[COURT OF CRIMINAL APPEAL]

1946 Present: Howard C. J., Cannon and de Silva JJ.

THE KING v. HERASHAMY et al.

5-7-M .C. Gampaha, 24,265.

Evidence- Statement by deceased person relating to circumstance of transaction Which resulted in his death-In what circumstance admissible- when Admissible as part of res gastae -Alternative verdict possible - Duty of Judge to put in to the jury- Trial of several accused for attempted Murder- Directions regarding common intention- Evidence Ordinance, ss.6, 32 (1)- Penal Code,s.32- Court of Criminal Appeal ordinance, No. 23 of 1938,s. 5 (1).

The three accused were convicted of the offences of attempted murder and causing simple hurt.

According to the evidence, on the day of the offences, the injured man made a statement to the headman, who went to the scene for investigation, that the three accused had assaulted him. The injured man subsequently died, but with regard to the cause of his death the medical evidence was that the injury received at the hands of the accused had  healed and that the death was caused by septic absorption due to bed sores.

Evidence was also given by S, who was the son of the deceased, that hearing cries on returning home he ran and saw his father lying fallen, that he spoke to his father and asked him who had assaulted him and his father said that the accused had done so, and that then he accused assaulted him (S). This assault, which was the subject of the second charge against the accused, took place within one fathom from his father .
   
Held,           (i) that as there was no proved connection between the bed sores and the injury inflicted by the accused on the deceased the statement made by the deceased to the headman that the accused had assaulted him was not admissible under section 32 (1) of the evidence Ordinance;

                  (ii) that the statement was admissible as part of the res gestue, under section 6of the Evidence Ordinance;

                 (iii) that the statement of the deceased to S was inadmissible under section 32 (1) but was admissible, as part of the res gestae, under section 6 of the Evidence Ordinance.

Held, further,   (a) that, although the statement made to the headman had been improperly admitted, the provisions of the proviso to section 5 (1) of the court of Criminal Appeal Ordinance were applicable as there was no substantial miscarriage of justice;

                     (b) that as the trial Judge had suggested that the accused or any one or more of them might, by reason of self-induced intoxication, have been incapable of forming a murderous intention he should have invited the attention of the Jury to the possible verdict of a lesser offence than attempted murder ;

                     (c) that, in view of certain confusion in a passage in the summing-up, it should have been made clear to the Jury that to convict all of the accused of the offence of attempted murder each one of them at the time of the assault was actuated by a common intention not merely to beat the deceased, but to cause his death or such bodily injuries as were likely to cause his death.

APPEALS form certain by the Commissioner of Assize and Jury.

               S. C. E. Rodrigo, for the 1st accused, appellant.

               2nd accused, appellant, in person.

               M. M. Kumarakulasingham, for the 3rd accused, appellant.

               H. H. Basnayake, Acting Attorney ? General (with him D. Jansze, C. C. ) for the Crown, respondent.

Cur. adv. vult.

February 25, 1946. HOWARD C.J.-
   
The accused appeal from their convictions by the Commissioner of Assize and Jury of the offences of attempted murder and causing simple hurt. ?After conviction each of them was sentenced to seven years? rigorous imprisonment on the first count and one year?s rigorous imprisonment on the second count, the sentences to run concurrently. Three grounds of appeal have been taken by Coun