[COURT OF CRIMINAL APPEAL]

1947

Present : Soertsz A.C.J. (President), Jayetileke and Canekeratne JJ.

THE KING v. WIJERATNE

Appeal no. 64 of 1946

S.C.15- M. C. Kalutara, 37,375.

Jury- puzzling verdict - validity of such verdict

Where the verdict returned by the jury was extremely puzzling - Held , that the verdict ought not to be allowed stand.

APPEAL , with leave obtained , against a conviction in a trail a before the supreme court.

M. M. Kumarakulasingham, for the appellant.

T. S. Fernando ,C.C. fro the Attorney - General

Cur. adv. vult.

February 3 , 1947. SOERTSZ A.C.J.-

In this case the appellant was charged with attempt to murder a man called Seemon appuhamy. The appellants defence was that he inflicted the injuries found on the injured man in the course of defending himself against an attack on him by the injured man which gave rise to a reasonable apprehension in his mind that if he did not defend himself in the way he did he would be killed or, at least grievously injured. Upon that plea the questions that arose for consideration were whether an occasion arose for the appellant to exercise the right of self - defence, whether he exercised it reasonably without inflicting more harm than was necessary for the purpose of defence , or whether he exceeded the right given to him by law.

The learned trail judge directed the jury on this part of the case as follows:-
 
"If you find that as the accused says he went there are on a very peaceful mission to buy some nails, that he was taken unawares and the complainant attacked him with a knife on his head, that he rushed and picked up a manna knife or any other knife that was lying somewhere there and used that knife on the complainant , well then the question is two questions arise: - firstly as to whether he was justified in inflicting those wounds and secondly, whether he had exceeded his right of private defence. Well , in view of the nature of the injuries on the accused himself it would be a correct proposition of law to say that where he apprehended or reasonably apprehended that his life was in danger or that he would sustain grievous injury at the hand of his assailant he was entitled, in order to defend himself against that attack , to use the knife or any other weapon and use it in such a way as to cause the death of the assailant. If you accept those facts the accused will be entitled to ask for a verdict of acquittal at your hands, because the law does not say that a man whose life is being threatened must sit with his arms

folded and suffer death. It gives the right of self help to every individual. In this case although the complainant denies it, yet in view of the nature of the injuries on the accused, if you think the complaint was armed and if you accept the accused evidence that he was unarmed that this man attacked him, that in order to protect himself he picked up of the knife that was lying nearest to him and started slashing at the other man in order to save himself, it would be very difficult to say in those circumstances that the man had exceeded the right of private defence and in that case you will bring in a verdict of not guilty".

The learned judge also invited the jury to consider another defence which the appellant might have advanced , namely, that there these injuries were inflicted in a sudden fight up on a sudden quarrel and without pre-meditation and that , therefore ,they might find the appellant guilty of attempt to commit culpable homicide not amounting to murder. Thirdly, he asked them to consider the question whether the appellant had a murderous intention or only the knowledge that death was likely to result from his act and he directed them that in the latter case the offence would be again attempt to commit culpable homicide not amounting to murder.

The jury retired to consider their verdict and when they returned to court, they said that to the clerk o