[COURT OF CRIMINAL APPEAL]

1951 Present: NAGALINGAM S.P.J. (President), Gratiaen J. and
Gunasekara J.

MURUGESU, Appellant, and THE KING, Respondent.

Appeal 64 of 1951, with Application 93. S. C. 4-M. C. Kayts, 1,515

Charge of murder-Plea of self defence-Summing-up-Duty of Judge to give adequate directions on "provocation" and "sudden fight"-Penal Code, s. 294, Exceptions 1 and 4.

In a prosecution for murder, the accused pleaded that he had acted in self-defence, and the jury were adequately directed by the presiding Judge on that issue.

Held, however, that, as the mitigatory pleas of " grave and sudden provocation " and of " sudden fight " would also have arisen for the jury's consideration in a possible view which they might have taken of the evidence, the presiding Judge should have given the jury adequate direction on that aspect of the case as well.

APPEAL, with application for leave to appeal, against a conviction in a trial before the Supreme Court.

M. M. Kumarakulalasingham with T. GANESHALINGAM and S. Sharvananda (assigned) for the accused appellant.

Boyd Jayasuriya, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

November 15, 1951. GRATIAEN J-

This is an appeal from a conviction for the murder of a man named Aiyan Kandiah alias Singarayar.

The appellant and Kandiah were the owners of rival toddy booths, and it is not in dispute that some days before the 6th June, 1951, they had quarrelled over a seemingly trivial dispute concerning the price of toddy. The case for the prosecution is that about mid-day on 6th June, 1951, the accused attacked Kandiah with a " toddy-pole " when the latter was passing his booth. Kandiah was removed to the Jaffna Hospital at 1.15 p.m., and he died there about an hour later. Dr. Vanniasekaram who conducted the post-mortem examination on his body has testified to the deceased having sustained a single injury on his head. The skull was fractured and the injury was necessarily fatal.

The appellant gave evidence on his own behalf at the trial. He did not deny that it was he who had dealt the blow in consequence of which Kandiah came by his death. His version of what took place is, however, entirely different from that relied on by the Crown. He states that when he was about to enter his toddy booth he was waylaid by Kandiah and a man called Nagamany each of whom assaulted him with a club. He claim3 that in these circumstances he acted justifiably in self-defence, and that he was entitled to an acquittal of the charge against him.

The appellant ran away from the scene after attacking Kandiah, and the evidence establishes that shortly afterwards he went to the Village Headman who gave him a letter reporting the incident to the Inspector of Police. In the meantime the Inspector had arrived at the spot. When the appellant returned to the scene and discovered that the Inspector had already arrived there he attempted to run away. He was however promptly arrested. A short while afterwards he too was examined by the doctor who speaks to 6 separate contusions on the appellant's shoulder blades and left forearm. These injuries were non-grievous, but in the opinion of the doctor they must have been caused by two separate weapons which were in all probability clubs.

The defence relied strongly on the evidence of these injuries as supporting the appellant's version of the incident. The Crown, on the other hand, suggested that the injuries had been inflicted by a friendly hand during the comparatively short interval between the appellant's hurried escape after attacking Kandiah and the time of his ultimate arrest.

Having regard to the manner in which the case was conducted at the trial, a great deal of the learned Judge's summing-up was confined to matters relating to the appellant's special defence that he had acted in the exercise of the right of self-defence. In our opinion the jury received adequate directions