[COURT OF CRIMINAL APPEAL]

1952 Present: Gunasekara J. (President), Pulle J. and
L. M. D. de Silva J.

L. H. SOYSA, Appellant, and THE QUEEN, Respondent

 APPEAL 61 WITH APPLICATION 89 OF 1952

S. C. 30-M. C. Kurunegala, 5,687
 

Charge of murder-Plea of self-defence--Right of private defence exceeded-Proper direction to jury-Penal Code, s. 294, Exception 2-Jury's rider recommending mercy-Effect on reasonableness of verdict.

Appellant, who was convicted of murder, gave evidence at the trial stating that he had killed the deceased in self-defence. As regards the second exception to section 294 of the Penal Code, the presiding Judge directed the jury that if the accused exceeded the right of private defence he was guilty of culpable homicide not amounting to murder. It was contended for the appellant that the jury should also have been directed to consider whether the appellant had acted without any intention of doing more harm than was necessary for the purpose of such defence, and that the omission of such a direction made the direction that was given a misdirection.

Held, that there was no misdirection. On the contrary the direction was unduly favourable to the appellant.

R. v. Kirinel's (1946) 47 N. L. R. 443, distinguished.

Meld further, that a jury's rider recommending mercy cannot be assumed to involve a view 6f the facts that is inconsistent with the verdict.

APPEAL, with application for leave to appeal, against a conviction in a trial before a Judge and Jury.

E. B. Sattrukulasinghe, for the accused appellant.

Boyd Jayasuriya, Crown Counsel, for the Crown.

Cur. adv. vult,

October 21, 1952. GUNASEKARA J.-

The appellant was convicted of murder. The statement that he made before the committing magistrate in answer to the charge had been " I am guilty ". At the trial he pleaded not guilty and he gave evidence to the effect that he had killed the deceased in self-defence. Referring to this evidence the presiding judge said in his summing-up:

" You know the story he related in the witness-box and you know the submission made by counsel for the defence. Counsel for the defence said that the one and only verdict that you can bring in this case, if you accept the evidence of the accused, was that of culpable homicide not amounting to murder on the ground that the accused was defending himself and exceeded that right."

The main ground of appeal was that the learned judge had misdirected the jury in regard to the second exception to section 294 of the Penal code upon which this plea was based. The exception reads :

" Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law, and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence ."

The learned judge explained to the jury the right of private defence and its limits and directed them that if the appellant had acted in self-defence and " within the ambit of the right given to him by law " he was guilty of no offence. As regards the exception in question he said :

" But if you think he was defending himself but that he exceeded the right of private defence your verdict will be culpable homicide not amounting to murder."

It was contended for the appellant that the jury should also have been directed to consider whether the appellant had acted without any intention of doing more harm than was necessary for the purpose of such defence, and that the omission of such a direction made the direction that was given a misdirection. We were referred to the judgment of this court in the case of R. v. Kirinelis 1[(1946) 47 N. L. R. 443.] and it was contended, in the words of that judgment, that " the jury were not given the opportunity of considering