[COURT OF CRIMINAL APPEAL]

1954 Present; Pulle J. (President), Swan J. and Weerasooriya J.

S. LUVIS, Appellant, and THE QUEEN, Respondent

APPEAL NO. 1 OF 1954, WITH APPLICATION 4

S. C. 19-M. C. Chilaw, 1,979

Charge of murder-Plea of sudden fight-Not specifically raised-Disclosure in. evidence-Summing-up.

In a trial for murder, although it was an integral part of the accused person's defence that the deceased came by his death in the course of a sudden fight, it was not specifically raised as a defence that the accused was the person who inflicted the fatal injury in the course of that fight.

Held, that, having regard to the evidence, the fact that sudden fight was not specifically raised as a defence did not relieve the trial Judge of the duty of placing before the Jury that aspect of the case.

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

Colvin R. de Silva, with G. C. Niles and A. K. Premadasa, for the accused appellant.

Ananda Pereira, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

February 15, 1954. WEERASOORIYA J.-

The appellant in this case was convicted, on the unanimous verdict of the Jury, of the offence of murder.

The case for the prosecution was that as the deceased was proceeding from a boutique where he had gone to buy a cigarette, the appellant came up to him from the opposite direction and dealt him a blow with his hand on the face which caused the deceased to fall, and thereupon the accused pulled out a pointed weapon from his waist, stabbed the deceased once in the chest saying " I will go away only after killing you ",'and ran away carrying the weapon with him. According to the medical evidence the deceased must have died almost instantaneously on receiving this injury which had penetrated the chest cavity and cut the right ventricle of the heart. The prosecution was unable to adduce any evidence as to why the appellant should have delivered this sudden attack on the deceased. There was evidence that the deceased was not a man of good character and that he had at least on one occasion been convicted of an offence for which he received a jail sentence. There was also evidence that shortly before the stabbing, the deceased had been drinking some arrack.

The appellant in giving evidence on his own behalf related a version as to how the deceased could have received the fatal injury which was substantially different from the circumstances as deposed to by the witnesses called by the prosecution. His version was that when he was casually passing the scene of the stabbing he noticed two groups of people who were abusing each other and " getting ready for a fight ", to use his own words; that in one of these groups was the deceased, that he went up to the deceased and told him to go away and not to quarrel, but the deceased resented his intervention; and he described the subsequent stages of the incident as follows :-

" The deceased scolded me dragging the name of my mother. I also returned the abuse in the same terms. He then struck me with his hand and I also struck him in return. Then Sardiris, Sardiel and Martin got hold of the deceased. Then there was a free fight on the road. I then went home . . . ."

The appellant denied that he had a knife or used one on the deceased. The suggestion implied in his evidence was that the deceased came by his death in the course of the fight which took place as he left the scene. In re-examination he stated :-

" . . . . At the time I left they were surrounding and fighting in a group. One was fallen. That person appeared to be Hendy (the deceased). At the time I left I thought that was Hendy who was fallen. It was after that that I left the scene.

Q : Was it due to any blow dealt by you that Hendy fell down ?

A : Due to my blow. I cannot say which blow but I dealt blow for blow. He dealt me a blow and I dealt him a blow. I