Queen, The V. Dias Appuhamy

[In the Court of Criminal Appeal]

1955 Present: Basnayake, A.C.J. (President), Pulle, J., and
Weerasooriya, J.

REGINA v.  V.  DIAS APPUHAMY et al.

Appeals 111-112 of 1955 with Applications 171-172

S. C. 22-M. C. Galle, 16,768

Charge of murder-Plea  of guilty  to a lesser offence-Stage at which it may  be taken-Criminal Procedure Code, ss. 6, 221.

The appellants were indicted on a charge of murder. After two of the eye witnesses had been examined the Court permitted the accused, in the presence of the Jury, to plead guilty to the lesser offence of culpable homicide not amounting to murder. The Court then briefly summarised the evidence already led and asked the Jury whether they wished to accept the plea tendered by the appellants. The Jury, however, were unwilling to accept the plea. The trial then continued and at its conclusion the Jury returned a verdict of murder against the appellants.

It was contended in appeal that the appellants should not have been asked to plead until the Jury had first been asked whether they were willing to accept the plea and signified their willingness.

Held, that the procedure adopted by the trial Judge was not illegal.

Per Curiam :-" It has been the practice for a considerable length of time to accept a plea of guilty to a lesser offence when tendered in the course of a trial even after the accused has been placed in charge of the Jury, the procedure adopted being that prescribed in section 221 (2) with modifications to suit a trial by Jury. Our practice is the same as the English practice and section 6 of our Criminal Procedure Code affords sufficient authority for the adoption of that practice which is not in conflict or inconsistent with the provisions of our Code. "

APPEALS,   with   applications  for  leave   to   appeal,   against two convictions in a trial before the Supreme Court.

Colvin R. de Silva, with K. Sivasubramaniam and K. Charavanamuttu (Assigned), for the 1st and 2nd accused-appellants.

V. S. A. Pullenayegum, Crown Counsel,  for the Attorney-General.

Cur. adv. vult.

December 13, 1955.   Basnayake A.C.J.-

The two appellants and two others (hereinafter referred to as the 3rd and 4th accused) were indicted on a charge of murder of one Jakoris. The evidence against them was to the effect that the 1st appellant

followed by the 2nd appellant, the 3rd and 4th accused came armed with deadly weapons and attacked the deceased who was seated on the ridge of a paddy field which was being harvested under his supervision. The 1st appellant struck him with a club, the second with a katty, and the 3rd and 4th accused with clubs. The deceased died almost instantaneously, his head being badly battered and cut.

After two of the eye witnesses had been examined the Court at the request of the senior pleader for the appellants and the 3rd and 4th accused asked the Jury to retire. They did so. Thereafter the following proceedings took place according to the record :-

" Mr. Karunaratne states that he is prepared to advise the 1st and 2nd accused to plead guilty to culpable homicide not amounting to murder in the course of a sudden fight. Crown Counsel states that it seems to him on reading the Information Book extracts that there was some incident other than the incident deposed to by the witnesses. He further states that there are certain witnesses who are not called by him who speak to this fact. He states that he feels that there is something more than what the witnesses depose to. One witness leaves out the 4th accused and the other the 3rd accused. Court states it is a matter for the jury to decide at this stage.

Crown Counsel states that if the jury accepts this plea he is prepared to withdraw the indictment against the 3rd and 4th accused.

Jury returns.

1st and 2nd accused plead guilty to culpable homicide not amounting to murder in the course of a sudden fight. His Lordship briefly summarises the

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