046-NLR-NLR-V-46-THE-KING-v.-CROOS-et-al.pdf
KEUNEMAN J.—The King. v. Croat.
ms
[Court of Criminal Appeal.]
Present: Keanaman, Wljeyewardene andJayetlleke JJ.
THE KING v. CROOS et al.
l—M. C. Colombo, 27,483.
Court of Criminal Appeal—Verdict of culpable homicide not justified—Craveand sudden provocation—No common intention—Attempt to commiculpable homicide substituted in the case of 2nd accused.
The two accused were indicted for murder and convicted of culpablehomicide. On the Judge’s direction “ If there was grave and sudden-provocation, the offence would be culpable homicide not amountingto murder. If there was no grave and sudden provocation, it would bea case of murder itself ” the Jury brought in a verdict of culpablehomicide not amounting to murder against the 2nd accused.
There was no evidence that the injury inflicted by the 2nd accused,although it was intended to kill, endangered life or contributed to thedeath of the deceased
■The death of the deceased had in fact been caused by an injury iu-flicted by the 1st accused between whom and the 2nd accused there wasuo common intention established.
Held, that a verdict of “ Guilty of an attempt to commit culpablehomicide not amounting to murder where hurt has been cause " shouldbe substituted for that of culpable homicide in the case of the 2nd accused.
A
PPEAL against a conviction by a J udge and J ury before theWestern Circuit.
G. E. Chitty for the accused, appellants.
E. H. T. Gunasekara, C. C., for the Crown.
31 a rob 12, 1945. Keu.veman J.—
The appeal and the application of the 1st accused have already beendismissed, and the matter that remains relates to the 2nd accused.
The deceased in this case had two injuries;
an incised wound on the left side of the front of the chest penetrating
into the chest, and causing a wound on the left ventricle of theheart, which was necessarily fatal.
an incised wound on the back of the lower end of the left side of the
abdomen, which penetrated to a depth of 1£ inches, but nointernal injury was discovered. No bone was cut, and there isno evidence that this injury endangered life, or contributedto the death of the deceased.
The evidence showed that the 1st accused caused injury (1) while thedeceased was held by the 2nd accused, and that thereafter the 2nd accusedcaused injury (2), and it is clear that the majority of the jury so held.
Cur. adv. vult.
136
XEUNEMAN J.—The King v. Croot.
In his charge to the jury the learned Trial Judge dealt fully andadequately with the question of common intention on the part of the twoaccused. He also added—
“ If you accept the view that he had no intention of acting with hisbrother …. then you have to consider what he didlater …. Then he would be liable on his own account, thatis as an independent act of his own, and not liable in the same wayas the 1st accused. He would be free of any complicity in the 1staccused'6 stabbing, but there would be a case to consider of his ownact."
Thereafter the Trial Judge dealt with the evidence thut the 2ndaccused s-r-wl under grave and sudden provocation, and added " If youthink •'«, was an independent act, and there was grave and suddenprovpuwti ju, then the offence would be culpable homicide not amountingto murder ”.
Later tbe Trial Judge added that in the absence of common intentionIf there was grave and sudden provocation, the ofience would beculpable homicide not amounting to murder. If there was no grave andsudden provocation, it would be a case of murder itself ”.
Thereafter the jury by a majority brought in a verdict of culpablehomicide against the 2nd accused. Objection has been taken to thetwo latter passages of the charge, and we agree that on the evidenceavailable the charge is incorrect. It would have been correct if therewas any evidence t.o show that injury (2) either accelerated or contributedto the death of the deceased. But there was no evidence to this effect,and we are of opinion that the conviction of the 2nd accused for culpablehomicide cannot be supported. At the same time it is clear that the 2ndaccused has correctly beeD found guilty of an oSence, but it is a matterof difficulty to decide what verdict should be substituted in place of Hiepresent verdict. The medical evidence certainly does not definitelyshow that injury (2) amounted to grievous hurt or endangeredlife.
However, after the verdict, for the purpose of imposing sentence,the Trial Judge enquired from the jury what the effect of their verdictwas, and the jury declared that they had held that the 2nd accused aswell as the 1st accused intended to kill the deceased but had acted undergrave and sudden provocation. We do not, however, know what theverdict was on the question of common intention between the two accused,and the 2nd accused must have the benefit of that. As regards his ownoffence, regarded as an independent offence, we know that the majorityof the jury neld that he intended to kill. The injury he inflicted waswith a dangerous weapon, in a part of the body where danger t> life wasevident, viz., the back of the abdomen, and the blade had penetrated 1^inches. In all the circumstances we think the correct verdict, to besubstituted for the present one is " Guilty of an attempt to commitculpable homicide not amounting to murderHad the Trial Judge
based his charge on the attempt, we do not think objection could havebeen taken to his charge.
WIJEYEWARDENE J.—Sumangala and Appahamy.
187
We ■ accordingly substitute for the verdict arrived at by the jurythe verdiot of “ Guilty of an attempt to commit culpable homicide notamounting to murder where hurt has been causedWe delete the
present sentence and impose on the 2nd accused a sentence of fouryears' rigorous imprisonment.
Varied.