073-NLR-NLR-V-65-THE-QUEEN-v.-J.-A.-A.-BRAMPY-APPUHAMY.pdf
BASNAYAKE, O.J.—The Queen v. Brampy Appuhamy
361
[In the Court of Criminal Appeal]
1983 Present: Basnayake, CX (President), Abeyesundere, J., andG. P. A. Silva, J.
THE QUEEN v. J. A. A. BRAMPY APPUHAMY
Appeal No. 137 of 1962, with Application No. 4178. C. 14r~M. G. Kandy, 26232
Right of private defence of property—Question whether it was exceeded—Question offact for jury to decide—Non-direction—Misdirection—Penal Code, ss. 90,96, 97.
The question whether on the facts of a given case an accused person hasexceeded his right of private defence of property is a question of fact for thedecision of the jury.
Appeal against a conviction in a trial before the Supreme Court.
W. Obeyesekere, with Hanan Ismail and K. Viknarajah (assigned),for Accused-Appellant.
E. B. de Fonseka, Crown Counsel, for Attorney-General.
February 13,1963. Basnayake, C.J.—
The accused-appellant was arraigned on an indictment containing twocounts. On the first count he was charged with the offence of murder bycausing the death of Ranpati Arachchige Wimalaseua, and on thesecond count with the offence of attempted murder by shooting VictorHettiarachchi with a gun. The jury by their unanimous verdict foundthe appellant guilty of culpable homicide not amounting to murder onthe first count and guilty of attempting to commit culpable homicidenot amounting to murder on the second count. The learned Judgesentenced the appellant to two years’ rigorous imprisonment on thefirst count and one year’s rigorous imprisonment on the second count,the sentences to run concurrently.
Shortly the facts are as follows :—It would appear that on the day ofthe shooting the two injured persons along with some others afterbathing in the river proceeded to Rajawatte Estate of which the accusedwas the watcher and plucked young coconuts from a tree standing thereand they were in the process of drinking them when Wimalasenaand Victor Hettiarachchi were injured by a gun-shot, Wimalasenadied in consequence of the injury,
ZR 14146—1,855 (11/63)
362
BASNAYAIOS, OX—Tba Qwtm v. Brampy Appuhatny
Tbe evidence for the prosecution consists mainly of the evidence ofwitness Hettiarachohi and Ponchi Banda, Witness Heiiiaraohohi saysthat when he looked around he saw this accused coming down with a gunin hand. Witness Farabi Banda says that be met this aoraeed
about 12 or 12.30 p.m. that day with a gun, and that shortly after thathe met witness Hetti&racb chi coming from the direction of the estatepressing a piece of cloth to his chest. On being asked what had happenedto him he said that the Bajawatte Estate watcher had shot him.Learned counsel for the appellant sought to attack the evidence ofidentity of the accused, but we are unable to uphold that submissionas the jury appearB to have believed that evidenoe.
The only question that arises for consideration in this appeal is whetherthe jury have been properly directed on the right of private defence ofproperty, It has been submitted that the following direction of thelearned Judge is wrong in law :—
“ If you are satisfied beyond reasonable doubt that he fired theshot, then the next question is—what offence did he commit, andon the view that I take of tbis case, I am going to tell you that if youare satisfied you are convinced beyond reasonable doubt that the accusedfired tbe shot, then the only possible verdict on the first count isguilty of culpable homicide not amounting to murder, and on the secondcount guilty of attempted culpable homicide not amounting to murder,and that is a direction of law that I mean to give you, and that wouldbe a direction that I will give you when I explain to you why I givethat direction. ”
In the course of his explaining the direction, the learned Judge addressedthe jury as follows :—
“ There is no question in this case, that on the law the accused hasexceeded the right of private defence of property. What then is theposition ? If he had not exercised the right of private defence, thenyou might have well to consider whether this was not a case of murder.Because, when a man uses a deadly weapon like a 12-bore gun loadedwith S. G. slugs, such as you can see here, quite enough to kill a man,then you might well think that a man who acts like that and fires atpersons unawares, was intending to cause tbeir deaths. But here youhave this circumstance that the accused was a watcher. He haddetected a theft and he thought wrongly as it turns out to be that hewas entitled to fire. Under those circumstances the law says that whatis otherwise murder is not murder but is culpable homicide not amount-ing to murder, where you exceed the right of private defence of propertywithout premeditation. To that extent—I am now addressing yougentlemen, remember, on the assumption that yon are satisfied thatit was the accused who fired—if it was the accused who fired then heha6 the benefit of tbe fact that he was the watcher and that he sawthese four young thieves and fired, wrongly thinking, but no doubtbona fide, that ho wao entitled to fire at them. Then, the offence is
BASNAYAKE, C. J.—The Queen v. Brampy Appuhamy
363
not murder but culpable homicide not amounting to murder.And, for the same reason the second count, if you are satisfiedbeyond reasonable doubt that it was the accused who fired,he would be guilty of not attempted murder but attempted culpablehomicide not amounting to murder.”
Finally, the learned Judge directed :
“ If that burden has been discharged by the Crown, then you willfind the accused guilty of culpable homicide not amounting to murderon the first count and attempted culpable homicide not amountingto murder on the second count.”
The intention or knowledge of a person are questions of fact whichare questions for the jury to decide. Similarly whether on the facts ofa given case an accused person in the exercise in good faith of the rightof property has exceeded the power given to him by law is a questionof fact for the decision of the jury.’ The learned Judge’s directionsamount to a withdrawal of those questions of fact from the jury. Theright of private defence of property is stated in section 90 of thePenal Code as follows :—
“ Every person has a right, subject to the restrictions contained insection 92, to defend the property, whether movable or immovable,of himself or of any other person, against any act which is an offenoefalling under the definition of theft, robbery, mischief, or criminaltrespass, or which is an attempt to commit theft, robbery, mischief,or criminal trespass.”
Section 96 of the Penal Code states the limits within which that rightmay be exercised. Subsection fourthly of that section reads :
“ Theft, mischief, or house-trespass under such circumstances asmay reasonably cause apprehension that death or grievous hurt willbe the consequence if such right of private defence is not exercised.”
Section 97 states :
** If the offence the committing of which, or the attempting to commitwhich, occasions the exercise of the right of private defence, be theft,mischief, or criminal trespass not of any of the descriptions enumeratedin the last preceding section, that right does not extend to the volun-tary causing of death, but does extend, subject to the restrictionsmentioned in section 92, to the voluntary causing to the wrong-doerof any harm other than death.”
The jury were not given a direction on this aspect of the law. Theyreturned a verdict in terms of the learned Judge’s direction that if theywere satisfied beyond reasonable doubt that it was the appellant who shot,then there was no other verdict possible except the verdict of culpablehomicide not amounting to murder. As stated above the direction
364
Wigeeinghe v. The Incorporated Oottnoi1 of Logoi Education
given by the learned. Judge was "wrong in that he usurped the functionsof the jury in directing them on questions of fact without stating thatthose were questions which they had to deoide. His omission to givethe jury proper dheethms on. the Jaw of defence of private property didnot give the jury an opportunity of examining the facte in the light ofthe law. In our opinion the conviction should be quashed on the groundof non-direction and mis-direction. The next question is whether thereshould be a retrial. It appeal's from the typescript that there hadbeen a previous abortive trial which resulted in a four to three verdict.In our view, the appellant should not be subjected to the expense andjeopardy of a third trial especially as this offence was committed as farback as 1961.
We accordingly quash the conviction and direct that a judgment ofacquittal be entered.
Accused acquitted.