023-NLR-NLR-V-48-THE-KING-v.-SURABIAL-SINGHO.pdf
SOERTSZ A.C.J.—The King v. Surabial Singho.
[Court of Criminal Appeal.]
1946 Present: Soertsz A.CJ. (President), Wijeyewardene and
Canekeratne JJ.
THE KING v. SURABIAL SINGHO.
Application No. 172 of 1946.
S. C. 5—M. C. Gampaha, 27,169
Court of Criminal Appeal—Alteration of verdict of jury.
Where the accused was found guilty of the offence of culpable homicidenot amounting to murder when the proper verdict which the jury shouldhave returned upon the evidence was a verdict that he was guilty ofvoluntarily causing grievous hurt with a dangerous weapon—
Held, that a conviction under section 317 of the Penal Code shouldbe substituted.
A
PPLICATION for leave to appeal against a conviction in a trialbefore the Supreme Court.
A. Hayley, K.C. (with him H. W. Jayewardene), for the applicant.
No appearance for the Attorney-General.
December 3, 1946. Soertsz A.C.J.—
The verdict of the jury in this case implies quite clearly that theyaccepted the case for the prosecution that the injured man was injuredby the fire-arm discharged by the accused. It is clearly established bythe medical evidence in the case that the injuries that resulted to theinjured man were of a grievous nature. The injured man died some timeafter he had received these injuries and the two Doctors who testified
70SOERTSZ A.CJ.—The King v. Surabial Singho.
in the course of the trial said that it was very probable that the broncho-pneumonia of which the man died ultimately was brought about orinduced as a result of his condition, that is to say, in consequence of thenature of the injuries he had received, but they went on to say that theycould not positively declare that the death of the deceased was not due toan independent cause. In those circumstances there arose at least a sub-stantial doubt, to the benefit of which the accused was entitled. Thelearned trial Judge in the course of his charge appears to have takenthe view that the offence of murder or culpable homicide not amountingto murder could not be sustained upon the evidence in this case. We aretherefore of opinion that the proper verdict that the jury should havereturned in this case was a verdict that the prisoner was guilty of volun-tarily causing grievous hurt with a dangerous weapon, to wit, a gun.
Then arises the question of sentence. Mr. Hayley, appearing for theapplicant, submits that if the verdict of the jury had been correctlyreturned as a verdict that the accused was guilty of voluntarily causinggrievous hurt with a dangerous weapon, it is not probable that the trialJudge would have imposed the sentence he has now imposed of 10 years’rigorous imprisonment on the assumption that the offence of which theaccused was found guilty was the offence of culpable homicide notamounting to murder. But in regard to that submission, it is not withoutsignificance that the learned Judge in addressing himself to the questionof sentence in the first instance sentenced the accused to a term of 12years’ rigorous imprisonment. In a short time he appears to have takenthe view that that was not a sentence which he was entitled to pass onthe accused in the circumstances of this case because he had the accusedbrought up before him and he addressed him in these terms: “ In viewof the facts disclosed in the case the maximum term to which you couldhave been sentenced was 10 years, but I sentenced you to a term of 12years’ rigorous imprisonment. That is an illegal sentence. In thecircumstances I reduce the term of imprisonment to 10 years and thatterm of 10 years will be substituted for the term of 12 years which Ipassed on you the other day. ” In addition there is the fact that in thecourse of addressing the accused the learned trial Judge said : “ You havebeen found guilty of a very serious charge. I am not in a position tosay that the verdict of the jury is not justified. Private vengeance inthese matters should not be allowed to find a place in village life ”, andso on. In those circumstances it would appear that the learned Judgeaddressed himself to the question of sentence with a great deal of careand caution and we are unable to say, as Mr. Hayley invites us to say,that the learned Judge would, if the jury had returned in the first instancea verdict of guilty of voluntarily causing grievous hurt with a dangerousweapon, have sentenced the accused to a lesser term of imprisonmentthan that which he passed upon him.
In those circumstances we see no reason to alter the sentence passedon the accused, but in regard to the conviction of culpable homicide notamounting to murder, we direct that a conviction under section 317 of thePenal Code be substituted for it.
Conviction altered.