LAWS(PVC)-1937-2-117

ALEXANDER KENNEDY Vs. KING

Decided On February 09, 1937
ALEXANDER KENNEDY Appellant
V/S
KING Respondents

JUDGEMENT

(1.) This is an appeal by special leave Against the conviction of the appellant on 20 October 1934, by the Supreme Court of Ceylon (Assize Court of Colombo) sitting with an English-speaking jury of seven jurors. The indictment upon which the appellant was convicted contained two counts-: the first under S. 419, Indian Penal Code, for that on 29 September 1933, he caused mischief by fire in respect of a building which contained his shop, and the second under S. 418 of the Code for the like offence in respect of the property in his shop. The appellant pleaded not guilty and the trial lasted from 3 September to 20 October 1934, when the appellant was found guilty by a unanimous verdict on both counts and was sentenced to a term of six years' imprisonment on each count, the sentences to run concurrently.

(2.) The circumstances out of which the proceedings arose were in outline as follows: The appellant, a native of the United Kingdom, had lived in Colombo since 1909 trading in boots and shoes. Since 1920 he had conducted the business which he was carrying on in 1933- a retail business under the style of Kennedy, selling mainly ready-made boots and shoes. He was the sole proprietor of that business. In connexion with it he also traded in skins suitable for the manufacture of shoes. These skins he bought or acquired in Ceylon or elsewhere, in the East, stored on premises of his own and consigned for sale in London. In the normal manner of traders he financed his purchases of boots and shoes made through agents in London and his consignments of skins to London, by overdrafts with his bankers, the National Bank of India. On 29 September 1933, he was and had been for some year or two conducting his business in a building known as the Times Building, a structure of reinforced concrete. The shop was on the ground floor and the appellant also occupied the basement. The appellant was in September 1933, engaged in equipping a new shop and was about to remove from the Times Building to such new shop in a building known as the Colombo Stores. Shortly after 11 p. m. on 29 September 1938, at a time when the appellant was alone on the premises in the Times Building, an explosion took place followed by a fire which did great damage to the building and virtually caused a complete destruction of all the stock on the premises. It was common ground that the explosion occurred in the basement and that the fire originated there. The appellant escaped with some injuries. His wife who was talking to the night watchman outside the premises was uninjured. Fire assessors were called in and various investigations were made by them and by the police. In April 1934, the proceedings now in question began in the Police Court of Colombo.

(3.) The main point raised for the appellant at the hearing of this appeal was that the learned Judge, Drieberg, J., misdirected the jury in that he directed them that there was evidence upon which they might convict the appellant whereas he ought to have directed them that there was no evidence entitling them to take that course and that on the evidence as it stood they ought to acquit the appellant. Counsel for the appellant relied upon the decision of this Board in the case of Seneviratne V/s. The King,1where their Lordships after an examination of the evidence held that it was such that a verdict of guilty could be no more than a guess and could not be justified by any principles of legal inference. There were also misdirections in the charge to the jury. The conviction was therefore set aside. The present case, it was said, fell into the same category and it was urged that the same result should follow. In particular it was said that the ease for the prosecution rested upon the use of petrol by the appellant and that upon the expert evidence for the Crown it was not shown that any quantity of petrol available to the appellant could have caused the damage to the building which in fact resulted, and that on the contrary the evidence as a whole and especially the expert evidence for the defence, showed conclusively that it could not have caused such damage. In the most able and thorough arguments of leading and junior counsel for the appellant their Lordships' attention was directed to all the material features in the very voluminous evidence in this case and their Lordships have also had the assistance of the Solicitor- General for the Crown. In the result their Lordships are satisfied that the complaint made is not well founded and that the jury not only ought not to have been directed in the manner suggested, but that, had they been so directed the direction would have been wrong. Having arrived at this conclusion their Lordships conceive that it would be as improper as it is unnecessary to review and discuss the evidence and its weight in detail so as to pass or to appear to pass a judgment of their own upon it. They propose to indicate in a form as compendious as possible why they have arrived at a clear conclusion that the directions of the learned Judge were proper and sufficient and that there was proper, nay ample, material upon which the jury could arrive at the verdict they did.