IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA. Sheron Serasinghe for the Accused-Appellant.

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1 N THE COURT OF APPEAL OF THE DEMOCRATC SOCALST REPUBLC OF SR LANKA n he maer o an Appeal Agans an order o he Hgh Cour under Sec. 331 o he Code o Crmnal Procedure Ac No. 15 o l '" Rahnayake Mudyanselage Punchbanda Anguruwauwe Gedara, Pussellaakanda, Badulla, Accused-Appellan C. A. Case No. : 98/2007 H. C. Badulla Case No. : 64/2005 v. The Hon. Aorney General Aorney General's Deparmen, Colombo 12., Responden BEFORE COUNSEL M. M. A. Gaoor, J & K. K. Wckramasnghe, J Sheron Serasnghe or he Accused-Appellan. Sudharshana de Slva SSe. or he Aorney General. l 1 1,

2 .. ARGUED ON 26 h July 2016 DECDED ON 21h Sepember 2016 K. K. WCKRAMASNGHE, J. 1 1 The accused-appellan (here n aer reerred o as "appellan") n hs case was ndced n he Hgh Cour o Badulla on wo couns punshable under sec. 296 and sec. 317 o he Penal Code. The appellan oped o have he case beore he learned Hgh Cour Judge whou a jury. A he concluson o he ral on 14h o March 2007 he learned Hgh Cour Judge convced he appellan or commng murder and or commng grevous hur punshable under sec. 296 and sec. 317 o he Penal Code. Thereaer mposed deah senence on he rs coun and 3 years rgorous mprsonmen on he second coun. The counsel or he appellan submed ha he avalable evdence s sucen o brng down he charge o culpable homcde, on he bass o grave and sudden provocaon or sudden gh. The second charge was no challenged... (, The prosecuon reled on he evdence o Kalubanda (he husband o he deceased) who was he njured and he son o he deceased (Anura Prasad). Accordng o' he evdence o he prosecuon he appellan and he njured Kalubanda were brohers and hey were resdng n adjonng lands wh her amles. On he day o he ncden, when Kalubanda came home he had seen hs boh chldren were playng wh a ball and hereaer had gone o he garden o he appellan over he sone ence. When he chldren sared o cry, he deceased (we o Kalubanda) had advsed no o cry. Then he appellan was alleged o have rased hs sarong and had showed o he deceased. Thereaer he deceased had scolded he appellan and here was an exchange o words by boh pares. Counsel or he appellan had submed ha a he me o he ncden njured Kalubanda was makng a sambol n he kchen and he had come ou o he kchen only aer when he was normed by hs daugher, ha hs we (he deceased) was cu by he appellan. When he wen 2 r J,

3 ou o he house appellan had hreaened hm ha he oo would be cu. Counsel or he appellan submed ha he appellan had rs cu he deceased, hen Kalubanda, hereaer gone back o he deceased and cu her agan. Aer recevng njures he deceased had gone under a breadru ree. Accordng o Kalubanda's evdence he had requesed Grama Nladhar o come. Grama Nladhar had asked o cover he body o he deceased. Then Kalubanda had become unconscous and when he reganed conscousness he was n he Badulla hospal. Accordng o medcal evdence cause o he deah was due o excessve bleedng. Counsel or he appellan urher submed ha accordng o he evdence o he JMO here were no necessary aal njures. s also observed by he JMO ha he deceased was suerng wh a deormy o he lungs and he wo lungs were pased ogeher (Page 60 o he bre) bu he PMR o he deceased s no avalable n he le o record. Accordng o evdence s revealed ha boh pares used o gh due o a long sandng land dspue. The MLR marked "p8" reveals ha he appellan was smellng o lquor a he me he was examned. The rs normaon was gven o he polce by he appellan hmsel..- s pernen o noe ha hough here was a land dspue he had no jus come o he deceased's compound and aacked wh a move nendng o comm murder o he deceased. Even accordng o he evdence o he prosecuon proves beyond reasonable doub ha he appellan had scolded he chldren rs over he "ball" allen o hs land. Thereaer under aggrevaory crcumsances hs ncden had aken place. Three conradcons were marked n he evdence o he njured. was suggesed o he wness ha he nlced njures o he appellan wh hs kne and also he and he deceased abused he appellan n lh and ha he appellan aced n 'Sel-deence. The appellan n hs dock saemen had no dened he ac ha he nlced njures o he deceased wh Kalubanda's kne. He had urher saed ha when Kalubanda aacked hm he aacked boh o hem as sel-deence. The kne was recovered and marked under sec. 27 o he Evdence Ordnance whch was aken ou rom a lower bed o he appellan's garden. n he case o Murugesu v. The Kng (1951) 53 NLR a page 471 and page 472 he learned Judge summarzed or he bene o he Jury he varous ssues on whch he verdc mus ulmaely depend: "... he was no aacked, hen you wll ask yourselves was hs hand ha caused he aal njury? When he deal ha blow, dd he have a murderous nenon? you have no doub ha was hs hand ha caused he aal njury hen proceed o ask yourselves wheher you can hold ha he had a murderous nenon. you come o he concluson ha he had a murderous nenon hen hs oence would be murder; bu you hnk ha he had no murderous 3

4 nenon, hen proceed o consder he had he know/edge ha hs ac was lke/y o cause deah or bodly njury sucen n he ordnary course o naure o cause deah. he had he knawledge hen hs oence would be culpable homcde no amounng o murder., however, even ha knowledge has no been esablshed by he evdence, he would be guly o volunarly causng grevous hur. Havng regard o he specc ssues whch were so promnenly placed beore he jury a hs sage o he ral, s n our opnon mpossble o sae wh cerany ha when consderng her verdc, hey had also remnded hemselves o he very bre and nadequae drecon ha hey should also consder he ssue o "provocaon" or o "sudden gh"." And also n The Kng v. Jnasekere 46 NLR a page 246 he learned Judge saed: u... he case or he rs accused, based on he njures ound on he second and hrd accused whch were o a ceran exen unexplaned, was ha he deceased receved her aal njures n he course o a sudden gh and hereore he crcumsances were such as o brng he case whn excepon 4 o secon 294 o he Penal Code. Moreover, he evdence o he second accused s acceped here was evdence o suppor he argumen ha he njures ound on he deceased were receved n he course o a sudden gh whou premedaon n he hea o passon upon a sudden quarrel. n hese crcumsances we hnk ha he jury should have been asked by he learned Judge o say wheher he case came whn hs excepon." The learned Senor Sae Counsel was o he vew ha he learned Hgh Cour Judge had correcly analysed he evdence and had rejeced he evdence o he appellan. Furher he submed ha he esmonal rusworhness o a wness s a maer' or a ral Judge wll no be dsurbed by an appellan cour lghly. Beore comng o a concluson we should be mndul o he evdence o he medcal exper as well. The docor who conduced he pos morem had saed ha he deceased was suerng wh a deormy o he lungs. The appellan had nlced njures o he deceased and urher had nlced njures o wness (njured) as well. The wness n hs evdence menoned ha he appellan sad n he cross examnaon was suggesed o he wness by he deence counsel, ha wness had no saed ha ac o he polce and only saed ha he accused sad u@?5)125 epd?". Then he wness had sad ha he could no remember. A hs juncon creaes reasonable doub wheher n ac he appellan had an nenon, snce here s a conradcory poson o an ngreden o he charge o murder. Senor Sae Counsel who appeared or he responden has sghed ollowng judgmens o show ha here s no ground or a plea o culpable homcde no amounng o murder, bu r' 4

5 consderng he avalable evdence seems ha he appellan was unable o conrol hs anger due o he aggravaory acors, specally he conduc o he deceased. n he case o James Slva v. Republc o Sr Lanka SLR 167 was held ha 'A sasacory way o arrve a a verdc o gul or nnocence s, o consder all he maers beore he Cour adduced wheher by he prosecuon or by he deence n s oaly whou '4- comparmenalzng and, ask hmsel wheher as pruden man, n he crcumsances o he. parcular case, he beleves he accused guly o he charge or no guly- See he Prvy Councl judgmen n Jayasena vs. Queen 72 NLR 313. / { One person's sel-conrol deers rom anoher. depends on crcumsances and he back ground o ha parcular ndvdual. Accordng o page 37 wness Prasad (son o he deceased) has gven evdence as ollows:- "q J O>C:> < c:lo CC:O"C:OC:> q :> Cl od'@c:o" 2SD:l:> 2S@2S), C 2S"'C:> 2SD:l:>. d 0:>0 Qhdo:> 53Cl02S c Cl ljccl a3",:>. Queson:- ZS;15l2.5) q :>:l qcc:>(dzs;z5):> 2S"'c:> 2SD:l:>? Answer: - wd. Queson:- d G:lC:>@D Z5) 02S2Sl( SC)@d? Answer:- q::l 292:)) So. Queson:- q w8@",2sl( qec:> (DZS;@ZS;? Answer:- 09:l w8@",25" qcc:> (DZS;Z5):>." l, Though he above menoned ac s no an ac acceped by he cvl socey appellan who was under he nluence o lquor wh such a background would have amoun hm o have such a behavour. Aer hearng he words o he deceased he would have suddenly go provoked. When consderng he evdence o he prosecuon s apparen ha murderous nenon was no proved beyond reasonable doub by he prosecuon. n he case o Ranaweera Lyanapaabendge Raja Gemunuleka CA NO. 131/2000 HC Ampara No. 303/99 decded on (Appellae Cour Judgmen (Unreporedlo08 Volume Page 26 a 34) was held by Jusce Sarah de Abrew ha "Excepon v o he Secon 294 o he Penal Code reads as ollows:- Culpable homcde s no murder s commed whou premedaon n a sudden gh n he hea o passon upon a sudden quarrel. and whou he oender havng aken undue advanage or aced n a cruel or unusual manner." \, n he judgemen o Ssra de Abrew J n CA No 189/2003 HC Ampara No. 758/2003 decded on (Appellae Cour Judgmens (Unrepored) 2007 Volume Page 169 a 179 saed 5

6 ha lo ge he bene o he deence o grave and sudden provocaon he ollowng maers mus be proved. (1) Tha he appellan was gven he provocaon (2) Tha he provocaon was sudden (3) Tha he prosecuon was grave (4) Tha as a resul o he provocaon, he accused-appel/an los hs power o sel-conrol (5) Tha whls deprved o he power o sel-conrol he commed he ac ha resuled n he deah o he vcm." Furhermore s evden ha n he nsan case he appellan had no premedaon and hs ac was no a all a pre-planned ac wh a move (hough was sad o have been a land dspue). Aer careul consderaon o he evdence, revealng ha he appellan was provoked by he words uered by he deceased, he appellan had aced under grave and sudden provocaon. Consderng he above acs, we quash he commal o he deah senence mposed by he learned Hgh Cour Judge and convc he appellan or culpable homcde no amounng o murder punshable under sec. 297 o he Penal Code. We mpose a senence o 20 years rgorous mprsonmen or charge no.l and arm he convcon and senence o charge no. 2. We urher order boh senences o run consecuvely. Subjec o he above menoned varaon, he appeal s hereby dsmssed... JUDGE OF THE COURT OF APPEAL M.M.A. Gaoor, J. Agree. JUDGE OF THE COURT OF APPEAL 6

7 , \ } CASES REFERRED TO: 1) Murugesu v. The Kng (1951) 53 NLR 2) The Kng v. Jnasekere 46 NLR 3) James Slva v. Republc o Sr Lanka SLR 167 4) Javasena vs. Queen 72 NLR 313 5) Ranaweera Uyanapaabendge Raa Gemunuleka CA NO. 131/2000 HC Ampara No. 303/99 decded on (Appellae Cour Judgemen (Unrepored) 2008 Volume Page 26 a 34) 6) CA No 189/2003 HC Ampara No. 758/2003 decded on (Appellae Cour Judgemens (Unrepored) 2007 Volume Page 169 a 179 \, \ * 7 'j ț l

IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA 1 N THE COURT OF APPEAL OF THE DEMOCRATC SOCALST REPUBLC OF SR LANKA n he maer o an applicaion or Revision in erms o Aricle 154 P (3) (B)ohe Consiuion o he Democraic Socialis Republic o Sri Lanka read