Barnea Nimalaratne v. The Republic of Sri Lanka
1975 Present: Sirimane, J., Perera, J. and Weeraratne, J.BARNES NIMALARATNE, Appellant, and THE REPULICOF SRI LANKA, Respondent
C. A. No. 93/73 with Application No. 100/73S. C. 808/72—M. C. Matale, 38178
Criminal Law—General exception—-Defence of insanity—Burden andstandard of proof—Penal Code Section 77. Question of an abnormalpersonality due to “irresistible impulse”. The accused-appellantwas unanimously found guilty by the jury of the murder of hiswife and sentenced to death. He pleaded insanity.
Held, interpreting Section 77 of the Penal Code which embodiesinsanity, it is not sufficient for the defence to raise a doubtin the minds of the Jury. The defence has to establish that theaccused did not know the nature of the act or, in the alternative,that it was contrary to law, on a preponderance of probability or ona balance of the evidence. The burden on the accused is no heavierChan that resting on the plaintiff or the defendant in a civil case.
Held, further:— that it must be carefully borne in mind that, inorder to succeed, the defence must establish on a preponderance ofevidence that at the time the.accused committed the criminal act hewas in one or the other alternative states of mind set out inSection 77 of the Penal Code.
The question of an abnormal personality due to “ irresistibleimpulse ” discussed.
_Al PPEAL against conviction.
E. R. S. R. Coomaraswamy with Prins Gunesekera, C. Chdkradaran andV. B. D. Fernando, for the Accused-Appellant.
T. N. Wickremasinghe. Senior State Counsel for the State.
Cur. adv. vult.
52WEERARATNE, J.—Barnes Nimalaratne v. The Republic of Sri Lanka
June 2, 1975. Weerahatne, J.—
The accused-appellant in this case, one Barnes Nimalaratne,was indicted for the murder of his wife Ariyawathie, an offencealleged to have been committed on 10th October, 1971. He wasunanimously found guilty by the Jury of that offence andsentenced to death.
It would appear from the evidence that the accused and thedeceased married when they were both working at the BadullaHospital where the accused was a clerk and the deceased, aNurse. The evidence discloses that the accused took to drink andwithin a few years of the marriage, which was contracted inAugust 1967, the deceased applied for maintenance and obtainedan order in her favour on 5th November, 1970 on the ground thatthe accused neglected his family. The deceased Ariyawathie hadthen obtained a transfer to Matale where she lived with herparents and both husband and wife thereafter instructed theirlawyers with a view to divorce.
According to the evidence, the accused went to Ariyawathie’sparental home in Matale on the 9th October, 1971 as he wasengaged in work relating to the Census which was due to be heldThe accused lived in that house until the night of 11th October.1971 when according to the evidence, there was some disputebetween them both after they had retired for the night tcAriyawathie’s room. Ariyawathie then appears to have left herroom and gone to her sister’s room and slept there within closeddoors. The accused went up to her sister’s room and insisted thatAriyawathie should return to their room and even went so far asto tell her that she should come back and if she did not do so, hewould “ do a fine thing otherwise ”. Thereafter the deceasedreturned to their room where the accused and she had sleptearlier.
According to the evidence of the father of the deceased he wasawake since 12 midnight due to his work as a baker. He wasalerted to cries from Ariyawathie’s room and rushed up therewhereupon the accused unlocked the door and came out withthe sleeve of his shirt on fire. The father thought that theaccused was making an attempt on his life and rushed behindhim, but, on hearing cries emanating from the direction ofAriyawathie’s room, ran up there and found her on the bed inflames. They managed, with difficulty, to extricate Ariyawathiefrom her bed and then took her to the Hospital. She had severethird degree burns affecting almost 90 percent of her body. Herdying deposition was recorded at the Hospital and she passed:
WEERARATNK, J.—Barnes Nimalaratne v. The Republic of Sri Lanka
away by mid-day on 12th October, 1971. Dr. Ranarajah, who heldthe post-mortem, stated that death was the result of extensiveburns which were necessarily fatal.
The accused, soon after he was seen by the father of thedeceased leaving the room, had made a statement to PoliceSergeant Ekanayake whom he had stopped on the road while hewas travelling in his jeep on patrol duty. He told Ekanayakethat whilst he was asleep in his wife’s home he felt pain on hishand and found his wife by the side. The accused was taken byEkanayake sometime later for treatment in Hospital andsubsequently taken into custody.
Mr. E. R. S. R. Coomaraswamy, learned Counsel for theAppellant, conceded that he was not contesting that the accuseddid the act and submitted that the only question which arises iswhether the accused was of unsound mind at the time of thealleged offence, having regard to the provisions of Section 77 ofthe Penal Code. Counsel prefaced his argument on the questionof insanity by stating that in this case there was no motive tokill Ariyawathie which could be established by the prosecution.
There was, he submitted, an order for maintenance, an agree-ment between the husband and wife to obtain divorce andfurther, that the appellant had continued to pay maintenance.There was also the fact that the accused visited Ariyawathie fromtime to time. Counsel further conceded that the dying declaration,P10, was true. Counsel observed that the conversation theaccused had with the Police Sergeant Ekanayake shortly aftertlie alleged offence while he was walking along the road, wasmade a point against the accused to show sanity, but, submittedthat it could also show insanity.
Every man is presumed in law to be sane and possess asufficient degree pf reason to be responsible for his crime untilthe contrary is proved to the satisfaction of the Jury. Section77 of the Penal Code sets out that nothing is an offence whichis done by a person who, at the time of doing it, by reason ofunsoundness of mind, is incapable of knowing the nature of theact or that he was doing what is either wrong or contrary tolaw.
In interpreting this provision our Courts have held that itis not sufficient for the defence to raise a doubt in the mind ofthe Jury. The defence has to establish that the accused did notknow the nature of the act or in the alternative, that it was con-trary to law, on a preponderance of probability or on a balanceof the evidence. In short, as mentioned by Howard, C.J in thecase of King v. Don Nikulas Buiya (reported in 43 N. L. R. at 385)
WEERARATNE J.—Barnes Nimalaratne v. The Republic of Sri Lanka
quoting from the judgment of Viscount Hailsham in theMcNaughten case, “ insanity must be proved to the Jury’s satis-faction and it must be clearly proved This much is clear asstated by Howard, C.J.—the burden on the accused is no heavierthat that which rests on the plaintiff or the defendant in a civilcase. In other words, the burden is discharged by an accusedperson who shows on a preponderance or a balance of evidence insupport of such a plea.
In support of the plea of insanity raised by the defence, theevidence of Rev. Buddhadatta Thero, a brother of the accused,was led to show that the accused’s mother was mentally derangedfor ten to twelve years prior to her death (she died at 73). Hisfather’s brother according to this witness, died of mentalderangement. In this way it was suggested that there was ahistory of insanity in the family. It was further sought to beestablished by the same witness that the accused at times actedqueerly in his youth, as for intance, he once ate a “ Kaduru ”fruit and on another occasion, had jumped into a well whenpunished by his father. The prosecution however commented thatthe well had only 3 feet of water. The accused had on oneoccasion suddenly disappeared and worked as a labourer. Theaccused was also, according to his evidence, subject to epilepticfits. On this point the prosecution submitted that there was onlyone occasion according to the evidence when the accused fellunconscious due to a fit and further, if it was an actual case ofepilepsy, it would have been when the accused was only 15years of age.
Background evidence of this nature may be of force when thedefence seeks to establish insanity. However, it must be carefullyborne in mind that in order to succeed the defence must estab-lish on a preponderance of evidence that at the time the accused!committed the criminal act he was in one or the other alternativestates of mind set out in the provisions under which he hassought to bring himself. (Section 77 of the Penal Code).
It would be relevant to mention, however, that despite hisfamily taint of insanity referred to by his brother and the singleinstance of alleged epilepsy, the accused did find service underthe Government and continued to serve until he was taken intocustody for this alleged offence, except for a very short periodwhen he was examined by certain Doctors. In fact, in the courseof his duties, sometime about 1960 he was the Diet and StoresClerk of the Hospital where he was working, which allocationof work would undoubtedly have required a tidy organised mind,for otherwise the authorities would certainly have not continuedhim in that capacity.
WEERA R ATNF. J.—Barnes Nimalaratne v. The Republic of Sri Lanka
The appellant’s Counsel relied heavily on the evidence of themedical witnesses and it remains to be seen how far suchevidence supported Counsel's contention that it helps to estab-lish the defence raised under Section 77 of the Penal Code asanalysed by me earlier.
Dr. Seneviratne was the Psychiatrist in-charge of the MentalHospital, Pelawatte, from 1960, at which time the accused was theDiet and Stores Clerk of that Hospital. He stated that the accusedbehaved sometimes in a peculiar manner and was seen on anoccasion somersaulting in the ward. The accused had also, onanother occasion, tried to hang himself with a bed-sheet in theHospital. Dr. Seneviratne did not see the actual attempt of theaccused to hang himself but was brought to the room where theattempt to do so is alleged to have occurred-
I must say at once that on this point there is no specificevidence as to whether there was an actual attempt to hanghimself, since the evidence that would constitute an attemptwould have to be necessarily something to the effect that theaccused tied that sheet round his neck with a view to hanginghimself. There is no such evidence from anyone who had seenthis incident, placed before Court, except for the fact that therewas a sheet tied to a truss bar in the Ward.
It must be clearly borne in mind that when such evidence it-sought to be given in order to bring an accused person underSection 77 of the Penal Code, the material on which any proposi-tion is made in order to bring such person under the provisior-must be clearly established and not set out in vague or desultoryfashion. The burden is fairly and squarely on the defence tcprove insanity and as stated by Dias, J. in the case of King vsJayawardena (48 N. L. R. at 487), the conclusions must not bebased on inadequate material and must not be hearsay.
Dr. Seneviratne goes on to say that the accused was extremelyannoying and stubborn. At certain times he was most meticulousin his work. He found him drinking “ kassippu ” and there werralso occasions when he had drunk spirits of wine after * burningit during working hours.
It seems to me that this last piece of evidence is indeedsignificant since there is no knowing as to whether his curiousbehaviour at times was due to spirits of wine or “ Kassippu ”rather than, mental illness.
Dr. Seneviratne then, from material such as this, deals with thc-the accused’s state of ' epileptic behaviour disturbance ’ whichwas his diagnosis, having regard to the accused’s behaviour
WEERARATNE, J.—Barnes Nimalaratne v. The Republic of Sri Lanka
referred to earlier. He went on to state that his ‘ epilepticbehaviour disturbance ’ could take the shape of aggression to him-self or others which can be triggered off at the time of sleep orduring early hours of the morning and consequently he may noteven be aware of what he was doing. The entire diagnosis of
epileptic behaviour disturbance ’ was according to Dr. Senevi-ratne, based on a history of epilepsy. It must be emphasised that•the Doctor relied upon this single instance of alleged epilepsywhich is said to have happened when the accused was only 15years of age on the evidence of the accused’s brother, who wasno medical man. When Dr. Seneviratne was asked what otherInformation he had to arrive at this diagnosis, his answer was : —
“ I did not get any other social information because it wasnot relevant. I was more concerned with his past illness,specially whether there was any previous history ofepilepsy
. This type of evidence seems to. be quite unsatisfactory whenwe are aware that the only suggestion of epilepsy arises fromthe evidence of his brother as. mentioned earlier.
When confronted by evidence such as this, it is not surprisingto find Dias, J., in the case mentioned earlier, referring in nouncertain terms to reckless evidence given by medical men on■inadequate material.
Dr. Seneviratne, on such material, states that the accused couldvWell have been insane. This Doctor goes on to describe graphi-cally that in f. state of clouded consciousness, the accused couldnot. be aware of what he was doing. He may not even be awareof the nature and the quality of the act that he is doing. In stat-ing this Dr. Seneviratne says that "he has relied on. the instancesOf two alleged attempts of suicide, details of which have' already been given, and a single' instance of alleged epilepsy.
It seems tb me that evidence of this nature, given by a non-medical witness in respect of an illness like epilepsy, should notbe the basis for the diagnosis made and the consequential…conclusions arrived at by the Doctor.
. Be that as it may, Dr. Seneviratne does finally come to thefinding that the condition from which the accused suffered couldput him out of his mind at times whilst at other times, he couldbe quite lucid. One thing, however, is certain, namely, that we
know that the accused continued to attend to the responsible
work of a Diet and Stores Clerk without any criticism of his
WEERARATNE J.—Barnes Nimalaratne v. The Republic of Sri Lanka57
work, which entailed, inter alia, maintaining of stores books andrecords which undoubtedly involved preciseness and a keenmind.
In the course of cross-examination by Senior State Counsel,Dr. Seneviratne was constrained to admit that he did not possess-a single note on which he could base his detailed evidence givenin Court. He further admitted that he did not send the accused,before a Medical Board despite the serious implications of his-alleged insanity. He did not even refer to this diagnosis in his-Confidential Report which would savour of irresponsibility if'he regarded the accused as insane to the extent he says hewas, and also capable of doing injury to himself and evenothers at particular times. However, after giving some contra-dictory evidence on the question whether it was highly probablethat the accused was insane on the night of the alleged murder,he ultimately was constrained to admit in cross-examinationthat he could not say whether the accused got an attack on the-night in question at the time of the incident.
Three years later in 1964 the accused was sent before a Medi-cal Board which examined the report of Dr. Sittampalam (D13).He was reported fit for service and described as of sound mind'with no delusions or hallucinations. Then, five years later, in1969 he faced a second Medical Board and was examined byProfessor Rodrigo who reported (P15) that though the accusedwas not suffering jrom mental illness, he nevertheless hadabnormal personality and developed stages of disorganisation ofbehaviour from time to time owing to that he was subject to<“ irresistible impulse ”.
Professor Rodrigo, who is a Psychiatrist, being questioned as?to what constituted “ irresistible impulse ” admitted that suchpersons “in a period of stress when confronted with a situationof mental stress are unable to control themselves and easily givevent to their feelings He said that such persons acting under“ Irresistible impulses ” would have an awareness of what theydo. It is not possible definitely to exclude that possibility.
Q. “ This category of persons will not escape responsibilityon the basis of the McNaughten rules on which youwere questioned ? ”
A. “ Under the McNaughten rules that is so.”
Q. “ Even though he is acting by reason of some un-controllable impluse ? ”
A. “Yes.”!•»—A 2X176 (76/06)
58 WEERARATNE J.—Barnes Nimataratne v. The Kepublic of Sri Lanka
The question of an abnormal personality due to an■“ irresistible impulse ” was considered in the Privy Council caseof Sodeman vs. R. reported in 1936, 2 AER at 1139. The argumentof Counsel for the Petitioner was that the rule in theMcNaughten case (14 Digest 56) could no longer be treated asan exhaustive statement of law in regard to insanity and thatthere was to be grafted upon those rules another rule that wherea man knows that he is doing what is wrong, nonetheless he maybe held to be insane if he is caused to do the act by “ irresistibleimpulse ”, produced by disease.
In this case, the petitioner, a labourer, took a girl for a rideon his bicycle, strangled her, tied her hands behind her back,stuffed some of his clothing into her mouth and left her fordead. He had committed three previous murders in similar waysand the defence taken was that two Government Prison Doctorsin a Department in the Mental Division gave evidence insupport of the defence whilst the Crown submitted no expert■evidence. Viscount Hailsham, who was associated with LordMacMillian and Sir Isac Isaacs, held that the law with regardto insanity was stated in the McNaughten case and that therewas not to be added to that statement another rule that whena man knows that he was doing wrong but was forced to do theact by an “ irresistible impulse ” produced by disease, he couldrely on insanity as a defence. The House of Lords in the case ofAttorney-General for the State of South Australia and Brown,reported in 1960 Appeal Cases 432, re-affirmed the view of thelaw stated in the case of Sodeman.
Professor Rodrigo referred to report, D12, of Dr. Grilmayer,Viennese Specialist attached to the Mental Hospital, who hadexamined the accused and did not make any suggestion that hewas of unsound mind.
The next Psychiatrist called as a witness was Dr. Manukula-sooriya attached to the Prisons, who produced his docket P17.He treated the accused from 30.11.72 to 17.4.73. He says that hewas in a good mental condition at the time. He stated that theaccused had an acute state of anxiety which he consideredwould be because he was facing a capital charge. He expressedthe opinion that the accused was of “ abnormal personality ”,which conclusion he arrived at on the material given by theaccused’s brother. The material was, jumping into a well withonly three feet of water, eating of the “ kaduru ” fruit (both ofwhich he did when he was a boy) and the alleged attempt atsuicide with a bedsheet in 1971. I have already made my obser-vations in regard to this attempt.
WEERARATNE J.—Barnes Nimalaratne v. The Republic oj Sri Lanka 59
It is relevant, perhaps, to mention that the accused’s father-in-law stated in evidence that an alleged attempt at suicide byhanging occurred when the accused was drunk, (page 62 : Q.998). It is important to note that this Doctor conceded that witha martinet as his father, the accused at the age of 15 may wellhave had the need for attracting the sympathy and affection ofhis parents, and consequently did these things. There were otherfacts that this Doctor took into consideration, such as theadmission of a suspicion that he had about Ariyawathie havingan affair with one of the boarders. The Doctor, however, wasunable to say anything about the accused’s likely condition atthe time of the alleged incident.
Dr. Ranarajah, District Medical Officer, Matale, produced the-Bed-Head Ticket of the accused dated 11.10.71 and the timegiven was 2.15 a.m. It is conceded that the date should read12.10.71. He had superficial burns of the right upper arm andshoulder. He had noted that the patient was very boisterousand shouting. The accused said that he had got burnt "withouthis knowledge.
As I have prefaced earlier, the question that arises in thiscase and which is relevant to the plea of insanity taken underSection 77 of the Penal Code is whether the accused was un-sound within the meaning of that provision, at the time of thealleged act. Indeed, any background evidence in regard to themental condition of the accused would be useful to ascertainhis state of mind, but, it must be emphasised that such evidencemay not be sufficient to support the defence of insanity sincethe crucial question is as to whether the accused was insaneat the time that the alleged act was committed.
I have, earlier in this judgment, commented on the natureof this evidence and the observations of the medical witnesseswho gave evidence, both for the prosecution and the defence.There appears to be some unanimity amongst the medical wit-nesses—some of whom are Psychiatrists—in regard to the factthat the accused could possibly have had episodic attacks fromtime to time. By this they mean that he had had lucid momentsas well as abnormal personalities at other times. The crucialissue, however, is whether he was lucid or not at the time ofthe alleged act which was admittedly committed by him.
I have shown earlier that Dr. Seneviratne only relied on theevidence of the accused’s brother to base his conclusions of“ epileptic behaviour disturbance ” upon which the suggestion ofinsanity of the accused is built. Even Professor Rodrigo says thathe based his conclusion of abnormal behaviour by the accused*
-60WEERARATNE, J.—Barnes Nimalaratne v. The Republic of Sri Lanka
who had his lucid moments at other times, on the material givenby his brother upon whose evidence Dr. Seneviratne also relied.However, it is significant that despite all these pronouncements,the two Medical Boards did not find the accused insane and theaccused continued to work in a responsible position in theHospital.
None of the medical witnesses were able to give any definiteopinion on the state of mind of the accused at the time of thealleged act. This would not be strange since, according to them,the accused has his lucid moments and abnormal moments.Hence it would be only the evidence of his state of mind some-time prior to the alleged offence and sometime shortly thereafterthat would, to a large extent, assist Court in arriving at a proper-conclusion as to whether he was insane when he committed theact, within the terms of Section 77 on a preponderance of theevidence as established by the defence.
It must be borne in mind that the accused was performingresponsible duties for a considerable period of time prior to thealleged offience. He was neither removed from his duties norfound unsatisfactory. Dr. Seneviratne described him as extre-mely meticulous but at times stubborn and quarrelsome. He-drank liquor in the form of “ kassippu ” and even spirits of wine-during working hours and one cannot say whether his quarrel-some moments occurred at that time or not. One thing is clear-that both Medical Boards before which he went did not findhim insane or unfit for duty. Even at the time he came to hiswife’s parental home on the 9th instant to attend to some workin connection with the General Census the accused did not dis-play any signs of insanity nor did any incident occur to evensuggest a trace of insanity right up to the time of the allegedincident in the early hours of the morning of the 12th. In fact thedeceased’s father, on being questioned as to why he did not•object to the accused coming to his home, replied that hisdaughter had told him that she had no trouble with the accused,except when he was drunk.
Then, on the night of the incident, there was apparently someargument between Ariyawathie and the accused after theyretired to bed in her room, details of which are not available,resulting in the deceased leaving her bedroom and sleeping inher sister’s room. The accused, who was apparently incensed ather leaving him, continued to bang on the door saying “ I have gotto go to work tomorrow ; Ariyawathie come to sleep ”. LearnedSenior State Counsel submits that this is indeed quite arational statement. When Ariyawathie still did not accede to hisrequest the accused went so far as to threaten her by saying “ I
WEERARATNE, J.—Barnes Nimalaratne v. The Republic of Sri Lanka 61
will do a fine thing otherwise ” unless she returned to theirroom. The deceased then went back to her room with theaccused and if we are to accept what is contained in the dyingdeclaration of the deceased, she describes how the accusedlocked the door of their room before they retired for thesecond time.
One could not find anything queer or what savours of insanityin the accused’s conduct upto this point of time. It was later thatnight, at about 1 a.m. that the cries of the deceased were heardby her father. The dying deposition (P10) which Counsel forthe Appellant conceded as “ true ” shows the relationship that•existed between the accused and the deceased. The deceasedstates that there was displeasure between them. The Court hadordered the accused to pay Rs. 150 as maintenance for her andtheir two children. According to the deceased, on the night ofthe 11th instant, whilst she was asleep in the room shared byboth of them, she “ was awakened by something being pouredon me. I got the smell of kerosene oil and it struck me that itwas kerosene oil that was being poured on me. My husbandwas by my bedside. He lighted some paper and set fire to meIt is significant that he ran out of the room when there was aknock on the door by the anxious inmates of the house.
Learned Senior Counsel for the State referred to certainother items of evidence, as for instance that there was a Hali-borange bottle (pi) which smelt of kerosene oil on the bed;that the wick of a bottle lamp which was on a table, was foundon the bed. Counsel for the State suggested that it may well bethat the accused simulated an accident but unfortunately forhim, the deceased got up. Learned Senior Counsel for the Statesubmitted that the accused’s conduct and the surrounding evi-dence do indicate that this was a premeditated murder. Thesane behaviour of the accused, according to the prosecution, isadvanced by the accused’s conduct in signalling Police SergeantTSkanayake to stop the jeep and his making what amounts toan exculpatory statement.
After the inquest on the 13th instant at 10 a.m., the accusedpointed to Sergeant Ekanayake the place where he dropped theshirt which was about 15 yards from the deceased’s home.Sergeant Ekanayake further stated that at the time he saw theaccused on the road he was bare-bodied and holding a banian.This, according to the prosecution, supports their view that theshirt, which was aflame, according to the deceased’s father’sevidence, was discarded at the point where some ash was foundby the Police Officer.
WEERARATNE, J.—Barnes Nimalaratne v. The Republic of Sri Lanka
Learned Counsel for the Appellant further drew our attentionto certain aspects of the summing-up of the trial Judge which,according to him, prejudiced the appellant. We are unable toaccede to the submission of Counsel that the learned trial Judgehad given weightage to the criticism of Dr. Seneviratne’sevidence without reference to all the circumstances in favour ofthe defence. In this connection I find that the learned trial Judgehas, at page 321 to 324 of his summing-up, given a detailedaccount of this Doctor’s evidence on the mental condition of theaccused. At page 326 the trial Judge has referred to the criticismof State Counsel who contested the Doctor’s evidence on thebasis that he had no proper material on which he (Doctor) couldhave concluded that the accused was epileptic. One cannotconcede that the trial Judge has acted improperly by makingreference to State Counsel’s submissions in the way he did. Ihave earlier shown that this witness has built his entire theoryof “ epileptic behaviour disturbance ” on the evidence of theaccused’s brother, who referred to a single instance in whichthe accused fell unconscious at the age of 15 years, which hisbrother had regarded as an ‘ epileptic fit ’. In the same way, thelearned trial Judge has, quite properly at page 326 of thesumming-up, also referred to the fact that Dr. Seneviratne hasnot mentioned that the accused was suffering from any mentalillness in his Confidential Reports, despite his opinion that theaccused was suffering from abnormal personality.
Learned Counsel for the Appellant also submitted that theevidence of Dr. Ranarajah was not referred to in the summing-up.It must be remembered in this connection that Dr. Ranarajah,who is not a qualified Psychiatrist, merely describes (at pages213 to 216 of his evidence) the treatment given to the accusedafter he was administered a sedative. According to this Doctor’sevidence, the sedative was not as strong as morphia. It is notunlikely that the accused’s boisterous condition could well havebeen because he was not under complete sedation and wassuffering from obvious pain from his bums. I am quite satisfiedthat the absence of any reference to this Doctor’s evidence wascertainly not a material non-direction.
In regard to the argument of appellant’s Counsel that thesumming-up has no reference to the deceased’s father’s evidenceof his suspicion that the accused had made an attempt on his life,I might state that there is no obligation cast upon the trial Judgein law to refer to each, and every detail of the evidence in thecase, whether for the prosecution or the defence, particularlywhen there is other evidence already on record in regard to analleged attempt made by the accused upon his life which thetrial Judge has commented on. The point indeed cannot thereforebe regarded as of any significance.
Karunasena v. The Republic of Sri Lanka
We have carefully examined the manner in which the learnedtrial Judge has dealt with the defence of insanity. He has, withsome particularity, set out the law and correctly referred to thelegal implications of the burden which lies on the defence underSection 77 of the Penal Code. He has also adequately stated thatthe burden lies on the defence, once the prosecution has estab-lished its case beyond reasonable doubt, that the accused hadset fire to the deceased with a murderous intention.
We have given the most anxious consideration to the evidenceled in this case and to the submissions of Counsel for theAppellant and Senior Counsel for the State. We find that thedefence has not established, on a balance of probability, that theaccused was insane within the ambit of Section 77 of the PenalCode at the time that the alleged offence was committed as foundby an unanimous verdict of the Jury. In arriving at this decision,we have, as shown in this judgment, considered the provisionsof Section 350 (7) of the Administration of Justice Law No. 44of 1973, which empowers the Supreme Court to examine theevidence with a view to decide “ that although the appellant wasguilty of the act or omission charged against him, he was at thetime the act was done or omission made, incapable by reason ofunsoundness of mind of knowing the nature of the act or thatit was wrong or contrary to law ”, in which event “ the courtmay quash the sentence passed at the trial ” and make a conse-quential order relating to the appellant being kept in safe custodyas provided in the said provision.
The appeal of the accused-appellant is accordingly dismissed.
Sirimane, J.—I agree.
Malcolm Perera, J.—I agree.
BARNES NIMALARATNE, Appellant, and THE REPULIC OF SRILANKA, Respondent