Sri Lanka Law Reports
(2005) 2 Sri L. R.
ABEY MUDALALIVSATTORNEY-GENERALCOURT OF APPEALBALAPATABENDI, J.
SISIRA DE ABREW. J.
C. A. 13/2003H. C. BADULLA 62/97MAY 31.2005JUNE 17, 2005JULY 25. 2005
Penal Code – Section 77, 78, 79, 296 – Benefit under section 79 – Plea ofdrunkenness – State of Intoxication – Murderous intention ? – Reduction toculpable homicide not amounting to murder – Grave and sudden provocation- Dock Statement – Evidence Ordinance – Section 105 – Applicability.
The appellant stood trial on two counts of murder and was convicted onboth counts and sentenced to death.
The appellant sought to reduce the conviction for murder to culpablehomicide not amounting to murder on the ground of drunkenness raised in theDock Statement.
(i) In a case of murder when the defence of drunkenness is put forwardthe burden is on the accused to prove that by reason of the intoxicationthat there was an incapacity to form the intention The evidence suggeststhat the accused was not in a state of intoxication at the time he attackedthe deceased. Thus the appellant is not entitled to the tienefit undersection 79.
Per Sisira de Abrew J.
“In a case of murder, if an accused person raises the plea ofdrunkenness under section 79, the burden is on the accused to proveon a balance of probability that he had reached the state of intoxicationin which he could not have formed a murderous intention at the time ofalleged act was done.”
(ii) When the evidence is evaluated, the question of grave and suddenprovocation does not arise.
Abey Mudalati Vs Attorney-General (Sisira de Abrew, J)
APPEAL from the judgment of the High Court of Badulla.
CASES REFERRED TO:
King vs. Velaiden, 48 NLR 409 (DB)
Ratnayake vs. Queen, 73 NLR 481
Dr. Ranjith Fernando for accused appellant
Yasantha Kodagoda, Senior State Counsel for Attorney-General
SISIRA DE ABREW, J.The appellant, in this case, stood his trial at the High Court of Badulla ontwo counts of murder and was convicted on both counts. The appellantwas sentenced to death. This appeal is against the said convictions andthe sentences.
According to the version for the prosecution, about 6.00 p. m. on 7lhFebruary 1990 the appellant and the deceased Bandara Manika, the wifeof the appellant, were seen coming to the compound of Loku Manika themother-in-law of the appellant. At this time the appellant was assaultinghis-wife with his hands. Upon witness Nilupa Priyadarshani, the daughterof the appellant, informing Loku Manika of the incident Loku Manika rushedout of the house and asked the appellant as to why he was assaultingBandara Manika. Since the appellant did not respond, Loku Manikaaccompanied Bandara Manika into the Kitchen. About 15 minutes laterthe appellant came into the kitchen, took a pestle and assaulted bothBandara Manika and Loku Manika with the pestle. The blows alighted ontheir heads. Loku Manika, at this time, was bending and attempting tolight the lamp, usually kept in the kitchen. Nilupa and Inoka, in fear ofbeing assaulted, ran away from the house.
The main ground urged on behalf of the appellant was that the convictionsfor murder should be reduced to culpable homicide not amounting to murderon the ground of drunkenness raised in the dock statement. LearnedCounsel urged that the appellant was entitled to the benefit of section 79of the Penal Code which reads as follows. “In cases where an act done is
Sri Lanka Law Reports
(2005) 2 Sri L. R.
not an offence unless done with a particular knowledge or intent, a personwho does the act in a state of intoxication shall be liable to be dealt withas if he had same knowledge as he would have had if he had not beenintoxicated, unless the thing which intoxicated him was administered tohim without his knowledge or against his will.”
To give the benefit under section 79 of the Penal Code the fact that "theaccused did the act in a state of intoxication must be proved". It is necessaryto consider who should prove it and to what degree it should be proved. Inthis connection it is pertinent to consider certain decisions of the Court ofCriminal Appeal. In the case of King Vs Velaiden0) Howard CJ (Soertsz J,Jayatilaka J, Dias J, and Windham J agreeing) held that "where in a caseof murder the defence of drunkenness is put forward the burden is on theaccused to prove that by reason of the intoxication there was an incapacityto form the intention necessary to commit the crime."
In the case of Ratnayake vs. Queen Sirimana J (Samarawickrama Jand Weeramanthry J concurring) held as follows. "For the purpose of section79 of the Penal Code the state of intoxication in which a person should beis one in which he is incapable of forming a murderous intention; andwhether he has reached the state of intoxication or not is a question offact for the jury to determine depending on the evidence in each case; andit is for the person who raises the plea of drunkenness to establish on abalance of probability that he had reached the state of intoxication inwhich he could not have formed a murderous intention.” It is pertinent inthis regard to consider section 105 of the Evidence Ordinance which readsas follows. “When a person is accused of any offence, the burden of provingthe existence of circumstances bringing the case within any of the generalexceptions in the Penal Code, or within any special exception or provisocontained in any other part of the same Code, or any other law defining theoffence, is upon him, and the court shall presume the absence of suchcircumstances.” Illustration (a) to the above section reads as follows. "A,accused of murder, alleges that, by reason of unsoundness of mind, hedid not know the nature of the act. The burden of proof is on A.”
Having considered the principles laid down in the above cases andsection 105 of the Evidence Ordinance, I hold that in a case of murder, ifan accused person raises the plea of drunkenness under section 79 of thePenal Code, the burden is on the accused person to prove on a balance ofprobability that he had reached the state of intoxication in which he could
Abey Mudalali Vs Attorney-General (Balapatabendi, J.)
not have formed a murderous intention at the time the alleged act wasdone. If an accused person raises a plea of drunkenness under section 78of the Penal Code it is for the accused person to prove on a balance ofprobability that by reason of intoxication there was an incapacity to formthe intention necessary to commit the crime. Learned Counsel for theappellant at the hearing of this appeal submitted that he would not claimrelief under sections 77 and 78 of the Penal Code. It is necessary toconsider whether the appellant, in the present case, was in a state ofintoxication at the time the alleged act was committed, since the counselfor the appellant raised the plea of drunkenness under section 79 of thePenal Code. The appellant in his dock statement stated that on the day inquestion he came home severely drunk and fought with his wife.
Loku Manika and Bandara Manika were killed in Loku Manika’s housewhich was half a mile away from the appellant’s house. Soon before theincident the appellant and his wife came to the compound of Loku Manika.The appellant at this time was assaulting his wife with his hands. WhenLoku Manika made inquiries about the assault inside the kitchen, theappellant said that he would not assault his wife. After the appellant attackedboth Bandara Manika and Loku Manika with the pestle he was walking inthe direction of Dharmapala’s boutique. Dharmapala who, on hearing aboutthe incident, was running to his mother Loku Manika’s house, met theappellant who addressed him in the following language. “I gave work toyour mother and sister, go and see.” This statement of the appellantclearly shows that he was conscious of what he had done. Dharmapaladid not say that the appellant was drunk. Inoka and Nilupa who saw theirmother being attacked by the appellant did not say the appellant wasdrunk. Although the appellant said that he was drunk on the day of theincident, the above evidence suggests that the appellant was not in astate of intoxication at the time the he attacked Bandara Manika and LokuManika. For the above reasons, I am unable to agree with the contentionof the learned Counsel for the appellant. I therefore hold that the appellantis not entitled to the benefit under section 79 of the Penal Code.
The appellant, in his dock statement, stated after he came home hequarreled with his wife who went away leaving two children at home. I willtherefore consider whether he was provoked at the time of the incident.The distance between the houses of Loku Manika and the appellant wasabout half a mile. The appellant attacked both women 15 minutes after he
Sri Lanka Law Reports
(2005) 2 Sri L. R.
came to the compound of Loku Manika. When Loku Manika asked theappellant as to why he was assaulting his wife, the appellant said that hewould not do so again. When the above items of evidence are taken intoaccount the question of grave and sudden provocation does not arise.
For the reasons set out in my judgment, I see no reason to interferewith the judgment of the learned High Court Judge. I Therefore affirm theconvictions and the sentences of the appellant and dismiss the appeal.
BALAPATABANDI J, -1 agree,
ABEY MUDALALI V ATTORNEY-GENERAL