ANURA SHANTHA ALIAS PRIYANTHA AND ANOTHER v. ATTORNEY-GENERAL

036-SLLR-SLLR-1999-V-1-ANURA-SHANTHA-ALIAS-PRIYANTHA-AND-ANOTHER-v.-ATTORNEY-GENERAL.pdf


CA Anura Shantha alias Priyantha and Another v. Attorney-General 299
ANURA SHANTHA ALIAS PRIYANTHA AND ANOTHER
v.ATTORNEY-GENERAL
COURT OF APPEALISMAIL, J. (P/CA),
DE SILVA, J.,
C.A. NO. 105-106/96H.C. COLOMBO NO. 7559/95MARCH 10 AND 11, 1998
Criminal Law – Murder – Culpable Homicide not amounting to murder – Exceedingthe right of private defence – Requirement of delivery of verdict forthwith – Section203 of Code of Criminal Procedure Act.
If the accused exceeds the right of private defence, not bona fide but withpremeditation and with deliberate intention of inflicting more harm than isnecessary for the purpose of self-defence, liability for murder may be imposedif the victim's death is brought about. If the accused is to be allowed the benefitof the mitigatory plea their action should not have been "maliciously excessiveor vindictively unnecessary".
The provisions of s. 203 of the Code are directory and not mandatory. This isa procedural obligation that has been imposed upon the Court and its non-compliance would not affect the individual's rights unless such non-complianceoccasions a failure of justice.
Cases referred to:
R. v. G. L. Kirinelis – (1948) 34 CLW 13, 15.
Venacy v. Velam etel – I NLR 124.
Rodrigo v. Fernando- 4 NLR 170.
(1909) P.C. Panadura – 5 NLR 140.
A. G. A., Kegalle v.Podi Sinno – 18 NLR 28.
R. v. Fernando – (1906) 2 Bal 46.
Samsudeen v. Suthoris – 29 NLR 101.
Vethanayagam v. I. P. Kankasanthurai – 50 NLR 185.
Dharmasena v. State – 79 (1) NLR 320.
Nikulas v. Linus – (1978-79) 2 Sri LR. 63
Visvalingam v. Liyanage – (1983) 1 Sri LR 203.
APPEAL from judgment of the High Court of Colombo.
U. D. M. Abeysekera with U. L S. Marikkar for 1st accused-appellant.
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A. A. de Silva, PC with U. L S. Marikkar tor 2nd accused-appellant.Jayantha Jayasuriya, SSC for Attorney-General.
Cur. adv. vult.
April 02. 1998.
DE SILVA, J.
The two accused-appellants (hereinafter referred to as the accused)were indicted in the High Court of Colombo that they on or aboutthe 10th of September, 1993, committed murder by causing thedeath of Kaluarachchige Quintus Perera, an offence punishable undersection 296 of the Penal Code.
After a trial before a Judge of the High Court sitting without a Jurythe accused were acquitted of murder but the trial judge foundeach of them guilty of culpable homicide not amounting to murderand sentenced each of the accused to a term of 12 years, rigorousimprisonment.
The case for the prosecution was largely based on the evidenceof two eyewitnesses, namely Kaluarachchige Buddika Perera andBulathsinghalage Premawathie Perera, the son and the mother of thedeceased.
Quintus Perera was a three wheel driver who was living withhis mistress Chandrawathie at Dematagoda. His wife died after anoperation and Buddika was his son from that marriage. Buddika wasa boy of 12 years at the time of the incident and was living in thesame house with his father and the stepmother.
According to Buddika on the day of the incident his father camehome around 9.30 pm and there was an argument between the fatherand the stepmother. After some time the stepmother went to hisgrandmother, Premawathie Perera's house which was in close prox-imity. A few minutes later the grandmother came to their house andscolded the father. His father in turn had scolded the grandmotherand gone to the grandmother's house looking for the stepmother.Quintus was armed with an iron rod. There was also a long knifein his waist. Buddika stated that as his father was a three wheel driver
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he used to always carry this knife for protection specially in the night.Premawathie had stated that at the time of the incident Chandrawathiewas pregnant.
When Quintus went to Premawathie's house his mistressChandrawathie who had been hiding inside had run away. Havingcome out of the house Quintus was leaning against a coconut tree,which was 10 feet away from the house. At that stage the 2nd accusedIndu came from behind and stabbed Quintus on the chest severaltimes with a knife. Thereafter when he was holding the hands of thedeceased the 1st accused came running and having taken the knifewhich was in the waist of Quintus and cut him with that. After inflictingthe injuries both the accused had left the scene. The deceased afterreceiving injuries ran a few yards and fell near a CWE stores. Buddikafollowed him and the deceased requested Buddika to go to the PoliceStation which was close by. On Buddika's complaint Police removedthe injured to the hospital where he succumbed to his injuries in themorning.
The version of Buddika was corroborated by the grandmotherwho was also present at the scene. The two accused hadexercised their right to remain silent and did not give evidence ormade statements from the dock.
The nature of the injuries described by Dr. Peiris who carried outthe post-mortem examination made it clear that this unfortunateman had 17 injuries out of which 6 were stab injuries, 1 cutinjury and 10 abrasions. The doctor has described the 6 stab injuries,viz injuries 1, 2, 5, 7, 12, and 13 as follows :
Injury No. 1 situated on the left side of the chest length 1" width1/4". The direction of the blow was downwards. The cartilagesof 7th, 8th and 9th ribs of the left side were cut.
Injury No. 2 stab injury on the upper abdominal wall length 1"width 1/4" the direction of the blow was upwards. It hadpierced the diaphragm on its right side length 1 3/4" and rightside of the left lobe of the liver length 1 3/4".
Injury No. 5 was a stab injury lateral side of the left upper armsituated 5” above the elbow joint. Length 1" width 1/4".
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Injury No. 7 stab injury medial side of the upper arm1/2” + 1/4".
Injury No. 12 stab injury on the back of the chest just belowthe tip of the right shoulder blade length 1 1/4”.
Injury No. 13 is a stab injury over the left shoulder blade. Length1" tailing abrasion length 2" towards the left shoulder joint.
The cause of death has been given as shock and hemorrhagefollowing injury to the chest. According to the doctor two knives hadbeen used to cause the stab injuries and the cut injuries. Thiscorroborates witness Buddika when he says he saw a knife in thehands of the 2nd accused and the 1st accused used the knife ofhis father which he had in his waist.
At the hearing of this appeal counsel for the 1st and the 2ndappellants brought to the notice of this court that the learned trial judgein her judgment at page 215 in the brief has made the followingobservations :
The learned trial judge in the course of the judgment has statedthat –
it is natural in a civilized society for anybody to come to theassistance of a pregnant woman who is in imminent dangerof assault.
the deceased had several abrasions on his body thereforethere arise a doubt as to whether the deceased came by hisdeath in the course of sudden fight.
when considering all the facts and circumstances there arisesa doubt as to whether the two accused acted in this mannerunder grave and sudden provocation.
Having made the above observations the learned trial Judgeconvicted the accused-appellants for culpable homicide not amountingto murder on the basis that the accused-appellants had acted not with"common intention to commit murder" but with "common intention tocause culpable homicide not amounting to murder".
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Both counsel submitted that having expressed the above senti-ments the learned trial judge was in error when she convicted theaccused and stated that if the trial judge accepted the fact that theaccused had acted in the exercise of their right of private defenceboth the appellants are entitled to an acquittal.
It is to be noted that with regard to the second and thirdobservations the question of acquittal does not arise as thoseare circumstances where the trial judge can hold that the accusedare guilty of culpable homicide not amounting to murder if thereis evidence.
The question that needs consideration is whether the trialjudge's observations regarding the exercise of the right cf privatedefence is justifiable.
As set out earlier there are two eyewitnesses in this case.Both the witnesses say that the attack on the deceased took placewhen he was leaning against a coconut tree which was about 10 feetaway from Premawathie's house. The mistress of the deceasedwas nowhere to be seen. There was no evidence in the case thatthe deceased was about to attack his mistress and in order toprevent that the accused intervened.
Exception 2 to section 294 of the Penal Code provides that"culpable homicide is not murder if the offender, in the exercisein good faith of the right of private defence of person or property,exceeds the power given to him by law, and cause the death ofthe persons against whom he is exercising said right of private defencewithout premeditation and without any intention of doing more harmthan is necessary for the purpose of such defence".
The positions arising from this exception and from other relevantprovisions of law, may be stated as follows : 1
(1)Where the accused acts in the exercise of his right of privatedefence, whether of persons or of property, and restricts himselfto the legitimate limits of that right, any harm caused to theaggressor, including infliction of death, does not involve theaccused in criminal liability at all. He is entitled to a completeexculpatory plea.
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Where the right of private defence could properly have beenavailed of, but the accused, in killing the deceased, exceedsthat right in good faith, without premeditation and without anyintention of doing more harm than necessary for the purposeof self-defence, the accused is neither convicted of murder norreleased from liability altogether. In such a case the appropriateverdict is a lesser verdict of culpable homicide not amountingto murder.
If the accused exceeds the right of private defence, not bonafide but with premeditation and with deliberate intention ofinflicting more harm than is necessary for the purpose of self-defence, liability for murder may be imposed if the victim'sdeath is brought about (see Peiris on Offences under the PenalCode of Ceylon.).
When considering the trial judge's observation in the light ofthe principles set out above it is relevant to note the evidence ofthe two eyewitnesses. As stated earlier both these witnesses say thatthe attack on the deceased took place when he was leaning againsta coconut tree which was about 10 feet away from Premawathieshouse. The mistress of the deceased was nowhere to be seen.
The concept of "intention" in the phrase "without any intention ofdoing more harm than is necessary" was considered by JusticeKeuneman in Kirinelis case1'1 at 15 and stated that this “intention" isa special intention which connote some element of ill will or vindic-tiveness. If the accused are to be allowed the benefit of the mitigatoryplea, their action should not have been "maliciously excessive orvindictively unnecessary.
It is the evidence of Premawathie that the 2nd accused-appellantcame from adjoining houses and stabbed the deceased frombehind stating<pw&zri(page 92) and held him
whilst the 1st accused took the knife which the accused had inhis waist and cut him. This utterance on the part of the 2ndaccused show that their action was "maliciously excessive andvindictively unnecessary".
In the light of this evidence the learned trial judge could haveconvicted the accused for murder. In the absence of any evidenceeither from the prosecution or from the defence with regard to the
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exercise of the right of private defence the learned trial judge hadgiven a concession to the defence by convicting them for culpablehomicide not amounting to murder of which they are now trying totake an undue advantage.
In convicting the accused the learned trial judge has statedthat they had not acted with common intention to murder butwith common intention to commit culpable homicide. In our viewthis is an erroneous statement. Having come to the conclusionthat there was no common murderous intention the trial judgeshould have considered individual liabilities of the accused.
We uphold the conviction for culpable homicide not amounting tomurder on the basis of knowledge.
It was also submitted that the learned trial judge failed tocomply with the Mandatory Provisions of section 203 of the CriminalProcedure Code in that she did not record the verdict forthwithor within ten days of the conclusion of the trial and thereforethe conviction is bad in law.
S.203 of the code provides that at the conclusion of thetrial the judge shall "forthwith or within ten days of the conclusionof the trial record a verdict of acquittal or conviction giving hisreasons therefor …"
This matter has been discussed earlier in a number of cases goingback to One New Law Report where Bonser, CJ. observed that : "itis most desirable that Magistrates and District Judges should statetheir findings as to guilt or innocence of the accused immediately atthe conclusion of the trial, and that the impression left upon theirminds by the prosecution after hearing all the evidence, is so weakand unsatisfactory that they are unable to say whether they considerthe accused to be guilty or not, they should give the accused thebenefit of the doubt and acquit." Venacy v. Velan et eA2).
So also in Rodrigo v. Fernando<3) at 170 Withers, J. held that itis important that a Magistrate "should observe the requirements ofS 190 of the Criminal Procedure Code as to the duty of recordinghis verdict of acquittal or guilty forthwith after hearing the evidencefor the prosecution and the defence".
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Again in PC Panaduref*1 Lawrie, ACJ. held that it was "ultra viresto give a verdict a month after the trial. It must be given forthwith."In AG A, Kegalle v. Podi Sinned Pereira, J. citing Venasy, (supra)Rodrigo v. Fernando, (supra) P.C. Panadura, and R. v. Fernandaalso held that since there had been a delay of six months in deliveringthe verdict it was an incurable irregularity. But his Lordship appearsto have followed K. v. Fernando (supra) Bal 46 where Wednt, J. hadheld that "… it did not vitiate the proceedings unless it hadoccasioned a failure of justice." Pereira, J. observed that it would notbe fair by the accused to “apply the saving provisions of s. 425 ofthe Criminal Procedure Code". But as will be observed on a perusalof those cases there was no in depth analysis of the provisions ofs. 190 of the Old Criminal Procedure Code. The Courts had verybriefly dealt with the section by giving a literal construction to theprescriptive provision.
In Samsudeen v. SuthorisW Dalton, J. gave a different interpretationto s. 190 which read : “If the Magistrate after taking the evidencefor the prosecution and defence finds the accused not guilty he shallforthwith record a verdict of acquittal. If he find the accused guiltyhe shall forthwith record a verdict of guilty and pass sentenceaccording to law". After considering the above-mentioned cases ofRodrigo v. Fernando and PC Panadura." have the greatest difficultyin following those decisions as regards what that section enacts".Dalton, J. analyzed the provisions to mean that the word forthwithoperated at the time of arriving at the verdict and not from the timeof concluding the evidence. His Lordship's view was that the Magistratemust record the verdict forthwith upon reaching it and it had noreference to the closure of the prosecution or defence. In closingDalton, J. also commented that in that case "in any case no failureof justice had been occasioned."
Thereafter, in Vethanayagam v. IP, KankasanthuraP> where theverdict was given five days after the close of the respective casesfor the parties, Basnayaka, J. dissented from the decision in Samsudeenv. Suthoris (above) on the basis of impracticality. His Lordship ob-served that "Enactments regulating the procedure in the courts areas a rule imperative", (page 189). That judgment has considered theabove decisions and preferred to follow that the provisions weremandatory following Bonser, CJ. Withers, J. and Lawrie, ACJ. Inanother case, determining the meaning of "forthwith" as appearing ins. 151 (2) of the Criminal Procedure Code.
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Where the Magistrate "shall forthwith examine on oath any personwho. . . can speak to the facts of the case. . Sri Skandarajah,
J.held that the word only meant "within reasonable time" or "as soonas practicable".
In Dharmasena v. State!9' the Supreme Court considered thismatter again-where the Criminal Procedure Code set out thatwhen the cases for the prosecution and defence are concluded. . .the District Judge shall forthwith or within not more than 24 hoursrecord a verdict of acquittal or conviction", it was held that: "the failureto record a verdict of conviction within 24 hours after the conclusionof the defence will not vitiate the conviction unless it has occasioneda failure of justice". Wijeyatilleke, J. observed that non-compliance withthe provisions was only an irregularity and not an illegality. JusticeRajaratnam too held the same view.
In Nikulas v. Linus'w> Abdul Cader, J. delivering judgment in1978 held that the provisions of the Criminal Procedure Codethat the verdict of the Magistrate must be recorded within 24hours was mandatory. But the above decisions do not appear to havebeen considered in that decision.
Therefore, it would appear that the Courts have moved from oneend to the other and back again in the analysis of the meaning of"forthwith" or where a time period is prescribed for the recording ofa verdict. The current trend appears to favour the view that non-compliance with the provisions will only give rise to a curable irregu-larity depending on the question of prejudice to the accused as mayhave been occasioned by the delay.
It would appear that finally the issue rests on whether the provisionsin s. 203 of the Code of Criminal Procedure Act are directory ormandatory. In this context I would refer to the decision of a full benchin Viswalingam v. Liyanage1"' which was a Fundamental Rights.Application. (10) Here it was held that the provisions of Article 126(5) of the Constitution which provided that the Supreme Court shallhear and finally dispose of the application within 2 months of the filingof such petition is directory only and not mandatory and failure bythe Supreme Court to dispose of the application within the prescribedperiod will not nullify the petition or the order. Samarakoon, CJ.observed that : ". . . it was only an injunction to be obeyed but fellshort of punishment if disobeyed". The court went on the basis that
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to deprive a person of his fundamental rights due to a lapse on thepart of the Court was unacceptable.
I am of the view that the provisions of s. 203 are directory andnot mandatory. This is a procedural obligation that has been imposedupon the Court and its non-compliance would not affect-the individual'srights unless such non-compliance occasioned afailure of justice. Assuch, l am reluctant to hold that such provisions should be blindlyadhered to – and indeed where such adherence may cause a mis-carriage of justice in itself. The right of the accused is to a just andfair trial and the returning of a just and fair verdict. To interpret thelaw as operating to automatically disqualify a verdict and vitiate a fulltrial merely on the basis of non-compliance with a procedural directiveissued to the judge to my mind is unsound. But, I must hasten toadd that non-compliance with statutory provisions by Courts themelvesis disturbing and should not be encouraged.
In this case the recording of evidence was concluded on the22nd of January, 1996. Thereafter, on a request made by thedefence counsel and the prosecuting counsel the addresses werefixed for the 5th of February, 1996. On that day oral submissions hadbeen concluded but the defence counsel has requested a dateto file written submissions and that had been fixed for the 12thof February 1996, on which date the defence filed a short writtensubmission. Thereafter, the judgment had been delivered on the27th of February, 1996.
The real question is whether such non-compliance occasioned afailure of justice. In this case the delay was only three tofour days and in the circumstances we hold that there is nofailure of justice that has been occasioned due to the delay.Accordingly, I affirm the conviction. I also note that the convictionis on 27.02.96 and the accused-appellants are on remand from thatdate. I set aside the sentence of 12 years, rigorous imprisonmentimposed on the appellants and sentence each of them to a termof 7 years, rigorous imprisonment from today. Subject to the abovevariation the appeals are dismissed.
ISMAIL, J. – I agree.
Sentence varied.
Appeal dismissed.