038-SLLR-SLLR-2002-V-2-BANDARA-v.-REPUBLIC-OF-SRI-LANKA.pdf
CA
Bandara v. Republic of Sri Lanka
277
BANDARA
v.REPUBLIC OF SRI LANKA
COURT OF APPEALFERNANDO, J. ANDAMARATUNGA, J.
CA NO. 134/99HC KANDY NO. 1210/96FEBRUARY 15 AND 22, 2002
Penal Code S. 294, 298, 329 – Rash and negligent driving – Found guilty byHigh Court – Code of Criminal Procedure Act, No. 15 of 1979, – S. 336 – Rightof Court of Appeal to enhance sentence.
Accused was convicted on his own plea, for causing the death of 16 personsby rash and negligent driving, and for causing grievous hurt to 2 persons by thesame act, the total period of imprisonment was 2 1/2 years.
Held:
On the evidence available the accused-appellant could have beenindicted for murder.
Per Amaratunga, J.
'Therefore, in this case he deserves a longer period of imprisonment . . .to deliver a message to all those who have no respect for other persons rightto life and property . . . this Court will never hesitate to use its powers unders. 336 in appropriate cases.
Applying the new provision introduced by Act No. 15 of 1979 whilst affirmingthe conviction and setting aside the sentence of 30 months imposed bythe Trial Judge substituted therefor a period of 60 months.
APPEAL from the judgment of the High Court of Kandy.
Upul Kumarapperuma (assigned) for the accused-appellant.
Priyantha Nawana SC for the Attorney-General.
Cur. adv. vult.
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[20021 2 Sri L.R.
March 06, 2002
GAMINI AMARATUNGA, J.
The accused-appellant had been indicted in the High Court of Kandyon 14 counts framed under section 298 of the Penal Code for causingthe deaths of the 14 persons named in those counts by rash andnegligent driving of bus No. 60 Sri 4187 on 16. 04. 1995 and ontwo counts framed under section 329 of the Penal Code for causinggrievous hurt to two persons by the same act of rash and negligentdriving. When the case was taken up for trial in the High Court, theaccused-appellant pleaded not guilty to all charges. Thereafter, thelearned High Court Judge proceeded to hear the evidence of thewitnesses for the prosecution. After five witnesses gave their evidenceand when the prosecution case was about to be closed, the accused-appellant, perhaps having realized that his fate has been sealed bythe evidence adduced by the prosecution, retracted his earlier pleaof 'not guilty' and pleaded guilty to all sixteen counts. The learnedHigh Court Judge thereupon convicted the accused-appellant on hisown plea of all sixteen counts and proceeded to sentence the accused-appellant in the following manner. Thirty months rigorous imprisonmentin respect of each count from count 1 to 14. One year rigorousimprisonment each in respect of counts 15 and 16. All sentences torun concurrently. Thus, the total period of imprisonment was 30months.
The accused-appellant has preferred this appeal against thesentence imposed by the learned High Court Judge.
According to the evidence led by the prosecution, on that ill-fatedday about 45 persons left Ambadeniya in Hemmathagama area forSri Pada in the bus driven by the accused-appellant. When the buswas stopped at Nawalapitiya for the passengers to have tea, theaccused-appellant with the leader of the team of pilgrims called 'nadegura' and another person consumed a bottle of arrack. After theyresumed their journey the accused-appellant started to drive the busat very high speed. Some of the passengers who were alarmed atthe high speed of the bus had appealed to the driver not to drivethe bus so fast. The accused-appellant had responded to the pleasof the passengers by telling them that he would take them to theSri Pada in just half an hour! It is in evidence that when the buswas being driven along the Ginigathhena-Hatton road, which is a hilly
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CABandars v. Republic of Sri Lanka (Amaratunga, J.)279
road with sharp bends, the accused-appellant took his hands off thesteering wheel and started clapping whilst at the same time lookingat the passengers through the mirror affixed above the driver's seat.But, the accused appellant could not continue to perform his anticsfor a long time.
At Diyagala a wheel of the bus went off the road and the evidenceis that as soon as that happened the accused-appellant opened thedoor on the driver's side and jumped out leaving the bus and its fullcomplement of passengers to their inevitable fate- in a driverless busgoing down a precipice at full speed. The accused-appellant's aforesaidconduct claimed the lives of 14 pilgrims and maimed two others.
When the accused-appellant's appeal against the sentence cameup for hearing before us, the learned State Counsel submitted thathaving regard to the manner in which the accused-appellant hadconducted himself as the driver of a bus which had more than 45passengers and having regard to the number of persons who losttheir lives due to his reprehensible conduct as a driver of a buscarrying passengers, the sentence imposed by the learned trial Judgewas manifestly inadequate.
The learned State Counsel having made the above submission,invited this Court's attention to section 336 of the Code of CriminalProcedure Act, No. 15 of 1979 which reads as follows:
"On an appeal against the sentence, whether passed after trialby jury or without a jury, the Court of Appeal shall, if it thinks thata different sentence should have been passed, quash the sentence,and pass other sentence warranted in law by the verdict whethermore or less severe in substitution therefor as it thinks ought tohave been passed …" (emphasis added).
This is a new provision introduced by the Code of Criminal ProcedureAct, No. 15 of 1979. There was no similar provision in the CriminalProcedure Code of 1898 which was in force upto 31. 12. 1973. Havingquoted the above provision, the learned State Counsel submitted thatthe Legislature in its wisdom has enacted this new provision to givepower to this Court to deal with cases like the present one. We arein agreement with this submission.
We, therefore, called upon the accused-appellant to show causewhy his sentence should not be enhanced and we gave him time
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to show cause. The learned counsel appearing for the accused-appellant submitted that the accused-appellant is the father of aninfant child; that he is the sole bread-winner of the family and thathis incarceration will have an adverse impact on his family.
We have carefully considered this submission, but we wish to statethat we have also considered plight of the families of those 14 personswho perished in the accident caused due to the rash and negligentconduct of the accused-appellant. Therefore, we cannot give any reliefto the accused-appellant on the basis of the submissions made onhis behalf.
Having considered the evidence available in the case and thesubmissions of counsel, it is our considered view that this is a fit casefor us to use the power conferred on this Court by the Legislatureto enhance the sentence in appropriate cases. Section 336 of theCode of Criminal Procedure Act uses the words "a sentence . . .passed after trial". The accused-appellant was convicted andsentenced on his own plea, but he had tendered his plea in the courseof his trial. Therefore, we are satisfied that this case falls within section336 which deals with sentences passed after trial.
On the evidence available in this case the accused-appellant couldhave been indicted even for murder on the basis of the 4th limb ofsection 294 of the Penal Code. Therefore, in this case he deservesa longer period of imprisonment.
However, I am of the view that it is sufficient to impose a periodof 60 months imprisonment on the accused-appellant to deliver amessage to all those who have no respect for other persons rightto life and property that this Court will never hesitate to use its powersunder section 336 in appropriate cases.
For the reasons set out above, I formally affirm the conviction ofthe accused-appellant but set aside the sentence imposed by thelearned trial Judge and substitute therefor a period of 60 monthsrigorous imprisonment to take effect from today, i.e. 06. 03. 2002.Subject to the variation of the sentence I have set out above the appealof the accused-appellant is dismissed.
FERNANDO, J. – I agree.
Appeal dismissed. Sentence enhanced.
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