Doole v. Republic of Sri Lanka (Colin-Thome, J.)
13.6.1975. With the permission of the Acting HeadquartersInspector he first got a 7 mm. machine gun with 56 bullets.However, as he was getting ready to set out the permanentHeadquarters Inspector gave fresh orders directing him to take•only his revolver instead of the machine gun and he was issued.24 bullets. Accordingly he had made an entry that was taking arevolver and 24 cartridges of .450 calibre.
The 3 police constables Nandapala, Abeyapala and Peirisaccording to the Information Book were not issued with anyweapons. It was also recorded that they were leaving forNuwara Eliya for inquiry on information received. Pistolswe re issued only to police officers above the rank of Sub-Jnspector. Bangsa Jayah stated that he knew the accused-appellant and that prior to 13.6.1975 he was wanted by theMt. Lavinia Police for an alleged offence for which he couldhave been arrested without a warrant. He was wanted inconnection with a charge of attempted murder, on a complaintmade by Tudor Antony, a Lab Assistant at St. Thomas’ College,at 12.15 a.m. round about midnight on 8.6.1975. He gave thisevidence according to the entries in the Information Book.
M.A. J. Mendis, Assistant Government Analyst, who hadspecialized in ballistics, stated that on 18th and 27th June, 1975,he received two parcels from the police. The first parcel con-tained the revolvers PI and P2. P2^ and P2&j were two spentcartridges. P2s the bullet recovered from the deceased’s bodywas received in the second parcel.
PI (which was used by Rajakaruna) was an ordinary servicerevolver capable of firing .450 or .455 calibre bullets. Sixcartridges can be loaded into it. This revolver had a firing pinfixed to the trigger which could strike the central part of acartridge and fire it off. It was a double action revolver whichcould be worked either by cocking the hammer and pulling thetrigger or releasing the hammer. P4 cohsisted of 5 cartridgesthat could be used in PI. Out of these five cartridges, two wereunused and two had been used unsuccessfully. The range of Piwas 800 yards but the lethal range was' 200 yards. A bullet was-Stuck in the barrel of the revolver PI because of some defect inthe cartridge probably because it was old stock. Even though thebullet had not been ejected the usual sound of firing would havetaken place. If another shot had been fired after the one thatgot stuck both bullets could have gone off if the second bulletwas new. On the other hand, sometimes the barrel could havecracked or get broken. If the second cartridge was also an oldone it could also have got jammed in the barrel. There were
Sri Lanka Law Reports
(1978-79) 2 S.L.R.
two live cartridges in the drum of PI that had not gone off. Hecould not say with certainty whether the marks on these twocartridges had been made by the pin of the revolver PI. 'Whenthe bullet got stuck in the barrel these two bullets were in thedrum.
The revolver P2 (used by the accused-appellant) was manu-factured by Webley and Scott. This revolver had also a rangeof 800 yards and could also be used by cartridges of the calibreof .450 and .455. The drum could hold six bullets. AlthoughP2 was slightly different from PI and slight defects were pre-sent, it was in working order. When he received P2 nothing wasinside it. P2^i was a bullet discovered in the body of Raja-karuna. This was a .450 bullet which had been fired from therevolver P2. This bullet had the pitting marks of the barrel ofP2. The cartridges of P2qp and P2^ had been fired from therevolver P2. They were spent .450 cartridges.
Sub-Inspector K. Wilson of the Haputale Police took charge ofboth these revolvers from P.C. Peiris on the day of the incident.He opened the revolver P2 and found two empty cartridge casesin it and one unused cartridge. The unused cartridge was notsent to the Government Analyst for examination. The two usedcartridges were P2q» and P2<pj.
In the barrel of the revolver PI a bullet had got stuck andthere were five unused cartridges in the drum. He dispatchedthe injured police officer to the Badulla Hospital. He visitedthe scene of the incident and found plants and creepers crushedand the surface was rocky. There were signs of a struggle.
On the 16th at the post-mortem examination he took chargeof the bullet found in the body of Rajakaruna.
At the conclusion of the prosecution case the accused-appellantwas called upon for his defence. He made an unsworn statementfrom the dock. He stated that after he had opened a pittu andbabath boutique in Dehiwela some of his so-called friends TudorAntony alias Kochi Antony and companions started harassinghim. They used to eat in his boutique by force during hisabsence and take money from the cashier. His friends tried toinvolve him in various acts of violence without success. Aftersometime they fell out and one day when he was going to visithis younger sister, close to the house of Tudor Antony, Antonyand his companions assaulted him.
Subsequently, he went along with Devapura alias Paniya,Herbert Fernando, H. L. Sirisena and Leslie to Nuwara Eliya totake a rest. After ttvo days as the conduct of Devapura, Sirisena
CADoole v. Republic of Sri Lanka (Colin-Thome, J.)43
and Leslie got out of control he sent them back to Colombokeeping only Herbert Fernando with him. From Nuwara Eliyathe two of them went to the Haputale Estate. On the14th between 9.30 and 10 a.m. Herbert Fernando woke him say-ing that Tudor Antony and his companions were knocking atthe front door. He got afraid and asked Herbert Fernando notto shout. Then he and Herbert Fernando moved a dining tableclose to the wall. Suddenly Herbert Fernando left him and ranaway through the back door. After a few seconds he heard himshout that he was being assaulted. Then he went through theback door to help him. Suddenly Joseph Antony and TudorAntony fell upon him and one person shot at him with a gun.While falling down out of fear and for self protection he fired ashe was induced to fire. At the Haputale Hospital while he wasbeing taken towards the surgery on a stretcher Tudor Antonyand others assaulted him. Tudor Antony had a galvanised pipeand Joseph Antony had an empty arrack bottle.
Dr. Balakrishnan was re-called by the defence. He statedthat he examined the accused-appellant at the Prison Hospital■on 15.6.1975. He had :
Several linear abrasions on both buttocks.
A sutured injury on the right buttock about long and
Several diffused abrasions on the right leg.
An abrasion in the form of dots on the upper part of
the right thigh.
A diffused contusion over the lower abdomen.
Several abrasions in the form of dots over the right
nipple.. '
A diffused contusion over the right shoulder.
A lacerated wound on the inner side of the right wrist
about in length.
An abrasion on the right knee.
A sutured incised wound f" in length on the nose.
A lacerated wound about 1" long on the eye-brow.
A contusion £" X i" on the forehead about over the
left eye-brow.
A contusion on the left index finger.
A diffused abrasion near the left wrist.
All these were iron-grievous injuries. There were no fractures.Injuries Nos. 2 and 10 could have been caused by a sharp cuttingweapon. Some of the injuries can be caused as a result of an.
Sri Lanka Law Reports (1978-79) 2 S.L.R.
assault by a blunt weapon such as injury No. 5. No operationwas performed as it was not necessary. He complained of pain,in his right testicle which was swollen.
He also examined Herbert Fernando. He had four in juries.
A sutured incised wound 1" long on the right index.
An incised wound f" long on right palm.
An incised wound f" long on skull.
A simple abrasion near the left 7th rib.
These were non-grievous.
Under cross-examination Dr. Balakrishnan stated that injuriesNcs. 2 and 10 bn Doole may have been cut open by a doctor tofacilitate healing. It is likely that these injuries were caused atnoon on the 15th. The injuries on the buttocks were more likelycaused by a fall. The other injuries may have been caused by astruggle on a hard surface. On the 15th when he examined himhe did not see any injuries on his private parts. But when heexamined him on the 20th a testicle was swollen.
Under re-examination the doctor said that the injuries Nos. 1.
2 and 3 on Herbert Fernando can be caused by a sharp cuttinginstrument. Injury No. 1 was stitched.
Herbert Fernando was the next witness for the defence. Hesaid that he knew the accused-appellant. In June 1975 theaccused-appellant invited him to go on a picnic to Nuwara E'iyaand they went with the accused-appellant, H. L. Sirisena, Paniya,Ivor and Leslie. They stayed at the “ Star Bakery ” ; fromthere the accused-appellant and he went to Baduila FromBaduUa they went to Haputale two days before the incident.The others had a quarrel with some persons in a bus queue atNuwara Eliya and they were sent away by Doole.
Doole took him to the house of the tea maker named Elias inthe Haputale Estate. On the 14th of June, 1975, at about 10.30 or11 a.m. he heard a knock at the door. At that time Doole wassleeping. He spoke to him and said that someone was speaking.Then Doole came to the front and looked out and came runninginto the house. Doole was excited and called him to pull a table.He heard a sound of someone running at the back. Then he gotexcited and got out through the back. He did not ask Doole whythe table was pulled and why he was excited.
When he went through the back door he saw a crowd. KochiAntony and Joseph Antony and four or five others were there.-Joseph Antony caught him and pulled and assaulted him. Allgot round him. He was stabbed and he shouted. Then theaccused-appellant came out tunning. He was also caught and
Doole v. Republic of Sri Lanka (Colin-Thome, J.)
assaulted. After he was assaulted a person dressed in a sarongtook out a pistol and aimed it at him. At that time the accused-appellant was caught and was being assaulted. As the personin sarong pointed a pistol at Doole he fell down. Then he heardtwo shots. He did not see who fired. At that time he receiveda blow on his head. Then he saw Doole having a pistol. Theysnatched the pistol that was in Doole’s hand. They were assaultedand taken to the van and from there they were taken to thehospital. Till they went to the hospital they were assaulted.
He got about 2 or 3 stabs with a knife. About three personshad knives. Doole was also stabbed. After he was treated atthe Haputale Hospital he was brought to the Badulla RemandPrison where a doctor treated him.
Under cross-examination he stated that he saw a pistol inDoole’s hand only at the last moment of the incident. He- didnot see a pistol in his hand earlier.
He said that when he heard a knock on the front door as hedid not know anyone in the area he did not open to see whowas knocking. He told the accused-appellant that someone wasknocking at the door. The accused-appellant got up and wentand looked. He went to the front door and came running back,and asked for the table to be pulled to the side of the room.The accused-appellant came in, in an excited state.
The accused-appellant slept dressed in his trouser. Doole didnot come out for tea. He brought tea for him from a boutique.Doole went to Bandarawela to see a film called “ Radam ” theprevious evening.
Learned counsel for the accused-appellant submitted that thepolice party in the instant case did not have the power of arrest.Under section 85 (1) of the Administration of Justice Law,No. 44 of 1973 :
“ Any police officer may without a warrant arrest—
any person who in his presence commits any breach of
the peace;
any person who has been concerned in any offence in
respect of which he may be arrested without a warrantor against whom a reasonable complaint has beenmade or credible information has been received or areasonable suspicion exists of his having been soconcerned.
Nothing under this section shall be held to interfere withor riiodify the operation of any other law empowering apolice officer to arrest without a warrant. ’’
Sri Lanka Law Reports (1978 /9) 2 S.L.R.
An assault in the sense of a threatened battery is a breach ofthe peace. (Hale, P.C. ii 88-9; East, P.G. 306). An instance whichinvolves some danger to the person “is the general meaningof a breach of the peace in criminal law. ”—See “ Arrest forbreach of the Peace” by Dr. Glanville Williams—1954 Crim.Xr.R. 578 at 579.
The offences in respect of which a police officer may arrestwithout a warrant as set out in the Schedule under the Adminis-tration of Justice Law include offences such as attemptedmurder under section 300 of the Penal Code; causing hurt witha dangerous weapon under section 315 of the Penal Code, androbbery under section 380 of the Penal Code.
Section 85 (1) of the Administration of Justice Law shouldalso be read with section 56 of the Police Ordinance (Cap. 53)which states:
“ Every police officer shall for all purposes in thisOrdinance contained be considered to be always on duty,and shall have the powers of a police officer in every partof Ceylon.
It shall be his duty—
to use his best endeavours and ability to prevent all
crimes, offences, and public nuisances ;
to preserve the peace ;
to apprehend disorderly and suspicious characters ;
to detect and bring offenders to justice. ’’
As the power of arrest of the police in this case is a mixedquestion of law and fact an examination of the relevant evi-dence in relation to the law is necessary. According to P.C.Abeyapala the police party set out from Mt. Lavinia on the 13thJune to arrest the accused-appellant against whom a charge hadbeen made. Under cross-examination he stated that TudorAntony and Joseph Antony had made complaints to the Mt.Lavinia Police that the accused-appellant had smashed theirhouses and cut Tudor Antony’s wife with a sword.
P.C. Nandapala stated, in answer to defence counsel, that thereason for setting out to arrest the accused-appellant wasbecause there were five complaints against him. Tudor Antonyand Joseph Antony and some others had made complaintsagainst him. There was also a complaint against him for robberyof a watch.
Doole v. Republic of Sri Lanka (Colin-Thome, J.)
Devapura alias' Paniya stated that the accused-appellantconfessed to nim at Nuwara Eliya that he had obtained arevolver after cutting the wife of Tudor Antony at Mt. Laviniaand smashing a boutique and house and shooting Antony. Theaccused-appellant had told him that if anyone from the policecame to arrest him he would shoot and kill him. Devapuraconveyed this threat to the Mt. Lavinia Police about three dayslater. The ‘ picnic ’ to Nuwara Eliya was to evade arrest.
Inspector Bangsa Jayah stated after examining the relevantentries in the Information Book that the accused-appellant waswanted in connection with a charge of attempted murder on acomplaint made by Tudor Antony on 8.6.1975 and that InspectorRajakaruna had made an ‘Out Entry’ at 6.45 p.m. on 13.6.1975that he was leaving on the instructions of the HeadquartersInspector to take the accused-appellant into custody. Raja-karuna obtained the permission of the acting HeadquartersInspector to take a machine gun but this order was later revokedby the Permanent Headquarters Inspector who directed Raja-karuna to take only his revolver. Inspector Rajakaruna wasinduced to take a revolver for his own protection in view of thethreat by the accused-appellant to kill any police officer whocame to arrest him.
It is clear from the above evidence that there was infor-mation which lawfully empowered Inspector Rajakaruna undersection 85 (1) (b) to arrest the accused-appellant without awarrant.
Further, I hold that when the accused-appellant came rushingout of the rear of the house with a loaded pistol stretched outin front of him and uttered the words “ Don’t come, I’ll shoot! ”he was committing a breach of the peace in the presence of thePolice Officers Rajakaruna and Abeyapala. They were, there-fore, acting lawfully under section 85 (1) (a) when they triedto arrest him.
Learned counsel for the accused-appellant submitted that theextracts from the Information Book concerning these complaintshad not been properly proved and, therefore, the prosecution hadnot established beyond reasonable doubt that the police partyhad the power to arrest the accused-appellant.
Inspector Bangsa Jayah had the Information Book before himwhen he was giving evidence in Court. He read extracts fromthe Information Book. This was not objected to by counsel forthe accused-appellant at the trial, who also elicited contents ofthe Information Book under cross-examination. Nor wasBangsa Jayah’s evidence challenged. The moment Eanrisa Jayah
Sri Lanka Law Reports (1978-79) 2 S.L.R.
read an extract from the Information Book counsel for theaccused-appellant was entitled to examine the entries to as-certain whether they were so recorded. Learned counsel forthe accused-appellant did not avail himself of this opportunityas he did not challenge Bangsa Jayah’s evidence but acceptedit. I, therefore, hold that the failure to produce certified copiesof these extracts was only a technical irregularity and no pre-judice was caused to the accused-appellant by the omission todo so.
The next important issue in this case was whether the mannerof arrest was legal. Section 90 of the Administration of JusticeLaw reads as follows :
90. (1) In making an arrest the person making the sameshall actually touch or confine the body of the personto be arrested unless there be a submission to thecustody by word or action. If such person forciblyresists the endeavour to arrest him or attempts toevade the arrest, the person making the arrest mayuse all means necessary to effect the arrest. Nothingin this, subsection shall, however, give the right tocause the death of a person who is not accused of anoffence punishable v/ith death.
The relevant part of subsection (8) reads :
“..Where a person is arrested without a warrant,
the person making the arrest shall at the time of the arrestinform such person, as far as practicable, of the reasons forhis arrest. ”
Learned counsel submitted that the police party did not makeit known to the accused-appellant that they were police officersand that the accused-appellant was not informed of the charge,and, therefore, the mahner of the arrest was illegal.
Inspector Rajakaruna and P. C. Abeyapala at the confrontationwith Herbert Fernando and the accused-appellant did not saythat they were police officers nor did they inform the accused-appellant of the charge. It remains to be examined whetherthere were circumstances which caused this omission on thepart of the police officers. According to Abeyapala soon afterRajakaruna and he vent to the rear of the house HerbertFernando and the accused-appellant came running out of therear of the house. The accused-appellant had a revolverstretched out in front of him, and as he saw them he aimed therevolver at them and said: “ Don’t come, I’ll shoot! ”
Doole v. Republic of Sri Lanka (Colin-Thome, J.)
In Christie v. Leachinsky (1), at 572, Viscount Simon laiddown the following propositions:
“ 1. If a policeman arrests without a warrant on reasonablesuspicion of felony, or of other crime of a sort whichdoes not require a warrant, he must in ordinarycircumstances inform the person arrested of the trueground of arrest. He is not entitled to keep the reasonto himself or to give a reason which is not a truereason. In other words, a citizen is entitled to knowon what charge or on suspicion of what crime he isseized.
If the citizen is not so informed, but is nevertheless
seized, the policeman, apart from certain exceptions,is liable for false imprisonment.
The requirement that the person arrested should be in-
formed of the reason why he is seized naturally doesnot exist if the circumstances are such that he mustknow the general nature of the alleged offence forwhich he is detained.
The requirement that he should be so informed does not
mean that technical or precise language need be used.The matter is a matter of substance, and turns on theelementary proposition that in this country a personis, prima facie, entitled to his freedom and is onlyrequired, to submit to restraint on his freedom if heknows in substances the reason why it is claimedthat this restraint should be imposed.
5* The person arrested cannot complain that he has. not beensupplied with the above information as and when heshould be, if he himself produces the situation whichmakes it practically impossible to inform him, e.g., byimmediate counter-attack or running away.
These principles equally apply to a private person whoarrests on suspicion. ”
In D. H. R. A. Corea v. The Queen (2), at 463,Gratiaen, J. adopted the above propositions of the House ofLords’ case and held that a police officer acts illegally in Ceylon(as in England) if he arrests a man without a warrant on amere “unexpressed suspicion” that a particular cognizableoffence has been committed—unless, of course, “the circums-tances^re such that the man must know the general nature ofthe offence for which he is detained ” or unless the man “ him-self produces the situation which makes it practically impossi-ble to inform him. ”
Sri Lanka Law Reports (1978-79) 2 S.L.R.
In the instant case, as the confrontation with the accused-appellant was sudden when he was running away and as he wasarmed with a revolver and immediately threatened to shootthe police officers if they advanced I hold that the accused-appellant himself produced the situation which made it practi-cally impossible for the police officers Rajakaruna and Abeyapalato inform him that they were police officers and of the reasonsfor his arrest in terms of section 90 (8) of the Administrationof Justice Law. The manner of the arrest was in the circums-tances lawful.
The further question whether the accused-appellant wasexercising his right of private defence remains to be examined.
Learned counsel submitted that as the accused-appellant hadmany enemies and as he did not know the police officers whocame to arrest him and as they failed to inform him that theywere police officers and did not inform him of the charge, theaccused-appellant was entitled to exercise his right of privatedefence. It was submitted further that the accused-appellanthad an apprehension of death or grievous hurt when he sawInspector Rajakaruna having a revolver in his hand, and whenP.C. Abeyapala suddenly seized Herbert Fernando withoutinforming him of the reasons for doing so. The accused-appellantwas, therefore, lawfully exercising his right of private defence.
P.C. Abeyapala stated in evidence that about six months priorto this incident he came to know the accused-appellant. He hadmet him in connection with an official matter and had discus-sions with him outside the police station with regard to thismatter. Under cross-examination the fact that Abeyapala andthe accused-appellant knew each other and that the accused-appellant knew that he was a police officer was not seriouslychallenged. Counsel for the accused-appellant suggested toAbeyapala that he had a 1 personal grudge ’ against the accused-appellant prior to the incident which he denied. A personalgrudge presupposes that the parties knew each other.
P.C. Nandapala stated that he met the accused-appellantabout a year before the death of Inspector Rajakaruna. He wasthe police officer who went with P.C. Peiris and Seether andknocked at the front door of the house.
According to Herbert Fernando, who gave evidence for thedefence, on 14.6.1975 at about 10.30 a.m. or 11 a.m., when heheard a knock at the door he awakened Doole. Then Doole cameto the front and looked out and ran into the house in a veryexcited manner and asked him to pull a table towards the wall.Herbert Fernando did not say that Joseph Antony and Tudor
Doole v. Republic of Sri Lanka (Colin-Thome, J.)
Antony were at the front door. In these circumstances, it mustbe presumed that when the accused-appellant ran to the frontdoor and looked out he became aware that Seether had comewith police officers to arrest him and that was why he tried toescape through the rear door.
P.C. Wijesinghe stated that he knew the accused-appellantfrom 1973, and that both he and Inspector Rajakaruna togetherhad met the accused-appellant on several occasions. They firstmet somewhere in October 1973. He had seen the accused-appellant and Rajakaruna talking to each other on about 3 or4 occasions.
Learned Counsel submitted that P.C. Wijesinghe was unfairlybrought late into the prosecution case on an application by StateCounsel and that the defence was taken by surprise.
Under section 190(1) of the Administration of Justice Lawnothing shall be deemed or construed to debar the prosecution,after notice to the accused, from calling any witness not specifiedin the indictment.
The trial commenced on 6.9.1976. On 7.9.1976 State Counselmade an application to Court to add to the list of witnesses whichincluded the Headquarters Inspector, Mt. Lavinia Police Station,to speak to the issue of firearms to the police party before theirdeparture on 13.6.1975 and to produce any entries in the Informa-tion Book to prove the fact that the deceased police officer hadrecorded a statement from the accused-appellant on some earlieroccasion. This application was allowed by the trial Judge.
On 13.9.1976 State Counsel moved to enter the names ofwitnesses on the indictment which included the name of P.CWijesinghe. Counsel for the defence objected to P.C. Wijesinghe’sname being entered in the list of witnesses.
Learned State Counsel submitted that he had stated in openCourt on 7.9.1976 that he would be calling a police officer to speakto the fact that Sub-Inspector Rajakaruna and the accused-appellant had met each other before this incident and to establishthat at the time the shooting took place the accused-appellantwas aware that the deceased was a police officer. He stated hisapplication was to bring that witness’ name on to the indict-ment, namely, P.C. 5997 Wijesinghe. Mr. Jalaldeen, defencecounsel, submitted that on the 7th, State Counsel did not men-tion the name of the witness and that was why he did notobject but now he objected to the application, as the defencehad been taken by surprise. The Court allowed the applicationof State Counsel stating that as the State gave notice of thisapplication in open Court without mentioning the name of P.C
Sri Lanka Law Reports (1978-79) 2 S.L.R.
Wijesinghe he did not think that this omission mattered whenthe defence had notice of the purpose for which the witness wasbeing called and did not object to the application made by StateCounsel to lead that particular evidence.
Thereafter, the evidence of P.C. Wijesinghe was led preciselyon the lines of the application to show that the accused-appellantand the deceased knew each other before this incident. As a rulean amendment to an indictment should be allowed if it wouldhave the effect of convicting the guilty or securing the acquittalof the innocent, but it should not be allowed if it would causesubstantial injustice or prejudice to the accused. I hold that theadding of P.C. Wijesinghe’s name to the indictment and theevidence deposed to by him did not cause substantial injusticeor prejudice to the accused-appellant who had notice of thesubstance of this evidence. I also hold that was sufficient evi-dence, direct and circumstantial, to, enable the jury to con-clude that the accused-appellant and the deceased were knownto each other before 13.6.1975. and that the accused-appellantmust have known, or had reason to believe, that the party inpursuit of him was a police party.
A further point was argued dealing with the scope of section92 of the Penal Code, Section 92(1) reads as follows :
“ There is no right of private defence against an act whichdoes not reasonably cause the apprehension of death or ofgrievous hurt, if done, or attempted to be done, by a publicservant acting in good faith under colour of his office, thoughthat act r- ay not be strictly justifiable by law.
Explanation 1—A person is not deprived of the right ofprivate defence against an act done, or attempted tobe done by a public servant, as such, unless he knows,or has reason to believe, that the person doing theact is such public servant.
Explanation 2—A person is not deprived of the right ofprivate defence against an act done, or attempted tobe done, by the direction of a public servant, unlesshe knows, or has reason to believe, that the persondoing the act is acting by such direction ; or unlesssuch person states the authority under which he acts,or, if he has authority in writing, unless he producessuch authority, if demanded. ”
In The King v- Wannaku Tissahamy (3), at 404: itwas held that an accused person is not entitled to plead theright of private defence against an act of a public servant whichcaused him reasonable apprehension of death or grievous hurt
Doole v. Republic of Sri Lanka (Colin-Thome, J.)
if the act of the public servant did not constitute any offenceand was justified in law. In such a case there is no necessityfor the presiding Judge to make any reference to section 92 (1)of the Penal Code in his summing-up.
In the instant case as the acts of the police party attemptingto arrest the accused-appellant did not constitute any offenceand were justified in law the accused-appellant was not entitledto plead the right of private defence against the acts of thepolice party which caused him reasonable apprehension of deathor grievous hurt.
Furthermore, since what the police party did was not an offence,then the accused-appellant, who on the evidence must 'haveknown that they were a police party attempting to arrest him,could not avail himself of the right of private defence. Therewas no necessity, therefore, for the learned trial Judge to referto section 92 of the Penal Code in his summing-up.
Learned counsel submitted that the learned trial Judge’s chargewas inadequate on the right of private defence, and the law wasnot related to the facts. I am unable to agree with this sub-mission. The learned trial Judge had charged the jury fully onthe right of private defence and had also referred to section 92of the Penal Code. The learned Judge had also dealt withexceeding of the right of private defence, In the course of hischarge he had explained the material facts fully to the jury andwhen dealing with the right of private defence he .had relatedthe relevant facts to the law.
Counsel submitted that the trial Judge had omitted to chargethe Jury on section 294, Exception 3, which states that culpablehomicide is not murder if the offender, being a public servant,exceeds the powers given to him by law and causes death bydoing an act which he, in good faith, believes to be lawful andnecessary for the due discharge of his duty and without illwilltowards the person whose death is caused.
On the facts of this case there was evidence for the jury tohold that the deceased was acting within his powers at the timeof the incident. There was no obligation, therefore, on the Judgeto charge the jury under Exception 3 for exceeding his powers.
Learned counsel also complained that at the trial a great dealof evidence was elicited reflecting the bad character of theaccused-appellant. Most of this evidence was elicited under cross-examination. Ttie complaints against the accused-appellant hadto be elicited in order to justify the conduct of the police partyin setting out to apprehend him. The learned trial Judge several
Sri Lanka Law Reports (1978-79) 2 S.L.R.
times in his charge cautioned the jury that any aUegationsagainst the accused-appellant must not be construed as evidenceof bad character. I, therefore, hold that no prejudice was causedto the accused-appellant by eliciting the evidence with regardto the complaints against him. It was relevant to the issue inthis case whether the arrest of the accused-appellant waslawful and a step in the process of investigation.
Learned counsel submitted that the verdict of the jury basedon the exception of sudden fight indicated that they acceptedthe position that the accused-appellant did not realise that theparty coming to arrest him consisted of police officers. Learnedcounsel also submitted that this verdict was unreasonable inview of the evidence in the case. The defence based on a suddenfight could only arise in a fight between civilians and notbetween civilian suspects and police officers.
Exception 4 of section 294 of the Penal Code reads :
“Culpable homicide is not murder if it is committedwithout premeditation in a sudden fight in the heat ofpassion upon a sudden quarrel, and without the offenderhaving taken undue advantage or acted in a cruel or unusualmanner. ’’
This exception deals with a provocation not covered by thefirst exception under section 294. It is founded upon the sameprinciple for in both there is the absence of premeditation, butwhile in one case there is the total deprivation of self-control, inthis there is only the heat of passion which clouds the soberreason of a man and urges him to deeds which he would nototherwise do. “ A sudden fight ” implies mutual provocation andblows on each side. The homicide committed is not traceable tounilateral provocation. A fight suddenly takes place for whichboth parties are more or less to blame. It may be that one ofthem starts it, but if the other has not aggravated it by his ownconduct, it would not have taken the serious turn it did. Thereis then mutual provocation and aggravation and it is difficult toapportion the share of blame which attaches to each fighter.They are, therefore, both equally liable. I
I have held that the submission that the accused-appellant didnot know that the party attempting to arrest him were policeofficers is untenable. According to the evidence of P. C. Abeyapalathe incident commenced when he seized Herbert Fernando andgrappled with him, although there was no charge against HerbertFernando and the police party had not set out from Mt. Laviniaas a result of complaints against him. It is likely that the jurvheld that the way in which Herbert Fernando was manhandled
Peiris v. Peiris
was a provocation to the accused-appellant. The jury may havealso taken into account the fact that the accused-appellantuttered a warning before shooting and that the trajectory of thebullet was downwards and only one shot was fired at the deceased-and the shot fired at Nandapala only caused a superficial injury toa finger. The jury may have concluded that in the circumstancesof this case the accused-appellant had acted in the heat of passionupon a sudden quarrel without having taken undue advantageas the deceased himself was armed with a loaded revolver. Thejury may have held that the accused-appellant did not act in acruel or unusual manner as he fired only once at the deceased.
Learned defence counsel had strenuously urged the exceptionof a sudden fight at the trial and the learned trial Judge hadaccordingly charged the jury on this exception. There is nothingin the Penal Code to suggest that the mitigatory plea of a suddenfight is to be confined to a sudden fight, between civiliansexclusively, and is not available in a sudden fight betweencivilians and a police party or against a mixed party of policeofficers and civilians, or between police officers among them-selves. I hold that Exception 4 of section 294 of the Penal Codehas no such restrictions.
therefore, hold that there was no misdirection when thelearned trial Judge directed the jury on the exception based ona sudden fight, and that the verdict of the jury was notunreasonable.
For the above reasons I dismiss the appeal and affirm the conviction and sentences imposed on the accused-appellant.
RODRIGO, J.—I agree.
TAMBIAH, J —I agree.
Appeal dismissed-
G. G. Ponnambalam (Jnr.)