012-SLLR-SLLR-2003-1-JAYATHILAKE-v.-THE-ATTORNEY-GENERAL.pdf
sc
Jayathilake v The Attorney-General (Edirisuriya,J.)
107
JAYATHILAKE
v.THE ATTORNEY-GENERAL
COURT OF APPEALFERNANDO, J. ANDEDIRISURIYA, J.
CA 8/2000
HC ANURADHAPURA 178/99OCTOBER 4, 2001, JANUARY 10,2002,FEBRUARY 21, 2002, JUNE 12, 2002SEPTEMBER 9, 2002NOVEMBER 11,2002 ANDFEBRUARY 17 AND 18, 2003
Penal Code, sections 78, 79 and 296 – Murder – Guilty – Defence of intoxi-cation not taken up – Reducing offence of murder to culpable homicide notamounting to murder – Defence arises on evidence – Duty of jury to considervoluntary intoxication and involuntary intoxication – What is the degree, ofintoxication referred to in section 78?I
108
Sri Lanka Law Reports
[2003] 1 Sri L.R
Held:
Through the accused has not taken up the defence of intoxication ifsuch defence arises on the evidence. It is the duty of the jury to con-sider same.
In cases of involuntary intoxication the test is the same as that applic-able to insanity, namely, that the degree of intoxication is such that,the accused was totally deprived of capacity to apprehend the natureof the act or its wrongful or illegal character. The section dealing withvoluntary intoxication is of wider scope in that the effect of the provi-sion is not confined to intoxication in this degree, but applies to allcases of self-induced intoxication in any degree so long as the offencespecifies some definite knowledge or intent as an essential ingredient.
Per Edirisuriya J.
‘The learned trial judge has not directed the jury that the intoxicationnecessary to reduce an offence from murder to culpable homicide notamounting to murder on the ground of absence of murderous intentionneed not necessarily be the degree of intoxication referred to in section78 of the Penal Code. He has also failed to direct the jury to the effectof section 79”
APPEAL from the judgment of the High Court of Anuradhapura.
Cases referred to:
King v. Rengasamy, – 25 NLR 438 at p. 444
King v. Marshall Appuhamy, – 51 NLR 140 at 144, 142
Ranjit Abeysuriya, PC with S. Gunaratne and Thanoja Rodrigo for accusedappellant.
P.G. Dep. PC Additional Solicitor – General with Anoopa de Silva,. StateCounsel for respondent
Cur.adv.vult.
April 04, 2003EDIRISURIYA, J.
The first and the second accused in this case were indictedfor having committed the murder of one Rankoth Pedige Wijeratnean offence punishable under section 296 of the Penal Code. The
CA
Jayathilake v The Attorney-General (Edirisuriya.J.)
109
accused having pleaded not guilty to the charge were tried by a jurybefore the High Court Judge of Anuradhapura.
On an application made by the Learned State Counsel thelearned trial judge directed the jury to acquit the second accused.Accordingly the jury by unanimous decision acquitted the secondaccused. After trial the jury by unanimous verdict found the firstaccused guilty of murder.
The only eye witness in this case Ranhawadi DurayalageJayatissa giving evidence said that on 1992.12.07 the firstaccused, the second accused and he drank Kasippu around 8.00p.m. at his grandmother's house. Thereafter on a request made bythe first accused all three of them went to the house of the firstaccused and had dinner. At that stage the first accused had sug-gested that they should rob “Gini Damana Mudalali's boutique. Thewitness and the second accused had agreed to this proposal.Thereafter they had proceeded to the canal. The witness said thathe carried his rifle when they went to this place.
At this place according to the witness they drank another halfa bottle of arrack which they carried with them. The first accusedhad taken the rifle which witness had kept on the canal bund. Thewitness said thereafter all three of them went towards‘Wijemudalali’s boutique. When they reached this boutique it wasaround 9.30 p.m. Since the first accused was drunk he knockedagainst the barbed wire which, was in the boutique. ThereafterWijemudalali opened the kitchen door and came out aiming thetorch. The first accused had ordered Wijemudalali not to come for-ward.
However Wijemudalali came forward disregarding the ordergiven by the accused. He was smiling when he came. At that stagethe first accused shot Wijemudalali on the chest. Thereafter theMudalali fell on the ground crying “§§ qf®o®l”. At this, stage the sec-ond accused was standing close to the first accused. The witnesssaid the 2nd accused did not do anything. After the shooting thesecond accused and the witness ran away. The first accused hadthreatened them uttering the words o&»8 ogrisO 003 ScaaQ) g9a$a>0e>”. Thereafter he said they stopped running. Thereafter the firstaccused had said “qng 8io8 ®B q?8 oG&mQ ®B sx5§”. This meant
110
Sri Lanka Law Reports
[2003] 1 Sri L.R
that what they came for did not materialise and that they should dosomething. When they were coming back the witness had taken therifle from the first accused’s hand. Since the first accused wantedhim not to tell anyone about the incident the witness said he did notmake a complaint to the Police at that stage. The first accused wastaken tinto custody by the Police at that stage. The first accusedwas taken into custody by the Police after two years and onemonth. Only after the 1st accused was taken into custody that thewitness made a statement to the Police.The witness himself wascharged in the Magistrate’s Court in this connection. Subsequentlyhe was discharged.
The learned trial judge has correctly directed the jury thateven though the accused has not taken up the defence of intoxica-tion if such defence arises on the evidence it is the duty of the juryto consider the same. Sections 78 and 79 in the Penal Code which,deal with the question of intoxication was explained to the jury.
He had told the jury thus; “fig ®o axlg ©to) e^o ©gocjb>i®ks5®0 80i£3® G$g @5)® g®)0® q©edd)0Q> o@® 3s> 9® Grig gbdOgo® G@® g£®0C3)O @3 ®tSc® G0®®}0S) qi&ssd ®aa 0i5 ®30®0 80)So©) a§3ja)aod©)0 oefi q®9) a® & qdei€»o3% ©g oa)8g q>0e4d)G0 i*S8)a Qig® ©gO epotfiecncs eb6 g§0® ®c3®a 8®.". The learned trialjudge has told the jury that when they consider the defence of intox-ication they must examine whether the accused was intoxicated tothe extent that he was unable to form a murderous intention.Professor G.L Pieris says that an obvious difference between thescope of the two sections relates to the degree of intoxication con-templated in each case. In cases of involuntary intoxication the testis the same as that applicable to insanity, namely, that the degreeof intoxication was such that the accused was totally deprived ofcapacity to apprehend the nature of the act, or its wrongful or ille-gal character. The section dealing with voluntary intoxication is ofwider scope in this respect, in that the effect of the provision is notconfined to intoxication in this degree but applies to all cases ofself-induced intoxication in any degree, so long as the offence inquestion specifies some definite knowledge or intent as an essen-tial ingredient. (General Principles of Criminal Liability in Ceylonpg.184 and pg. 185)
Jayathilake v The Attorney-General (Edirisuriya.J.)
111
CA
In RengasamjX1) at 444 the same principle has been recog-nized.
In The King V. Marshall Appuhamy (2) at 141 ,the jury had toconsider (a) whether the appellant was so intoxicated as to beunable to form a murderous intention (b) whether he was so pro-voked as to be deprived of his self control (c) whether owing tosome intoxication his faculties were so impaired that he was liableto be provoked more easily than when he was sober.
On the question of intoxication which, the jury had to consid-er under (a) and (c) above the only direction given by the learnedtrial judge was as follows:
Now Gentlemen intoxication to be an excuse in law for anoffence must be intoxication which, is administered byanother. In no case does intoxication which, is self induced- I mean that if a man takes drinks himself he cannot makethat the occasion or excuse for an offence; it is only whendrink is administered to a man without his knowledge oragainst his will and he commits an offence that is anexcuse.
Learned counsel would have you take it that the intoxcationof this man was such as to provoke him more than a rea-sonable man. That state of intoxication that amount of intox-ication is not taken into account by the law.
For intoxication to excuse a man apart from the circum-stances I have already mentioned, it must be of such adegree as to deprive a man of any kind of intention. Forinstance, to be excused, a man must be intoxicated to thatdegree when he does not see the difference between ahuman being and a log of wood.
4:Now on the evidence of the prisoner himself he was not
intoxicated because he rode four miles, he went to his friendhe spoke to him, he returned his bicycle, he went to the bou-tique, lit a cigarette and had a chat so that in law the factthat the accused took two bottles of toddy and, shortly aftera third is not sufficient to excuse him of any offence or toreduce the offence of culpable homicide not amounting tomurder.
112
Sri Lanka Law Reports
[2003] 1 Sri L.R
Delivering the judgement in this case Wijewadane C.J. WithNagalingm J and Gratiaen J agreeing states that “in paragraph 2the Judge appears to have expressed himself in such a way as togive the impression to the jury that any intoxication falling short ofthe degree of intoxication contemplated by section 78 of the PenalCode should not be considered in dealing with the questionwhether a man’s susceptibility to provocation was effected by intox-ication. None of the above paragraphs 1 to 4 would have indicatedto the jury that the intoxication necessary to reduce an offence frommurder to culpable homicide not amounting to murder on theground of absence of murderous intention need not necessarily bethe degree of intoxication referred to in section 78 of the PenalCode (vide King v Rengasamy. [supra])
In the instant case the learned trial judge has not directed thejury that the intoxication necessary to reduce an offence from mur-der to culpable homicide not amounting to murder on the ground ofabsence of murderous intention need not necessarily be thedegree of intoxication referred to in section 78 of the Penal Code.He had failed to direct the jury that the effect of section 79 appliesto all cases of self-induced intoxication in any degree when theoffence in question specified some definite knowledge or intent asan essential ingredient.
Had the learned trial judge done so, on the evidence led atthe trial the jury would well have brought in a verdict that theaccused is guilty of culpable homicide not amounting to murder onthe basis of knowledge. This clearly is a non-direction in law which,amounts to a misdirection in law.
In the circumstances I set aside the conviction for murderentered against the accused-appellant and substitute therefor aconviction for culpable homicide not amounting to murder on thebasis of knowledge. I set aside the sentence of death imposed onthe accused. Accordingly I impose a term of 10 years’ rigorousimprisonment on the accused-appellant.
FERNANDO. J – I agreeAppeal allowed; sentence varied.