NAMARATNE AND ANOTHER v. THE STATE

027-SLLR-SLLR-2001-V-2-NAMARATNE-AND-ANOTHER-v.-THE-STATE.pdf


NAMARATNE AND ANOTHERv.
THE STATE
COURT OF APPEALHECTOR YAPAJ.
KULATILAKA J.
CA. 24-25/99
H.C. AVISSAWELLA 48/95
JULY 3rd, 4th, 2000
Murder – Penal Code S.296 – Identification of the deceased body – Postmortem report – probative'value of omission – Effect on the credibilityof witnesses – Grave and sudden provocation.^
The two Accused-Appellants were indicted for murder under S.296 PenalCode. The Accused Appellants after trial were convicted and sentenced todeath.^
At the Appeal, it was contended that:
There was no proper identification of the dead body;
There was misdirection regarding the probative value of omissionsand their effect on the credibility of the prosecution witness Kumari.
Failure to appreciate items of evidence which would have enabled theAccused Appellant to get the benefit of the mitigation plea of graveand sudden provocation.
Held :
In the post mortem report (PMR) the doctor had not entered thenames of the persons who had identified the dead body in the relevantcolumn.
However the RM.R. clearly indicates that the doctor had performedthe examination at the request of the Actg Magistrate, on the date heconducted the post mortem he was aware of the date and the time ofthe death. He has also put the name of the deceased in the respectivecolumn. In the circumstances the RM.R. speaks for itself. Further asister of the deceased had stated in evidence that she identified thebody as that of her brother.
CA
Namaratne and Another v. The State
(Kulatilaka, J.)
275
The trial Judge had the benefit of observing the demeanour anddeportment of witness Kumarl which Is an all important factor andwas pleased with her testimonial trustworthiness. In this countrymere abuse, even if unaccompained by physical violence made incertain circumstances afford sufficient provocation to reduce theoffence of murder to culpable homicide not amounting to murder,and the question whether such provocation was grave enough tomitigate intentional killing of a man is a question of fact to determine.
Attendant circumstances of this case would entitle the accusedappellanfffJjJ the benefit of exception (1) to S.294 Penal Code.
Appeal from the High Court of Avissawella.
c
Case' referred to :
Bandaranayake vs. Jagetheesan and others – 1984 – 2 SLR 397.
^ Regina vs. Piyasena – 57 NLR 226.
Dr. Ranjith Fernando with Ms. Anoja Jayaratne and Ms. Sandamali
Munasinghe for Accused – Appellants.
RG. Dep. Additional Solicitor-General, for the Attorney-General.
Cur. adv. vult.
September 20, 2000P.H.K. KULATILAKA, J.
The two accused-appellants were indicted in the High Courtof Avissawella for committing the murder of Matota GamaralalagePodi Appuhamy on 15 May 1989, an offence punishable underSection 296 of the Penal Code. The learned High Court Judgesitting without a jury found both accused-appellants guilty ofmurder and accordingly convicted and sentenced them to death.The accused-appellants have appealed against the convictionand the sentence.
It was on a complaint lodged by Matota GamaralalageInohamy on 18.3.89 to the effect that her brother MatotaGamaralalage Podi Appuhamy was missing that the policecommenced investigations and discovered the body of the
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deceased buried in the back yard of his own house and whenthe body was exhumed the complainant had identified the bodyas that of her brother. This is a case of patricide. The twoaccused-appellants are the sons of the deceased.
At the argument the counsel who appeared for the accused-appellants endeavoured to impugn the judgment of the learnedtrial Judge on the following grounds, namely
that there was no proper identification of ti^dead body.
that the learned trial Judge erred in law by misdirectinghimself regarding the probative value of omissions and theireffect on the credibility of the prosecution witness KcsumKumari.
that the learned trial Judge erred in fact and law by failingto appreciate items of evidence which would have enabledthe accused-appellants to get the benefit of the mitigatoryplea of grave and sudden provocation.
In view of the aforesaid contentions urged by the learnedcounsel it becomes necessary for us to examine with care thetestimony of Kusum Kumari before the High Court. KusumKumari is a grand daughter of the deceased and she is also aniece of the two accused-appellants. Being an eye witness, eventhough she did not see a part of the assault on the deceased bythe two accesed-appellants she had seen the main part of theincident and at the trial she had come out with a vividdescription of the events that led to this gruesome murder. Shewas apparently a grade 4 student at the time she witnessed theincident and when she gave evidence at the non-summaryproceedings she was 12 years and was 19 years of age whenshe testified before the High Court.
Three months prior to the incident her parents livingelsewhere had left Kusum Kumari with her grand parents forschooling. Her grand mother Eminona, two accused-appellants,their sisters and children were living in the same house, whereasthe deceased was living separately in a hut in the same garden.
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Namaratne and Another v. The State
(Kulatilaka, J.)
277
On the day of the incident Kusum Kumari had come home afterschool. It was around 2.30 p.m. The deceased had come to themain house and wanted one of his grand daughters Leelawathieto fetch him his sarong which he had kept inside a suitcase.Since she did not oblige the deceased had gone inside the housebrought the suitcase to the verandah and when he was in theprocess of getting his sarong out a frock which was inside thesuitcase had fallen on the floor. The grand daughter(Leelawathie) had contained about it to the first accused whowas sleepingj^vhe time. The first accused-appellant had comeout in a rage, tried to hit the deceased with a chair but hadthrown it out to the compound without hitting him. Thereafterthe second accused-appellant also hacPcome out and slappedthe receased on his face. Then they (accused-appellants) hadassaulted him and tied him up to a “kundira” cocount tree andmercilessly beat him with hands. The deceased had pleadedwith them not to beat him on his back-side as he had a brokenspine. Yet they continued to hit him saying that they would breakhis spine again, whereupon the deceased had pleaded with themto kill him at once. Then they untied him and made him toplace his face against a bee-hive box. Thereafter they themselveshad forced his face against the bee-hive box while the bees stunghim and the deceased cried in pain. The two accused-appellantshad then proceeded to a thovil house close by. The deceasedhad attended to his wounds, had come back and made thefollowing warning to his wife Eminona who is the mother of thetwo accused-appellants. It was to the following effect:
“You have got the children to tie me up to a tree and
beat me. One day the same fate will befall on you.”
At that point of time deceased’s wife Eminona hadproceeded to the thovil house and met the two accused-appellants. Shortly afterwards they had come home in a rageshouting at the deceased. Seeing the accused coming thedeceased had run away towards a thicket with a torch in hand.The two accused-appellants had chased after him and caughthim. It appears that the witness Kusum Kumari had not seenwhat followed until the two accused-appellants carried the
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deceased on to the road and left him there. The deceased wasunconscious. Thereafter the first accused-appellant had shouted“I have killed him bring a lamp to see.” Kusum Kumari saw hergrand father bleeding. Both first accused-appellant had liftedthe deceased and then the first accused-appellant bodily carriedthe deceased his father on his shoulder and dropped him onhis back at the door step. The first accused-appellant then hadinserted a piece of firewood through the deceased’s throat andthe deceased had thrown out blood. Thereafter they had coveredhis body with a mat and placed a piece of chafed on it.
It is manifest that the learned counsel for the accused-appellants raised the is^ue that the dead body was not identifiedfor the reason that in the post mortem report prepared Dr.
S.M. Panagoda he had not entered the names of persons whohad identified the dead body in the relevant column. But thepost mortem report clearly indicates that the Doctor ^.adperformed the post mortem examination at the request of Mr.S. Wattegama, Acting Magistrate of Avissawella and on the datehe conducted the post mortem i.e. 20.3.1989 he was aware ofthe date and the time of death. In that column he has put thedate as 15.3.1989 and on the post mortem report he has putthe name of the deceased person as Mathota Gamaralalage PodiAppuhamy. Hence the post mortem report speak for itself forthe reason the Doctor was well aware of the fact that he wasperforming the post mortem on the body of Matota GamaralalagePodi Appuhamy. Further Matota Gamaralalage Enohamy whomade the first complaint to the effect that her brother MatotaGamaralalage Podi Appuhamy was missing, in her evidence hascategorically stated that when the body was exhumed sheidentified the body as that of her brother. (Vide pages 56 and57 of the original record). Hence we do not see any merit in thesubmission made by the learned counsel regarding the identityof the body of the deceased.
Learned counsel urging the second point advanced by himthat the learned trial Judge has failed to consider vital omissionsin Kusum Kumari’s evidence referred us to omissions markedas V4, V5, V6 and V7. All these omissions were directed at her
CA
Namaratne and Another v. The State
(Kulatilaka, J.)
279
evidence in the trial Court that the accused-appellants had madethe deceased to keep his face against the bee-hive box and theythemselves had forcibly placed his face against the bee-hive boxfor the bees to sting. The learned counsel vehemently arguedthat this witness was coming out with such a story for the firsttime in the High Court 9 years after the event. It appears thatthese omissions have been marked in the High Court trial inrelation to her statement made to the police on 22.3.89 whenshe was just 10 years old. In this regard the learned trial Judgewas very muc^,cware and mindful of the circumstances underwhich Kusum Kumari had made her statement to the police atthat point of time. According to Kusum Kumari’s evidence whenthe accused-appellant had warned this Witness that if she comesout 'yjth what had happened they would kill her and put her tothe same grave. She further testified that she was not allowedto go out, not even to her school after the incident. Thus at thetim? she made her statement to the police she was virtually aprisoner in the hands of the accused-appellants and theirmother. In order to test the correctness of the submission madeby the learned counsel that it was for the first time 9 years afterthe incident Kusum Kumari had come out with such a story, atthe High Court trial, we perused the non-summary proceedingswhich were available to the learned counsel for the accused-appellants as well. On 17.01.92 Kusum Kumari giving evidenceat the non-summary proceedings had described how the twoaccused-appellants dragged the deceased to the bee-hive box,opened it and forced him to keep his face against the bee-hivebox and how the bees stung him and how the deceased cried inpain, (vide page 20 of the non-summaiy proceedings). Thereforeit would appear that the submission made by the learnedcounsel is without any merit and substance. Further it may wellbe that the learned trial Judge had the benefit of observing thedemeanour and deportment of witness Kusum Kumari whichis an all important factor and was pleased with her testimonialtrustworthiness. In this regard vide the judgment of Justice CohnThome in Bandaranaike vs. Jagathsena & Others.11’
Finally, in the course of the argument the learned counselfor the accused-appellants rightly conceded that it was the
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accused-appellants who were responsible for the killing ofMatota Gamaralalage Podi Appuhamy, albeit, advanced theproposition that the learned trial Judge has failed to appreciatecertain mitigating circumstances that came to light in view ofsome items of evidence elicited from the prosecution witnessesand the dock statement of the first accused-appellant whichwould reduce the offence of murder to one of culpable homicidenot amounting to murder. He further submitted that even thoughthe learned Judge has considered the i$sne of grave and suddenprovocation he has summarily dismissed it afejhe basis thateven though provocation was available it was afforded by themother of the accused-appellants (wife of the deceased) but notby the deceased himself personally. In this regard the learnedAdditional Solicitor-General conceded that because thespecial relationship that existed between them (Eminona beingthe mother of the first and second accused-appellants), if whatwas conveyed by Eminona to the two accused-appellants 'Vasof such a nature sufficiently grave enough to give provocation,then, it would entitle the accused-appellants to get the benefitof the Exception I to Section 294 of the Penal Code.
According to the testimony of the prosecution witnessKusum Kumari what had prompted Eminona to take off insearch of the two accused-appellants was the deceased’sutterance. Namely, “you have got the children to tie me up andbeat me, one day the same fate will befall on you.” Learnedcounsel for the accused-appellants submitted that the evidenceof Kusum Kumari shows that she had been very much attachedto the deceased her grand father and as such she did not comeout with the real story. He referred us to the evidence of defencewitness Kamalawathie, a daughter of another sister of the twoaccused-appelants who was living in the same house. Accordingto her, prior to the second episode the deceased had come homedrunk and quarelled with the grand mother (deceased’s wife).The deceased had damaged the furniture, broke the glass of acabinet and also grand mother’s Buddha statue. This issuggestive of the fact that there was sufficient material to provokethe accused-appellants.
CA
Namaratne and Another v. The State
(Kulatilaka, J.)
281
According to the dock statement made by the first accused-appellant what his mother said was “father came home drunkand smashed the Buddha statue on the floor, broke the glass ofthe cabinet. I don’t know what really was happening there.” Inaddition, there are certain items of evidence which if looked atobjectively would support the proposition that the two accused-appellants had been provoked by what was conveyed to themby their mother. Namely, that Eminona hurried in search of theaccused-appellants who were at a thovil house, that the twoaccused-appellants hurried back home accompanied byEminona, that ^ two accused-appellants were abusing thefather and were fir a rage. (Vide page 103 of the record).
Furthermore the learned counsel for the accused-appellantsinvited our attention to the evidence of Kamalawathie in regardto what actually sparked off the first episode. EventhoughKusum Kumari’s version was that Leelawathie, a granddaughter of the deceased had complained to the first accused-appellant when a frock fell on the ground while the deceasedwas in the process of picking his sarong from the suitcase,Kamalawathie’s version was that in order to pick his sarongthe decased had thrown the contents of the suitcase on the floor.
The evidence led by the prosecution as well as the dockstatements of the accused-appellants did not disclose or reveala motive for the crime. We were invited by the counsel to examinethe contents of the dock statement of the first accused-appellant.The first accused-appellant had narrated an agonizingexperience his mother, his brother the second accused-appellantand he had undergone at the hands of the deceased when theywere living with him under the same roof.
In this context s! is pertinent to refer to an observation madeby Justice Gratiaeri in Regina vs. Piyasena'21 the following effect:
“In this country mere abuse, even if unaccompanied byphysical violence, made in certain circumstances affordsufficient provocation to reduce the offence of murder
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to culpable homicide not amounting to murder: andthe question whether such provocation was graveenough to mitigate intentional killing of a man is aquestion of fact to determine.”
and at 22B –
‘That the jury should decide after due consideration ofthe evidence of the prosecution witnesses and of theappellant whether the deceased man gave the appellantprovocation, and if he did, whether such provocationwas grave enough to reduce his offence to culpablehomicide not amounting to murder.”
Further it is to be observed that the learned High CourtJudge has failed to consider these aspects of the case and alsothe mitigatory plea available to the accused-appellants andthereby misdirected himself in law.
In this context we take note of the Explanation containedin the Penal Code which declares that “whether the provocationwas grave and sudden enough to prevent the offence fromamounting to murder is a question of fact.”
Viewed in this perspective we hold that the attendantcircumstances of this case would entitle the accused-appellantsto the benefit of Exception (1) to Section 294 of the Penal Code.Hence we set aside the conviction for murder and the sentenceof death and substitute a conviction for culpable homicide notamounting to murder on the basis of grave and suddenprovocation (Exception 1 to Section 294 of the Penal Code).
According to the medical expert Dr. S.M. Panagoda whoperformed the post mortem he found 18 injuries on the “deathwas due to brain injury associated with fracture of the base ofthe skull.” Further there had been “evidence of bleeding fromthe nose, mouth and ears seen with the presence of alteredblood.” Vide cage 13 of the post mortem report marked PI.This appears to be consistent with Kusum Kumari’s evidence
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Namaratne and Another v. The State
(Kulatilaka, J.)
283
that the first accused-appellant had Inserted a firewood throughthe deceased’s throat which made the deceased to throw out agush of blood. Farther we take note of the fact that after thecrime the body was buried, an attempt to hide the body. Thesecircumstances would call for maximum punishment. Hence wesentence each of the accused-appellants to a term of eighteen(18) years rigorous imprisonment operative from today. Subjectto the above variation, in the conviction and sentence we proceedto dismiss the appeal.
HECTOR YAPA. J. – I agree.
r.i/
Conviction / sentence varied.
Appeal dismissed.