024-SLLR-SLLR-2007-V-1-NANDASENA-v.-ATTORNEY-GENERAL.pdf
CA
Nandasena v Attorney-General
237
NANDASENA
vATTORNEY-GENERAL
COURT OF APPEALRANJITH SILVA, J.
SISIRA OE ABREW, J.
C.A. 101/2004H.C.MATARA 47/2002JULY 27. 2007
Penal Code – Section 77, 296, 315 – Defence of insanity – Rule in Me.'Naughton's case – Evidence Ordinance – Section 105 – Burden of provinginsanity – on whom?
Held:
When a defence of insanity is taken under section 77 there must beevidence to prove that the accused was insane and this fact had to beproved on a balance of probability like in a civil case.
It is the burden of the accused to prove that he was incapable of (i)knowing the nature of the act (ii) that he is doing what is either wrongor contrary to law.
238
Sri Lanka Law Reports
[2007] 1 Sri L.R
It is only unsoundness of mind which materially impairs the cognitivefaculties of the mind that can form a ground of exemption from criminalresponsibility, the nature and the extent of unsoundness of mindrequired being such as would make the offender incapable of knowingthe nature of the act or that he is doing what is wrong or contrary tolaw."
APPEAL from the Judgment of the High Court of Matara.
Case referred to:
1. King v Ebrahamappu – 40 NLR 505
Niranjan Jayasinghe – Assigned Counsel for accused-appellant
Buwaneka Aluvihare – D.S.G. for Attorney-General
Cur.adv.vult.
July 27, 2007RANJITH SILVA, J.
The accused was charged on two counts of murder under oisection 296 of the Penal Code for causing the death of oneKorawage Sunethra who happened to be his wife, for causing thedeath of Saman Kumara his son and for causing hurt in the causeof the same transaction to one Dharmadasa Wickramasinghe anoffence punishable under section 315. After trial, without jury theaccused was found guilty on all three counts and in respect ofcounts one and two he was sentenced to death and in respect ofcount three he was sentenced to three years R.l. Aggrieved bythe said judgment and the sentences the accused has come iobefore this court. In this appeal the Counsel for the appellantconfined himself to one ground of appeal. The ground urgedbefore this Court was insanity. The Counsel for the defence drewour attention to portions of evidence given by the witnesses forthe prosecution where they have stated that the accused was avery devoted father who attended to their daily needs and lookedafter the children well. It was in evidence that the accused neverbehaved in this manner prior to this incident and had no quarrelsor arguments with the deceased wife. The Counsel for theappellant also drew our attention to the evidence of Dharmadasa 20where the witness had stated that the accused acted in an
CA
Nandasena v Attorney-General
fRaniith Silva. J.)
239
unusual manner while he was attempting to assault him with amamoty. We have perused the brief and we find that at page 148of the brief the learned trial Judge had referred to the fact that themedical evidence did not reveal that the accused was insane buton the contrary the medical evidence was that the accused wasnot insane. When a defence of insanity is taken under section 77of the Penal Code there must be evidence to prove that theaccused was insane, and this fact had to be proved on a balanceof probability like in a civil case. It is the burden of the accused to 30prove that he was incapable of (1) knowing the nature of the act,
(2) that he is doing what is either wrong or contrary to law. In thebook titled "Law of Crimes" by Ratnalal and Thakore it is statedthus, 'It is only unsoundness of mind which materially impairs thecognitive faculties of the mind that can form a ground ofexemption from criminal responsibility, the nature and the extentof unsoundness of mind required being such as would make theoffender incapable of knowing the nature of the act or that he isdoing what is wrong or contrary to law'. The offender may kill achild under an insane delusion that he is saving him from sin and 40sending him to haven. He is incapable of knowing by reason ofinsanity that he is doing what is morally wrong. A person strikesanother in consequence of an insane delusion thinking he isbreaking a jar. Here he does not know the nature of the act.
In this particular case the accused believed that the deceasedpoisoned his food and beetle and intended killing the people whohe thought were responsible for that act. In which case he shouldbe held responsible for his act.
It cannot said that the accused did not know the nature of theact that he committed. Because it is very clear that he was trying to 50punish or avenge the wife for what he thought that happenedwhether it really happened or not. The accused was under theimpression that the wife poisoned the shunami. On the other handthe accused was suspicious about an illicit affair the wife had withwitness Dharmadasa. Therefore he knew that he was takingrevenge. Therefore he cannot be said that he did not know thenature of his act. It is equally clear that he knew that what he wasdoing was wrong, or contrary to law.
240
Sri Lanka Law Reports
(2007J 1 Sri L.R
It was held in Mc'.Naughton's case that
Every man is presumed to be sane, and to possess asufficient degree of reason to be responsible for hiscrimes until the contrary is proved to the satisfaction of thejury.
To establish a defence on the ground of insanity it must be'clearly' shown that at the time of committing the act theparty accused was labouring under such a defect ofreason, from disease of the mind, as not to know thenature of the act he was doing or not to know that what hewas doing was wrong morally.
If the accused was conscious that the act was one whichhe ought not to do and if that act was at the same timecontrary to the law of the land, he is punishable. The testis the power of distinguishing between right and wrong inregard to the particular act committed.
In King v EbrahamappiJ-'i Soertz, ACJ. observed as follows:
Section 77 of the Penal Code is a condensed reproduction ofthe rule in Mc'.Naughton's case and in view of section 105 of ourEvidence Ordinance there can be no doubt that the burden ofproving insanity is on the prisoner (accused) in the words of theJudges in Mc.'Naughton's case insanity must be clearly proved totheir satisfaction (of the jury) or as Roefe B, stated it is for theprisoner (accused) to make it clear and the jury must be satisfied"the burden of proving innocence rested on the accused." Late Mr.H.C. Perera Q.C., in the same case argued before the Court ofAppeal that the burden imposed by law on prisoner the accusedwas no greater than to raise a reasonable doubt in the minds of thejury as to his insanity. The Court of Appeal disagreed with this view.Soertz. ACJ, referring to several decisions of the court in Englandincluding the decision of Mc.'Naughton's case held "if a prisonerseeks to excuse himself upon the plea of insanity it is for him tomake it clear that he was insane, at the time of committing theoffence charged. The onus rest on him. If the matter is left in doubt,the prisoner should be convicted. Because every man is presumedto be responsible for his acts till the contrary is clearlyshown.
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CA
Samarasekera v Indrani
241
In this case the accused had not taken up the plea of insanity norhas he led any evidence to prove to the satisfaction of the trial Judgethat he was insane at the time of the commission of the offence. Weare constrained to disagree with the Counsel for the appellant and rulethat the plea of insanity cannot be sustained.Therefore we are of the 100opinion that this appeal should fail. Accordingly we affirm theconviction and sentence and dismiss the appeal.
SISIRA DE ABREW, J. – I agree.
Appeal dismissed.