076-NLR-NLR-V-48-THE-KING-v.-PUNCHIRALA.pdf
KEUNEMAN SJ*J.—The King v. Punchirala.
227
[Court op Criminal Appeal.]
1946 Present: Keuneman S. P. 3. (President), Jayetileke J. and Dias J.THE KING v. PUNCHIRALA.
Appeal No. 44 of 1946.
S. C. 29—M. C. Anuradhapura, 18,933.
Court of Criminal Appeal—Sentence—Reduction of.
A plea was accepted by the trial Judge of culpable homicide notamounting to murder and a sentence of twelve years' rigorous imprison-ment was imposed upon the accused. The'evidence recorded in theMagistrate’s Court against the prisoner disclosed circumstances indicatingthat the sentence was excessive.
Held, that, in the circumstances, the sentence should be reduced.
A
PPEAL, with leave obtained, against a conviction in a trial beforethe Supreme Court.
H. Wanigatunga, for the accused, appellant.
H. A. Wijemanne, C.C., for the Attorney-General.
October 7, 1946.- Keuneman S.P.J.—
The only question that arises for consideration is the sentence imposedupon the accused. A plea was accepted by the learned trial Judge ofculpable homicide not amounting to murder and the trial Judge imposeda sentence of 12 years' rigorous imprisonment upon the accused. Wehave looked into the record and find that the only evidence recordedin the Magistrate’s Court against the prisoner is that of. his mistress.According to the story of the mistress the accused woke her up and said“Thieves are coming, I am prepared, do not talk. Then the thiefopened the shutter and put his head in. Then my husband who wasstanding by the side of the wall gave two heavy blows with P 2. Thethief got behind. Accused also got out and assaulted the thief in theshed. He assaulted this time with P 2. I was in the compound whenthe accused struck the thief with P 2. The thief tripped on somethingwhich I do not know and fell on the plank. Then accused threw P 2on the compound and cut him with a katty. The thief died.” That washer statement in examination-in-chief and this immediately raises forthe accused person the defence of the exercise of the right of privatedefence. If this evidence is to be accepted, the accused acted in defenceof himself and his mistress, protecting their persons and their property.Now, it is in evidence that the deceased man had come there carrying agun. That is a fact that also must be taken into account. No doubt,also arises from this statement that the accused exceeded the right ofprivate defence.
That is one aspect of the matter. In her cro^s-examination the mistressof the accused said “ I was on terms of intimacy, with deceased. Hevisits me in the night without the knowledge of accused. My husbanddid not know this intimacy. Deceased lives in a village 12 miles away.
228
DIAS J.—Abdul Thassim v. Edmund Rodrigo.
Whenever deceased came he brought gun P 4.” Now, this does raise orsuggest another possible defence which may have been developed at thetrial, namely, that this accused was taking direct action against theparamour of his mistress who was trying to break into the house.
It is not quite clear on what footing the plea of culpable homicide notamounting to murder was accepted, but whatever view we take it appearsto us that the sentence of 12 years’ rigorous imprisonment is excessive.In all the circumstances, while affirming the conviction, we set asidethe sentence of 12 years’ rigorous imprisonment and substitute therefora sentence of 4 years’ rigorous imprisonment.
Sentence reduced.