098-NLR-NLR-V-51-THE-KING-v.-WANNAKU-TISSAHAMY.pdf
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WINDHAM J.— The King t Wannaku Tissahnnv/
1949[Court of Criminal Appeal]
Present ■ Windham I. (President), Basnayake J. and Gratlaen J.THE KING t WANNAKU TISSAHAMYAppeal No. 53 of 1049 with Application No. 146
8. C. 25—M. C. Badvlla, J2f571
Court of Criminal Appeal—Private defence against act of public servant—Scope ofsection 92 (J) of Penal Code—Summing up—Criminal Procedure Code.s. 23—Penal Code, as. S9, 90, 92 (1), 93.
An accused poison ie not entitled to plead tlie right of private defence againstan act of a public servant-which caused him reasonable apprehension of doath orgrievous hurt if the act of the public sorvant did not constitute any offenceand was justified in law. In such a cose there is no necessity for the presidingJudgo to make any reference to section 92 (1) of the Penal Code in hissumming-up.
PPEAL, with leave to appeal, against a conviction in a trial beforea Judgo and Jury.
C. E. Jayewardenc, with G. F. Sethukavalar, for accused appellant.
H. R. Crossette-Thambiah, Solicitor-General, with Douglas Janttze,Crcncn Counsel, for Attorney-General.
Cur. adv. vult.
October 20, 1949. Windham J.—
The appellant was convicted on 14th September, 1049, at the KandyAssizes, of attempted murder, and sentenced to 18 months' rigorousimprisonment. The charge was that the appellant, on 6th December,1932, shot and injured Police Constablo H. D. S. Appuhamy with a gunin circumstances amounting to attempted murder. The appellantoscaped arrest and since the commission of the offonoo he appears tohave lived in the jungle in tho Veddah country and it was only uponhis giving himsolf up some seventeen, years later that he was charged.
The story of the prosecution witnossos, Police Constable Appuhamy(the injurod man) and Sub-Inspector Dissanayake established that thoaccused was reasonably suspected of having committed a cognizableoffence, namely murder, and that police search had been made for him.On tho day of the incident, a polico party went in search of him, amongwhom were the witnesses police constable Appuhamy, who carried acartridge gun, and sergeant (later sub-inspector) Dissanayake, whocarried a rifle. They found the accused and his son in a chena
WJXpHAM J- —The King v. Wannaku Tiesahamy
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Constable Appuhamy approached him. What then happened is relatedby Appuhamy in the following words:—‘‘ On hearing the rustling ofdried Indian corn loaves the accused looked in my direction. At thattime ho was about 25 to 30 yards away from me. At the time accusedlooked at me his son was close by him. When they saw me both of themtook to their heels and ran down the chena. I asked them to stop andgave chase and while running I fired one shot in the air saying ‘ Don’trun. If you run. I will shoot The accused and lus son ran in twodifferent directions and I chased after this accused. I do not know inwhich direction his son ran. I watched this accused who got downa slope of that chena, turn round and pointing a gun at me he squattodnear a ‘kandura’—stream. Accused had the gun even whon he w?.spluokhg Indian com. I thought accused would shoot at roc and there-fore I took cover behind a treo close by. I did not see Police SergeantDissanayako at that time. I took cover and could not sco accused butaccused was also there. I was frightened to advance and in order toraakc him fire I spread out my rain-coat which 1 was wearing to invitothe accused to shoot. I waited a while but accused did not dischargehis gun and I then advanced. Accused then fired. Q. Did you see whobred ? . . . I did not see accused fire, but this accused got up fromwhere this shot came and took t ho gun and ran away. I got tho shotand ran a short distance and collapsed
Sub-Inspeel o: Dissanayako's vorsion of the occurrence was as follows :—
Wo entered tho chena and. there wore somo dogs near this accusedand the other person who was there with the accused. As we scaledover the fence we hoard the dogs barking and this accused and theyoung man who was by the accused looked and tho other man ran away.I do not know where that man ran. Then I saw this accused runningand gotting into a ditoh and wo chased and Appuhamy took cover behinda tree close by and I took cover behind a bush. I then hoard a shotfired from the diroction where aocusod was hiding. I yet kept silent.Then P. C. Appuhamy firod one shot with his gun. After that anothershot was fired from tho direction where this accused was hiding and thatshot struck Constable Appuhamy who fell and was seriously injured.Thereafter this accused got out of his hiding place and started running ,J.
The accused made an unsworn statement from the dock in which hestated that—“ Wc firod and the other party fired. Thereafter we raninto the jungle. I cannot say whether any one was injured and if anyone was injured, how many were injured ”. Later he stated that hisson received a gun-shot injury.
Tho jury, accepting the evidence of two police witnesses, brought ina verdict of attempted murder. Counsel for tho accused relied on thedefence that the accused fired at police constable Appuhamy in exerciseof tho right of private defence.
Two points have been argued in appeal. The second point, which itwill be convenient to dispose of first, was that the evidence was insuffi-cient to show that constable Appuhamy was wearing police uniform atthe time of the shooting, and that with regard to Sub-Inspector Di&sa-nay&ko, while he was admittedly wearing police uniform, his evidencethat tho accused looked at him, thereby becoming aware that at least
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WIN’DIIAM J.—The King v. Wannakv ris&ohvmy
one of his pursuers was a memhor of the police forco, ought not tohave been accepted, in view of certain proved discropancios in Diasa-nayake’s evidence. It is not, howevor, nc pessary to consider what thelegal position would have been had the accusod been unaware that hispursuers, or any of then), were police officers in lawf.il exercise of theirduty, for we consider that there was sufficient evidence, direct andcircumstantial, to enable tho jury to ooncludo that tho accused musthave known, or had reason to believe, that the party in pursuit of himw:is a police party. In these circumstances the “ explanations ”, givenat the end of section 92 in the Penal Codo, would not apply so as topreserve his right of private defence against them.
The other point argued before us raises a question, which to our mindsadmits of no serious doubt, regarding the scope of section 92 (1) of thePonal Code. Section 92 (1) reads as follows:—“ There is no right ofprivate defence against an act which does not reasonably cause theapprehension of death or of griovous hurt, if done, or attempted to bedone, by a public servant acting in good faith under colour of his office,though that act may not be strictly justifiable by law It is contendedthat under this section an accused person is entitled to plead tho rightof private defence against an act of a public servant which causes himreasonable apprehension of death or grievous hurt, even where that actdid not itself constitute an “ offence Applying this contention totho facts of the present case it is argued that, even if tho police party,in order to prevent tho accused from evading arrest, would have beenjustifiod if necessary in causing him grievous hurt or oven killing him,and even if therefore their acts did not constitute any ofT-mco and theirthroats to shoot were not threats to commit any offence, neverthelessthe accused was entitled to fire at them in self-defence because theiracts and their threats, whether justified or not, did in fact put t he accusedin a reasonable apprehension of death or grievous hurt.
This in our view is a misreading of section 92 (1). That section merelystates that in certain circumstances an accused, who but for the sectionmight have pleaded the right of self-defonce, shall not be entitled to doso. It does not itself confer any right of private defence, nor does itenlarge tho right of private defence which is conferred by other sectionsin tho Penal Code. The section which allows an accused to plead theright is section 89, and tho sections which confer the right of privatedefonce of the body are sections 90, which does so in general terms, andsection 93, which sets out the circumstances where tho right may extendto the causing of death. Both sections 90 and 93 clearly lay down thatthe act occasioning the exercise of the right of private defence must boan “offence”. Nothing in the purely nogativc section 92 takos awayfrom this positive requirement of sections 90 and 93. Section 93 requiresthat the act must not only be an assault causing reasonable apprehensionof death or grievous hurt, but must itself have constituted an offcnco.
Accordingly in our view the learned trial Judge was right in pointingout to the jury that if what the police party did was not an offonco,then the accused (who on the evidence must have known that they werea police party attempting to arrost him) could not avail himself of theright of private defence. Nor was there any necessity for the learned
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Judge to make any reference to section 92 (1), whose negative provisionswere inapplicable in the present case, where the acts and throats of thepolice did cause apprehonsion of death or grievous hurt. Regardingthe question w hether the police were themselves committing any offencethe learned trial Judge rightly referred to the evidence that the accusedwas reasonably suspected of having committed a murdor, to the evidencethat he was. evading arrest and that the polico were endeavouring toarrest him, and to the provisions of section 23 of the Criminal ProcedureCode, whereunder in such circumstances the polico, in effecting tho aTrest,would be justified if necessary in going even so far as to cause the deathof the accused. In these, circumstances it was clear that the police worecommitting no offence in shooting or threatening to shoot the accused(who was armed), after warning him, and that accordingly the accusedwas not entitled to plead tho right of private defence.
For these reasons we would dismiss the application and tho appeal.
Application and appeal dismissed.