BASNAYAKE, C.J.—The Queen v. Rodrigo
[In The Court of Criminal Appeal]
1902Present: Basnayake, C.J. (President), Herat,, J., andG. P. A. Silva, J.THE QUEEN v. A. O. RODRIGO
Appeal No. 95 of 1962, with Application No. 1048. G. 299—M. G. Colombo, 47,227(B
Right of private defence—Misdirection—Penal Cade, s. 92 (J).
Section 92 (3) of the Penal Code which provides that “ there is no right ofprivate defence in cases in which there iB time to have recourse to the pro-tection of the publio authorities ” does not apply to a case where a person isset upon by hiB assailant and there is imminent danger of death or grievoushurt, but to a case where the attack is known beforehand and the time issufficient to have recourse to the protection of the public authorities.
EAL against a conviction in a trial before the Supreme Court.
M. M. Kumarakulasingham, with J. V. C. Nathaniel (assigned), forAccused-Appellant.
T. A. de 8. Wijesifyidere, Crown Counsel, for Attorney-General.
October 31, 1962. Basnayake, C.J.—
The appellant was indicted with the offence of murder of AppuArachchige Edmond Perera alias Lasan Perera. The jury returned,a unanimous verdict of guilty and he was sentenced to death.
The deceased and the appellant were neighbours and the houses inwhich they lived were on either side of the same road and opposite eafchother. The appellant lived with his father. There appears to have-been displeasure between them over the killing of a fowl belonging tothe deceased by the appellant’s father. On the day on which thedeceased was fatally injured his son, Pearl Kumar, a boy of 13 yearswas engaged in his studies when he heard a noise in the front of his garden.He rushed in that direction with a bottle lamp accompanied by his-younger brother and saw the appellant dealing repeated blows on thedeceased. As the neighbours rushed to the scene the appellant wentaway. There is no other evidence for the prosecution as to the-circumstances in which the deceased met with his death.
BASNAYAKE, C. J.—The Queen v. Rodrigo
It is common ground that the appellant tended his father’s hull andwas in the habit of going to cut grass for it every evening. On the dayin question the appellant states that he was on his way home with grasain a gunny bag on his shoulder when the deceased who appeared to havetaken liquor came towards him with a knife in hand saying, “ You havokilled a fowl belonging to us. I will stab you with this knife and killyou. ” The appellant says that he dropped the bag of grass and pulledout a stick from a fence and struck the deceased. The deceased rushedinto his garden abusing him. The spot at which this incident took placowas closer to the deceased’s house than the appellant’s. The appellantdenied that he followed the deceased into his garden and struck himfurther blows. The appellant’s version is the only evidence as to theevents that preceded the attack. The main difference between theversion of the prosecution and the version of the defence is that accordingto the former the deceased was struck in his own garden and accordingto the latter he was struck on the road.
The learned Commissioner directed the jury on the exceptions ofprivate defence and grave and sudden provocation. Learned counselfor the appellant complains that the direction on the exception of privatedefence is wrong in law. He particularly draws our attention to twopassages in the summing-up which are as follows :—
“ The learned counsel for the defence read out a passage to youfrom Ratanlal where a person attacked while doing a lawful act isentitled to stand his ground and defend himself and the law doesnot intend that he should run away to have recourse to the protectionof the public authorities. That I notice comes under the portionrelating to the right of private defence of property. I have examinedone of the cases referred to in that j^ssage and it relates to this : thelaw does not require that when a person is being wrongfully deprivedof property of which he is in possession he should leave the thief aloneand run to the police at a distance. You see now, supposing somebodyis removing your money or removing something from your house,then of course you are entitled to act in the exercise of the right ofprivate defence and prevent the man from depriving you of theproperty. Now, there is this passage also in it: * No man has theright to take the law into his own hands for the protection of his personor property if there is reasonable opportunity of redress or recourseto the public authorities. The right of self-help when it causes or islikely to cause damage to the person or the property of another personmust be restricted and recourse to the public authorities must beinsisted on. If a person prefers to use force in order to protect hisproperty when he could for the protection of such property easily haverecourse to the public authorities, his use of force is made punish-able. The natural tendency of the law of all civilized states is torestrict within constantly narrowing limits "the right of self-help andit is certain that no other principle can be safely applied to a countrylike India.”
Karolis v. Assistant Commissioner of Agrarian Services
He proceeded to address the jury further—
“ Even if this man was not fully drunk, a man of 45 or 55 yearsaccording to the postmortem report, before he could advance thatdistance, was it not possible for the accused to have turned back andrun ? If he could have done that, and if he could have had recourse tothe public authorities for protection, then did he have the right to actin the manner he says he acted ? Then the question would also arise,
if the man was 12 feet away, was there reasonable apprehension that hewould be killed or grievous hurt would be caused to him ? I have notreferred to the evidence of both Pearl Kumar and Johanis regarding theaccused being seen going in the direction of the house about 5 p.m. byJuwanis about quarter of a mile away with a gunny bag of grass and byPearl Kumar that the accused actually turned towards his compoundwith a bull.”
The direction in the words underlined is wrong in law. Accordingto appellant’s version, there was no legal obligation on him to have runaway. He was justified in law in holding his ground and defending hisbody. Section 92 (3) of the Penal Code does not apply to a case wherea person is set upon by his assailant and there is imminent danger ofdeath or grievous hurt, but to a case where the attack is known before-hand and the time is sufficient to have recourse to the protection of thepublic authorities. We are unable to hold that the wrong directions oflaw contained in the passage underlined did not lead the jury to rejectthe appellant’s version. There was been a wrong decision of law andthe conviction must be quashed.
We accordingly quash the conviction and direct that a judgment ofacquittal be entered.
THE QUEEN v. A. O. RODRIGO