IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.

In the matter of an appeal in terms of Section 331 of the code of Criminal Procedure Act No: 15 of 1979 and in terms of Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Hon. Attorney General Attorney General’s Department Colombo 12.

Court of Appeal Case No:

CA / HCC / 0225 / 15 Complainant Vs.

High Court of Polonnaruwa Case No: Meragalage Chandana Pushpa HC 07 / 14 Kumara Perera Accused AND NOW BETWEEN Meragalage Chandana Pushpa Kumara Perera Accused – Appellant Vs.

Hon. Attorney General Attorney General’s Department Colombo 12. Respondent Before: Menaka Wijesundera J.

B. Sasi Mahendran J.

Counsel: Anil Silva P.C. and S. Neranga for the Accused – Appellant.

Rohantha Abeysuriya, ASG for the State.

Argued on: 20.06.2023 Decided on: 19.07.2023 Menaka Wijesundera J.

The instant appeal has been lodged to set aside the judgment dated 17.12.2015 of the High Court of Polonnaruwa.

The accused appellant (hereinafter referred to as the appellant) has been indicted for committing the murder of his infant child born out of wedlock.

The version of the prosecution is that the appellant who had been living next to the house of the deceased has been having an illicit affair with the deceased mother and on the day of the incident the appellant had come to the house of the deceased and had cut her to death. She also had been previously assaulted by the appellant and had been permanently disabled. Thereafter the appellant had run off and had been evading arrest.

The main ground of appeal by the appellant is that, 1) The appellant has a history of mental ill health and neither the High Court nor the Magistrates Court had acted under section 375 and 374 of the Code of Criminal Procedure Code (herein after referred to as the CPC) and as such he had not been given a fair a trial.

2) When the Magistrate had failed to consider his mental health, the appellant had not been properly committed to the High Court and thereby it vitiates his conviction in the High Court.

On perusal of the case record we find that initially when the appellant had been indicted the state counsel had made the application to the High Court to obtain a report with regard to the metal health of the appellant because in the Magistrates Court as per V1 the Polonnaruwa Consultant Psychiatrist the appellant had been diagnosed as being of “unsound mind and is not fit to plead “and he had recommended treatment at the Angoda hospital.

As such the High Court had obtained a report from Dr Neil Fernando who also had been the retired Consultant Psychiatrist at Angoda hospital and he has said that the appellant “is fit to plead “and that he “may” have been of good health at the time of the commission of the offence.

Hence the High Court Judge had not acted under section 375 of the CPC which is quoted below and had proceeded to trial and had convicted the appellant for the charge of murder. The trial judge had stated in his judgment that the report submitted in the Magistrate Court is not comprehensive enough but Dr Neil Fernando has gone in to a more detailed examination of the patient. But we find that the trial judge had failed to act under section 375 of the CPC which says that, “375 (1) If any person committed for trial before the High Court appears to the court at his trial to be of unsound mind and consequently incapable of making his defense, the jury or (where the trial is without a jury) the Judge of the High Court shall in the first instance try the fact of such unsoundness and incapacity, and if satisfied of the fact find accordingly and thereupon the trial shall be postponed.”

In view of the above section if the accused has a history of unsound mind the trial judge has to ascertain that the accused is of good health and is capable of understanding the charge against him and then act accordingly. But in the instant matter the trial judge had solely relied on the report of Dr Neil Fernando and h