AMARASEKARA
VS.
ATTORNEY GENERAL

COURT OF APPEAL
A.H.M.D. NAWAZ, J.
K.K.WICKRAMASINGHE, J.
CA 149/2012
HC PANADURA 1806/2004
September 15, 2015.

Penal Code - Section 296 - Convicted of culpable homicide not amounting to murder based on knowledge - Accused of unsound mind - Medical condition at commencement of trial - Criminal Procedure Code No. 15 of 1979 -Sections 279, 283, 304, 306, 375(1). 380, 381 - Protection of the rights of persons with Disabilities - Act 28 of 1996 - Mental Diseases Ordinance 1873 - amended 27 of 1956 - Does the Criminal Procedure Code provide for post conviction illnesses of mentally unsound convicts?

The accused - appellant was indicted for having committed the offence of Murder punishable under Section 296 of the Penal Code - He was convicted after the trial for the offence of culpable homicide not amounting to murder - and sentenced to 3 years of rigorous imprisonment.

The counsel for the accused appellant confined his appeal to the question of sentence - and contended that the record speaks for itself on the mental condition of the accused appellant, the accused had tried to commit suicide on a number of occasions, and he has been referred to a psychiatrist.

Held:

[1] Court is not denuded of jurisdiction to consider post conviction circumstances which are traceable to manifest items of evidence led.

[2] Criminal Procedure Code makes elaborate provisions for the initial investigation as to whether a particular accused is competent and fit to undergo his trial - Section 375 of the Criminal Procedure Code The procedure 'post' the acquittal upon a successful defense of insanity is also provided for under Code (Section 380) - 381 provides for a person acquitted on ground of unsoundness of mind to be kept in safe custody.

Per Nawaz J.

"I think it is appropriate to show the anomaly that exists in regard to accused appellant whose insanity is manifest on the record but evidence

sufficient to establish its proof on a balance of probabilities has not been successful thus resulting In their incarceration what could the appellate court do when circumstances during the appeal clearly manifest that the convicted prisoner still labours under hallucination and delusions such as the accused appellant in the instant case?"

Per Nawaz. J

"I think it fit to highlight these provisions in the hope that the Code of Criminal Procedure Act will be overhauled in the future to clothe the appellate court with sufficient statutory underpinning to facilitate suitable orders to be made in cases of this nature"

[3] With the kind of sustained derangement that the accused appellant has displayed we are of the view that it is a travesty to treat his case or even to actually treat it as if it were in the same degree of criminality as that of a professional assassin, or an armed robber who deliberately shoots a police officer or a security guard or a person who tortures, abuses and kills people for sadistic or sexual satisfaction.

Court made the following directions:

[1] The Commissioner General of Prisons is directed to assign a commissioner or a superintendent of prisons with the task of superintending the progress or regress of this particular accused-appellant under periodic treatment and to have necessary medical reports obtained.

[2] The periodic treatment has to be undertaken by competent medical personnel at the Medical Hospital in Angoda.

[3] If the detention of Accused-Appellant in the mental hospital is necessary for his betterment the Commissioner General of Prisons through the Commissioner or the superintendent of prisons in charge of the Accused-Appellant must convey the Accused Appellant to and detain turn in the mental hospital in Angoda for further treatment.

[4] This process of continued treatment has to continue till the expiration of the term of imprisonment ordered by the Court on appeal and if treatment i