ASVANKHAN VS. THE ATTORNEY GENERAL

ASVANKHAN VS. THE ATTORNEY GENERAL

COURT OF APPEAL
SISIRA DE ABREW, J AND
JAYATHILAKE, J
CA 113/2007
HC TRINCOMALEE HCT/18/2004
MARCH 15, 2013

Penal Code - Section 295 - Section 296 - Section 297 - Convicted of murder - Sentence of death passed - Can the Court convict an accused person for culpable homicide not amounting to murder if such defence was not taken by the accused person?

The accused - appellant was convicted of the murder of one K and sentenced to death. According to the medical evidence the Doctor had found only one stab injury which was on the abdomen. The depth of the injury was only 5 - 6 centimeters deep.

Held:

(1) Court has a duty to consider whether the accused should be convicted of culpable homicide not amounting to murder even if the accused does not raise such a defence provided such a defence is available in the prosecution evidence.

(2) On the totality of the evidence the accused - appellant who inflicted the injury had only the knowledge that his act was likely to cause death but he did not have any intention to cause death. In such circumstances the accused - appellant cannot be convicted of the offence of murder but should be convicted only of the offence of culpable homicide not amounting to murder.

APPEAL from the judgment of the High Court of Trincomalee.

Cases referred to:

1. King vs. Albert Appuhamy - 41 NLR 505

2. King Vs. Bellanvithanage Edvis - 41 NLR 345

N. G. Saabir Sawaad with U.L.S. Marikkar for accused - appellant.

Ayesha Junasena DSG for Attorney General.

March 15th, 2013

SISIRA DE ABREW, J.

Accused-appellant produced by the Prison Authorities is present in Court.

Heard both counsel in support of their respective cases.

The accused-appellant in this case was convicted of the murder of a man named Asadeen Kurkhan and was sentenced to death. Being aggrieved by the said conviction and the death sentence, he has appealed to this Court. The facts of this case may be briefy summarized as follows. On the day of the incident around 7.30 a.m. when the deceased person and a boy named munas who was working under the deceased person were going on their bicycles towards the cattle shed of the deceased person, the accused-appellant joined them before they reached the cattle shed. Thereupon all three went near the cattle shed. When they reached near the cattle shed, munas, on the direction of the deceased person, went further towards the cattle shed. A few seconds later when munas turned back, he saw the deceased person lying fallen on the ground with a bleeding injury and the accused-appellant running away from the place where deceased was lying fallen. The deceased person died due to the stab injury caused by the accused-appellant. The post-mortem examination revealed that the deceased person had sustained an injury on the abdomen and the depth of the injury was 5 - 6 centimeters. The Doctor found only one stab injury. The case for the prosecution depended on the evidence of munas. We have no reasons to doubt the credibility of munas. In our view, munas has spoken the truth.

Learned counsel appearing for the accused-appellant did not even challenge the credibility of witness, munas. When we consider the evidence of munas, we hold the view that the accused-appellant has inflicted an injury on the abdomen of the deceased person. The accused person did not even make a dock statement. When we consider the facts of this case, the question that must be decided is whether the accused-appellant is guilty of murder or culpable homicide not amounting to murder on the basis of knowledge. We regret to note that the learned trial Judge has not considered this aspect. Can the Court convict an accused person for culpable homicide not amounting to murder if such defence was not taken by the accused person but when the evidence of the prosecution reveals such a defence? Answer to this question is found in the judicial decisio

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