CHANDRA AND ANOTHER
V
ATTORNEY GENERAL
 
 

COURT OF APPEAL
RANJIT SILVA,J
SISIRA DE ABREW,J
CA 120-121/99
HC AVISSAWELLA 117/93
SEPTEMBER 18, 2007 

Penal Code - Section 77- Section 296-Murder-Plea of insanity- Taken up In the Appellate Court - Criminal Procedure Code-Section 338-Evidence Ordinance

Section 105-Mc-Naughtons Principle-general or special exceptions cannot be presumed-Burden on whom? - Beyond reasonable doubt or on a balance of probability?

The three accused-appellants and another were charged under Section 296- tried, convicted and sentenced to death.

It was contended in the appeal that the accused was insane at the time he committed the offence, the plea of insanity was not taken at the trial, the Court of Appeal is empowered under Section 388 of the Code to consider whether the accused was insane at the time he committed the offence.

HELD:
 

(1) If there was material the trial Judge should have considered, which had not been considered, the Appellate Court can interfere In a situation where the intervention is necessary. In the instant case there is no reason to Interfere as the trial Judge has considered the evidence whatever that was available to him-The evidence did not show that the accused was insane at the time of the incident.

(2) General exceptions or special exceptions cannot be presumed and the presumption should be against the existence of such circumstances.

(3) If a person seeks to excuse himself upon a plea of Insanity it is for him to make it clear that he was insane at the time of committing the offence charged. The onus rests on him and the jury must be satisfied that he was actually insane.

(4) Burden in cases in which an accused has to prove insanity may fairly be stated to be no higher than the burden which rests upon the plaintiff or defendant in civil proceedings. In other words insanity, need not be proved beyond reasonable doubt but on a balance of probability like in a civil case.

APPEAL from a judgment of the High Court of Avissawella.

Cases referred to :
 

(1) Piyadasa v. Queen - 73 NLR 209 (distinguished)
(2) K v. Abraham Appu - 40 NLR 505
(3) K v. Don Nikulus Buiya - 43 NLR 385
(4) Perera v. Republic of Sri Lanka - 1978-79-2 Sri LR 84

Ranjith Abeysuriya PC with Thanuja Rodrigo for accused appellant Yasantha Kodagoda DSG for A. G

Cur. adv. vult.

September 18, 2007
RANJIT SILVA, J.

The three accused - appellants in this case along with another accused who was not among the living at the time of the trial, were charged under Section 296 of the Penal Code for murder. They were tried and convicted and were sentenced to death. This appeal by the 1st and the 2nd accused is against the said convictions and sentences

The learned President s Counsel for the accused-appellant submitted, citing the case of Piyadasa vs. Queen(1) that even though the plea of insanity was not raised at the trial this Court is empowered under Section 338 of the Criminal Procedure Code to consider whether the accused was insane at the time he committed the offence . We have perused the relevant case that was cited by the Counsel for the accused - appellant What was held in that case was that it was open to the Court of Criminal Appeal to cause the accused to be subjected to psychiatric examination if necessary, to quash the sentence in terms of Section 64 of the Court of Criminal Appeal Ordinance, presently Section 338 of the Criminal Procedure Code. In that case what happened was although the plea of insanity was not raised at the trial, the circumstances transpired in evidence led at the trial indicated that the killing had been done by a person of unsound mind. The fact that the deceased was murdered brutally, that there was no motive, and the fact that it was a senseless killing no doubt, influenced the minds of their Lordships. That was a case tried by a jury and their Lordships were of the opi