WASANTHA CHANDRA
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- S77, S296 - Murder - Criminal Procedure Code - S64, S338 -Plea of Insanity- Could it be raised in the appeal ? Is delusion a mental disease that amounts to insanity? Mc Naughton's principles- Burden of proof ? Provocation - Evidence Ordinance - S105

The three accused- appellants along with another accused (dead at the time of trial) were charged under S296 - convicted and sentenced to death.

It was contended that, even though the plea of insanity was not raised at the trial the appellate Court is empowered under S338 of the Code to consider whether the accused was insane at the time he committed the offence.

Held:

(1) If there was material to show insanity the trial judge should have considered, if it has not been considered the Court of Appeal can intervene in a situation where the intervention is necessary.

(2) When a plea of insanity is raised the person who relies on that plea must prove it on a balance of evidence-on M' Naughton's principles'.

(3) Insanity need not be proved beyond reasonable doubt but on a balance of probability like in a civil case.

(4) In the instant case facts disclose that there was a strong motive for the accused to murder the three deceased, namely a land dispute. Therefore the bestiality or the brutality of the accuser's act cannot be interpreted in his favour in a situation where there was a motive for killing.

Appeal from the judgment of the High Court of Avissawella.

Casses referred to:

1. Piyadasa vs. The Queen -73 NLR 209
2. King vs. Abraham Appu - 40 NLR 505
3. King vs. Don Nikalas Buiya - 43 NLR 385
4. Perera vs. Republic of Sri Lanka -78-79 - 2 Sri LR 84

Ranjith Abeysuriya PC with Thanuja Rodrigo for accused-appellant.

Yasantha Kodagoda DSG for Attorney General.

September 18,2007

RANJITH SILVA J.

The three accused-appellants in this case along with another accused who was not among the living at the time of the trail, 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 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 opinion that, when there was some evidence showing mental unsoundness the trial Judge should have directed the jury to consider that aspect. The trial Judge had not done that in that

case. In contrast in the present case the trial Judge has considered whatever the evidence that was there especially, Dr.Waidyasekara's evidence and also the evidence of Hemalatha, the sister of the 1st accused before he reached his decision.

In this case on an examination of the evidence of Dr.Waidyasekera at page 526 of the