KIRIBANDA
V.
THE ATTORNEY GENERAL

COURT OF APPEAL
BALAPATABENDI, J AND
SISIRA DE ABREW. J
C.A NO. 13/2003
H.C BADULLA NO.62/1997
MAY 31ST 2005

Penal Code - Section 79 - Intoxication- offence requiring particular intent or knowledge committed by one who is intoxicated - Burden of proof -Evidence Ordinance - Section 105

The main ground urged on behalf of the appellant was that the convictions for murder should be reduced to culpable homicide not amounting to murder on the ground of drunkenness raised in the dock statement by the appellant.

HELD:

(1) Where in a case of murder, the defence of drunkenness is put forward under Section 79 of the Penal Code, the burden is on the accused person to prove on a balance of probability that he had reached the state of intoxication in which he could not have formed a murderous intention at the time the alleged act was done.

(2) If an accused raises a plea of drunkenness under section 78 of the Penal Code, it is for the accused person to prove on a balance of probability that by reason of intoxication there was an incapacity to form the intention necessary to commit the crime.

Per Sisira de Abrew, J.-

"Although the appellant said that he was drunk on the day of the incident, the above evidence suggests that the appellant was not in a state of intoxication at the time he attacked Bandara manika and Loku Manika .... I therefore hold that the appellant is not entitled to the benefit under Section 79 of the Penal Code".

Appeal from a judgment of the High Court of Badulla

Cases referred to -:

1. King V. Velaiden - 48 NLR 409
2. Ratnayake V. Queen - 78 NLR 481

Dr.Ranjith Fernando for the Accused -Appellant

Yasantha Kodagoda, S.S.sC. for the Attorney General

Cur.ad.valt

September 22nd, 2005
SISIRA DE ABREW. J.

The appellant, in this case, stood his trial at tine High Court of Badulla on two counts of murder and was convicted on both counts. The appellant was sentenced to death. This appeal is against the said convictions and the sentences.

According to the version for the prosecution, about 6.00 p.m on 7th February 1990 the appellant and the deceased Bandara Manika, the wife of the appellant, were seen coming to the compound of Loku Manika the mother-in-law of the appellant. At this time the appellant was assaulting his wife with his hands. Upon witness Nilupa Priyadarshani, the daughter of the appellant, informing Loku Manika of the incident Loku Manika rushed out of the house and asked the appellant as to why he was assaulting Bandara Manika. Since the Appellant did not respond, Loku Manika accompained Bandara Manika into the Kitchen. About 15 minutes later the appellant came into the Kitchen , took a pestle and assaulted both Bandara Manika and Loku Manika with the pestle. The blows alighted on their heads. Loku Manika, at this time , was bending and attempting to light the lamp, usually kept in the Kitchen. Nilupa and Inoka, in fear of being assaulted, ran away from the house.

The main ground urged on behalf of the appellant was that the convictions for murder should be reduced to culpable homicide not amounting to murder on the ground of drunkenness raised in the dock statement. Learned Counsel urged that the appellant was entitled to the benefit of section 79 of the Penal Code which reads as follows." In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had same knowledge as he would have had if he had not been intoxicated, unless the thing which

intoxicated him was administered to him without his knowledge or against his will."

To give the benefit under section 79 of the Penal Code the fact that" the accused did the act in a state of intoxication must be proved." It is necessary to consider who should prove it and to what degree it should be proved. In this connection it is pertinent to consider cer