[COURT OF CRIMINAL APPEAL.]

1946 Present : Keuneman S. P. J. (President), Wijeyewardene
And Jayetileke JJ.

THE KING v. KIRINELIS.

Application 162 of 1946.

S. C. 27-M. C. Colombo, 8,673.

Charge of murder-Plea of self-defence-Right of self-defence exceeded-Proper direction relating to culpable homicide not amounting to murder-Duty of Court to explain special nature of ? intention ? in Penal Code, 8. 294, Exception 2.

The intention which referred to in section 294, Exception 2, of the Penal Code is a special kind of intention and should be explained to the Jury. In order to earn the clemency of the exception the harm caused must have been caused solely with the intention of private defence.

APPLICATION for leave to appeal against a conviction in a trial before the Supreme Court.

F. A. Hayley, K. C. (with him K. A. P. Rajakaruna and S. Saravanamuttu), for the accused, applicant.

H. A. Wijemanne, C. C., for the Crown.

October 1, 1946. KEUNEMAN S. P. J.-

The accused was convicted of murder. The principal matter argued in this application was whether the learned trial Judge gave a proper direction to the Jury. The defence of the accused was that he had acted under grave and sudden provocation. On that the trial Judge gave the Jury a full and adequate direction. The trial Judge however went further and put before the Jury the defence that the accused was acting in the exercise of the right of private defence. Counsel for the accused does not appear to have raised this defence but the trial Judge very properly dealt with this matter also because the evidence led by the accused indicated this defence as well.

The trial Judge quoted to the Jury the terms of section 294, Exception 2, of the Penal Code which runs as follows :-

?Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law, and causes the death of the

person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence.?

and stated-

?Then I would say a word or two, although Crown Counsel, from his point of view quite properly, did not refer to the matter, and that is with regard to the other possible plea of self-defence, because the accused himself gave his evidence in those terms. He said he was struck and kicked and he fell, and then he was afraid; the implication of that appears to be that he was afraid he might be either injured or even killed and therefore acted in self-defence.

?Now, in short, Gentlemen of the Jury, the right of private defence may be put in this form. Every human being is entitled to defend his body against any offence affecting the human body. You and I are entitled to defend ourselves against any attack on our bodies, but that right is subject to two exceptions. It is necessary for me to invite your attention to one, and that exception says that in the course of defending yourself against an offence affecting your body you must not do more harm than is necessary for the purpose of defending yourself. In other words, if I attack you in some way you cannot take the occasion to cause me wanton harm; you must cause me such harm as is necessary for you to defend yourself.

?I mean, looking at it reasonably, you cannot expect a man to measure and weigh his retaliation very accurately, but on a reasonable view you must not exceed the limits placed by the law; that is to say, you must not do more harm than you need for the purpose of defending yourself. In this case, Gentleman of the Jury, if the accused was struck and kicked and he fell there was certainly an offence against his body; then the only question is whether in defending himself he kept within the law or whether he exceeded it; in other words, did he do more harm than was necessary to defend him