King V. Wannaku Tissahamy

[COURT OF CRIMINAL APPEAL]

1949 Present: Windham J. (President), Basnayake J. and Gratiaen J.

Present : Windham J. (President), Basnayake J. and Gratiaen . J.

THE KING v. WANNAKU TISSAHAMY

Appeal No. 53 of 1949 with Application. No. 146

S. S. 25-M. C. Badulla, 12,571

Court of Criminal Appeal-Private defence against act of public servant-Scope of section 92 (1) of Penal Code-Summing up-Criminal Procedure Code, s. 23- Penal Code, ss. 89, 90, 92 (1), 93.

An accused person is not entitled to plead the right of private defence against an act of a public servant which caused him reasonable apprehension of death or grievous hurt if the act of the public servant did not constitute any offence and was justified in law. In such a case there is no necessity for the presiding Judge to make any reference to section 92 (1) of the Penal Code in his summing-up.

APPEAL, with, leave to appeal, against a conviction in a trial before a Judge and Jury.

C. E. Jayewardene, with G. F. Sethukavalar, for accused appellant.

R. R. Crossette-Thambiah, Solicitor-General, with Douglas Jansze, Crown Counsel, for Attorney-General.

Cur. adv. vult.

October 20, 1949. WINDHAM J.-

The appellant was convicted on 14th September, 1949, at the Kandy Assizes, of attempted murder, and sentenced to 18 months' rigorous imprisonment. The charge was that the appellant, on 6th December, 1932, shot and injured Police Constable H. D. S. Appuhamy with a gun in circumstances amounting to attempted murder. The appellant escaped arrest and since the commission of the offence he appears to have lived in the jungle in the Veddah country and it was only upon his giving himself up some seventeen years later that he was charged.

The story of the prosecution witnesses, Police Constable Appuhamy (the injured man) and Sub-Inspector Dissanayake established that the accused was reasonably suspected of having committed a cognizable offence, namely murder, and that police search had been made for him. On the day of the incident, a police party went in search of him, among whom were the witnesses police constable Appuhamy, who carried a cartridge gun, and sergeant (later sub-inspector) Dissanayake, who carried a rifle. They found the accused and his son in a chena.

Constable Appuhamy approached him. What then happened is related by Appuhamy in the following words:-"On hearing the rustling of dried Indian corn leaves the accused looked in my direction. ,At that time he was about 25 to 30 yards away from me. At the time accused looked at me his son was close by him. When they saw me both of them took to their heels and ran down the chena. I asked them to stop and gave chase and while running I fired one shot in the air saying 'Don't run. If you run I will shoot'. The accused and his son ran in two different directions and I chased after this accused. I do not know in which direction his son ran. I watched this accused who got down a slope of that chena, turn round and pointing a gun at me he squatted near a "kandura'-stream. Accused had the gun even when he was plucking Indian Corn. I thought accused would shoot at me and therefore I took cover behind a tree close by. I did not see Police Sergeant Dissanayake at that time. I took cover and could not see accused but accused was also there. I was frightened to advance and in order to make him fire I spread out my rain-coat which I was wearing to invite the accused to shoot. I waited a while but accused did not discharge his gun and I then advanced. Accused then fired. Q. Did you see who fired? ... I did not see accused fire, but this accused got up from where this shot came and took the gun and ran away. I got the shot and ran a short distance and collapsed".

Sub-Inspector Dissanayake's version of the occurrence was as follows: - " We entered the chena and there were some dogs near this accused and the other person who was there with the accused. As we scal

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