[IN THE COURT OF CRIMINAL APPEAL]

1962 Present: Basnayake, C.J. (President), Herat, J., and
G. P. A. Silva, J.

THE QUEEN v. A. O. RODRIGO

APPEAL No. 95 OF 1962, WITH APPLICATION No. 104

 S. C. 299-M. C. Colombo, 47,227 /B

Right of private defence-Misdirection-Penal Code, s. 92 (3).

     Section 92 (3) of the Penal Code which provides that " there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities " does not apply to a case where a person is set upon by his assailant and there is imminent danger of death or grievous hurt, but to a case where the attack is known beforehand and the time is sufficient to have recourse to the protection of the public authorities.

APPEAL against a conviction in a trial before the Supreme Court.

               M. M. Kumarakulasingham, with J. V. C. Nathaniel (assigned), for Accused-Appellant.

               T. A. de S. Wijesundere, Crown Counsel, for Attorney-General.

October 31, 1962. BASNAYAKE, C.J.-

    The appellant was indicted with the offence of murder of Appu Arachchige Edmond Perera alias Lasan Perera. The jury returned a unanimous verdict of guilty and Le was sentenced to death.

      The deceased and the appellant were neighbours and the houses in which they lived were on either side of the same road and opposite each other. The appellant lived with his father. There appears to have been displeasure between them over the killing of a fowl belonging to the deceased by the appellant's father. On the day on which the deceased was fatally injured his son, Pearl Kumar, a boy of 13 years was engaged in his studies when he heard a noise in the front of his garden. He rushed in that direction with a bottle lamp accompanied by his younger brother and saw the appellant dealing repeated blows on the deceased. As the neighbours rushed to the scene the appellant went away. There is no other evidence for the prosecution as to the circumstances in which the deceased met with his death.

     It is common ground that the appellant tended his father's bull and was in the habit of going to cut grass for it every evening. On the day in question the appellant states that he was on his way home with grass in a gunny bag on his shoulder when the deceased who appeared to have taken liquor came towards him with a knife in hand saying, " You have killed a fowl belonging to us. I will stab you with this knife and kill you. " The appellant says that he dropped the bag of grass and pulled out a stick from a fence and struck the deceased. The deceased rushed into his garden abusing him. The spot at which this incident took place was closer to the deceased's house than the appellant's. The appellant denied that he followed the deceased into his garden and struck him further blows. The appellant's version is the only evidence as to the events that preceded the attack. The main difference between the version of the prosecution and the version of the defence is that according to the former the deceased was struck in his own garden and according to the latter he was struck on the road.

     The learned Commissioner directed the jury on the exceptions of private defence and grave and sudden provocation. Learned counsel for the appellant complains that the direction on the exception of private defence is wrong in law. He particularly draws our attention to two passages in the summing-up which are as follows :-

     " The learned counsel for the defence read out a passage to you from Ratanlal where a person attacked while doing a lawful act is entitled to stand his ground and defend himself and the law does not intend that he should run away to have recourse to the protection of the public authorities. That I notice comes under the portion relating to the right of private defence of property. I have examined one of the cases referred to in that passage and it relates to th