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| Thursday, 3 July 2003 |
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The Court of Appeal has set aside the conviction and sentence of death passed on a murder accused substituting it with a 8-year prison term after concluding that the offence amounted to culpable homicide not amounting to murder on the basis of knowledge.The Bench comprised Justices Chandradasa Nanayakkara and Jagath Balapatabendi. The judgement by Justice Nanayakkara said, The accused-appellant who was indicted with having committed murder of one Kaluwa Hakura Anura Piyantha under Section 296 of the Penal Code was convicted and sentenced to death after a non jury trial by the learned High Court judge of Balapitiya. According to the principal prosecution witness in the case, the deceased and the witness along with two others had attended a party held by a Provincial Council member, on the day following the Provincial Council elections to celebrate his victory at the election. Thereafter the witness and the deceased after having consumed liquor at the party had gone to a boutique owned by the sister of the accused in order to buy some cigarettes. The deceased having bought some cigarettes at the boutique and handed them over to the witness who was standing about 15-20 feet away near a bus halt, and had gone back again to the same boutique. At this point of time the witness had heard some cries of distress emanating from the direction of the boutique and had seen the deceased coming towards him followed by the accused. Thereafter the accused had struck the deceased on his back and had run away from the scene. The deceased who had collapsed after he was struck by the accused had sustained 2 serious injuries and 4 minor injuries. When the evidence of this case is examined it is evident that there was not evidence of animosity or enmity between the accused and the deceased prior to the alleged incident. It is apparent that the deceased (after having consumed liquor at the party) had gone to the boutique of the accused's sister of his own free will. It is incomprehensible as to why the deceased went back to the boutique after handing over cigarettes to the witness. it may be that the deceased who was after liquor, went back to the boutique after handing over the cigarettes to the witness in order to pick up a row with the accused. The evidence clearly shows that the accused had not gone in search of the deceased in order to commit this aggression on the deceased nor did the accused expect the deceased to show up at the boutique at that time of the day. Their meeting was unexpected and the evidence does not point out to any premeditation and preplan. Apart from 4 minor injuries, the deceased had sustained only two serious injuries. In the face of this evidence, the failure on the part of the learned High Court Judge to consider adequately lesser culpability of the accused under the proviso to section 297 on the basis of knowledge in our view has prejudiced the accused. Therefore, in view of the above-mentioned circumstances and also having considered the submissions of Counsel, we set aside the conviction for murder and substitute therefore a conviction for culpable homicide not amounting to murder on the basis of knowledge, and sentence the accused-appellant to a period of 8 years from the date of conviction. Subject to this variation the appeal is dismissed. Dr. Ranjit Fernando appeared for the Accused-appellant while V. Malalgoda appeared for the Attorney General. |
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