077-NLR-NLR-V-71-THE-QUEEN-v.-E.-M.-EKANAYAKE.pdf
346
The Queen v. Elcanayake
[Court op Criminal Appeal]
1968 Present: H. N. G. Fernando, C.J. (President), Sirimane, J.,and Samerawickrame, J.THE QUEEN v. E. M. EKANAYAKEApplication No. 28 op. 1968
8. C. 11 of 1968—M. C. Kalmunai, 29381
Trtal for murder—Evidence that accused was drunk—Degree of intoxication—Questionof fact for Jury to decide.
Where, in a prosecution for murder, there is evidence that the accused wasdrunk when he inflicted the fatal injury on the deceased, a clear direction shouldbe given to the Jury that the question whether the degree of drunkenness wassuch as to negative murderous intention is a question of fact for them todecide.
SIRIMANE, J.—The Queen v. Ekanayake
847
Appeal against a conviction at a trial before the Supreme CJourt.
C. Oanesh (assigned), for the accused-appellant.
v
E. R. de Fonseka, Senior Crown Counsel, for the Crown.
June 18, 1968. Sxbimane, J.—
The appellant was indicted on two counts, one of Murder and the otherof Attempted Murder.
He was found guilty on the 1st Count and sentenced to death, and on the2nd count he was found guilty of causing simple hurt (under section 315)and sentenced to 2 years’ rigorous imprisonment. The appeal was pressed.on the conviction on the 1st count.
According to the prosecution, the appellant had come into the houseof the deceased armed with an electric torch and a knife, when the latterand one Herman were about to take their dinner, and stabbed thedeceased first, and then Herman who tried to interfere. The appellant'splea that he acted in self-defence after the deceased had invited him intothe house and set upon him with certain others was rejected. In the courseof the cross-examination of the widow of the deceased it was suggestedthat the injuries had been inflicted in the course of a fight in which theparticipants were drunk. It was Sinhalese New Year day, and there wasevidence that the deceased, Herman, and one Sarath who were in thehouse at that time, had taken liquor.
In the course of his evidence the appellant said that he had taken afair amount of liquor, and when examined further on the point said thathe and four others whom he named, had consumed a bottle of arrackshortly before this incident. In answer to Court, he stated that he hadtaken both arrack and gin on that day, and that he was drunk at thetime of this incident.
One Romiel, a witness for the prosecution, said that at about 7.30 p.m.that day, presumably very shortly before this incident, the appellantwho carried a torch and a knife kicked him for no apparent reason, andattempted to stab him as well. Though Romiel could not say whether theappellant was drunk or not, the impression created in his mind was thatthe appellant was behaving in a very queer manner, for, he says that heasked the appellant, “ Ekanayake, are you mad ? ".
There was therefore some evidence of drunkenness.
In this situation, we are of the view that a clear direction should haviTbeen given to the Jury, that the degree of drunkenness was a question offact for them to decide, and that if they were of the view that the appellantwas so drunk that he was incapable of forming a murderous intention,then he could only be found guilty of the lesser offence of culpablehomicide not amoimting to murder.
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Chandra de Silva v. Ambawatta
The learned Judge gave no direction at all on the question of drunken-ness except for a passing reference to it, when he was dealing with theplea of grave and sudden provocation. He said :
“ Certain other, defences also have been raised by him—the plea ofgrave and sudden provocation, for instance.”
Here, he explained to the Jury the law relating to an act done undergrave and sudden provocation, and continued—
“ Of course, in pits connection, you will also bear in mind his evidencethat he had taken a fair quantity of liquor, that he took some liquorin his house anil he had come here and taken liquor ; he says he wasdrunk. Of course, gentlemen, that is an abstract term. You have toconsider, having regard to his conduct, whether he was in a positionto understand. what he was doing.”
Once they rejected the plea of grave and sudden provocation, a layJury would not have known, in the absence of a direction, that they hadstill to consider the question of drunkenness quite independently ofthat plea. Had the law relating to drunkenness been adequatelyexplained to the Jury, it is impossible to say that they would still havefound the appellant guilty of the capital charge.
We therefore altered the conviction on the 1st count to one ofoulpable homicide not amounting to murder under section 297 of thePenal Code, and substituted a sentence of ten (10) years’ rigorousimprisonment.
Conviction altered.