H. N. G. FERNANDO, C.J. — Kumarasinghe v. The State
[Court of Criminal Appeal]
1973 Present : H. N. G. Fernando, C.J. (President), Deheragoda, J.,and Rajaratnam, J.KUMARASINGHE, Appellant, and THE STATE, RespondentC. C. A. Appeal No. 29 of 1973, with Application No. 31S. C. 578/72—M. C. Kurunegala, 77984
Charge of murder—Mitigatory plea of sudden fight or grave and suddenprovocation—Misdirections—Penal Code, s. 294, Exceptions 1 to 5—Position when there is no evidence of any of the Exceptions.
In a prosecution for murder, the trial Judge’s directionsconcerning the Exception of sudden fight included the followingstatement: —
“So the law says you cannot attribute to a person who acts insuch a situation the murderous intention. But, gentlemen, thelaw says he should have known when he caused those injuriesthat it was likely to result in death and, therefore, the offence ofmurder gets reduced to one of culpable homicide not amountingto murder.”
Held, that the statement did not correctly set out the law. Any ofthe five Exceptions specified in section 294 of the Penal Code isapplicable in a case, and only in a case, in which an accused hascaused death with murderous intention.
Held further, that, in the instant case, in the absence of anyevidence which could bring into operation any of the five Exceptionsspecified in s. 294 of the Penal Code, the only alternatives open to• the Jury were, either to convict the prisoner of the offence ofculpable homicide not amounting to murder on the ground that hehad only the knowledge that his act was likely to cause death or elseto convict him of murder if they were convinced that he had actedwith a murderous intention. The distinction. between such“ knowledge ” and “ murderous mtcntion ” was not brought to thenotice of the Jury in the passage from the charge cited above.
A. PPEAL against a conviction at a trial before the SupremeCourt.
W. H. Perera (Assigned), for the accused-appellant.
Ranjith Gunatilleke, State Counsel, for the State.
Cur. adv. vult.
October 8, 1973. H. N. G. Fernando, C.J.—
The prisoner in this case was convicted of the murder of on-Gunarathhamy and was sentenced to death.
1 •—A 08589—3,0001(74/08)
H. N. G. FERNANDO, C.J.— Kumarasinghe v. The State
Having dealt with the facts in his charge to the Jury, thelearned Commissioner directed the Jury regarding the verdictwhich could be returned, if the prosecution had establishedbeyond reasonable doubt that it was this prisoner who caused thedeath of the deceased man.
These directions commenced with the explanation of theoffence of. murder and of what is in law “a murderousintention ” ; the Jury were instructed that if a murderousintention was established in this case, the prisoner had to beconvicted of murder.
There was no evidence indicating that the prisoner may haveassaulted the deceased man in a course of a sudden fight orunder grave and sudden provocation. Nevertheless the directionswhich followed in the charge to the Jury dealt with theexception of sudden fight, and the Jury were directed that, ifthey took the view that there was a sudden fight between theprisoner and the deceased man, “ the offence of murder would bereduced to one of culpable homicide not amounting to murder. ”These directions concerning sudden fight included the followingstatement: —
“ So the law says you cannot attribute to a person whoacts in such a situation the murderous intention. But,gentlemen, the law says he should have known when hecaused those injuries that it was likely to result in deathand, therefore, the offence of murder gets reduced to oneof culpable homicide not amounting to murder. ”
With respect we must observe that this statement does notcorrectly set out the law. Any. of the five Exceptions specifiedin s. 294 of the Penal Code (including the Exceptions dealingwith provocation and sudden fight) is applicable in a case, andonly in a case, in which an accused has caused death with themurderous intention ; if the mitigating circumstances set out inany of these Exceptions are established, the occasion can neverarise for “ the offence of murder to get reduced to one of culpablehomicide not amounting to murder”, since the effect of such anException is that the accused is guilty only of culpable homicidenot amounting to murder, despite the fact that he did entertain amurderous intention, lit is not therefore correct that in such acase the law does not attribute to the accused a murderousintention, and only attributes to him the knowledge that his actis likely to result in death.
In the instant case, in the absence of any evidence which couldbring into operation any of the five Exceptions specified in s. 294,the only alternatives open to the Jury were, either to convict the
H. 2r. G. FERNANDO, C.J.—Kumaraainghe-v. The State
prisoner of the offence of culpable homicide not amountingto murder on the ground that he had only the knowledge thathis act was likely to cause death or else to convict him of murderif they were convinced that he had acted with a murderousintention.
The distinction between such “ knowledge ” and “ murderousintention ” was not brought to the notice of the Jury in thepassage from the charge which we have cited above. In factthat passage could well have created the impression that the lawattributes the murderous intention to an accused unless he isshown to have acted in a course of a sudden fight.
The next passages in the charge to the Jury dealt with thepossibility that the offence of murder is reduced to one ofculpable homicide, if the accused had acted under grave andsudden provocation. These passages were followed immediatelyby the following statement : —
“ If you are not satisfied that the accused had a murderousintention at the time he inflicted the injury, then you willproceed to consider whether the accused knew that therewas the likelihood of his causing the death of the deceased,in which event your verdict will be one of culpable homicidenot amounting to murder on the ground of knowledge. ”
The statement which we have just cited is the only passagein the charge which referred to knowledge of the likelihood ofcausing death as opposed to the murderous intention. But eventhis statement occurs in a context in which the learned Commis-sioner was referring to a possible verdict of culpable homicidenot amounting to murder, on the ground of grave and suddenprovocation. There was thus no clear direction that, quiteindependently of any question of a sudden fight or of provocation,a verdict of culpable homicide should be returned, if on theevidence the Jury could reach beyond doubt only the conclusionthat the prisoner acted with the knowledge that his act waslikely to cause death. In the absence of a clear and separatedirection to this effect, the possibility of returning a verdict onlyof culpable homicide on the available evidence was virtuallywithdrawn from the Jury.
For this reason we allowed the appeal, and we substituted forthe verdict and sentence a verdict of culpable homicide notamounting to murder and a sentence of 10 years’ rigorousimprisonment.
I. KUMARASINGHE, Appellant, and THE STATE, Respondent