COURT OF APPEALJAYASURIYA, J.
CA. No. 194/95
H. C. COLOMBO 6904/94
21st SEPTEMBER. 1998
Murder – Penal Code S.294(l) – Plea of grave and sudden provocation -Attendant circumstances – Availability of plea of cumulative provocation.
The Trial Judge found the accused Appellant guilty of committing themurder of his girl friend and sentenced him to death.
The Accused Appellant had come from behind and asked the deceasedto stop, and thereafter had stabbed her twice and run away throughfear. Thereafter the accused Appellant had taken a bottle from hispocket and had drunk the contents of the bottle. The evidence revealedthat the love affair had blossomed to be a very close bond between-them. However it is also in evidence that whilst she was carrying onwith the accused Appellant, she had an existing love affair witfi ‘avillage lad and had secretly contracted a marriage by registering hermarriage.
On appeal it was contended that the attendant circumstances warranta subsitution for the conviction for murder of a conviction of culpablehomicide not amounting to murder on the basis of continuing andcumulative provocation.
Held : Per Kulatilaka J..,r.
“Our Judgments interpreted the phrase “sudden provocation”to mean that provocation should consist of a single act whjchoccurred immediately before the killing so that there was no time ’for the anger to cool and the act must have been such that it wouldhave made a reasonable man to react in the manner as the accuseddid.”
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Per Kulatilaka J.,
“Of late we observe a development in other jurisdictions wherecourts have taken a more pragmatic view of the mitigatory pleaof provocation … in a series of cases Court took into considerationthe prior course of relationship between the accused and hisvictim.”
The act of stabbing cannot be taken in isolation. The accusedAppellant’s ambition of becoming a Lecturer was shattered. Hecould not face the Campus community because he and M hadbeen seen as confirmed lovers in that community. His only,consolation had been M. He was losing her. The unusual behaviourreflects the mental agony and the strain that the accused wasundergoing because of the haunting thought that he was going to
It could be inferred that he had lost all self control at the point oftime he stabbed her. The brutal manner in which he attacked thegirl who was so precious to him. and the attempted suicide areindicative of the fact that he in fact had lost his self control at thetime of stabbing.
APPEAL from the Judgment of the High Court of Colombo.
Cases referred to :
Samithamby vs. Queen – 75 NLR 49.
Jan Muhammed vs. Emperor – AIR 1929 – Lahore -861.j3- . Nanavati vs. State ojMaharasthra – AIR 1962 – 605(SC).
4. “Amarfit Singh Sohan Singh – 1970 76 Crim LJ 835.
Cur. adv. vult..
Dr. Ranjilh Fernando with Gayan Perera for the accused – AppellentDappula De LAvera, Senior State Counsel for the Attorney – General.
July 27, 1999.
In this prosecution after a trial by the Judge, the learnedtrial Judge found the accused-appellant guilty of committing
the murder of his girl friend named Pushpa MaduwantiGunawardena on the 22nd of April, 1992 and convicted him ofthat offence and pronounced the sentence of death onhim. This appeal is against that finding, conviction and thesentence.
The main contention urged by the learned counsel who,appeared for the accused-appellant is that even though the(learned Trial Judge did give his mind to the’question whetherthe evidence in the case would justify the acceptance of a pleaof grave and sudden provocation in terms of Exception (1) setout in Section 294 of the Penal Code, he has failed to consider,whether the attendant circumstances of this particular,;case would warrant the availability of a plea of cumulativeprovocation.
The prosecution relied upon the evidence of two eye,witnesses, namely Celine Patrika Jayatilaka, a closeassociate of the deceased and PC 19096 Chandrasiri Banda,.who was manning the security post in the Kelaniya University.Campus at the time of the incident.
According to witness Patrika Jayatilaka she and Maduwantiwere final year undergraduate students at the KelaniyaUniversity. She knew the accused. He was a student in ajuniorbatch. The final year examinations for the year 1992 were tocommence on 22.4.92. Around 8 a.m. Maduwanti and Patrikaset forth towards the examination hall. As they enteredthe University premises Patrika saw the accused-appellant1coming from behind. Then the accused-appellant had madethe following utterance:
Witness Patrika had seen the accused-appellantcarrying a knife in his hand. At the behest of the accusedboth of them had stopped. Thereupon she saw the accusedr,appellant stabbing Maduwanti twice, while she was in a;
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standing position and then the witness had run away t hroughfear.
Chandrasiri Banda had witnessed the stabbing from adistance of about 50 yeards. He had seen the accused-appellant stabbing the deceased on her chest five or six timeswhile clutching her hair. Thereafter the accused-appellantfiad taken a bottle from his pocket, dropped the knife anddrank the contents of the bottle.
The defence did not challenge the fact that theaccused-appellant did in fact cause the death of Maduwantihy’inflicting stab injuries.
Patrika at the time she gave evidence was a teacher.The learned tried Judge has observed that Patrika wasreltictant to come out with the fact that the deceased wasvery close to her as a friend during their stay at theUniversity Campus. She told Court that Maduwanti wasjust another friend of hers in the University.
The learned trial Judge had observed that Patrika was nota truthful witness, in her testimony relating to the deceased’srelationship with/the accused-appellant during their stay attire Campus. She even went to the extent of saying that toher knowledge deceased Maduwanti and the accused-appellant were only friends and not in love. The defencewitness Kulasiri Bandara testified to the fact that it wasPatrika who was instrumental in arranging the loveaffair between Maduwanti and the accused-appellant. IfPatrika, had testified without supressing facts and utteringlies, the factual position would have been brought to lightin regard to the developments which ultimately came to aclimax with Maduwanti receiving murderous assaults at
v<»rv VinnHc of Vi#»r lnvf»r
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Premlal v. Attorney General
In this context the learned counsel for the accused-appellant invited Court to carefully scrutinize the evidenceelicited from the defence witness Kulatilaka Bandara aclose friend of the accused-appellant who in fact was hisroom mate at the Campus hostel, in order to come to a findingwhether the attendant circumstances of this particularcase would warrant a substitution of the conviction formurder by a conviction of culpable homicide not amountingto murder on the basis of continuing and cumulativeprovocation.
Until the judgment of Chief Justice H. N. G. Fernando inSamithamby vs. Queen111 (de Kretser, J. – dissenting) ourCourts followed a strict view in applying Exception (1) set outin Section 294 of the Penal Code. Our Judges followingtheir counterparts in England interpreted the phrase“sudden provocation” to mean that provocation shouldconsist of a single act which occurred immediately beforethe killing so that there was no time for the anger to cool andthe act must have been such that it would have made areasonable man to react in the manner as the accused did.Our Courts were reluctant to take into consideration anyspecial circumstances which manifested in the particularoffender’s case.
In Samitamby Chief Justice H. N. G. Fernando(Samerawickrema, J. agreeing) applying Exception (1) set outin Section 294 of the Penal Code expressed the view that eventhough in that particular case there was an interval of timebetween the affording of the provocation and the time of thestabbing, the evidence relating to the interim period made itquite probable that in fact the accused all the time sufferedunder a loss of self control.
Of late we observe a development in other jurisdictionswhere Courts and juries have taken a more pragmatic view ofthe mitigatory plea of provocation. In a series of cases inapplying the mitigatory plea of provocation Courts took into
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consideration the prior course of relationship between theaccused and his victim. Vide Jan Muhammad vs. Emperor®Nanauati vs. State of Maharastra!31 and Amarjit Singh SohanSingh!4* referred to in the article on “The Doctrine of ContinuingProvocation” by Dr. M. Somarajah published in the Journal ofCeylon Law, June 1971.
‘ In the latter case Sankaria, J. observed –
“The past conduct of the non earning father incoming home drunk daily . . . was already a standingand continuous source of provocation to the son whosemeagre earnings were hardly sufficient to meet the bareneeds of the family. The resentment that was building upin the mind of the son as a reaction to the continuousprovocative conduct of the father spread over the pastmonth or so, had reached a breaking point shortly beforethe occurrence when the drunken father set upon the sonwith a torrent of horrible oaths”.
In the instant case Patrika Jayatillaka a close associate ofMaduwanti in the University maintained a solemn silenceabout the past relationship of the accused-appellant withMaduwanti the deceased. Therefore it is necessary to have aclose scrutiny of the totality of the evidence led in this case inorder to ascertain whether this is a proper case where themitigatory plea of cumulative provocation should have beenadopted.
According to the defence witness Kulatilaka Bandarawho was the Principal of Mutukandiya Junior School atthe time of giving evidence, it was Maduwanti who hadexpressed her feelings towards the accused-appeUantand her willingness to start a love affair with the accused-appellant. At that point of time the latter had expressedhis reluctance to have a campus affair. His ambition hadbeen to study well and become a Lecturer. The fact thatMaduwanti was a senior undergraduate and the fact that
Premlal v. Attorney General
The evidence reveals that the love affair that commencedhad blossomed to be a very close bond between them. In .his evidence Kulatilaka Bandara referred to exchange ofletters between them vide page 246 of the appeal brief,posing for photographs together (vide V3, V4, V7). Theiraffair was made known to the campus community. Thecouple used to roam about the area exclusively reserved forlovers.
On the other hand it is in evidence that whilst she wascarrying on with the accused-appellant, she had an existinglove affair with a village lad by the name Susantha Gunasekera.
It was an affair she had started during her schooling days.
It was a secretive one. Even witness ChandrasenaGunawardena, Maduwanti’s father was not aware of such arelationship. Sometime prior to the death of Maduwanti,Kulatilaka Bandara who was the accused-appellant’sroom-mate had observed from the behaviour of theaccused-appellant that the accused-appellant and Maduwantiwere in a dilemma.
The accused-appellant had come to know that his fianceehad contracted a marriage by registering her marriage withSusantha Gunasekera. The marriage certificate was markedand produced as D21. It is to be stressed that Maduwanti’sfather Chandrasena Gunawardena had testified to the fact
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he would not be able to bear the pain of mind in the eventof the affair being broken up were other factors that madehim to decline the proposal at an anterior point of time.
However, at the persisting request of the deceased theaccused-appellant agreed to commence a love affair. In his .own words what he expected of his partner to be was to thefollowing effect –
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that he became aware of this marriage only on the date of hisdaughter’s death. D21 reveals that the marriage had beenregistered on 26.4.91. There is no evidence to indicate at whatpoint of time the accused-appellant had come to know aboutthis marriage.
Kulatilaka Bandara had specifically told Court that evenafter the accused-appellant became aware of this marriage,Maduwanti and the accused-appellant had secretivelycontinued their intimacy. They had even secretly met at amotel called “Kelaniya Inn”. Few days prior to thecommencement of the final examinations at the University,Maduwanti had called over to collect her admission card andhad met the accused-appellant. Thereafter Kulatilaka Bandarahad noticed a change of behaviour in the accused-appellant.He had stated to the witness Kulatilaka Bandara that SusanthaGunasekera was going to take Maduwanti out of the countryand that Maduwanti had been his only consolation and thathe was going to lose her. He had stopped studying. Hehad proceeded to a place called “Ambasevena” and hadconsumed arrack. He had returned drunk and had used tomake various utterances. His behaviour was out of sorts.This was the accused-appellant’s behaviour during theperiod just prior to the stabbing of Maduwanti, as describedby his room-mate.
The learned Senior State Counsel referred us tocertain contents of a letter dated 5.6.91 sent by thedeceased to the accused-appellant where she had pleadedwith the accused-appellant to allow her to live withoutinterference.
The learned Senior state Counsel submitted that thevery fact that the accused-appellant disregarded this fervantappeal of the deceased should militate against any suggestion
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Premlal u. Attorney General
The contents of this letter indicated that the deceasedherself had realized that the accused-appellant was sufferingfrom an unbearable pain of mind.
The contents of this letter is important because itexplains the state of mind of the accused-appeallant prior tothe act of stabbing and the attempted suicide. It has to beread in juxtaposition with witness Kulatilaka Bandara’sdescription of the accused-appellant’s behaviour during theperiod prior to the act of stabbing. In this regard it is pertinentto refer to the observations of Agha Haidar, J.(Broadway, J.agreeing) in Jan Muhammad us. Emperor (supra)-
“Each case must depend upon its own facts andcircumstances. In the present case my view is that, injudging the conduct of the accused, one must not confinehimself to the actual moment when the blow, whichultimately proved to be fatal, was struck, that is to say,one must not take into consideration only the eventwhich took place immediately before the fatal blow wasstruck. We must take into consideration the previousconduct of the woman. Her evil ways were the commonscandal of the village and must have been known to thehusband, causing him extreme mental agony, shame andhumiliation”.
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made on behalf of the accused-appellant to consider themitigatory plea of cumulative provocation. In this context acareful reading of the entire letter reveals that Maduwantiherself was very much perturbed by the suffering of theaccused-appellant for which she was solely responsible.She goes on to say –
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Witness Kulatilake Bandara’s description of theunusual behaviour of the accused-appellant reflects ofthe mental agony and the strain that the accused wasundergoing because of the haunting thought that he wasgoing to lose her. We could infer that he had lost all selfcontrol at that point of time he stabbed her. The brutalmanner in which he attacked the girl who was so preciousto him and the attempted suicide by taking poisionare indicative of the fact that he in fact had lost his selfcontrol at the time he committed the act of stabbing thedeceased.
In the circumstances, we set aside the findingand conviction of murder and the sentence of deathand substitute a conviction for culpable homicide notamounting to murder on the basis of intention and impose aterm of fifteen years rigorous imprisonment. The appeal ispartly allowed.
JAYASURIYA, J.- I agree.
Sentence altered to culpable homicide not amounting tomurder.
Thus, in the instant case the act of stabbing cannotbe taken in isolation, the accused-appellant’s ambition ofbecoming a Lecturer was shattered. He could not face thecampus community because he and Maduwanti had beenseen as confirmed lovers in that community. His onlyconsolation had been Maduwanti. Now he was losing her.His own words to that effect was –
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PREMLAL v. ATTORNEY GENERAL