Dingiri Mahatmaya and others v Samaraweera and others
THE ATTORNEY GENERAL
COURT OF APPEALFERNANDO, J., ANDEDIRISURIYA, J.C.A.HAMBANTOTA 41/99
M.C.TANGALLA 33429/NSOCTOBER 23, 2002
PenaI Code – Murder – Penal Code, sections 296 and 297 – EvidenceOrdinance, section 33 – Witness abroad – Deposition read – Defence of sud-den fight – Sudden provocation – Objective test.
Mere abuse even unaccompanied by any physical act-may be in certain cir-cumstances regarded as sufficient provocation.
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(2003] 2 Sri L.R
(ii) When considering a prosecution for murder whether the accused wasdeprived of self control by grave and sudden provocation, the jury mustapply an objective test. It must be considered objectively in relation to theclass of society to which the accused belongs.
APPEAL from the judgment of the High Court at Hambantota.
Cases referred to:
K v Kirigoris – 48 NLR 407
Regina v K.Piyasena – 57 NLR. 226
A. Punchibanda v Queen – 74 NLR 494
QvMutubanda -56 NLR 217
Jamis v The Queen – 53 NLR 313, 401
Dr. Ranjith Fernando with S.Munasinghe and S.Manatunga for accused-appellant.
Palitha Fernando, Deputy Solicitor-General for Attorney-General.
October 23, 2002EDIRISURIYA J.
The accused in this case was indicted for the murder of one 01Adikari Pattuge Rohinie an offence punishable under section 296 ofthe Penal Code.
The accused having pleaded not guilty to the charge wastried by the High Court Judge of Hambantota without a jury andconvicted for murder.
Dr. Ambepitiya who performed the Post-MortemExamination on the body of the deceased testified that he observedfour external injuries on the deceased. His evidence was that injuryno: I was a stab injury 2 inches above her left breast. 10Corresponding to this there was a cut injury on the left lung. Injuryno:2 was a stab injury 1/2” above the right breast. Correspondingto this right lung was damaged. Injury no:i3 was a stab injury 4 inch-es above the left nipple. Corresponding to this left ventricle hadbeen cut. He said this injury was necessarily fatal. Injury no: 4 was
Chuti v. The Attorney-General
on the chest bone of the deceased. According to the doctor allthese injuries could have been caused with a sharp cutting weaponsimilar to P2.
Adikari Pattuge Dayanie gave evidence to the followingeffect: At the time of the incident her age was 12 years and thedeceased was her elder sister. The deceased sister lived in'ahouse at a lower elevation. A fence separated their houses.According to her at or about 2.00 p.m. while she was inside herhouse she heard the deceased sister shout “§£Thereafter
her elder sister Shriyanie, younger brother Sarath Kumara and shecame out of their house. Instantly she saw the accused stab thedeceased and pull out a knife from her body. The deceased sisterran about 50 feet and fell on the ground. Subsequently she cameto know that the elder sister Rohinie died whilst she was beingtaken to the hospital:
The younger brother of the deceased Sarath Kumara givingevidence said that on the day of the incident at or about 4.30 p.m.while he was staying in his house along with his sisters Dayanieand Shriyanie he heard shouts of “§c «p§te®:f. At that time he cameout of the house with sister Dayanie. He saw the accused stab thedeceased sister with a knife.‘He saw the accused pull the knife fromthe deceased's body. He said at the same time the accused ranaway. Thereafter the deceased ran towards elder sister Ranjanie'shouse and fell down. Thereafter the deceased told him “§£ ®ggod§3 SSeozd
Even though Adikari Pattuge Shriyanie, a sister of thedeceased was listed a prosecution witness she was not summonedby the prosecution. At the time the trial was taken up in the HighCourt she was abroad. The defence led in evidence her depositionin the Magistrate's Court under section 33 of the EvidenceOrdinance. Her evidence was that on the day of the incident whileshe was staying in her house she heard the deceased say “g3 @o,eoD (too oto ooo”. Instantly the accused ran towards the field andshe heard shouts of “§£She did not see any other person
in the house. –
The accused made a statement from the dock denyingknowledge of the incident. He also said since the Police had come
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to his house looking for him he went to the Police station with hisfather and surrendered on the instructions of an attorney at law.
The father of the accused giving evidence corroborated whatthe accused said in his statement from the dock. His evidenceshows that the accused's occupation was cutting and packing fishto be sent to Colombo. He also said he came to know of an affairthat the accused had with one Kalunona, a sister of the.deceased.
At this stage it is pertinent to consider certain items of evi- 60dence in this case to determine whether there was culpability for alessor offence on the basis of grave and sudden provocation. Thelearned trial judge has observed that there had been an exchangeof words between the accused and the deceased prior to the stab-bing. The sister of the deceased Sriyani has testified that sheheard the deceased telling the accused “§9 So ax) oraO dsfo 6ao”Dayanie the sister of the deceased has admitted that she told thePolice that she heard a loud exchange of words between thedeceased and the accused. Having regard to the fact that theaccused used to be in and out of the house of the deceased and 70the fact that there was some displeasure between the accused andthe deceased over an affair that the accused had with the sister ofthe deceased and the loud exchange of words heard by the winess.it may safely be inferred that the wordsaoS oa>o cxrfa ood”
which the prosecution witness Dayanie heard, was only a part ofthe exchange of words. The above evidence gives rise to the con-sideration of the defences of sudden fight and also grave and sud-den provocation by the trial judge.
It has been held in the case of King v KirigorisW that mereabuse even unaccompanied by any physical act may be in certain 80circumstances regarded as sufficient provocation Regina v K.PiyasenaW, and A. Punchibanda v Queen (3).
The husband of the deceased Sumathipala has stated thatShriyanie, a sister of the deceased had an affair with the accusedand that the deceased was against it. The deceased had told himthat she did not like this affair. The father of the accused has givenevidence to the effect that the accused had an affair with the sisterof the deceased. It should be noted that the accused was engagedin cutting fish. Also it is in evidence that he used to pluck coconuts.
Chuti v The Attorney-General
The prosecution witnesses Dayanie and Sumathipala say the 90accused used a knife. This suggests that the weapon used in thisincident was his tool of trade. The above facts clearly indicate thatthe accused was an illiterate person whose livelihood depended onmanual work and who was likely to be provoked into serious retal-iation.
In the case of Queen v. MutubandaW it has been held thatwhen considering a prosecution for murder whether the accusedwas deprived of the power of self-control by grave and suddenprovocation the Jury must apply and objective test i.e. whether inthe particular case under consideration a reasonable or average 100man with same back ground an in the circumstances of life as theaccused would have been provoked into serious retaliation. Also inJamis v The Queert5), it has been held that a mitgatory plea ofgrave and sudden provocation is considered objectively in relationto the class of society to which the accused belongs.
In the circumstances we set aside the conviction for murderentered against the accused-appellant and substitute therefor aconviction for culpable homicide not amounting to murder on thebasis of GRAVE and sudden provocation and or sudden fight undersection 297 of the Penal Code. We also set aside the sentence of 110death imposed on the accused-appellant and substitute therefor asentence of 15 years rigorous imprisonment.
FERNANDO, J. – I agree.
Conviction for murder set aside;
Conviction for culpable homicide not amounting to murder substi-tuted.
CHUTI v. THE ATTORNEY GENERAL