048-SLLR-SLLR-1998-1-CHANDRASENA-v.-ATTORNEY-GENERAL.pdf
CA
Chandrasena v. Attorney-General
415
CHANDRASENA
v.ATTORNEY-GENERAL
COURT OF APPEALGUNASEKERA, J. (P/CA),
J.A. N. DE SILVA, J.
CA 108/95
HC GALLE 1525
APRIL 1, 3, 4 AND 29, 1997.
Murder – S. 296 Penal Code – Grievous Hurt s. 316 – S. 294 exception 1 -Grave and Sudden Provocation – Act of Provocation and Retaliatory Act not adistinct and separate element – Directions to the Jury.
The accused-appellant was indicted on two Courts, the first was with havingcommitted murder by causing the death of his mother-in-law – S. 296 – and thesecond, in the course of the same transaction, causing grievous hurt to hiswife – S. 316 – and was found guilty on both counts. On appeal, it was contendedthat the learned Trial Judge erred in directing the jury as regards provocationand retaliation.
Held:
Consideration of the method and degree of the retaliation was necessarilyintegral to assessment of the gravity of the provocation.
The relation between the act of provocation and the retaliatory Act is nota distinct or separate element but is an aspect of the issue of the gravity.
APPEAL from the judgment of the High Court of Galle.
Cases referred to:
King v. Kirigoris – 48 NLR 407.
Perera v. King – 53 NLR 193.
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(1998) 1 Sri L.R.
Regina v. Piyasena – 57 NLR 226.
Punchi Banda v. Queen – 74 NLR 494.
AG v. K. D. J. Perera – 54 NLR 265 (P.C.)
Dr. Ranjith Fernando with Ms. K. P. Jayawardena and Ms. Premila de Silva foraccused-appellant.
C. R. de Silva, P.C, Addl. S.G with B. Aluvihare S.S.C for Attorney-General.
Cur. adv. vult.
May 6, 1997.
J. A. N. DE SILVA, J.
The accused-appellant was indicted on two counts. The first countwas with having committed murder by causing the death of oneAugustinuge Susannona, his mother-in-law on the 12th of November,1987, an offence punishable under section 296 of the Penal Code.
The second count was that in the course of the same transactionthat he caused grievous hurt to his wife Meewaralage Chitra (SodeecfSgo) an offence punishable under section 316 of the Penal Code.
The trial was by a Jury and after the conclusion of the case on13.10.1995 by an unanimous verdict the accused was found guiltyon both counts. On the first count he was sentenced to death. Onthe second count a sentence of 3 years was imposed and in additionto a fine of Rs. 1,000.
The prosecution case was that the appellant married MeewaralageChitra in the year 1975 and was having three children by that marriage.There had been displeasure between the two parties. As there wasfinancial difficulties the wife had gone to the Middle-East for employ-ment. She had been remitting monies from there and the husbandhad failed to account for them and as a result she had stopped sendingmoney. Thereafter the accused has written several letters threateningher that he would deal with her when she returns. After the expiry
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Chandrasena v. Attorney-General (J. A N. De Silva, J.)
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of the contract of employment the wife had returned to the Islandwithout informing the husband and had been living with her parentsat Ratnapura. Having come to know of the wife's arrival the appellanthad proceeded to Ratnapura and had pursuaded the wife to returnwith him. Thereafter both of them had lived together for about twoweeks and when the appellant assaulted her with a door bar she hadleft him and gone back to her parents and initiated action inMagistrate's Court to claim maintenance from the appellant who wasa Field Officer in the Forest Department.
On the day of the incident at about 7.30 in the morning she hadbeen going with her mother Susannona to the Magistrate's Court forthe maintenance case and the accused had accosted them near themain bus stand, Galle and in a threatening manner had asked themwhere they were going (ezaosax; saaS caafesf). Thereafter the appellanthad suggested that there should be a settlement and as the wife andthe mother-in-law refused, took a barber's razor from his pocket andstarted attacking the wife. The wife had fallen on the ground withinjuries. In order to prevent the appellant attacking the daughter furtherthe mother had fallen on the daughter. Thereafter he had cut her neckwith the razor. When he was doing this a Police Officer who happenedto pass that place had seen this and rushed to the scene and havingwrested the razor from the accused had taken him to the PoliceStation. Later the injured had been taken to the hospital by the Policewhere the mother-in-law was found to be dead on admission.
For the prosecution several witnesses had given evidence. Chitra,the wife of the accused described the incident and the circumstancesunder which the attack took place. Police Officer Ananda has statedas to how he saw the appellant cutting the throat of Susannona.Professor Niriella who conducted the Post-mortem examinationsupported the evidence of these two witnesses who stated that theinjuries were caused with a razor. According to the Professor therehad been injuries on the neck, right shoulder and right hand of thedeceased. The cut injury on the upper part of the neck had been19 cm long. The wound was deepest at the centre and the depthhad been gradually less towards the right side. The thyroid cartilage,windpipe and the blood vessel were completely severed. There had
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been a cut wound on the back of the right shoulder and three morecut injuries on the right hand. The cause of death had been due tosevere bleeding resulting form a complete severance of the bloodvessels in the neck. Dr. Selvaratnam who had examined Chitra hadstated that he found six cut injuries on her and out of them 4 injurieswere grievous injuries. Some injuries have caused a disfiguration ofthe face too.
Apart from these witnesses, an investigating officer and a son of •the deceased who identified the body had given evidence for theprosecution.
The accused-appellant had given evidence on oath. According tohim, he married Chitra after a ten year old love affair and is the fatherof three children. Due to the interference of the in-laws there were'problems in the family. He always wanted to reconcile with the wifeand live a harmonious life. On the day of the incident he came toattend Courts. When he came to Galle town he saw his wife andmother-in-law going towards the Fort.
He went behind them and pleaded with the wife to come backwith him for the sake of the children. The wife refused to come andthe mother-in-law scolded him in filth and attacked him with herumbrella. The wife was laughing and when the mother-in-law assaultedhim she too joined her. As this happended in a public place he feltashamed and lost his self control and waived the barber’s razor withwhich he used to shave. He also stated that he did not realize thathe was doing something wrong till he saw blood in his hands. Thereafterhe was walking towards the Police Station when a person carrying
some* files held him by his hand and he gave the razor to him.
/
The Counsel for the appellant submitted that the learned trial Judgemisdirected the Jury on the law with regard to exception one to section294 of the Penal Code relating to grave and sudden provocation. Hedrew the attention of Court to pages 141 to 151 of the summing-up where the learned trial Judge has invited the Jury to considerprovocation. The learned trial Judge had stated to consider whether
CAChandrasena v. Attorney-General (J. A. N. De Silva, J.)419
the retaliatory act is in proportionate to the provocation offered. Thelearned Counsel submitted that this is not the correct position of thelaw in Sri Lanka. In support of this contention he relied on the followingauthorities. King v. Kirigoris*K. D. J. Perera v. King<z>, Regina v.PiyasenaP> and Punchibanda v. Queenf4K
The Additional Solicitor-General who appeared for the State sub-mitted that the law relating to Exception 1 to section 294 in the PenalCode was settled in K. D. J. Perera's Case® which was decided bythe Privy Council.
In that case the conclusion reached by the Privy Council was thata consideration of the method ahd degree of the retaliation wasnecessarily integral to assessment of the gravity of the provocation.Additional Solicitor-General submitted that the resulting position in thePrivy Council decision in K. D. J. Perera's case is that the provocationis not held to be grave in the absence of appropriate correlationbetween the provocation and retaliatory gestures. He also pointed outthat the relation between the act of provocation and the retaliatoryact is not a distinct or separate element but is an aspect of the issueof the gravity. In the circumstances, the Additional Solicitor-Generalsubmitted that the learned trial Judge's directions to the Jury in thiscase were correct. We are inclined to agree with the learned AdditionalSolicitor-General on this point and hold that the learned trial Judgehad properly and adequately directed the Jury on the question ofprovocation.
It is to be noted that in this case when the wife Chitra was givingevidence it had been suggested to her by the defence that it is shewho abused the appellant and offered the provocation. The appellantin his evidence stated that it was the mother-in-law who provokedhim to act in this manner.
According to the evidence the deceased and Chitra were peacefullywalking towards the Court house when the appellant suddenlyappeared and accosted them. The question is whether the plea ofprovocation can be availed of by an accused in mitigation of the
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offence of murder under the first proviso, if the provocation was itselfsought by the accused; according to the evidence the appellant isthe one who started the abuse and he was also armed with a barber'srazor which he used immediately. However, the learned trial Judgehad invited the Jury to consider the plea of provocation as the accusedhad raised it in his evidence. We are of the view that the Jury hadproperly considered and rejected that plea. In our view this is nota fit case to interfere with the finding of the Jury. This appeal isdismissed and the conviction and sentence is affirmed.
GUNASEKERA, J. (P/CA) – I agree.
Appeal dismissed.