Sri Lanka Law Reports
 3 Sri LR.
COURT OF APPEALGUNASEKERA, J. (P/CA) &
DE SILVA, J.
C.A. NO. 60/96HC BALAPITIYA NO. 4/94JUNE 05TH, AND 11TH, 1997
Murder – S. 294 exception 1 – Grave and Sudden Provocation – Interval of timebetween the Act of Provocation and the time of causing injuries.
The accused-appellant was indicted with having committed murder by causingthe death of one J. on or about 20.5.90. After trial he was found guilty andsentenced to death.
On appeal it was contended that the trial judge had erred by rejecting the defenceof grave and sudden provocation taken up by the defence.
1. Although the accused-appellant was not justified in killing the deceased,taking the facts in the instant case, he was entitled to have succeededin the defence of grave and sudden provocation although an interval oftime had lapsed between the time of the provocation and the acts thatled to the killing.
APPEAL from the judgment of the High Court of Balapitiya.
Case referred to:
1. Samythamby v. Queen 75 NLR 49.
Dr. Ranjith Fernando with Ms. Premali de Silva and Ms. Kishali Pinto – Jayawardanefor accused appellant Buwaneka Aluvihare S.S.C for A.G.
Cur. adv. vult.
CAGamini Silva v. Attorney-General (Gunasekera, J. (P/CA)249
June 11, 1997.
GUNASEKERA, J. (P/CA)
In this case the accused-appellant Weeraratne Gamini Silva wasindicted with having committed murder by causing the death ofAgampody Norman Piyadasa de Soyza Jayatilake on or about20.05.1990 at Nelligaskele in the Kosgoda Police area. After trialbefore a learned Judge of the High Court he was found guilty of theoffence and sentenced to death on 04.07.1996. The prosecution reliedon the evidence of Malini Jayatilake the daughter-in-law of thedeceased who identified his body at the post-mortem examination,Newton Thabrew who was an eye witness, M. B. Wilman, a villager,Dr. Piyaratne who testified, having produced the post-mortem reportof Dr. Vithanage. Sub Inspector Gunadasa and Inspector Kumarasinghe,the O. I. C. of the Kosgoda police station at the relevant time. Theaccused testified on his own behalf and called his wife M. PriyankaNiranjani de Silva in support of his evidence.
The facts relevant to this case are that the deceased who wasabout 82 years in age who was a coroner was living in reirementin a Wadiya located in a cinnamon plantation. The accused had beenliving with his young wife and an infant child together with his in-laws about 1/4th mile away from the deceased's house. Accordingto the evidence on the evening of the 19th May, 1990, the accused'swife had gone to a boutique close by in order to fetch some coconutswhilst the accused was at home. A short while after she left, theaccused had heard cries. When she returned home the accused isalleged to have questioned his wife as to the reason which promptedher to raise cries. As she had not divulged the reason there had beenan altercation and argument between the accused and his wife whichhad gone into the early hours of the morning of the 20th. After acouple of slaps was given to the wife, she had disclosed to herhusband, the accused that Ralahamy, namely the deceased Jayatilakehad pulled her by her hand and made some improper suggestionsto her. The following morning witness Thabrew and William had beenon the road in front of the accused's house chatting with each other.At about 11.00 in the morning, the deceased had come on a bicycle
Sri Lanka Law Reports
 3 Sri LR.
and had seen the two witnesses and had got off from the bicycleand engaged himself in a conversation with the two witnesses statingthat he was coming forward as a candidate in the forthcoming electionthat was to be held and solicited their support. At that time, accordingto the evidence the accused had suddenly emerged and dealt severalblows on the deceased with a Katty. The medical evidence revealedthat there had been 8 injuries on the body of the deceased:
a cut injury 4 1/2" long extending from below the left eyetowards the left ear.
a deep cut injury above the left ear cutting through all tissuesinto the cravial cavity.
a deep cut injury above the left elbow on the anterior aspect.
a deep cut injury on the left forearm almost severing leftforearm.
a penetrating wound on the left knee.
a deep cut injury on the right-hand severing the little finger.
a cut injury on the back of the left leg.
the penis had been completely amputated.
The cause of death according to the post mortem report was shockand haemorrhage from multiple cut injuries causing injuries to the headand fracuture of bones caused by a sharp cutting instrument.
The case for the defence was that the deceased an 82-year oldretired coroner was a land owning gentleman in the village who hada fancy for a wide and varied sexual life. He was in the habit of makingadvances on women young and old in the village. In fact it transpiredin the evidence that the deceased had been charged for molestinga giril of 9 years and a case was pending in the Magistrate's Court
CAGamini Silva v. Attorney-General (Gunasekera, J. (P/CA)251
of Balapitiya. According to the accused about a month prior to the20th May the deceased had gone to his house and inquired abouthis wife from his mother-in-law. The accused on hearing this inquiryhad chased the deceased away having reprimanded him. On the 19thof May when his wife went to fetch some coconuts, the deceasedwho was near the boutique had held her by the hand and had madeimproper advances. It is in this state of the evidence that the accusedin his evidence stated that when he went to the smithy atUragasmanhandiya in order to have his katty which was used inpeeling cinnamon sharpened and was returning at 10.30, 11.00 thathe heard cries of distress of his wife when he was about 4 blocksaway from his house. As he approached he had seen the deceasedcoming out of his premises. On seeing him he had recounted theevents that had taken place the previous evening and stated thathe lost his self-control and did not know what happened.
Learned state counsel in cross examination at the trial hadsuggested to the accused that as a result of the improper advancesmade to his wife by the deceased that he had been lingering withthe idea of taking revenge and had caused the injuries on thedeceased which resulted in his death.
The learned High Court Judge having considered the evidence hasrejected the defence of provocation raised by the accused, in hisjudgment at page 194 holding that there was an interval of timebetween the act of provocation namely the incident that occurredon the evening of the 19th and the time of causing injuries namelyat 11.00 am on the 20th.
Learned counsel for the accused-appellant submitted that thelearned trial judge had erred by rejecting the defence of grave andsudden provocation taken up by the defence. It was submitted bylearned counsel in support of his contention that on the prosecutionevidence and on the uncontradicted evidence of the accused andhis wife that the accused-appellant was entitled to succeed in hisdefence of grave and sudden provocation. Learned counsel submittedthat the prosecution conceded that there was an incident on the 19thevening where the deceased had made improper advances to the wife
Sri Lanka Law Reports
 3 Sri LR.
of the accused and over that incident that there were argumentsbetween the accused and his wife which went on till the early hoursof the morning of the 20th which ended after his wife had disclosedas to what happened on the evening of the 19th, as a result of hishaving assaulted her. The following morning on seeing the deceasedcoming from near his house what was lingering in his mind over theadvances made to his wife would have provoked him as a reasonableman.
It was submitted that the extent to which the accused had beenprovoked is evident from the conduct of the accused in severing thepenis of the deceased and taking it as a souvenir which was foundwith him after his arrest.
Learned counsel drew our attention to the decision in Samythambyv. Queert'' where H/L the Chief Justice H. N. G. Fernando held: “thatan offender may be said to have been deprived of his power, ofself-control by grave and sudden provocation within the meaning ofexception 1 to section 294 Penal Code even though there was aninterval of time between the giving of the provocation and the timeof the killing, if the evidence shows that, all the time during theinterval, the accused suffered under a loss of self-control”.
Taking the facts in the instant case we are of the view that althoughthe accused-appellant was not justified in killing the deceased thathe was entitled to have succeeded in the defence of grave and suddenprovocation although an interval of time had lapsed between the timeof the provocation and the acts that led to the killing. In thecircumstances for the reasons stated we are of the view that theconviction of the accused for murder should not be allowed to stand.Thus we set aside the conviction of the accused-appellant for murderand the sentence of death passed on him and we find the accused-appellant guilty of culpable homicide not amounting to murder on thebasis of grave and sudden provocation under section 297 of the PenalCode. We sentence the accused to a term of 12 years, rigorousImprisonment. Subject to this variation the appeal is dismissed.
DE SILVA, J. – I agree.
GAMINI SILVA v. ATTORNEY-GENERAL