|SLR - 2000 Vol.2, Page No - 403 |
|403 |
|PREMLAL |
|v. |
|ATTORNEY GENERAL |
|COURT OF APPEAL |
|JAYASURIYA, J. |
|KULATILAKE, J. |
|CA. No. 194/95 |
|H. C. COLOMBO 6904/94 |
|21ST SEPTEMBER 1998 |
| |
|Murder - Penal Code S.294(1) - Plea of grave and sudden provocation - Attendant circumstances - Availability|
|of plea of cumulative provocation. |
| |
|The Trial Judge found the accused Appellant guilty of committing the murder of his girl friend and sentenced|
|him to death. |
| |
|The Accused Appellant had come from behind and asked the deceased to stop, and thereafter had stabbed her |
|twice and run away through fear. Thereafter the accused Appellant had taken a bottle from his pocket and had|
|drunk the contents of the bottle. The evidence revealed that the love affair had blossomed to be a very |
|close bond between them. However it is also in evidence that whilst she was carrying on with the accused |
|Appellant, she had an existing love affair with a village lad and had secretly contracted a marriage by |
|registering her marriage. |
| |
|On appeal it was contended that the attendant circumstances warrant a subsitution for the conviction for |
|murder of a conviction of culpable homicide not amounting to murder on the basis of continuing and |
|cumulative provocation. |
| |
|Held : Per Kulatilaka J., |
| |
|"Our Judgments interpreted the phrase "sudden provocation" to mean that provocation should consist of a |
|single act which occurred immediately before the killing so that there was no time for the anger to cool and|
|the act must have been such that it would have made a reasonable man to react in the manner as the accused |
|did." |
|404 |
|Per Kulatilaka J., |
| |
|"Of late we observe a development in other jurisdictions where courts have taken a more pragmatic view of |
|the mitigatory plea of provocation ... in a series of cases Court took into consideration the prior course |
|of relationship between the accused and his victim." |
| |
|(i) The act of stabbing cannot be taken in isolation. The accused Appellant's ambition of becoming a |
|Lecturer was shattered. He could not face the Campus community because he and M had been seen as confirmed |
|lovers in that community. His only consolation had been M. He was losing her. The unusual behaviour reflects|
|the mental agony and the strain that the accused was undergoing because of the haunting thought that he was |
|going to lose her. |
| |
|(ii) It could be inferred that he had lost all self control at the point of time he stabbed her. The brutal |
|manner in which he attacked the girl who was so precious to him, and the attempted suicide are indicative of|
|the fact that he in fact had lost his self control at the time of stabbing. |
| |
|APPEAL from the Judgment of the High Court of Colombo. |
| |
|Cases referred to : |
| |
|1. Samithamby vs. Queen - 75 NLR 49. |
|2. Jan Muhammed us. Emperor - AIR 1929 - Lahore - 861. |
|3. Nanavati vs. State of Maharasthra - AIR 1962 - 605(SC). |
|4. Amarjit Singh Sohan Singh - 1970 76 Crim LJ 835. |
|Cur. adv. vult. |
|Dr. Ranjith Fernando with Gayan Perera for the accused - Appellants |
| |
|Dappula De Livera, Senior State Counsel for the Attorney - General. |
| |
|July 27, 1999. |
|KULATILAKA, J. |
| |
|In this prosecution after a trial by the Judge, the learned trial Judge found the accused-appellant guilty |
|of committing |
|405 |
|the murder of his girl friend named Pushpa Maduwanti Gunawardena on the 22nd of April, 1992 and convicted |
|him of that offence and pronounced the sentence of death on him. This appeal is against that finding, |
|conviction and the sentence. |
| |
|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 whether the evidence in the case would justify the|
|acceptance of a plea of grave and sudden provocation in terms of Exception (1) set out 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 cumulative provocation. |
| |
|The prosecution relied upon the evidence of two eye witnesses, namely Celine Patrika Jayatilaka, a close |
|associate 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 Maduwanti were final year undergraduate students at the |
|Kelaniya University. She knew the accused. He was a student in a junior batch. The final year examinations |
|for the year 1992 were to commence on 22.4.92. Around 8 a.m. Maduwanti and Patrika set forth towards the |
|examination hall. As they entered the University premises Patrika saw the accused-appellant coming from |
|behind. Then the accused-appellant had made the following utterance: |
| |
|[pic] |
| |
| |
|Witness Patrika had seen the accused-appellant carrying a knife in his hand. At the behest of the accused |
|both of them had stopped. Thereupon she saw the accused appellant stabbing Maduwanti twice, while she was in|
|a |
|406 |
|standing position and then the witness had run away through fear. |
| |
|Chandrasiri Banda had witnessed the stabbing from a distance of about 50 years. He had seen the accused |
|appellant stabbing the deceased on her chest five or six times while clutching her hair. Thereafter the |
|accused-appellant had taken a bottle from his pocket, dropped the knife and drank the contents of the |
|bottle. |
| |
|The defence did not challenge the fact that the accused-appellant did in fact cause the death of Maduwanti |
|by inflicting stab injuries. |
| |
|Patrika at the time she gave evidence was a teacher. The learned trial Judge has observed that Patrika was |
|reluctant to come out with the fact that the deceased was very close to her as a friend during their stay at|
|the University Campus. She told Court that Maduwanti was just another friend of hers in the University. |
| |
|[pic] |
| |
|The learned trial Judge had observed that Patrika was not a truthful witness, in her testimony relating to |
|the deceased's relationship with the accused-appellant during their stay at the Campus. She even went to the|
|extent of saying that to her knowledge deceased Maduwanti and the accused-appellant were only friends and |
|not in love. The defence witness Kulasiri Bandara testified to the fact that it was Patrika who -was |
|instrumental in arranging the love affair between Maduwanti and the accused-appellant. If Patrika, had |
|testified without supressing facts and uttering lies, the factual position would have been brought to light |
|in regard to the developments which ultimately came to a climax with Maduwanti receiving murderous assaults |
|at the very hands of her lover. |
|407 |
|In this context the learned counsel for the accused-appellant invited Court to carefully scrutinize the |
|evidence elicited from the defence witness Kulatilaka Bandara a close friend of the accused-appellant who in|
|fact was his room mate at the Campus hostel, in order to come to a finding whether the attendant |
|circumstances of this particular case would warrant a substitution of the conviction for murder by a |
|conviction of culpable homicide not amounting to murder on the basis of continuing and cumulative |
|provocation. |
| |
|Until the judgment of Chief Justice H. N. G. Fernando in Samithamby vs. Queen(1) (de Kretser, J. - |
|dissenting) our Courts followed a strict view in applying Exception (1) set out in Section 294 of the Penal |
|Code. Our Judges following their counterparts in England interpreted the phrase "sudden provocation" to mean|
|that provocation should consist of a single act which occurred immediately before the killing so that there |
|was no time for the anger to cool and the act must have been such that it would have made a reasonable man |
|to react in the manner as the accused did. Our Courts were reluctant to take into consideration any special |
|circumstances which manifested in the particular offender's case. |
| |
|In Samitamby Chief Justice H. N. G. Fernando (Samerawickrema, J. agreeing) applying Exception (1) set out in|
|Section 294 of the Penal Code expressed the view that even though in that particular case there was an |
|interval of time between the affording of the provocation and the time of the stabbing, the evidence |
|relating to the interim period made it quite probable that in fact the accused all the time suffered under a|
|loss of self control. |
| |
|Of late we observe a development in other jurisdictions where Courts and juries have taken a more pragmatic |
|view of the mitigatory plea of provocation. In a series of cases in applying the mitigatory plea of |
|provocation Courts took into |
|408 |
|consideration the prior course of relationship between the accused and his victim. Vide Jan Muhammad vs. |
|Emperor(2) Nanavati vs. State of Maharastra(3) and Amarjit Singh Sohan Singh(4) referred to in the article |
|on "The Doctrine of Continuing Provocation" by Dr. M. Sornarajah published in the Journal of Ceylon Law, |
|June 1971. |
| |
|In the latter case Sankaria, J. observed - |
| |
|"The past conduct of the non earning father in coming home drunk daily ... was already a standing and |
|continuous source of provocation to the son whose meagre earnings were hardly sufficient to meet the. bare |
|needs of the family. The resentment that was building up in the mind of the son as a reaction to the |
|continuous provocative conduct of the father spread over the past month or so, had reached a breaking point |
|shortly before the occurrence when the drunken father set upon the son with a torrent of horrible oaths". |
| |
|In the instant case Patrika Jayatillaka a close associate of Maduwanti in the University maintained a solemn|
|silence about the past relationship of the accused-appellant with Maduwanti the deceased. Therefore it is |
|necessary to have a close scrutiny of the totality of the evidence led in this case in order to ascertain |
|whether this is a proper case where the mitigatory plea of cumulative provocation should have been adopted. |
| |
|According to the defence witness Kulatilaka Bandana who was the Principal of Mutukandiya Junior School at |
|the time of giving evidence, it was Maduwanti who had expressed her feelings towards the accused-appellant |
|and her willingness to start a love affair with the accused-appellant. At that point of time the latter had |
|expressed his reluctance to have a campus affair. His ambition had been to study well and become a Lecturer.|
|The fact that Maduwanti was a senior undergraduate and the fact that |
|409 |
|he would not be able to bear the pain of mind in the event of the affair being broken up were other factors |
|that made him to decline the proposal at an anterior point of time. |
| |
|However, at the persisting request of the deceased the accused-appellant agreed to commence a love affair. |
|In his own words what he expected of his partner to be was to the following effect - |
| |
|[pic] |
|The evidence reveals that the love affair that commenced had blossomed to be a very close bond between them.|
|In his evidence Kulatilaka Bandara referred to exchange of letters between them vide page 246 of the appeal |
|brief, posing for photographs together (vide V3, V4, V 7). Their affair was made known to the campus |
|community. The couple used to roam about the area exclusively reserved for lovers. |
| |
|On the other hand it is in evidence that whilst she was carrying on with the accused-appellant, she had an |
|existing love 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 Chandrasena Gunawardena, Maduwanti's father |
|was not aware of such a relationship. Sometime prior to the death of Maduwanti, Kulatilaka Bandara who was |
|the accused-appellant's room-mate had observed from the behaviour of the accused-appellant that the |
|accused-appellant and Maduwanti were in a dilemma. |
| |
|The accused-appellant had come to know that his fiancée had contracted a marriage by registering her |
|marriage with Susantha Gunasekera. The marriage certificate was marked and produced as D21. It is to be |
|stressed that Maduwanti's father Chandrasena Gunawardena had testified to the fact |
|410 |
|that he became aware of this marriage only on the date of his daughter's death. D21 reveals that the |
|marriage had been registered on 26.4.91. There is no evidence to indicate at what point of time the |
|accused-appellant had come to know about this marriage. |
| |
|Kulatilaka Bandara had specifically told Court that even after the accused-appellant became aware of this |
|marriage, Maduwanti and the accused-appellant had secretively continued their intimacy. They had even |
|secretly met at a motel called "Kelaniya Inn". Few days prior to the commencement of the final examinations |
|at the University, Maduwanti had called over to collect her admission card and had met the |
|accused-appellant. Thereafter Kulatilaka Bandara had noticed a change of behaviour in the accused-appellant.|
|He had stated to the witness Kulatilaka Bandara that Susantha Gunasekera was going to take Maduwanti out of |
|the country and that Maduwanti had been his only consolation and that he was going to lose her. He had |
|stopped studying. He had proceeded to a place called "Ambasevena" and had consumed arrack. He had returned |
|drunk and had used to make various utterances. His behaviour was out of sorts. This was the |
|accused-appellant's behaviour during the period just prior to the stabbing of Maduwanti, as described by his|
|room-mate. |
| |
|The learned Senior State Counsel referred us to certain contents of a letter dated 5.6.91 sent by the |
|deceased to the accused-appellant where she had pleaded with the accused-appellant to allow her to live |
|without interference. |
| |
|[pic] |
| |
|The learned Senior state Counsel submitted that the very fact that the accused-appellant disregarded this |
|fervent appeal of the deceased should militate against any suggestion |
|411 |
|made on behalf of the accused-appellant to consider the mitigatory plea of cumulative provocation. In this |
|context a careful reading of the entire letter reveals that Maduwanti herself was very much perturbed by the|
|suffering of the accused-appellant for which she was solely responsible. She goes on to say - |
| |
|[pic] |
| |
|The contents of this letter indicated that the deceased herself had realized that the accused-appellant was |
|suffering from an unbearable pain of mind. |
| |
|The contents of this letter is important because it explains the state of mind of the accused-appellant |
|prior to the act of stabbing and the attempted suicide. It has to be read in juxtaposition with witness |
|Kulatilaka Bandara's description of the accused-appellant's behaviour during the period prior to the act of |
|stabbing. In this regard it is pertinent to refer to the observations of Agha Haidar, J. (Broadway, J. |
|agreeing) in Jan Muhammad vs. Emperor (supra) |
| |
|"Each case must depend upon its own facts and circumstances. In the present case my view is that, in judging|
|the conduct of the accused, one must not confine himself to the actual moment when the blow, which |
|ultimately proved to be fatal, was struck, that is to say, one must not take into consideration only the |
|event which took place immediately before the fatal blow was struck. We must take into consideration the |
|previous conduct of the woman. Her evil ways were the common scandal of the village and must have been known|
|to the husband, causing him extreme mental agony, shame and humiliation". |
|412 |
|Thus, in the instant case the act of stabbing cannot be taken in isolation, the accused-appellant's ambition|
|of becoming a Lecturer was shattered. He could not face the campus community because he and Maduwanti had |
|been seen as confirmed lovers in that community. His only consolation had been Maduwanti. Now he was losing |
|her. His own words to that effect was - |
| |
|[pic] |
| |
|Witness Kulatilake Bandara's description of the unusual behaviour of the accused-appellant reflects of the |
|mental agony and the strain that the accused was undergoing because of the haunting thought that he was |
|going to lose her. We could infer that he had lost all self control at that point of time he stabbed her. |
|The brutal manner in which he attacked the girl who was so precious to him and the attempted suicide by |
|taking poision are indicative of the fact that he in fact had lost his self control at the time he committed|
|the act of stabbing the deceased. |
| |
|In the circumstances, we set aside the finding and conviction of murder and the sentence of death and |
|substitute a conviction for culpable homicide not amounting to murder on the basis of intention and impose a|
|term of fifteen years rigorous imprisonment. The appeal is partly allowed. |
| |
|JAYASURIYA, J. - I agree. |
| |
|Sentence altered to culpable homicide not amounting to murder. |