Evidence of provocation must show it was sudden and grave, affecting the accused's state of mind at the time of the act.

JUDGMENT

1. The only question to be determined in this appeal is whether the conviction for murder can be reduced to a culpable homicide not amounting to murder, in light of the evidence adduced at the trial.

Background to the appeal:

2. T he appellant was indicted for committing the murder of his wife Usliyanage Piyaseeli on or about 15.04.2008, an offence punishable under section 296 of the Penal Code . When the indictment was read out to the accused, he pleaded not guilty. The trial commenced before the Judge of the High Court of Gampaha. For the prosecution, 5 witnesses testified. The accused made a dock statement and a daughter of the deceased testified for the defense.

3. At the conclusion of the trial, the learned High Court Judge found the accused guilty of the charge. Accordingly, the accused was convicted and sentenced to death. This appeal is preferred against the said conviction and sentence.

4. Although there were several grounds of appeal, during the argument, the counsel for the accused informed that he would only contest the conviction for murder as there was sufficient evidence to reduce the charge to culpable homicide not amounting to murder committed under grave and sudden provocation.

5. It must be noted that in his dock statement, the accused admitted the cutting of the deceased neck by using a bread knife, but stated that it was done under grave and sudden provocation as the deceased was with her paramour when the accused came home.

6. Hence, the issue of paramount importance to be determined in the present appeal is whether the circumstances under which the accused causing injuries to the deceased would be sufficient to infer that it was done under grave and sudden provocation.

7. Although the accused stated that he saw the deceased with her paramour shortly before he attacked the deceased, there was no evidence forthcoming to that effect during the trial.

8. As evinced by the testimony of the defense witness, the accused had a suspicion that the deceased was having and illicit relationship with an employee at the deceased’s work place. On one occasion, the defense witness, her husband and the accused had gone to the deceased’s work place and inquired about it from the person concerned but he denied any such affair.

9. Furthermore, there was no evidence to establish that the person they had met at the deceased’s workplace was the same individual who was with the deceased on the day of the incident, as alleged by the accused in his dock statement.

10. Moreover, if the accused had seen a person named Dayananda with whom the deceased allegedly had an illicit affair, talking to the deceased and then running away upon seeing the accused, it is not sensible to believe that the deceased would have remained at the same spot until being assaulted by the accused with an axe.

11. In this regard, the evidence of the JMO Dr Jayaweera Bandara, who conducted the autopsy of the deceased would be also of much relevance. The witness whilst referring to the autopsy report marked as P 09, explained the extent of the injuries observed on the body of the deceased.

12. According to the JMO’s evidence, there was only one injury, which almost severed the head from the neck. According to his opinion, the cut injury he observed on the body was caused by a heavy sharp weapon like an axe and also was inflicted with a severe force. He testified as follows:

ප්‍ර : එම පියසීලි කියන මරණකාරියගේ ශරීරගේ තුවාල ගකාපමණ සංඛ්‍යාවක් වවද්‍යතුමා නිරීක්ෂණය කලාද්‍ ?

උ : එක තුවාලයයි.

ප්‍ර : එය පැ.09 වාර්තාගේ සඳහන් කර තිගෙනවද්‍ ?

උ : එගහමයි.

ප්‍ර : තුවාලය ද්‍කින්න ලැබුගන් මරණකාරියගේ ශරීරගේ කවර ප්‍රගේශයකද්‍ ?

උ : ගෙල්ගල්.

ප්‍ර : ඒ තුවාලය ගකාපමණ දිගකින් යුක්ත තුවාලයක් ද්‍ ?

උ : ගසන්ිමීටර 24 ක්.

ප්‍ර : ගකාගහාමද්‍ ඒ තුවාලය ගෙල්ගල්