Judgment

1. In this case, the accused–appellant (hereinafter referred to as “the appellant”) was indicted for the murder of his wife, Mudiyanselage Chandrawathie, an offence punishable under Section 296 of the Penal Code. The trial was conducted before the learned High Court Judge of Badulla without a jury, and at the conclusion thereof, the appellant was found guilty of the charge. Accordingly, the learned High Court Judge convicted the appellant and imposed a death sentence on him. It is against the said conviction andsentence, theAppellant has preferred theinstant appeal.

2. Although several grounds were urged by the appellant in his petition of appeal, at the stage of argument the appellant confined his challenge to a single argument, namely, that the Appellant had not entertained a murderous intention at the time of assaulting the deceased. The appellant’s case, therefore, turns essentially on the question of intention,and itis thisissuethat now falls fordetermination.

3. The sole question that arises for consideration in this appeal is whether, at the time of assaulting the deceased, the appellant entertained the murderous intention necessary to sustaina conviction for theoffence ofmurder underSection 296of thePenal Code.

4. In considering this issue, it is necessary to examine both the factual matrix of the case and the legal principles governing the offence of murder under Section 296 of the Penal Code.The prosecution must establish beyond reasonable doubt that the appellant caused the death of the deceased with the intention of causing her death or with the knowledge that the act was so imminently dangerous that it must, in all probability, cause deathor such bodilyinjury as is likelyto cause death.

5. The evidence led at the trial, particularly the testimony of the prosecution witnesses, clearly establishes that the appellant inflicted the injuries onthe deceased. This fact has not been seriously disputed by the defence. What is in issue, however, is the mental element, whether the appellant acted with the murderous intention required to constitutetheoffence ofmurder.

6. The appellant’s argument, as advanced at the hearing of the appeal, is that the assault on the deceased occurred in the heat of passion and without premeditation, and therefore the requisite intention under Section 296 was absent. In support of this argument, learned Counsel for the appellant drew attention to the events preceding the assault, as evidenced by the prosecution’s case, and urged that the appellant’s conduct was more consistent with culpable homicide not amounting to murder under Section 297ofthePenal Code.

7. It is, therefore, incumbent upon this Court to consider whether the totality of the evidence supports the inference of a murderous intention beyond reasonable doubt, or whether the circumstances instead point to a lesser offence, either on the basis of knowledge or any mitigatory plea. For a mitigatory plea to be considered, all the ingredients required to establish the offence of murder must first be present. It is only then that themitigatory pleacan betaken intoaccount.

8. However, if the evidence does not establish the requisite murderous intention but only the existence of knowledge, then the appellant can be convicted only of culpable homicide on the basis of knowledge under Section 297 of the Penal Code. In such a situation,theconsideration ofa mitigatory pleadoes not arise.

9. Thus, the critical issue for determination in the present case is whether the appellant’s act of assaulting the deceased was accompanied by the degree of intention or knowledge necessary to constitute the offence under Section 294, or whether the circumstances warrant a reduction of the charge to culpable homicide not amounting to murder underSection 297,either onthebasis oflack ofintent ora pleain mitigation.

10.The sole eyewitness who testified at the trial was S.S. Madhushanka, the son of the appellant and the deceased. The prosecution also relied on the dyi