DONA DHARMARATNA MANIKE

DONA DHARMARATNA MANIKE
vs.
ATTORNEY GENERAL

COURT OF APPEAL
H.N.J. PERERA J.
JAYATILEKE J.
CA15/2012
HC KEGALLE 2577/07
FEBRUARY 28, 2014

Penal Code - Section 293, Section 295, Section 296, Section 297- Convicted for murder-Sentence of death-Failure of Court to consider lesser culpability- Sudden Provocation-cumulative provocation.

The accused-appellant was convicted of the Murder of one R and sentenced to death. The version of the accused was that she had thrown acid at the accused when he embraced her for the sake of safety, and she too got injured on her eyes, mouth, heads and legs. The version of the deceased, was that the accused had invited him home in the night and scolded him saying that, she could not go into the public as she had been condemned all over. They were having an illicit affair.

On appeal- it was contended on behalf of the accused, that the trial judge could have considered the lesser culpability and the exception of private defence in the teeth of the evidence led and contended that the trial judge has erroneously concluded that the accused-appellant had preplanned the incident and that the defence version was improbable.

Held:

[1] On the evidence- any prudent man would not accept that the series of her acts are performed by a person having the intention of killing another. She may have acted on cumulative provocation, it cannot still  be counted as a sudden provocation.

[2] Under the circumstances as unfolded it is apparent that the accused-appellant had no knowledge that her acts would result definitely in the death of the accused.

[3] When one needs to know what is meant by culpable homicide not amounting to murder is what has to be done is to deduct Section 294, from Section 293 then the remainder is the culpable homicide not  amounting to murder.

[4] Where there is a doubt whether the degree of knowledge reflected in the act is insufficient to convict the accused appellant for the charge of murder, benefit of the doubt should be exercised in convicting the  offender for lesser culpability.

[5] Prosecution in preparing a charge of murder should be held in a position to place evidence before the Court to establish that in the ordinary course of nature there was a very great antecedent probability [as opposed to a mere likelihood] of the supervening condition arising as a consequence of the injury inflicted and also of such supervening condition resulting in death.

Per Jayatileke J.

"I am of the opinion that the framework of facts of this case, is the remainder when Section 294 is taken off -Section 293- when the facts of this case are substituted for the explanation 2 of Section 293 since any one of the limbs in Section 294 are not found among those facts, What we find is not murder, but culpable homicide not amounting to murder, when there is an intention to cause bodily injury likely to cause death which is the 2nd clause of Section 293 and the injury caused not necessarily results in death in the ordinary course of nature such an act comes within the first part of Section 297".

[6) The trial judge has erred in convicting the accused in the charge of murder.

APPEAL from a Judgment of the High Court of Kegalle.

Cases referred to :

1. Chandrasena vs. AG 2008 2 Sri LR 255
2. Sudarshan Kumar vs. State of Delhi 1974 AIR SC Vol. 61- 2328
3. Somapala vs. The Queen 72 NLR 121
4. Mendis vs. The Queen 1952 54 NLR 177

Dr. Ranjit Fernando with Samanthi Rajapakse for accused-appellant.

S. Wijesinghe DSG for Attorney General.

Cur.adv.vult.

March 12, 2015

P.W.D.C. JAYATHILAKE J.

Watagoda Gallage Dona Dharmaratna Menike, the Accused Appellant has been convicted for committing the murder of Rajapaksalage Prasanna Rajapaksa on the 07th of February 2006 and sentenced to death. Being  aggrieved with the said conviction and the sentence, the Accused Appellant has submitted this appeal in this

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