BANDARA V. HON. ATTORNEY GENERAL

BANDARA V. HON. ATTORNEY GENERAL

SUPREME COURT
DR. SHIRANI A. BANDARANAYAKE, C.J.
AMARATUNGA, J. AND
IMAM,
S.C. APPEAL NO. 62/2008
SEPTEMBER 9th , 2010

Penal Code - Section 293 - Culpable homicide - Section 294 - Culpable homicide is murder subjected to exceptions stated in Section 294- Exception 4 - Plea of sudden fight

This was an appeal from the judgment of the Court of Appeal by which the Court of Appeal had dismissed the appeal of the Accused - Appellant - Appellant and affirmed the judgment of the High Court. The High Court convicted the appellant for murder and the death sentence was imposed.

The Appellant preferred an application to the Supreme Court for special leave to appeal and the Supreme Court granted leave on the following question.

"Did the Court of Appeal misdirect itself by failing to evaluate the possibility of sudden fight that spontaneously occurred between the parties."

Held :

(1) The offence of murder in terms of Section 294 of the Penal Code is reduced to culpable homicide not amounting to murder under  Section 293 of the Penal Code, if any of the five exceptions to Section 294 could be shown to apply.

(2) The Exception 4 to Section 294, the plea of sudden fight indicates that the basis for investigation is purely dependent on the fact that the murder had taken place in a sudden fight, which had occurred  in the heat of passion upon a sudden quarrel. An important ingredient which is necessary in such instance would be that there was no malice or vindictiveness.

(3) In order to come within the Exception 4 of Section 294 of the Penal  Code, it is necessary to satisfy the specific requisites referred to in Section 294 of the Penal Code. Viz :

1. It was a sudden fight

 2. there was no premeditation

3. the act was committed in a heat of passion; and

4. the accused had not taken any undue advantage or acted in a cruel manner.

Per Dr. Shirani A. Bandaranayake,CJ.

    "A sudden fight cannot be premeditated as the word ' sudden' clearly means that there cannot be any such pre-arrangements. It should also be noted that the lapse of time between the initial argument and the final fight is material for an accused to  come within Exception 4, since the lapse of time may grant the opportunity for an accused to premeditate and make arrangements for a fight. Such a fight is not spontaneous and therefore cannot be regarded as one that could be described as sudden."

APPEAL from a judgment of the Court of Appeal.

Cases referred to :

1.    Surinder Kumar V. Union Territo y Chandigarh - AIR (1 993) SC2426

2.    Kikar Singh v. State of Rajasthan -AIR (1993) SC 2426

3.    Bhagwan Munaji Pawade V. State of Maharashtra - AIR (1979) SC 133

4.    State of HimachaI Prcldesh V. Wazir Chend and Others -AIR (1978) SC 315

5.    Pandurang Narayana Jawalekar V. State of Maharashtra - AIR (1978) SC 1082

6.    Jumman and others V. State of Punjab -AIR (1957) SC 469

7.    Amrithalinga Nadar V. State of Tamil Nadu - AIR (1 976) SC 1133

8.    Ahamed Sher and Others V. Emperor - AIR (193 1) Lahor 513

9.    Gajanand and Others V. State of Utar Pmdesh - AIR (1954) SC 695

10.    Dharman V. State of Punjab - AIR (1957) SC 324

Shanaka Ransinghe with Suraj Rajapaksha for Accused - Appellant - Appellant

A. Jinasena, SSC for Complaint - Respondent - Respondent

Cur.adv. vult

October 12th 201 1

DR. SHIRAWI A. BANDARANAYAKE, CJ.

    This is an appeal from the judgment of the Court of Appeal dated 13.07.2007. By that judgment the Court of  Appeal had dismissed the appeal of the Accused-Appellant- Appellant (hereinafter referred to as the appellant) and affirmed the judgment of the High Court of Ampara dated 07.07.2004 by which the appellant was convicted of the  charge of murder imposing the death sentence.

    The appellant preferred an application before this Court  for special leave to appeal on which such leave was granted. At the s

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