PENAL CODE EXCEPTION TO 296
RATHNAYAKE MUDIYANSELAGE MAHINDA RATHNAYAKE v.
ATTORNEY-GENERAL
Court of Appeal (Criminal) CA/HCC/0007/2022 - High Court of Gampaha No. 20/2008 - Before: P. Kumararatnam J., and Pradeep Hettiarachchi J.Argued on: 09.09.2025 Decided on: 13.10.2025
Criminal Law Murder Section 296 of the Penal Code Exception
1 to Section 294 Cumulative or Continuing Provocation Psychological trauma and
loss of self-control Burden of proof under Section 105 of the Evidence
Ordinance Transformation of charge to Culpable Homicide not amounting to Murder
under Section 297 Sentencing discretion.
SUMMARY BY BLOGGER
The Appellant was indicted in the High Court of Gampaha for the murder of Rajakaruna Mudiyanselage Chaminda Bandara alias Gamini, punishable under Section 296 of the Penal Code.
He was convicted and sentenced to death after trial.
On appeal, it was contended that the learned High Court Judge had failed to consider the plea of cumulative provocation, arising from continuous emotional distress caused by the deceased’s illicit affair with the Appellant’s wife, which deprived the Appellant of his family affection and caused mental trauma.
The prosecution evidence confirmed that the Appellant had been deeply disturbed on the day of the incident, expressing anguish to co-workers before the killing. The defence argued that this long-standing emotional strain triggered a loss of self-control, warranting mitigation under Exception 1 to Section 294.
Held:
The plea of cumulative provocation falls within Exception 1 to Section 294 of the Penal Code. Courts must assess the entire series of events that caused the accused’s mental breakdown, not merely the immediate act preceding the homicide. The “proximity in time” between provocation and act must be judged in the context of the offender’s psychological suffering.
The High Court erred in failing to extend the mitigatory benefit of cumulative provocation, as the evidence disclosed a continuing pattern of emotional trauma resulting from the deceased’s illicit relationship with the Appellant’s wife.
Where sustained mental suffering deprives the accused of self-control, the act falls short of murder.
Premalal v. Attorney-General [2000] 2 Sri L.R. 403
followed.
R.W.M. Nandana Senarathbandara v. Attorney-General SC
Appeal 32/2015, S.C. Minutes of 17.07.2020 applied.
Development of law on cumulative provocation recognized.
Earlier restrictive English interpretation of “grave and
sudden provocation” replaced by a broader, humane approach recognizing
“continuing or sustained provocation.”
Indian precedents Poovammal v. State (2012 (2) MLJ (Crl.)
482) and Suyambukkani v. State of Tamil Nadu (1989 LW (Crl.) 86) cited, showing
that a prolonged chain of torment can culminate in loss of self-control at the
breaking point.
Burden under Section 105 of the Evidence Ordinance:
The accused bears the responsibility to establish the
existence of an exception on a balance of probabilities. However, where
evidence discloses mitigating circumstances, the court must extend the benefit
of the lesser verdict even if the defence did not expressly plead it.
The King v. Bellana Vithanage Eddin (41 NLR 345) applied.
DECISION
Conviction for murder set aside.
Appellant convicted of Culpable Homicide not amounting to
Murder under Section 297 of the Penal Code.
Sentence: 10 years’ rigorous imprisonment, fine of Rs.
10,000/- (default 1 year’s simple imprisonment), and compensation of Rs.
250,000/- to the deceased’s family (default 1 year’s simple imprisonment).
Precedents (in Summary Form):
Case Principle
of Law
The King v. Bellana Vithanage Eddin (41 NLR 345) Duty of court to consider culpable
homicide if evidence allows, even if defence not raised.
Premalal v. Attorney-General [2000] 2 SLR 403 Courts may consider cumulative provocation
arising from prolonged emotional strain.
W.A. Gamini v. Attorney-General CA/142/2009
“Continuing provocation” recognised when a chain of
distressful events deprives the accused of self-control.
R.W.M. Nandana Senarathbandara v. Attorney-General SC
Appeal 32/2015 Jurisprudence
widened to include prior events as elements of provocation; concept of
cumulative provocation affirmed.
Poovammal v. State (2012 (2) MLJ (Crl.) 482) “Sustained provocation” in Indian law
recognised as a valid mitigatory plea.
Suyambukkani v. State of Tamil Nadu (1989 LW (Crl.) 86) Differentiates
“sustained provocation” from “sudden provocation”; the final act may be the
“last straw.”
Summary
This judgment consolidates Sri Lanka’s evolving approach
to mitigatory pleas in homicide, recognizing the psychological dimension of
continuing provocation within the framework of Exception 1 to Section 294 of
the Penal Code.
It reinforces a compassionate, humanized interpretation of
criminal responsibility, acknowledging that prolonged emotional agony can erode
self-control, while maintaining judicial caution under Section 105 of the
Evidence Ordinance.
END OF THE COMMENTS BY BLOOGER
JUDGMENT
IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST
REPUBLIC OF SRI LANKA
In the matter of an Appeal made under Section 331 of the
Code of Criminal Procedure Act No.15 of 1979.
DECIDED ON : 13/10/2025 *JUDGMENT*
P. Kumararatnam J
The above-named Accused-Appellant (hereinafter referred to
as the Appellant) was indicted for committing the murder of Rajakaruna
Mudiyanselage Chaminda Bandara alias Gamini on 30/11/2005, which is an offence
punishable under Section 296 of the Penal Code.
After a non-jury trial, the Learned High Court Judge has
found the Appellant guilty of the charge and sentenced him to death on
15/11/2021.
Being aggrieved by the aforesaid conviction and sentence,
the Appellant preferred this appeal to this court.
The Learned Counsel for the Appellant informed this court
that the Appellant has given consent for the matter to be argued in his
absence. Also, at the time of argument the Appellant was connected via zoom
from prison.
On behalf of the Appellant only one Ground of Appeal is
raised. According to the counsel for the Appellant, evidence led at the trial
warrants the consideration of the plea of cumulative provocation, which had not
been adequately dealt with by the Learned High Court Judge in his judgment.
Background of the Case albeit briefly is as follows:
According to PW10 Ajith Sampath Kumara, a cousin of the
deceased, the deceased was a worker attached to a factory named “Lanka Cables”
situated in the Nittambuwa Investment Zone. As the deceased was not from the
area, this witness along with the deceased and some others had been renting a
house in Yatiyana, Wathupitiwala. This witness, the deceased and PW11 had gone
to bed around 9.30-10.00 p.m. on the night in question. He had shared the bed
with the deceased.
This witness had woken up around mid-night hearing a ‘Chuk
Chuk’ sound. The room was dark and the witness had seen a person standing
beside the deceased with a Kinfe. Reacting immediately, this witness had kicked
the person holding the knife but the intruder had run through the main Parlor
of the house. Although PW10 had given chase after the intruder, he had been
unable to apprehend the person but he had identified him as the Appellant.
According to PW9, on the night of the incident, the
Appellant was on duty at the said “Lanka Cables”. He had observed that the
Appellant was in a sad mood. Upon inquiry, the Appellant had told him that his
wife was having a clandestine affair with the deceased. Due to this the
Appellant had told him that he was not in a good mood to work. Therefore, PW9
had advised him to sleep inside the working place. When he got to know about
the deceased’s murder, he had searched for the Appellant inside the factory but
had been unable to find him at that time.
According to the JMO who held the post mortem on the
deceased’s body, there had been 06 cut injuries in the neck area of the body.
According to the JMO, the death had been caused due to bleeding from the neck,
caused by a sharp cutting weapon.
The Counsel for the Appellant takes up the position that
the case against the Appellant should have been considered under the plea of
cumulative
provocation and that he should have been convicted not for
murder but for culpable homicide not amounting to murder under 297 of the Penal
Code.
According to exception 1 of Section 294 of the Penal Code;
“Culpable Homicide is not murder if the offender whilst
deprived of the power of self-control by grave and sudden provocation, causes
the death of the person who gave the provocation, or causes the death of any
other person by mistake or accident”
The explanation under this exception read as that’
“Whether the provocation was grave and sudden enough to
prevent the
offence from amounting to murder is a question of fact”.
Although the counsel for the Appellant seeks relief
lessening the culpability by application of the plea of cumulative provocation,
on perusal of the evidence led before the High Court no evidence of provocation
was elicited either from the evidence of the prosecution nor was the same
suggested during the cross examination. According to Section 105 of the
Evidence Ordinance, it is the responsibility of the Appellant to prove the
existence of a general or special exception during the trial on a balance of probabilities.
In the absence of such proof, the Learned Trial Judge should direct his mind to
the circumstances and the fact that the Appellant is entitled to have the
benefit of the lesser verdict.
In The King v Bellana Vithanage Eddin 41 NLR 345 the court
held that:
"In a charge of murder, it is the duty of the judge
to put to the jury the alternative of finding the accused guilty of culpable
homicide not amounting to murder when there is any basis for such a finding in
the evidence on record, although such defence was not raised nor relied upon by
the accused”.
It is very important at this stage to discuss the
development of law regarding the acceptance of cumulative provocation as a
special exception to a murder charge in our jurisdiction.
In Premalal v Attorney General [2000] 2 SLR 403
Kulatilaka, J held that:
“Until the judgment of Chief Justice H.N.G Fernando in
Samithamby v Queen (1) (de Krester,J-dissenting) our court 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 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”.
Kulatilaka, J. further held that:
“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 consideration the prior course of relationship
between the accused and his victim”.
In W. A. Gamini v Attorney General CA/142/2009 the court
held that:
“the chain of stressful events in the troubled
relationship of the accused and the deceased culminating in the aforesaid
unfortunate incident, are probable reasonably sufficient to entertain a plea of
continuing or cumulative provocation because the accused retaliated at the spur
of the
moment and that he could reasonably show that he was
deprived of his self-control”.
Citing the above two judgments His Lordship Jayantha
Jayasuriya C. J. in
R. W. M. Nandana Senarathbandara v Attorney General
SC/Appeal/32/2015 decided on 17/07/2020 held that:
“Jurisprudence referred to above demonstrate that in
considering the plea of grave and sudden provocation an accused is entitled to
rely upon a series of prior events that ultimately led to the incident at which
the death was caused. A court should not restrict its focus to an isolated
incident that resulted in the death, in considering a plea of grave and sudden
provocation. The aforementioned jurisprudence has widened the scope of this
plea by expanding the limitations recognized in its statutory form. Thereby,
the concept of “Continuing or Cumulative” provocation has been recognized as a
plea coming within the purview of the plea of grave and sudden provocation
recognized under Exception-1, section 294 of the Penal Code. Therefore, the
proximity of time between the “actus reus” of the accused and the “provocative
act” of the victim should be considered in the context of the nature and
circumstances in each case, in deciding whether an accused is entitled to the
benefit of the plea of Grave and Sudden Provocation”.
Further His Lordship in R. W. M. Nandana Senarathbandara v
Attorney General (Supra) has cited an Indian Judgment to explain how the
concept of ‘Sustained Provocation’ has been recognised and developed by the
Superior Courts of India.
In Poovammal v State 2012 (2) MLJ (Crl.) 482 the court
held:
“30. Under the English Criminal Law, the provocation must
be grave and also sudden. But, by way of judicial thinking, the Indian Criminal
Law has gone ahead. (K. M. NANAVATHI Vs STATE OF MAHARASTRA [A.I.R.) 1962
S.C. 605). In our system, there is the concept of
“Sustained Provocation”. It is concerned with the duration of the provocation.
There may be incidents/occurrences, which are such that they may not make the
offender suddenly to make his outburst by his overt act. However, it may be
lingering in his mind for quite some time, torment continuously and at one
point of time erupt, make him to lose his self-control, make his mind to go
astray, the mind may not be under his control/command and results in the offender
committing the offence. The sustained provocation/frustration nurtured in the
mind of the accused reached the end of breaking point, under that accused
causes the murder of the deceased.”
…………….
“34. In SUYAMBUKKANI Vs STATE OF TAMIL NADU [1989 LW
(Crl.) 86], it
is held as under: - “Though there has been here and there
attempts in those decisions to bring the sustained provocation under
Exception-1 to Section 300, I.P.C., there is a cardinal difference between
provocation as defined under Exception-1 and sustained provocation. The only
word which is common is ‘provocation’. What Exception-1 contemplates is a grave
and sudden provocation, whereas the ingredient of sustained provocation is a
series of acts more or less grave spread over a certain period of time, the last
of which acting as the last straw breaking the camel’s back may even be a very
trifling one. We are, therefore, far from grave and sudden provocation
contemplated under Exception-1 to Section 300, I.P.C. Sustained provocation is
undoubtedly an addition by Courts, as anticipated by the architects of the
Indian Penal Code”.
Considering the above cited judgments and the background
of this case, I
`now consider whether this is an appropriate case in which
the plea of cumulative provocation under Exception-1 to Section 294 of Penal
Code should be considered.
In this case the Appellant was away from home due to his
employment. He was suffering mentally due to the fact that his wife was having
an illicit affair with the deceased. PW9 had noted that the Appellant was in a
troubled mood at the time of this incident. Further, due to this affair, the
Appellant was deprived of the love and care of his wife.
Further depriving the love, care and trust of a wife is an
unbearable mental agony, especially to the husband. This will cause trauma and
affect him psychologically and may cause him to remain in the phases of denial
and anger of the loss for extended periods of time.
The Learned Deputy Solicitor General in keeping with the
highest tradition of the Attorney General’s Department informed that she is in
agreement with the Counsel for the Appellant and that this is an appropriate
case in which the first exception to Section 294 of the Penal Code should be
considered.
Analysing the evidence presented in this case it clearly
demonstrates that the stressful events and the strained relationship of the
Appellant and the deceased had resulted in the unfortunate incident. Although
the Learned High Court Judge had briefly discussed the concept of cumulative
provocation, he had not awarded the benefit to the Appellant under the said
mitigatory plea.
Considering all the circumstances stressed before this
court I conclude that this is an appropriate case in which the first exception
under Section 294 of the Penal Code being the mitigatory plea of cumulative
provocation should be considered for the Appellant’s benefit.
Hence, I hereby set aside the death sentence and convict
the Appellant for
culpable homicide
not amounting to murder under Section 297 of the Penal
Code. I sentence the Appellant for 10 years rigorous
imprisonment commencing from the date of conviction namely 15/11/2021.
Additionally, I order a fine of Rs.10,000/- with a default sentence of one-year
simple imprisonment. The Appellant is further directed to pay a compensation of
Rs.250,000/- to the deceased’s family. If he does not pay the compensation, he
has to serve a default sentence of one-year simple imprisonment.
Subject to the above variation the appeal is hereby
dismissed.
The Registrar is directed to send this judgment to High
Court of Gampaha along with the original case record.
JUDGE OF THE COURT OF APPEAL - Pradeep Hettiarachchi, J.
I agree - JUDGE OF THE COURT OF APPEAL
Comments
Post a Comment