Kattadige Amarasena v. The Attorney-General (CA 33/2008 decided on 2014.03.10) Penal Code, Ss.294, 296 - the mitigatory plea of grave and sudden provocation - burden of profe The facts briefly are as follows: The accused-appellant was an Attorney-at-Law who once practiced at the Magistratae Court of Walesmulla...... On a corollary and analysis of the above principles governing the mitigatory plea of grave and sudden provocation, it is quite evident that this is a concession offered by law to human frailty in the distinctive offence of murder under Section 296 of the Penal Code. The essential elements that emerge from the above principles are that the accused acted in the heat of provocation on the spur of the moment without deliberation, premeditation or calm and detached reflection. Equally, the accused should have acted in the heat of the moment almost instinctively, without any element of scheming or contriving. Where the interval of time between the cessation of the provocation and the actual causation of the crime in retaliation is considerable ,providing sufficient opportunity to cool off and control his emotions, provocation cannot be considered as sudden. In this context, the actions of the accused during this supervening interval of time must be judicially and minutely gauged and assessed to derive an insight as to whether the accused regained his self-control and acted out of venom, or still retained the rage or passion generated by the act of provocation, at the point of killing. In cases where there is an interval of time between the act of provocation and the act of retaliatory killing, the burden is on the accused to establish on a balance of probability, that all the time during the supervening interval right upto the point of killing, the accused suffered deprivation of self-control to receive the benefit of the concession under Exception 1 to Section 294 of the Penal Code.
Posted on: Fri, 28 Mar 2014 15:32:24 +0000
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