Murder vs. Culpable Homicide: An Analysis of the s.293 /s.

294 of the

Penal Code Sri Lanka

Hasini Disanayaka

“Death is the cessation of all biological functions that sustain a living organism.”1There are four

circumstances of death. Those are naturally, accidentally, suicide and homicide. Homicide is killing a

human being.2 Homicide can be divide into two categories as lawful and unlawful. Killing a person by

solider in war and capital punishment are examples of lawful homicide. But criminal law deals only

with an unlawful homicide which has two aspects.3

1. Culpable homicide not amounting to murder.

2. Culpable homicide amounting to murder.

Murder is the most severe crime in this country and it ends up with the death penalty.4 Murder is a
part of the culpable homicide. So this paper focused on the following areas.

1. What is “culpable homicide”

2. What is “murder”
3. How murder differ from culpable homicide
4. How identification of the difference between s.293 and s.294 important to the discussion of
murder
5. Elements of murder
6. Discuss each exception for s.294
7. Critical analysis of controversial areas in the law regarding murder

According to s.293 culpable homicide contains three limbs.5

1. The intention of causing death.

2. The intention of causing such bodily injury as is likely to cause death or,
3. The knowledge that death is likely to be caused.

1
Wikipedia. “Death.” Wikipedia: The Free Encyclopedia. Wikimedia Foundation,
<https://en.wikipedia.org/wiki/Death >
2
“The Law of Murder.” E-lawresources.co.uk.< http://www.e-lawresourses.co.uk/The-law-of-murder.php >
3
G.L. Peiris, Offences under the Penal Code of Sri Lanka. 4th ed., (Colombo: Stamford Lake Private Ltd, 2009),
p.75.
4
Penal Code of Ceylon, Section 296, 1883.
5
G.L. Peiris, Offences under the Penal Code of Sri Lanka. 4th ed., (Colombo: Stamford Lake Private Ltd, 2009),
p.77.
1
 But S.294 contained four limbs and it explains four instances where culpable homicide became
murder.

1. “If the act by which the death is caused is done with the intention of causing death.
2. If it is done with the intention of causing such bodily injury as the offender knows to be likely
to cause the death of the person to whom the harm caused or
3. If it is done with the intention of causing injury to any person and bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to cause death.
4. If the person committing the act knows that is so imminently dangerous that it must in all
probability cause or such bodily injury as is likely to cause death, and commits such act without
any excuse for incurring the risk of causing death or such injury as aforesaid.”6

Culpable homicide is a most extensive category and murder is restricted in scope. But murder is
the gravest offence. According to that, "All cases of murders are a case of culpable homicide, but not
vice versa."7

Both culpable homicide and murder Actus Reus is the same, death of a human being caused in
either case.8 But material differences are in mens rea. Both s.293 and s.294 setting out mental element
as the intention of causing death.9 The problem is, what the murderous intention is. Several case law
shows the identification of murderous intention depends on the circumstances. Ex:-

1. The inference of a murderous intention was reinforced by evidence of a direct threat on the part
of the accused. King v Bellana Vitanage Eddin case, before the fatal assault, accused said that
"Before dawn, I will kill you".10
2. Nature of the wound and part of the body where the blows were intended to alight can take into
determining the murderous intention.11 In Fernando case stabbed back of the abdomen and
blade had penetrated 1.5 inches.

So, it is of the vital importance of differentiating the offence of murder from culpable homicide not
amounting to murder given the different penalties applicable.12

2nd clause of s.294 and s.293 both emphasis intention of causing such bodily injury as is likely to
cause death. Next problem is the difference between these two. Prof. Peiris said both 2nd limb in s.293
and s.294 applies where the victim suffers from some disease, infirmity or other abnormality. But in

6
Penal Code of Ceylon, Section 294, 1883.
7
G.L. Peiris, Offences under the Penal Code of Sri Lanka. 4th ed., (Colombo: Stamford Lake Private Ltd, 2009),
p.75.
8
G.L. Peiris, Offences under the Penal Code of Sri Lanka. 4th ed., (Colombo: Stamford Lake Private Ltd, 2009),
p.76.
9
Penal Code of Ceylon, Section 293, s.294 (1), 1883.
10
King v Bellana Vitanage Eddin (1940) 41 N.L.R. 345, P.346.
11
Fernando v King (1945) 39 C.L.W. 22, p.23.
12
Penal Code of Ceylon, Section 296, 297, 1883.
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murder accused fully aware of the condition of the victim and intentionally cause injury. Inculpable
homicide accused intentionally causes injury but he does not aware of the exceptional circumstances
and weakness of the victim.13

Ex: - Kolonda v State case, accused caused a kick on the left side of the deceased. It was directly
over the ruptured spleen of the deceased. Moncreiff J. said, "In order to make out a charge of murder
the accused must have known that the spleen was diseased.”14

Furthermore, 2nd and 3rd clauses of s.294 applied regarding cause injuries likely to cause death
and cause injuries sufficient in the ordinary cause of nature to cause death.15 Both emphases cause
injuries and cause death. So what is the difference? 2nd clause applies in circumstances where the victim
condition is extraordinary and accused fully aware of the victim’s weakness and intentionally cause
harm. But in s.294 (3) envisages where the deceased’s condition is not extraordinary.16

Then what is the difference between causing injury likely to cause death in s.293 and causes
injury ordinary cause of nature to cause death in s. 294(4)? Mendis was the landmark case which
discussed this difference. In this case, the blow shattered the bones in the leg of the injured man and
later on, he died of toxemia. “The words sufficient in the ordinary cause of nature to cause death in
clause 3 of definition murder require that the probability of death ensuing from the injury inflicted was
not merely likely but very great, though not necessarily inevitable”. 17
Gratiaen J. highlighted if the
evidence establishes the lesser degree of death ensuing from the act committed then it fallen under the
cause injury likely to cause death.18

3rd limb of s.293 and 4th limb deals with knowledge. But in murder postulates knowledge of a
more definite degree than s.293.19

The offence of murder can be reduced to culpable homicide not amounting to murder if any of
five exceptions to s.294 applies.20 But these don't affect to eradicate criminal responsibility. The first
exception is the plea of the grave and sudden provocation. The exact meaning of word "grave" still a
controversy in Sri Lanka. Ex: - David Appuhamy, Jamis21 cases give a various definition for
provocation. There are 3 explanations for this exception.22 The judgment of the Punchirala case upheld

13
G.L. Peiris, Offences under the Penal Code of Sri Lanka. 4th ed., (Colombo: Stamford Lake Private Ltd),
p.79.
14
King v Kolonda (1901) 5 N.L.R. 236, p.238.
15
G.L. Peiris cited s.294 (2), s. 294(3) of Penal Code of Ceylon, Offences under the Penal Code of Sri Lanka.
4th ed., (Colombo: Stamford Lake Private Ltd, 2009), p.79.
16
G.L. Peiris, Offences under the Penal Code of Sri Lanka. 4th ed., (Colombo: Stamford Lake Private Ltd,
2009), p.80.
17
King v Mendis (1952) 54 N.L.R. 177, p.180.
18
King v Mendis (1952) 54 N.L.R. 177, p.180.
19
G.L. Peiris, Offences under the Penal Code of Sri Lanka. 4th ed., (Colombo: Stamford Lake Private Ltd), p.80.
20
Penal Code of Ceylon, Section 294, 1889.
21
David Appuhamy v State (1952) 53 N.L.R. 313, p.315: State v Jamis (1952) 53 N.L.R. 401, p.403.
22
Penal Code of Ceylon, Section 294, Exception 1, 1883.
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intoxicated condition of the accused can be taken into account of grave provocation.23 But this changed
in Mutthu Banda case which said voluntary intoxication of the accused is not be affecting to the gravity
of the provocation.24

English law concept of cumulative provocation first brought to Sri Lankan law through the
Saamithambi case.25 In Premlal v AG case conviction of murder reduced to the culpable homicide not
amounting to murder based on cumulative provocation.26

The second exception discusses bona fide excess of the right of the private defence.27Both
Muttu, Soysa cases trial judge convicted accused of murder but in Court of appeal, the evidence
established accused acted within his right of private defence.

Third exception dealing with Bona Fide overstepping of authority by a public servant.28
According to G.L. Peiris, three limiting factors are contained in the requirements that death should have
been caused, in good faith, in the purported exercise of the functions of a public servant and without
malice towards the victim. The fourth exception is Plea of the sudden fight.29 In State v Chandrasekara
case court held that if forth exception and other exceptions are involved in doubt, then accused must
satisfy the jury on a balance of probability.30

The last exception provides that the cases of a mother who causes the death of her child under
the age of twelve months while the balance of her mind is distributed by reason of her not having fully
recovered from the effect of giving birth to the child or by reason of the effect of location consequent
on the birth of the child.31 However, this exception was introduced to Criminal law by section 2 of No
62 of 1939.32

In several occasions above discussion highlighted some controversial areas of law, regarding
murder in Sri Lanka.

1. s. 294 (4) that the principle regarding criminal knowledge embodies very restricted application.
2. Proper construction of the word “Grave” subject to controversy.

23
King v Punchirala (1924) N.L.R. 458. P.458.
24
The Queen v Muttu Banda (1954) 56 N.L.R. 217.p.218.
25
Chinthaka Weerakoon Cited Saamithambi v Queen 75 N.L.R. 49, Criminal Law (Sinhala), (Colombo: Godage
and Brothers Private Ltd, 2013), p.100.
26
Premlal v AG (1998) N.L.R. 403. p.404.
27
Penal Code of Ceylon, Section 294. Exception 2, 1883.
28
Penal Code of Ceylon, Section 294. Exception 3, 1883.
29
Penal Code of Ceylon, Section 294. Exception 4. 1883.
30
Queen v James Chandrasekara (1942) 43 N.L.R. 97.
31
Penal Code of Ceylon, Section 294, Exception 5, 1883.
32
G.L. Peiris, Offences under the Penal Code of Sri Lanka. 4th ed., (Colombo: Stamford Lake Private Ltd,
2009), p.134.
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 3. Sri Lankan criminal law didn't recognize felony murder and misdemeanour manslaughter rules
of English law.33
4. In many cases, trial judges didn't give correct directions to the jury. Later Supreme Court
corrected the previous judgments.
 Ex:-Trial judge gave directions to consider only about murder and said not consider
about culpable homicide. Babanis34, Nadar35

Murder is the most severe crime and its universally recognized crime. But laws are different
from country to country. As an example in the USA legal system identified first degree, second degree
murder and voluntary manslaughter as main degrees of murder. All culpable homicides are not murders
but all murders are culpable homicide. Differentiate of culpable homicide and murder is important
regarding different penalties. The offence of murder can be reduced to culpable homicide if any of five
exceptions to s.294 applies and if any general exceptions apply then it eradicates total criminal
responsibility.36 However case law shows some controversial areas in the law regarding murder in Sri
Lanka. So Sri Lankan legal system must be considered about the reduction of above weaknesses with
regarding laws in other countries and some areas which relating to murder should be more extensive.
Then only Sri Lankans can be partners of the great legal system.

33
G.L. Peiris, General Principles of Criminal Liability in Ceylon, (Colombo: Stamford Lake Private Ltd, 1972),
pp. 32-33.
34
King v Babanis (1944) 45 N.L.R. 119.p.120.
35
King v Nadar (1950) 44 C.L.W. 64. p.64.
36
Penal Code of Ceylon, Chapter 4, 1883.
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