Murder

Archbold – Murder Definition

The following definition is based on that laid down by Lord Hale modified to
conform with changes made by statute and the decisions of the courts.

“Subject to three exceptions, the crime of murder in committed where a

person of sound mind and discretion - unlawfully kills any reasonable creature
in being and under the Queens peace with intent to kill or cause grievous
bodily harm.

An offence which would otherwise be murder is reduced to manslaughter if the

accused
(a) was provoked
(b) suffered from diminished responsibility
(c) was acting in pursuance a suicide pact

if a man is suffering from a disease, which in all likelihood would terminate his
life in a short time, and another gives a wound or hurt which hastens his death,
this is such a killing as constitutes murder.

Homicide Killing of a human being by human being

Lawful Unlawful

Lawful – Several cases falling under General Exceptions

Unlawful - (i) Culpable Homicide not amounting to murder (Sec. 293)
(ii) Murder (Sec. 294)
(iii) Rash and negligent homicide (Sec. 298)

Page 1 of 16
Culpable homicide
Culpable homicide is the first kind of unlawful homicide. It is the causing of
death by doing:
(i) An act with the intention of causing death
(ii) An act with the intention of causing such bodily injury as is likely to
cause death’ or
(iii) An at with the knowledge that it was likely to cause death.

Ingredients :
1. Causing of death of a human being.

2. Such death must have been caused by doing an act

(i) With the intention of causing death; or

(ii) With the intention of causing such bodily injury as is likely to cause death.

(iii) With the knowledge that the doer is likely by such act to cause death.

The fact that the death of a human being is caused is not enough. Unless on of the mental
state mentioned in ingredient is present an act causing death cannot amount to culpable
homicide.

Section 30 - Words referring to the ‘acts’ include illegal omissions

Under section 30 words which refer to acts done extend also to illegal omissions and the
word illegal is applicable to every thing which is an offence or which is prohibited by law,
therefore death caused by illegal omission will amount to culpable homicide.

“ Often it is contended that as the accused had administered a single blow to the victim or
gave merely a lathi blow to him, he probably did not have the requisite intent or knowledge
of causing death and as such his act may not amount to culpable homicide amounting to
murder. indeed, there is no rule of thumb like this ; it all depends on the facts and
circumstances of each case. Thus where in a premeditated attack the accused gave only one
blow with a lathi on the head of the deceased with such great force that it immediately

Page 2 of 16
resulted in the latter’s death , it was held he was clearly guilty of culpable homicide
amounting to murder under clause thirdly ( of section 294) - Ratnalal

PRASAD PERERA v THE ATTORNEY-GENERAL

SLR 2004 - Volume 1, Page No - 417
- No murderous intention but with complete knowledge - What is intention?

The accused-appellant was indicted for the murder of a 2-year-old female child.
The trial judge found the accused guilty and imposed the death sentence.
On appeal it was contended that the actus reus was committed by the
accused-appellant, without a murderous intention but with knowledge only.

Held:

(i) Intention is the determination of the will and implies volition and
willingness. Knowledge on the other hand implies cognition and
consciousness.

(ii) Questions of knowledge, intention and the like which arise in such cases
are always essentially questions of fact falling within the purview of a
decision solely on the particular facts and circumstances of each
individual case.

(iii) Expression - intention to cause bodily injury as is likely to cause death

merely means an intention to cause a particular injury, which injury is or
turns out to be one likely to cause death.

(iv) Murderous intention, a fortiorari has to be judged in relation to the

surrounding circumstances of each individual case as it is axiomatic 'That
not even the devil knoweth the mind of the man."

Page 3 of 16
Culpable homicide and murder distinguished

Govinda (1876) 1 Bom 342

Melvill J - “In the scheme of the Penal Code, ‘culpable homicide’ is genus and
‘ murder’ its species . All ‘murder is ‘culpable homicide’ but not vice versa.
Speaking generally, culpable homicide sans special characteristics of murder is
culpable homicide not amounting to murder. for the purpose of fixing
punishment, proportionate to the gravity of this generic offence, the code
practically recognizes three degrees of culpable homicide. The first is what may
be called, culpable homicide of the first degree. This is the gravest form of
culpable homicide which is defined in section 294 as murder. the second may
be termed as culpable homicide of the second degree. This is punishable under
section 297. Then there is culpable homicide of the third degree. This is the
lowest type of culpable homicide and the punishment provided for it is also the
lowest among the punishments provided for the three grades. Culpable
homicide of this degree is punishable under section 298”.

The existence of a murderous intention

Bastian Silva v Appuhamy 4 NLR 47

Where a person, after abusing another and tearing out some of his hair,
followed him for some distance as he was going towards the court-house and
deliberately stabbed him in the back, causing a wound 21 inches deep and 4
inches long, and then stabbed three other persons who attempted to arrest
him-Held, this was not a case to be summarily dealt with by the Police
Magistrate, as the circumstances showed a murderous intention and were
consistent with an attempt to murder, though the wound did not prove
dangerous to life.

Page 4 of 16
It is not the nature of the wound, but the intention of the accused, which is
decisive as to the nature of the crime committed.

Bellana Vithanage Eddin 41 NLR 345

The question which the jury had to decide was as to the intention of the
accused, that is to say, whether the act by which the death was caused was
done with the intention of causing death, or secondly, if it was done with the
intention of causing such bodily injury as the offender knows to be likely to
cause death to the person to whom the hurt is caused, or thirdly, if it was done
with the intention of causing bodily injury to any person and the bodily injury
intended to be inflicted is sufficient in the ordinary course of nature to cause
death. If the case came within any of these three examples the offence of
which the accused was guilty was murder. 

The medical evidence is also to the effect that the deceased man had been
assaulted practically all round, front, left, right and the rear of the face, that the
injuries could have been caused by blows with a club, that, Nos. 1, 2 and 3
were the result of heavy blows and that after receiving injuries 2 and 3 it was
not likely that the man could have spoken. He also states further on in his
evidence that the injuries on the deceased would have caused death in the
ordinary course of nature but each wound by itself is not necessarily fatal.

Now, what inference is to be drawn from the nature of the injuries that were
inflicted on the deceased or can any other inference be made from those
injuries except that the accused intended to cause death, or such bodily injury
as he knew was likely to cause death, or to cause bodily injury to the deceased
and the bodily injury intended to be caused was sufficient in the ordinary
course of nature to cause death. I think it is obvious that no other intention can
be inferred from the nature of the blows, the part of the body on which they
were inflicted and the force with which they were inflicted. That, moreover, is
not the only evidence as to the intention of the accused. The witness Silva, a
fishmonger of Paiyagala, gave evidence that he was present on the

Page 5 of 16
Colombo-Galle road that night and he heard the deceased say to the accused "
You threatened to kill me. If you can, do so now ". This witness says that he
separated the two men, and the accused at the same lime said " You be on the
lookout. Before dawn I will kill you". If any other evidence was required as to
the intention of the accused it is supplied by the evidence of this man Silva,
which amounts to evidence of a definite threat on the part of the accused.

In view of what I have said with regard to the medical evidence and the threat,
we are of opinion that the jury could have arrived at no other verdict except
one of murder.

Fernando (1945) 30 CLW 22

As regards (the second accused’s) own offence regarded as an independent
offence we know that the majority of the jury held that he intended to kill.
The injury he inflicted was with a dangerous weapon in part of the body where
danger to life was evident - namely the back of the abdomen. , and the blade
had penetrated 1 ½ inches. These facts were part of the circumstantial
evidence, on the basis of which the issue of murderous intention had to be
determined.

Section 293
The queen v Santial Susai (1891) 9 SCC 195
Held ; the offence of Culpable Homicide is not committed unless at the least the defendant
is aware when he does the fatal act, that he is likely thereby to cause death. The term likely
to cause death in the definition of culpable homicide in section 293 means more likely to
cause death than not.

Section 293 - Explanation 2

Page 6 of 16
Mendis et al v The Queen 54 NLR 177
Where toxaemia supervened upon a compound fracture which resulted
from a club blow inflicted by the accused and the injured person died of
such toxaemia-
Held 
that as the injured man's death was not immediately referable to the
injury actually inflicted but was traced to some condition which arose as
a supervening link in the chain of causation, it was essential in such
cases that the prosecution should, in presenting a charge of murder, be
in a position to place evidence before the Court to establish that " in the
ordinary course of nature " there was a very great probability (as
opposed to a mere likelihood) (a) of the supervening condition arising as
a consequence of the injury inflicted, and also (b) of such supervening
condition resulting in death.

We therefore quash the convictions for murder and substitute in the case
of each appellant a conviction for culpable homicide not amounting to
murder. We sentence each appellant to undergo a term of ten (10) years'
rigorous imprisonment.

Section 294 – Murder

The king v Kirinelis 47 NLR 443
Special nature of “ intention “ in Penal Code, 294, Exception 2.
The intention which referred to in section 294, Exception 2, of the Penal Code is
a special kind of intention and should be explained to the Jury. In order to earn
the clemency of the exception the harm caused must have been caused solely
with the intention of private defence.

The accused was convicted of murder. The principal matter argued in this
application was whether the learned trial Judge gave a proper direction to the
Page 7 of 16
Jury. The defence of the accused was that he had acted under grave and
sudden provocation. On that the trial Judge gave the Jury a full and adequate
direction. The trial Judge however went further and put before the Jury the
defence that the accused was acting in the exercise of the right of private
defence. Counsel for the accused does not appear to have raised this defence
but the trial Judge very properly dealt with this matter also because the
evidence led by the accused indicated this defence as well.

For these reasons we have already set aside the verdict of guilty of murder and
substituted therefore for the verdict of guilty of culpable homicide not
amounting to murder, and have imposed on the accused the sentence of eight
years rigorous imprisonment.

KING v. SALAMON et al. NLR Volume – 38, p113

Misdirection to jury-Charge of culpable homicide not a amounting to murder-
Deceased suffering from an enlarged spleen-Proof of knowledge of
consequences of assault-No presumption to be drawn from consequences of an
act-Penal Code. ss. 293

All the four prisoners struck the deceased with their closed fists, chiefly on the
abdomen.
In the opinion of the Medical Officer who gave evidence death was due to
hemorrhage and shock resulting from the ruptures of the spleen and of the liver. The
spleen was enlarged as a result of disease to twice its normal size and a
comparatively light blow would have been sufficient to cause its rupture. The liver
was of normal size and in the opinion of the Medical Officer " considerable force
must have been used to cause a rupture of the liver. The injuries on the liver were
not necessarily fatal in the sense that 50 per cent, of persons who had received such
injuries might with proper treatment be expected to recover. Death might not have
resulted in this case if the spleen had not been ruptured. 

It must be remembered that the accused assaulted the deceased with their fists,
though they undoubtedly did strike him in a dangerous part of the body. 

Page 8 of 16
VITHANA AND ANOTHER v THE REPUBLIC OF SRI LANKA
2007 Volume 1, Page No 169

The two appellants were convicted of murder of K and C, and two offences
under S315.
Held:
(1) The intention that is contemplated in the 1st limb of S.294 is the intention
to cause death which is commonly known as murderous intention, but the
intention that is contemplated in the 3rd limb of S.294 is the intention to cause
bodily injury. This injury should be sufficient, in the ordinary course of nature to
cause death. The emphasis here is on the sufficiency of the injury to cause
death in the ordinary course of nature and not the intention.

Per Sisira de Abrew, J.

"The ingredients that must be proved by the prosecution in order to prove a
charge of murder under the 3rd limb of S294 are that:
(i) The accused inflicted a bodily injury on the victim.
(ii) The victim died as a result of the above bodily injury.
(iii) The accused had the intention to cause the bodily injury.
(iv) The above injury was sufficient to cause the death of the victim in the
ordinary course of nature".
In the instant case the prosecution has established all four ingredients of
S.294."

Page 9 of 16
 

BANDARA VS ATTORNEY GENERAL 2006 - Volume 2, Page No 1

The accused-appellant was indicted for causing the death of one C punishable
under section 296, and was also charged for causing grievous hurt to two
young children (section 317). After trial the accused was convicted as charged
and sentenced to death in respect of the 1st charge (section 296) and 10 years
in respect of the other charges.

In appeal it was contended that, the proper conviction should have been for
culpable homicide not amounting to murder as the accused had only intended
to cause bodily harm and not death, and as regards the conviction under
section 317 the accused never intended harm on the children and the children
came by their injuries purely due to an accident.

HELD :
(1) The accused by throwing acid on to the deceased had intended to cause the
injuries actually caused. The injuries caused were sufficient in the ordinary
course of nature to cause death. The injuries were said to be fatal and the
deceased succumbed to the injuries within 24 hours.
(2) This would mean that the probability of death occurring was very high.
The fact that the accused intended to cause only bodily harm and not death
is therefore immaterial. Section 294 amply demonstrates this position.
Although the High Court Judge found the accused guilty of murder under
the second limb of section 294, it should be considered as the third limb of
section 294.
 

Held further:

Page 10 of 16
Murder under the second limb of section 294, it should be considered as the
third limb of section 294.
Held further:
(3) It is quite immaterial that the death caused was that of a man other than
whose death was intended. Where the accused has the intention to kill
someone, and if with the intention, he kills somebody else, he is guilty of
committing murder.
(4) As harm was intended on someone, the accused has no escape from liability
of the injuries caused to the children either.

K. A. CHARLIS v THE QUEEN NLR Volume – 74, page 73

S.294 - Distinction between murder and culpable homicide not amounting to
murder-Murderous intention.

Where A strikes Z with the intention of causing bodily injury, and Z dies in

consequence of the blow, although the blow is not sufficient in the ordinary
course of nature to cause the death of a person in a sound state of health, it
would be a misdirection to tell the jury that, according to the provisions of the
second paragraph of section 294 of the Penal Code, A is liable to be convicted
of murder. A case which does not fall within the third limb of section 294 of the
Penal Code is not one of murder, unless the offender actually knows of a rather
special peculiarity or defect suffered by the injured person and knows also that
for that reason the injury caused to him is likely to cause his death.

There is no question but that S. 293 of the Code defines the genus culpable
homicide, and that S. 294 defines the species murder. Section 293 specifies
the three states of mind each one of which will make an act of causing death
the offence of culpable homicide :-
(a) the intention of causing death,
(b) the intention of causing such bodily injury as is likely to cause death,
(c) the knowledge of the likelihood of causing death.

Page 11 of 16
Every offence of culpable homicide, of course, is not also an offence of
murder; and S. 294 is intended to declare which offences falling under S. 293
will also be offences of murder. Thus the first limb of S. 294 declares that an
offence of culpable homicide committed with the intention which I have
specified in paragraph (a) above is murder; and S. 294 declares in its third limb
that an offence of culpable homicide committed with the intention I have
specified in paragraph (b) is also murder.

KUMARA DE SlLVA VS. ATTORNEY GENERAL SLR 2011 (2) 169

Per Sarath de Abrew. J.
Held
(7) No single injury caused by any single accused has created an antecedent
probability of death. Charge of murder would fail.
(8) As to the mens rea of the accused at the time of assault there is no
conclusive proof whether any one or more of the accused were harbouring an
intention to cause death.

Per Sarath de Abrew. J.

"I hold that each of the accused committed the offence and inflicted the
respective injuries on the deceased with the knowledge that, he is likely by
such act to cause death - the more appropriate finding is a conviction for the
offence of culpable homicide not amounting to murder on the basis of
knowledge punishable under Section 297".

CHANDRASENA ALIAS RALE v ATTORNEY-GENERAL

SLR 2008 Volume 2, Page 255
Held:

Page 12 of 16
(2) "Sufficient to cause death" in the ordinary course of nature means the
injury, if left to the nature without resorting to proper medical remedies and
skillful treatment has resulted in death.

(4) The victim in the instant case died due to septicemia following infected
ulcers, infected ulcers caused as a result of the burns infected by an act of the
appellant - there is direct nexus between the burns and the cause of death. In
a case of murder even if the death of the victim was not directly due to the
injuries inflicted by the accused but due to other conditions such as septicemia
occurred a result of the injuries inflicted by the accused, it is justifiable to
conclude and should conclude that it was the act of ' the accused that caused
the death of the victim.

Held further
(5) In order to establish a charge of murder under the third limb of Section 294
the prosecution must prove the following ingredients beyond reasonable
doubt.
(1) Accused inflicted bodily injury to the victim.
(2) The victim died as a result of the above bodily injury.
(3) Accused had the intention to cause the above body injury.
(4) Injury was sufficient to cause the death of the victim in the ordinary course
of nature.
Per Sisira de Abrew, J.
"The victim was in her boutique at the time of the incident. The prosecution
case was that the appellant threw an object like a bottle. Immediately
thereafter the victim was in flames and the boutique was engulfed in flames.
Thus the appellant knew that it was imminently dangerous that it must in all
probability cause death of the inmates of the boutique by his act and bodily
injuries have been caused to the victim which were not only likely to cause
death but are sufficient in the ordinary course of nature to cause death. This
act was done by the appellant without any excuse. Thus in my view the
appellant was guilty of murder under the fourth limb of Section 294.

Page 13 of 16
VITHANA AND ANOTHER v THE REPUBLIC OF SRI LANKA
SLR - 2007 - Volume 1, Page No - 169
Held:
(1) The intention that is contemplated in the 1st limb of S294 is the intention to
cause death which is commonly known as murderous intention, but the
intention that is contemplated in the 3rd limb of S294 is the intention to cause
bodily injury. This injury should be sufficient, in the ordinary course of nature
to cause death. The emphasis here is on the sufficiency of the injury to cause
death in the ordinary course of nature and not the intention.

Per Sisira de Abrew, J.

"The ingredients that must be proved by the prosecution in order to prove a
charge of murder under the 3rd limb of S294 are that:
(i) The accused inflicted a bodily injury on the victim.
(ii) The victim died as a result of the above bodily injury.
(iii) The accused had the intention to cause the bodily injury.
(iv) The above injury was sufficient to cause the death of the victim in
the ordinary course of nature".
In the instant case the prosecution has established all four ingredients of
S.294."

Page 14 of 16
(3) In a case of murder against the main accused under 3rd limb of S.294 the
intention contemplated there, being the 'intention to cause bodily injury', one
cannot expect the prosecution to prove the other accused shared common
murderous intention when proving the charge against the other accused. In a
situation of that nature, what the prosecution is expected to prove is that the
other accused shared 'common criminal intention contemplated in 3rd limb of
S.294 - common intention to cause bodily injury.
In the instant case, from the evidence it is crystal clear that the 2nd appellant
had entertained a common intention to cause bodily harm to C with the 1st
appellant which is the intention contemplated in 3rd limb of S.294.
FAROOK VS ATTORNEY GENERAL SLR - 2006 - Volume 3 , Page No – 174
Penal Code - Sections 294, 296, 297, 375, Failure to consider the culpability on
the basis of knowledge - Single stab injury - No murderous intention?-
Sufficiency of high probability of death in the ordinary way of nature ?- Offence
of murder? 

The Accused Appellant was indicted and convicted of causing the death of one
SL (section 296) and causing simple hurt to one AL (section 315). In appeal it
was contended that. The trial Judge had failed to consider culpability under
Section 297 on the basis of knowledge and that there is evidence of a sudden
fight. Which the trial Judge had failed to consider and arrive at a lesser
culpability and that there was no motive/displeasure or any quarrel and that
there was only a single stab injury. 

HELD:
(i) As regards the attempt to bring the case to one of culpable homicide not
amounting to murder mainly on the basis that there is no intention to cause
death. The intention that is required is to cause the injury in fact inflicted. If
the intended injury is sufficient to cause death in the ordinary course of
nature, the offence is murder; 

(ii) The injury which caused the death was the one inflicted by the accused. The
sufficiency of the injury was objectively established. -The sufficiency is the high

Page 15 of 16
probability of death in the ordinary way of nature and when this exists and
death ensues. And if the causing of the injury is intended, the offence is
murder;

(iii) The determinant factor is the intentional injury which must be sufficient
to cause death in the ordinary course of nature. That is to say if the
probability of death is not so high, the offence does not fall within murder
but within culpable homicide not amounting to murder or something less.

NUWAN DE SILVA v THE ATTORNEY GENERAL

SLR 2005 - Volume 1, Page No - 146
Held:

Having regard to all the factors including the strangulation of the boy and the
concealment of the body of the boy in a cess pit, there is no doubt as to the
murderous intention. Hence the offence of causing the boy's death amounted
to murder and not culpable homicide not amounting to murder.

Page 16 of 16