Since its inception, Rage has been actively involved and monitoring many cases of ragging across multiple state universities in the island. One such case which garnered our attention was the matter of SC Appeal No. 93/2023 against a judgement dated 28th October 2022 in the Court of Appeal of the Democratic Socialist Republic of Sri Lanka.
Taking root at the High Court of Kandy as Case No. 167/2004, the Appellant was indited for committing several offences towards the deceased student in the year 1997, including unlawful assembly, intent to cause grievous harm and murder as a member of an unlawful assembly, abduction and murder punishable in terms of section 32 in conjunction with Section 296 of the Penal Code.
A brief synopsis of the case is as follows, the deceased student, a 21-year-old young man described as fit and able, belonged to the new admission batch of 1997 at the University of Peradeniya. The Appellant acknowledged that it was a customary practice to rag incoming students by the senior students of the university and confirmed his participation in such ragging, which in this instance included the deceased. The Appellant maintained that he had no intention of causing injury and that the deceased has not complained of any physical discomfort beyond signs of obvious fatigue. Subsequently, a complaint had been filed by the deceased father alleging that his son had fallen ill as a consequence of the ragging. The university had thereafter held an inquiry where statements had been recorded from persons involved and were eventually let go with a warning and permission to continue their studies. The Appellant, believing the matter to have been concluded at this stage, went onto pursue his higher studies abroad unaware of the death of the ragged student.
The primary question of law that was raised at the apex court was if the degree of knowledge contemplated under the fourth limb of section 294 was established beyond reasonable doubt, substantiating the fact that the accused committed an act knowing it to be imminently dangerous that it must in all probability cause death or bodily injury as was likely to cause death. While the Prosecution submitted that it has proved beyond reasonable doubt that the Appellant possessed the requisite knowledge for a conviction contemplated under limb four of section 294, the Appellant maintained that the elevated level of mens rea contemplated under the fourth limb was not sufficiently established for a conviction under the said section. Relying on the principles in Somapala v The Queen 72 NLR 121 and Jinadasa v Attorney General 1984 02 SLR 234, the Appellant stressed the importance of drawing a distinct distinction between culpable homicide and murder contemplated under the fourth limb of section 294, and submitted that the court by affirming the conviction, had failed to consider if the Appellant possessed the requisite knowledge at the time of the act which was so imminently dangerous that it could cause death in all probability. Additionally, the Appellant also drew support from our neighboring jurisdiction by relying on Dr. Hari Singh Gour’s Penal Law of India citing sections 299 and 300 of the Indian Penal Code which corresponds to our own sections 293 and 294 which required unequivocal proof that the act so imminently dangerous was in all probability enough to cause death.
Section 294 of the Penal Code capsulates four limbs that amounts to murder. The fourth limb which is of focus in this instance is as follows;
“If the person committing the act knows that it is imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such acts without any excuse for incurring the risk of causing death of such injury as aforesaid.”
Her Ladyship Justice Kumudini Wickremesinghe extensively considered both sections 293 and 294 and their criteria. With their Lordships Justices Dr. Sobitha Rajakaruna and M. Sampath K.B Wijeratne in agreement, stated that in assessing the element of knowledge in terms of section 294, the act “must in all probability must cause death or such bodily injury as is likely to cause death.” The evidence led in this instance did not establish beyond reasonable doubt that the physical exertion even if harsh and dangerous and may create a risk of future harm is not in itself a fatal act which falls short of the certainty the fourth limb of section 294 requires. However, the evidence led satisfied the threshold laid out in section 293 creating a causal link between the act of forced physical exertion of forcing the victim to continue the rigorous ragging exercise despite collapsing after doing it 200 times. This established the fact that there was sufficient awareness that the circumstances may cause death and not that it must or in all certainty will result in death, as required by the fourth limb under section 294. Thus, the Appellant even though falling short of satisfying the criteria under section 294 was found to have satisfied the elements contemplated in section 293 of the Code where death is caused even in the absence of any intention to cause death or to inflict bodily injury of a fatal character, allowing for a sentence of culpable homicide not amounting to murder. In considering the punishment according to section 297, the Court propounded on the well-established principle in A.G v Mendis (1995) 1 SLR 138 which reiterates the importance of the punishment reflecting not only the culpability of the offender but also the rights of the victim and the legitimate expectation of society at large.
Significant analysis and acknowledgement were also afforded for lapse of time since the commission of the offence and the complex procedural history including the difficulty of imposing a custodial sentence since the Appellant was not in the jurisdiction. However, the Bench noted that securing the Appellant and executing the said sentence is of grave importance to uphold public confidence in the administration of criminal justice and in the interest of the victim’s family.
Her Ladyship in her judgement also mentioned the Prohibition of Ragging and Other Forms of Violence in Educational Institutions Act No. 20 of 1998 and highlighted the fact that this statue criminalizes ragging in all its forms and reflects a clear public policy that such conduct is not fit for a civilized society. The mention of Sri Lanka as a State party to international instruments which calls for the protection of life and human dignity in the form of the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child are stark reminders of the cardinal responsibilities the state bears for a cruelty-free and safe society.
Despite the lapse of several decades, in this instance, justice delayed is not justice denied but justice in all its glory.
Michelle Mervyn
Attorney-at-Law, LLB (Hons) (UK)
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