NAG ALINGAM 8.P.J.—David Appuhamy v. The King
[Court of Criminal Appeal]
1952 Present : Nagalingam S.P.J., Gratiaen J. and de Silva J.DAVID APPUHAMY et al., Appellants, and THE KING,Respondent
Appeals 80-81 with Applications 120-121S. O. 29—M. C. Deniyaya, C 397
Penal Code, s. 294, Exception 1—Meaning of grave provocation—Test of gravity—
Test of loss of self-control.
Id regard to the mitigatory plea of grave and sudden provocation nnderException 1 to Section 294 of the Penal Code—
Held (by the majority of the Court), (i) that the test to be applied to deter-mine whether a particular provocation is grave or not is to determine the extentto which passions are roused, and if intense passion or deep resentment is theresult of the given provocation, it would then be grave.
that whether, in the opinion of the Jury, the provocation is grave or notshould be considered in relation to the ordinary man of the class to which theaccused belongs and not in relation to the particular accused.
that in regard to the question whether or not the accused was deprivedof the power of self-control the peculiar susceptibilities of the particular accusedmust be taken into account. –
PPEALS,. with applications for leave to appeal, against twooonviotions in a trial before the Supreme Court.
E. Sivasubramaniam, with Austin Jayasuriya, for the accusedappellants.
T.8. Fernando, Crown Counsel, with B. A. Kannangara, CrownCounsel, for the Crown.
Cur. adv. vult.
February 1, 1952. Nagalingam S.P.J.—
What is the proper direction to be given to a Jury in regard to a defenceof grave and sudden provocation that is set up in answer to a charge ofmurder is the topic that has been debated on these appeals. This judg-ment is the view of the majority of us and when the plural “ we ’’ is usedin expressing any opinion it would be used in the sense that it refers tothe majority of us.
The appellants, father and son, have by the unanimous verdict ofthe Jury been found guilty of having committed the minder of oneIlendriok Appuhamy alias Kalumahathmaya. Inter alia a mitigatoryplea under exception 1 to section 294 of the Penal Code was raised onbehalf of the prisoners. There was ample evidence of provocation to
814NAQ-AUKQ-AM S.P.J.—David Appuhamy v. The King
which (he learned trial Judge drew the attention of the ?ury in thecourse of his charge, and it will be sufficient for our purposes to refer tothe following:
“ Well, gentlemen, I hardly think that there oan be any doubt—it is a question of faot—that the deceased offered provocation to eachof the accused, that when the 1st accused saw his father being treatedin this fashion, his father being addressed as * this fellow ’, and beingaccused of going about armed with a pistol, that coming on top ofeverything that preceded, the 1st accused may well have been provoked,and by all what the deceased said the 2nd accused too may well havebeen provoked …. one question that you will have to askyourselves, if you are satisfied—I have no doubt that you are satis-fied—that there was provocation, is:Was it grave? ”
Having thus made it clear that there was provocation given to boththe prisoners, the learned trial Judge proceeded to explain to the Jurythe expression “ grave provocation ”. The explanation is containedin the following passages: —
“ What is meant by grave provocation? Grave provocation lanot something .that causes this first accused to lose his self-control.One man may be more sensitive than another, but the law does nottake into account the hypersensitiveness of a particular individual.Borne men may be extremely sensitive, others may be more philosophic,but provocation Is grave if it could cause a reasonable man .to lose hisself-control. The question of the test of the gravity of provocation. was recently debated at length and considered by a Bench of FiveJudges and a decision was recently delivered. I do not think anythingI am saying now conflicts with that decision. Provocation to begrave must be provocation that coul.d cause a reasonable man to losehis self-control. Having made up your minds, first of all, as to whetherthere was provocation given by the deceased to the accused whoseease you are considering, if you are satisfied that there was provocation,then ask yourselves, was it provocation that could cause a reasonableman to lose his self-control, not merely to be angry? ….Could the provocation that you find have caused a reasonable manto lose his self-control? If. so, the provocation is grave. Then youwill ask yourselves: did the accused, whose case you are consideringin fact lose his self-control as a result of that provocation … ”
On behalf of the appellants it has been contended that the effect ofthese passages was to invite the Jury to apply a test much higher thanwhat is required by law by their being instructed that before theycould say there was grave provocation they must be satisfied that theprovocation was such as would cause a reasonable man to lose hisself-control.
The first point that requires consideration is the meaning to be attachedto the term “ grave provocation ",
The term “ grave provocation ” received judicial interpretationrecently in the Full Bench case of King v. Per era 1 where the Court wasspecifically concerned with the determination of the question whether
1 (1962) S3 N. L. R. 193.
NAG AUNG AM S.P.J-—David Appukamy v. The King
the gravity of the provocation could or should be measured by referenceto the outrageous nature of the retaliatory act,, and in the course of thatjudgment the following observation was made in regard to the meaningto be attached to the term: —
“ Provocation would be grave where an ordinary or average manof the class to which this accused belongs would feel annoyed orirritated by the provocation given to the extent that he would,smarting under the provocation given, resent the act of provocationor retaliate it. ”
Very full arguments have now been addressed to us, and it seems to usthat the retaliatory test is not quite satisfactory to determine the questionwhether a particular provocation is grave or not ; for retaliation is anuncertain and remote result of provocation and therefore cannot be madethe true standard by which the gravity of provocation may be measured.Grave provocation need not necessarily produce retaliation in everycase ; in one case as a result of grave provocation there may be retaliationwhile in another the identical provocation may result in no retaliation ;again, a slight provocation as well as a grave provocation may bothequally lead to retaliatory acts.
It has, however, been urged by learned Grown Counsel that there is avery close and definite connection between grave provocation and thedeprivation of powers of self-control, so much so, he asserts, that theproper yard-stick would be one that measures the loss of self-control ofthe person provoked. In other words, his argument is that provocationto be grave must be provocation that causes loss of self-control. Aperusal of the language of the exception would clearly reveal that loss ofself-control is not set out as a standard to be applied in determining thegravity of provocation. The exception does not say that there should besuch grave provocation as would result in a deprivation of the power ofself-control. Nor does it say that loss of self-control should always bethe result of grave provocation. For a proper appreciation, however,of what the exception does imply, one. must give full purport to theadverb “whilst” and the meaning would then be clear that only insuoh cases where there is a deprivation of the power of self-control asa result of grave and sudden provocation can the benefit of the exceptionbe claimed by a prisoner. It would thus be apparent that the provisionof the law fully recognizes that there may be cases where a deprivationof the power of self-control may not follow as a result of an undoubtedlygrave provocation. Indeed a little reflection would show that loss ofself-control need not result in every case where grave provocation maybe given.
It is true that Ratanlal1 seems to suggest loss of self-control as a test,for he says:—
“ The test to see whether the accused acted under grave and suddenprovocation is whether the provocation given was in the circumstancesof the case likely to cause a normally reasonable man to lose controlof himself to the extent of inflicting the injury or injuries that he didinflict. ”
* Page 721.
NAGALiINGAM S.P.J.—David Appuhamy v. The King
But this test is combated by Gout, who in dealing with this identicalquestion1 raises the topio by means of these questions:
“ What is then a grave and sudden provocation ? Is the loss ofself-control a test of its gravity ? ”
and proceeds to answer them thus:
“ It is no doubt a test, but by no means an infallible one. ”
One begins to wonder whether the manner of formulation of the questionsby Gour and the way he answers them are designed to meet pointedlythe view suggested by Ratanlal. Gour returns to this subject again3: —
“ Again, the loss of self-control is not to be invariably measuredby the gravity of provocation. ”
The test of the loss of self-control, therefore, to determine whether aprovocation is grave would be no better than the test of retaliationalready referred to. The agitation of mind is the direct effect of theprovocation, so that a proper yard-stick to measure the gravity ofprovocation would be one that would assess the effect it produces on themind of the person provoked.
One might therefore say, grave provocation would be such as wouldcause deep resentment in the mind of a man, not that he should resentby acts violent or otherwise the provocation given ; or, again, provo-cation may be said to be grave when it arouses violent anger or violentpassion. Here, “ violent anger ” or “ violent- passion ” which is theequivalent of “ rage ’’ merely describes a state of mind, and not, assuggested at the argument, that the person subject to such anger orpassion should act violently or use physical violence. In fact the term“ violent ’* in these expressions means nothing more than intense orvery strong, and in the dictionary the use of the term in this context isillustrated by the following sentence: “ The intemperate life has violentdelights and still more violent desires. ” So that, the true test to beapplied to determine whether a particular provocation is grave or notis to determine the extent to which passions are aroused, and if intensepassion or deep resentment is the result of the given provocation, itwould then be grave. We are justified in this view by the followingexplanation given by Gour: —
“ Now, before a provocation can be said to be grave, it must be onewhich the Court recognizes as sufficient to arouse a person’s passions. ”
It is also interesting to note that the authors of the Code themselveswere of a similar opinion: —
“ We agree with the great mass of mankind and with the majorityof jurists ancient and modem in thinking that homicide committedin the sudden heat of passion on great provocation is to be punishedbut that in general it ought not to be punished so severely as murder.. . . . In general, however, we would not visit homicide com-mitted in violent passion which had been suddenly provoked with thehighest penalties of the law. ”s
1 Section 3303.* Section 3315.
3 Tatanlal: Lota oj Crimea 14th ed., at p. 721.
NAGALINGAM SJJ.—David Appuhamy v. The King
“ In the sudden heat of passion ” and “ in violent passion ” in thesepassages are the key words used to explain the meaning to be attachedto the expression “ grave provocation It may also be described assignifying the opposite of trivial provocation or, as suggested by IndianJudges and text-book writers as a provocation that has an adequatecause. See Batanlal1 and Gour3 citing the cases of Hurt Ores3 andPratapa* ; both these cases are not available to us here.
Having thus arrived at the meaning to be given to the term, we mustnext proceed to consider whether the test of provocation is to be appliedobjectively to an average or ordinary man of the class to which theoffender belongs or subjectively to the offender himself. It will benoticed that the learned trial Judge in his charge referred to “ thereasonable man ” but equated him to the ordinary man of the class towhich the prisoner belongs and nothing turns on it. An act which anordinary man, meaning thereby an ordinary man of the class to whichthe accused belongs—and the term “ ordinary man ’’ will hereafter beused in this sense—would not regard as grave provocation may, on theother hand, be looked upon by a quick tempered or hypersensitive personas one of a gravely provocative character. Is a person of the latter class,then, to be entitled to the benefit of the plea ? In our Courts we haveconsistently taken the view that whether the provocation is grave ornot should be considered in relation to the ordinary man and not inrelation to the particular prisoner. In India there has been a conflict■of views.
That an application of the subjective test would lead to anomalousresults would be obvious. It is easy to conceive of cases where the-same act of grave provocation may produce different results in differentindividuals. In the case of a man who has cultivated self-restraint, hewould not lose his power of self-control, while a man of quick temperwould lose his powers of self-control. Is it, then, to be held that theidentical act of provocation is grave in the latter case while not in theformer case ? Can it be said that the policy of the law is to deal lightlywith a man who has a quick temper as against a man who has controlof his passions ? In India, it would appear that in one High Court asubjective- and in another High Court an objective test has been applied 5.
" For while judging of the effect provocation produces on the mindof the accused, it is perfectly legitimate to take into account thecondition of mind in which the offender was at the time of the provo-cation. Still …. it must be such provocation as will upset■an ordinary man …. and not merely such as sufficed tooffend the accused who was a hot-headed man.
We have, however, adopted the view that in determining whether therewas grave provocation or not, the objective test of the average orordinary man should be applied: —
“ In truth and in fact the grave and sudden provocation givencan and must only be taken into consideration to determine
'IRaianlal p. 721.* 10 W. B. 26.
* Section 3310.• 76 I. O. (P) 970.
* dour : Station 3303.
NAGAIiINGAM S.P.J.—David Appuhamy v. The King
whether it would in the opinion o£ the Jury have been sufficient' tocause the ordinary man of the class to which the accused belongs tolose his temper. 1,1
We now arrive at the stage when we have reached the conclusionthat the act of provocation was such as to incite intense anger or passion,in the mind of the ordinary man, that is to say, that the provocationwas grave. This leads us to an acceptance of the proposition that theoffender who claims the benefit of the plea and to whom the act ofprovocation was given was himself one who had been subjected to graveprovocation. If, of course, the view is taken that the provocationgiven would not amount to grave provocation in the case of the ordinaryman, then, the offender can claim no benefit and no advantage could begained by a further consideration of the other requisites.
We have now to determine whether the objective test is also applicableto the loss of self-control suffered as a result of the violent passion inducedby the provocative act. It would be profitable to look at the relevantwords of the exception, which are: —
" If the offender, whilst deprived of the power of self-control bygrave and sudden provocation. ”
Unlike in regard to the element of provocation, in respect of which thereis no clear designation as to whether it is the ordinary man or the offenderwhose case should be considered, the enactment expressly refers to theoffender himself as the person who should lose the power of self-control.Unless the interpretation leads to Borne untoward or awkward result,one should be guided by the well known principle of construing a statuteaccording to the ordinary and natural meaning of the words used.By holdng that the Legislature intended that as a result of the provo-cation given the offender it is who should be shown to have lost his powerof self-control, there is no result reached which could in any way be saidto savour of any incongruity.
Learned Crown Counsel, however, says that there should be a doubletest applied, firstly an objective test as to whether the provocationestablished to be grave would result in the ordinary man losing his powerof self-control. If the answer to this first test be in the negative, thenno other test is called for, for the prisoner would be deprived of thebenefit of the plea. But it is said that if the answer to the test be in theaffirmative, then a second test, namely a subjective test should beapplied to determine whether the offender himself did lose his power ofself-control ; and in this instance also, it is said that if the offenderis proved not to have lost his power of self-control, then, again, thebenefit of the plea does not accrue to him ; so that the tests are reallyand truly applied in every instance with a view, if possible, to excludethe prisoner from claiming the benefit of the exception.
For one thing, a criminal statute should not be construed against aprisoner unless the words themselves normally interpreted lead to thatresult. There is no reason why in this case, when the Legislatureenacted that the offender should have been deprived of his power of
«• (1952) 63 S. L. R. 193.
NAGAXiINGAM 8.P.J.—r-David Appuhamy v. The King
self-control, it is necessary to apply the test of. the hypothetical ordinaryman, and that not for the purpose of enabling a prisoner to claim somebenefit but for the purpose of depriving him of his life. • Of course, wherethe answers to both the subjective and objective tests be in the affirm-ative, as in a large majority of cases they would be, then the applicationof the double test will not result in any hardship. But to prevent theexclusion of the class of cases where the prisoner may be suffering fromsome susceptibility peculiar to himself which might make him lose hispower of self-control more readily than the ordinary man, it is that itbecomes important to direct the Jury along channels which would ensurethat they do not deviate from the true principles that should be applied.
It is needless to observe that the English Law, which is essentiallyJudge-made law, has evolved* one test only, namely, the test whetherthe provocation was sufficient to deprive a reasonable man of his self-control—Leabini’s case l. It will be observed there is no question of asecond subjective test under the English Law. It is true that thisprinciple of the English Law has been adopted in the Calcutta case ofDina Bandhu Ooriya 3, but no attempt has been made in that case toanalyse the language of the section itself, but on an assumption that thedoctrine under the English Law was identical with that embodied inthe section the principle seems to have been applied. In Madras3 andin Upper Burma, the subjective test has been applied.
We have, however, fully adopted the principle that the peculiarsusceptibilities of an accused person to lose self-control must be takeninto account—King v. Punchirala *. This view, if we might respectfullysay so, is one which commends itself to us, and in fact it was havingregard to this principle that the Full Court in Perera’s case 5 lays down theproposition thus: —
“ It has to be stressed that the exception itself expressly refers tothe offender being deprived of his power of self-control, and in view ofthis express reference to the offender, it would be altogether unwar-rantable to hold, as contended for by' the learned Solicitor-General,that one must first determine in this instance too whether' the averageman under contemplation would himself have been deprived of hispower of self-control as a result of the provocation given beforedetermining whether the offender himself did in fact lose his power ofself-control. We are of opinion that once the conclusion is reachedthat the provocation, taking the case of the given average man, wasgrave and sudden, the next question that need receive the attentionof the Jury is whether the prisoner himself, as a result of the provocationreceived did lose his power of self-control, it being immaterialwhether the average man would or would not have lost his power ofself-control. ”
There is evidence in this case that one of the accused in fact appearedto be tired at the time the provocation was given to him. There is alsoevidence which shows that the deceased person was a nephew of the
1 (1914) 3 K. B. 1166.» I. L. R. 2 Madras 122.
» 31 Or. L. J. 737.* (1924) 25 N. L.R. 468.
26 – N. L. R. Vol. – tiii
(1952) 53 N.L. B. 193.
320‘BOSE C.J.—The Solicitor-General v. Jayawickrcme
second accused, and there • is a suggestion that a nephew using thelanguage which he is shown to have done towards his uncle would havetended to make the uncle lose his self-control more readily. Thoughthese are small points, the Jury were nevertheless entitled to considerthese aspects as well, and were not entitled to exclude them from theirconsideration. Besides, the passages in the summing-up complainedof, taken by and large, show that the question' whether the prisonersthemselves lost their power of self-control was not left to the Jury butcompletely excluded from the scope of their consideration by their havingbeen called upon to give their attention to the question whether anordinary man would have lost his power of self-control. The exclusionfrom the Jury of this aspect of the question would have been to load thedice against the accused persons.9
We are therefore of the view that the verdict cannot be sustained,and we therefore set aside the convictions and substitute therefor con-victions under section 297 of the Penal Code, and sentence, each of theprisoners to a term of ten years' rigorous imprisonment.
DAVID APPUHAMY et al., Appellants, and THE KING, Respondent