KETJ NEMAN S.P.J.—The King v. Kirinelis.
[Court or Criminal Appeal.]
1946Present: Keuneman S.P.J. (President), Wi] eye war dene
and JayetOeke JJ.
THE KING v. KIRIN ELIS.
Application 162 of 1946.
S. O. 27—M. C. Colombo, 8,673.
Charge of murder—Plea of self defence—Right of self-defence exceeded—Properdirection relating to culpable homicide not amounting to murder—Duty ofCourt to explain special nature of “ intention ” in Penal Code, s. 294,Exception 2.
The intention which is referred to in section 294, Exception 2, of thePenal Code is a special kind of intention and should be explained to theJury. In order to earn the clemency of the exception the harm causedmust have been caused solely with the intention of private defence.
PPLICATION for leave to appeal against a conviction in a trialbefore the Supreme Court.
A. Hayley, K.C. (with him K. A. P. Rajakaruna and8. Saravanamuttu), for the accused, applicant.
H. A. Wijemanne, C.C., for the Crown.
October 1, 1946. Kettneman S.P.J.—
The accused was convicted of murder. The principal matter arguedin this application was whether the learned trial Judge gave a properdirection to the Jury. The defence of the accused was that he had actedunder grave and sudden provocation. On that the trial Judge gave theJury a full and adequate direction. The trial Judge however wentfurther and put before the Jury the defence that the accused was actingin the exercise of the right of private defence. Counsel for the accuseddoes not appear to have raised this defence but the trial Judge veryproperly dealt with this matter also because the evidence led by theaccused indicated this defence as well.
The trial Judge quoted to the Jury the terms of section 294, Exception2, of the Penal Code which runs as follows :—
“ Culpable homicide is not murder if the offender, in the exercisein good faith of the right of private defence of person or property,exceeds the power given to him by law, and causes the death of the
KEUNEMAN S.P.J.—The Ring v. Ririnelis.
person against whom he is exercising such right of defence withoutpremeditation and without any intention of doing more harm than isnecessary for the purpose of such defence.”
“ Then I would say a word or two, although Crown Counsel, fromhis point of view quite properly, did not refer to the matter, and thatis with regard to the other possible plea of self-defence, because theaccused himself gave his evidence in those terms. He said he wasstruck and kicked and he fell, and then he was afraid ; the implicationof that appears to be that he was afraid he might be either injured oreven killed and therefore acted in self-defence.
“ Now, in short, Gentlemen of the Jury, the right of private defencemay be put in this form. Every human being is entitled to defend hisbody against any offence affecting the human body. You and I areentitled to defend ourselves against any attack on our bodies, but thatright is subject to two exceptions. It is necessary for me to inviteyour attention to one, and that exception says that in the course ofdefending yourself against an offence affecting your body you mustnot do more harm than is necessary for the purpose of defendingyourself. In other words, if I attack you in some way you cannottake the occasion to cause me wanton harm ; you must cause mesuch harm as is necessary for you to defend yourself.
“ I mean, looking at it reasonably, you cannot expect a man tomeasure and weigh his retaliation very accurately, but on a reasonableview you must not exceed the limits placed by the law ; that is to say,you must not do more harm than you need for the purpose of defendingyourself. In this case, Gentlemen of the Jury, if the accused wasstruck and kicked and he fell there was certainly an offence against hisbody ; then the only question is whether in defending himself he keptwithin the law or whether he exceeded it; in other words, did he domore harm than was necessary to defend himself ”.
And the learned Judge further said—
“ Therefore in order to come within that exception the accused mustsatisfy you that he was kicked and struck and dealt with in that way,and that in retaliating as he did he was not doing more harm than wasnecessary for the purpose of such defence.
“ To sum up then in regard to this part of the case, in order to findthe accused guilty of culpable homicide not amounting to murder youmust be satisfied reasonably that at the time he caused the death ofthe deceased man he had lost his power of self-control by grave andsudden provocation,—it is not every provocation but grave and suddenprovocation.
“Secondly, if you prefer to consider his case under the plea of self-defence, in order to find culpable homicide not amounting to murderyou must be satisfied that an occasion arose for him to defend himselfand that in defending himself in the way he did defend himself hecannot reasonably be said to have done more harm than was necessaryto have defended himself.
KEUNEMAN S .F.J.—The King v. Kirin eLia.
" If you are in doubt as to whether he is entitled to the exceptioneither on the ground of grave and sudden provocation or on the groundof only exceeding the right of self-defence, the benefit of the doubtmust be given to the prisoner. You will find him guilty of murderif you are satisfied that he caused the death of the deceased with theintention of causing death or with the intention of causing bodilyinjury sufficient in the ordinary course of nature to cause death, andthat there wasn’t either of these mitigating circumstances, that is tosay, that there was nothing that could reasonably be said to amountto grave and sudden provocation sufficient to deprive a man of ordinarytemper to use his power of self-control, or that.there was no occasionfor the accused to defend himself at all, or that if there was such anoccasion to defend himself, that he inflicted more harm than wasnecessary to inflict; in other words, that his retaliation—in the wordsof the Lord Chancellor—or his resentment was not in proportion to theprovocation”
It was argued that this direction indicated or may have been understoodhy the Jury to indicate that if the accused did more harm than wasnecessary for the purpose of defence the verdict of culpable homicidenot amounting to murder was not available, and that the trial Judgefailed to tell the Jury that it was only when the accused had an intentionof doing more harm than was necessary for the purpose of defence thatthe offence of murder was made out.
We have considered the language used by the trial Judge. The Jurymay have understood that if the accused in fact exceeded the right ofprivate defence he was to be convicted of the offence of murder,—andthey would never have applied their minds to the question whetherthe accused had an intention to do more harm than was necessary for thepurpose of defence. This intention is a special intention, and has notbeen explained to the Jury.
In commenting on the corresponding section of the Indian Penal Code(section 300, Exception 2) Gout in his Penal Law of India (para 2855)says—
“ It is only when the right conferred by sections 96-105 (i.e., thesections relating to private defence) is exceeded that there is room forits operation. And even then it does not apply indiscriminately to allcases. For in the first place the rule postulates the exercise in goodfaith of the right of private defence, and this implies that there can beno mitigation under it if the enforcement of the right is used merelyas a pretext for committing murder. This accounts for the otherrequirements of the clause, namely, that the excessive harm causedmust be unintentional. The combined effect of these two requisitesis that in order to earn the clemency of the rule the harm caused musthave been caused solely with the intention of private defence. Itmust not be maliciously excessive nor vindictively unnecessary ”.
The illustration given in the section of the Ordinance supports this view.
In the present case the Jury were not given the opportunity of con-sidering the special kind of intention contained in section 294, Exception 2,and they could well have had the impression from the charge that, if they
Joseph v. The Attorney-General.
found in fact that more harm was done than was necessary for the purposeof defence, the proper verdict was that of murder and not culpablehomicide not amounting to murder. We do not think the direction givenwas a proper or adequate direction. Further, it cannot be said thathad the proper direction been given the Jury must necessarily havereturned the same verdict. No doubt the Jury have rejected the defencethat the accused acted under grave and sudden provocation, and thatfinding tells strongly against the story of the accused and his witness.It is also the case that the only defence urged by Counsel for the accusedwas grave and sudden provocation. But the trial Judge rightly putbefore the Jury the fact that the right of private defence also arose andhad he not done so there would have been a misdirection.
The elements necessary to establish these two defences were different,and we do not think it is possible for us to say in this case that, had theJury been adequately instructed as to the law, they could not have cometo the conclusion that the accused was only guilty of culpable homicidenot amounting to murder in that he exceeded the right of private defence.
For these reasons we have already set aside the verdit of guilty ofmurder and substituted therefor the verdict of guilty of culpable homicidenot amounting to murder, and have imposed on the accused a sentence ofeight years’ rigorous imprisonment.
THE KONG v. KIRINELIS