H. N. O. FERNANDO, O.J.—Samithamby o. The Queen
[Court of Criminal Appeal]
1971 Present: H. N. G. Fernando, C.J. (President), Samerawlckrame, J.,and de Kretser, J.SAMITHAMBY, Appellant, and THE QUEEN, Respondent
C. A. 84 of 1971, with Application 116
S.G. 456/70—M. G. Batticaloa, 29047
Penal Code—Section 294, Exception l—“ Deprivation of the power of eclf-controlby grave and sudden provocation ”—Interval of time between provocation andkilling—Circumstances when the exception would be applicable even then.
An offender may be said to have been deprived of his power of self-controlby grave and sudden provocation within the meaning of Exception 1 to section294 of the Penal Code even though there was an interval of time between thegiving of the provocation and the time of the killing, if the evidenoe showsthat, all the time during the interval, the accused suffered under a loss ofself-control.
Appeal against a conviction at a trial before the Supreme Court.
V. E. Selvarajah, with (assigned) B, B. D. Fernando, for the accused-appellant.
D. Wikramanayalce, Crown Counsel, for the Crown.
Cur, adv. vult.
August 3,1971. H. N. G. Fernando, C.J.—
The accused in this case was convicted of committing the murder of hiswife on 13th September, 1969. There was no doubt that the accused didin fact cause the death of his wife by a stab injury.
The accused gave evidence in his defence. He and his wife h&d beenmarried for about 25 years and there were seven children of that marriage.A few months prior to this incident he discovered his wife in an act ofintimacy with her sister’s husband, and after that discovery his had been amiserable existence. The wife used to scold him and order Him out of thehouse. He had himself attempted to commit suicide by taking poisonsome weeks before this incident and had been in hospital for about fourdays. On the day of thiB incident he had gone out to work in his field and
H, N. G. FERNANDO, C.J.—Samithamby v. The Queen
had returned home for the noon meal after consuming some toddy.After he had the meal, hiB wife again abused him saying “ You, cursedfellow, you have not died even after taking poison He then left thehouse intending to work in the field but returned home because he feltgiddy and depressed. At home he kept brooding over his wife’s insultingtreatment. He had taken a knife from the kitchen and went to his wife’ssister’s house. There he asked his wife why Bhe had made the earlierremark, and when she did not reply, he stabbed her.
Having referred in the summing up to this evidence, upon which thedefence sought a verdict of culpable homicide on the ground of grave andsudden provocation, the learned trial Judge left it quite open to the Juryto return such a verdict. But in doing so, he pointed out that in theSubmission of the Crown the provocation offered to the accused, althoughgrave, was not sudden. In returning a verdict of murder the Juryappear to have agreed with that submission.
The majority of us were of opinion that in the circumstances of thiscase the directions as to the defence of provocation were incomplete. Itwill he seen from the summary of the accused’s version that he wasl rootling over his wife’s remark which was not only insulting, but alsoexpressed the thought that she preferred him to be dead. This moodpersisted and prevented him returning to work in the field. The factthat he had previously attempted to commit suicide supported theprobability that he ultimately stabbed his wife at a time when his mindwas still disturbed by his wife’s remark.
In these circumstances, the majority of us considered that in terms ofException (1) set out in s. 294 of the Code the attention of the Juryshould have been drawn to the question whether the act of Btabbing tookplace whilst the accused was deprived of the power of self-control. Therewas no doubt an interval of time between the giving of the provocationand the time of the stabbing, but the provocation given was sudden, inthe senso that the accused must have been taken aback when he realisedthat his wife wished him to be dead. The evidence concerning thesubsequent period made it quite probable that in fact the accused all thetime suffered under a loss of self-control. Had this aspect of the matterbeen presented to the Jury, they should, in the opinion of the majority ofus, have returned the lesser verdict.
For these reasons we made order setting aside the verdict of murderand the sentence of death, and substituting a conviction of culpablehomicide not amounting to murder.
DE KRETSER, J.—Samithamby v. Th&.Queen
DK KBETSEB, J.—
At the hearing of this appeal I was in the unfortunate position ofnot being able to agree with My Lord the Chief Justice and my brotherSamerawickrame that in the circumstances of this case the directionsgiven by the trial Judge, my brother Alles, as to the defence ofprovocation were incomplete and that, had he presented to the jurythat the events that happened after the receiving of the provocationmade it quite probable that in fact the accused all the time sufferedunder a loss of self-control, they would have returned a verdict ofculpable homicide. I now set down my reasons for the view I hold.
This was a case in which in answer to the charge of murder the accusedpleaded guilty to committing culpable homicide not amounting tomurder under grave and sudden provocation.
Counsel for the Crown was not willing to accept the plea and thecase proceeded to trial on the charge of murder. The jury after adeliberation of nearly an hour returned a verdict of murder.
The evidence on which the accused relied for his plea that he hadstabbed his wife whilst deprived of the power of self-control was givenby himself.
The evidence was that on the night of the 14th April, 1969, he hadfound his wife, who had been married to him for 25 years, “ havingan illict affair ” with the husband of her younger sister. He says headvised her to reform herself but from that time he and she had constantquarrels in the course of which she used to tell him to leave the housesaying, “ go anywhere and die you cursed fellow ”.
On the 30th July, 1969, the unhappiness that he was having overthe trouble between him and his wife led him to attempt to commitsuicide. This resulted in his being in hospital for about a week duringwhich time, he says, his wife did visit him a couple of times. Afterhis return home there uas no improvement in the relations he had withhis wife and even his meals were attended to by his daughter Easwariand not by his wife. These facts formed the background for whathappened on the 13th September, 1969. On that day he had comeback for his noon meal and when he waB getting ready to go back towork, his wife came out of the kitchen and, standing in front of himsaid, “ you cursed fellow you have not died even after taking poison. ”The time was 1.30 p.m. The accused says he set out for work buthalfway out returned and sat in the verandah adjoining the kitchen.He was disturbed in mind as to what his wife had said. He felt sickand giddy. Whilst seated there he saw a knife stuck in the cadian
DE KRETSER, J.—Samithamby v. The Queen
wall of the kitchen and he took it without thinking of what he wasdoing and put it in his waist. He says, “ I waited for sometime andthought I have done no wrong, why should my wife curse me like that ?
“ Q. In other words you were brooding over what your wife hastold ?
Q.You were very angry and very worried about it 1
Q. Then what did you do f
A. I went to my wife’s sister’s house in order to ask my wifewhat wrong I had done.
Q. Yes, then ?
A. When I went there I saw my wife seated on a raised verandah.
I asked my wife, “ Why did you say that I had not died evenafter taking poison—what wrong did I do to you 1 ”. Afterthat I took out the knife and stabbed her. ”
The trial judge in summing up to the jury referred very fully to thisevidence and the circumstances on which the defence relied in seekinga verdict of culpable homicide. He also told them, as he was boundto do, why the Crown claimed that the facts did not warrant such averdict and why the Crown claimed a verdict of murder. He told themin the clearest possible terms that it was entirely a question of fact fortheir decision and that he did not wish to express his opinion “ oneway or the other. ”
It was a situation in which the jury had to perform its classic functionof indicating what was in its opinion the correct verdict, and the jury;after a long deliberation, decided it was murder that the accusedcommitted on this day. What the jury had to make up their mindson was whether what happened between the receiving at 1.30 p.m. ofthe provocation complained of “ you cursed fellow you have not diedeven after taking poison ”—which the defence claimed was graveprovocation in itself and in the light of what had been going on from14th April, 1969 — a claim the prosecution did not contest—andthe stabbing of the woman at 4.30 p.m. pointed to accused having losthis self-control at 1.30 p.m. and having not regained it even at 4.30 .p.m. ; or whether the accused annoyed over the remark had let it rankleand having brooded over it decided that the solution to his misery was
DE KRETSER, J.—Samithamby v. The Queen
to bill his wife; whereupon arming himself with a knife he had goneto the house — quarter of a mile away—where hiB wife was and stabbedher through the heart.
In my opinion it is impossible to say on the facte that it was moreprobable that the accused had not still regained his self-control at 4.30 p-m.assuming that he had lost it at 1.30 pan. of which on the facts narratedby him there is no sign and I think the trial Judge was entitled not to• present the case to the jury on the footing that it was more probablethat the accused had not regained his self-control at the time he stabbedhis wife. Had he done so he would have been, at best, giving his opinionon the matter and it does not follow that the jury would or should haveagreed with it and returned a lesser verdict.
The trial judge in my opinion correctly left the matter for the juryto decide. In concluding his observations on the matter he said:
“ Therefore, give this case your anxious consideration and ask yourselvesafter you have considered both the pros and cons and having regardto the matters to which I have drawn attention, can you come to theconclusion as to whether there woe grave and sudden provocation whichmade him to lose the power of self-control or not. That is a matter entirelyfor you being the sole judges of fact. ”
The evidence' given by the accused does not establish that the wordscomplained of caused in the accused a sudden or temporary loss ofself-control and made him bo subject to passion as to make hinTfor themoment pot the master of his mind, but indicates rather that the remarkrankled in his mind. It. may well be, that at the. time the accusedstabbed the wife he was still disturbed in mind by his wife’s remark.To be disturbed in mind is quite different to having lost Belf-controland it is well to remember that to be disturbed in mind may lead to a •decision to murder.
The mere length of time intervening between the provocation andthe retaliation may be evidence in itself of deliberation. As is pointedout in East—Fleas for the Crown, Volume 1, page 261, et seq.—“Inevery case of homioide how great Boever the provocation may havebeen if there be sufficient time for the passion to subside and for reason
to interpose such homicide will be murderwith respect to what
interval of time shall be allowed for passion to subsidethe immediate
object of inquiry is—whether the suspension of reason arising fromsudden passion continued from the time of provocation received to thevery instant of the mortal stroke given, for if from any circumstancewhatsoever it appear that the party reflected, deliberated or cooledany time before the fatal stroke was given the killing would amount tomurder.”
SIRIMANE, J.—Heen Banda v. The Queen
In my opinion on the evidence before them in this case the jury wereentitled to their opinion that this was a case of murder.
For the above reasons I would dismiss the appeal.
E. SAMITHAMBY, Appellant, and THE QUEEEN, Respondent