036-NLR-NLR-V-52-KANAPATHIPILLAI-Appellant-and-THE-KING-Respondent.pdf
[Court of Crimt.var Appear]
Present Jayetileke S.P.J. (President), Canekeratne J.-and Basnayake J.KANAPATHIPILLAI, Appellant, and THE KINO, RespondentAppear 39 with Apprication 117 of 1949S. C. 7—M. C. Batticaloa, 6,906
Court of Criminal Appeal—Charge of murder—Summing-up—Evidence of grave andsudden provocation—Effect of it not put to the jury—Non-direction—PenalCode, section 294, Exception 1.
In a prosecution for murder the question whether certain words uttered by■ . the deceased provoked the accused gravely and suddenly is one for- the jury todecide. The failure of the presiding Judge to direct the jury, in such a case, ofthe applicability of Exception 1 of section 294 of the Penal Code would vitiatea conviction for murder.
PPEAL, with application for leave to appeal, against a convictionin a trial before a Judge and Jury.
S. Saravanam/uttu, with D. TV. F. Jayasekera and S. Sharvananda, forthe accused appellant.
R. A. Kannangara, Crown Counsel, for the Attorney-General.
Gut. adv. vult.
August 30, 1949. Jayeteleke S.P.J.—
The only point of substance taken at the hearing of .the appeal wasthat the learned Judge had failed to direct the jury to consider whetheron the evidence the accused was eiltitled to the benefit of the exceptionrelating to grave and sudden provocation. The' evidence of Sinnaduraishows that the accused left the house in a temper at about noon becausethe deceased did not prepare fche midday meal and that when he returnedhome at about 6 or 6.30 p.m. he was still in a temper. At that timedinner had been prepared by the deceased but she did not ask the accusedto take it. At about 7.30 p.m. the accused bought half a- bottle ofarrack and shared it with sinnadurai- A little later the deceased askedthe accused to take his dinner and the accused replied: —
“ When we came back at 6.30 p.m. hungry you prostitute did notcall me for my meals. Therefore I am not going to eat the mealscooked by you. I do not want the meals that were not available tome at that time. Therefore do not ask me to eat thereafter.”
The deceased then complained to Sinnadurai about what the accusedsaid whereupontheaccusedgave the deceasedtwo hard slaps.The
deceased then raised cries and ran in the direction of the temple andthe accused ran after her fearing that she would fall into a well andbrought her back. After some time the deceased asked the accusedto take his dinner and the accused replied: —
“ You prostitute, I told you not to ask me to eat ”.
At this stagethedeceasedseems to have lost her temper andsaid
that the accusedwasmarriedbefore, that he hadtwo children who were
on the streets, and that he was arranging to marry again. Then the accusedrushed up to the deceased saying “ What did you say?” and pickedup a katty that was on the wall and cut her with it. The evidence doesnot show that the accused made any attempt to do any harm to thedeceased beforesheutteredthose words. Thequestion whetherthe
words uttered by the deceased provoked the accused and whether theyprovoked the accused gravely and suddenly wasr one for the jury 'todecide. In the opinion of the majority of us had, the jury been invitedto consider the applicability of exception 1 to the evidence in the casethey may have found, as it was open to them to find, that the accusedwas not guilty of the offence of murder. ' As they were not so invited,we think that the accused must have the benefit of the lesser verdict.
We would set aside the verdict and sentence and substitute a verdictof culpable homicide not amounting to murder and a sentence of15 years’ rigorous imprisonment.-*-
Conviction altered.