042-NLR-NLR-V-53-NADIE-Appellant-and-THE-KING-Respondent.pdf
NAGAUNGAM J.—Naide e. The King
20T
[Coobx of Criminal Appeal]
1951 Present : Nagallngam J. (President), Basnayake J. andGnnasekara J.NAIDE. Appellant, and THE KING, RespondentAppeal 58 of 1951, with Application 84S. C. 15—M. C. Kurunegala, 464Austin Jayasuriya tor the accused appellant.
7. S. Fernando, Crown Counsel, with Boyd Jayasuriya, Crown Counsel, for theCrown.
Cur. ado. cult.
Kaoaunoau J.—
The appellant in this case has been found guilty of the offence of murder andhas been sentenced to death. The only point raised at the hearing of this appealis that the accused has been prejudiced as a result of a misdirection in the chargeof the learned trial Judge.
It would be advantageous to set out very briefly the Balient facts necessaryfor a proper appreciationof thepointdebated atthe Bar. Theappellant made
an unsworn statement from the dock in the course of which he admitted havingstabbed the deceased woman, his sister-in-law. He also narrated the circum-stances under which he inflicted the injuries. He said that he had come homothat morning from the field hungry and asked his sister-in-law for rice. Accordingto him, the deceased woman abused him saying, ‘‘ I am not going to serve yourice; you had better obtain your rice from your own mother ”, using, the word" tho ”. The appellant says he then was making his way into the kitchen to servehimself a meaJ of rice when the deceased woman came at him with an eakle broom,abused him and struck him with it and that while he was being so abased and struckwith the eakJe broom he picked up a knife that was on the floor of the kitchenand stabbed the deceasedseveraltimesas he wasprovoked. Theinjured woman
in her dying deposition,however,gavea differentversion of theincidents that
led up to the injuries being inflicted on her. According to her, on' the morningof the day in question while she was alone in the house the appellant attemptedto outrage her modesty, she resisted and the appellant stabbed her in consequence.
The learned trial Judge very carefully dealt with all the aspects of the case andin regard to the defenceset upon the ground ofgrave and sudden provocation
directed the jury as follows (I have for convenience of reference separately letteredvarious parts of this passage): —
"In his story he tells us that the trouble first arose near the kitchen.He was angry and he was abused, contemptuously abused when he asked fora plate of rice. Nevertheless he decided to get the rice for himself, whereuponthis woman came at him with an eakle broom, abused him again and struck him.That is the grave and sudden provocation which he asks you to accept as sufficient-to reduce the offence to one of culpable homicide not amounting to murder.The question as to whether the provocation offered, assuming that you believeit was offered, was sufficient to .deprive him of his self-control so that under theinfluence of that provocation he acted as he did is a matter entirely for you todecide.
It is important that you should not forget the emphasis that the law places onthe need that the provocation should be grave. -It must be provocation of akind that a man belonging to the class of society to which the accused .belongswould reasonably be expected to resent, and it must be provocation of such gravityas one would expect a person of that class to resent so deeply as to temporarilydeprive of the power of self-control.”
19-N. L.R. Vd.-Liii
NAGALINGAM Z.—Naide v. The King
" Now, making every allowance for the person provoked you must askyourselves whether the mode of resentment, even if you accept the whole of theaccused's story as true, was or was not grossly disproportionate to the natureof the provocation given.”
“ Let me readoutto youapassage from a recognised textbook on the
Indian Law dealing with exceptions on grave and sudden provocation which issimilar to the Section in our Penal Code.”
" This is whatiBsaid:‘Itmust not, however, be understood that any
trivial provocation, which in point of law amounts to an assault, or even a blow(and according to our law even abuse may be regarded as provocation) will asa matter of course reduce the crime of the party killing to manslaughter. Butwhere the punishmentinflicted foraslight transgression of any sortiB outrageous
in its nature either inthemannerorthe continuance of it and beyondall proportion
to the oflence, it is rather to be considered aB the effect of a brutal and diabolicalmalignity than of human frailty 1 ”
“ Soyou have the accused’s versionof thekindofprovocationgiven
and we have the medical evidence as to themannerin whichhe gave effect to
his resentment ofthat provocation.Ask yourselveswhether in youropinion
you canconscientiously hold that thegravity of theprovocation allegedto have
been offered was sufficient to reduce the offence to one of culpable homicidenot amounting to murder.”
No objection has been and in fact can be taken to the passage A which quiteproperly andcorrectly sets out the method ofapproachthatthejury' shouldadopt
in dealingwith thisplea. Objection, however, is takento the entirety ofthe rest
of the passage excerpted. Appellant's Counsel contends that the passage B inparticular lays down the law more widely than 1b warranted by the provisions ofthe first exception to section 294 of the Penal Code.
First ofall whatis the meaning tobe attached tothis passage B ?It seems
to me thatappellant’s Counsel's contention iscorrectthatthejury wereinvited
in this passage to consider whether the gravity of the provocation should not bemeasured by reference to the mode of resentment as well, that is to say, as thelearned Judge in the passage E clearly indicates, the question of gravity had tobe viewed from the mode or manner in which the person provoked attacked theperson giving him the provocation and if they found that the nature o! the attackwas so brutal that one might say it. was disproportionate to the provocation given,then the provocation would cease to be grave and not be capable of being regardedas entitling the accused person to the plea of grave and sudden provocation.
In order to entitle a person under our law to the benefit of exception 1 to section294 it would be sufficient if he can establish that he was (1) deprived of the powerof self-control, not anyhow but (2) as a result of grave and sudden provocation.There is nothing in the language of the exception which would enable one to saythat the benefit of the exception will not be available to an accused person ifhe had acted brutally in retaliation of the provocation given to him.
Exception 4 to the same section may be contrasted profitably with exception 1.Under exception 4, although _ culpable homicide may have been committed withoutpremeditation in a sudden fight in the heat of passion upon a sudden quarrel, yetif it is shown that the offender had taken undue advantage or acted in a cruel or unusualmanner, he would lose the benefit of the exception. No such qualifying wordsare to be found in regard to exception 1.
Apart from this aspect of the matter a little reflection would show that the pleaof grave and sudden provocation iB one that is put forward by an accused person.When he puts forward such a plea he iB entitled to give evidence of all circumstancesfrom which a Judge or jury may draw the inference that he had been offered graveand sudden provocation. It seems to me wholly untenable to say that the natureof the retaliatory act has any bearing on the question whether the offender receivedgrave and sudden provocation. Provocation is something offered or given to theoffender and must proceed from an adversary and cannot proceed from the offenderhimself. It is fallacious to Bay that the offender had been given provocation by
NAGALINGAM J.—Naide v. The King
209
something he himself had done, for what the offender -does is the resultofthe
provocation received and not what induces or contributes to the provocationcaused or given. To my mind it is clear that the brutality with which the resentment•of the offender is carried out is foreign to the question whether he received graveand sudden provocation, while it may probably have a bearing on the questionwhether the offender was deprived of the power of self-control in consequence ofhaving received provocation; but m it is unnecessary to decide that point here. Itis for a jury tosay whetherall the facts established by the offender leadtothe
conclusion, which is one of fact, that the offender has been given grave and suddenprovocation. If the jury isasked to decide the question of the gravity ofthe
provocation given by taking into consideration the nature of the retaliatory act ofthe offender, atonce factorsand elements altogether irrelevant to the question
.before the jury areadmitted andmust necessarily tend to warp their judgment.
The learned trial Judge proceeded to quote a passage from a text book, and thatis the passage lettered D. This passage appears to' be taken from Ratanlal*;the citation itself is an excerpt from an English casea, and the citation concludesin Batanlal with theBe two sentences:
“It is one of thetruesymptoms of what thelaw denominates malice;and
therefore the crime will amount to murder notwithstanding such provocation. ”
In order to appreciatethecitation one must turnto the English Law onthe
subject of provocation.TheEnglish Law is veryauthoritatively laid downby
Viscount Simon in the recent House of Lords case of Holmes v. Director of PublieProsecution s :
" The whole doctrine relating to provocation depends on the fact that itcauses, or may cause, a sudden and temporary loss of self-control whereby malice,whiri' is the formation of an intention to kill or to inflict grievous bodily harm,is negatived.Consequently, where theprovocationinspires an actual intention
to kill (such as Holmes admitted in the present case), or to inflict grievous bodilyharm, the dectrine that provocation may reduce murder to manslaughter seldomapplies.”
It will beapparent fromthis passage that underthe English Law provocation
does not reduce the offence of murder to one of manslaughter. On the other handthe theoryis that the provocationthat is receiveddeprived the offender of his
power of self-control, whereby he becomes incapable of forming an intention tokill. Under ourlawonthe other handthedoctrineproceeds on thebasis that
though a man had received provocation to the extent of depriving him of self-control, he nevertheless retains sufficient mental powers to enable him to forman intention tokill,butthat, as a concessionto thefrailty of humannature, the
offence of murder is reduced to one of culpable homicide not amounting to murder.Under the English Law the nature of the act is not taken into consideration forthe purposeof determiningwhetherthe offender hadbeen given grave and sudden
provocation but in order to determine whether he had lost his power of self-controlor not.
Mr. FernandofortheCrown attempted tosupportthe propriety ofthe charge
by seeking to interpret the passage complained of as dealing with the questionrelating to Iobs of self-control. If, for instance, the Judge had in so many wordstold the Jury and directed them to consider whether the number and the natureof the stabinjuries inflictedby theappellant on thedeceased woman enabled them
to reach a conclusion as to whether the appellant had or had not lost self-control,then Mr. Fernando’s argument would be right. But in the paBBage complainedof nothing seems to have been further from the mind of the learned trial Judgethan the problem of loss of self-control, and at any rate no one listening to thepassage complained of could reasonably have understood the learned trial Judgeto mean that he was referring to the question of loss of self-control. 1
1 Law of Crimes, 16th ed. at p. 716.
» {1946) 2 A. E. B. 124.
* 1 East P. C. 234.
210
BASNAYAKE J.—Naide v. The King
I am therefore of opinion that the charge contains a misdirection. I would setaside the conviction and substitute in its place a conviction for culpable homicidenot amounting to murder and impose on the appellant a sentence of 16 yearsrigorous imprisonment. The other members of the Court are. however, of the-view that there is no ground for interference with the conviction.
In these circumstances the order of the Court is that the appeal is dismissed.
Basnayake J.—
The appellant, a young man of about 20 years of* age, has been found guilty ofthe offence of mnrder and sentenced to death. The present appeal is againstthat sentence.
The relevant facts are brief and simple. The deceased, her husband, his brotherthe appellant, and their mother lived in the same honse. It is common groundthat on the day in question the mother of the appellant and the husband <>f thedeceased were away at a polling booth, there being a Village Committee electionon that day. The deceased and the appellant remained in the house. Accordingto the statement of the deceased, in the morning at about seven the appellantattempted to outrage her modesty and when she resisted he stabbed her. Whenshe escaped with her infant, the appellant pursued her and stabbed her fatallyin a number of placesbothin the front and backof her chest. Accordingtothe
statement Of the appellant, when he came home after tending his cattle and askedthe deceased for some rice, she abused him saying: " I am *not going to serve yonrice. You had better obtain your rice from your mother." She addressed him-as “ tho ", When he went to the kitchen to serve a meal of rice for himself, the 'deceased came at himwithan ekel broom, abusedhim, and struck him withit.
While he was being abused and struck with the ekel broom, be came across a knifethat lay on the door of the kitchen. He picked it up and stabbed the deceaseda number of times. The deceased had ten injuries, nine of them stab wounds.Four of these woundswerenecessarily fatal. Twoof them were in frontofthe
chest and two behind. In all, four injuries were inflicted from behind. The-medical witness expressed the opinion that whoever caused this woman's deathmade a pretty thorough job of it.
The only point taken bylearned counsel is that the following passageinthe
summing-up of the learned trial Judge amounts to a misdirection:
" Now, making every allowance for the person provoked, you must ask your-selves whether the mode of resentment, even if you accept the whole of theaccused's story as true, was or was not grossly disproportionate to the natureof the provocation given.”
Those words occur at the end of a very careful and impeccable direction on thequestion of grave and sudden provocation. The question is whether in the contextthe words complained of amount to a misdirection.
It is clear from the authorities cited to us that according to the law of Englandthe direction complained of is unexceptionable. Our law on the point is to befound in the exception to section 294 of the Penal Code, which reads:
Culpable homicide is not murder if the offender whilst deprived of the powerof self-control by grave and sudden provocation causes the death of the personwho gave the provocation or causes the death of any other person by mistakeor accident.”
It is not necessary for the purpose of the instant case to consider the provisosto this exception. I shall therefore confine my attention to the provision quotedabove.
For the exception to be pleaded successfully in a case of culpable homicide—
(al there must be provocation,
it must be grave and sudden,
it must deprive the offender of the power of Belf-control; and
<d) the offence must be committed whilst the offender is bereft of the powerof Belf-control.
BASNAYAKE J.—Naide o. The King
aii
The above analysis of the exception reveals tbat provocation however graveand sudden does not reduce the offence of murder to culpable homicide not amountingto murder unless it deprives the person provoked of the power of self-control.Our Code contains only two instances where grave and sudden provocation withoutmore is regarded as a mitigating circumstance. Those instances are stated in sec-tions 326 and 326 of thePenal Code.In those sectionsthere isno requirementthat
the provocation shoulddeprive theoffender of hispowerof Belf-control.An
offender cannot get the benefit of the exception under discussion unless he showsthat the provocation deprived him of that faculty. Even then, his offence is notexcused, but is only reduced to culpable homicide not amounting to murder.
The next question that merits consideration is the way in which the exceptionshould be applied. Firstthere mustbe provocation. That is,there must beon
the part of the person killed an action or mode of conduct towards the offenderthat would excite resentment in a normal or reasonable man. The low on thispoint 1 is the same here as in England. It was thus stated so far back as 1869 byKeating J.:
“ The law is, that there must exist such an amount of provocation as wouldbe excited by the circumstances in the mind of a reasonable man, and so as tolead the jury to ascribe the act tothe influence ofthat passion ….The
law contemplates the case of a reasonable man, and requires that the provocationshall be such as that such a man might naturally be induced, in the anger of themoment, to commit the act.”
Later, Parting J. in the case of B. o. Alexander 3 elaborated the law thus:
"It is plain that the jury had evidence before them which justified them in find-ing that the appellant was not insane in the legal sense; at the same time theyconsidered him to be mentally deficient. All men who are sane are not of equalmental ability;the verdictmeans thatthe appellantwas below theordinary
level of sane people, though not across the border-line of sanity. On thatMr. Fox-Davies has raised an ingenious argument, which he admits has neverbeen suggestedbefore. Hesaysthatwhere a manis not insane,but is
mentally deficient, the -jury should consider what amount of provocation wouldjustify them in returning a verdict of manslaughter …. There is noauthority for such a proposition, and this court cannot make laws; that is thefunction of Parliament.”
This statement of the law was later approved in Lesbini's case 3. Referring to anargument similar to that advanced in Alexander’s case, Beading C.J. stated:
” It substantially amounts to this, that the court ought to take into accountdifferent degrees of mental ability in the prisoners who come before it, and ifone man's mental ability is less than another's it ought to be taken as a sufficientdefence if the provocation given to that person in fact causes him to lose hisself-control, although it would not otherwise be a sufficient defence becauseit would not be provocation which ought to affect the mind of a reasonable man.We agree with the judgment of Darling J. in Bex v. Alexander (9 Cr. App. Hep. 139)and with the principlesenunciated in Beg, v.Welsh (11Cox, 338), where itis
said that ' theremust existsuchan amount of provocation as would beexcited
by the circumstances in themindof areasonable man, and so as to lead the
jury to ascribe the act to the influence of that passion
In Mancini's case * this principle was reaffirmed by Lord Simon who said:
” It is not all provocation that will reduce the crime of murder to manslaughter…. The test tobe applied is that ofthe effectof the provocation ,on
a reasonable man, as was laid down by the Court of Criminal Appeal in B. v.Lesbini (11 Cr. App. Bep. 7) so that an unusually excitable or pugnacious individualis not entitled to relyon provocation whichwould nothave led an ordinary
person, to act as he did. In applying the test, it is of particular importance (1)to consider whether asufficient interval haselapsed since the provocationto
1 Bex v, Welsh (1869) 11 Cox 336.* (1914) 3 K. B. 1116.
* 9. Cr. App. Bep. 139.* (1942) A. C. 1 : 28 Cr. App. Bep. 65.
212
BASNAYAKB J.—Naide v. The King
allow a reasonable man time to cool, and (2) to take into account the instrumentwith which the homicide was effected, for to retort, in the heat of passion inducedby provocation, by a simple blow, is a very different thing from making use of adeadly instrument like a concealed dagger. In short, the mode of resentmentmust bear a reasonable relationship to the provocation if the offence is to bereduced to manslaughter.''
This test was repeated in Gauthier’s case 1 and in Holmes' case 2 wherein Lord"Simon himself once more laid down the test in these words:
" The distinction, therefore, is between asking ‘ Could the evidence supportthe view that the provocation was sufficient to lead a reasonable person to dowhat the accused did? ' (which is for the judge to rule) and assuming that thajudge's ruling is in the affirmative, asking the jury: ' Do you consider that,on the facts as yon find them from the evidence, the provocation was in factenough to lead a reasonable person to do what the accused did?
The above cases Bhow the development of the English Daw. Our Penal Code-does not enact anything different and we have consistently applied the principlesenunciated in the cases cited above. Those principles are consistent with ourenactment. The explanation to exception 1 to section 294 provides that whetherthe provocation was grave and sudden enough to prevent the offence from amountingto murder is a question of fact. That too is now the law of England though theearlier cases indicate that it was once regarded as a matter for the judge.
This brings me to the words " whilst deprived of the power of self-control ".But before I pass on to it I must refer to an aspect of the development of the lawof provocation which is to my mind irreconcilable with the principles stated above.
It has been held both here and in England that in assessing the admissibility ofthe defence of provocation drunkenness giving rise to a specially sensitive attitudeof mind may be taken into account. With the greatest respect to the eminentjudges who have stated this view of the law I am unable to find any authority forthis departure from the standard of a reasonable man. Why should a self-induced'sensitivity which leads him to be provoked where a reasonable man was not likelyto act in the same way be a circumstance in the offender’s favour any more than apeculiar sensitivity of an individual which the law says it does not take into account?That question does not arisehere and I do notthereforepropose to dwell further
on that topic.
Now I come tothe words“ whilst deprived ofthe power of self-control ”. That
against as in our law is an essential element of the English law on this subject. Toquote the wordB of Lord Simon in Mancini’s case (supra) :
– “It is not all provocation that will reduce the crime of murder to manslaughter.Provocation, to have that result, must be such as temporarily deprives the personprovoked of thepower ofself-control, as theresult ofwhich he commits the
unlawful act which causes death:"
In Holmes’ case Viscount Simon stated the same thing in different words:
“If, on the other hand, the case is one in which the view might fairly be taken(a) that a reasonable person, in consequence of the provocation received, mightbe so rendered subject to passion or loss of control as to be led to use the violencewith fatal results, and (b) that the accused was in fact acting under the stressof such provocation, then it is for the jury to determine whether on its view of thefacts manslaughter or mnder is the appropriate verdict."
It will be seen from what has been stated above that our Code enacts in so manywords what is today the law of England on the same subject. The law in thatoountry has been clarified in the course of years by judicial decision. Thoughthe legal positionhas not been stated earlier inthe samelanguage in which Lord
Simon has expounded it in the case of Holmes and Mancini (supra) it would appearthat Sale and Poster did contemplate loss of self-control as an essential ingredient •
2 (1943) 29 Cr. App. Rep. 113 at 119.
• (1946) A. C. SS8 at 597.
BASNAYAXE J.—Naide o. The King
213
Now I come tothelast qnestion. To whatextent maywe look atthe mode
of resentment forthepurpose of determiningwhether atthe time the offender
the fatalinjury he was deprived ofthe power of self-control.That is
a matter that haa to be inferred from the evidence. Loss of self-control beinga mental state it is by looking at what the offender did that one may judge whetherat the time he committed the offence he had command of himself or not. Wasthe offence committed under the almost automatic impulse of the provocationor did he apply his mind to his offence and does bis act show deliberation and notan uncontrollable instinctive impulsetostrike a fatalblow? Those factors cannot
be determined without taking intoaccount the timethat elapsed betweenthe
provocation and the fatal blow, the number of blows inflicted by the offender,the way in whichthedeath was caused, the nature of theweapon usedby him—
without considering whether the lethalweaponwas athand orwhether itwas
brought for the purposeof wounding—andwhetherthe attack wassavageor not. '
Even the relative natureof the partiesinsize andstrength may incertaincircum-
stances be relevant. This aspect of the law was aptly stated by Baron Parke sofar back as 1837 in R. V. Thomas *. He said:
“If a person receives a blow andimmediatelyavenges it withany instrument,
that he may happen to have in his hand, then the offence will be only manslaughter,,provided the blow is to beattributed tothepassion ofanger arising from that
previous provocation; for anger isapassion to which good and bad menare
both subject. But thelaw requirestwothings:first that thereahonidbo that
provocation, and secondly that the fatal blow ahonid be clearly traced to theinfluenceof passion arisingfrom thatprovocation.There isno doubthere
but that a violent assault was committed; but the question is whether the blowgiven bythe prisoner wasproducedbythepassionof angerexcited bythat
assault. If yon see that a person denotes, by the manner in which he avenges-a previous blow,that he isnot excitedbya sodden transport of passion, bnt
under the influence of that wicked disposition, that bad spirit, which the lawterms “ malice ", in the definitionofwilful murder,then the offence wouldnot
be manslaughter.Suppose,for instance,ablow weregiven, and the party
struck beat the other’s head to pieces by continued, cruel, and repeated blowB,then youcould not attributethat acttothepassionof anger,and the offence
would be murder.”
In the later case of R. c. Duffy 2 Devlin J. stated the law so precisely as to meritthe approbation ofthe Courtof CriminalAppeal whereLord Goddard described
it as a classic direction. His words are in my view equally applicable in our countryand will bear repetition.
Similarly, as counsel for the prosecution has told yon, circumstances which,induce a desire for revenge, or a sadden passion of anger, are not enough. Indeed,mreumstances which induce a desire for revenge are inconsistent with provocation,ranee thecon scionsformulationof adesire forrevenge means thata person has
had timeto think,to reflect,andthat wouldnegativea suddentemporary loss
of self-control which is of the essence of provocation. Provocation being, there-fore, as I have defined it, there are two things, in considering it, to which the lawattaches great importance. Thefirstof them iswhetherthere waswhat is some-
times called time far cooling, that is, for passion to cool and for reason to regaindominionover themind. That iswhy mostacts ofprovocationare cases of
sudden quarrels, sudden blows inflicted with an implement already in the hand,perhaps being used, or being picked up, when there has been no time for reflec-tion. Secondly, in considering whether provocation has or has not been madeont, yon most consider the retaliation in provocation—that is to say, whetherthe mode of resentment bears some proper and -reasonable relationship to thesort of provocation that has been given. Fists might be answered with fists,bnt not with a deadly weapon, and that is a factor yon have to bear in mindwhen yon are considering the qnestion of provocation."
1 (J 837) 7 O.d: P. 817.
(1949) 1 AU . E. JR. 932.
214
GUNASEELABA J.—Naide v. The King
In this connection it is I think relevant to consider exception 4 to section 294of our Penal Code which reduces what would otherwise be murder to culpable homi-cide not amounting to murder where death is caused “ without premeditation inn sudden fight upon a sudden quarrel, and without the offender having taken undue.advantage or acted in a cruel or unusual manner ”. The heat of passion spokenof here is to my mind something less than the “ loss of the power of self-control Aperson who has lost the power of self-control has no command of himself and isyielding to uncontrollable instinctive impulse to strike a blow which even if itproves fatal reduces his crime even where the act is accompanied by those mentalelements essential to the offence of culpable homicide.
I do not think I should say more for the purposes of this case. The direction-of the learned trial Judge is in my view correct dnd proper.
The appeal is therefore dismissed.
•GtrNASEKARA J.
The facts out of which this appeal arises are set out in the President's judgmentand need not be recapitulated. The question for decision is whether the learnedJudge who presided at the trial misdirected the jury when he told them that ifthey accepted the accused’s story as true they must ask themselves whether themode of resentment was or was not grossly disproportionate to the nature of theprovocation given. It turns on the construction of Exception 1 to section 294-of the Penal Code, which is in the following t^rms: —
“ Culpable homicide is not murder if the offender, while deprived of the powerof self-control by grave and sudden provocation, causes the death of the personwho gavetheprovocation, orcauses thedeath of any otherperson bymistake
or accident.''
The direction that is objected to occurs in a passage in which the learned Judgediscusses the requirement that the provocation mast be grave. As is pointed out inthe President's judgment, no objection is taken to the immediately preceding directionthat the provocation
“ must be provocation of a kind that a man belonging to the class of societyto whichtheaccused belongs would reasonably be expectedto resent,and it
must be provocation of such gravity as one would expect a person of that classto resent so deeply as to temporarily deprive him of the power of self-control.”
In other words,to borrow thelanguage ofViscount Simon inHolmes v.Director
of Public Prosecutions *, the provocation must be “ enough to lead a reasonable per-sons to dowhat the accuseddid ”, Asseveral decisions ofthe Indian Courts
have held 2, the test is that laid down in R. v. Lesbini 3, namely, whether theprovocation was sufficient to deprive a reasonable man of his self-control.
I do not think that the learned Judge has said anything more, or anything different,in the passage to which exception is taken. He said:
“ Now, making every allowance for the person provoked you must ask yourselveswhether the mode of resentment, even if you accept the whole of theaccused’s story as true, was or was not grossly disproportionate to the nature of theprovocation given."
Ex hypothesi a reasonable man’s mode of resentment would not be disproportionateto the nature of the provocation. Provocation that would be grave enough to leadsuch a person to strike .a blow with his fist would not necessarily be sufficient tobreak down hiB power of self-control to such an extent that his inhibitions no longer
1 (1946) 2AU.E. R. 124.
For example, ■
Sohrab, A. I. R. (1924) Lahore 450, at 451.
Khadin Hussain, A. I. R. (1926) Lahore 598, at 599.
Dinbhandu Ooriya, A. I. B. (1930) Calcutta 199, at 204.
Saraj Din (1935) 36 Cr. L. J. 306.
Ohulam Mustafa Oahno (1939) 40 Cr. L. J. 778, at 779.
(1914) 3 K. B. 1116 ; 11 Cr. App. B. 7.
GUNASEKABA J.—Naide «. The King218
restrain him from fatal violence. Acceptance of the whole of the accused's story astrue m;ghtinvolve a conclusionthat the provocation allegedbyhim was sufficient
so to deprive him of self-control as to lead him to make a fatal attack with a lethalweapon; but the jury had still to consider whether it was sufficient to deprive areasonable man of self-control to' a like extent, that is to say, whether the provo-cation was grave. In the passage in question the learned Judge has in effect directedthe jury to consider whether the provocation was sufficient to deprive a reasonable-man of bis self-control. The quotation from RatanlaVs Law of Crimea * is usedmerely toemphasis the pointthat trival provocation isinsufficient to reduce
the offence.
This quotation, which in turn reproduces an extract from East's Pleas of the Crownrreads as follows:
" It must not, however, be understood that any trivial provocation, which in-point oflaw amounts to anassault or even a blow willofcourse reduce the
crime of the party killing to manslaughter …. For where the punish-ment indicted for a slight transgression of any sort is outrageous in its nature-either inthe manner or the continuance of it and beyondallproportion to the-
offence, it is rather to be considered as the effect of a brutal and diabolical malignitythan of human frailty.”
It is contended for the appellant that this passage could have misled the jury intoa view that the exception of grave and sudden provocation is not available wherethe homicide has been committed with the intention of causing death or with theintention of causing such bodily injury as is likely to cause death. In support ofhis contention learned Counsel for the appellant drew our attention to the reBt of’the extract, which readB as follows:
“ It is one of the true symptoms of what the law denominates malice; and therefore-the crime will amount to murder, notwithstanding such provocation. ”
It has been pointed out in Holmes’ case that under the English law ** the wholedoctrine relating to provocation depends on the fact that it causes, or may cause,a suddenand temporarylossof self-control whereby malice, whichis the formation-
of an intention to kill or to inflict grievous bodily harm, is negatived ". Thedifference between the English law and ours in this respect is adverted to in the followingpassage from the judgment of Bertram C.J. in R. v. Punchirala 2:
“ It is clear that it was the intention of this enactment [sc. Penal Code, S. 294,exception 1) to give effect to the principles of the English law. The English lawon this question requires two essentials: —
The provocation must be of a certain degree ….
Theaccused musthavein fact acted under the impulse ofthe provocation..
If he acted under pre-conceived malice, or owing -to brutality of tempera-ment, provocation is no excuse. In English law provocation is material,not sb under our law, because it is conceived of as mitigating the offence,but because it is conceived of sb negativing- that legal malice which is-an essential ingredient of murder. "•
There is nothing in the passage from Batanlal’s Law of Crimes that was read tothe juryto suggest that provocation cannot mitigate the offenceif the accused
committed the homicide acting with a murderous intention. The question whether thejury could have been misled by the quotation must be decided upon an examinationof whatwas read tothemand not upon an examination ofwhat was not
read. What they could have understood from what was read to them is thatprovocation cannot reduce the offence to culpable 'homicide not amounting tomurder unless it is grave provocation, for the reason that a homicide committed upontrivial provocation must be attributed to malignity Tather than to frailty. Insuch a view of the reason for the requirement that the provocation must be
{Tj 17th Edition (1948) page 726.
* (1924) 25 N. L. H. 458, at 461.
216
GUNASEKARA 3-—N aide v. The King
grave 1 can see nothing that could mislead the jury as to what would entitle theaccused to the benefit ot the exception. Moreover, the learned Judge has in otherparts of his summing-up made it abundantly clear that the question whether theoffence was reduced to culpable homicide not amounting to murder by reason ofgrave and sudden provocation could arise only if the jury were convinced that theappellant had committed the homicide acting with a murderous intention. He•aid:
" If you are convinced that he had a murderous intention then the proper verdictis murder, unless there are facts placedbefore you atthis trial from which you
may legitimately infer a justification forthe killing ortheexistenceof mitigating
circumstances which the Jaw recognisesas reducingthe offencefrom murder
to culpable homicide not amounting to murder. Let me tell you at once thatno justification tor the killing has been placed before you. You are thereforeleft to consider whether, if you are convinced that there was a murderous intention,nevertheless there was any mitigating circumstance which reduces the offence.The existence of such mitigating circumstances, gentlemen, must be provedby the defence and not disproved in advance by theCrown. TheCrown, as I
have told you, must establish beyond reasonable doubt the fact of the killingand the murderous intention. Once that has been established the burden shifts tothe accused to satisfy you not beyond reasonable doubt but at least on a balanceof probability that in spite of the murderous intention proved against him there was amitigating circumstance of the kind which I have described.*’
Whatever may be the difference between the English law and ours as to the basiB-of the doctrine relating to provocation, there is no difference in this respect, thatpovocation can alter the nature of an offence ofhomicideonlyif it isgraveand
sudden and by its gravity and suddenness deprives the offender of his power ofself-control so that he commits the offence.Noris thereanydifferenceastothe
test for determining whether the nature oftheprovocation is such thatitcan
prevent the homicide from amounting to murder: the test is whether it is sufficientto deprive a reasonable man of his self control. It seems to me, therefore, that inthe application of this test it is no less relevant under our law than it is under theEnglish law to consider the relation between the mode of resentment and the provocation.Its relevancy under the English law is pointed out in the following passagein the speech of Viscount Simon L.C.,inManciniv.DirectorofPublic
Prosecutions 1:
It is not all provocation that will reduce the crime of murder to manslaughter.Provocation, to have that result, must be such as temporarily deprives the personprovoked of the power of self-control, as the result of which he commits the unlaw-ful act which causes death …… The test to be applied is that of the
effect of the provocation on a reasonable man, as was laid down by the Courtof Criminal Appeal in Rex v. Lesbini, so that an unusually excitable or pugnaciousindividual is not entitled to rely on provocation which would not have led an ordi-nary person to act as he did. In applying the test, it is of particular impor-tance (o) to consider whether a sufficient interval has elapsed since the provo-cation to allow a reasonable man time to cool, and (6) to take into account theinstrument with which the homicide was effected, for to retort, in the heat ofpassion induced by provocation, by a simple blow, is a very different thing frommaking use of a deadly instrument like a concealed dagger. In short, the modeof resentment must bear a reasonable relationship to the provocation if theoffence is to be reduced to manslaughter,”
There is nothing in our law that justifies a view that there need be no reasonableproportion between the provocation and the mode of resentment. On the contrary, asI have tried to show, the requirement that the provocation must be grave implies thatthere must be such a proportion.
I would dismiss the appeal and the application.
* {1942) A. C. 1., at 9.