055-NLR-NLR-V-57-REGINA-v.-K.-PIYASENA.pdf
[In the Court of Criminal Appeal] '
1955 Present: Gratiaen, J. (President), Gunasekara, J., and
K.D. de Silva, J.
REGINA v. K. PIYASENA
S.C. 5—M. C. Kalutara, 21,304
Provocation—Charge of murder—Mere abuse may amount to grave and suddenprovocation—Question of fact for jury—Penal Code, s. 294, Exception 1.
■ In a trial for murder tho nccused gave ovidenco stating that ho stabbed thodeceased in self-defence when tho latter struck him with a club. At the samo. time tho evidence of two of tho prosecution witnesses indicated that thostabbing was immediately preceded by “ foul abuse ” on tho part of thodeceased..
Held, that tho jury should have been directed in tho course of the summing-up that it was for them to decide, after due consideration of the evidence oftho prosecution witnesses and of the accused, whether the deceased man gavethe accused provocation and, if ho did, whether such provocation was grave. enough to reduce his olfenco to culpable homicide not amounting to murderwithin tho meaning of Exception 1 to Section 29-1 of the Penal Code.
ApPEAL.against a conviction in a trial before the Supreme Court.
M. M. Kumarahulasingham, with P. B. Tampoe and L. F. Ekatiayake,for the accused appellant.
V. T. Thamotheranx, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
May 2, 1955. Gratiaex, J.—
This was an appeal against a conviction for murder. At the conclusionof the argument wc substituted a conviction for culpable homicide notamounting to murder and sentenced the appellant to a term of 8 years’rigorous imprisonment. The reasons for our decision must now bestated.•
The deceased Andy Singho admittedly came by his death in conse-quence of a stab injury inflicted on him by the appellant on 25th April1954. According to the witness Alpi Singho who was called by theCrown, the appellant and the deceased were standing together on theridge of a paddy field and “ exchanging foul abuse whereupon theappellant stabbed the deceased. Lihinis Appuhamy, who was thedeceased’s brother, also claimed to have heard “ some foul language ”after which the appellant, immediately before the stabbing, said “ Youset fire to my house, arc you now tr3"ing to show me your pride ?”.(Somebody had in fact set .fire to the appellant’s house about a year
previously, and suspicion had, rightly or wrongly, fallen on the deceased.Tho evidence of Lihinis therefore indicates that the appellant protestedthat the deceased was arrogantly adding insult to past injury, real orassumed.)
The appellant admitted the stabbing, but alleged that he stabbed thedeceased in self-defence when the latter struck him with a club.
In his charge to the jury, the learned Commissioner correctly directedthem that, if they accepted the appellant's version, there was room forthem to return a verdict based on the plea of self-defence or alternatelyon the plea of having acted under grave and sudden provocation.
To this extent the summing-up is unexceptionable. Mr. Kumara-kulasinghain complains, however, that in certain other passages of the' charge the learned Commissioner directed the jury that if they believedthe evidence of Alpi Singho and Lihinis, the only verdicts which theycould properly return were that the appellant was guilty of murder or(if they were not satisfied that a murderous intention was established)of culpable homicide not amounting to murder ; that is to say, he directedthem by implication that in that event it was not open to them to takethe view that the appellant had acted under grave and sudden provoca-tion within the meaning of Exception 1 to Section 294 of the Code. Healso directed them to the effect that if they accepted that evidence theymust necessarily reject the whole of the defence version of the circum-stances of the homicide, and that the appellant could get the benefitof this exception only if they held it to be probable that the circum-stances were substantially as described by him. He did not invite themto consider whether the appellant’s version, though exaggerated, wastruthful in so far as it mentioned certain acts of provocation in additionto the “ foul abuse ” spoken to by Alpi Singho and Lihinis.
In our opinion, the learned Commissioner was not justified in directingthe jury that a verdict of culpable homicide not amounting to murderon the ground of grave and sudden provocation was permissible onlyif the}' rejected the evidence of Alpi Singho and Lihinis. In this country,mere abuse, even if unaccompanied by physical violence, may in certaincircumstances afford sufficient provocation to reduce the offence ofmurder to culpable homicide not amounting to murder ; and the questionwhether such provocation was grave enough to mitigate the intentionalkilling of a man is a question of fact for the jury, properly directed onthe law, to determine. The King v- Coomarasivamyx, The King v.KirigorL<-. It is not proper for the presiding Judge to .withdraw theissue of provocation from the jury unless a verdict under Exception Iwould, on any view of the evidence, be wholly unreasonable. TheJudicial Committee, in laying down the test of “ gravity ” in Attorney-General v. Perera -3, did not formulate a rule to the effect that abuse,however provocative in degree, can never by itself bring a case within.Exception 1 to Section 294 of our Code..
1 (1940) 41 N. L. R. 289.1 (1947) 48 -V. L. R.407.
{1952) 54 N. L. R. 265.
Conviction altered.
_ – In the present case the jury should have been directed that it wasfor them to decide, after due consideration of the evidence of the prosecu-tion witnesses and of the appellant, whether the deceased man gavethe appellant provocation and, if he did, whether such provocationwas grave enough to reduce his ofTence to culpable homicide not amountingto murder. We were unable to hold that, if this issue had been left openas it should have been, they could not reasonably have returned a verdict'convicting the appellant only of the lesser offence. For these reasons•we substituted a conviction under Exception 1 to Section 294 and passedsentence accordingly.