072-NLR-NLR-V-41-THE-KING-v.-COOMARASWAMY.pdf
289
The King v. Coomaraswamy.
1946Present: Moseley A.C.J., Soertsz and Keuneman JJ.
THE KING v. COOMARASWAMY8—M. C. Point Pedro, 18,682.
Plea of grave and sudden provocation—Charge of murder—Question of fact forjury—Mere abuse sufficient provocation—Penal Code, ss. 294, 396.
In a charge of murder, the question whether the evidence discloses theexistence of provocation as well as the question whether such provocationwas grave and sudden should be left to the jury.
Even where the defence has not set up grave and sudden provocation,the question should be left to the jury, if the evidence for the prosecutiondiscloses facts upon which such a defence could be raised.
Mere abuse unaccompanied by' some physical act may be sufficientprovocation to reduce the offence of murder to culpable homicide notamounting to murder.
T
HIS was a case stated by Nihill J. under section 355 of the CriminalProcedure Code.
The facts are fully stated in the judgment.
H. V. Perera, K.C. (with him G. G. Ponnambalam), for the prisoner.—There are two questions for consideration, viz. : (1) Whether there wasa misdirection in law when it was stated to the jury that mere words ofabuse unaccompanied by any physical act could not constitute provoca-tion, and (2) whether the Judge should not have left it to the jury todecide whether there was provocation.
English authorities seem to support to some degree the view taken bythe trial Judge .regarding the legal position. Our Penal Code, however,does not draw any distinction between provocation by words andprovocation by acts. (Vide Mayne’s Criminal Law of India (4th ed.)p. 490.) Exception 1 of section 294 draws no distinction between differentvarieties of provocation. For a conviction under section 326 the provo-cation need not even be such as to cause loss of self-control, for thatsection, unlike exception I of section 294, does not contain the words“ whilst deprived of the power of self-control ”.
All questions of fact have to be determined by the jury. It isexpressly provided in the explanation to exception 1 of section 294that the gravity and suddenness of provocation is a question of fact.In the present case had the question of provocation been left to the juryThey might well have brought a verdict under section 326 instead ofsection 317.
[Soertsz J.—Under section 105 of the Evidence Ordinance, was notthe onus on the accused to plead and establish provocation?]
If in the very case presented by the prosecution there is evidence ofprovocation it is the duty of the Judge to leave the question to the jurynotwithstanding that it has not been raised by the defence and is incon-sistent with the defence which is raised—Catherine Thorpe1; Golap
Ali et al. v. Emperor '.
' 1C Cr. App. R. ISO.
"1J. X. B 17627 <5/52)
2 .1././?.{IU33) Cal. CIO.
280
MOSELEY A.C. J.—The King v. Coomaraswamy.
J. W. R. llangakoon, K.C., Attorney-General (with him M. F. S. Pulle,C.C.), as amicus curiae.—The question at issue is really the interpretationto be given to the explanatory note appearing in exception 1 of section294 of the Penal Code. It was the province of the Jury to decide whetherthe words of abuse uttered by the deceased amounted to grave and suddenprovocation. See Queen v. Gunesh Luskur et al. Queen v. Huri GireeQueen v. Sohraie
Cur. adv. vult.
May 3, 1940. Moseley A.C.J.—
This is a case stated by Nihill J. under section 355 of the CriminalProcedure Code, as follows : —
“ 1. In this case the accused, on an indictment for murder, wasfound guilty of an offence under section 317 of the Penal Codeby the jury’s majority verdict of five to two. I thereupon sentencedthe accused to five years’ rigorous imprisonment. After sentencehad been passed, Counsel for the defence requested me to state acase under section 355 of the Criminal Procedure Code on the groundsthat I have misdirected the jury in my charge in not leaving to themthe issue of provocation. Thereby the accused had been prejudicedinsomuch as, had that issue been left to the jury, they might havefound him guilty under section 326 and he could not then have receiveda sentence in excess of four years’ rigorous imprisonment.
I granted the request for the following reasons : —
My charge admittedly contained a misstatement or at least anincomplete statement of the law in regard to the sufficiency ofprovocation occasioned by mere words of abuse alone. I toldthe jury that mere abuse unaccompanied by some physical actwas insufficient provocation. What I should have said andwhat, in fact, I intended to say was that mere abuse would beinsufficient in this case if they belived the evidence which wasto the effect that the accused after listening to the abuse hadrun some little distance from the scene and had returned with arice pounder with which he had dealt a blow on the foreheadof the deceased. The principle which I intended to make clearto the jury but may not have done is that set out in Archbold{27th ed., p. 881) under the paragraph entitled ‘Insufficientprovocation ’.
I then proceeded to direct the jury that if they held that it wasthe accused that had dealt the blow, then if they were satisfiedthat the accused had the intention or knowledge demanded bysection 296 they should find him guilty of murder, but that ifthey had a reasonable doubt as to the presence in the mind ofthe accused of those ingredients, their proper verdict would beto find him guilty of an offence under section 317.
I considered briefly the Code exceptions which may reduce murderto culpable homicide not amounting to murdesr but indicated thatin my opinion there was no evidence before them which could
i 0 Sutherland’s W. JR. 72 (Criminal).*10 Sutherland's TV. R. 26 (Criminal).
* 13 Sutherland's W. R. 33 (Criminal).
MOSELEY A.C.J.—The King v. Coomaraswamy.
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bring the case within the exceptions. I would add here thatthe defence made no attempt to prove the existence of anysuch circumstances (vide section 105 of the Evidence Ordinance).No evidence was called and the defence so far as it was suggested bycross-examination was to the effect that the accused was elsewhereat the time of the assault.
Counsel for the defence has submitted that the question whetherthe ' provocation ’ received by the accused (that is to say, words ofabuse directed against him and his wife) was grave and sudden enoughto prevent the offence from amounting to murder was a question offact which should have been left to the jury. My view of the ‘ explana-tion* to section 294 of the Penal Code is that it is for the Judge todecide whether the issue of provocation can arise from the evidence,and if it does and only then it is for the jury to consider its sufficiencyand suddenness. If this view be right, then I consider that althoughmy charge contained a misstatement of law this did not amount to amisdirection because it was my duty to point out that mere abuse onlycould not in law extenuate the use of an instrument which, used in theway it was, was likely to cause death.
If however I am wrong in the above view then clearly there hasbeen a misdirection which may have affected the jury’s verdict and Iaccordingly felt that I should state a case for consideration by two ormore Judges. In short the question that emerges is whether in tellingthe jury that on the evidence the issue of provocation could not arise,I was right, or whether I should have told them that it was for them toconsider whether the abuse uttered by the deceased was calculated todeprive the accused of his power of self-control. That if they thoughtit was and they thought that intention or knowledge necessary toconstitute culpable homicide was present they should find the accusedguilty of culpable homicide not amounting to murder, or if intention orknowledge was present, of an offence under section 326.
As regards sentence I imposed only half the maximum permissibleunder section 317 and refrained from ordering a whipping because ftook into account the effect on the accused of the abuse hurled at himand his wife by the deceased woman. Had I left the question ofprovocation with the jury and had they brought in a verdict undersection 326, I should have imposed the maximum term of imprison-ment.”
The application by Counsel for the defence that a case should be statedwas based upon the direction to the jury that “ mere abuse unaccompainedby some physical act was insufficient provocation”.
The principle set out in Archbold’s Criminal Pleading, Evidence andPractice, to which the learned Judge refers, is stated as follows: —“Asa general rule, no words or gestures, however opprobrious or provok-ing, will be considered in law to be sufficient to reduce homicide tomanslaughter, if the killing is effected with a deadly weapon or anintention to do the deceased some grievous bodily harm is otherwisemanifested". The proposition is based largely upon an excerpt fromthe summing-up of Keating J. in Reg. v. Welsh* and in a later case
111 Cox's Crl. Lau> Cases 336.
292
MOSELEY A.C.J.—Tlie King v. Coomaraswamy.
Rex v. Mason', the Court of Criminal Appeal, per Ridley J. agreed that“ mere words of provocation or abuse could not, but words of provocationcoupled with such an act as spitting upon the appellant might (thoughthey need not necessarily) have the effect of reducing the crime frommurder t9 manslaughter". The trial Judge had directed the jury inthose terms, the jury had declined to find a verdict of manslaughter, andthe Court saw no reason to interfere with the verdict of murder.
It may therefore be taken for granted that the. principle set out is wellestablished in English law and that in the light of that principle thedirection of Nihill J. is unnexceptionable.
It will, however, be observed that the relevant provision of the PenalCode, i.e., section 294, draws no distinction between different varieties ofprovocation. Exception 1 to section 294 is as follows: —
“ Culpable homicide is not murder if the offender, whilst deprivedof the power of self-control by grave and sudden provocation, causesthe death of the person who gave the provocation, or causes the deathof any other person by mistake or accident.”
To this exception is added the following explanation:.—“Whether theprovocation was grave and sudden enough to prevent the offence fromamounting to murder is a question of fact That mere verbal provoca-tion is contemplated seems clear if one refers to illustration (d), which isas follows: —
“ (d) A appears as a witness before Z, a Magistrate. Z says that he
does not believe a word of A’s deposition, and that A has perjuredhimself. A is moved to sudden passion by these words and kills Z.This is murder.”
That the offence of A (in the illustration) is not reduced is undoubtedlydue to the fact that the provocative words were uttered by a public ser-vant in the lawful exercise of his powers, and not for the reason thatthe words in themselves did not amount to provocation.
To support this view of the intention of the Legislature, Counsel for theaccused referred us to Mayne’s Criminal Law of India (4th ed., p. 490),in which the commentator quotes the following words of the framers ofthe Code: —
“ We greatly doubt whether any good reason can be assigned forthis distinction. It is an indisputable fact that gross insults by wordor gesture have as great a tendency to move many persons to violentpassion as dangerous or painful bodily injuries. Nor does it appearto us that passion excited by insult is entitled to less indulgence thanpassion excited by pain. On the contrary, the circumstances that aman resents an insult more than a wound is anything but a proof that
he is a man of a peculiarly bad heart.”
»
Counsel also, invited our attention to the phraseology of section 326of the Penal Code, under which it was contended that the accused mighthave been properly convicted if the question of provocation had beenSeft to the jury. In section 326 there is no express condition that the
1 S Crl. App. Rep. 121.
293
MOSELEY A.C.J.—The King v. Coomaruswavuj.
offender shall be deprived of the power of self-contfol, but merely thathe shall have acted on grave and sudden provocation. Counsel queried,probably without strong conviction, the necessity for such a degree ofprovocation that would deprive the offender of the power of self-control.There would, however, appear to be no justification for drawing a dis-tinction to this extent between the provocation required by section 294and that contemplated in section 326. Indeed, to relax the requirementsin case of section 326 might well lead to an absurdity, such as an offenderwho had received grave and sudden provocation, but who had admittedlynot been deprived of his self-control, proceeding, in cold blood, to breakevery bone in his provoker’s body knowing that he was protected by thelaw against adequate punishment. In any case it is, in my opinion,unnecessary, for the purpose of the present case to draw any suchdistinction.
The Attorney-General, who appeared as amicus curiae, drew ourattention to several Indian cases, of which I think it is necessary to referto one only. In Queen v. Huri Giree ', the accused was convicted ofculpable homicide not amounting to murder, on the ground of grave andsudden provocation. Glover J., in delivering the judgment of theCourt, said “ No doubt, the question whether such provocation wassufficient to take the case out of the purview of section 300 was a questionof fact ”. The Appellate Court found it impossible to say that theprovocation that the accused had received was of such a nature as to takeaway from him all power of self-control. But inasmuch “ as the Judgeand Assessors have found on the evidence that the prisoner is not guiltyof murder …. this Court cannot interfere, no question of lawbeing involved . . . . ” The Court, however, thought it right tosay that the finding was not justified by the evidence
Nihill J. drew our attention to the fact that the only evidence ofprovocation was given by the witnesses for the prosecution, and that thedefence was that the accused was elsewhere at the time of the assault.There is, however, ample authority for the proposition that even if thedefence of manslaughter is not raised, the question should be left to thejury if the evidence for the prosecution discloses facts upon which such adefence could be based (18 Crl. App. Rep. 189).
In my opinion, the question whether the facts disclosed the existenceof provocation and not only of the quantum is one which should be leftto the jury, and had that been done in this case, the jury might well haveconvicted the accused of causing grievous hurt upon grave and suddenprovocation. I think therefore that the conviction under section 317should be set aside and that one under section 326 should be substitutedtherefor.
In regard to sentence the learned Judge has indicated that, had thejury returned a verdict under section 326, he would have imposed themaximum term of imprisonment, i.e., four years. It has been urgedthat it is for this Court, in such a case as this, to form its own opinionas to the sentence which .should be imposed. No doubt that is thecorrect view. Even so, it seems to me that the accused has received*’ 10 Sutherland's Weekly Reporter (Criminal.) p. SO.
294
KEUNEMAN J.—Forbes ». Rengasamy.
every benefit which the law confers and which he might reasonablyexpect to receive at the hands of a jury. The maximum sentence of fouryears' rigorous imprisonment is, in my view, no more than adequateand that is the sentence which the accused will undergo.
Soertsz J.—I agree.
Keuneman J.—I agree.
Conviction varied.