134-NLR-NLR-V-48-THE-KING-v.-KIRIGORIS.pdf
KEUNEMAN A.C.J.—The King v. Kirigoris.
407
[Court of Criminal Appeal.]
1947 Present: Keuneman A.C.J. (President), Wijeyewardene S.P.J.
and Jayetileke J.
THE KING v. KIRIGORIS.Application 159 of 1947.
S. C. 35—M. C. Walasmulla, 616.
Provocation—Charge of murder—Plea of grave and sudden provocation—Mereabuse may amount to sufficient provocation—Question of fact for jury.
In Ceylon, mere abuse unaccompanied by s6me physical act may incertain circumstances be regarded as sufficient provocation, and, in acharge of murder, the jury are the sole judges as to whether there wassufficient provocation to support a plea of grave and sudden provocation.
A
PPLICATION for leave to appeal against a conviction in a trialbefore a Judge and Jury.
Mackenzie Pereira, for the petitioner.
T. S. Fernando, C.C. (with him E. L. W. de Zoysa, C.C.), for the Crown.July 23, 1947. Keuneman A.C.J.—
The accused in this case was convicted of the murder of T. Babahamy.According to the story for the prosecution, the accused had struck thewoman on the head with a rice-pounder and caused her death, and nomitigating circumstances were disclosed. The accused admitted the act,but raised the plea of grave and sudden, provocation. He said he wentto the house of the deceased, and asked her daughter Podihamy—whowas his mistress—to return home with him. The deceased then inter-vened
“ She is a very interfering sort of woman. On that day when I calledPodihamy to go, my mother-in-law abused me unmercifully in badlanguage. The abuse was unbearable and I became so provoked that Istruck her. I had completely lost control of myself and I struck mymother-in-law. I struck her with a door bar ”.
The accused gave some details of the language used by the deceased,which the trial Judge described as “ uttering obscene words and attri-buting immorality to one’s mother ”.
The trial Judge in his charge dealt with the plea of grave and suddenprovocation. He pointed out that provocation must be both grave andsudden, and must by its gravity and suddenness deprive the accused ofhis power of self-control. The trial Judge continued : —
There must be adequate cause for the provocation. The test is,was the provocation in the circumstances of the case likely to resultin a normal, reasonable man losing control of himself to such an extentas to cause such an injury as was inflicted in this case ? Would thenormal villager of the country say in the particular circumstances ofthe case that there was grave and sudden provocation ? Apart from
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KEUNEMAN A.CJ.—The King v. Kirigoris.
words or gestures, there was only abuse here. Could insult, even bywords or gestures, afford sufficient provocation for a person to actin the way he had done ? Uttering obscene words and attributingimmorality to one’s mother must not be understood to be trivialprovocation, but would that justify the commission of an act of anoutrageous nature beyond all proportion to the provocation ? Insuch circumstances grave and sudden provocation would be hardlyany defence, and where death has been caused the offence would bemurder notwithstanding the little provocation that had been given.”
It seems possible that the trial Judge was trying to emphasise thefact that the act committed should not be “ beyond all proportion ” tothe provocation, or, to use the words of Viscount Simon in Mancini’scase1 “ the mode of resentment must bear a reasonable relationshipto the provocation, if the offence is to be treated as manslaughter ”.But the charge is subject to this criticism—namely that it mayhave led the jury to believe that mere abuse, or insult by wordsor gestures may never be regarded as sufficient provocation, as tosupport the plea of grave and sudden provocation. This is not the lawof Ceylon. Here it has been held that mere abuse unaccompanied bysome physical act may be sufficient provocation to reduce the offence ofmurder to culpable homicide not amounting to murder. See The King v.Coomaraswamy The trial Judge has failed to direct the jury that thisis the law of Ceylon, and the jury may well have been left with theimpression that there were_ no circumstances under which mere abusewould be a sufficient provocation. The trial Judge has used thesewords : —
“ in such circumstances grave and sudden provocation will behardly any defence, and where death has been caused the offencewould be murder notwithstanding the little provocation that had beengiven.”
The use of the words later “ whether there was provocation in this casefor the accused to have committed the act is also a question of fact,”and the warning to the jury that they were the sole judges of the factsin the case, do not cure the failure to explain the law on this subject.The jury were not definitely instructed that mere abuse may in certaincircumstances be regarded as sufficient provocation, and that they werethe sole judges as to whether there was sufficient provocation to supportthe plea of grave and sudden provocation.
In our opinion this failure amounts to a misdirection, and we do notthink it is possible to say that if the jury had been properly instructed,they would still have brought in a verdict of murder.
In these circumstances, we have already set aside the verdict of“ Guilty of Murder ” and the sentence of death, and substituted a verdictof “ Guilty of culpable homicide not amounting to murder,” and imposeda sentence of 12 years’ rigorous imprisonment.
1 (19*1) 28 C. A. R. 65 at 74.
Verdict altered.
* (1940) 41 X. L. R. 289.