096-NLR-NLR-V-25-THE-KING-v.-PUNCHIRALA.pdf
( 458 )
1984.
Present: Bertram C.J., De Sampayo J., and Garvin A.J.
THE KING v. PUNCHIRALA.
9—P. C. Panwila, 8,455.
Murder—Culpable homicide—Provocation—Grave—Can take intoconsideration the intoxication of the accused in considering thequestion of the gravity of the provocation ?—Penal Code, s. £94.
In considering the question whether a person charged withmurder committed the act complained of whilst deprived of thepower of self-control by grave provocation the Court or jury maytake into account the intoxication of the person receiving it.
“ This principle should be applied with caution. It must beborne in mind that, in the first place, there must be 1 provocation *of some kind. Provocation is, in my opinion, something which areasonable man is entitled to resent-. In the second place, theremust be definite evidence on which the jury would be justifiedin finding that the accused’s faculties were in fact impaired byintoxication. In the third place, although the term is a relativeone, nevertheless the provocation must still be grave. It musthave some element of gravity. The merest idle word or gesture,even though it does deprive the drunkard of self-control, is notsufficient.”
The word “ grave ” in this connection is not an absolute but arelative term.
( 459 )
T
HIS matter was reserved for argument before a Bench ofthree Judges by Bertram C.J. by the following order :—
On May 29, 1924, at the Kandy sessions, one Menikgedere Punchi-rala was convicted of culpable homicide not amounting to murder, andsentenced to eight years’ rigorous imprisonment. There was someevidence which would justify a jury in finding that he committed thecrime in a state of drunkenness. He was proved to have killed a mancalled Kiri Banda by striking him on the head with a club. The blowfractured the jaw and the base of the skull, and death followed withina very short time. Immediately before the blow was delivered therewas a short altercation between the two parties. Punchirala said:“Are you a chandiya?” The other replied: “Are you a worsechandiya, son of a whore ? ’* The two parties may be described asbelonging to opposite factions in the village, and this encounter was theresult of enmity generated some days previously, which had continuedto smoulder, and which broke out again on the day of the crime. Theaccused was an older man than Kiri Banda, and of somewhat superiorstation in the village. I told the jury that if both parties had beensober, the expression used by the decesaed could not, in theoricumstances, reasonably be considered “ grave provocation ” withinthe meaning of the Penal Code, but that if they were satisfied that theaccused was in a state of drunkenness, they were entitled to take thisoiroumstance into account in considering whether the provocation was“ grave ” to him, and whether the crime, in fact, was committed becausehe was “ deprived of the power of self-control ” by that provocation.
There are no authorities on the subject available in Kandy, excepttext books. Gout, 2nd etf., p. 517, says, on the authority of someIndian cases:—
When the question is whether the act was premeditated, or done onlyfrom sudden heat and impulse, the fact of the party beingintoxicated could not be overlooked.
He further adds-—
This is also the accepted view in England, and it is commendableto reason.
On page 511 he quotes Coleridge J. in R. v. Monkkouse* as sayingit was not enough that a man was excited or rendered more irritable“ unless the intoxication was such as to prevent his restraining himselffrom committing the act in question.” Ratanlal in The Law of Grimes4th ed., p. 416, says, with reference to voluntary drunkenness, on theauthority of an Indian case :—
It may also be considered in estimating the probable effect on themind of the accused of the words or actions of others, andin determining whether provocation given was grave andsudden.
As I think it is desirable that this question should be further discussedwith the aid of reference to the original authorities, and as the generalquestion of the effect of drunkenness upon criminal liability has recentlybeen reserved for consideration, I have thought fit to reserve forconsideration in conjunction with that general question the connectedquestion whether the direction given in this case was right, or if not,what should be-the form of the direction in future cases.
Anton Bertram.Chief Justice,
w*
1924*
The KingPitnchirala
1 {1849) 4 Cox C. C. 55.
( 460 )
1924.Akbwr, S.-G. -(with him Barber, C.C., and Dios, C.C.), for the
TheKing ^romx-—AH the authorities support the view taken by the Chief,Punchirala Justice.
Counsel referred to RusseU on Crimes, bk. V, p. 13; and to thefollowing oases :—B. v. Pearson,1 R. v. Thomas? R. v. Marshall?
R. v. Monkhouse? and R. v. Gamlen?
These cases were referred to in R. v. Beard? but the observationsof Lord Birkenhead therein are obiter so far as the present questionis concerned.
The writers of the Indian text books are of the same opinion:Gour, vol. I.,p, 517 ; Mayne489; Ratanlal460.
[Bertram C.J.—What is grave provocation ?]
It is a question of fact. See explanation to exception 1 ofsection 294.
Speldewinde, who appeared as amicus curia for the prisoner, citedHalsbury, vol. 9, p. 581; Stroud’s Mens Rea 102. .
The condition of the mind of the accused, at the time of theprovocation must be taken into account. The Empress v. Khogayi?
The physical condition of the accused may also be-taken intoaccount. R. v. Hopkins?
June 4, 1924. Bertram C.J.—
The question referred for the consideration of the Court is one ofgreat importance. It was referred in order that the authoritiesmight be fully considered. Notwithstanding the statements of theIndian text writers, it is found upon investigation that there is nospecific authority dealing with the point reserved either in theEnglish or in the Indian reports.
The specific point we have to consider is, whether in weighingthe question of the gravity of provocation the jury is entitled totake into consideration the intoxication of the person receiving it.The words of our enactment are as follows ::—
Culpable homicide is not murder if the offender, whilst deprivedof the power of self-control by grave and sudden provoca-tion, causes the death of the person who gave the provoca-tion, or causes the death of any other person by mistakeor accident (s. 294, exc. 1).
Four separate questions are involved in this enactment:—
(а)Was there provocation ?
(б)Was that provocation sudden ?
Was it grave ?
Did the accused in fact commit the crime because he was
deprived of self-control by the provocation ?
i (1835) 2 Lewin's C. G. 244.6 (1858) 1 F. db F. 90.'
(1837) 7 C. 6s P. 817.6 (1920) 89L. J. K. B.437.
(1830) 1 Levrin’s 0. C. 76.7 (1879) 1. L. R. 2 Mad.122.
(1849) 4 Cox C. 0. 55.8 (1865) 10Cox 229.
, ( 461 )
It is dear that it was the intention of this enactment to giveeffect to the principles of the English law. The English law onthis question requires two essential :—
The provocation must be of a certain degree. It must
(except in one single possible case, namely, that of anavowal of adulteiy: R. v. Rothwdl*) at least involve a blow •but a blow itself is not sufficient. It must be a blow ofsome seriousness, or a blow aggravated by words orgestures : per Pollock C.S. in R. v. Sherwood.2
The accused must have in fact acted under the impulse of
the provocation. If he acted under pre-conceived malice,or owing to brutality of temperament, provocation isno excuse. In English law provocation is material, not asunder our law, because it is conceived of as mitigating theoffence, but because it is conceived of as negativing thatlegal malice which is an essential ingredient of murder.
There are thus two separate and distinct questions of fact.There are undoubtedly English decisions which lay down that thedrunkenness of the accused may be material to the question ofprovocation, but they all without exception deal with the secondquestion, namely, whether the accused in fact acted under theimpulse of the provocation. They do not deal with the firstquestion, namely, whether the degree of the provocation receivedwas sufficient in law. The principal case is R. v. TJwmas? JervisC.J. says as follows :—
So drunkenness may be taken into consideration in cases wherewhat the law deems sufficient provocation has been given,because the question is, in such cases, whether the fatal actis to be attributed to the passion of anger excited by theprevious provocation, and that passion is more easilyexcitable in a person when in a state of intoxication thanwhen he is sober.
See also per Park J. in R. v. Pearson4:—
So drunkenness may be taken into consideration to explain theprobability of a party’s intention in the case of violence committed on sudden provocation.
The judgment of Coleridge J. in R. v. Monkhouses5 does not-inmy opinion deal with the question of provocation at all, and LordBirkenhead’s criticism of a phrase in that judgment in Director ofPublic Prosecutions v. Beard6 does not in my opinion affect thequestion we^are considering.
1924.
Bbrtbam
C.J-
The King>. Punchirala
1 (1871) 12 Cox G. C. 145.<J. & K. 556.
:(1837) 7C.&P. 817.
8 (1835) 2 Leurin's CVG. 145.5 (1849) 4 Cox C. C. 55.
8 (1920) A. C. 498.
1984.
( 462 )
Bhbtbam The English cases therefore do not help us. Nor is there any
O.J. definite light to be derived on this specific question from any Indian$fcTlftnp case' The Court, however, is indebted to Mr. Speldewinde forv. Pundhirala one Indian authority which has an important indirect bearing onthe subject. It is the case of The Empress v. Khogayi.1 It wasthere laid down that in determining whether the provocation wasof a character to deprive the offender of his self-control, it was“ admissible to take into account the condition of mind in whichthe offender was at the time of the provocation.” In that casecertain shepherds with their flocks had invaded the field of thefirst accused who was engaged with the second accused in strengthen*ing the bund. It appears frbm the judgment that one of theinvading shepherds not only committed trespass, but assaulted andabused the cultivators. The cultivators retaliated by beating andabusing the shepherds. The father of one of the shepherds came onthe scene. At that moment the first accused was “ alreadyjustly enraged by the conduct of his son.” The father had takenno part in the trespass and assault and the .other aggravatingcircumstances. He seized hold of his son and asked why thecultivators were beating hiin,* and himself proceeded to abuse thecultivators. Incensed by this abuse the first accused struck thefather on the head with a heavy stick that was in his hands andkilled him. The Court observed : “ In the present case the abusivelanguage used was of the foulest kind, and was addressed to a manalready justly enraged by the conduct of deceased’s son. In thecircumstances we think that the provocation, was sufficient todeprive him of his self-control.”
It is agreed by everybody that ifi" considering whether theprovocation is “ grave” the Court may take into consideration thestatus of the accused and the mentality incident to persons of hisclass of life. It appears also to be agreed that it would be rightthat the Court should take into consideration any peculiar suscepti- ■bility naturally incident to the offender’s race or religion. Thecase just cited lays down that the Court may take into account the 'justly enraged condition of the person who received what mightotherwise be deemed insufficient provocation. It seems impossibleto deny the reasonableness of this. If a man receives compara-tively slight provocation at a time when he has been the victim of aseries of slights and insults of themselves sufficient to strain hisself-control to breaking point, it seems impossible to deny that theCourt should take this condition of mind into account. Is itpossible to draw any logical distinction between such a state of mindcreated by the wrongful acts of others and a susceptibility inducedby voluntary intoxication ? I think that we may well hestitateto do so.
*(1879) I. L. R. 2 Mad.-122.
( 403 )
AD the text writers who have considered the subject affirm theproposition that drunkenness may be taken into account in estimat-ing the gravity of the provocation, and although their remarksappear to be based upon an insufficient examination of theauthorities they cite, such a consensus of opinion in favorem vitacannot lightly be ignored. It is reinforced by another expressionof opinion cited to us by Mr. Speldewinde. See Stroud's MensSea 102:—
First, where an act of violence, with which a prisoner is charged,has ensued upon some provocation or aggression of such akind that, if sufficient in point of degree, it would sufficetoreheve or modify his responsibility forthe act in question,the fact that he was drunk may be taken into considerationby the jury; so that circumstances which would havegiven rise neither to a valid excuse of self-defence nor to asuccessful plea of provocation in the case of a sober manmay avail in defence of a drunken man to justify his act,or (in the case of homicide) to reduce the crime frommurder to manslaughter.
It appears, therefore, that we should hold that the word grave”is not an absolute but a relative term, and that in determiningwhether in any particular case the provocation received was grave,the Court or jury may take into account the intoxication of theperson receiving it. But, in my own opinion, this principle shouldbe applied with caution. It must be borne in mind that, in thefirst place, there must be “ provocation” of some kind. Provoca-tion is, in my opinion, something which a reasonable man is entitledto resent. In the second place, there must be definite evidenceon which the jury would be justified in finding that the accused'sfaculties were in fact impaired by intoxication. In the third place,although the term is a relative one, nevertheless the provocationmust still be grave. It must have some element of gravity. Themerest idle word or gesture, even though it does in fact deprive thedrunkard of self-control, is not sufficient. In the present casethere is no question that the provocation contained an elementof gravity. Common as abuse of the kind in question is, it isnevertheless justly resented. See the case of Queen Empressv. Suleem Sheik.1
In this same connection I would draw attention to the case ofQueen Empress v. Ramji,2 In that case the accused was a confirmedganja smoker, and his vicious habit had induced “ an intensifiedstate of mental irritability which rendered him unable to resist thetemptation to resent with brutal violence the slightest disrespect oropposition to his wishes.” His wife in speaking to* him used thesecond person singular instead of the second person plural, and
11 W. It. 23.* (1890) 14 B. 564.
1924.
Bertram
C.J.
The Kingk Punehirala
( 464 ).
1964.
Bbbtram
C.J.
The King*. Punrhirala
objected to go to another village when he proposed a change of homeon account of their poverty. Incensed by this he killed her. TheCourt held “ that there was no such sudden and grave provocationhere as to make the offence less than murder.” Birdwood J.^points out that the accused’s state of mind so far as it was alteredfrom its normal state was due to his vicious habit, but does notexpressly rule that the state of mind so induced cannot be consideredat all. He proceeds: “ though the act of frhich he has been convictedwas, in one sense, unpremeditated, it was still a vindictive actdone to avenge a fancied slight.” Jardine J. says : “ I think it isprobable that his vices had induced a very irritable and unreasonablehabit of mind, and I concur with the Sessions Judge in findingthat he killed the woman on provocation which is very commonin all countries—I mean the use of rather disrespectful words to him,these words not amounting to abuse.” He referred to the case ofRex v. Carroll? where Park J. said : “ There is no doubt that theprisoner was in a great fury ; but the question at law is, was theresufficient provocation to excite it?” “I do not think” addedJardine J., “ there was anything of the sort.”
This case illustrates the principle that even though the criminalact- of the accused may be in fact caused by provocation, theCourt, even allowing for his condition, must determine whetherthe provocation was in fact grave:
In my opinion the direction given to the jury was correct, andthe judgment and sentence should be confirmed.
De Samfayo J.—I agree.
Garvin A.J.—I agree.
Judgment and sentence confirmed.
♦ i
i 7 C. <& P. 145.