KOGH J.—The King v. Ridley de Silva.
1936Present: Koch J.*
THE KING v. RIDLEY DE SILVA.
8—P. C. Dandegamuwa.
Murder—Plea of grave and sudden provocation—Provocation sought by accused—No intention of making it an excuse for killing—Penal Code, s. 294,exception 1, proviso 1.
The plea of grave and sudden provocation cannot be availed of by theaccused in mitigation of the offence of murder under the first proviso toexception 1 of section 294 of the Penal Code, where the provocation wasitself sought by the accused, though not with the intention of making itan excuse for killing or doing harm to the deceased.
HIS was an application to state a case under section 355 (1) of theCriminal Procedure Code.
Aelian Pereira (instructed by K. Kumaraswamy), in support.
Cur. adv. vult.
September 9, 1936. Koch J.—
Mr. Aelian Pereira, Counsel for the accused who was convicted in theabove case of murder on two counts in the indictment in a trial beforeme and sentenced by me to death, applies under section 355 (1) of theCriminal Procedure Code that I should consider it fitting to reserve and.refer for the decision of a Bench of this Court consisting of two or moreJudges the following question of law which arose on the trial, and that Ishould stale in a case that question with the special circumstances uponwhich it arose.
The question is whether the grave and sudden provocation referred tO'in exception 1 to section 294 of the Penal Code can be availed of by theaccused in mitigation of the offence of murder when that provocationwas itself sought, though not voluntarily provoked, by the offender as;an excuse for killing or doing harm to any person.
The reason for this application would appear to be that I, in summingup the case to the jury on the law, dealt with this point, and, in doing so,charged the jury that- the accused was not entitled in law to shelterhimself under a plea of provocation, inasmuch as that provocation wasitself sought by the accused, though not with the intention of making itan excuse for killing or .doing harm to the deceased. This part of thecharge to the jury was necessitated by the fact that the defence of theprisoner on count (1) of the indictment was that what caused the shootingof the deceased Ratnayake was not premeditation on his part but provo-cation that had been given him by Ratnayake immediately before suchshooting. This provocation the defence maintained was an indecent:20/38
KOCH J.—The King v. Ridley de Silva.
remark that had been made by Ratnayake to the prisoner accompanied.by an equally indecent gesture. The prisoner himself, however, admittedin his evidence that what provoked this indecent remark was a chargethat he made to Sir Henry de Mel (the employer of both the prisoner andRatnayake, who were both conductors on Maradanwila Estate on whichthe murders were committed and of which Sir Henry de Mel was prop-rietor) that Ratnayake was an “ ali hora ”—a great rogue. This charge wasitself admittedly preceded by a remark on the part of the prisoner that,.although the deceased Ratnayake was very respectful to Sir Henry in hispresence, he thieves behind his back. In this connection it might bestated that the only evidence of Ratnayake having made an indecentremark accompanied by an indecent gesture is the evidence of the prisoner.Every one of the witnesses for the prosecution denied this and maintainedthat Ratnayake did not utter a word at the interview in question.
On this question of law, as I understood Counsel’s argument, it wascontended that although the provocation relied on by the prisoner inmitigation of the offence of murder was itself provoked by the offender,-the fact that it was so provoked can be availed of by the prisoner unlessit was established by the evidence that the initial provocation was givenas an excuse for killing the person who gave the prisoner the immediateprovocation he pleads. Counsel maintains that this is the position as.contemplated in the first proviso to exception 1 to section 294 of thePenal Code. The proviso runs as follows : —
“That the provocation (referring to the grave and sudden provocationmentioned in exception 1) is not sought or voluntarily provokedby the offender as an excuse for killing or doing harm to anyperson.”
It must be remembered that the whole of this proviso is not punctuatedin any manner. On reference to Gour on The Penal Law of India (vol. II.(1928 ed.), p. 1521) no punctuation appears in the correspondingproviso in the Indian Penal Code of 1860 as reproduced in his work.The same can be said of Ratanlal on the Law of Crimes, in which there isa similar reproduction. Our Penal Code of 1883 which was based onthe Penal Code of India produces this proviso verbatim also without anypunctuation at all. I find, however, that in Maine’s commentary on theIndian Penal Code which was published in 1890, there are two commasappearing in this proviso, one after the word “sought” and one afterthe word “ provoked ”. In spite of the appearance of these commas,'Maine refers to the case of Empress v. Abdul Hakim' where the findingof the High Court of India was as follows : —
“ Himself having provoked the action of the gypsies by his illegaland improper procedure the respondent (a public servant who actedbeyond the scope of his authority) stands in no better and no worseposition than any private person and is not entitled to the superiorprotection which is thrown around a public servant lawfully acting inthe discharge of his duty.”
In this case a verdict of guilty of the lesser offence of culpable homicidenot amounting to murder was in these circumstances reversed by Straight
J.and Pearson J. and a conviction of murder entered.
■ 3 Allahabad 253.
KOCH J.—The King v. Ridley de Silva.
The facts in that case clearly showed that the provocation given bythe offenders to the gypsies was not intended as an excuse for killing ordoing harm to any of them. It will therefore be seen that the principlegoverning this defence of provocation is that such a defence cannotsucceed once it has been established that the provocation relied on by theprisoner has itself been sought irrespective of the question whether itwas sought as an excuse for killing or doing harm to any person or not.
The above finding can only be justified on the ground that the provisoin question is divisible for practical purposes into two compartments—
(a) that the provocation is not sought,
(t>) that the provocation is not voluntarily provoked by the offenderas an excuse for killing or doing harm to any person.
The High Court in dealing with the provocation caused by the prisonerto the gypsies regarded it as rightly coming within the first compartment.
If the provocation therefore can be brought within one or other of thesetwo compartments, the plea of provocation cannot be availed of by theprisoner.
Mr. Pereira argues that the words “ as an excuse for killing or doingany harm to any person” qualifies both ‘‘that the provocation is notsought ” and “ that the provocation is not voluntarily provoked ”.I was unable to agree with this argument and I told him so. He thenproceeded to argue that if the words “ that the provocation is not sought ”are to stand by themselves, the law in doing so meant to only includecases where the prisoner went in search physically of the provocation,and in order to catch up cases such as those of accused persons whosuspecting the criminal intimacies of their wives with others took uplethal weapons and. following them and finding them in criminal conver-sation with their paramours killed them. These cases are Regina v.Mohan1 and Regina v. Lochan*. My reply to this was that the words“ that the provocation is not sought ” were not framed to catch up thosecases but that the ratio decidendi of those cases was based on thesewords.
It is clear that the proviso in question is divisible into two compart-ments one of which is “ that the provocation is not sought ” these wordsstanding by themselves and not qualified by any other words that follow.To think differently would be to introduce a most dangerous principle.For example should a person who goes up to another, slaps him andcourts a kick in return and thereupon shoots that other dead, be permittedto say that his act of shooting that other under the immediate provocationoffered him reduces the offence of murder to one of less degree ? If he bepermitted to plead the provocation caused him by the kick, should notthis plea be discounted by the fact that the treatment he complains ofwas the necessary result of his own seeking, the causa causans ?
Gour at p. 1552, section 3019, referring to this exception states thatit is subject to three provisos, which he says are in entire harmony withthe English rule, and the policy underlying them is obvious. The firstproviso, to use Gout’s own words, “ deals with the case where the accusedcourts provocation or merely uses it as an excuse for assaulting another.”The effect of the proviso read with the exception, he says, is that the18 Allahabad 622.. * 8 AUahdbad 635.
254 ABRAHAMS C.J.—Excise Inspector, Nawalapitiya v. Menikrala.
provocation must come to him ; he must not go to the provocation. Heinstances the case reported in 1 Hawk P. C. C. 31, where A and B havingfallen out A said he would not strike but would give B a pot of ale tostrike him upon which B did strike and A killed him. It was held to bemurder as the provocation given had been courted by the accused. Itwill be seen that there is no question here of A having courted the provo-cation as an excuse for killing B.
Ratanlal (1930 ed.) at p. 705 referring to this proviso says“Where the provocation is sought by the accused it cannot furnish anydefence against the charge of murder.” He too refers to the case citedby Gour and referred to above.
Mr. Pereira has not relied on any decision in support of his contentionnor have I been able to discover such a case.
I regret that I have had to deal at such length with the point raised byCounsel but I am compelled to do so as there is no local precedent toguide me. Mr. Pereira has earnestly requested me, apart from the factsof this case, to reserve this point for fuller Bench on the ground that thepoint is of considerable importance and frequently does arise in our Courts.
I quite agree that the point is of very great importance and of frequentoccurrence, but, having after careful consideration, come to a decision onthe matter I am not disposed to accede to Counsel’s request. It ishowever open to him, if he so decides, to move the Attorney-Generalunder section 355 (3) of the Criminal Procedure Code that this questionof law be referred to a fuller Bench for further consideration.
In the circumstances I see no reason to grant the application.
THE KING v. RIDLEY DE SILVA