1971 Present:

Appellant, and , Respondent


S. C. 456/70-M. C. Batticaloa, 29047

An offender may be said to have been deprived of his power of self-control by grave and sudden provocation within the meaning of Exception 1 to section 294 of the Penal Code even though there was an interval of time between the giving of the provocation and the time of the killing, if the evidence shows that, all the time during the interval, the accused suffered under a loss of self-control.

against a conviction at a trial before the Supreme Court.

V. E. Selvarajah, with (assigned) B. B. D. Fernando, for the accused-appellant.

E. D. Wikramanayake, Crown Counsel, for the Crown.

Cur. adv. vult.

August 3,1971.'

The accused in this case was convicted of committing the murder of his wife on 13th September, 1969. There was no doubt that the accused did in fact cause the death of his wife by a stab injury.

The accused gave evidence in his defence. He and his wife had been married for about 25 years and there were seven children of that marriage. A few months prior to this incident he discovered his wife in an act of intimacy with her sister's husband, and after that discovery his had been a miserable existence. The wife used to scold him and order him out of the house. He had himself attempted to commit suicide by taking poison some weeks before this incident and had been in hospital for about four days. On the day of this incident he had gone out to work in bis field and

had returned home for the noon meal after consuming some toddy. After he had the meal, his wife again abused him saying " You, cursed fellow, you have not died even after taking poison ". He then left the house intending to work in the field but returned home because he felt giddy and depressed. At home he kept brooding over his wife's insulting treatment. He had taken a knife from the kitchen and went to his wife's sister's house. There he asked his wife why she had made the earlier remark, and when she did not reply, he stabbed her.

Having referred in the summing up to this evidence, upon which the defence sought a verdict of culpable homicide on the ground of grave and sudden provocation, the learned trial Judge left it quite open to the Jury to return such a verdict. But in doing so, he pointed out that in the submission of the Crown the provocation offered to the accused, although grave, was not sudden. In returning a verdict of murder the Jury appear to have agreed with that submission.

The majority of us were of opinion that in the circumstances of this case the directions as to the defence of provocation were incomplete. It will be seen from the summary of the accused's version that he was brooding over his wife's remark which was not only insulting, but also expressed the thought that she preferred him to be dead. This mood persisted and prevented him returning to work in the field. The fact that he had previously attempted to commit suicide supported the probability that he ultimately stabbed his wife at a time when his mind was still disturbed by his wife's remark.

In these circumstances, the majority of us considered that in terms of Exception (1) set out in s. 294 of the Code the attention of the Jury should have been drawn to the question whether the act of stabbing took place whilst the accused was deprived of the power of self-control. There was no doubt an interval of time between the giving of the provocation and the time of the stabbing, but the provocation given was sudden, in the sense that the accused must have been taken aback when he realised that his wife wished him to be dead. The evidence concerning the subsequent period made it quite probable that in fact the accused all the time suffered under a loss of self-control. Had this aspect of the matter been presented to the Jury, they should, in the opinion

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