1924  . 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 into consideration the intoxication of the accused in considering the question of the gravity of the provocation ?-Penal Code, s. 294.

In considering the question whether a person charged with murder committed the act complained of whilst deprived of the power of self-control by grave provocation the Court or jury may take into account the intoxication of the person receiving it.

" This principle should be applied with caution. It must be borne in mind that, in the first place, there must be ' provocation ' of some kind. Provocation is, in my opinion, something which a reasonable man is entitled to resent. In' the second place, there must be definite evidence on which the jury would be justified in finding that the accused's faculties were in fact impaired by intoxication. In the third place, although the term is a relative one, nevertheless the provocation must still be grave. It must have some element of gravity. The merest idle word or gesture, even though it does deprive the drunkard of self-control, is not sufficient."

The word " grave " in this connection is not an absolute but a relative term.

THIS matter was reserved for argument before a Bench of  three Judges by Bertram C. J. by the following order :-

On May 29, 1924, at the Kandy sessions, one Menikgedere Punchirala was convicted of culpable homicide not amounting to murder, and sentenced to eight years' rigorous imprisonment. There was some evidence which would justify a jury in finding that he committed the crime in a state of drunkenness. He was proved to have killed a man called Kiri Banda by striking him on the head with a club. The blow fractured the jaw and the base of the skull, and death followed within a very short time. Immediately before the blow was delivered there was a short altercation between the two parties. Punchirala said : "Are you a  chandiya  ?" The other replied: "Are you a worse chandiya, son of a whore ? " The two parties may be described as belonging to opposite factions in the village, and this encounter was the result of enmity generated some days previously, which had continued to smoulder, and which broke out again on the day of the crime. The accused was an older man than Kiri Banda, and of somewhat superior station in the village. I told the jury that if both parties had been sober, the expression used by the deceased could not, in the cricumstances, reasonably be considered "grave provocation " within the meaning of the Penal Code, but that if they were satisfied that the accused was in a state of drunkenness, they were entitled to take this circumstance into account in considering whether the provocation was " grave " to him, and whether the crime, in fact, was committed because he was " deprived of the power of self-control " by that provocation.

There are no authorities on the subject available in Kandy, except text books. Gour, 2nd ed., p. 517, says, on the authority of some Indian cases:-

When the question is whether the act was premeditated, or done only from sudden heat and impulse, the fact of the party being intoxicated could not be overlooked.

He further adds-

This is also the accepted view in England, and it is commendable to reason.

On page 511 he quotes Coleridge J. in R. v. Monkhouse [1 (1849) 4 Cox C. C. 55.] as saying it was not enough that a man was excited or rendered more irritable ." unless the intoxication was such as to prevent his restraining himself from committing the act in question." Ratanlal in The Law of Crimes, 4th ed., p. 416, says, with reference to voluntary drunkenness, on the authority of an Indian case :-

It may also be considered in estimating the probable effect on the mind of the accused of the words or actions of others, and in determining whether provocat