[COURT OF CRIMINAL APPEAL.]

1947 Present: Wijeyewardene S.P.J. (President), Jayetileke and Dias 33.

THE KING v. PUNCHI BANDA,

APPLICATION 166 OF 1947.

S, C. 66-M. C. Panwila, 3,076.

Intoxication-Charge of murder-Knowledge and intention-Burden of proof-Penal Code-Sections 78 and 79-Evidence Ordinance, s. 105,

In all cases of self-induced intoxication it is a question of fact whether, in spite of the intoxication, the accused entertained a criminal intention. The burden of proving this intention lies on the prosecution and in deciding the question the Court must bear in mind the drunkenness of the accused.

Further, section 79 of the Penal Code does not enable an accused to put forward a mitigatory or exculpatory plea and does not therefore create a general or special exception such as is contemplated by section 10a of the Evidence Ordinance.

APPLICATION for leave to appeal against a conviction in a trial before a Judge and Jury.

H. V. Perera, K.C, (with him V. K, Kandasamy and A. D. J. Gunawardene), for the accused, appellant.

T. S. Fernando, C.C. (with him E. L. W. de Zoysa, C.C.), for the Crown.

Cur. adv. vult.

July 25, 1947. WIJEYEWARDENE S.P.J.--

The appellant was convicted on a charge of murder. Three of the witnesses for the Crown stated that their impression was that the appellant was drunk. Two of them said that the appellant was " staggering". while the third said that his eyes were " red ".

Dealing with the question of intoxication and murderous intention, the learned trial Judge said in the course of his charge : -

" How is intention to be decided by you ? Sometimes there may be direct expression of an intention and you may take that into account, but, I think, you will realize that those cases are extremely rare where a man who causes the death says what his intention is. Even if a man expresses an intention, you have after all to examine whether that really represents what he meant to do, or whether he may have done it through an act of bravado. Those are matters which you should have to consider. There is another means of arriving on this question of intention, and that is, by examining the circumstances of the case taking certain facts into consideration, for instance, facts such as these : "What was the weapon used ? Was it a dangerous weapon or not ? What was the place where the injury was inflicted ? Was it a dangerous or vital place or not ? What is the apparent degree of force with which the injury had been inflicted ? These facts you should weigh and take into account, and from that you may draw certain inference

as to what the man's intention was. You will always remember that it is open to you to presume that a man intends the ordinary and natural consequences of his acts. If he deliberately does an act, then you may presume that he intends the natural consequences of his act".

Thereafter, the learned trial Judge examined the medical evidence in the case and asked the Jury to bear in mind the injuries on the deceased along with " the other circumstances of the case" when they came to consider the question of intention. He explained, further, that if the Crown failed to prove beyond reasonable doubt that the appellant had a murderous intention, their finding should be one of culpable homicide not amounting to murder, if they found that the appellant knew that the injuries were likely to cause the death of the deceased. He then proceeded to say,

" I would also remind you to bear this in mind it will be explained to you more fully later on-that, if the man was drunk at the time and caused this act, there may be a defence available to him. That defence would reduce his offence from that of murder to culpable homicide not amounting to murder. That is to say, you can take into account the fact of drunkenness. The fact that drunkenness may so affect a man's mind that you may have doubts as to whether he really had the