[COURT OF CRIMINAL APPEAL]

1949 Present : Wijeyewardene C.J. (President). NAGALINGAM J.
and Gratiaen J.

THE KING v. MARSHALL APPUHAMY

APPEAL NO. 61 WITH APPLICATION NO. 165

S. C. 28-M. C. Negombo, 58,963

Court of Criminal Appeal-Charge of murder-Provocation-Intoxication-Can affect susceptibility to provocation-Misdirection-Penal Code, section 78.

Where the accused, who was indicted for murder, pleaded that his offence should be reduced from murder to culpable homicide not amounting to murder for the reasons that he acted on grave and sudden provocation, and that he was so drunk that he was unable to form a murderous-intention-

Held, that intoxication which fell short of the degree of intoxication contemplated by section 78 of the Penal Code could be considered in dealing with the question whether a man's susceptibility to provocation was affected by intoxication.

APPEAL, with application for leave to appeal, against a conviction in a trial before a Judge and Jury.

T. B. Dissanayake, for accused appellant.

R, R. Crossette-Thambiah, K. C, Solicitor-General, with A.C.M Ameer, Crown Counsel, for the Crown.

Cur, adv. vult,

December 14, 1949. WIJEYEWARDENE C.J.-

  The appellant was found guilty of the murder of a young widow called E1izabeth. It was not disputed that the appellant stabbed Elizabeth 'and inflicted a number of injuries one of which was necessarily fatal. The appellant pleaded, however, that he acted on grave and sudden provocation and that he was so drunk that he was unable to form a murderous intention and that, for each of these reasons his offence was reduced from murder to culpable homicide not amounting to murder.

I shall set out briefly the conflicting versions given by the Crown, and the defence as to the circumstances in which the stabbing took place.

According to the Crown, the appellant, a fellow villager of Elizabeth, " was not in the habit of coming " to the house of Elizabeth. On September 17, 1949, the appellant came and spoke to Elizabeth and Elizabeth told her mother that the appellant "suggested to have intercourse with her (Elizabeth) ". Then both Elizabeth and her mother asked the appellant not to come to their house in future. "The appellant went away saying nothing". On September 19, the appellant came to Elizabeth's house "rushing in like a mad fellow as if he were possessed" and' saying, (My work is all right). He stabbed Elizabeth. The only motive suggested by Elizabeth's mother for the act of the appellant was his displeasure at being asked on September 17 not to come to her house.

On the other hand, the appellant suggested that Elizabeth used to encourage men to visit her house for immoral purposes. He saw on September 17, one Charles entering Elizabeth's house and said, "you have a new man now ! May I also come ?". Elizabeth was offended and abused him. There was a report in the village that some stones were thrown at Elizabeth's house that night. On September 19, he left home to visit his mother who was living four miles away. He rode a cycle belonging to one Arthur. He drank two bottles of toddy on his way, took a meal of hoppers at his mother's and, a little later, drank a bottle of "Yakka Ra". He rode back to Arthur, returned the cycle and was walking homewards when Elizabeth accused him of throwing stones at her house and abused him, saying, "Go and lie with your mother". He replied, " I did not throw stones at your house; it must be people who are in the habit of coming to your house". The abuse went on for a few minutes and then Elizabeth said, "I have never given birth to illegitimate children. It is your wife who has behaved in this manner ".. He lost his self control then and stabbed Elizabeth.

On the evidence led in the case the Jury had to consider (a) whether the appellant was so intoxicated as to be unable to form a murderous, intention, (b) whether he was so provoked as to be deprived