[COURT OF CRIMINAL APPEAL]

1952 Present: Nagalingam A.C.J. (President), Gratiaen J.,
Gunasekara J., Pulle J. and de Silva J.

JAMIS, Appellant, and THE QUEEN, Respondent

APPLICATION NO. 18 OF 1952

S. C. 4-M. C. Kurunegala, 1,925

Penal Code, s. 294--Exception 1-Charge of murder-Plea of grave and sudden-provocation-Test of gravity.

Held (by the majority of the Court), that where the mitigatory plea of grave and sudden provocation is taken under Exception 1 to section 294 of the Penal Code, the accused must inter alia prove such provocation as is likely to destroy the self-control of an average man of the class of society to which the accused belongs. The modified test of gravity prescribed in Rex v. Punchirala (1924) 25 N. L. R. 458, as a special concession to a person in a state of intoxication, should not be extended to a case where a person pleading provocation relies on an idiosyncrasy or weakness of the will induced by some other condition peculiar to himself. The idiosyncrasies of the accused are material only in regard to the separate and distinct issue whether the accused had in fact lost his self-control under the stress of the provocation offered

David Appuhamy v. The King (1952) 53 N. L. R. 313, overruled.

APPLICATION for leave to appeal against a conviction in a trial before the Supreme Court.

V. S. A. Pullenayagam, for the accused applicant.

T. S. Fernando, Crown Counsel, with E. A. Kannangara, Crown-Counsel, for the Attorney-General.

Cur. adv. vult.

April 24, 1952. GRATIAEN J.-

This appeal was reserved by my Lord the Acting Chief Justice for the decision of a Bench of five Judges of this Court in view of a disagreement between the members of the Bench before whom the matter was first listed for argument. We regret that we have failed to arrive at unanimity in our decision, and the judgment which I am about to pronounce sets out the views of my brothers Gunasekara and Pulle and myself who form the majority of the Court.

The appellant has been convicted for the murder of his mother-in-law, and we have been invited to quash the conviction on the ground that the learned presiding Judge misdirected the jury on the law with regard

to the appellant's plea that he had caused the death of the woman concerned under the influence of " grave and sudden provocation " within the meaning of exception 1 to section 294 of the Penal Code. It was contended that the jury had been misdirected as regards (a) the degree of provocation that had to be proved by the appellant and (b) the extent to which certain evidence about the state of his health was material to his plea of provocation.

On the first point, the learned Judge directed the jury that the provocation must be "so sudden and so grave as to cause the average man of the accused's class to lose his self control ". He said :-

" Murder, gentlemen of the Jury, is reduced to culpable homicide not amounting to murder if the offender whilst deprived of the power of self control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. First and foremost, there must be provocation, something must have been done to provoke this accused, then that provocation must be sudden-if a person provoked me yesterday and I tried to retaliate today, it can hardly be said that that provocation was sudden-and the provocation must be grave, the provocation must be both sudden and grave, gentlemen of the Jury, so sudden and so grave as to cause the average man of the accused's class to lose his self control. You must take the average man or the reasonable man as he is sometimes referred to in law and, of course, in considering the ' reasonable man ' you must consider the class of society from which the accused comes, his education or lack of education, and you must look at the suddenness and the gravity of the provocation from the st