Queen, The V. Muthu Banda

[COURT OF CRIMINAL APPEAL]

1954 Present: Rose C.J. (President), Pulle J., Swan I., Sansoni J.
and Fernando A.J.

D. M. MUTHU BANDA, Appellant, and THE QUEEN, Respondent
APPEAL NO. 52 OF 1954

 S. C. 39-M. C. Kandy, 5,2m

Culpable homicide-Provocation-Intoxication-Scope of its relevancy-Penal Code, s. 294, Exception 1.

When considering, in a prosecution for murder, whether the accused was deprived of the power of self-control by grave and sudden provocation, the jury must apply an objective test, i.e., whether in the particular case under consideration a reasonable or average man with the same background and in the circumstance of life as the accused would have been provoked into serious retaliation. The effect of this proposition is that the intoxication of the accused is not to be regarded as affecting the gravity of the provocation offered, and should only be taken into account, together with the idiosyncrasies of health and temperament, when the jury determine subjectively whether or not the accused lost his self-control under the stress of the provocation.

The King v. Punchirala (1924) 25 N. L. R. 458, overruled.
APPEAL against a conviction in a trial before the Supreme Court.

G. E. Chitty, with L. F. Ekanayake, A. S. Vanigasooriyar and Daya Perera, for the accused appellant.

H. A. Wijemanne, Crown Counsel, with V. S. A. Pullenayagam and E, H. C. Jayetileke, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

December 21, 1954. ROSE C.J.-

The principal matter that we have to consider is whether the law is correctly stated in a passage from the charge of the learned trial Judge dealing with the exception of grave and sudden provocation. The passage in question appears at page 11 of the charge and reads as follows:

" Mr. Carthigesu, I wish you to follow this carefully, because I am deliberately directing the Jury in a sense which I know is not the sense in which the matter is understood sometimes, and that there is authority in favour of your view. Now gentlemen, by provocation is meant anything which a reasonable man is entitled to resent. Provocation, as I said, must be sudden, and provocation must be grave. Grave provocation would be provocation that can cause a reasonable man, a man of ordinary sense and prudence and temper of the same class of life or station in life as the accused, to lose his power of self-control. It is quite possible that an act which may not cause a sober man to lose his self-control may cause a drunken man to lose his self-control.

Once you are satisfied that provocation was grave and that it would be grave provocation to a reasonable man, then in considering whether this particular accused lost his self-control as a result of that provocation you should take into account the circumstance that he was drunk, if you are satisfied that he was drunk. But if you are considering whether the provocation was grave, it is not open to you to say, ' it is true that this act of the deceased man would not be grave provocation to a sober man but to a drunken man it would be '. You will not take into account the particular weakness of the accused when you are considering whether the provocation offered was grave. That question ," you will resolve by reference to an ordinary reasonable man, that is to a man who is sober. "

The direction criticized in this appeal is that which expresses the proposition that in considering whether a particular episode contains the elements of grave and sudden provocation the jury must apply an objective test, i.e. whether in the particular case under consideration a reasonable or average man with the same background and in the same circumstance of life as the accused would have been provoked into serious retaliation. The effect of this proposition is that the intoxication of the accused is not to be regarded as affecting the gravity of the provocation offered, and should only be taken into ac

Click Here to Read the rest of this document