HOWARD C.J.—The King v. Bellana Vitanage Eddin.
f COURT OF CRIMINAL APPEAL.J
Present: Howard C.J. and Keuneman and Nihill JJ.
THE KING v. BELLANA VITANAGE EDDIN.
16—M. C. Kalutara, 45,867.
Culpable homicide not amounting to murder—Charge of murder—Plea ofculpable homicide not taken nor raised in defence—Basis for suchdefence on facts proved—Duty of Judge to put the alternative beforethe jury.
In a charge of murder it is the duty of the Judge to put to the jurythe alternative of finding the accused guilty of culpable homicide notamounting to murder when there is any basis for such a finding in th°.evidence on record, although such dpfence was not raised nor relied upo.by the accused.
THIS was an appeal from the refusal of Nihill J. to grant the appellantleave to appeal under rule 24 of the Court of Criminal Appeal
June 4, 1940. Howard C.J.—
This is an appeal from the refusal of my brother Nihill to grant theappellant leave to appeal under rule 24 of the Court of Criminal AppealRules, 1940. When this application was heard by my brother theappellant was not represented by Counsel. The appeal to my brotherwas made on grounds which were mentioned ini his application. Theappellant before the Court of Appeal has been represented byMr. Mackenzie Pereira, who has relied in his argument not on the groundsof appeal which were before my brother but on another ground. Thatground was that the learned Judge in his charge to the jury omitted togive the jury, or put to the jury, the alternative of finding the accusedguilty of culpable homicide not amounting to murder. That defence wasnot raised nor relied upon by the accused at his trial. That fact in itselfwould not be sufficient to relieve the Judge of the duty of putting thisalternative to the jury if there was any basis for such a finding in the .evidence on the record. It therefore remains for consideration as towhether there was anything in the record of the evidence to providematerial on which the jury could find the accused guilty of culpablehomicide not amounting to murder.
The question which the jury had to decide was as to the intention of theaccused, that is to say, whether the act by which the death was causedwas done with the intention of causing death, or secondly, if it was done
Mackenzie Pereira, for the accused.
E. H. T. Gunasekera, C.C., for the Crown.
Cur. adv. vult.
346HOWARD C J.—The King v. Bellana Vitanage Eddin.
with the intention of causing such bodily injury as the offender knows tobe likely to cause death to the person to whom the hurt is caused, orthirdly, if it was done with the intention of causing bodily injury to any.person and the bodily injury intended to be inflicted is sufficient in theordinary course of nature to cause death. If the case came within anyof these three examples the offence of which the accused was guilty wasmurder. The learned Judge referred to the injuries found on the deceasedand left it to the jury to say whether those injuries indicated that theaccused caused them with the intention of causing death or of causingsuch bodily injury as is likely to cause death.
Now. turning to the medical evidence we find that there were fourinjuries inflicted on the head, the first three of which caused three separtefractures. The fourth did not cause a fracture but it was inflicted on theright side of the back of the head, indicating that at the time when it wasinflicted the deceased was running away. The medical evidence is alsoto the effect that the deceased man had been assaulted practically allround, front, left, right and the rear of the face, that the injuries couldhave been caused by blows with a. club, that Nos. 1, 2 and 3 were theresult of heavy blows and that after receiving injuries 2 and 3 it wasnot likely that the man could have spoken. He also states further on inhis evidence that the injuries on the deceased would have caused deathin the ordinary course of nature but each wound by itself is notnecessarily fatal.
Now, what inference is to be drawn from the nature of the injuries thatwere inflicted on the deceased or can any other inference be made fromthose injuries except that the accused intended to cause death, or suchbodily injury as he knew was likely to cause death, or to cause bodilyinjury to the deceased and the bodily injury intended to be caused wassufficient in the ordinary course of nature to cause death. I think it isobvious that no other intention can be inferred from the nature of theblows, the part of the body on which they were inflicted and the forcewith which they were inflicted. That, moreover, is not the only evidenceas to the intention of the accused. The witness Silva, a fishmonger ofPaiyagala, gave evidence that he was present on the Colombo-Galle roadthat night and he heard the deceased say to the accused “ You threatenedto kill me. If you can, do so now ”. This witness says that he separatedthe two men.' and the accused at the same time said “You be on thelookout. Before dawn I will kill you ”. If any other evidence wasrequired as to the intention of the accused it is supplied by the evidenceof this man Silva, which amounts to evidence of a definite threat on thepart of the accused.
In view of what I have said with regard to the medical evidence andthe threat, we are of opinion that the jury could have arrived at no otherverdict except one of murder. In these circumstances it was not the dutyof the learned Judge to put before the jury an alternative issue with re-gard to culpable homicide not amounting to murder. To do so would havemerely confused their minds as to the issues on which they had to find.
The application must be refused.
THE KING v. BELLANA VITANAGE EDDIN