The King v. Merashttmy.
[Court as Ortmtvat, Appbat,.]
1946Present: Howard C.3., Cannon and de Silva JJ.THE KING v. HERASHAMT et ctl.5-7—M. C. Qampaha, 24,265.
Evidence—Statement by a deceased person relating to circumstances of transactionwhich resulted in his death—In what circumstances admissible—Whenadmissible as part of res gestae—Alternative verdict possible—Duty ofJudge to put it to the Jury—Trial of several accused for attemptedmurder—Directions regarding common intention—Evidence Ordinance,88. 6, 32 (I)—Penal Cods, s. 32—Court of Criminal Appeal Ordinance,.No. 23 of 1938, e. 5 (.1).
The three accused were convicted of the offences of at temp ted murderand causing simple hurt.
According to the evidence, on the day of the offence, the injured manmade a statement to the headman, who went to the scene for investiga-tion, that the three accused had assaulted him. The injured mansubsequently died, but with regard to the cause of his death the medicalevidence was that the injury received at the hands of the accused hadhealed and that the death was caused by septic absorption due to bedsores.
Evidence was also given by S, who was the son of the deceased, thathearing cries on returning home he ran and saw his father lying fallen,that he spoke to his father and asked him who had assaulted him and hisfather said that the accused had done so, and that then the accusedassaulted him (S). This assault, which was the subject of the secondcharge against the accused, took place within one fathom from hisfather.
Held, (i.) that as there was no proved connection between the bedsores and the injury inflicted by the accused on the deceased the state-ment made by the deceased to the headman that the accused hadassaulted him was not admissible under section 32 (1) of the EvidenceOrdinance ;
(ii.) that the statement was not admissible as part of the res gestae,under section 6 of the Evidence Ordinance ;
(iii.) that the statement of the deceased to S was inadmissible undersection 32 (1) but was admissible, as part of the res gestae, under section 6of the Evidence Ordinance.
Held, further, (a) that, although the statement made to the headmanhad been improperly admitted, the provisions of the proviso to section5 (1) of the Court of Criminal Appeal Ordinance were applicable as therewas no substantial miscarriage of justice ;
ZKTWzcrvrr w.j.—ine ti.mg v. cteraanamy.
(6) that as the trial Judge had suggested that the accused or anyone or more of them might, by reason of self-induced intoxication,have been incapable of forming a murderous intention he should haveinvited the attention of the Jury to the possible verdict of a lesser offencethan attempted murder ;
(c) that, in view of certain confusion in a passage in the summing-up,it should have been made clear to the Jury that to convict all of theaccused of the offence of attempted murder each one of them at thetime of the assault was actuated by a common intention not merely tobeat the deceased, but to cause his death or such bodily injuriesas were likley to cause his death.
PPEALS from certain convictions by the Commissioner of Assizeand Jury.
S. C. E. Bodrigo, for the 1st acoused, appellant.
2nd accused, appellant, in person.
M.M. Kurnarahvdasinghurn, for the 3rd accused, appellant.
H. Basnayake, Acting Attorney-General (with him D. Jansze, C.C.)for the Crown, respondent.
Cur. adv. vuU.
February 25, 1946. Howaed C.J.—
The accused appeal from their convictions by the Commissioner ofAssize and Jury of the offences of attempted murder and causing simplehint. After conviction each of them was sentenced to seven years’rigorous imprisonment on tho first count and one year’s rigorous imprison-ment on the second count, the sentences to run concurrently. Threegrounds of appeal have been taken by Counsel for the appellants asfollows :—
(o) That the statement made by Godaudage Sedris Naide to
S. Jayawardene was hearsay and inadmissible in evidence.That in consequence of the admission of this evidence there hadbeen a substantial miscarriage of justice and the convictioncannot be allowed to stand :
That the Commissioner failed to invito the attention of the Juryto the possible verdicts of attempted culpable homicide andgrievous hurt:
That the Commissioner failed to invite the attention of the Juryas to whether the appellants had a common intention to killGodaudage Sedris Naide.
With regard to (a) it would appear from the evidence that
S. Jayawardene, the Headman of Kalukondayawa, about 12 noon .on,July 3,1944, the day of the offence received a complaint from one Richard,a witness for the Crown. After recording this complaint the Headmanproceeded to the scene where he found G. S. Naide lying injured on amessa in his own house. The Headman spoke to him and he said thatthe throe appellants assaulted him. G. S. Naide was admitted to theGeneral Hospital the same day suffering from a fracture of the parietal
HOWARD C.J.—The King c. Beraahamg.
bone. He was at the General Hospital until July 18 when he wastransferred to the Angoda Hospital. He stayed at Angoda till September14, 1944, when he was discharged. On September 24, 1944, he wasadmitted to the General Hospital, Colombo, suffering from bed sores.He died at 5.30 ajj. on October 23, 1944. With regard to the cause ofhis death Hr. S. Thurairetnam says that he was unable to trace theexact cause of G. S. Naide’s death, that he had an old depressed fracturethat the fracture had healed and that he did not die of that injury.Hr. Siimadurai, the Judicial Medical Officer, held the post mortemexamination and he was of opinion that G. S. Naide’s death was due toseptic absorption due to bed sores. In his charge to the Jury the learnedCommissioner stated as follows :—
“ There is another line of evidence, but most unintelligently thePolice fail to have Sedris’ statement recorded while he was alive, inthe proceedings of this case. It is a deplorable example of offioiousness.There are two people to whom Sedris made statements. He madehis first statement to his son, Subaneris, when Subaneris went up tohim when he came back from the headman and ran up to his father,and he said these three men hit him, naming the three accused. Againwhen the Headman went to the spot he spoke to the injured manand the injured man said it was these three accused. That evidenceappears to be hearsay evidence and therefore inadmissible, but thatis not so. Those were statements made by a man now dead regardingthe circumstances relating to his death, and that is a matter that isadmissible.”
In the course of the argument we have been referred to sections 32 and 6of the Evidence Ordinance (Cap. 11). The first part of section 32 isworded as follows :—
“ Statements, written or verbal, of relevant facts made by a personwho is dead, or who cannot be found, or who has become incapableof giving evidence, or whose attendance cannot be procured withoutan amount of delay or expense, which under the circumstances of thecase, appears to the Court unreasonable, are themselves relevant factsin the following cases :—
(1) When the statement is made by a person as to the cause of hisdeath, or as to any of the circumstances of the transactionwhich resulted in his death, in cases in which the cause ofthat person’s death comes into question.”
It is contended by Counsel for the appellants that, as the death of G. S.Naide had, according to the medical testimony, no connection with theinjury he stated he had received at the hands of the appellants, it wasnot a “ statement made by a person as to the cause of his death or asto any of the circumstances of the transaction which resulted in hisdeath, in a case in which the cause of that person’s death comes intoquestion.” The acting Attorney-General has contended that the bedsores from which G. S. Naide died were the result of his having to lie inbed consequent on the injuries he received on July 3 and hence theinjuries so received were the primary cause of his death. We do not
HOWARD O.J.—The King v. Harashamy.
think this argument is tenable. The connection between the bed soresand the lying in bed consequent on the injuries received on July 3 wasnot proved and even if proved, the connection would be too remoteto make the statement relevant. The cases of The King v. SamarahoonBanda1 and Nga Ba Min v. Emperor 3 cited by the Attorney-Generalare not in our opinion in point. In the Ceylon case it was held that thedying declaration of B was admissible under section 32 (1) in a case wherethe accused was charged with the murder of A in the course of whichhe inflicted fatal injuries on B. The statement by B gave the circum-stances in which he met with his death and which also brought A to thescene. Hus statement related to a circumstance of the transactionwhich resulted in B’s death and was therefore admissible. In theRangoon case the deceased died from abscess of the brain as the resultof injuries, received in the course of a robbery at her house, becomingseptic. It was held that a statement of the deceased before her deathregarding the circumstances of the robbery was relevant under section32 (1) even though death was caused remotely by the wounds receivedat the robbery. In his judgment in this case Dunkley J. distinguishedthe facts from those in Jmperatrix v. Rudra *. In that case a personwho received wounds during a dacoity made a statement before death.The medical evidence was that this person died of pneumonia aggravatedby a stab wound, but there was no evidence as to how the pneumoniawas aggravated by the stab and no explanation as to bow the opinionwas formed that the pneumonia was aggravated by the injury. Inthese circumstances it was held that the statement should not have beenadmitted. In the present case as there is no proved connection betweenthe bed sores and the fracture the facts are more in line with the Bombaythan the Rangoon case. In our opinion, therefore, the statement wasnot admissible under section 32.
The Attorney-General, however, further contends that if not admissibleunder section 32 (1) tbe statement was admissible under section 6. Thissection is worded as follows :—
“ Facts which though not in issue are so connected with a fact inissue as to form part of the same transaction are relevant, whetherthey occurred at the same time and place or at different times andplaces.”
In regard to this contention our attention was invited to the case of theQueen v. Appuhamy*. The facts in that case were that a Police Constablecoming to the spot found the deceased lying on the road with a fracturedskull which, according to the medical evidence, was the result of a blowor fall. In reply to the Constable the deceased said “ Appuhamy assaultedme.” It was held that this statement is, as part ofthe res gestae, admissiblein evidence in support of the contention that the injury the deceasedhad received was the result of an assault and not of a fall. It is, however,clear from a perusal of a report of this case that the Court was of opinionthat the name of the assailant should not have been admitted in evidence,and that the statement as to the assault was admitted as part of the
> 44 AT. L. R. J69.
* (1935) A. J. R. (Rangoon,) 418.
3 (1901) 25 Bombay 45.11S.C. R. 59.
HOWARD C.J.—The tLing v. Heraahamy.»Y
res gestae because it was a charge of assault laid by the deceased. Wedo not thinlr that the statement made to the Headman by G. S. Naideformed part of the res gestae.
A further point has arisen with regard to the evidence of Subaneris,the son of G. S. Naide. He states that hearing cries on returninghome, he ran and saw his father lying fallen. He spoke to hisfather and asked him who had assaulted him and his father saidthat Herath, Sethan and Themis had. done so. Then Herath cameto him and said “ I will tell you who assaulted him” and gavehim a blow on the head. Then Sethan struck him with a club on thehead and Themis struck him on the back of the head. This assault,which was the subject of the second charge against the three accused,took place within one fathom from his father. It was maintained byCounsel for the appellants that the statement of G. S. Naide to Subaneriswas inadmissible. We think it was inadmissible under section 32 (1),but was admissible as part of the res gestae under section 6 of the EvidenceOrdinance.
The Attorney-General has called in aid the proviso to section 5 (1)of the Criminal Appeal Ordinance and contended that even if the state-ment to the Headman was inadmissible, there has been no miscarriageof justice, inasmuch as on the evidence it cannot be said that the Jurycould or would have arrived at any other verdict. It this connectionour attention was invited to the case of R. v. Haddy1 . In this case theproviso to section 4 (1) of the Criminal Appeal Act, 1907, was considered.This proviso is worded similarly to the proviso to our section.
The Court of Criminal Appeal held that, upon the true constructionof the proviso to the section, the Court is entitled to give effect to theproviso if it is satisfied that no reasonable Jury, properly directed, wouldor could have given any other verdict than that which was in fact givenand no substantial injustice has been done. The Attorney-Generalcontends that having regard to the evidence of Ensa, Subaneris, Sarohamyand Richard no reasonable Jury could have arrived at any other verdict.Sarohamy is a witness who went back on the statement she made to theMagistrate and Crown Counsel was allowed to treat her as hostile. Hertestimony was so full of contradictions that no reasonable Jury couldplace any reliance on it. The case therefore depended on the view theJury formed of the testimony of Ensa, Subaneris and Richard. Thefirst accused went into the witness box and denied that he took anypart in the assault. Neither the second nor third accused tendered anyevidence. It is unfortunate that the learned Commissioner in his chargeto the Jury has somewhat emphasized the statement made by G. SrNaide to the Headman. But at the same time we do not *hink, havingregard to the evidence of Ensa, Subaneris and Richard, and the factthat the 1st accused’s alibi was unsupported and that no evidence wascalled by the other two accused any reasonable Jury would, if the state-ment of G. S. Naide to the Headman had not been admitted, have cometo another conclusion. There has been, therefore, no substantialmiscarriage of justice by reason of the admission of this statement.
1 (1944) 1 All ’England. Reports 315.
HOWARD C.J.—The King v. Heraahamy.
With regard to (6), at page 23 of the charge to the Jury the learnedCommissioner has suggested that the accused or any one or more of themmay, by reason of self-induced intoxication, have been incapable offorming a murderous intention. In sucjh circumstances the Jury weretold that the offence was not attempted murder, but attempted culpablehomicide not amounting to murder. But nowhere in the charge is thereany reference to the fact that, if the Jury thought there was no murderousintention but merely knowledge that their acts were likely to cause deaththe offence was one only of attempted culpable homicide not amountingto murder. And again if knowledge was not established the offencewas one of voluntarily causing grievous hurt. In fact on p. 22 of thecharge the learned* Commissioner told the Jury that if the prosecutionfailed to prove any of the ingredients indicated to them, it was theirbounden duty to acquit the accused. The Jury were, therefore, givenno option. They must either find the accused guilty of attempted murderor acquit them. We are of opinion that there was a basis for a findingon Count 1 of a lesser offence than attempted murder. Following TheKing v. BeUana Vitanage Eddin1 the learned Commissioner should haveput this alternative to the Jury.
With regard to (c) we think that the learned Commissioner’s directionson Common Intention are open to criticism so far as the facts in thepresent case are concerned. At p. 15-16 of the charge the followingpassage occurs :—
“ So, gentlemen, here if the evidence irresistibly leads you to theinference that those three accused on that day were armed, were presentat the spot, and in pursuance of a common intention to give Sedrisa beating and that when the son Subaneris came up, turn on him alsoin pursuance of the common intention, it matters not whose handinflicted which blow. That iB the law with regard to common intention.
Now, gentlemen, what has the prosecution to prove in this case ?First of all, the prosecution must prove beyond reasonable doubtthat on this day Sedris and Subaneris were assaulted ; secondly, theymust prove beyond reasonable doubt that these three accused werepresent at the spot; they will next have to prove that the threeaccused were actuated by the common intention in the sense in whichI have described it to you, and they will also have to prove that inpursuance of that common intention, murderous intention underCount 1, or, with the intention or knowledge under Count 2, they madean attack on the father and the son. If the prosecution succeed inestablishing all these ingredients to your satisfaction beyond reasonabledoubt, then the case for the proseoution would be proved. If not,the case for the prosecution will not be proved, and remember thaton any point, if there is a reasonable doubt, yon must give the accusedthe benefit of that reasonable doubt.”
The learned Commissioner states that it does not matter who inflictedthe blow if the evidence leads to the inference that the accused werearmed, were present and in pursuance of a common intention to give<1. S- Naide a beating, it matters not whose hand inflicted the blow.
141 N. L. B. 345.
Fonder Poor ten v. Pander Poorten.
Later the Commissioner says that the prosecution must prove that thethree accused were actuated by a common intention in the sense in whichhe described it to the Jury and also that in pursuance of that commonintention, murderous intention under Count 1 or with intention orknowledge under Count 2. There seems to be some confusion in thispassage and the Jury may well have been in some doubt as to whetherthe common intention amounting in law to a murderous one that theprosecution had to establish was an intention to give Sedris a beating.It should have been made clear to the Jury that to convict all of theaccused of the offence of attempted murder each one of them at thetime of the assault was actuated by a common intention not only tobeat but also to cause his death or such bodily injuries as were sufficientto cause his death.
Having regard to the failure of the learned Commissioner to put thealternative to a conviction on Count 1 to the Jury and the unsatisfactorytreatment of what amounts to Common Intention, we set aside theconvictions and sentences of all three accused on Count 1 and substitutetherefor convictions for intentionally causing grievous hurt under section317 of the Penal Code. In respect of this count we sentence each accusedto five years* rigorous imprisonment to run concurrent with the sentenceof one year’s rigorous imprisonment imposed under Count 2.
THE KING v. HERASHAMY et al