SOERTSZ J.—The King v. R. A. Edwin.
[Court of Criminal Appeal.]
1943Present: Soertsz S.P.J., Hearne J. and Jayetileke J.
THE KING v. R. A. EDWIN.
1—M. C. Anuradhapura, 7,943.-
Murder—Intention of accused to cause the death of a person—Killing anotherperson—Culpable homicide—Penal Code, s. 295.
Where the accused fired' at a person, intending to murder him andcaused the death of another person whose death was not intended,—Held, that he was guilty of murder.
^PPEAL against a conviction with the certificate of the trial Judge;
H. A. Chandrasena, for the appellant.
T. S. Fernando, C.C., for the Crown. s'
April 19, 1943. Soertsz J.—
This appeal came before us on a certificate of My Lord the ActingChief Justice who tried the case in the Assize Court. Counsel whoappeared in support of the appeal stated that he had no submissionwhatever to make to us in regard to the charge to the Jury which
SOERTSZ J.—The King v. R. A. Edwin.
he respectfully took leave to describe as being as full and as fair tothe accused as a charge could be. But he contended that the Juryacted unreasonably in accepting the evidence of the witnesses Banda,Kiri Banda and Lensuwa despite the many infirmities in that evidenceto which the Judge had repeatedly called their attention, and in findingupon that evidence that the appellant intended to cause death, forthat was what they declared their finding to be when questioned by thelearned Judge in the course of their verdict being taken. It seems tous that the assumption by Counsel that the Jury in finding the intentionof the appellant to have been what they said it was relied on the evidenceof those three witnesses is unwarranted. The learned Judge in thecourse of his charge made it quite clear to the Jury that they could,even if they disbelieved -those witnesses, find that the intention of theaccused was to cause death, when he directed them, thus: —
“If you do not believe the threat, it does not necessarily meanthat you cannot believe that the accused had an intention to kill.”
With all respect, that is our view too, for there is considerable evidenceof a circumstantial character from which such an intention could have,reasonably, been inferred.
Counsel next submitted that, on the evidence in the case, the correctverdict, if the Jury found that it was the appellant who fired the gun,would have been that he was guilty, of culpable homicide not amountingto murder on the ground that on the evidence in the case, it could not besaid that the appellant, to whom the deceased man was a completestranger, intended to cause his death, and that the most that could besaid was that he must have known that, although he did not intend tocause the death of the deceased or some other stranger on the road in thecrowd of . people assembled there, it was likely that he might cause thedeath of such a person. In regard to this argument, we find that thelearned Judge dealt with this point too in his charge. He said :
“ One thing I must tell you. It is quite immaterial that the deathcaused was that of -a man other than his whose death was intended.I will give you an illustration to make it clear to you. If A fires at Bwith the intention of killing him and accidentally hits C, and B goesscot free, the intention of the person who shot C is the same as if Bwas killed according to plan. ”
We are in respectful agreement with that direction. It disposes of theargument-of Counsel. To judge by the verdict returned by the Jurythat was most probably the view they themselves took.
In regard to the point that, assuming that the intention of the appellantwas to kill Andy or Thegis by shooting at one of them, the distancebetween the appellant and those men was, probably, greater than thecharge of his gun could carry with fatal results, our view is, firstly, thatthere is no evidence to indicate that the gun the accused used could notbe fatally effective at those distances, especially having regard to the factthat in the load there was a slug or something equivalent to a slug ;secondly, unless the crime charged is an impossible one, in the circum-stances, the intention of an assailant is not to be inferred necessarily fromthe result actually achieved by him or from the result that could have been-
WIJEYEWARDENE J.—Ramalingam Nadar and Lewis Appuhamy. 299
achieved by him as disclosed by later investigation, unless, of course,as we have already observed, the assailant was addressing himself tosomething impossible.
Lastly, Counsel submitted to us that the case of the appellant fellunder sub-section (4) of section 294 of the Penal Code and that the Juryappeared to have failed to consider that case to see whether it could besaid that, assuming the appellant to have done an act which he musthave known to be so imminently dangerous as in all probability to causedeath he had an excuse for so doing. In regard to this, the presence orabsence of an excuse is the determining factor one way or the other,and there is not the scintilla of evidence forthcoming from the casefor the Crown to suggest an excuse and the appellant did not say or hintthat there was an excuse. Nor can we even glimpse such an excuse inall the circumstances of this case.
It was for these reasons that we dismissed the appeal.
THE KING v. R. A. EDWIN