048-NLR-NLR-V-74-C.-ABEYSUNDERA-Appellant-and-THE-QUEEN-Respondent.pdf
ALLEP, .T.—. t bcysundcrci t The Queen
100
fC'OUKT OK CRIMINAL APPEAL]
Present: H. N. G. Fernando, C.J. (President), Alles, J., and
Wijayatilake, J.
C, A BEY SU X DE H A, Appellant, and THE QUEEN, DespondentG. C. A. Application No. 1S8/G9
S. C. 316jGO—M. C. Guile, 59195
Ch'it'jc oj murder—Injuries iitjliclecl by accused on deceased—Death of deceased twoweeksluttr—Causal connection between death and injuries—Proper consideration
n ecessary.
’i'lio accused-appellant-, who was charged with murder, was eon vie tod afc thetrial of culpablo homicide not amounting to murder. Tho deceased, who wasstabbed on the abdomen by tho appellant-, was opoiatcd on tho same day andtho injuries were healing at tho timo of her death nearly two woolcs later. Apost-mortem examination showed that death was duei to cardio-respiratoryfailuro following extensive broncho pneumonia of tho lung. According to thomedical evidence, broncho pneumonia was a possibility and not a probability,and thoro was a reasonable doubt whethor the death of the deceased was as aresult of tho injurios inflicted by tho appellant.
Held, that, on the medical ovidcnco led, tho charges of murder or culpablohomicide not amounting to murder should havo been withdrawn from tho •consideration of tho jury. Accordingly, tiro verdict should bo altered to one ofattempted culpable homicide not amounting to murder.
./^PPEAL against a conviction afc a trial before the Supreme Court.
D. A. E. Theuarapperuma, for the accused-appellant.
V. 8. A. Pullenatjegum, Senior Crown Counsel, with Tyrone Fernando,Crown Counsel, for the Crown.
Cur. adv. vult.
May 22, 1970. Alles, J.—
At the conclusion of the argument in this case we set aside theconviction of the appellant for culpable homicide not amounting tomurder and substituted in its place a verdict of attempted culpablehomicide, since in our view, it was not established beyond reasonabledoubt, that the appellant was responsible for the death of the deceased.We now set down the reasons for our order.
The case for the prosecution, was that the deceased, an elderly woman,was stabbed on the abdomen by the appellant on tire morning .of .21sfcFebruary, 1969. The wound had penetrated into the abdomen and eightfeet of the small intestine were protruding. There were thirteen per-forations on tire intestines and Dr. Paramanatlian who examined her onLXXIV— S
I • – K 4556—2,255 (0/7J )
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A-LLES, J.—Abeysundera v. The Queen
the same day was of the opinion that these injuries would have causeddeath ‘‘.in the ordinary course of nature She was operated on thesame day about 10.30 a.m. by Dr. Rasiah, the Surgeon of the GalloHospital, and the injuries were healing at the time of her death on 6thMarch, 1969. • A post-mortem examination was held on the body on thefollowing day and Dr. AVickremesinghc testified that death was duo tocardio-respiratory failure following extensive broncho-pneumonia of tholung. On being questioned specifically whether the injuries caused bythe appellant were instrumental in the deceased contracting ,broncho-pneumonia, the Doctor gave the following answer :—
“ Yes, indirectly ; in the sense that the injuries could have causedthe deceased to be in bed for a long period and that may have causedthe patient getting broncho pneumonia.”
Although in examination-in-chief the Doctor expressed the view that,considering her age and the injuries, the broncho-pneumonia was a naturaland probable consequence of the treatment that ensued upon the injuries,in cross-examination he stated that as a result of surgical treatment theinjuries were healing and it was unfortunate that she had contractedbroncho-pneumonia. His final assessment of the position was thatbroncho-pneumonia was a possibility and not a probability. The medicalevidence therefore at least created a reasonable doubt whether the deathof the deceased nearly two weeks later was as a result of the injuriesinflicted by the appellant.
In Herashamy 1 the medical evidence was that the deceased died ofpneumonia aggravated by a stab wound but no evidence was given as tohow the pneumonia was aggravated by the stab and no explanation wasgiven as to how the opinion was formed that pneumonia was aggravatedbv the injury. Tho Court of Criminal Appeal consequently refused toadmit a statement of the deceased made at the time the injuries woreinflicted as being one admissible under Section 32 of the Evidence Act.
In Surabial Singho2 tho Doctors who testified to the injuries on thedeceased said that “ it was very probable that the broncho pneumonia ofwhich the man died Mas brought about or induced as a result of his.condition, that is to say, in consequence of the nature of the injuries hehad received, but they went on to say that they could not jiositivelydeclare that the death of the deceased was not due to an independentcause. In those circumstances there arose at least a substantial doubt,to the benefit of which the accused was entitled.” The trial Judge tookthe view, with which the Court of Criminal Appeal agreed, that theoffences of murder and culpable homicide not amounting to murder couldnot be sustained on the evidence in tho ease.
Finally in Mendis v. The Queen *, in a case Mliere toxaemia supervenedupon a compound fracture M-hich resulted from a club blow inflicted bythe accused, Gratiaen J. held tlvat the prosecution in presenting a charge
s (1916) IS N. L. K.
1 (1916) 47 S. L. F. SI.
3 (1953) 54 A'. L. H. 177.
AJjLES, «T.—Abcysundera t>. The Queen
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of murder should be in a position to place evidence before tlie Court toestablish that “ in the ordinary course of nature there was a very greatantecedent probability (as opposed to a mere likelihood) (a) of the super-vening condition arising as a consequence of the injury inflicted, andalso (6) of such supervening condition resulting in death”.
Following the principles laid down in the above decisions it seems tous that on the medical evidence led in the instant case, the charges ofMurder or Culpable homicide not amounting to murder should have beenwithdrawn from the consideration of the jury. The learned trial Judgehowever appears to have taken the view that the fortuitous circumstancesof the supervening broncho-pneumonia did not exonerate the appellantfrom his responsibility for the death of the deceased but was only acircumstance which would reduce the offence of murder to culpablehomicide not amounting to murder. Said he in the course of thecharge:—
“ In consequence of the fortuitous circumstance death ensued. Thatwould enable you to take the view that as far as the person who com-mitted the act which resulted in the death is concerned, he is guilty ofsome offence. Of course, but for the act that was. committed, deathwould not have resulted. So that, upon this evidence that has beenplaced before yon the safer view for you to take is that it would not benecessary t.o consider the offence of murder but you should, consider theoffence of culptable homicide not amounting to murder because it was inconsequence of the act done by the accused that death eventuallyresulted, that there was the supervening cause of death, namely, 'broncho-pneumonia which could not have been foreseen as a probableconsequence of, the act which the assailant committed.
So in that state of affairs, as I said, it is for jmu to consider thequestion of culpable homicide not amounting to murder inasmuch as the’ actual death resulted from the intervention of a fortuitous illness whichwas only "a possibility and not a probability having regard to theevidence of the doctor, and if the healing process had taken its normalcourse then the deceased would have probably lived ; but for tho •unfortunate fact that broncho-pneumonia had come' in the deceasedwbuld have lived and this would not have been a charge of murder butmight have been a charge of attempted murder. Shall we say theaccused person is very unfortunate because what might otherwise have. been a charge of attempted murder has become a charge of nnirdcr.”
It is perhaps these observations which prompted Crown Counsel, onthe invitation of the Judge, to draw the attention of the learned Judge atthe conclusion of the charge that a verdict of culpable, homicide or murderwas not possible unless the jury were satisfied that the injuries caused bythe appellant resulted in the death of the deceased, and he submitted -that the proper verdict in the case should bo one for attempted murder.
Tho learned trial Judge, however, gave no directions to the jury on a.possible verdict of attempted murder or attempted culpable homicide and
172_ H. N. G. FERNANDO, C.J.—.4.nihonipiilai v. JRajasooriar
asked them to consider only the possible verdicts as explained, by himearlier.' On these directions the jury brought a verdict of,culpablehomicide, but in our view the medical evidence did not warrant such acourse. .'
We therefore altered the verdict to one of attempted culpable homicidenot amounting to murder and imposed a sentence of three years’ rigorousimprisonment on the appellant.
Verdict altered.