FAROOK vs. ATTORNEY GENERAL

023-SLLR-SLLR-2006-V-3-FAROOK-vs.-ATTORNEY-GENERAL.pdf


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FAROOKVSATTORNEY GENERALCOURT OF APPEAL.
BALAPATABENDIJ. (P/CA).
BASNAYAKEJ..
A. NO. 163/2001.
HCAMPARA428/200.
MARCH 22. 2006.
APRIL 27. 2006.
Penal Code – Sections 294,296,297,375, Failure to consider the culpabilityon the basis of knowledge – Single stab injury – No murderous intention ?•Sufficiency of high probability of death in the ordinary way of nature ?•Offence of murder ?
The Accused Appellant was indicted and convicted of causing the deathof one SL (section 296) and causing simple hurt to one AL (section 315).
In appeal It was contended that, the trial Judge had failed to considerculpability under Section 297 on the basis of knowledge and that there isevidence of a sudden fight, which the trial Judge had failed to considerand arrive at a lesser culpability and that there was no motive/displeasureor any quarrel and that there was only a single stab injury.
HELD:
As regards the attempt to bring the case to one of culpable homicidenot amounting to murder mainly on the basis that there is nointention to cause death, the intention that is required is to causethe injury in fact inflicted. If the intended injury is sufficient to causedeath in the ordinary course of nature, the offence is murder;
The injury which caused the death was the one inflicted by theaccused. The sufficiency of the injury was objectively established.The sufficiency is the high probability of death in the ordinary way ofnature and when this exists and death ensues, and if the causingof the injury is intended, the offence is murder;
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The determinant factor is the intentional injury which must besufficient to cause death in the ordinary course of nature, that is tosay, if the probability of death is not so high, the offence does notfall within murder but within culpable homicide not amounting tomurder or something less.
APPEAL from the Judgment of the High Court of Ampara.
Cases referred to:
Weerappan vs Queen — 76 NLR 109 (not followed)
Somapala vs Queen — 72 NLR 121 at 126
Rajwant Singh vs State of Kerala — AIR 1966 SC 1874
Virsa Singh vs State of Punjab — AIR 1958 SC 465
Anda vs State of Rajasthan — AIR 1966 SC 148 at 151
Voshnu Daga Pagar and other vs State ofMaharastra — 1997 3 CrLJ 2430
State of Karnataka vs Vedanayagam — 1995 SCC 231
In Re. Sangaram Padiyachi — AIR 1944 Mad. 223
Dr. Ranjith Fernando with Amila Umayangani and Deshani Jayatilake for
Accused Appellant.
Gihan Kulatunga S. S. C., for Attorney General.
Cur.adv.vult.
November 30, 2006.
ERIC BASNAYAKE, J.The accused appellant (the accused) was indicted in the High Courtof Ampara for causing the death of Uduman Kudu Sulaiman Lebbe on27.07.1982, an offence punishable under section 296 of the Penal Code.He was also charged for causing simple hurt with a knife to AbdulLatif under Section 315 of the Penal Code. After trial the accused
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was convicted on the first charge and was sentenced to death. Hewas acquitted on the second charge. This is an appeal against thesaid conviction and the sentence.
The accused and the deceased were uncle and nephew. On theprevious night the accused had spent the night at the deceased house.Latif and Hameed are the two eye witnesses to the incident. Theincident had occurred at about 11 a. m. on 27.07.1982. According toLatif when the accused stabbed the deceased he had gone towardsthe deceased and the accused had stabbed him too. However thelearned Judge acquitted the accused on the charge of causing injuryto Latif. Hameed said that the accused, having walked away from thedeceased, came back and stabbed the deceased. There appears tobe no evidence of any fight or anything to provoke the accused. Nomotive was revealed. It transpired that the deceased had gone to thepolice station to complain against the accused over a quarrel theaccused had had with another relation. The accused appears to havequestioned the deceased over this.
On admission to hospital the deceased had been pronounced death.Death appears to have occurred within a period of about one hour afterthe injury was caused. According to the P. M. R. marked P1 deathwas due to shock and internal hemorrhage following stab injury. Theinjury was 1 ” long on upper front of left side of the chest 1 1 /2" awayfrom the left sterna boarder on the 3rd inter coastal space at midclavicle line. The upper lobe of the left lung was found pierced. Twopints of blood was found in the left thoracic cavity.
Submission of the learned counsel for the accusedThere is no dispute that the accused caused the death of thedeceased. The learned counsel submits that the learned trial Judgehad failed to consider the culpability under section 297 of the PenalCode on the basis of knowledge. He also submits that although thereis evidence of a sudden fight the learned Judge had failed to considerthe same and arrive at a lesser culpability. Further he states that thereis no evidence of any displeasure or motive to harm the deceased and/or any evidence of premeditation. The accused had met the deceasedby chance. There was no evidence of any quarrel. He submits that
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there was only a single stab injury. The learned counsel was restinghis argument on the Judgment of Weerappan v. Queen(1)
Submission of the learned Senior State CounselWhen it is proved that a person has committed the act which causedthe death of the deceased and that the said act comes within any oneof the four limbs of Section 294 of the Penal Code, the accused isguilty of murder unless he qualifies for any of the exceptions. He furthersubmits that if there is evidence that the said act was committed withthe intention of causing the death the court is not permitted to considerthe liability on the basis of knowledge. The learned counsel rests hisargument on the Judgment of H.N. G. Fernando C. J. in Somapala Vs.Queen(2) N. L. R. 121 at 126 that “in the more common case of homicide,a verdict of murder can be returned if the jury finds that the offenderhad the intention of causing the death."
In Weerappan vs. Queen one accused held the hands of thedeceased while another stabbed him on the chest and inflicted aninjury which cut the cartilage of two ribs and cut also the walls of thepericardium and the right ventricle. The injury was necessarily fatal.The court considered that the single stab injury inflicted might indicatethe absence of the murderous intention. Hence the verdict wassubstituted to one of Culpable homicide not amounting to murder. Thethird limb of Section 294 of the Penal Code and Illustration (c) wasgiven no attention. Therefore with all due respect to the Their Lordships,
I am of the view that this Judgment was decided per incuriam andshould not be followed.
Section 294 of the Penal Code is as follows :
294. Except in the cases hereinafter excepted, culpable homicideis murder
Thirdly – If it is done with the intention of causingbodily injury to any person, and the bodily injuryintended to be inflicted is sufficient in the ordinarycourse of nature to cause death;
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The illustration further clarifies the legal position whichis as follows :
A intentionally gives Z a sword cut or clubwound sufficient to cause the death of a man inthe ordinary course of nature. Z dies inconsequence. Here A is guilty of murder althoughhe may not have intended to cause Z’s death(emphasis is added).
The learned counsel made an attempt to bring the case to one ofculpable homicide not amounting to murder mainly on the basis thatthere was no intention to cause death. The intention that isrequired is to cause the injury in fact inflicted. If the intendedinjury is sufficient to cause death in the ordinary course of nature,the offence is murder. The law is crystal clear on this point.
The difference between the offence of murder and culpable homicidenot amounting to murder is well explained in Rajwant Singhe vs. Stateof Kerala(3). Here the accused conspired to burgle the safe of theBase Supply Officer. They collected various articles such as chloroform,adhesive plaster, cotton wool and hacksaw etc. On the night in questionthe accused caught the Lt. Commander. His legs were tied with ropeand his arms were tied behind his back. A large adhesive plaster wasstuck over this mouth and completely sealed. A handkerchief was nexttied firmly over the adhesive plaster to secure it in position. The nostrilswere plugged with cotton soaked in chloroform and he was depositedin a shallow drain with his own shirt put under his head as a pillow.Thereafter the accused went after the safe. Anyhow the plan failed andthe accused bolted off. The following day the dead body of the Lt.Commander was discovered in the drain where he had been left.
Counsel for the appellants submitted in that case that the accuseddid not intend to kill the Commander but render him unconscious whilethey rifled the safe and that the offence of murder was not established.The question to decide was whether the offence was murder or culpablehomicide.
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Hidayatullah J considering the offences of culpable homicide notamounting to murder and murder; said “two offences involve the killingof a person. They are the offence fo culpable homicide and the moreherinous offence of murder. What distinguishes these two offences isthe presence of a special mens rea which consists of four mentalattitudes in the presence of any of which the lesser offence becomesgreater. These four mental attitudes are stated in S. 300, I. P..C asdistinguishing murder from culpable himicide. (S. 294 of our PenalCode) Unless the offence can be said to involve at least onesuch mental attitude it cannot be murder… The first clauses saysthat culpable homicide is murder if the act by which death is causedis done with the intention of causing death. An intention to kill a personbrings the matters so clearly within the general principle of mens reaas to cause no difficulty. Once the intention to kill is proved, the offenceis murder unless one of the exceptions applies, in which case theoffence is reduced to culpable himicide not amounting to murder. Theappellants here did not contemplate killing the Lt. Commander.
The second clause deals with acts done with the intention of causingsuch bodily injury as the offender knows to be likely to cause thedeath of the person to whom harm is caused. The mental attitude hereis two fold. There is first the intention to cause bodily harm and nextthere is the subjective knowledge that death will be the likelyconsequence of the intended injury. English Common Law made noclear distinction between intention and recklessness but in our lawthe foresight of the death must be present. The mental attitude is thusmade of two elements (a) causing an intentional injury and (b) whichinjury the offender has the foresight to know would cause death. Herethe injury or harm was intended . . . They intended that the Lt.Commander should be rendered unconscious for some time but theydid not intend to do more harm than this. Can it be said that they hadthe subjective knowledge of the fatal consequence of the bodily harmthey were causing. We think that on the facts of the case the answercannot be in the affirmative.
The third clause discards the test of subjective knowledge. It dealswith acts done with the intention of causing bodily injury to a personand the bodily injury intended to be inflicted is sufficient in the ordinarycourse of nature to cause death. In this clause the result of the
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intentionally caused injury must be viewed objectively. If the injurythat the offender intends causing and does cause is sufficient tocause death in the ordinary way of nature the offence is murderwhether the offender intended causing death or not and whetherthe offender had a subjective knowledge of the consequencesor not. As was laid down in Virsa Singhe vs. State of Punjab (4> for theapplication of this clause it must be first established that an injury iscaused, next it must be established objectively what the natureof that injury in the ordinary course of nature is. If the injury isfound to be sufficient to cause death one test is satisfied. Then itmust be proved that there was an intention to inflict that veryinjury and not some other injury and that it was not accidentalor unintentional. If this is also held against the offender theoffence of murder is established (emphasis added).
Applying these tests to the acts of the accused the injury whichcaused the death was the one inflicted by the accused. The sufficiencyof the injury was objectively established … As was pointed out inAnda vs. State ofRajastan(5) at 151 “the emphasis in clause thirdly ison the sufficiency of the injury in the ordinary course of nature tocause death. The sufficiency is the high probability of death in theordinary way of nature and when this exists and death ensues and ifthe causing of the injury is intended, the offence is murder"…
The fourth clause comprehends generally, the commission ofimminently dangerous acts which must in all probability cause death.To tie a man so that he cannot help himself, to close his mouthcompletely and plug his nostrils with cotton wool soaked in chloroformis an act imminently dangerous to life, and it may well be said tosatisfy the requirements of the last clause also, although that clauseis ordinarily applicable to cases in which there is no intention to killanyone in particular. We need not however, discuss the point in thiscase. The court having held that the offence committed was murder,dismissed the appeal.
In the case of Vishnu Daga Pagarand others vs. State ofMaharastra(6> the deceased party and the accused party were residents of thesame village. Till a day prior to the incident the relations between theparties were cordial. On the morning of the date of the incident it wasfound that the bund between the field of the complainant and the
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accused were destroyed by the accused. The deceased had gone tothe accused and questioned the accused. An hour later the accusedhaving come with others, inflicted a sickle blow on the head of thedeceased. The deceased died the same day. Death was due to shockas a result of a fracture of the skull and internal hemorrhage. Theinjuries were sufficient in the ordinary course of nature to cause death.
The contention of the counsel for the defense was that no offense ofmurder was made out. He contended that only a solitary blow wasinflicted and if he wanted to kill him he would have repeated the blow.He also contended that it was the blunt side of the sickle that wasused. He also argued that such injury caused does not always end indeath and there are cases of recovery after the vault of the skull wasfractured.
The medical evidence is that the deceased dies on account of afracture of the skull and inter cranial hemorrhage and the injuries weresufficient in the ordinary course of nature to cause death. Sahai J heldthat in order to bring an offense within the 3rd limb of Section 300, twothings have to be established namely (1) there should be intention tocause bodily injury which has been actually caused to a person. Inother words the bodily injury caused should not be accidental; and (2)the injury caused should be sufficient in the ordinary course of natureto cause death Sfafe of Karnataka vs. Vedanayagam (7)- If such anintention to cause that particular injury is made out and if the injury isfound to be sufficient in the ordinary course of nature to cause death,then clause thirdly of section 300 IPC is attracted" The expression'ordinary course of nature’ means normal course or due course. Atbest it may envisage a high probability of death. On the converse theword ‘always’ means inevitable or invariably. In our judgment theexpression ‘sufficiency in the ordinary course of nature to cause death"only means in normal or due course or at best may envisage a highprobability of death but certainly does not mean that the injury shouldinvariably or inevitably lead to death. The distinction between theexpressions high probability of death and death invariably or inevitablytaking place, though fine, is substantial and if overlooked may resultin gross-miscarriage of justice (at 2437).
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In Anda vs. State ofRajastan Hidayatullah J observed thus, “thethird clause views the matter from a general stand point. It speaks ofan intention to cause bodily injury which is sufficient in the ordinarycourse, of nature to cause death. The sufficiency is the probability ofdeath in the ordinary way of nature and when this exists and deathensues and the causing of such injury is intended the offence is murder.Sometimes the nature of the weapon used, sometimes the part of thebody in which the injury is caused, and sometimes both are relevant.The determinant factor is the intentional injury which must be sufficientto cause death in the ordinary course of nature, that is to say, if theprobability of death is not so high, the offense does not fall withinmurder but, within culpable homicide not amounting to murder orsomething less".
In the case of In re Singaram Padayachi(8> the court observed thus: “We are not prepared to assent to any agreement that an injurysufficient in the ordinary course of nature to cause death is an injury,which inevitably and in all circumstances must cause death. If theprobability of death is very great, then it seems to us the requirementof thirdly under section 300 are satisfied, and the fact that a particularindividual may be the fortunate accident of skilled treatment or beingin possession of a particularly strong constitution have survived aninjury which would prove fatal to the majority of persons subjected toit, is not enough to prove that such an injury is not sufficient ‘in theordinary course of nature’ to cause death". The court having held thatthere is high probability of death dismissed the appeal.
Considering the time within which death occurred, the learned Judgehad correctly classified the injury as necessarily fatal. Hence theintention of the accused is manifestly shown. The accused had clearlyintended to cause the necessarily fatal injury that was caused whichresulted in death before admission to the hospital. I am of the viewthat the learned Judge had rightly convicted him. The appeal is thereforedismissed.
BALAPATABENDI J. -1 agree.
Appeal dismissed.