GUNADASA ALIAS APPUWA AND ANOTHER v. ATTORNEY-GENERAL

031-SLLR-SLLR-1999-V-1-GUNADASA-ALIAS-APPUWA-AND-ANOTHER-v.-ATTORNEY-GENERAL.pdf


CA
Gunadasa alias Appuwa and Another v.
Attorney-General
253
GUNADASA ALIAS APPUWA AND ANOTHER
v.ATTORNEY-GENERAL
COURT OF APPEALJAYASURIYA, J„
KULATILLEKE, J.
C.A. NO. 35-36/96
H.C. HAMBANTOTA NO. 29/95
AUGUST 17 & 18, 1998.
Criminal Law – Common intention – Similar intention – Murder – Causation -Attempted culpable homicide not amounting to murder – Section 294 Clause1 – Explanation 1 to section 293 of the Penal Code – Dying declaration.
Held:
The 1st accused caused two injuries to the head of the deceased with a kattyand when the deceased fell the 2nd accused with a sword cut the leg of thedeceased and inflicted on him a mortal wound on the rear of thechest saying he would finish off the deceased. The trial judge trying the casewithout a jury did not address the question of common intention. The facts supportthe inference of only a similar intention.
The inference of common intention must be an irresistible and necessary inferencefrom which there is no escape. A distinction must necessarily be drawnbetween the concepts of similar and same intention and the concept of commonintention. Where, as here, the two accused acted in furtherance of a similarintention the liability of each accused would rest solely on the particularacts committed by him and one accused would not be constructively be liablefor the acts and consequences traceable to the other accused.
In the post-mortem report enumerating the injuries the doctor reported thatdeath was due to cardio-respiratory failure resulting from shock and haemorrhagedue to the damage caused to the internal organs which led to profuse bleeding.The doctor had not stated that death was due to any injuries to the skull or brainnor was evidence elicited on this point.
There was very great antecedent probability as opposed to a mere likelihoodof the injury to the rear of the chest causing the death of the injured ifleft to nature and there was no resort to medical treatment.
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The 2nd accused had the dear intention to cause the death of the deceasedand his case comes within the ambit of dause 1 to section 294 of the PenalCode. If at the time of death the wound inflicted by the 2nd accused is still anoperating cause and a substantial cause then death can properiy be said to bethe result of that wound albeit some other cause of death is also operating.This is the principle of causation. Explanation 1 to section 293 of the Penal Codegives effect to this principle which is founded on sound reasoning and commonsense. Thus when the second accused caused bodily injury to the injured inthis case who was labouring under a disorder and bodily injury inflicted by thefirst accused and by that process he, thereby accelerated the death of thedeceased, he shall be deemed in law to have caused the death of the injuredand the requirement of causation is established beyond doubt.
At the time the deceased was still alive though possibly mortally injured ifthe accused inflicts an injury which at least short-terms the period of his life thelaw makes him guilty of murder.
The dying declaration of the deceased is corroborated by the evidence of a witnessand consistent with the oral evidence. Hence, the judgment cannot be flawedfor the trial judge's use of the dying declaration.
No evidence was illicited astowhether the injuriescaused bythe1staccused
to thehead were sufficientinthe ordinary courseof naturetocausedeath.
The benefit of the doubt on this point has to be resolved in favour of the 1staccused. He is, therefore, guilty of attempted culpable homicide not amountingto murder.
Cases referred to :
King v. Assappu – 50 NLR 324.
Wilson Silva v. The Queen – 76 NLR 414, 426.
Rex v. Mubila – (1956) 1 SALR 31.
Boiler Inspector and Insurance Company of Canada v. Sherwin Williams
Companyof Canada Ltd. -(1951)AC 319,339.
Weld-Blundel v. Stephens -(1920)AC 956,986.
Rex v. Smith – (1959)2 All ER 193, 197.
Rex v. J. C. Jorden-(1956) 50 Cr. App.Rep. 152.
R. v. Mgxwiti – (1954) 1 SALR 370.
Thabo Meli v. Queen – (1954) 1 WLR 228.
Regina v.Mathias AnthonyPillai -69 NLR34.
Queen v.Somasundaram -76 NLR 10.
Weerappan v. King – 76 NLR 109.
Republic v. Sheila Sinharage – (1985) 1 Sri LR 1.
Soates – (1858) 50 NC 409.
CA
Gunadasa alias Appuwa and Another v.
Attorney-General (Jayasuriya, J.)
255
APPEAL from the High Court of Hambantota.
Ranjit Abeysuriya, PC with Ms. Priyadarshani Dias and Ms. M. Thalgodapitiyafor appellant.
Buwaneka Aluwihare, SSC for respondent.
Cur. adv. vult.
September 15, 1998.
JAYASURIYA, J.
The first and second accused-appellants were charged before theHigh Court of Hambantota on an indictment which alleged thatthey had on the 16th of December, 1985, at Bengamukande committedthe offence of murder in respect of Banagalage David acting infurtherance of a murderous common intention, which was an offencepunishable in terms of section 296 of the Penal Code read withsection 32 of the Penal Code. The learned High Court Judgebefore whom the trial was held without a jury, has not referred tothe principle of liability – common intention – in his judgment andneither has he collated and referred to any facts established by theprosecution manifesting that the two accused were acting infurtherance of a common intention. In the course of the argument,learned senior state counsel made a futile attempt to refer toevidence in the case which he contended was sufficient evidenceof common intention. However, we are unable to accept his submissionthat the evidence placed by the prosecution established a casethat the two accused were actuated by a common intention on account.of the insufficiency of such evidence. In this context we emphasizethe trite proposition of law which has been laid down in acursus curiae that the inference of common intention must be anirresistible and necessary inference from which there is no escapeand that a distinction has necessarily to be drawn betweenthe concepts of similar and same intention and the concept of commonintention. The Privy Council has emphasized that the distinction andpartition which divides these concepts is very thin and narrow but,
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nevertheless, since the consequences arising from the applicationof these concepts are of a far-reaching character, the inference ofcommon intention should not be lightly drawn unless it is a compellingand necessary inference from which there is no escape. The factsestablished by the prosecution in the particular case underconsideration, on the contrary, pointed to the conclusion that thetwo accused were acting in furtherance of a similar intention and nota common intention. In view of our finding on this point, the liabilityof each accused would rest solely on the particular acts committedby him and one accused would not be constructively liable for theacts and consequences traceable to the other accused. Even thoughthe indictment presented a charge of joint liability of acting infurtherance of a common intention, we sitting in appeal andinvestigating into the merits of the appeals are required to look intothe case of each accused separately and to analyse separately thecase presented against each accused in relation to the separate actscommitted by each of them. Vide the observations in this regard laiddown by Justice Dias in King v. Assappi/’>; Wilson Silva v. Queerf*.The evidence which was led by the prosecution in regard to the allegedmurderous assault on the deceased Banagalage David which was on16th December, 1985, was of a clear, cogent and overwhelmingnature. In the course of the evidence, prosecution witness Kusumawathieexplicitly and clearly stated that Gunadasa the first accused, who wasalso known as Appuwa, used a Katty to inflict injuries on the headof the deceased and after the deceased was felled to the ground,the second accused cut him with a sword on his back and on hisright leg. Thus, there is clear, cogent and intelligible evidence thatthe first accused inflicted the injuries on the head of the deceasedwhich are described as injuries Nos. 1 and 2, whereas the secondaccused Banagalage Ariyaratne alias Ukkuwa inflicted the cut injurieson the back and leg of the deceased which have been described asinjuries Nos. 3 and 4 in the post-mortem report. The post-mortemwas performed by Dr. Nalin Vithane on 17.12.85 at 3 pm. Thepost-mortem report has been produced marked P4 and an assessmenthas been made in regard to the time of death, as having takenplace on 16.12.85 at 4.30 pm. It is in evidence that the allegedmurderous attack on the deceased and the incident took placeon 16.12.85 at about 12 noon.
CA
Gunadasa alias Appuwa and Another v.
Attorney-General (Jayasuriya, J.)
257
Or. Vithana in his post-mortem report has recorded that the deathof the deceased was due to cardio-respiratory failure resulting fromshock and haemorrhage. He has further stated that shockand haemorrhage was due to the damage caused to the internalorgans which led to profuse bleeding. It is to be emphasized andstressed that this doctor has not stated anywhere in his report thatdeath was due to any injuries to the skull or brain. In his report markedP4, Dr. Nalin Vithana has desribed the four injuries in detail.A reproduction of his description is rendered necessary in view ofthe contentions raised on behalf of the accused-appellants at thehearing of this appeal:
A sharp cut injury on the scalp about 2" above the right ear lobe;the underlying bone was also sliced. This was 1" in depth and5“ in length.
A sharp and deep cut injury on the scalp about 3" above theleft ear lobe; the underlying bone appeared to be cut and thebrain was exposed through the wound; the scalp injury was 3“in length and the process of bleeding into the brain was detected.
Cut injury on the right leg about 3“ above the ankle joint. Thiswas a sharp cutting injury where the tibia and fibula were cutand the leg was connected to the body only by the mere skin.
A deep cut on the rear of the chest which commenced in themidline at the midpoint of the scapula angles and extendeddownwards towards the right side upto the right iliac crest. Thiswas a deep cut and as a result the liver and the right kidneywith its ureter and the large and small intestines were damagedat several points and the length of the wound was about 11".
We have taken into consideration the effect of the injuries causedto the head specified at page 5 of the post-mortem report certifiedby Dr. Vithana. The evidence elicited is to the effect that thefirst accused inflicted the injuries on the deceased with a Katty initiallyand, thereafter, when the deceased was felled to the ground, thesecond accused inflicted injuries Nos. 3 and 4 using the sword in
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his hand and exerting considerable force to achieve his object. Inaddition to the aforesaid medical officer who gave evidence, theprosecution called Professor Chandrasiri Niriella who held the postof Professor of Forensic Medicine and Medical Jurisprudence at theMedical Faculty of the Ruhunu University in Galle. In the course ofhis evidence, (recorded at page 133), in relation to injury No. 4 aslisted in the post-mortem report marked P4, Prof. Niriella has describedthe injuries as follows:
egeS 8gee o^zstezsf (©bSca) fjca zsOaecasfo^steaf iSsoznGa.
Oca z3jg® qjOoecaef. cpzst©aG ts>j8 £3scazs>Oa.Gt$©QO z»j8 zSacaznGa.
©©gtteoGcasf Gases1 GzgoogsS gap e©s> cam znae z»j8 SscaznOo.®e> SGOjsef szaaOozgzsfzs>j8 SsozoOa. tgOaSGGjgatzs>j8e©ad
SeSznOa.Oj. 2Orascasrfe*8^ szaaO eozsfg)zaQeOzrt<3®©zgOae
toad SgsOzrtznO ggOzsf. t^Goc <?°za 1, 2, 3 ®d«6o 8gS®0 gG-«fiaoGca<pg8. ®d«5caO <xi cdjS® too zsSozno scdzg S <pja. OtgeagG ts>j8s©zrfgrazst egcazoOa.<fof®aOtajSeoad SscaaGa. <f»za 3, 4t?Oac SgO
ffjtsfszsf OjpQO <pzrtz» cfGdOaGa. s®ae®ci ax; zgOae 8®af OabOasSea^sozrf 0z»ja.<p»za 4zgGaeca ®aa cajgdjz^Gaecaaf,<f»ta3 toa
4 «pSa> seta s<v ©e*» z$Oae ®8-
Under further cross-examination, Prof. Niriella has very distinctlyand explicitly stated that after receiving injuries Nos. 3 and 4 whichinduced considerable bleeding and haemorrhage, the injured wouldhave lived only for half an hour to one hour at most and that themaximum period after receiving injuries Nos. 3 and 4, the injured wouldhave lived, would be one hour and thereafter his death would bebrought about due to the intense bleeding and haemorrhage.This evidence has been elicited from the Professor by learned counselwho appeared for the accused at the trial. Having regard to the natureof injuries manifested in the post-mortem report marked P4 and theaforesaid clear evidence given by Prof. Niriella, it is manifestlyestablished and proved that there was a very great antecedent probabilityas opposed to mere likelihood of injuries 3 and 4 causing the deathof the injured if left to nature and there was no resort to medicaltreatment Rex v. MubilaP> even the resort to medical treatment couldnot have averted his death due to the intense bleeding and haem-orrhage resulting from injuries to the kidney, the liver, intestines and
CA
Gunadasa alias Appuwa and Another v.
Attorney-General (Jayasuriya, J.)
259
the ureter and the death of the injured would have necessarily takenplace within a space of one hour. Vide the observations of Lord Wrightthat “potency of the Act and not chronology is the test"-1950 13Modern Law Review P3. In regard to the aforesaid evidence of Prof.Niriella, learned counsel for the appellant relied on the contents ofthe post-mortem report P4 and contended that the incident took placeon 16.12.85 at 12 noon, whereas the time of death, as disclosed inthe document P4, is at 4.30 pm on 16.12.85. In regard to thiscontention it must be stressed and emphasized'that the post-mortemwas performed on 17.12.85 at 3 pm by Dr. Nalin Vithana and in thereport he has merely given the approximate assessment of the timeof death.
It has been elicited as part of the prosecution evidence thatafter the deceased was felled to the ground, the second accused-appellant had cut his leg with the sword and, thereafter inflictedthe mortal injuries at the rear of his chest. Before cutting thedeceased's leg he has uttered this 'statement:
6® (gOdoisI cade 43G csate> ®zn ^cse jageOaf ©jtojSGa. O®SHSJCO-
Vide the evidence given by witness Banagalage Kusumawathieat page 35 of the record, which statement manifests that the secondaccused-appellant had the clear intention to cause the death of deceasedand the evidence against the second accused-appellant brings his caseeven within the ambit of clause 1 to section 294 of the Penal Code.
In this state of the medical evidence it was strenuously arguedby learned President's Counsel appearing for the accused-appellantsthat causation in relation to the result was not established beyondreasonable doubt; in regard to the acts of Cutting with a swordestablished against the second accused-appellant. He specificallyreferred the court to injuries Nos. 1 and 2 listed in P4 which werecaused by first accused and urged that as a result of these injuries,the skull was fractured, parts of the brain were seen and there wassome slight injury to the brain. In the circumstances, he contendedstrenuously that the second accused by his acts cannot rationally and
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logically be said to have caused the death of the deceased and thatthe ingredient of causation had not been established againstthe second accused-appellant beyond reasonable doubt.
We are unabie to agree with the learned President's Counsel inregard to his contention founded on the requirement of causation, bothon principle and on reason. Vide Boiler Inspector and InsuranceCompany of Canada v. Sherwin Williams Company of Canada Ltd.mWeld-Blundel v. Stephensi*51 per Lord Surne. Initially, we would advertlearned President's Counsel's attention to the explanation No. 1 tosection 293 of the Penal Code, explanation No. 1 sets out that “aperson who causes bodily injury to another who is labouring undera disorder disease or bodily infirmity and thereby accelerates the deathof that other, shall be deemed to have caused his death". The principleof law relating to causation as laid down in explanation 1 militatesagainst the adoption of learned President Counsel's submission oncausation. Further, Prof. H. L A. Hart and Prof. A. M. Honore in theirlearned article on "Causation in the Law" 1956 72 LQR 58 and aseries of English and South African decisions lay down principles andcogent reasoning which would induce us to reject the contention oflearned President's Counsel as wholly unsustainable and devoid ofall merit. Expressing succinctly principles of law on Causation, LordParker in Rex v. Smithf® remarked thus: “It seems to the Court thatif at the time of death the wound inflicted by the accused is still anoperating cause and a substantial cause then death can properly besaid to be the result of that wound albeit some other cause of deathis also operating. Only if it can be said that the original wound ismerely the setting in which another cause operates, can it be saidthat death does not result from that wound. Putting it in another way,only if the second cause is so overwhelming as to make the orginalwound merely part of the history can it be said that death does notflow from that wound." Even in the decision in Rex v. J. C. JorderFJustice Hallett observed thus in regard to normal treatment which wasalleged to effect a breach in the line of causation – "We are disposedto accept it as the law that death resulting from any normal treatmentemployed to deal with a felonious injury may be regarded as beingcaused by the felonious injury". Explanation 1 to section 293 of thePenal Code gives effect to this principle which is founded on sound
CA
Cunadasa alias Appuwa and Another v.
Attorney-General (Jayasuriya, J.)
261
reasoning and common sense. Vide dicta of Lord Sumner inWeld – Blundel v. Stephens (supra). Thus, when the second accusedcaused bodily injury to the injured in this case who was labouringunder a disorder and bodily injury inflicted by the first accused andby that process he, thereby, accelerated the death of the injured, heshall be deemed in law to have caused the death of the injured. Thisexplanation clearly manifests that though the injured was suffering andlabouring under a disorder and a bodily injury inflicted by the firstaccused, the injury inflicted by the second accused accelerated hisdeath and thereby the second accused is deemed to have causedhis death and the requirement of causation is established against himbeyond reasonable doubt. The rule embodied in explanation 1 isfounded on cogent reasoning and on sound principles. It finds supportin Stephen's Digest – Article 262, subsection (cO, where the learnedauthor states the principle thus: "A person is deemed to have com-mitted homicide although his action is not the immediate or not thesole cause of death, if by any act he hastens the death of a personsuffering under any disease or injury, which, apart from such act wouldhave caused death". Thus, this rule is consistent with the EnglishCriminal Law as outlined by Sir James Fitzgerald Stephen. Thisprinciple is also recognized in the Penal Codes which obtain in theAfrican legal system. The Penal Code of Tanganyka in section 203(d) sets out thus: “A person is deemed to have caused the deathof another person although his act is not the immediate or sole causeof death … if by any act or omission he hastens the death ofa person suffering under any disease or injury which, apart from suchact or omission would have caused death".
In the course of the argument, learned senior state counseldrew the attention of this Court to the decision in Rex v. MgxwitP1In this decision Justice Schreiner agreed with the conclusion reachedby Justice Greenberg and Justice de Beer for different reasons outlinedby him in his judgment. In the course of his judgment he dealt withcertain principles of law which in effect enshrine the Rule containedin explanation 1 to section 293 of the Sri Lanka Penal Code. JusticeSchreiner in this context remarked: "The appellant did inflict a stabwound on her (the deceased) while she was alive and so at leastshortened the period of her life, a contusion which on any view of
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the law would make him guilty, however, near to death she mightalready have been brought by other injuries'. Thereafter, His Lordshipreferred to the principles of ratification too in this context and observedthus: “I can see no objection, however, to accord in this narrow fieldrecognition to the principle of ratification – that whoever joins in amurderous assault upon a person must be taken to have ratifiedthe infliction of injuries which have already been inflicted, whether ornot in the result these turn out to be fatal either individually or takentogether".
Justice Schreiner in regard to the facts of that particular caseheld, as the accused-appellant had joined in an obviously murderousattack at the time when the deceased was still alive though possiblymortally injured that he was guilty of murder. Disagreeing with theother two judges he laid down the law in general terms as follows:"I consider the law to be that where an accused has joined in anassault which he knows to be aimed at the death of someone elsehis responsibility for the resulting death will depend on whether thevictim was alive at that time when the accused joined in the assaultand not on whether the victim had or had not at that stage receivedmortal injuries". His reasoning for such a conclusion appears atpage 382 of his judgment.
Prof. Hart and Prof. Honore in the learned article consider thefollowing situation – the two acts of two persons are contemporaneousand each act is adequate to give rise to the legally punishable harm.For example, where A & B simultaneously shoot at C, each shot beingsufficient to kill C; in the situation the authors conclude that thereis no doubt that both A & B are criminally liable for C's death andcausation is brought home against both A & B – Vide GranvilleWilliams. This appears to be the rule even though the penalised harmwould have happened equally If one of these accused had not acted.This is the rationale underlying the principle of causation. Vide thedecision of the Privy Council in Thebo Meli v. Queen.® For theaforesaid principles and reasons, we reject learned President'sCounsel's contention that causation has not been proved beyondreasonable doubt.
CA
Gunadasa alias Appuwa and Another v.
Attorney-General (Jayasuriya, J.)
263
The only other complaint and ground of appeal urged before usby learned President's Counsel was to the effect that though thetrial was before the High Court Judge without a jury, the learned HighCourt Judge had failed to give his mind specifically for the need forcaution before deciding to act upon the contents of the dyingdeclaration made by the deceased shortly before his death toDharmadasa, the deceased's brother. Learned counsel relied onthe decisions in Regina v. Mathias Anthony PillaP0) Queen v.Somasunderamfu); Weerappan v. King{'2)-, Republic v. SheilaSinharagd13). It must be emphasized that all the decisions cited bylearned counsel for the appellant relate to trials where dying decla-rations were admitted before juries. The trial in the particular caseunder consideration was before a trained and experienced judge andhe has taken special effort to consider carefully how far the otherfacts and surrounding circumstances proved in evidence might belooked upon to support the truth or otherwise of the contents of thedying depositions. Having given his mind prominently to this issue,he has arrived at the finding that the contents of the dying declarationdeposed to by witness Dharmadasa, has been corroborated by theevidence given by Kusumawathie and the contents of the dyingdeclaration are wholly consistent with the oral evidence given byKusumawathie, the main witness for the prosecution. Vide page 195of the judgment. Though the learned President's Counsel referred usto page 183 of the record, the passage in the judgment at page 183must be read in the light of the observations made by the learnedjudge at page 195 of the record. In the circumstances, we hold thereis no substantial merit in the only other contention urged on behalfof the accused-appellants. In the result, we affirm the finding, con-viction and sentence imposed by the learned High Court Judge ofHambantota on the second accused-appellant.
The case presented against the first accused-appellant assumesa different complexion, particularly as the learned State counsel whoappeared at the trial had failed to question both Dr. Nalin Vithaneand Prof. Niriella in regard to the probability of death resulting fromthe injuries inflicted by the first accused-appellant, namely, injuriesNos. 1 and 2, which are listed in the post-mortem report marked P4.The prosecution was required to invoke clause 3 of section 294
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to bring home a charge of murder against the first accused-appellantin regard to injuries Nos. 1 and 2 inflicted by him with the use ofa Katty. Learned State counsel who appeared at the trial had merelyput questions to Dr. Nalin Vithane and elicited the nature of the injuriesas described in the post-mortem report itself. There was a culpablefailure on his part to question the doctor in regard to his groundsand reasons for the conclusion that there was a very great antecedentprobability as opposed to a mere likelihood of death resultingfrom injuries Nos. 1 and 2. Not even the bare opinion of the medicalwitness has been elicited on this aspect. Thus, having regard to thepaucity of the evidence elicited from the medical witnesses, there isa doubt as to whether the injuries Nos. 1 and 2 inflicted by the firstaccused-appellant were sufficient in the ordinary course of nature tocause death. That doubt has necessarily to be resolved in favour ofthe first accused-appellant and we are induced to hold on the paucityof the evidence led that the injuries inflicted by him on the deceasedwere merely likely to cause death and therefore the offence that hehas committed is the offence of attempted culpable homicide notamounting to murder and in the process of committing this offencethe first accused had inflicted grave injuries on the deceased. In thecircumstances, we set aside the finding, conviction and sentenceimposed on the first accused-appellant and in substitution we holdthat he is guilty of attempted culpable homicide not amounting tomurder punishable under section 301 of the Penal Code and weproceed to convict the first accused-appellant of this offenceand sentence the first accused Banagalage Gunadasa to a termof imprisonment for six years.
Learned President's Counsel had drawn our attention to certaincogent observations made by Justice Weeramantry in the decisionin T. H. Wilson Silva v. The Queen (supra) Justice Weeramantryhaving decided to quash the convictions, then proceeded to considerwhether the Court should not proceed to convict the accused for theirindividual acts on the basis of the evidence of the eyewitnesses inthe case. His Lordship's observations were directed pointedly to thefact that the trial in that case was before a jury presided over bya single judge. His Lordship having given anxious consideration tothis issue remarked thus:
CA
Gunadasa alias Appuwa and Another v.
Attorney-General (Jayasuriya, J.)
265
"We reach the conclusion that the interests of justice viewedfrom the angle of both the prosecution and the defence would bestbe served if we left all these questions to the decision of a jury ata fresh trial. The defence would then have the benefit in theevent of the failure of the charges based on vicarious responsibility,of an evaluation by the Jury whose minds were specifically directedto this question, of the evidence relating to specifc acts by individualaccused … If indeed a jury after giving their due attention to thelegal principles applicable should find as the prosecution alleges, thatthere was an unlawful assembly with a common murderousobject or that the accused shared a common murderous intention,it would be less than just to the prosecution that conviction for simplehurt should be entered against the majority of the participants. We,therefore-consider that the course most consonent with justice in thiscase was to order that the accused-appellants be tried afresh uponthe same count before another jury." These observationshave emphasized that the trial in question was before a jury andtherefore an evaluation by the jury whose minds were specificallydirected to the issues of law raised and to the evidence relating tothe specific acts by individual accused, was desirable and thereforenecessary. These observations will not apply to the instant case asthe trial in the case was before a judge without a jury. This appealwas argued before two trained judges of the Court of Appeal whohave had considerable experience as presiding judges in the HighCourt and we are of the view that we are in a better position thana sole trial judge to apply the relevant principles of law to the evidencealready elicited relating to the specific acts committed by each of theaccused-appellants. We are of the considered view that ordering aretrial in such circumstances would merely add to the delays in theadministration of the law and would expose both accused-appellantsto the needless expenditure of additional sums of money at a retrial.The consideration which weighed with Justice Weeramantry wereweighty, having particular regard to the fact that the original trial wasbefore a jury. Those considerations have no relevance to the instantcase because the original trial was before a sole presiding judge andthe present appeal has been argued before two judges in the Courtof Appeal who have had considerable experience specially in murderprosecutions launched before the High Courts. In the circumstances,
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we are unable to accede to the request made by learned President'sCounsel not to arrive at a decision on the merits after consideringthe evidence relating to the specific acts committed by individualaccused but to order a retrial in the instant prosecution.
We have only convicted the first accused-appellant of an attemptto commit culpable homicide not amounting to murder following thedicta laid down in the American Case – Soa/es04* where the judgeof the American Court observed thus: "If one man inflicts a mortalwound by which the victim is lingering and then a second kills thedeceased by an independent act, we cannot imagine how the firstcan be said to have killed him without involving the absurdity of sayingthat the deceased was killed twice". The appeal of the second accused-appellant is dismissed. Appeal of the first accused-appellant is partlyallowed and a substituted finding, conviction and a term of impris-onment is imposed on the first accused in appeal.
KULATILLEKE, J. – I agree.
Conviction of 1st accused set aside. 1st accused convicted ofattempted culpable homicide not amounting to murder.
Appeal of 2nd accused dismissed.