H. X. G. FERNANDO, C-.J.—Chcrlis r. The Queen
[COUKT OF ClUMIXAL APPEAL]
Present: K. N. G. Fernando, C.J. (President), T. S. Fernando, J.,
and Tambiah, J.
K. A. CHAR LIS, Appellant-, and THE QUEEN, RespondentC. C. A. Appeal No. 159 of 19C7, with Application No. 207S. C.2S}67—3I. G. Malara, 32323
Penal Code—Scope and purpose of s. '201—Distinction between murder and culpablehomicide not amounting to murder—Murderous intention—Misdirection.
Wliero A strikes 5£ with (ho intention of causing bodily injury, and A dies ineonsequenco of (ho blow, although (ho blow is not sufticient in tho ordinarycourso of naturo to causo tho doath of a person in a sound state of hoalth, itwould bo a misdirection to tell tho jury that, according to tho provisions of thosecond paragraph of section 294 of tho Penal Code, A is liablo to bo convicted ofmurder. A c-aso which does not fall within tho third limb of section 294 of thePenal Code is not one of murder, unless tho offender actually knows of a ratherspecial peculiarity or defect suffered by tho injured person and knows also (hatfor that reason tho injury caused to him is likely to cause his death.
Appeal against a- conviction at a trial before the Supreme Court.
Colvin R. de Silva, with Nihal Jayawickratna, S. S. Wijeratne and(assigned) A. 31. Coomarasiuamy, for the accused-appellant.
R. de Fonseka, Senior Crown Counsel, for the Crown.
Cur. adv. vult.
January 30, 196S. II. N. G. Febnando, C.J.—
The accused in this case was convicted of murder by the unanimousverdict of the Jury and sentenced to death. But after hearing argumentwe made order setting aside that verdict and sentence and'substitutingtherefor a verdict of culpable homicide not amounting to murder and asentence of seven j ears rigorous imprisonment.
Tho case for the prosecution was that the deceased person, onoWceraman, was wheeling a bicycle along the road followed by his son on'foot, and that they met the accused who was standing at a road junctionwith a sword in hand. The accused questioned the deceased and askedhim “ wliero are you going ? ”, and when tho deceased gave an answerto this question the accused tried to strike the deceased with the sword
1* — K 3231—2255 (1/71)
H. N. G. FERNANDO, C-J.—Charlis v. The Queen
but apparently missed, and the sword fell out of the accused's hand.Thereupon the accused pulled out a knife from his waist, and to uso theson’s words “ he pressed the knife into the deceased’s abdomen
The death of the deceased did not occur immediately, nor even soonafter he received this injury. In fact he was operated on several timesand ho died onlj- about five weeks later. Indeed Counsel for the defencesuggested to us that it was possible to argue that tho medical evidencefell short of strict proof that the stabbing with the knife was the actualcause of death. But in the circumstances of the ease it was notnecessary to pursue this point further.
We have referred to the history subsequent to the infliction of theinjury, because the unusually long interval between the infliction of theinjury and the actual death appears to have led tho learned trial judgehimself to entertain some doubts as to the accused’s state of mind whenhe used his knife on the deceased man.
In his summing up the learned Judge directed the Jury that themurderous intention requisite to found a conviction of murder is one ofthree intentions, the first two of which are respectively the intention ofcausing death, and the intention of causing bodily injury, the injurythus intended being sufficient in the ordinary course of nature to causedeath. The two states of mind thus mentioned are those referred to inthe first and the third paragraphs of s. 294 of the Penal Code. Thereafterthe learned Judge referred to the third kind of murderous intention inthe following direction :—
“ What is the third kind of intention ? It is also a murderousintention which is somewhat similar to what I have just told you,that is, the act of intention of causing bodily injury and the bodilyinjury is of such a nature that the offender knows it to be likely tocause death to the person that injury is inflicted, that is also amurderous intention. Let me repeat that third one. It is also a. murderous intention to intend to cause bodily injury and the bodilyinjury is such that the offender knows it likely to cause the death ofthat person. It says as tho offender knows. What the law needsis not one’s personal knowledge but the knowledge of a reasonableman.”
At a later stage another similar reference was made to the samematter :—
" Well, look at the third kind of murderous intention. It is if theact is done with the intention of causing bodily injury which bodilyinjury, any reasonable person will know, is likely to cause the deathof that person. If 3 0U intend to plunge a knife into the stomach ofanother man, ask yourselves, would or would not any reasonable mananticipate that by that act he is very likely to cause the death of thatperson. Would or would lie not ?- If j our answer is, “ Yes ”, thenagain you have the murderous intention present.”
H. X. G. FERNANDO, C.JCharlie v. The Queen
It is dear from the language of these directions that the learned Judgeintended to explain to the Jury the scope and purpose of the secondparagraph cf s. 294. viz., if it is done with the intention of causing suchbodily injury as the offender knows to be likely to cause the death of theperson to whom the harm is caused : we are satisfied that this explanationof the law was gravely incorrect. The second illustration lettered (6)which follows almost immediately after the statutory provision in s. 294is clearly intended to explain the meaning of the second limb of s. 294.That illustration contemplates a case where A strikes Z with the intentionof causing bodily injury, and Z dies in consequence of the blow, althoughthe blow is not sufficient in the ordinary course of nature to cause thedeath of a person in a sound state- of health. The illustration thereafterdistinguishes between two alternative situations :—
If A knows that Z is labouring under some disease because of which
a blow' is likely to cause his death, then A is guilty of murderdespite' the fact that the case is not one covered by the thirdlimb of s. 294.
If A does not know that Z is suffering from such a disease, then lie
is not guilty of murder.
Cases to which the second limb of s. 294 is applicable are quite rareand the instance which does sometimes occur is that in which a personhaving an enlarged spleen dies in consequence of a blow which would notordinarily result in the death of a healthy person. Such an instance isnot covered by the third limb of s. 294 because the blow' is not sufficientin the ordinary course of nature to cause death. Nevertheless the actualknowledge possessed by the giver of the blow that it is likely3- to cause thedeath of the particular person attacked converts a ease, which otherwisewould be only culpable homicide, into one of murder.
The directions given by; the learned trial Judge in this case were to theeffect that the test imposed in the second limb of s. 294 is objective andnot subjective ; but we hold that the true test is purely subjective, andthat a case which does not fall within the third limb of s. 294 is not one ofmurder, unless the offender actually knows of a rather special peculiarityor defect suffered by the injured person and knows also that for thatreason the injury caused to him is likely to cause his death.
There is no question but that s. 293 of the Code defines the genusculpable homicide, and that s. 294 defines the species murder. Section293 specifics the three states of mind each one of which will make an actof causing death the-offence of culpable homicide :—
(а)the intention of causing death,
(б)the intention of causing such bodily injury as is likely to cause
(c) the knowledge of the likelihood of causing death.
MaUban Biscuits Manufactories Ltd. v. Subramaniam
Every offence of culpable homicide, of course, is not also an offenceof murder ; and s. 291 is intended to declare which offences falling unders. 293 will also be offences of murder. Thus the first limb of s. 291 declaresthat an offence of culpable homicide committed with the intention whichI have specified in paragraph (a) above is murder ; and s. 291 declaresin its third limb that an offence of culpable homicide committed withthe intention I have specified in paragraph (b) is also murder.
If then anything in s. 291 has the further effect that every offenceof culpable homicide committed with the knowledge which I have specifiedin paragraph (c) above is also murder, it would follow that every singleoffence of culpable homicide will also be an offence of murder. Toconstrue s. 294 in such a manner would be to obliterate the distinctionbetween culpable homicide and murder. In our opinion the directionsof the learned trial Judge concerning what he referred as the “ third kindof murderous intention ”, was substantially a direction that the elementof knowledge mentioned in s. 293 is not different from that which ismentioned in the second limb of s. 291. With respect we must hold thatdirection to be contrary to law.
Having regard to the directions which were given to the Jury, wewere unable at the stage of appeal to exclude the possibility that theJury returned a verdict of murder in this case in pursuance of theincorrect direction. For these reasons we altered that verdict to oneof culpable homicide.
K. A. CHARLIS, Applicant, and THE QUEEN, Respondent