KING v. KOLONDA

066-NLR-NLR-V-05-KING-v.-KOLONDA.pdf


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KING v. KOLONDA.
D. C., Kurunegala, 2,652.
Attorney-General—Indictment presented by him to DistrictCourt—Duty of
District Courts in regard to such indictments—Culpable homicide—Grievous hurt.—Intention of accused.
Lawrie, A.C.J.—UndertheCourts Ordinance andtheCriminal
Procedure Code, it is the duty of the Attorney-General to decide onwhat charges and in what Court an accused shall be tried. If he errs,it is an error which a District Judge cannot correct. It , is his duty tohear all the available evidence and give his verdict of conviction oracquittal according to law. He cannot acquit the accused withouthearing the evidence for the prosecution.
A man who causes the death of another is not necessarily guilty ofculpable homicide. It maybethat, though he intendedonlyto cause
hurt, such hurt may, from causes beyond his control or knowledge,become grievous and mortal.
The extent of his guilt must be determined by his intention when hestruck the blow, and not by its subsequent and possibly unforeseeneffects.
Moncbeiff. J.—In order to make out a charge of culpable homicide[against a man who caused hurt to a person suffering, from a diseasedspleen which was rupturedbysuch assault], it is necessaryto prove
that the accused knew that the deceased's spleen was diseased.
A verdict of guilty of grievous hurt is receivable, although there is acharge ofculpablehomicide against theaccused,and a District Judge
should not acquit him of grievous' hurt because in his opinion the chargeshould have been one of culpable homicide.
Bonser,C.J.—Many serious offencesincludea number of minor
. offences. If a person guilty of murder were indicted in the DistrictCourt for grievous hurt, it is the 'duty of> that Court to try that chargeand give his verdict, notwithstanding he was of opinion that the facts inthe case made out a charge of wilful murder which he had no 'jurisdictionto try.
If sucha casecame before a Courtcompetentto try a charge of
murder, it would be the duty of the Court to amend the indictment inaccordance with the facts proved. But the District Judge, having nopower toamendthe indictment, mustfind theman guilty or not
guilty of the offence laid in the indictment.
T
EN men were indicted in this case for voluntarily causinggrievous hurt to one Herathamy on the 24th January, 1901.
On the trial day, Ran Menika gave evidence ;of the assault on herhusband Herathamy as follows: “They seized him by the hands“ and by the hair. They beat hiim and knocked him. My husband“ seemed. lifeless- It was near dawn. The accused then dragged“ him from his room over the stile to the other side of the fence.
“ Shortly afterwards morning dawned. A little later I went and“ found mv husband lying dead on the cart road. ”
Without hearing further evidence, the District Judge (Mr. J. D.Mason) called upon the counsel for the prosecutiou “ to justify
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“the indictment for causing grievous hurt. The hurt caused was“ not grievous tout mortal, and therefore the case falls under section“ 293, explanation 1. The accused were guilty of causing death to“ Herathamy. ”
The medical officer’s evidence given before the Police Magistratewas referred to by the District Judge, which was to theeffect that the deceased had no external wounds, and that theslight injuries which appeared externally were not sufficient tocause death in the case of a healthy man. There was a contusionon the left side which might have been caused by a kick. It wasdirectly over the spleen, which was very much enlarged, andcovered the whole of the left side. It was ruptured, and the mandied of haemorrhage. It was most probable that the blow whichcaused the contusion on the left side ruptured the spleen.
After hearing counsel the District Judge acquitted the accused,on the ground that the accused should not have been indicted forgrievous hurt under section 316, but under section 293, whichexplains that a person who cause bodily injury to another whois labouring under disorder, disease. &c., and thereby acceleratesthe death of that other, shall be deemed to have caused his death.
The Attorney-General appeared before the Supreme Court on10th July, .1901, and moved to revise the order of acquittal madeby the District Judge.
Layard, A. G.—The offence cannot be regarded as culpablehomicide. The man who kicked the ‘deceased is not proved tohave known that the deceased had an enlarged spleen, or thathe was kicking over the region of the spleen, or that his kick waslikely to cause his death. The indictment therefore charged himwith the lesser offence of grievous hurt. The District Judgeought to have proceeded with the case and heard all the availableevidence instead of abruptly acquitting the accused. He admittedthe indictment, and it was not open to him to question it. Ha-miv. Appuhamy, 3 N. L. R. 101. The Attorney-General had directedthe Police Magistrate to commit the accused on a charge of grievoushurt, and the District Judge had no power to inquire into thevalidity of the indictment. It was held by Burnside, C.J.,-inQueen v. Kolandavel, that where the indictment is good on theface of it, the District Judge had no power to inquire into thevalidity of the commitment (1 S. C. R. 198). And in Queen v.Martino Perera, it was held that a District Court is bound to tryand determine a case where the accused has j been duly committedon charges triable by it, notwithstanding that the evidence disclosedalso a higher offence beyond its jurisdiction (3 N. L. R. 43). InIndia cases of death from injury to diseased spleen have been
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treated as simple hurt (Empress v. Randhir Singh, l. L. R.Allahabad 3, p. 597; Empress v. Fox, 2 ibid., p. 253). If the Courtbelievesithasno jurisdiction,its dutywasto discharge
the accused, but not to acquit him.
Cur. adv. suit..
15th July, 1901. Lawrie, A.C.J.—
1 amoftheopinion that theacquittalof theaccused Was
premature, pronounced before the Court had heard all theevidence, especially the evidence of the doctor; I am also of theopinion that the reasons given do not. warrant the acquittal.
A man who by his act causes the death of another is notnecessarily guilty of culpable homicide. His intention is ah.important part of the issue to be tried. It may be that, thoughhe intended only to hurt, the hurt from causes beyond hisknowledgeandcontrol, becamegrievous,andfrom grievous
becamemortal.His guilt mustbe measured byhis intention
when he struck, rather than by the after, and possibly unforeseeneffects of the blow. No doubt every man is presumed to intendto do what he actually did, and on him who by his violencecauses death lies the heavy presumption that he intended tokill, but it is a presumption which can be rebutted. Here theAttorney-General, exercising the responsible duties of his office,decided that these accused intended to do no more than causegrievous hurt; I think that the District Judge would have donewell to try that charge, and to have convicted or acquitted them.
•In sending this ca6e back for new trial on the indictment, I donot venture to anticipate, or to interfere with, the verdict whichthe judge will in the end pronounce. In this, as in all cases, heis bound to acquit if the evidence does- not support the charge ;he is bound to convict if the evidence be sufficient. '
In my opinion, under the Courts Ordinance and the CriminalProcedure Code, District Judges must rely on the Attorney-General. On him is laid the burden of deciding on what chargesand in what Court an accused shall be tried. If he errs, it is anerror which the District Judge is powerless to correct.
District Courts do well to try patiently and carefully all thecases .brought before them, on indictments duly signed andpresented. In" this case I do not know whether the accusedshould have been put on his trial before a jury for murder orculpable homicide not amounting to murder. I presume that theAttorney-General did right in deciding that a charge of grievoushurt was all that could be laid against him.
The District Judge will renew the trial, and will give his-,verdict of acquittal or conviction according to law.
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Moncreiff, P.J.—
I think the judge was mistaken. It may be his duty to desistfrom trying a case which plainly appears to be beyond his juris-diction; but in such a case it may not be neoessary for him toacquit the accused.
A verdict of guilty of grievous hurt is receivable, although theaccused is charged with culpable homicide; it was therefore quiteunnecessary for the judge to acquit the accused of grievous hurt,because in' his – opinion the charge' should have been one ofculpable homicide. .
The judge was also somewhat hasty in assuming that theevidence pointed to the offence of culpable homicide. Thedeceased died of a ruptured spleen which was diseased.' In orderto make out a charge of murder it is necessary that the accusedmust have known that the spleen was diseased. A charge ofculpable homicide involves proof of guilty intention or know-ledge. If the judge had trusted, as he might have to thediscretion of the Attorney-General, and waited until he heardthe evidence, he might have learned that there was no evidenceshowing that the accused knew that the deceased’s spleen wasdiseased; and that there was evidence showing that but for thedisease the spleen would not have been ruptured. He mighthave found that there was no proof of that intention or knowledgewhich is essential to support a charge of culpable homicide. Iagree that the judgment of acquittal should be set aside, and thatthe accused should be retried upon the charge preferred againstthem.
On the case being remitted to the Court below, the DistrictJudge heard the case with assessors, and at the conclusion of thetrial he recorded that the Assessors Seneviratne and Pererabelieved the evidence against the third, fourth, fifth, and ninthaccused, and that Mr. Assessor Siegertsz believed the evidenceagainst these five men, and also that the second, sixth, seventh,and eighth accused aided and abetted the offence. He himselfwas of opinion that the evidence adduced did not prove thatthe accused were guilty of voluntarily causing grievous hurt, butthat they should be tried for culpable homicide. “ Having cometo this conclusion,” he said, “ I follow the procedure indicated“ by Mr. Justice Moncreiff, and I decline to proceed further on the" ground of want of jurisdiction.”
The Attorney-General appealed. The case came on for argu-ment on 2nd December. 1901.
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'Walter Pereira,, Acting 8.-G-, for appellant.—The DistrictJudge is wrong in holding that a hurt is not grievous becauseit is mortal. If' death results directly from hurt, it shows that itendangered life, and is therefore grievous according to the Code.The circumstances of this case as proved do not amount toculpable homicide. As the charge appearing in the indictmentwas one which the District Court had jurisdiction to try, andwhich this Court by its order of 20th April last directed it to try,he was bound at the conclusion of the trial to acquit the accusedor to convict them. The case should be remitted to him for anorder of conviction or acquittal under his hand, if not for a newtrial.
2nd December, 1901. Bokser, C.J.—
This is an appeal of a curious nature. It is not an appeal againsta conviction or against an acquittal, but It is an appeal by theAttorney-General against an order of the District Judge, who, intrying the case, after hearing evidence, declined to proceed furtherwith the trial on the ground that he had no jurisdiction. Thetrial cannot be resumed and concluded, because I am told theDistrict Judge has been removed to another Court, and the onlyorder that can be made by this Court is, that the case be sent backto the District Court for a new trial. Strictly speaking, it is notnecessary to add anything to this order, because it is obvious thata trial once begun must be concluded in the ordinary way, eitherby’ a verdict of acquittal or by a verdict of conviction, or, if a pre-vious conviction or acquittal is pleaded, by a. finding on such issue.But I think it is desirable that I should say a few words as to thereason of the District Judge for not proceeding with the trial. Itappears that in the course of an assault committed-by the respon-dent and other persons upon a man called Herathami, Herathamireceived such injuries that he died shortly afterwards. There isevidence that he received a kick from the prisoner on the leftside, and the medical evidence showed that there was the mark ofa kiok, and that under the bruise the spleen was ruptured, and thata ruptured spleen was the cause of the man’s death. The spleenalso, according to medical evidence, was diseased. It appears,moreover, that there was no evidence that the. prisoner, when hegave the kick, knew that the spleen of the deceased was diseased.The Attorney-General, in his discretion, framed an indictmentcharging the accused with grievous hurt—a charge within thejurisdiction of a District Court. The District Judge, after hearingevidence, said, that, as a matter of law, the offence amounted toculpable homicide, and that, inasmuch as he had no power to try,
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a case of culpable homicide, be could not proceed with the trial. 1901.Now, in this, I think -he was wrong. Most serious offences includea number of minor offences. Take a case of deliberate murder December g,by stabbing. When the murderer raises his knife against hisvictim, he is guilty of assault; when the knife reaches the bodyof the victim, the offences of criminal force and of voluntarilycausing hurt are at once committed. As soon as the knife pene-trates further and inflicts an injury endangering life, the offenceof grievous hurt is committed, and as soon as the man dies theoffence of murder is completed; and so it does not follow, as theDistrict Judge seemed to think, that the greater offence excludesthe minor. On the contrary, the greater offence includes theminor. If a man guilty of murder were indicted in the DistrictCourt for grievous hurt, it seems to me that it would be the dutyof the judge to try the charge of grievous hurt, and, if he foundthe facts amounted to grievous hurt, to give his verdict accordingly,notwithstanding he was of opinion that the facts in the case madeout a charge of wilful murder, which he had no jurisdiction totry. If such a case came before a Court competent to try a chargeof murder it would be the duty of the Court to amend the indict-ment so as to make it apply to a case of culpable homicide, whichhe thought was the offence of which the accused was guilty.
That being so, it was his duty to proceed with the trial, and,according to the evidence, to find the man guiliy or not guiltyof the offence laid in the indictment. It would seem that the-verdict of the District Judge on- this charge – would not be ananswer to an indictment in the Supreme Court for culpablehomicide not amounting to murder (see section 330, sub-section.
of the Criminal Procedure Code). The order will be that therecord be remitted to the District Court of Kurunegala that therespondent may be tried on the charge preferred against him bythe Attorney-General.
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r. N. A 68216 (1/47)