039-NLR-NLR-V-54-MENDIS-et-al-Appellants-and-THE-QUEEN-Respondent.pdf
iMendis v. The Queen
177
[Court of Cbiminal Appeal]
1952 Present: Nagalingam S.P.J. (President), Gratiaen J. and Pulle J.MENDIS et al., Appellants, and THE QUEEN, RespondentAppeals Nos. 76-77 with Applications Nos. 116-117-S. C. 12—M.C. Bcdapitiya, 66,743
Charge of murder—Evidence of injury by club blow—Supervening toxaemia causingdeath—Criminal responsibility of accused—Extent of his criminal liability—“ Sufficient in the ordinary course of nature to cause death ”—Penal Code,s. 293, Explanation 2, and s. 294, Clause 3.
Where toxaemia supervened upon a compound fracture which resultedfrom a club blow inflicted by the accused and the injured person died of suchtoxaemia—
Held that as the injured man’s death was not immediately referableto the injury actually inflicted but was traced to some condition which aroseas a supervening link in the chain of causation, it was essential in such casesthat the prosecution should, in presenting a charge of murder, he in a positionto place evidence before the Court to establish that “ in the ordinary courseof nature ” there was a very great probability (as opposed to a mere likelihood)(a) of the supervening condition arising as a consequence of the injury inflicted,and also (6) of such supervening condition resulting in death.
.^LpPEAT-iS, with, applications for leave to appeal, against twoconvictions in a trial before the Supreme Court.
M. M. KumaraJculasingham,, with G. G. Niles, for the accused appellants,
Boyd Jayasuriyct, Crown Counsel, for the Attorney-General.
1 {1906) 3 Bal. 43.
Our. adv. md(.
178
GRA.TIAEN J.—Mendia v. The Queen
February 8, 1952. Gkatiaen J.—
The appellants were jointly tried for the murder of Yagama VincentSilva, the offence being alleged to have been committed by them on21st November, 1950. They were both found guilty by the unanimousverdict of the Jury.
The case for the prosecution was that on the morning of 21st November,195.0, the appellants, actuated by a common intention, brutally attackedYagamaVin cent Silva with a sword and a club, causing him grievous injurieswith both weapons. The injured man, who was in a collapsed conditionand was suffering from shock as the cumulative effect of the injuriessustained by him, was removed to the Government Hospital at Balapitiyawhere he was examined by the District Medical Officer, Dr. Tissaweera-singhe who gave him such skilled medical attention as the facilities avail-able in that particular hospital permitted. One incised injury in parti-cular would necessarily have caused death “ in the ordinary course ofnature ”, but surgical treatment prevented this result. There was stilla risk, however, that death might result from septic poisoning setting in asthe result of another injury (the nature of which I shall more particularlydescribe hereafter). Dr. Tissaweerasinghe had explained in the courseof his evidence in the Magistrate’s Court that the appropriate serum wasnot available in his hospital, and it was presumably for this reason thatthe injured man was despatched to Colombo for treatment at the GeneralHospital at 10 a.m. on the next day. Unfortunately, however, toxaemiahad already set in, and Silva died that evening.. A post-mortem exami-nation was conducted at 7.45 a.m. on 23rd November by the Judicial-Medical Officer, Dr. G. S. W. de Saram, in whose opinion death was dueto “ toxaemia from gas gangrene following a compound fracture of theright leg ”.
It is evident that toxaemia, which was the immediate cause of death,supervened upon a particular injury resulting from a club blow for whichthe jury, properly directed and upon ample evidence, have imputedjoint criminal responsibility to both appellants. .The details of theinjury at the time of the autopsy are described as follows by Dr. deSaram :—
“ A punctured wound 3/8th inch in diameter by quarter inch deepover the upper right shin three inches below the knee with underlyingfracture of both bones of leg. There was blistering and black dis-colouration over the whole front and sides of right leg and swellingof the right foot and knee. ”
Dr. de Saram also states that, upon internal examination, he discoveredthat underlying this wound there was “ a comminuted fracture of themain bone of the right leg over an area 3" by 1-|" and a fracture of theouter bone at same level. The surrounding muscles were soft and therewas offensive exudate. The whole of the right lower extremity wasinfiltrated with gas ”. With regard to the immediate cause of death,namely, “ toxaemia from gas gangrene ”, Dr. de Saram’s evidence is to theeffect that “ gangrene is quite a common infection in Ceylon. It isbrought about by bacterial infection. If the injured man feU on conta-minated soil or if his skin was contaminated gangrene could set in”.
GRATTAJEjN" <T.—Mend is v. The Queen
179
He expressed the opinion that the injury which I have described indetail was sufficient in the ordinary course of nature to cause death“ in the sense that (he) was thinking of death being caused by infection,and that is really how death in fact was caused ”. As far as we canjudge, however, from his evidence on record, he was not invited toelucidate his opinion any further or to elaborate the grounds upon whichthat opinion was based. Nor is it certain that he had prominently beforebig mind what the law regards as “ sufficient in the ordinary course ofnature to cause death ” in relation to the elements of the offence of“ murder ” as defined in the Ceylon Penal Code.
Learned Counsel for the appellants has very properly conceded thatupon these facts the appellants were at least guilty of culpable homicidenot amounting to murder. The force with which the blow was deliveredshattered the bones of the right leg of the injured man who in consequencecollapsed into a stream from which he had to be helped out, and theappellants must have known that a considerable time was bound toelapse before the deceased could be given medical treatment by anyonewho chanced to rescue him. It was justifiable, therefore, to impute tothe appellants the knowledge that, in all the circumstances attending thetransaction, infection was likely to supervene upon the injury inflicted.Tn our opinion it was not necessary that the appellants should have hadthe knowledge that the infection might probably take the form of gasgangrene rather than some other kind of infection equally likely to endfatally. Nor would one impute the requisite knowledge to the appellantssolely for the reason that the deceased succumbed to the injuries inflictedby them. Even if he had escaped infection altogether and survived,knowledge of the likely fatal consequences of those acts could have stillbeen properly imputed to the appellants.
In our opinion, the immediate cause of death, namely, toxaemia, whichsupervened was without doubt a likely consequence of an injury which oneor the other of the appellants had inflicted in furtherance of the commonintention of both. The injury itself, though it preceded toxaemia in timeand in order of causation, had “ brought the deceased man into a newhazard of death ” and “ the extraneous supervening circumstance (whichwas not inherently improbable) had converted that hazard into acertainty ”, Kenny’s Outlines of Criminal Law (15th edition) page 149.In that state of things, criminal responsibility was, in our opinion, veryproperly imputed by the jury to the appellants for the immediate causeof death. As Lord Halsbury said in Brintons Ltd. v. Turvey1, “ bycalling the consequence of an injury a disease, one cannot alter thenature of the consequences of the injury that has been inflicted ”.Brintons’ case was concerned with a question arising under the Workmen’sCompensation Act, but the observations quoted by me have beenadopted as having equal application to decisions affecting criminalresponsibility for death resulting from a disease which supervenes afelonious act. Bussell on Crimes (10th edition), Volume 1, page 471. Onthis aspect of the case we think that the jury were correctly andadequately directed by the learned presiding Judge.
(1905) A. C. 230.
180
G-RATIAEH" J.—Mendta v. The Queen
There remains for consideration, however, the more difficult questionwhether the convictions for murder were justified upon the evidence.
In the facts of the present case, this depends on whether there wasevidence upon which the jury, properly directed, could reasonably holdthat the act of the appellants which caused the death of Vincent Silva wasalso from its very nature “ sufficient in the ordinary course of nature tocause death These words in clause 3 of the definition of “ murder ”contained in section 294 of the Penal Code require that the probabilityof death ensuing from the injury inflicted was not merely likely but “ verygreat, though not necessarily inevitable ”. In re Singaram Padayachiand others1. If, on the other hand, the evidence establishes that therewas probability in a lesser degree of death ensuing from the act committed,the finding should be that the accused intended to cause an injury likelyto cause death and the conviction should be culpable homicide notamounting to murder. RatanlaVs Law of Crimes (16th edition), page705. With great respect, we are not convinced that the learned Judge’scharge, though in all other respects unexceptionable, sufficiently empha-sised the degree of probability which was essential to justify a convictionfor murder.
Special difficulties attach to criminal cases where the in j rued man’sdeath is not immediately referable to the injury actually inflicted butis traced to some condition, such as septic poisoning, which arose as asupervening link in the chain of causation. It is essential in such casesthat the prosecution should, in presenting a charge of murder, be in aposition to place evidence before the Court to establish that “ in theordinary course of nature ”, there was a very great antecedent probability(as opposed to a mere likelihood) (a) of the supervening conditionarising as a consequence of the injury inflicted, and also (b) of suchsupervening condition resulting in death. Applying this test to thepresent case, we think that Dr. de Saram’s evidence does not go farenough to establish the first of these requirements beyond reasonabledoubt.
With regard to the second requirement, it is of course besides thepoint that the injured man’s life might possibly have been saved by theearlier application of the appropriate serum, if it had been available atthe Balapitiya Hospital. Indeed, the evidence makes it clear, we think,that in the ordinary course of nature, (i.e. “ without' resorting to properremedies and skilful medical treatment ”—vide Explanation 2 to section '293) the toxaemia, once it had supervened upon the injury, wouldinevitably have caused death. But this circumstance by itself wasinsufficient to justify the convictions for murder, for the evidence, inour opinion, does not prove beyond doubt that there was “ a very greatprobability ” that the bacterial infection which, in Dr. de Saram’s opinion,brought about “ toxaemia from gas gangrene ” would superveneupon the injury inflicted upon Vincent Silva. We therefore quash theconvictions for murder and substitute in the case of each appellant aconviction for culpable homicide not amounting to murder. We sentenceeach appellant to undergo a term of ten (10) years’ rigorous imprisonment.
Convictions altered.
A. I. B. (1944) Mad. 223.