057-SLLR-SLLR-2004-V-1-PRASAD-PERERA-v.-THE-ATTORNEY-GENERAL.pdf
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Prasad Perera v The Attorney -General (Abeyratne, J.)
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PRASAD PERERAvTHE ATTORNEY-GENERALCOURT OF APPEALNANAYAKKARA, J. ANDABEYRATNE, J.
C.A. 17/2001
H C AVISSAWELLA 70/99NOVEMBER 3, 2003DECEMBER 16, 2003 ANDMARCH 18, 2004
Penal Code, section 296 – Murder of a 2 year old child – Evidence Ordinance,section 33 – Actus reus – No murderous intention but with complete knowl-edge – What is intention ?
The accused-appellant was indicted for the murder of a 2 year old female child.The trial judge found the accused guilty and imposed the death sentence.
On appeal it was contended that the actus reus was committed by theaccused-appellant, without a murderous intention but with knowledge only.
Held:
i) Intention is the determination of the will and implies volition and willing-ness. Knowledge on the other hand implies cognition and conscious-ness.
Questions of knowledge, intention and the like which arise in suchcases are always essentially questions of fact falling within the purviewof a'decision solely on the particular facts and circumstances of eachindividual case.
Expression – intention to cause bodily injury as is likely to cause deathmerely means an intention to cause a particular injury, which injury is orturns out to be one likely to cause death.
Murderous intention, a fortiorari has to be judged in relation to the sur-rounding circumstances of each individual case as it is axiomatic 'Thatnot even the devil knoweth the mind of the man.”
APPEAL from the judgment of the High Court of Avissawella
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[2004] 1 Sri L.R
Case referred to:
1. K v Aung Nyun – Law of Crimes by Ratnalal at page 1259Dr. Ranjith Fernando with A. Gunwardane for accused-appellant.Kapila Waidyaratne, Senior State Counsel for Attorney-General.
Cur.adv.vult
May 10, 2004
GAMINI ABEYRATNE, J.This is an appeal preferred against the order of the learned High 01Court Judge of Avissawella in a case resultant in conviction for mur-der and consequent imposition of the death sentence on theaccused-appellant.
The factual background reveals that the indictment of theaccused-appellant on a murder charge under section 296 of thePenal Code was predicated on the death of a two year old femalechild. On the day in question it appears that the mother of the childhad left for a boutique to procure bread for consumption, entrustingthe child to the care of the accused-appellant who was her para- 10mour. On her return she found the female child in pain and crying,quite opposite to the condition in which she left the child-hale andhearty. The child had been lying on a mat while the accused-appel-lant rested on a bed. She had immediately transported the child toa Doctor and upon his advice to the NavagamuWa Hospital wherethe child was found to be dead on admission.
The post mortem examination revealed the cause of the deathas cardiac tamponade and internal hemorrhage following injuries tothe internal organs. The injuries were consistent with those causedby blunt trauma caused to the chest and head. The pericardium 20indicated the presence of blood and a tiny tear with contusion on itsupper part of the atrium-closer to the superior vena cava cardiactemponade means none other than the inhibition of the heart actionresulting from a sudden build up of the pressure in the pericardialsac- which is the sac covering the heart.
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Prasad Perera v The Attorney-General (Abeyratne, J.)
.419
The mother’s evidence given in the non-summary was admittedunder section-33 of the Evidence Ordinance due to her absence inthe High Court. Notwithstanding this the other independent items ofcircumstantial evidence when concatenated, proves irrefutably thatthe death of the child was caused by the accused-appellant.
The necessity to indulge in an academic discourse or analysisof the evidence and subjecting the same to judicial review is obvi-ated by virtue of the fact that very prudently and with characteristicforesight, learned counsel for the defence restricted his argumentto the actus reus being committed by the accused-appellant with-out a murderous intention with knowledge only.
There appears to be no merit in this argument when one con-siders the circumstantial background of the case and the items ofevidence which are a pointer to the fact of previous instances ofinfliction of physical cruelty to the deceased child by the accused-appellant.
Intention is the determination of the will and implies volition andwillingness-knowledge on the other hand implies cognition andconsciousness. It can be stated with certainty that questions ofknowledge, intention and the like which arise in such cases arealways essentially questions of fact falling within the purview ofdecision solely on the particular facts and circumstances of eachindividual case. Vide Penal Law of India to editor Gour Vol. 3 atpage 1269.
Homicidal Intention as described under section 293 of the PenalCode can be classified into two kinds. Firstly, it is an intention ofcausing death and secondly it is an intention of causing such bod-ily injury as is likely to cause death. It is manifest that intention isassociated in connection with the causing of death or of bodilyinjury; causing death whereas knowledge is mentioned of in con-nection with ‘act’ which is likely to cause of death. The term inten-tion of causing an injury likely to cause death is that such an injurywas intended as in fact is likely to cause death. It is redundant toconclude that the person inflicting the injury should have knowl-edge that the injury he intends to cause will be sufficient in the ordi-nary course of nature to cause death. As was stated in the case ofKingv Aung Nyun (1) a Rangoon case at 1259.
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[2004] 1 Sri L.R
‘The expression-intention to cause bodily injury as is like-ly to cause death, merely means an intention to cause aparticular injury, which injury is or turns out to be one like-ly to cause death”
Murderous Intention, a fortiorari, has to be judged in rela-tion to the surrounding circumstances of each individualcase as it is axiomatic “That not even the devil Knoweththe mind of Man”.70
In the instant case, if one accepts as a Universal Truth the factthat each man intends the natural consequences of his act no otherinterpretation can be given of the accused-appellant’s behaviourother than the fact that, being an adult with a history of constantinfliction of physical cruelty to the deceased child in the past pre-ceding the child’s death did lay upon or did press with his handsand subject the tender body of the two year old to such pressurethat he caused ‘Cardiac Tamponade’ on the little body did commitsuch act with murderous intention.
Accordingly in view of the above conclusion the appeal of the 80accused-appellant is dismissed and the conviction and sentenceimposed by the learned High Court Judge of Avissawella on the19th day of July 2001 is hereby affirmed.
NANAYAKKARA, J.I agree.
Appeal dismissed.