R.G. SOMAPALA, Appellant, and THE QUEEN, Respondent

027-NLR-NLR-V-72-R.G.-SOMAPALA-Appellant-and-THE-QUEEN-Respondent.pdf


H: N. G. FERNANDO, CJ.—Somapah'v: The Queen■ 121.
[ Court of Criminal Appeal ]
1969 Present: H. N. G. Fernando, C.J. (President), Samerawickrame, J.,
and Weeramantry, J.
R.G. SOMAPALA, Appellant, and THE QUEEN, RespondentC. C. A. 103 of 1968, with Application 152
S.C. 15(68—M.G. Gampaha, 1S7S5JB
Charge of murder—Meaning of what is commonly called “ murderous intention —Misdirection—Penal Code, ss. 293, 294.
In directing the Jury on the question of murderous intention, the trial Judgestated :—
“ Did he cause those injuries with an intention to kill ? That is one of theintentions which falls within the three types of murderous intentions. Thesecond one, that is, an intention of causing bodily injury with knowledge thatthe bodily injury intended was likely to causo death. There again, gentle-men, it is murderous intention. The third isj neither-you havo-the intention-to cause death nor the intention of causing such bodily injury with knowledgethat the bodily injury intended was likely to cause death, but you have anintention to cause bodily injury, without any such knowledge, but the bodilyinjury is of such gravity that it is sufficient in the ordinary course of nature tocause death. ”
Held, that there was misdirection in that there was a lack of appreciationof important points of difference between s. 293 and s. 294 of the Penal Code.While the act of causing death with knowledge that the act is likely tocause death is culpable homicide, such an act is not murder, unless either(a) the offender intends to cause bodily injury and has the special knowledgethat the intended injury is likely to cause the death of the person injured,or (b) the offender knows that, because the act is so imminently dangerous,there is the high probability of causing death or an injury likely to cause death.
j/SlPPEAL against a conviction at a trial before the Supreme Court.
Colvin R. de Silva, with F. C. Perera, I. S. de Silva and E, B. Vanni-tamby (assigned), for the accused-appellant.
R. de Fonseka, Senior Crown Counsel, for the Crown.
Cur. adv. vult.
March 12, 1969, H. N: G. Fernando, G.J.—
In this appeal against the conviction of tho appellant of a charge ofmurder his Counsel has contended that there was misdirection in law in theexplanation to. the Jury by the trial Judge of the meaning of what is
LXXn—6: ‘•• -•••I*—J 6016 (8/89)
122
. H. N. G. FERNANDO, C.J._—Scnnapala v. The Queen
commonly called ‘ the murderous intention Tho explanation is containedin two passages in tho summing-up which we now cito :—
“ Gentlemen, a person is guilty of murder when ho does an act whichcauses death and the act is done with ono of three typos of intention.Firstly, tho intention of causing death; secondly, the intention ofcausing such bodily injury with knowledge that tho bodily injury■ intended was likely to causo death, and thirdly, the intention of causingbodily injury without any.knowledge but of such gravity that it issufficient in the ordinary couiso of nature to cause death.”
“Did he cause those injuries with an intention to kill '? That is oneof tho intentions which falls within the three types of murderousintentions. The second one, that is, an intention of causing bodilyinjury with knowledge that tho bodily injury intended was likelyto causo death. There again, gentlemen, it is murderous intention.Tho third is, neither you have the intention to causo death nor thointention of causing such bodily injury with knowledge that the bodilyinjury intended was likely to cause-death, but you havo an intention tocauso bodily injury, without any such knowledge, but tho bodilyinjury is of such gravity that it is sufficient in tho ordinary course ofnature to causo death.”
In ordor to consider the question whether these explanations areincorrect, it is necessary to sot out and comparo the provisions of ss. 293and 294 of the Penal Codo :—
“ s. 293 (set out in paragraph form)—
Whoever causes death by doing an act with tho intention ofcausing death ;
Whoover causes death by doing an act with tho intention ofcausing such bodily injury as is likely to causo death ; and
Whoever causes death by doing an act with tho knowledge that hois likoly by such act to causo death, commits tho offence ofculpablo homicide.”
“ s. 294. Except in the casos hereinafter excepted, culpablo homicideis murder—
Firstly—If tho act by which tho death is caused is done with theintention of causing death ; or
Secondly—If it is done with tho intention of causing such bodilyinjury as the offender knows to bo likoly to cause the death of theperson to whom the harm is caused ; or
Thirdlj'—If it is done with tho intontion of causing bodily injuryto any person, and tho bodily injury intended to be inflicted issufficient in tho ordinary course of nature to cause death ; or
H. N. G. FERNANDO, C.J.—Somapala v. The Queen
123
Fourthly—If the person committing the act knows that it is soimminently dangerous that it must in all probability cause death,or such bodily injury as is likely to cause death, and commits suchact without any excuse for incurring the risk of causing death orsuch injury as aforesaid.”
It is manifest that s. 293 comprises a wider group of cases than doess. 291, and that the latter section classifies as murder only some, and notall, of the cases in the wider group.
No difficulty arises with regard to the offence of culpable homicidewhich is defined in the first clause of s. 293, i.e. causing death by doingan act with the intention of causing death ; this clause is co terminouswith the 1st limb of s. 294, and thus the offence of culpable homicidedefined in this first clause of s. 293 is also an offence of murder.
Under the second clause of s. 293, the act of causing death is culpablehomicide if done “with tho intention of causing such bodily injury as islikely to cause death.” At first impression, the intention specified in thatsecond clause may not appear to differ very much from the. (murderous)intention defined in the 2nd limb of s. 294, i.e. ‘‘ that intention of causingsuch bodily injury as the offender knows to bo likely to cause the deathof the porson to whom the harm is caused.” This in fact appears to betho impression in the mind of the learned Commissioner. His explanation .of the second type of murderous intention is “an intention of causingbodily injury with knowledge that tho bodily injury is likely to causedeath ” ; the omission from this explanation of the concluding words of the2nd limb—of the person to whom the harm is caused—indicates in ouropinion a lack of appreciation of an important difference between s. 293and s. 294. That difference will become clear when our comparisonof the two sections is completed.
The 3rd limb of s. 294 postulates one element which is also presentin tho second clause of s. 293, namely, the element of the intention tocause bodily injury ; but whereas the offence of culpable homicide iscommitted, as stated in the second clause of s. 293, when thero is intentionto cause bodily injury likely to cause death, the offence is one of murderunder tho 3rd limb of s. 294 only whon tho intended injury is sufficientin the orditiary course of nature to cause death. In our opinion, it is this3rd limb of s. 294 which principally corresponds to the second clausoof s. 293 ; and (as is to be expected) every intention, contemplated in the .latter second clause is not also contemplated in the former 3rd limb.An injury which is only likely to cause death is one in respect of whichthere is no certainty that death will ensue, whereas the injury referredto in the 3rd limb of s. 294 is one which is certain or nearly certain toresult in death if there is no medical or surgical intervention Thiscomparison satisfies us that the object of the Legislature was to distinguish
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H. N. G. FERNANDO, C.J.—Somapala v. The Queen
botween tho cases of culpable homicide defined in the second clause ofs. 293, and to provide in tho 3rd limb of s. 294 that only tho graver cases(as just explained) will bo casos of murder. If this was not the object oftho Legislature, then thero would be no substantial difference betweenculpablo homicide as defined in tho second clauso of s. 293 and murder asdefined in the 3rd limb of s. 294. It will bo seen also that if the objoctof the 2nd limb of s. 294 was to adopt more or less completely thesocond clause of s. 293, then tho 3rd limb of s. 294 would bo very nearlysuperfluous.
To continue with the comparison of the two sections, it is noteworthythat the element of knowledge is specified only in the third clause of s. 293,and again only in the 2nd and 4th limbs of s. 294. This fact at least primafacie justifies a supposition that the 2nd and 4th limbs of s. 294, underwhich knowledge is an clement of the offence of murder, are intended tocorrespond, not with the.second clause of s. 293, but instead with tho thirdclause of the latter section. This third clause declares to be culpablehomicide “an act done with the knowledge that the offender is likely bysuch act to cause death”, and it is obvious that knowledge here comprisesboth a general knowledge, i.e. held objectively, or a special knowledge heldsubjectively with respect to the person injured. On the other hand, thelanguage of the 2nd limb of s. 294 prima facie denotes only the subjectiveknowledge as to the likelihood of the death of the person to zchom the harmis caused. There is thus evidence in the 2nd limb of s. 294 of a designto classify as murder some but not all of the offences of curable homicidedefined in the third clause of s. 293. There is evidence also of a similardesign in the 4th limb of s. 294 ; knowledge, that an act is so imminentlydangerous that it must in all probability cause deal!) or such bodily injuryas is likely to cause death, is knowledge, not merely of the likelihoodof causing death, but of the high probabilit' of causing death or injuryiikely to cause dcatlx ; so that many cases which fall within the thirdclause of s. 293 will not be murder within the meaning of the 4th limbof s. 294.
It thus appears that while the act of causing death with knowledge thatthe act is likely to cause death is culpable homicide, such an act is notmurder, unless either-—
t
(а)the offender intends to cause bodily injury and has the specialknowledge that the intended injury is likely to cause the death of theperson injured, or
(б)the offender knows that, because the act is so imminentlydangerous, there is the high probability of causing death or an injurylikely to cause death.
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H. N. G. FERNANDO, C.J.—Somapala v. The Queen
Support for this analysis is found in the judgment of JVLclvill J. in Reg. v.Gociuda1 in which tho 2nd and 4th limbs of our 8. 294 are referredto as (2) and (4) respectively, and the third clause of our 8. 293 isreferred to as (c) :—
“The essence of (2) appears to me to be found in the words which Jhave underlined. The offence is murder, if the offender knows that thoparticular peison injured is likely, either from peculiarity of constitutionor immature age, or other special circumstances, to be killed by aninjury which would not ordinarily cause death.”
“ (c) and (4) appear to me intended to apply (I do not say that theyare necessarily limited) to cases in which there is no intention to causedeath or bodily injury. Furious driving, firing at a mark near a publicroad, would be cases of this description. Whether the offence isculpable homicide or murder, depends upon the degree of risk to humanlife. If death.is a likely result, it is culpable homicide ; if it is thomost probable result, it is murder. ”
For these reasons, we are of opinion that the explanation of the learnedCommissioner as to the second type of murderous intention is incorrectin that it does not emphasize that the 2nd limb of s. 294 requires, not anobjective knowledge or the presumed knowledge of a reasonable man, butinstead the knowledge subjectively of the likelihood of the death of theperson to whom the harm is caused. In this way the summing-up leftit open to the Jury to convict the accused of murder although the accusedmay not actually have had the particular knowledge specified in the 2ndlimb of s. 294.
This apparent misunderstanding of the proper relationships betweens. 294 and the wide definitions of culpable homicide in s. 293 seems alsoto have influenced the learned Commissioner’s explanation of the 3rdlimb of s. 294. In explaining the 3rd limb, the learned Commissionerstates as follows :■—
“The third is, neither you have the intention to cause death nor theintention of causing such bodily injury with knowledge that the bodilyinjury intended was likely to cause death, but you have an intentionto cause bodily injury, without any such knowledge, but the bodily injuryis of such gravity that it is sufficient in the ordinary course of nature tocause death. ”
This explanation is perhaps literally correct, but the statement, thatthere need not be present the knowledge that the injury intended waslikely to cause death, can it seems beconfusing. The requirement in the3rd limb that the intended injury is sufficient in the ordinary course ofnature to cause death presupposes at least an offender’s presumed
knowledge that the intended injury is sufficientdeath. …-
1 (1876) 1 Bom. 342.
—J 6019 (8/69)
J26
Ranasinghe. v.Jayalillak&
' In the more common cases of homicide, a verdict of murder can boreturned if the .Jury find that flic* offender bad the intention to causedeath. If they do not so find, the case will ordinarily fall within thethird clause of s. 293 because of the offender’s knowledge oft he likelihoodof causing death ; and then the important question is whether the offenceis elevated into the 3rd limb of s. 291 by reason of the gravity of theintended injury. The learned Commissioner’s explanation of this 3rdlimb might tend to obscure the importance of this question.
For present purposes we think it sufficient to point out, as was pointedout in the citation to which wc have referred, that reference to the 2ndlimb of s. 294 need not ordinarily bo made in the cornmtm type of casewhich is tried in our Courts. As a general rule it will bo safer to. referto the 2nd limb, only when there is evidence of the offender’s actualknowledge that the particular injury was likely to cause the death of theparticular person because of sonic peculiarity of constitution or immatureage or other special circumstances. Similarly there need be no referenceto the 4th limb of s. 294 save in cases in which fho facts resemblethose set out in tlio illustration (d) to the first part of s. 294.
We are unable to say in the instant case that, if the Jury had beencorrectly directed as to the meaning in our law of “ murderousintention”, they would without doubt have convicted this appellant onthe charge of murder. Had tho element of the knowledge of thelikelihood of causing death been referred to only as an element ofthe offence of culpable homicide, the Jury may reasonably have•vmvieted only of that offence.
We accordingly set aside the verdict and sentence, and we substitutetherefor a verdict of culpable homicide not amounting to murderand impose on the appellant a sentence of seven years rigorousimprisonment.
Con>:idion alt e.red.