037-SLLR-SLLR-1999-V-1-SUMANASIRI-v.-ATTORNEY-GENERAL.pdf
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Sumanasiri v. Attorney-General
309
SUMANASIRI
v.ATTORNEY-GENERAL
COURT OF APPEAL
JAYASURIYA, J..
DE SILVA, J.
C.A. NO. 141/96
C. KALUTARA NO. 136/94
JULY 27, 1998.
Criminal Law – Murder – Novus actus interveniens – Causation – Explanation
1 to section 393 of the Penal Code – Section 294 clause 3 of the Penal Code
– Motive.
Held :
Death was traceable to the direct cranio-cerebral injury inflicted by thefirst accused-appellant on the head of the deceased with a heavy sledgehammer using considerable force. The prosecution case thus comes withinthe purview of clause 3 to section 294 of the Penal'Code. An accusedperson is liable not only for the direct consequences of his act but heis equally liable for the consequences of any supervening condition whichis directly traceable to his act.
If the original wound was still the operating cause and is a substantialcause and death can properly be said to be the result of the wound,although some other cause of death was also operating, the offence ismurder, only if it can be said that the original wound was merely the settingin which another cause operates, can it be said that death did not resultfrom the wound. Putting it another way, only if the second cause is sooverwhelming as to make the original wound merely part of its history canit be said that death does not flow from the original wound.
Any controvented issue relating to causation ought to be decided accordingto rational and common sense principles. Where there was no breach inthe line of causation despite the fact that the surgical operation wasperformed at a time posterior to the infliction of the injury and at a point
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of time anterior to the death, the offence is murder if the act is done withthe intention of causing bodily injury sufficient in the ordinary course ofnature to cause death (ie if the injury if left to nature without resortingto proper medical remedies and skilful treatment would cause death).
Clause 3 of section 294 requires that the probability of death resultingfrom the injury inflicted was not merely likely but very great though notnecessarily inevitable.
There is no burden on the prosecution to prove motive as a matter oflaw. As a matter of fact when the evidence of eyewitnesses is clear andeasily intelligible the necessity to prove motive does not arise.
Cases referred to :
1.
2.
3.
4.
5.
6.
7.
9.
10.
11.
12.
13.
14.
Rex v. Mubila – (1956) 1 SALR 31.
Re Singharam Padyatchi – AIR 1944 Madras 224.
Queen v. Mendis – 54 NLR 177, 180.
Brandon v. Turvey – (1905) AC 230.
Rex v. Smith – (1959) 2 All ER 193, 197.
Rex v. J. C. Jordan – (1956) 40 Cr. App. Rep. 152.
Boiler Inspection and Insurance Company of Canada v. Sherwin WilliamsCompany of Canada Ltd. – (1951) AC 319, 339.
Weld-Blundell v. Stephens – (1920) AC 956, 986.
Leytand Shipping Company v. Norwich Union Fire Insurance Society -(1918) AC 350, 363.
Hogan v. Bentick Collienes – (1949) 1 ALL ER 588.
R. v. John William Elwood – Court of Appeal Reports 181 All India Reportsmanual vol. 17 (4th ed.) p 208.
King v. Haramanis – 48 NLR 403.
King v. Appuhamy – 46 NLR 128, 132.
The Queen v. D. A. de S. Kularatne – 71 NLR 529, 534.
APPEAL from judgment of the High Court of Kalutara.
Ranjit Abeysuriya, PC with Ms. Priyadarshani Dias and Ms. M. Thalgodapitiyafor accused-appellant.
Buvaneka Aiuwihare, SSC for Attorney-General.
Cur. adv. vult.
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Sumanasiri v. Attorney-General (Jayasuriya, J.)
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September 21, 1998.
JAYASURIYA, J.
Five accused were charged before the High Court of Kalutara onthree counts upon an indictment and at the end of the trial whichwas presided over by a High Court Judge without a jury, the learnedHigh Court Judge acquitted all five accused in respect of counts 1and 2 of the indictment. Count 1 related to, the commission ofthe offence of being members of an unlawful assembly, the commonobject of which was to cause hurt to Duwage Bandula aliasSumul. The second count related to a charge of the commission ofthe murder of Duwage Bandula alias Sumul in prosecution of thecommon object of the said unlawful assembly, an offence punishableunder section 146 read with section 296 of the Penal Code. The thirdcount related to the commission of the murder of the said DuwageBandula alias Sumul by all the five accused, an offence punishableunder section 296 of the Penal Code. The learned trial judge, at theconclusion of the trial, convicted the first accused-appellant in respectof the third count in the indictment, but acquitted all the other accused,(being the second to the fifth accused) on the basis that they werenot actuated by a common intention and the act which caused themurder had been inflicted only by the first accused-appellant.
Three eyewitnesses, namely, Karunawathie, the mother of thedeceased, Jayanthi, the sister of the deceased and witness Nilminihave given evidence to the effect that they saw the first accusedinflicting a blow on the head of the deceased with a sizeable wedgehammer (©its). These eyewitnesses have testified to the effect thatthey witnessed the first accused-appellant inflicitng the said blow onthe deceased's head with considerable force. They have furtherstated that as a result of the force with which the blow was inflicted,the instrument (o*ca) got wedged into the brain of the deceased andthe first accused was unable to remove the instrument from thedeceased's head and the deceased was dragged by pulling thewedged in hammer (o^ca) which was stuck to his head. These eye-witnesses, as observed by the tried judge, had given consistent versions
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corroborating each other in regard to the said incident and, althoughthey were subjected to a long-drawn cross-examination, the saidprotracted cross-examination had produced no impact whatsoever ontheir testimonial trustworthiness and credibility and the learnedHigh Court Judge has correctly held that the contradiction VI did notrelate to the core of the prosecution version and the ingredients whichthe prosecution was called upon to establish on this charge of murder.
The first accused-appellant made a statement from the Dockin which he alleged that the deceased and his two other friends namedSumith and Kularatne, had pursued him with deadly weapons in theirhands and that the first accused had, on seeing the impendingapprehension of danger to himself, retreated to his house and hadarmed himself with a wedge hammer (Ojo) from the Smithy's workshopand that he had inflicted a blow on the deceased in the exercise ofthe right of self-defence. According to the Dock statement of the firstaccused, the first accused-appellant had inflicted this blow with thehammer (Ojca) on the deceased's head at a compound which wasin close proximity to the blacksmith's workshop. The learned trial judgehas rejected the accused's version volunteered from the Dock, in viewof the unchallenged real evidence adduced and the evidence givenby the Inspector of Police, A. P. G. de Waas Gunawardena, who wasthe investigating officer into this crime [who was an AssistantSuperintendent of Police at the time he gave evidence] and havingregard to the evidence given by Thusew Hewage Nilmini. Thisevidence in regard to the positions where pools of blood andblood-stains were discovered and the drag marks on the sandoccasioned by the dragging of the deceased from his own gardento a point close to the blacksmith's workshop, which according to theevidence, had been effected by the first accused and his friends[who happened to be the second to the fifth accused].
The aforesaid inspector investigating into this crime has, in hisevidence, stated that in the compound in which the deceased livedand in which compound was affixed a rope manufacturing machine,there was a pool of blood and there were traces of blood from that
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point right up to the roadway. He has also testified to the effect thatthere were visible drag marks on the sandy surface manifesting thatsome person had been possibly dragged along the ground. He hasalso stated that the smithy's workshop was situated opposite the houseof a person named Awutin and between the timber shed and thisblacksmith's workshop, there were extensive patches of blood on theground and that there were also blood-stains and patches along theroad leading to the smithy's workshop and the timber shed. WitnessNilmini, in her evidence, [which commences at’page 139] has alsoreferred to the aforesaid blood stains on the ground and the processby which the first accused dragged the decesad with the help of his .friends and, thereafter, how the deceased was carried by the firstaccused and his friends towards the blacksmith's workshop.
The aforesaid evidence of the police officer and Nilmini has notbeen impugned and assailed in cross-examination by the experiencedlawyer who appeared for the first accused at the trial. In thecircumstances, the learned High Court Judge had very correctly andrightly rejected the said version of the first accused which wasvolunteered from the Dock.
. In view of the convincing and relatively unimpugned evidence givenby the three prosecution witnesses, learned President's Counselappearing for the first accused-appellant did not purport to impugnthe strong findings reached on such testimony by the trial judge andthe rejection of the defence version by the trial judge, havingregard to the cogent reasons adduced by the trial judge for suchrejection. Learned President's Counsel, however, contended that ona consideration of the contents of the post-mortem examinationreport prepared by Dr. Sidney Premathiratne, the Judicial MedicalOfficer, which had been submitted to the Magistrate of Kalutaraand on a consideration of the evidence given by the Judicial MedicalOfficer attached to the Kalutara Hospital, Dr. Mary Hemasiri, theaccused ought to have been convicted on a charge of culpablehomicide not amounting to murder and the conviction of the accusedon the charge of murder was unsustainable.
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Though Dr. Sidney Premathiratne, JMO, Colombo had certified,signed and forwarded the post-mortem report to the Magistrateof Kalutara, he was not present at the trial, as he had died prior tothe adduction of evidence upon this prosecution. In the circumstances,Dr. Mary Hemasiri, the Judicial Medical Officer attached to theKalutara Hospital, gave expert evidence and testified to the followingeffect before the High Court relying on the contents of documentmarked P2, which was the post-mortem examination report preparedby Dr. Sidney Premathiratne.
The aforesaid post-mortem report which was produced by themedical expert who gave evidence described the main injury causedby the infliction of a blow on the head of the deceased with theheavy (Ojcs) instrument (wedge hammer) as follows:
Laceration of the brain in the left parietal lobe measuring 22cm semicircular over the surface, 5cm deep cutting the cortex andthe medulla in a plane (coronal) directed backwards. There waspurulent material in the subcranoid space. The brain was oozingout and odemateous. The cause of death was described as craniocerebral injuries. These cerebral injuries could have been causedby a heavy flatbladed edged weapon.
In describing injuries listed as Nos. 1 to 4, it is said that theyare consistent of being caused by a blunt weapon. That is a pointedreference to the non-fatal injuries. P2 disclosed as injuries Nos. 5 and6, the surgical wounds occasioned by the performance of a surgicaloperation after the infliction of injury No. 10. Injury No. 5 is describedas a semicircular surgical wound 115 mm on the left side above theear. Injury No. 6 was described as 40 mm surgical wound below theaforesaid injury No. 5. At the trial, the medical expert who gaveevidence was cross-examined by learned defence counsel appearingfor the accused at the trial and evidence elicited on behalf of thedefence that a surgeon had performed an operation on the patientafter the infliction of injury No. 10. In the course of the argument inappeal, as the surgical operation was posterior both in time and in
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causation to the infliction of the injury No. 10 and death resulted afterthe operation, it was contended that a novus actus interveniens hadtaken place which effected a breach in the line of causation. I proposeto consider this submission carefully at a later point of time. Theaforesaid medical expert, Dr. Mary Hemasiri, has stated that injuryNo. 10 has been inflicted with the exertion of considerable force andby employing a heavy instrument. As a result of this injury, he hasstated, there was laceration of the brain, fracture of the parietal lobeof the brain and at the time of the post-mortem the brain wasoedematous (swollen) and there was offensive exudation dripping fromthe brain. In Sinhalese he has stated thus in regard to the injury tothe brain:
I now advert to the contention of the learned counsel that theproper legal finding in this factual situation would be a finding ofguilty in respect to the offence of culpable homicide not amountingto murder and not the offence of murder itself. Having regard tothe nature of the instrument utilised to inflict the injury, the site of
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the injury and the force exerted to inflict the injury, an intention tocause death could reasonably be imputed to the accused in theattendant circumstances established upon this prosecution and, tothat extent, the first clause of section 294 of the Penal Code seemsto be applicable. The learned trial judge, however, has arrived at afinding in regard to the commission of the offence of murder relyingon the third clause to section 294 of the Penal Code – “if the actis done with the intention of causing bodily injury to any person andthe bodily injury intended to be inflicted is sufficient in the ordinarycourse of nature to cause death". Explanation 2 to section 293lays down the criterion – which is would the injury, if left to naturewithout resorting to proper medical remedies and skilful treatmenthave resulted in death? Vide Rex v. Mubila,m where death is causedby a bodily injury, the person who causes such bodily injury shallbe deemed to have caused death although by resorting to properremedies and skilful treatment death might have been prevented. Thecontents of the post-mortem report marked P2 and the evidence ofthe medical expert who has testified at the trial, when taken inconjunction, clearly establish that there was very great antecedentprobability of death resulting from the injury inflicted, as opposed toa mere likelihood of death resulting from the injury. There waslaceration of the brain and fracture of the bones in the left parietallobe extending over 22 cm semicircular over the surface and this injurywas 5 cm deep and it had cut the cortex and the medulla and atthe post-mortem there was purulent material in the sub-cranoid spaceand there was offensive exudation dripping from the brain. Thus, therewas a grave cranio-cerebral injury caused to the brain. The probabilityof death resulting from the injury was not merely likely but there wasa very great antecedent probability of death resulting from the injury.In Re Singharam PadyatchF it was remarked that clause 3 of section294 requires that "the probability of death resulting from the injuryinflicted was not merely likely but very great though not necessarilyinevitable.". This principle was cited with approval and applied byJustice Gratiaen in the decision of Queen v. MendisPK Unlike inMendis' case in which death resulted from supervening circumstances,in the present case death is traceable to the direct cranio-cerebral
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injury inflicted by the first accused-appellant on the head of thedeceased with a heavy wedge hammer whilst using considerable forcefor the infliction of the injury. In Mendis' case (supra) the Court ofCriminal Appeal arrived at the conclusion that the injured person'sdeath was not immediately referable to the injury actually inflicted butwas traced to some condition which arose as a supervening link inthe chain of causation and that in such a situation it was essentialthat the prosecution should, in preferring a charge of murder be ina position to place evidence before the Court to establish that in theordinary course of nature there was a great probability (a) of thesupervening condition arising as a consequence of the injury inflicted,and also (b) such supervening condition resulting in death. In thepresent prosecution the position is slightly different and death has beenproved to have been caused by the direct infliction of the cranio-cerebral injury by the first accused-appellant. In the circumstances,we are of the considered view that the learned trial judge was justified,on the material placed before him, to arrive at the finding that theprosecution case came within the purview of clause 3 to section 294and that the accused has committed the offence of murder and notone of culpable homicide not amounting to murder on the basis thatthe injuries were merely likely to cause death.
Now I advert to the submission advanced by the learnedPresident's Counsel on the footing of a novus actus interveniens, whichis alleged to have effected a breach in the line of causation. Anaccused person is liable not only for the direct consequences of hisact but he is equally liable for the consequences of any superveningcondition which is directly traceable to his act. Vide Russel onCrimes 10th edition, vol. 1, page 471 and the decision ofLord Halsbury in Brandon Ltd. v. Turve/A). At the trial no attempt wasmade by the learned counsel who appeared for the defence to urgeand elicit material that the operation performed by the surgeon wasin any way abnormal or that it was inappropriate. The case whichhas been presented before the trial judge is one of the performanceof a normal and proper operation performed with due diligence andadequate skill. This position was not impugned at all at the trial and
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at the argument of the appeal, by the defence. In considering thesubmission of learned President’s Counsel on the breach of the lineof causation and the fact that the surgical operation was performedat a point of time posterior to the infliction of injury No. 10 and ata point of time anterior to death, I would advert to the very pertinentdicta of Lord Parker, CJ. in Rex v. Smitlf5).
“It seems to the Court that if at the time of death the originalwound is still an operating cause and a substantial cause, thendeath can properly be said to be the result of the wound, albeitthat some other cause of death is also operating. Only if it canbe said that the original wound is merely the setting in whichanother cause operates, can it be said that death does not resultfrom the wound. Putting it in another way, only if the second causeis so overwhelming as to make the original wound merely part ofits history can it be said that death does not flow from the wound."
There is not the slightest doubt in the present prosecutionthat injuries Nos. 9 and 10 described in the post-mortem reportP2 were still a operating and a substantial cause and the death ofthe deceased can properly be said to be the result of injuriesNos. 9 and 10 which were inflicted by the first accused-appellant. Evenin the decision in Rex v. J. C. Jordan<®> Justice Hallett observed thus:
"We are disposed to accept it as the law that death resultingfrom any normal treatment employed to deal with a feloniousinjury, may be regarded as caused by the felonious injury. But thesame principle does not apply where the treatment employed isabnormal and wholly inappropriate."
On a consideration of the principles laid down in these twojudicial decisions, it is manifest that the contention raised bylearned counsel for the first accused-appellant is wholly untenable anddevoid of merit. Any controverted issue relating to causation oughtto be decided according to rational and common sense principles. VideBoiler Inspector and Insurance Company of Canada v. Sherwin Williams
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Company of Canada Ltd.M; Weld-Blundel v. Stephendah, LeylandShipping Company v. Norwich Union Fire Insurance Society® per LordDunedin “I think the case turns on a pure question of fact to bedetermined by common sense principles". Hogan v. Bentick CoUiened10).
Learned President's Counsel strongly urged before us that theprosecution had failed to establish a motive on the part of the firstaccused-appellant in committing this offence on the deceased.However, it must be observed one witness has stated thus in regardto the possible motive:
However, it must be emphasized that the failure on the part ofthe prosecution to establish a proved motive against the accused isnot fatal to a conviction reached by the Court even in a case basedentirely on circumstantial evidence. R. v. John William Elwoodn> Motiveis not an ingredient of the offence in respect of whichthe accused has been indicted. The prosecutor and the prosecutionwitnesses have no opportunity of peering into the mind of the accusedand therefore are not in a position to give affirmative evidence in regardto motive. Therefore, the law does not require the prosecution toestablish motive. In King v. Haramanid,2) the principle was laid downthat as a matter of law the prosecution is not bound to assign orprove a motive as to why a criminal act was done. But as a matterof fact, however, where the facts are not clear the absence of anintelligible motive may have the effect of creating a reasonable doubtin favour of the accused. But if the evidence is clear the questionof a motive does not arise for consideration. If the facts are not clearthe presence of an intelligible motive may help to ascertain and decidethat which is not distinct and clear. Vide also the remarks of JusticeKeuneman in King v. Appuhamy03' to the same effect; for thedistinction between the absence of proving motive and the provedabsence of motive. Vide The Queen v. D. A. De S. Kularatnd,4> anddicta of Justice Channell in R. v. Elwood (supra). In the particular
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prosecution the eyewitnesses have given very clear, cogent, over-whelming and distinct evidence against the first accused in regardto the murderous infliction of the injury on the deceased's head witha wedge hammer. They have stood the test of cross-examination andthe protracted cross-examination has made no dent whatsoever ontheir testimonial trusworthiness and credibility. As a matter of law, wehold there was no burden or onus on the prosecution to assign orprove a motive as to why the criminal act was done by the firstaccused-appellant. As a matter of fact, we hold that since the evidenceof the eye-witnesses in this case is so clear and easily intelligiblethe necessity of proof of a motive does not arise at all in the attendantcircumstances of this case. In circumstances, the lament made bylearned President's Counsel that the prosecution has not proved amotive against the accused beyond reasonable doubt is a submissionwhich is misconceived both in law and in fact and therefore is whollyunsustainable. We have spotlighted the only contentions urged beforeus at the argument of this appeal. We hold that these contentionsare devoid of merit and are wholly untenable. In the result we dismissthe appeal of the first accused-appellant and uphold the finding andconviction on the charge of murder and the sentence imposed by thelearned High Court of Kalutara.
DE SILVA, J. – I agree.
Appeal dismissed.