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
Sumanasiri v. Attorney-General (Jayasuriya, J.)
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
Sumanasiri v. Attorney-General (Jayasuriya, J.)
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.