001-SLLR-SLLR-2006-V-2-BANDARA-vs.-ATTORNEY-GENERAL.pdf
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Bandars us
Attorney General
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BANDARAVSATTORNEY GENERALCOURT OF APPEAL.
BALAPATABENDI. J.
BASNAYAKE. J.
CA 76/2001.
H. C. AVISSAWELLA17/2001.
OCTOBER 10, 2005.
NOVEMBER 2,2005.
Penal Code – Sections 294, 296, 317-Murder or culpable homicidenot amounting to murder- Where to draw the line ? – Injuries not intended-Conviction bad ?
The accused-appellant was indicted for causing the death of one C punishableunder section 296, and was also charged for causing grievous hurt to two youngchildren (section 317). After trial the accused was convicted as charged andsentenced to death in respect of the 1st charge (section 296) and 10 years inrespect of the other charges.
In appeal it was contended that, the proper conviction should have been forculpable homicide not amounting to murder as the accused had only intendedto cause bodily harm and not death, and as regards the conviction undersection 317 the accused never intended harm on the children and the childrencame by their injuries purely due to an accident.
HELD :
The accused by throwing acid on to the deceased had intended tocause the injuries actually caused. The injuries caused were sufficientin the ordinary course of nature to cause death. The injuries were saidto be fatal and the deceased succumbed to the injuries within 24 hours.
This would mean that the probability of death occurring was very high.The fact that the accused intended to cause only bodily harm and notdeath is therefore immaterial. Section 294 amply demonstrates thisposition. Although the High Court Judge found the accused guilty of
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murder under the second limb of section 294, it should be consideredas the third limb of section 294.
Held further:
It is quite immaterial that the death caused was that of a man other thanwhose death was intended. Where the accused has the intention to killsomeone, and if with the intention, he kills somebody else, he is guiltyof committing murder.
As harm was intended on someone, the accused has no escape fromliability of the injuries caused to the children either.
APPEAL from an order of the High Court of Avissawella.
Case referred to:
Sudershan Kumar vs. Sfafe of Delhi-AIR 1974 SC 2328
Somapala vs. The Queen – 72 NLR 121
Rajwant Singh vs. State of Kerala – AIR 1966-1874 SC
Virsa Singh vs. Sfafe of Punjab – AIR 1958 SC 465
Anda vs. State ofRajastan – AIR 1966 SC 148 at 151
Vishnu Daga Pagar and Others vs. State of Maharastra-1997 3 CriLJ2430
State of Karnataka vs. Vedanayagam -1995 SC 231
Thakura Das vs. State – AIR 1967 Allahabad 495 -1995 Cri LJ1455
In re Singam Padayachi-AR 1944 Madras 223 (1944 Cri LJ 729)
K. V. Edwin – 44 NLR 297
Q vs. Latimar – 17QBD 359
Harishankar alias Hart Shankar Sharma vs. State of Mysore 1979Cr LR 466 (SC)
Ballan vs. The State – AIR 1955 All 626
Dr. Ranjith Fernando with Ms. Deshani Jayatilleke and Ms. Amila Udayanganifor accused-appellant.
Ms. Kumuduni Wickmmasinghe, SSC, for respondent.
Cur. adv. vult.
April 25,2006.
ERIC BASNAYAKE J.The accused appellant (accused) was indicted in the High Court ofAvissawella for causing the death of H. P. Jayatissa Caldera, punishable
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under section 296 of the Penal Code. He was also charged for causinggrievious hurt to Thilini Sathya Lokupathirana aged 6 years and LahiruRukshan Lokupathirana aged 5 years, punishable under section 317 ofthe Penal Code. After trial the accused was convicted as charged andsentenced to death in respect of the first charge and 10 years each inrespect of the 2nd and 3rd charges. This is an appeal against the convictionand the sentences.
The facts are not in dispute. The incident occurred on 20.03.1996 atBathika Damayanthi’s house. She was the 1 st witness for the prosecution.The deceased was a cousin brother of Bathika’s husband. The deceasedlived close to Bathika’s house. The deceased was in the habit of visitingBathika’s house. The accused too was married to a cousin of her husband.Two or three days prior to this incident the accused's wife having had anargument with the accused had spent a few days with Bathika. Thereafterthe accused had reconciled with her and had left with her. The wife of theaccused had apparently left the accused again and the accused had notbeen able to find her this time. The accused had a belief that the deceasedwas keeping her in a secret place. Although there is no evidence to thateffect, this appeared to be the motive to cause the injuries.
On the fateful day at about 7 p.m. the deceased was in Bathika’s housewatching television with Bathika’s two children [while seated in bed]. Theaccused having come with a bottle containing acid concealed in a bag hadpoured some in to a cup and thrown it at the deceased. The deceased gota splash. The two children too had been exposed to it and were in hospitalfor more than 20 days.
According to medical evidence the deceased had 35% burn injuries.The burns were on the face, chest, abdomen, back of the chest and otherplaces of the body. These injuries were fatal in the ordinary course ofnature and even if prompt medical treatment was given the deceased wouldnot have survived. He died within 24 hours of receiving the injuries.
The Learned High Court Judge considering the second limb of section294 of the Penal Code convicted the accused of murder. The learned counselfor the accused submitted that the accused only intended to cause bodilyharm; therefore he could not be convicted for murder but for culpablehomicide not amounting to murder. With regard to the injuries caused tothe children the learned counsel submitted that the accused should bedischarged as he did not intend causing any injuries to them. The childrencame by their injuries purely on accident.
in. this appeal therefore there are two questions to be decided, namely :
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Whether the proper conviction should have been for culpablehomicide not amounting to murder and not murder as the accusedhad only intended to cause bodily harm and not death.
Whether the conviction was bad in law with regard to the injuriescaused to the children as the accused never intended harm on thechildren and the children came by their injuries purely due to anaccident. '
Murder or culpable homicide not amounting to murder ?
The Learned High Court Judge states in his judgment that the accusedwould not have intended death. A similar situation arose in the case ofSudershan Kumar Vs. State of Delhi® where the accused poured acid onthe body of the deceased who died in consequence thereof 12 days later.The injuries caused to the deceased were of a dangerous character andwere sufficient collectively in the ordinary course of nature to cause death.35% of the surface of the body of the deceased was burnt as a result ofthe injuries received by her. The appellants contention was that he did notintend to kill Maya Devi but intended only to disfigure her, and, therefore,the offence would fall either under section 304, Part 1 (section 297 of thePenal Code) or under section 326 (section 317 of the Penal Code) of theIndian Penal Code. Dismissing the appeal Mathew J. held that the act ofthe accused in pouring acid on the body was a preplanned one and heintended to cause the injuries which he actually caused. As the injuriescaused were sufficient in the ordinary course of nature to cause death, theaccused is guilty of an offence punishable under section 302 of the IndianPenal Code (section 296 of our Penal Code).
‘The offence of murder is defined under section 300 (section 294 of thePenal Code) of the IPC. According to clause 3 of that section, culpablehomicide is murder if the act by which the death is caused is done withthe intention of causing bodily injury to any person and the bodily injuryintended to be inflicted is sufficient in the ordinary course of nature tocause death”.
In Somapala vs. The Queen® H. N. G. Fernando C. J. observes at 123,“the 3rd limb of section 294 postulates one element which is also presentin the second clause of section 293, namely, the element of the intentionto cause bodily injury; but whereas the offence of culpable homicide iscommitted, as stated in the second clause of section 293, when there isintention to cause bodily injury likely to cause death, the offence is one of
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murder under the 3rd limb of section 294 only when the intended injury issufficient in the ordinary course of nature to cause death. In our opinion, itis this third limb of Section 294 which principally corresponds to the secondclause of section 293; and (as is to be expected) every intentioncontemplated in the latter second clause is not also contemplated in theformer third limb. An injury which is only likely to cause death is one inrespect of which there is no certainty that death will ensue, whereas theinjury referred to in the third limb of section 294 is one which is certain ornearly certain to result in death if there is no medical or surgical intervention.This comparison satisfies us that the object of the Legislature was todistinguish between the cases of culpable homicide defined in the secondclause of section 293, and to provide in the 3rd limb of section 294 thatonly the graver cases (as just explained) will be cases of murder. If thiswas not the object of the Legislature, then there would be no substantialdifference between culpable homicide as defined in the second clause ofsection 293 and murder as defined in the third limb of section 294. It willbe seen also that if the object of the second limb of section 294 was toadopt more or less completely the second clause of section 293, then thethird limb of section 294 would be very nearly superfluous”.
The Learned Commissioner states as follows in his summing up whileexplaining the third limb of section 294 -The third is, neither you have theintention to cause death nor the intention of causing such bodily injurywith knowledge that the bodily injury intended was likely to cause death,but you have an intention to cause bodily injury, without any suchknowledge, but the bodily injury is of such gravity that it is sufficient in theordinary course of nature to cause death. ”
Fernando C. J. observed that this explanation is perhaps literally correct,but the statement, that there need not be present the knowledge that theinjury intended was likely to cause death can, it seems, be confusing. Therequirement in the third limb that the intended injury is sufficient in theordinary course of nature to cause death presupposes at least an offender'spresumed knowledge that the intended injury is sufficient… death.
Fernando C. J. further observed that in the more common cases ofhomicide, a verdict of murder can be returned if the Jury finds that theoffender had the intention to cause death. If they do not so find, the casewill ordinarily fall within the third clause of section 293 because of theoffender’s knowledge of the likelihood of causing death; and then theimportant question is whether the offence is elevated in to the third limb ofsection 294 by reason of the gravity of the intended injury." at 125 and at 126.
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The difference between the offence of murder and culpable homicidenot amounting to murder is well explained in Rajwant Singhe vs. State ofKerala®. Here the accused conspired to burgle the safe of the Base SupplyOfficer. They collected various articles such as chloroform, adhesive plaster,cotton wool and hacksaw etc. On the night in question the accused caughtthe Lt. Commander. His legs were tied with rope and his arms were tiedbehind his back. A large adhesive plaster was stuck over his mouth andcompletely sealed. A handkerchief was next tied firmly over the adhesiveplaster to secure it in position. The nostrils were plugged with cotton soakedin chloroform and he was deposited in a shallow drain with his own shirtput under his head as a pillow. Thereafter the accused went after the safe.Anyhow the plan failed and the accused bolted off. The following day thedead body of the Lt. Commander was discovered in the drain where hehad been left. Counsel for the appellants submitted in that case that theaccused did not intend to kill the Commander but render him unconsciouswhile they rifled the safe and that the offence of murder was not established.The question to decide was whether the offence was murder or culpablehomicide.
Hidayatullah J. considering the offences of culpable homicide notamounting to murder and murder* said two offences involve the killing of aperson. They are, the offence of culpable homicide and the more heinousoffence of murder. What distinguishes these two offences is the presenceof a special mens rea which consists of four mental attitudes in the presenceof any of which the lesser offence becomes greater. These four mentalattitudes are stated in section 300,1. P. C. as distinguishing murder fromculpable homicide, (section 294 of our Penal Code) Unless the offencecan be said to involve at least one such mental attitude it cannot be
murderThe first clause says that culpable homicide is murder if the
act by which death is caused is done with the intention of causing death.An intention to kill a person brings the matter so clearly within the generalprinciple of mens rea as to cause no difficulty. Once the intention to kill isproved, the offence is murder unless one of the exceptions applies, inwhich case the offence is reduced to culpable homicide not amounting tomurder. The appellants here did not contemplate killing the Lt Commander.
The second clause deals with acts done with the intention of causingsuch bodily injury as the offender knows to be likely to cause the death ofthe person to whom harm is caused. The mental attitude here is two fold.
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There is first the intention to cause bodily harm and next there is thesubjective knowledge that death will be the likely consequence of theintended injury. English Common Law made no clear distinction betweenintention and recklessness but in our law the foresight of the death mustbe present. The mental attitude is thus made of two elements (a) causingan intentional injury and (b) which injury the offender has the foresight toknow would cause death. Here the injury or harm was intended… Theyintended that the Lt. Commander should be rendered unconscious forsome time but they did not intend to do more harm than this. Can it besaid that they had the subjective knowledge of the fatal consequences ofthe bodily harm they were causing. We think that on the facts of the casethe answer cannot be in the affirmative.
The third clause discards the test of subjective knowledge. It deals withacts done with the intention of causing bodily injury to a person and thebodily injury intended to be inflicted is sufficient in the ordinary course ofnature to cause death. In this clause the result of the intentionally causedinjury must be viewed objectively. If the injury that the offender intendscausing and does cause is sufficient to cause death in the ordinaryway of nature the offence is murder whether the offender intendedcausing death or not and whether the offender had a subjectiveknowledge of the consequences or not. As was laid down in VirsaSinghe vs. State ofPunjab(4> for application of this clause it must be firstestablished that an injury is caused, next it must be establishedobjectively what the nature of that injury in the ordinary course ofnature is. If the injury is found to be sufficient to cause death onetest is satisfied. Then it must be proved that there was an intentionto inflict that very injury and not some other injury and that it wasnot accidental or unintentional. If this is also held against the offenderthe offence of murder is established, (emphasis added).
Applying these tests to the acts of the accused the injury which causedthe death was the one inflicted by the accused. The sufficiency of theinjury was objectively established … As was pointed out in Anda vs.State of Rajastan^ “the emphasis in clause thirdly is on the sufficiency ofthe injury in the ordinary course of nature to cause death. The sufficiencyis the high probability of death in the ordinary way of nature and when thisexists and death ensues and if the causing of the injury is intended, theoffence is murder”….
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The fourth clause comprehends generally, the commission of imminentlydangerous acts which must in all probability cause death. To tie a man sothat he cannot help himself, to close his mouth completely and plug hisnostrils with cotton wool soaked in chloroform is an act imminentlydangerous to life, and it may well be said to satisfy the requirements of thelast clause also, although that clause is ordinarily applicable to cases inwhich there is no intention to kill anyone in particular. We need not however,discuss the point in this case. The court having held that the offencecommitted was murder, dismissed the appeal.
In the case of Vishnu Daga Pagarand Others vs. State ofMaharastraP>the deceased party and the accused party were residents of the samevillage. Till a day prior to the incident the relations between the partieswere cordial. On the morning of the date of the incident it was found thatthe bund between the field of the complainant and the accused weredestroyed by the accused. The deceased had gone to the accused andquestioned the accused. An hour later the accused having come withothers, inflicted a sickle blow on the head of the deceased. The deceaseddied the same day. Death was due to shock as a result of a fracture of theskull and inter cranial haemorrhage. The injuries were sufficient in theordinary course of nature to cause death.
The contention of the counsel for the defense was that no offense ofmurder was made out. He contended that only a solitary blow was inflictedand if he wanted to kill him he would have repeated the blow. He alsocontended that it was the blunt side of the sickle that was used. He alsoargued that such injury caused does not always end in death and thereare cases of recovery after the vault of the scull was fractured.
The medical evidence is that the deceased died on account of a fractureof the scull and inter cranial haemorrhage and the injuries were sufficientin the ordinary course of nature to cause death. Sahai J held that “inorder to bring an offense within the third limb of section 300, twothings have to be established namely (1) there should be intentionto cause bodily injury which has been actually caused to a person.In other words the bodily injury caused should not be accidental;and (2) the injury caused should be sufficient in the ordinary courseof nature to cause death.-Sfafe of Karnataka Vs. Vedanayagamm Ifsuch an intention to cause that particular injury is made out and ifthe injury is found to be sufficient in the ordinary course of nature
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to cause death, then clause thirdly of section 300 IPC is attracted”The expression ‘ordinary course of nature’ means normal course or duecourse. At best it may envisage a high probability of death. On the conversethe word ‘always’ means inevitable or invariably. In our judgment theexpression "sufficiency in the ordinary course of nature to cause death”only means in normal or due course or at the best may envisage a highprobability of death but certainly does not mean that the injury shouldinvariably or inevitably lead to death. The distinction between theexpressions high probability of death and death invariably or inevitablytaking place though fine is substantial and if overlooked may result ingross-miscarriage of justice. Note 8 at page 2437.
The following judgments were relied on by court. In Thakura Das vs.State® the court observed thus; “it is not necessary for the application ofclause (3) of section 300 that the injury must be such as would make itimpossible for the injured to escape death. All that is required is that theinjury intended must be such as would in the ordinary course of nature besufficient to cause death. There may be a case in which even though theinjury was sufficient in the ordinary course of nature to cause death theinjured may escape death but, if he dies as a result of such an injury theoffence would be covered by clause (3) of section 300 and be murder. Ifhowever the injury is of such a nature as is only likely to cause death andwould not in the ordinary course be sufficient to cause death, it would beculpable homicide not amounting to murder”
The next case cited is Anda vs. State of Rajastan (supra) whereHidayatullah J. observed thus : “the third clause views the matter from ageneral stand point. It speaks of an intention to cause bodily injury whichis sufficient in the ordinary course of nature to cause death. The sufficiencyis the probability of death in the ordinary way of nature and when thisexists and death ensues and the causing of such injury is intended theoffence is murder. Sometimes the nature of the weapon used, sometimesthe part of the body of which the injury is caused, and sometimes both arerelevant. The determinant factor is the intentional injury which must besufficient to cause death in the ordinary course of nature, that is to say, ifthe probability of death is not so high, the offence does not fall within murderbut, within culpable homicide not amounting to murder or something less”.
The third authority cited is In re Singaram Padayachim where the courtobserved thus: “We are not prepared to assent to any agreement that aninjury sufficient in the ordinary course of nature to cause death is an injury,which inevitably and in all circumstances must cause death. If the probability
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of death is very great, then it seems to us the requirement of thirdly undersection 300 are satisfied, and the fact that a particular individual may be thefortunate accident of his having secured specially skilled treatment or beingin possession of a particularly strong constitution have survived an injurywhich would prove fatal to the majority of persons subjected to it, is notenough to prove that such an injury is not sufficient ‘in the ordinary course ofnature’ to cause death”. The court having held that there is high probabilityof death dismissed the appeal.
The accused in this case under review, by throwing acid on to thedeceased had intended to cause the injuries actually caused. The injuriescaused were sufficient in the ordinary course of nature to cause death.Those injuries were said to be fatal and the deceased succumbed to theinjuries within 24 hours. This means that the probability of death occurringwas very high. The fact that the accused intended to cause only bodilyharm and not death is therefore immaterial. The section itself amplydemonstrates this position. Section 294 is as follows
“294 Except in the cases hereinafter excepted, culpable homicide ismurder-”
Thirdly-lf it is done with the intention of causing bodily injury toany person, and the bodily injury intended to be inflicted is sufficientin the ordinary course of nature to cause death;
The illustration further clarifies the legal position which is as follows
A intentionally gives Z a sword cut or club wound sufficient tocause the death of a man in the ordinary course of nature. Z dies inconsequence. Here A is guilty of murder although he may not haveintended to cause Z’s death (emphasis is added).
In this case although the learned High Court Judge finds the accusedguilty of murder under the second limb of section 294, it should be underthe third limb of section 294.
Injuries not intended ?
Section 295 of the Penal Code is as follows
If a person, by doing anything which he intends or knows to belikely to cause death, commits culpable homicide by causingthe death of any person whose death he neither intends norknows himself to be likely to cause, the culpable homicidecommitted by the offender is of the description of which it wouldhave been if he had caused the death of the person whose
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death he intended or knew himself to be likely to cause(emphasis added).
In King vs. Edwin<10> the accused fired at a person intending to kill himand caused the death of another person whose death was not intended.Soertz S. P. J. with Hearne and Jayatileke JJ agreeing held that the accusedwas guilty of murder. The Supreme Court approved the following charge. “Itis quite immaterial that the death caused was that of a man other than hiswhose death was intended … If A fires at B with the intention of killinghim and accidentally hits C and B goes scot free, the intention of theperson who shot C is the same as if B was killed according to plan. Theappeal was dismissed.
In Queen vs. Latimer<11> the accused intended to strike one Chappiewith a belt and struck the prosecutrix who was standing close by. LordColeridge C. J. said “a man who has an unlawful and malicious intentagainst another and in attempting to carry out, injures a third person isguilty of what the law deems malice against the person injured, becausethe offender is doing an unlawful act, and has that which the Judges callgeneral malice and that is enough". Where the appellant has the intentionto kill A and if with the intention, he kills somebody else, he is undoubtedlyguilty of committing murder. Harishankar alias Harishankar Sharma vsState of Mysore-Goweri12* at 2565.
In Ballan vs The State*13* a shot fired at a Sub Inspector struck aconstable and death ensued. Roy J said at 629 “It may be pointed out thatthe intention of causing death is not the intention of causing the death ofany particular person. The 1st illustration to section 299 (section 293 ofthe Penal Code) shows that a person can be guilty of culpable homicide ofa person whose death he did not intend. The same may be gathered fromillustration ‘d’ to clause (4) of section 300 IPC (section 294 of the PenalCode). That illustration says that where A without any excuse fires loadedcannon in to a crowd of persons and kills one of them, A is guilty of murderalthough he may not have had a premeditated design to kill any particularindividual” Roy J said that the scope of section 301 of the IPC (295 of ourPenal Code) is clear enough.
As harm was intended on someone, the accused has no escape fromliability of the injuries caused to the children either. Both arguments of thelearned counsel therefore fail-Hence the appeal is dismissed.
BALAPATABENDI J. – / agree.
Appeal dismissed.