026-SLLR-SLLR-2008-V-2-CHANDRASENA-ALIAS-RALE-v.-ATTORNEY-GENERAL.pdf
CAChandrasena alias Rale v Attorney-General255
CHANDRASENA ALIAS RALEv
ATTORNEY-GENERALCOURT OF APPEALRANJIT SILVA, J.
SISIRA DE ABREW, J.
CA 34/2002
HC RATNAPURA 119/93MAY 21, 22, 2007
Penal Code Sections 293, 294 and 295 – Section 419 – proving a charge ofmurder? Requirements – Expert opinion – Is it only a guide ? Sufficient to causedeath – Proof? – Nexus between the injuries and cause of death Third and fourthlimb of Section 294.
The accused-appellant was convicted of the murder of one P and of the offenceof causing mischief to the boutique of PS..
In appeal it was contended that (1) the identity of the accused-appellant had notbeen established (2) that the prosecution had failed to prove the charge ofmurder – that the death of the accused was not the direct result of the injuriescaused by the burns but was on account of some supervening circumstances(septicemia) not resulting from injuries. (3) that the prosecution failed to establisha charge of murder under the third limb of Section 294.
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Held:
At the time of the incident witness Premarathne, who knew the appellant fornearly 10 years, saw the appellant running away from the compound of theboutique. In the light of the above evidence, there was no question thatPremarathne making mistake about the identity of the appellant.
"Sufficient to cause death" in the ordinary course of nature means the injury,if left to the nature without resorting to proper medical remedies and skillfultreatment has resulted in death.
A medical witnesses called in as an expert is not a witness of fact. Hisevidence is really of an advisory character given on the facts submitted tohim. Whilst the opinion of expert being a guide to Court it is the Court whichmust come to its own conclusion with regard to the issues of the case. ACourt is not justified in delegating its function to an expert and acting solely
on latter's opinion.
The victim in the instant case died due to septicemia following infectedulcers, infected ulcers caused as a result of the burns infected by an act ofthe appellant – there is direct nexus between the burns and the cause ofdeath. In a case of murder even if the death of the victim was not directly dueto the injuries inflicted by the accused but due to other conditions such assepticemia occurred a result of the injuries inflicted by the accused, it isjustifiable to conclude and should conclude that it was the act of the accused
1 that caused the death of the victim.
Held further
In order to establish a charge of murder under the third limb of Section 294the prosecution must prove the following ingredients beyond reasonabledoubt.
Accused inflicted bodily injury to the victim.
The victim died as a result of the above bodily injury.
Accused had the intention to cause the above body injury.
Injury was sufficient to cause the death of the victim in the ordinarycourse of nature
PerSisira de Abrew, J.
"The victim was in her boutique at the time of the incident. The prosecution casewas that the appellant threw an object like a bottle. Immediately thereafter thevictim was in flames and the boutique was engulfed in flames. Thus the appellantknew that it was imminently dangerous that it must in all probability cause deathof the inmates of the boutique by his act and bodily injuries have been causedto the victim which were not only likely to cause death but are sufficient in theordinary course of nature to cause death, This act was done by the appellantwithout any excuse. Thus in my view the appellant was guilty of murder underthe fourth limb of Section 294.
APPEAL from the judgment of the High Court of Ratnapura.
Chandrasena alias Rale v Attorney-General
CA(Sisira de Abrew, J.)257
Cases referred to:
Queen v Mendis 54 NLR 177.
Abeysundara v Queen 74 NLR 169.
Sumanasiri v A.G. (1999) 1 SLR 309.
Rex v Mubila(1956) SALR.31
Ruhunuge Palitha v AG CA 1/2004 decided on 15.5.2007.
Virsa Singh v State of Punjab MR 1958 (SC) 465 at 467.
Charles Perera v Motha 65 NLR 294.
Gratiaen Perera v Queen 61 NLR 522.
Sudarshan Kumar v State of Delhi AIR 1974 SC Vol. 61 page 2328.
Queen v Mendis 54 NLR 177.
Abeysundara v Queen 74 NLR 169.
Rv Sm/'f/7 1959 2 All ER 193 at 198.
Regina v. Blaue (1975) 1 WLR 1411.
R. v Jordan (1956) 40 Cr. App. Rep. 152.
Lord v Pacific Steam Navigation Co. Ltd. (1943) 1 All E.R. 211 at 215.
Virsa Singh v State of Punjab AIR 1958 Vol. 45 at 465.
Rajwant Singh v State of India AIR 1966 SC 1874.
Hajinder Singh v Delhi Administration AIR 1968 SC 867.
State of Maharashtra v Arun Savalaram 1989 Cri. LJ 191.
Rajwant Singh v State of Kerala AIR 1966 SC 1874 at 1878.
Ranjith Abeysuriya PC with Thanuja Rodrigo for appellant.
Menaka Wijesundara SSC for Attorney-General.
July 19, 2007
SISIRA DE ABREW, J.The accused appellant (the appellant) was convicted of the
murder of a woman named Premawathi and of the offence ofcausing mischief to the boutique of Podisingho (an offence underSection 419 of the Penal Code). On the 1st count the appellant wassentenced to death and on the 2nd count he was sentenced to fiveyears rigorous imprisonment.
Facts
The case for the prosecution may be quite briefly summarized asfollows:
Podisingho, the father of Premawathi, was running a boutique.Premawathi too worked in the boutique especially doing the cashier'swork. Around 7.00 p.m. on 26th of September 1991, Jayawardene ason of Podisingho, on seeing his father's boutique on fire, rantowards the boutique and saw his father and sister Premawathi
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suffering from extensive burn injuries. Premawathi who wassuffering from extensive burn injuries told him that Chandrasenaattacked her with a glass bottle. Premawathi told the same thing toJayawardene when she was being taken to the hospital.Chandrasena, the appellant, is also referred to 'Rale'. WhenPremarathne one of the brothers of Premawathi was approachingthe boutique he heard from a distance of 20 feet from the boutique asound of a chimney being broken. As he rushed to the scene he sawthe appellant running away from the compound of the boutique.Premawathi who was in flames told him that Rale attacked her. Inorder to douse the fire he covered her body with a gunny bag. At thattime the boutique, which was usually illuminated by three lamps, keptat various places, was in flames. Premawathi who was rushed to thehospital died after seventeen days.
Identity of the appellant
Learned President's Counsel for the appellant contended that theidentity of the appellant had not been established by the prosecution.Learned President's Counsel, however, did not challenge thereception of the dying declaration as evidence. At the time of theincident, Premarathne, who knew the appellant for nearly ten years,saw the appellant running away from the compound of the boutique.In the light of the above evidence, there was no question thatPremarathne making a mistake about the identity of the appellant.Premawathi, the deceased, in her statement marked P1 made to IPSirinil de Silva stated that Rale alias Chandrasena came to theboutique and threw a glass object to her face and immediatelythereafter a fire broke out; that her clothes caught fire; and that shetoo was in flames. Premawathi who was elder to Premarathne shouldalso know the appellant since she, in her dying declaration, referredto the appellant in both names. Learned President's Counsel,referring to Jayawardene's evidence at page 86, contended that thedeceased Premawathi, in her dying declaration, had told that it wasa person like Chandrasena who attacked her. This was in responseto a question by the defence on the same premise. Considering thequestion and the answer at page 86 of the brief, I have to express theview that there is no merit in this contention and therefore the sameis rejected.
In the light of the above evidence, I hold that the identity of theappellant had been established beyond reasonable doubt. I therefore
Chandrasena alias Rale v Attorney-General
CA(Sisira de Abrew, J.)259
reject the contention of the learned President's Counsel.
The other ground urged by the learned President's Counsel asmilitating against the maintenance of the conviction of murder wasthat the prosecution had failed to prove the charge of murder. It wascontended by the learned President's Counsel that the death of thedeceased was not the direct result of the injuries caused by the burnsbut was on account of some supervening circumstances(septicemia) not resulting from the injuries and therefore theappellant could not be held guilty of murder. He .further contendedthat there was no great antecedent probability of death resulting fromthe injuries inflicted, as opposed to mere likelihood of death and assuch the prosecution had failed to prove the charge of murder underlimb three of Section 294 of the Penal Code. He sought to strengthenhis argument by drawing our attention to the fact that the victim diedseventeen days after the infliction of the injuries. It was his argumentthat appellant, at the most, could have been convicted of attemptedmurder or culpable homicide not amounting to murder. In support ofhis argument he cited Queen v Mendi&h and Abeysundara vQueenP). Learned SSC cited Sumanasiri v >4G.(3)
Section 294 of the Penal Code
I now turn to the above contentions. In order to appreciate thesecontentions it is necessary to consider Section 294 of the PenalCode which is reproduced below:
"Except in the cases hereinafter excepted, culpable homicide ismurder –
Firstly – if the act by which the death is caused is done with theintention of causing death; or
Secondly – If it is done with the intention of causing such bodily injuryas the offender knows to be likely to cause the death of the personto whom the harm is caused; or
Thirdly – If it is done with the intention of causing bodily injury to anyperson, and the bodily injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death; or
Fourthly – If the person committing the act knows that it is soimminently dangerous that it must in all probability cause death orsuch bodily injury as is likely to cause death, and commits such actwithout any excuse for incurring the risk of causing death or suchinjury as aforesaid."
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Explanation 2 to Section 293 of the Penal Code states as follows:
" Where death is caused by bodily injury ,the person who causessuch bodily injury shall be deemed to have caused the death,although by resorting to proper remedies and skilful treatment thedeath might have been prevented
The meaning of 'sufficient to cause death in the ordinary courseof nature1.
'Sufficient to cause death in the ordinary course of nature', in myview, means “the injury, if left to the nature without resorting to propermedical remedies and skillful treatment, has resulted in death. Thisview is supported by the following opinions. Justice Jayasuriya, inSumanasiri v AG (supra) citing the case of Rex v MubilaW at 31remarked thus; "Where death is caused by a bodily injury, the personwho cases such bodily injury, shall be deemed to have caused deathalthough by resorting to proper remedies and skillful treatment deathmight have been prevented."
"If a wound is inflicted and death results the person who inflictedthe wound will be held to have caused the death although the victimmay have neglected to use proper remedies or have refused toundergo a necessary operation". Vide Haulsbury's Laws of England-4th edition Vol.ii, Criminal Law, Evidence and Procedure page 616.
Expert's opinion is only a guide to Court. Court must come to itsconclusion with regard to the issues of the case.
In the instant case, the death of the deceased was due tosepticemia following superficial ulcers. According to the doctor who
performed the post-mortem, 65% of the surface of the body wasburnt and in the anterior side burns were found from face to waist andin the posterior side from neck to waist. The entire face except eyeswas burnt. The death has resulted due to infected burn injuries evenafter treatment for seventeen days. Septicemia sets in as a result ofthe germs getting collected on the wounds. This was the evidence ofthe doctor. Although the doctor did not, in his evidence, use the exactwords the injuries were 'sufficient to cause death in the ordinarycourse of nature', if this position was clear from the doctor's evidencethe absence of such words should not disturb the findings of Court.In my view, that is a decision that should be reached by Court on theevidence placed before Court, if not, the sacred and importantdecision whether the accused should be convicted for the charge of
Chandrasena alias Hale v Attorney-General
CA(Sisira de Abrew, J.)261
murder or not is abdicated to the doctor by Court. I may posehere to ask a simple question. In a case of murder where severanceof the neck of the victim to a degree of 75% could be seen and istestified by the doctor who performed the post-mortem but theopinion whether the injury was sufficient to cause death in theordinary course of nature was not elicited, does one need an expertmedical opinion to say that such an injury was sufficient, in theordinary course of nature, to cause death. In such a case if theaccused is acquitted of the charge of murder due to the absence ofthe said medical opinion such a decision inevitably lead to absurdity.In my view, on the available evidence, if the Court can come to itsindependent decision, then Court should not turn a blind eye to suchevidence and shirk its responsibility on the basis that the words setout in law had not been expressed by the medical expert. In such asituation, it should be open for Court to come to its independentdecision with regard to the fact in issue. If the Court below had notcome to specific finding on a matter of this nature that does not meanthat the Court of Appeal should blindly follow the path of the courtbelow and shirk from its responsibility. The Court of Appeal in such asituation can come to the right conclusion on the available evidence.
The opinion expressed by His Lordship Justice Ranjith Silva inthe case of Ruhunuge Palitha v AQ5> lends support to the abovecontention. His Lordship remarked thus: "It does not matter whetherthe Prosecution failed to elicit in evidence from the medical officerthat there was great antecedent probability for the injury to causedeath. The outcome of a case to my opinion should not depend onsome specific words uttered by a medical expert and must be left tothe decision of the Judge." One must, in this regard, should not forgetthe fact that the injury was sufficient to cause death in the ordinarycourse of nature must be proved objectively as observed by theIndian Supreme Court in Virsa Singh v State of Punjab^6) at 467. HisLordship Justice Bose in the above case commenting on thequestion whether the injury should be sufficient to cause death in theordinary course of nature observed thus: "This part of the enquiry ispurely objective and inferential and has nothing to do with theintention of the offender." (Emphasis added).
For the above reasons, I am of the opinion that it is open for Courton the evidence led at the trial and with the assistance of medicaljurisprudence, to come to the conclusion whether the injuries were
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sufficient to cause death in the ordinary course of nature, in my viewprimary function of Courts is to arrive at the correct decision on theevidence placed before Courts. Thus failure by the medical expert topronounce certain words stated in law should not shut the sacredduty being performed by Courts. This principle is equally applicableto the Court of Appeal as well. In Charles Perera v MothawBasnayake CJ held thus: "The evidence of a handwriting expertmust be treated as only a relevant fact and not as conclusive of thefact of genuineness or otherwise of the handwriting in question. Theexpert's opinion is relevant but only in order to enable the Judgehimself to form his own opinion."
In Gratiaen Perera v Queer*8) Sinnathamby J. remarked thus: "ACourt is not justified in delegating its function to an expert and actingsolely on latter's opinion."
Sarkar on Evidence 15th edition Vol. 1 page 901 dealing withmedical opinion states thus: If the oral evidence leads to a positiveconclusion one way or the other the opinion of experts have to yieldor have to be accepted or rejected in accordance with the findingarrived at on appraisal of direct oral evidence . …A medical witnesscalled in as an expert is not a witness of fact. His evidence is reallyof an advisory character given on the facts submitted to him." Theabove judicial decisions and legal literature will show that whilst theopinion of expert being a guide to Court it is the Court which mustcome to its own conclusion with regard to the issues of the case.
When more than 50 percent of the surface of the body is burnt,are the injuries fatal?
In the present case, what is the medical evidence placed beforeCourt in this regard? Both sides of the body were burnt. Burns on theanterior side from face to waist and on the posterior side from neckto waist were found. Sixty five percent of the surface of the body wasburnt. Burns were infected and septicemia was set in as a result ofthe infected burns. She was given medical treatment for 17 days anddied in the General Hospital Ratnapura.
'Sufficient to cause death in the ordinary course of nature meansthe injury, if left to the nature without resorting to proper medicalremedies and skillful treatment, resulting in death. In the presentcase, the injuries even after being treated in Godakawela Hospitaland General Hospital at Ratnapura resulted in the death of the victim.
Chandrasena alias Rale v Attorney-General
CA(Sisira de Abrew, J.)263
Thus it can't be said that the injuries were not sufficient to cause deathin the ordinary course of nature. This position goes to show that theinjuries were sufficient to cause death in the ordinary course of nature.
Modi in his book titled "Medical Jurisprudence and Toxicology"12th edition page 184 referring to burns of a human body states thus:"There is marked fluid loss resulting in shock when over 20 percent ofthe body is affected and usually over 50 percent is fatal." Modi at thesame page states thus: "Burns of the genital organs and lower part ofthe abdomen are often fatal.""… In supportive cases death may occurafter five six weeks or even longer." (ibid pg. 186.)
Taylor says that after the fourth day of the injury, "the chief dangerto life is the occurrence of sepsis in the burned areas." (See Taylor'sPrinciples and Practice of Medical Jurisprudence 12th edition Vol. Ipage 331.)
Supreme Court of India in Sudarshan Kumar v State of Delhi,&considering the above medical jurisprudence affirmed the convictionof murder of a victim who died of Septicemia following infected ulcerscaused by acid burns which were inflicted by the accused twelve daysbefore the death.
In Sudarshan Kumar’s case (supra) the facts are as follows:
"The accused poured acid on the body of the deceased who diedin consequence thereof. It was very clear from the medical evidencethat the injuries caused to the deceased were of a dangerouscharacter and were sufficient collectively in the ordinary course ofnature to cause death. The medical evidence was clear that 35% ofthe surface of the body of the deceased was burnt as a result of theinjuries received by her and that if the burns exceeded 30%, the samewould be dangerous to life. It was also clear from the prosecutionevidence and the dying declaration of the deceased that the accusedthreatened the deceased that if she did not marry him, she will havea lingering death. Supreme Court of India held: "that the act of theaccused in pouring acid on the body was a pre-planned one and heintended to cause the injury which he actually caused. As the injuriescaused were sufficient in the ordinary course of nature to cause death,the accused was guilty of an offence punishab under Section 302.The fact that the deceased lingered for about 12 days would not showthat the death was not the direct result of the act of the accused inthrowing acid on her. So also the fact that the deceased developed
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symptoms of malaena and respiratory failure and they alsocontributed to her death could not in any way affect the conclusionthat the injuries caused by the acid burns were the direct cause ofher death."
Section 302 of the Indian Penal Code prescribed the punishmentfor those who are guilty of murder.
In the present case, burns were found from face/neck to waist.That is, according to the doctor, 65 percent of the surface of thebody. In my view, prosecution has placed sufficient evidence forcourt to conclude that the injuries found on the body of the deceasedwere sufficient to cause death in the ordinary course of nature. In thelight of the above medical jurisprudence and the legal literature, inthe present case I ask the question: Were the injuries sufficient tocause death in the ordinary course of nature? This question has tobe answered in the affirmative. Thus, there is no doubt that theinjuries were sufficient in the ordinary course of nature to causedeath.
The person who inflicted the injury will be held to havecaused the death of the victim if the nexus between the injuriesand the cause death is established.
Premawathi, the victim in the instant case, died due to septicemiafollowing infected ulcers. Infected ulcers were caused as a result ofthe burns inflicted by an act of the appellant. Thus direct nexusbetween the burns and the cause of death is established.
In Queen v Mendis Gratiaeri10) J. held: "Where toxaemiasupervened upon a compound fracture which resulted from a clubblow inflicted by the accused and the injured person died of suchtoxaemia –
Held that as the injured man's death was not immediatelyreferable to the injury actually inflicted but was traced to somecondition which arose as a supervening link in the chain ofcausation, it was essential in such cases that the prosecutionshould, in presenting a charge of murder, be in a position to placeevidence before the Court to establish that 'in the ordinary course ofnature', there was a very great probability (as opposed to a merelikelihood) (a) of the supervening condition arising as aconsequence of the injury inflicted, and also (b) of such superveningcondition resulting in death."
Chandrasena alias Rale v Attorney-General
CA(Sisira de Abrew, J.)265
In Abeysundara v QueerK11> Alles, J. remarked: "The accused-appellant, who was charged with murder, was convicted at the trial ofculpable homicide not amounting to murder. The deceased, who wasstabbed on the abdomen by the appellant, was operated on the sameday and the injuries were healing at the time of her death nearly twoweeks later. A post-mortem examination showed that death was dueto cardio-respiratory failure following extensive broncho-pneumoniaof the lung. According to the medical evidence, broncho-pneumoniawas a possibility and not a probability, and there was a reasonabledoubt whether the death of the deceased was, as a result of theinjuries inflicted by the appellant.
Held, that, on the medical evidence led, the charges of murder orculpable homicide not amounting to murder should have beenwithdrawn from the consideration of the jury. Accordingly, the verdictshould be altered to one of attempted culpable homicide notamounting to murder."
In Abeysundara's case (supra) there was a reasonable doubtwhether the death was as a result of the injuries inflicted by theappellant. But in the instant case, I have pointed out the existence ofthe direct nexus between the burns caused by the appellant and thecause of death and as such Abeysundara's case has no applicationhere.
In Sumanasiri v Attorney-General (supra) His Lordship JusticeJayasuriya held: "Death was traceable to the direct cranio-cerebral
injury inflicted by the first accused-appellant on the head of thedeceased with a heavy sledge hammer using considerable force. Theprosecution case thus comes within the purview of clause 3 toSection 294 of the Penal Code. An accused person is liable not onlyfor the direct consequences of his act but he is equally liable for theconsequences of any supervening condition which is directlytraceable to his act."
In R v SmitW2) at 198, Lord Parker CJ, stated thus; "It seems tothe Court that, if at the time of death the original wound is still anoperating cause and a substantial cause, then the death can properlybe said to be the result of the wound, albeit that some other cause ofdeath is also operating."
In Regina v B/aue<13) the facts are as follows: "The defendantstabbed young woman of 18 with a knife, which penetrated her lung.
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She was taken to hospital where she was told that a bloodtransfusion and surgery were necessary to save her life. She refused tohave blood transfusion on the ground that it was contrary to her religiousbelief as Jehovah's Witness and she died the following day. The causeof death was bleeding into the pleural cavity, which would not have beenfatal if she had accepted medical treatment when advised to do so. Thedefendant was charged with murder. The judge, in directing the jury onthe issue of causation, said that they might think that they had littleoption but to find that that the stab wounds were still an operative orsubstantial cause of death when the victim died. The defendant wasconvicted of manslaughter on the ground of diminished responsibility.The prosecution admitted at the trial that had she had a bloodtransfusion when advised to have one she would not have died. Theevidence called by the prosecution proved that at all relevant times shewas conscious and decided as she did deliberately, and knowing whatthe consequences of her decision would be. The contention of thedefence was that her refusal to have blood transfusion had broken thechain of causation between the stabbing and her death." Held:"dismissing the appeal, that the death of the victim was caused by a lossof blood as a result of the stab wounds inflicted by the defendant andthe fact that she had refused a blood transfusion did not break thecausal connection between the stabbing and the death; that since thecriminal law does not require the victim to mitigate her injuries, andsince assailant was not entitled to claim that the victim's refusal ofmedical treatment because of her religious beliefs was unreasonable,the jury were entitled to find that the stab wounds were an operative orsubstantial cause of death."
In R v Smith (supra) the deceased person who was a soldierreceived two bayonet wounds from the accused, one in the arm andone in the back. The injury in the back, unknown to any body, hadpierced the lung and caused haemorrhage, A fellow member of hiscompany (another soldier) tried to carry him to the Medical ReceptionStation. On the way he tripped over a wire and dropped the victim. Hepicked up him again, went a little further, and fell causing the victim tobe dropped again. Ultimately the victim was, with the help of theothers, brought into the Medical Reception Station. The MedicalOfficer at the station and his orderly who were trying to cope up witha number of other urgent cases did not appreciate the seriousness ofthe victim's condition. He died after he had been in the station about
Chandrasena alias Rale v Attorney-General
CA(Sisira de Abrew, J.)267
an hour which was about two hours after the original stabbing. Therewas evidence that there was a tendency for a wound of this sort toheal and for haemorrhage to stop. Dr. Camps, who gave evidence forthe defence, said that his chances of recovery were as high asseventy five percent. It was contended on behalf of accused if therehad been any other cause whether resulting from negligence or notand if something had happened which impeded the chances of thevictim recovering then the death had not resulted from the woundinflicted by the accused. Lord Parker CJ rejecting the said argumentand affirming the conviction of murder said: "It seems to the Court thatif at the time of death the original wound is still an operating cause anda substantial cause, then death can properly be said to be the resultof the wound, albeit that some other cause of death is also operating.Only if it can be said that the original wound is merely the setting inwhich another cause operates, can it be said that death does notresult from the wound. Putting it another way, only if the second causeis so overwhelming as to make the original wound merely part of itshistory can it be said that death does not flow from the wound."
Lord Parker CJ, in the above case, did not follow R v Jordan<14).Referring to that case Lord Parker CJ said: "The Court is satisfied thatR v Jordan was a very particular case depending on its exact facts. Itincidentally arose in the Court of Criminal Appeal on the grant of anapplication to call further evidence, and, leave having been obtained,two well-known medical experts gave evidence that in their opiniondeath had been caused, not by the stabbing, but by the introductionof Terramycin after the deceased had shown that he was intolerant toit and by the intravenous introduction of abnormal quantities of liquid.It also appears that, at the time when it was done, the stab wound,which had penetrated the intestine in two places, had mainly healed.In those circumstances the Court felt bound to quash the conviction…"
It is pertinent to quote a passage from the judgment of Lord Wright.In Lordv Pacific Steam Navigation Co. Ltd., the Oropseahv where HisLordship said that to break the chain of causation" "It must always beshown that there is something which I will call extraneous, somethingunwarrantable, a new cause coming in disturbing the sequence ofevents, something that can be described as either unreasonable orextraneous or extrinsic." This quotation was cited with approval andapplied by Lord Parker CJ in R. v Smith {supra).
In Mendis's case {supra) both accused attacked the deceased with
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a sword and a club and the deceased received a compound fracturein his right leg. The death of the deceased was due to toxaemia fromgas gangrene following the compound fracture of the right leg.Medical opinion was that gangrene which was quite a commoninfection in Ceylon was brought by bacterial infection. Thus theoperating and substantial cause appears to be the compound fractureof the leg. Therefore it is possible to argue that in Mendis's case thecausal connection between death and the compound fracture was notbroken. On a comparison, the judgment in Mendis's case does notaccord with the sacred and respected views expressed by LordParker CJ in R v Smith (supra). The judgment of Lord Parker CJ wasfollowed in Regina v Blaue (supra). Justice Jayasuriya, havingconsidered the Mendis's case, applied the dicta of Lord Parker CJ inSumanasiri v AG (supra). Justice Gratiaen in Mendis's case statedthus: "As the injured man's death was not immediately referable to theinjury actually inflicted but was traced to some condition which aroseas supervening link in the chain of causation …" Thus, if, in a casewhere the injured man's death was immediately referable to the injuryactually inflicted by the accused, the judgment delivered in Mendis'scan't have an application to such a case. In the present case I have,earlier, pointed out the establishment of direct nexus between theburns inflicted by the appellant and cause of death. Further accordingto Modi's Medical Jurisprudence (supra) page 184 if the body is burntover 50% such injuries are fatal. Medical Jurisprudence by Taylor(supra) page 331 says that 'the chief danger to life is the occurrenceof sepsis in the burned areas'. It is therefore seen that the death of thedeceased in the instant case, was immediately referable to theinjuries inflicted by the appellant. Thus the judgment delivered inMendis's case has no application to this case.
In the present case I would like to apply the dictum of Lord ParkerCJ and hold that the death of the deceased was caused as a result ofthe act of the appellant.
In the light of the above judicial decisions, I hold that in a case ofmurder even if the death of the victim was not directly due to theinjuries inflicted by the accused but due to other conditions (such assepticemia) occurred as a result of the injuries inflicted by the accusedit is justifiable to conclude and should conclude that it was the act ofthe accused that caused the death of the victim.
Chandrasena alias Rale v Attorney-General
CA(Sisira de Abrew, J.)269
When a victim died of septicemia following infected ulcersoccurred as a result of burns inflicted by the accused, the contentionthat the accused should be exonerated from the charge of murder onthe basis that he did not inflict the injuries that caused the deathnamely septicemia is wholly untenable and should be rejected.
Since the learned President's Counsel advanced an argumentbefore us that the prosecution had failed to establish the charge ofmurder under third limb of Section 294 of the Penal Code, I would liketo consider whether this argument is tenable. In this regard, I mustconsider the ingredients that must be proved under third limb ofSection 294 of the Penal Code. This matter was considered at lengthby the Indian Supreme Court in Virsa Singh v State of Punjab6).Indian Supreme Court discussing the third limb of Section 300 of theIndian Penal Code which is in terms identical with Section 294 of theCeylon Penal Code observed as follows: "To put it shortly, theprosecution must prove the following facts before it can bring a caseunder Section 300 'thirdly';
First, it must establish, quite objectively, that a bodily injury ispresent;
Secondly, the nature of the injury must be proved; These arepurely objective investigations.
Thirdly, it must be proved that there was an intention to inflict thatparticular bodily injury, that is to say that it was not accidental orunintentional or that some other kind of injury was intended.
Once these elements are proved to be present, the inquiryproceeds further and ,
Fourthly, it must be proved that the injury of the type just describedmade up of the three elements set out above is sufficient to causedeath in the ordinary course of nature. This part of the inquiry is purelyobjective and inferential and has nothing to do with the intention of theoffender. Once these four elements are established by theprosecution (and, of course, the burden is on the prosecutionthroughout) the offence is murder under Section 300 thirdly. It dosenot matter that there was no intention even to cause an injury of a kindthat is sufficient to cause death in the ordinary course of nature ….Once the intention to cause bodily injury actually found to be presentis proved, the rest of the inquiry is purely objective and the onlyquestion is whether, as a matter of purely objective inference, the
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injury is sufficient in the ordinary course of nature to cause death."This judgment was cited with approval in so many later cases such asRajwant Singh v State of Keralai17), Hajinder Singh v DelhiAdministration<18), and State of Maharashtra v A run Savafarant1Q).
In State of Maharashtra v Arun Savalaram (supra) Indian Courtobserved thus: "For the 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 one testis satisfied. Then it must be proved that there was an intention to inflictthat very injury and not some other injury and that it was not accidentalor unintentional. If this is also held against the offender the offence ofmurder is established."
Their Lordships of the Indian Supreme Court considered theprovisions of Section 300 of the Indian Penal Code in Rajwant Singhv State of Kerala^2°) at 1878 and remarked thus: "Third clause theintentior of causing bodily injury to a person and the bodily injuryintended to be inflicted is sufficient in the ordinary course of nature tocause death. In this clause the result of the intentionally caused injurymust be viewed objectively. If the injury that the offender intendscausing and does cause is sufficient to cause death in the ordinarycourse 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."
In order to establish a charge of murder under third limb of Section294 of the Penal Code, prosecution must prove the followingingredients beyond reasonable doubt.
The accused inflicted a bodily injury to the victim.
The victim died as a result of the above bodily injury.
The accused had the intention to cause the above bodily injury.
The above injury was sufficient to cause the death of the victimin the ordinary course of nature.
ConclusionIn the instant case, the fact that the appellant caused injuries to thevictim was proved. The appellant came to the boutique and threw anobject similar to a glass bottle. Immediately thereafter Premawathi
Chandrasena alias Rale v Attorney-General
CA(Sisira de Abrew, J.)271
was in flames and the boutique was engulfed in flames. Thus theintention of the appellant to inflict injuries to Premawathi was proved.
I go one stop further and say that the intention of the appellant wasnot only to inflict bodily injury but to cause death of the victim. Thus itis clear that the appellant had done this act with the intention ofcausing death of the deceased. The injuries inflicted by the appellantwere sufficient to cause death in the ordinary course of nature. Thevictim died as a result of the injuries inflicted by the appellant. Thusthe prosecution had proved the aforementioned four ingredients inlimb three of Section 294 of the Penal Code beyond reasonabledoubt. Applying the principles enunciated in Virsa Singh v State ofPunjab (supra), I hold that the charge of murder had been establishedunder limb three of Section 294 of the Penal Code. I therefore rejectthe contention of the learned President's Counsel that the prosecutionhad failed to establish the charge of murder Section 294 of the PenalCode.
It is worthwhile to consider whether the act of the appellant comesunder the 4th limb of Section 294 of the Penal Code which reads asfollows: "Except in the cases hereinafter excepted, culpable homicideis murder.
Firstly – (omitted)
Secondly – (omitted)
Thirdly – (omitted)
Fourthly – If the person committing the act knows that it is soimminently dangerous that it must in all probability cause death orsuch bodily injury as is likely to cause death, and commits such act
without any excuse for incurring the risk of causing death or suchinjury as aforesaid."
The victim was in her boutique at the time of the incident. Theprosecution case was that the appellant threw an object like a bottle.Immediately thereafter the victim was in flames and the bo utique wasengulfed in flames. Thus the appellant knew that it was imminentlydangerous that it must in all probability cause death of the inmates of
the boutique. By his act bodily injuries have been caused to thevictim which were not only likely to cause death but are sufficient inthe ordinary course of nature to cause death. This act was done bythe appellant without any excuse. Thus, in my view the appellant was
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guilty of murder even under the fourth limb of Section 294 of thePenal Code.
Evidence led at the trial revealed that the appellant threw a glassobject to the deceased's face. Immediately thereafter a fire broke outand the deceased was in flames. This shows that the appellant hasdone an act with the intention of causing death of the deceased.According to 1st limb of Section 294 if the act by which the death iscaused is done with the intention of causing death then the accusedis guilty of murder. Thus the appellant was guilty of murder even underthe 1 st limb of Section 294 of the Penal Code. I am unable to find faultwith the learned trial judge who found the appellant guilty under the1st limb of Section 294.
For the above reasons the grounds urged by the learnedPresident's Counsel are untenable and should fail. Hence, I upholdthe conviction and the sentence imposed on the appellant anddismiss the appeal
Appeal dismissed.
RANJITH SILVA, J. – I agree
Appeal dismissed.