026-NLR-NLR-V-38-KING-v.-SALAMON-et-al.pdf
King v. Salomon.1X3
1936 Present: Abrahams C.J., Maartensz and Moseley JJ.
KING v. SALAMON et al.
45—P. C. Gampaha, 35,006.
[2nd Western Circuit, 1936.]
Misdirection to jury—Charge of culpable homicide not a nounting to murder—Deceased suffering from an enlarged spleen—Proof of knowledge ofconsequences of assault—No presumption to be drawn from consequencesof an act—Penal Code- ss. 293, 311, and 314.
Where the accused wt! charged before the Assize Court with culpablehomicide not amounting to murder and the learned Commissioner ofAssize in his charge to the jury directed them “ that it was not necessarythat the Crown should prove definitely that each of the accused in factknew that death could be caused by striking a man with a fist and thatknowledge of the consequences likely to follow from the assault madeon the deceased must be inferred from the actual consequences of theattack
Held, that it was not a proper direction in law. It is not proper toimpute knowledge of the consequences of an act to a person merelybecause the consequences resulted from it.
Held, further, that in the circumstances the accused were guilty ofcausing hurt under section 312 of the Penal Code.
T
> HIS was a case stated by the Attorney-General under section 355 (3)of the Criminal Procedure Code for the determination of the
Supreme Court. The facts are stated in the reference as follows : —
The above-named prisoners were charged with committing culpablehomicide not amounting to murder by causing the death of one LiyanaPathirennehelage Podisingho on or about May 10, 1935, at Wadurawa in thedivision of Gampaha of the District of Negombo. They were tried beforethe Hon. Mr. V. M. Fernando, then Commissioner of Assize, and an English-speaking Jury on May 28, 1936, and convicted of the offence with whichthey were charged by a unanimous verdict. Each of the prisoners wasthereupon sentenced to undergo five years’ rigorous imprisonment.
The deceasedPodisingho had a daughternamed Sopi Nona.She was the
mistress of thefirstprisoiner Salamon. OnMay 9, 1935, SopiNona left the
house of thefirstprisoner at Wadurawa and proceeded toPolgahawela.
The first prisoner sent Sopi Nona’s brother Piyasena to Polgahawela to fetchher back.
On May 10, 1935, about 8 a.m., Sopi Nona returned to Wadurawa to thehouse of the deceased. About an hour or an hour and a half later the firstprisoner entered the house of the deceased accompanied by the other prisoners.The first prisoner struck Sopi Nona with a stick. The deceased asked thefirst prisoner not to strike his daughter. Then the first prisoner struck thedeceased on his shoulder and on the chest. The third prisoner seized thedeceased and pushed him against a wall and the second prisoner and thethird prisoneralsojoined in the assaulton the deceased.All the four
prisoners struck the deceased with their closed fists, chiefly on the abdomen.
The medical evidence showed that the deceased was 55 years of age andthat externally there was a contusion over the left side of the front aspectof the chest. On internal examination there was the following injuries: — 1
(1) A rupture of the anterior margin of the spleen 2 in. long.
(2) A rupture over the internal surface of the spleen 2 in. long.
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King v. Salomon.
There were also two ruptures of the liver, one over the anterior border of theliver and the other over the external surface of the liver.
In the opinion of the Medical Officer who gave evidence death was due tohaemorrhage and shock resulting from the ruptures of the spleen and of theliver. The spleen was enlarged as a result of disease to twice its normalsize and a comparatively light blow would have been sufficient to cause itsrupture. The liver was of normal size and in the opinion of the MedicalOfficer “considerable force must have been used to cause a rupture of theliver. The injuries on the liver were not necessarily fatal in the sense that50 per cent, of persons who had received such injuries might with propertreatment be expected to recover. Death might not have resulted in thiscase if the spleen had not been ruptured. In other words if there was no injuryto the spleen Podisingho (the deceased) may possibly have recovered from hisother injuries. Cross-examined with regard to the absence of remarks on thebody, Dr. Suppramaniam, the Medical Officer, stated that he would haveexpected more extreme injuries unless all the blows had been struck on aflexible part of the body like the abdomen ”. The learned Commissionerin his charge to the jury dircted them “ that it was not necessary that theCrown should prove definitely that each of the accused in fact knew thatdeath could be caused by striking a man with the fist, and that knowledge ofthe consequences likely to follow from the assault made on Podisingho mustbe inferred from the actual consequences of that attack
The question of law now submitted for final determination is whetherthe Commissioner’s direction to the jury that “ it was not necessary thatthe Crown should prove definitely that each of the accused knew thatdeath could be caused by striking a man with the fist and that knowledgeof the consequences likely to follow from the assault must be inferredfrom the actual consequences of the attack ” was a proper direction in law.
H. V. Perera (with him S. Nicholas), for the accused.—It is submittedthat the direction of the Judge was that there was a presumption inlaw and that the jury had no option in the matter. The jury were infact told that the mere proof of the consequence—in this case death—is sufficient for the Crown to establish the offence. It is knowledge thatis material, not intention. Intention is ruled out. There is no evidencethat the accused knew that the particular deceased had an enlargedspleen. The only knowledge that could be imputed to them is that theywould use their fists. In a case like this you cannot attribute to themknowledge that anyone of them would strike the man in a particularplace. Can you impute to them knowledge that simple hurt would becaused ? To convict them of voluntarily causing grievous hurt it isnecessary to impute knowledge on the part of each person that the otherswould cause grievous hurt. It is possible that one person had thatknowledge only—not the knowledge that other persons would causegrievous hurt. If one person had that knowledge, it would be unfairto impute to the others knowledge that the man would be grievouslyinjured or would die. Counsel cited Gout’s Penal Code (1936 ed.),p. 971, para. 3241, and p. 1034, para. 3439, and Penal Code, s. 33.
J.W. R. Illangakoon, K.C., Attorney-General (with his M. F. S. Pulle,C.C.), for the Crown.—The learned Judge has apparently put the caseto the jury on this footing that the degree of violence used was the measureof the knowledge possessed by the accused. When the learned Judgeused the word “ consequence ”, he meant the proximate consequence—
ABRAHAMS C.J.—King v. Salomon.H5
that is the rupture of the liver. The consequence of the blow was therupture of the liver. It is not clear that he intended to convey to thejury that from that fact knowledge must be presumed. If he did notexplain this sufficiently they might have been misled. Counsel citedGout’s Penal Code (4th ed.), p. 971, para. 3246, and p. 1699, para. 3448.
Cur. adv. vult.
November 4, 1936. Abrahams C.J.—
This is a case which was submitted for our determination by theAttorney-General under section 355 (3) of the Criminal Procedure Code.
The convicted persons were four in number, and they were tried beforethe Hon- Mr. V. M. Fernando, then Commissioner of Assize, and a jury,and were convicted of culpable homicide not amounting to murder,the offence with which they were charged. They were sentenced each toundergo five years’ rigorous imprisonment. The evidence for the Crownwas that these four men invaded the premises of the deceased apparentlyin pursuit of the mistress of the first prisoner who was also the daughterof the deceased. Some altercation broke out and the four prisonerspushed the deceased against a wall and struck him with their closed fists,chiefly on the abdomen. The deceased who was about 55 years of age,was found, on the autopsy, to have sustained two ruptures of the spleenand two ruptures of the liver. The Medical Officer who conducted thepost-mortem said that death was due to haemorrhage and shock resultingfrom the ruptures of those two organs. The spleen was enlarged as aresult of disease to twice its normal size and a comparatively light blowwould have been sufficient to cause its rupture. The liver was of normalsize, and in the opinion of the Medical Officer considerable force musthave been used to cause a rupture of it. The injuries on the liver werenot necessarily fatal in the sense that 50 per cent, of persons who hadreceived such injuries might, with proper treatment, be expected torecover. Death might not have resulted in this case if the spleen hadnot been ruptured.
The learned Commissioner in his charge to the jury directed them “ thatit was not necessary that the Crown should prove definitely that each ofthe accused in fact knew that death could be caused by striking a manwith the fist, and that knowledge of the consequence likely to follow fromthe assault made on Podisingho must be inferred from the actual conse-quences of that attack ”. An application was made to him, on behalf ofthe prisoners, to state a case under section 355 (1) of the CriminalProcedure Code. This he refused to do. The Attorney-General hastherefore submitted for our determination the question whether theCommissioner’s direction to the jury, above referred to, was a properdirection in law. Section 293 of the Penal Code which defines culpablehomicide, read as follows : —
“ Whoever causes death by doing an act with the intention of causingdeath, or with the intention of causing such bodily injury as is likely tocause death, or with the knowledge that he is likely by such act to causedeath, commits the offence of culpable homicide ”,and it was evidently sought to charge the accused with the knowledgethat they were likely by the assault on the deceased to cause his death.
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ABRAHAMS C.J.—King v. Salomon.
I am of opinion that this direction was wrong. There is no authorityin law or in logic for so interpreting the words of section 293. Analysed,the direction amounts to this : that the accused persons must be takento have known what the probable consequence of their act of assaultingthe deceased would be, because those consequences in fact followed fromthe act. It is manifest that the jury must have come to the conclusionthat they had no option but to convict. I cannot help feeling that thelearned Commissioner did not really mean precisely what he said, becausein his order refusing the application to state a case the following passageoccurs: —“…. with regard to knowledge, I directed them thatsuch knowledge could be inferred a posteriori. ‘ A person may truthfullydeclare ’, says Gour (5th ed.), p. 967, ‘ that he did not know that his actwas likely to cause death, and yet he may be rightfully found to have hadthat knowledge. The standard which the Court fixes before itself is thatof a reasonable man, and the question it ultimately asks itself is notwhether the accused had the knowledge, but whether as a reasonable manhe could have had that knowledge. And for this purpose the act itself isthe real test ’ ”. Knowledge of the probable consequences of an act maybe presumed from the nature of the act itself and the nature of the actshould obviously form the basis of an inquiry into whether or not the doerof that act must be held to have had knowledge of its probable conse-quences, but that form of a posteriori reasoning is very different fromimputing knowledge of the consequences of an act merely because thoseconsequences happened.
Although we are compelled to hold that this direction was wrong, it isnevertheless our duty to consider whether, if the direction had beencorrect, the jury would in all reasonable probability have returned thesame verdict. In view of the medical evidence, I am unable to see howthey would have been justified in so doing. From that evidence it wouldappear that but for the rupture of the diseased spleen, the deceased manhad an even chance of recovering, and I am unable to see on what processof reasoning, in the absence of any evidence to that effect, that knowledgeof this condition could be fairly imputed to the accused.
Then, can the accused be convicted of any, and if so, of what offence ?They obviously committed the offence of hurt punishable under section314 of the Penal Code, and since death actually resulted from the assaultthat they committed it must be inferred that they committed grievoushurt- The only kind of grievous hurt that they could possibly be held tohave committed appears to be that figuring in the eighth category insection 311 of the Penal Code, that is to say, any hurt which endangerslife. It is beyond argument that apart from the injury to the spleen,the injury to the liver endangered the sufferer’s life. Now, in order toconvict of the offence of voluntarily causing grievous hurt, it must beproved that the act which caused grievous hurt was done with the inten-tion of causing grievous hurt, or with the knowledge that grievous hurtwas likely to be caused, and, proceeding on that definition, did the fouraccused when they assaulted the deceased intend to injure him in such away that, his life would be endangered, or short of that intention, did theyhave the knowledge that they were likely to inflict upon him injury likelyto put his life in danger ? The jury undoubtedly could have come to that
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Abeyesundera v. Ceylon Exports, Ltd.
conclusion, but can we hold that they in all probability would have cometo that conclusion had they been specifically and properly directed on thepoint ? It must be remembered that the accused assaulted the deceasedwith their fists, though they undoubtedly did strike him in a dangerouspart of the body. I am unable to say that if I myself had been trying acase, sitting without a jury, I should not have had some doubts as to theaccuseds’ guilt, and in view of that opinion I am by no means satisfiedthat the jury would not have had some doubts.
It would appear then that the conviction should be altered to one ofvoluntarily causing hurt punishable under section 312 of the Penal Code.The assault undoubtedly was a cowardly one and was entirely unprovoked,and I do not think any injustice would be done to the accused if theysuffered the maximum sentence, that is to say, 1 year’s rigorous imprison-ment, and I think that the sentence of 5 years’ rigorous imprisonmentshould be reduced to that figure.
Maahtensz J.—I agree.
Moseley J.—I agree.
Conviction varied.