VITHANA AND ANOTHER v. THE REPUBLIC OF SRI LANKA

016-SLLR-SLLR-2007-V-1-VITHANA-AND-ANOTHER-v.-THE-REPUBLIC-OF-SRI-LANKA.pdf


Vithana and another v The Republic of Sri Lanka
169
CA
VITHANA AND ANOTHERv
THE REPUBLIC OF SRI LANKA
COURT OF APPEALRANJITH SILVA, J.
SISIRA DE ABREW, J.
CA 18/2003
HC AVISSAWELLA 60/2001MAY 19, 2007
Penal Code Sections 32, 315, 294 – Murder – Culpable homicide – Intentioncontemplated under the 4 limbs of Section 294 – Constitution – Art 138 -Applicability – Common intention ingredients – Criminal Procedure CodeSection 283. Failure on the part of Court either to accept or reject dockstatement? Evaluation of evidence.
The two appellants were convicted of murder of K and C, and two offencesunder S315. In appeal it was contended.
that there was failure on the part of the trial Judge to consider whetherthere was antecedent probability of death resulting from the injury inflictedas opposed to a mere likelihood of death resulting from the injury inflicted.
that ingredients relating to the common intention had not been
established.
that the trial Judge had failed to evaluate the evidence and therebyviolated S283 of the Criminal Procedure Code.
that the trial Judge had come to an erroneous conclusion that the 1stappellant had handed over the weapons (P1+P2) to the Police when theywere not handed over by him.
that the trial Judge has not rejected or accepted the dock statement.Held:
The intention that is contemplated in the 1st limb of S294 is theintention to cause death which is commonly known as murderousintention, but the intention that is contemplated in the 3rd limb ofS294 is the intention to cause bodily injury. This injury should be
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sufficient, in the ordinary course of nature to cause death. Theemphasis here is on the sufficiency of the injury to cause death inthe ordinary course of nature and not the intention.
Per Sisira de Abrew, J.
"The ingredients that must be proved by the prosecution in order to prove acharge of murder under the 3rd limb of S294 are that:
The accused inflicted a bodily injury on the victim.
The victim died as a result of the above bodily injury.
The accused had the intention to cause the bodily injury.
The above injury was sufficient to cause the death of the victim in theordinary course of nature".
In the instant case the prosecution has established all four
ingredients of S294.“
Applying Art 138 of the Constitution, it is apparent that the failure onthe part of the trial Judge to consider the above aspect of the law isnot sufficient to vitiate the convictions, it has not resulted in a failureof Justice.
In a case of murder against the main accused under limb 3 of S294the intention contemplated there, being the 'intention to cause bodilyinjury', one cannot expect the prosecution to prove the otheraccused shared common murderous intention when proving thecharge against the other accused. In a situation of that nature, whatthe prosecution is expected to prove is that the other accusedshared 'common criminal intention contemplated in limb 3 of S294 -common intention to cause bodily injury.
In the instant case, from the evidence it is crystal clear that the 2nd appellanthad entertained a common intention to cause bodily harm to C with the 1stappellant which is the intention contemplated in limb 3 of S294.
The trial Judge has evaluated the evidence, and had commencedthe judgment by referring to the defence suggestion to the witness.
It is true that the 1st appellant did not personally hand over theweapons to the Police, but the evidence of the Police was that the1st appellant pointed out the weapon and the Police Officer tookthem into custody – at the time of recovery the 1st appellant wasonly 2 feet away from the Police Officer.
Per Sisira de Abrew, J.
"Though we do not condone the failure on the part of the trial Judge to arriveat a conclusion whether to accept or reject the dock statement, such failurehas not occasioned a miscarriage of Justice".
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APPEAL from the judgment of the High Court of Avissawella.
Cases referred to:
Mendis v Queen – 54 NLR 177.
Virsa Singh v Sfafe of Punjab – AIR (1958) SC 465 at 467.
Hajinder Singh v Delhi Administration – AIR 1968 (SC) 867.
Mahadeo Ganpat Badwana v State of Maharashtra – AIR 1977 SC 1756.
L.S.P. de Silva v Republic of Sri Lanka – CA 124/2004- CAM 28.2.2007.
Bakhawar v State of Haryana – AIR 1979 – SC 1006.
Rajwant Singh v State of Kerala – AIR 1966 (Sc) 1874 at 1878.
State of Maharashtra v Arun Savalaram – 1989 – CR LJ 191.
Ande v State of Rajasthan – AIR 1966 (SC) – 148 at 151.
Sumanasiri v A.G. – 1991 – 1 Sri LR 309.
Dr, Ranjith Fernando for appellants.
Shavindra Fernando DSG for the Republic of Sri Lanka.
June 28, 2007SISIRA DE ABREW, J.
Two appellants were convicted of the murder of V. 01Kusumawathi and the murder of T. Chaminda Kumara (hereinafterreferred to as Chaminda) and sentenced to death. They were alsoconvicted of two offences under section 315 of the Penal Code andsentenced to 12 months rigorous imprisonment (Rl) on each count.
This appeal is against the said convictions and the sentences. Thefacts of this case can be quite briefly summarized as follows:
Around 9.30 p.m. on15th August 1999 when Priyantha thehusband of Kusumawathi was getting ready to have dinner with hisfriend Chaminda who came to his house little before the beginning 10of the incident, described by the prosecution, both appellantsentered the house of Priyantha. The 1st appellant, armed with akithul club went inside the house passing Priyantha andimmediately thereafter Priyantha was attacked by the 2nd appellantwith a sword when he blocked the 2nd appellant from going insidethe house. Priyantha grappled with the 2nd appellant whileChaminda with the 1st appellant. Dilhani, the daughter ofPriyantha, pushed the 2nd appellant away when he attempted to
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attack Priyantha with the sword. The appellants made a request tosettle the matter but the next moment without any provocation from acthe victims' party both appellants started attacking Chaminda withtheir weapons. Unable to witness the attack on Chaminda anylonger Kusumawathi, the wife of Priyantha, requested them not toattack, then she too was attacked by both appellants. Thereuponboth appellants intensified the attack on Priyantha. Both deceasedpersons and Priyantha received injuries. When Dilhani, who wasabout 12 years old, was dragged by the 2nd appellant near thefather, the 1st appellant told him to release the child and as suchshe was released. Fearing further attack both Priyantha and hisdaughter Dilhani went into a room and locked themselves in. The 3oappellants threatened Priyantha and Dilhani to tell the Police theappellants were wearing masks at the time of the incident andcould not be identified.
One of the grounds urged by the learned Counsel for theappellant as militating against the maintenance of the convictionsfor murder was that the failure on the part of the learned trial judgeto consider independently the degree of probability of causingdeath as a result of the injuries caused to Kusumawathi andChaminda. In short failure on the part of the learned trial judge toconsider whether there was great antecedent probability of death <oresulting from the injury inflicted, as opposed to a mere likelihoodof death resulting from the injury. He cited Mendis v QueenO) insupport of his argument. In Mendis v Queen, Gratiaen, J.observed: "Where toxaemia supervened upon a compoundfracture which resulted from a club blow inflicted by the accusedand the injured person died of such toxaemia". Held by Gratiaen,
J. "that as the injured man's death was not immediately referable tothe injury actually inflicted but was traced to some condition whicharose as a supervening link in the chain of causation, it wasessential in such cases that the prosecution should, in presenting a 50charge of murder, be in a position to place evidence before theCourt to establish that "in the ordinary course of nature" there wasa very great probability (as opposed to a mere likelihood) (a) of thesupervening condition arising as a consequence of the injuryinflicted, and also (b) of such supervening condition resulting indeath." In order to appreciate this argument it is necessary to
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consider section 294 of the Penal Code 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 bodilyinjury as the offender knows to be likely to cause the death of theperson to whom the harm is caused; or
Thirdly – If it is done with the intention of causing bodily injuryto any person, and the bodily injury intended to be inflicted issufficient 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."
It is clear that the intention that is contemplated in the 1st limbof section 294 of the Penal Code (sec. 294) is the intention to causedeath which is commonly known as murderous intention. But theintention that is contemplated in the third limb of sec. 294 is theintention to cause bodily injury. This injury should be sufficient, inthe ordinary course of nature, to cause death. The emphasis hereis on the sufficiency of the injury to cause death in the ordinarycourse of nature and not on the intention. This position is amplyjustified by illustration 'c' to sec. 294 which is reproduced below:
“A intentionally gives Z a sword-cut or club-wound sufficient tocause the death of a man in the ordinary course of nature. Z diesin consequence. Here A is guilty of murder, although he may nothave intended to cause Z's death."
This illustration says that 'A‘ is guilty of murder although hemay not have intended to cause the death of 'Z'. This shows thatprosecution can prove a charge of murder even if the accused,charged with murder, did not entertain murderous intention at thetime of inflicting the bodily injury if the accused entertained anintention to inflict bodily injury and that this injury is sufficient, in theordinary course nature, to cause the death of the victim. In my view
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an accused person charged with murder cannot claim, when thevictim has succumbed to the injury which is sufficient, in theordinary course of nature, to cause death, that he did not intend tocause the death of the victim but he only intended to inflict bodilyinjury and that he should be exonerated from the charge of murder.This view is supported by the following opinion expressed by HisLordship Justice Bose in Virsa Singh v State of Punjab<2> at 467:"No one has a licence to run around inflicting injuries that aresufficient to cause death in the ordinary course of nature and claimthat they are not guilty of murder. If they inflict injuries of that kind,they must face the consequences; and they can only escape if itcan be shown, or reasonably deduced, that the injury wasaccidental or otherwise unintentional." This judgment was citedwith approval and applied in Hajinder Singh v Delhi Adminis-tration^). Mahadeo Ganpat Badwana v State of Maharashtra^). HisLordship Ranjith Silva cited the above dictum with approval andapplied in L.S.P. de Silva v Republic of Sri Lanka^).
As was pointed out earlier the intention contemplated in the 3rdlimb of sec. 294 is the intention to inflict a bodily injury. According to3rd limb of sec. 294, this injury must be sufficient to cause death inthe ordinary course of nature. The emphasis in the 3rd limb of sec.294 is on the sufficiency of the injury in ordinary course of nature tocause death. The sufficiency is the high probability of death in theordinary course of nature which evidence must be elicited from thedoctor who conducted the post-mortem who is called upon toexpress an opinion on the post-mortem report. The decision of theIndian Supreme Court in Bakhtawar v State of Haryana<6> lendssupport to the above view. Indian Supreme Court held as follows:"For the commission of the offence of murder it is not necessary thatthe accused should have the intention to cause death. It is now wellsettled that if it is proved that the accused had the intention to inflictthe injuries actually suffered by the victim and such injuries arefound to be sufficient in the ordinary course of nature to causedeath, the ingredients of clause Thirdly, of sec. 300 of the IndianPenal Code are fulfilled and the accused must be held guilty ofmurder punishable under sec. 302 of the Indian Penal Code."Section 300 of the Indian Penal Code is in terms identical to sec.294 of the Ceylon Penal Code.
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Their Lordships of the Indian Supreme Court considered theprovisions of sec. 300 of the Indian Penal Code in Rajwant Singh vState ofKeralaV) at 1878 and remarked thus: "Third clause discardsthe test of subjective knowledge. It deals with acts done with theintention of causing bodily injury to a person and the bodily injuryintended to be inflicted is sufficient in the ordinary course of natureto cause death. In this clause the result of the intentionally causedinjury must be viewed objectively. If the injury that the offenderintends causing and does cause is sufficient to cause death in theordinary way of nature the offence is murder whether the offender uointended causing death or not and whether the offender had asubjective knowledge of the consequences or not."
In Virsa Singh v State of Punjab (supra), Indian Supreme Courtdiscussing the third limb of sec. 300 of the Indian Penal Code whichis in terms identical with section 294 of the Ceylon Penal Codeobserved as follows: “To put it shortly, the prosecution must provethe following facts before it can bring a case under sec. 300 'thirdly';
First, it must establish, quite objectively, that a bodily injury ispresent;
Secondly, the nature of the injury must be proved. These are 150purely objective investigations.
Thirdly, it must be proved that there was an intention to inflictthat particular 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 enquiryproceeds further and,
Fourthly, it must be proved that the injury of the type justdescribed made up of the three elements set out above is sufficientto cause death in the ordinary' course of nature. This part of theenquiry is purely objective and inferential and has nothing to do with ieothe intention of the offender. Once these four elements areestablished by the prosecution (and, of course, the burden is on theprosecution throughout) the offence is murder under sec. 300 thirdly.
It does not matter that there was no intention to cause death. It doesnot matter that there was no intention even to cause an injury of akind that is sufficient to cause death in the ordinary course of nature.
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Once the intention to cause bodily injury actually found to be
present is proved, the rest of the enquiry is purely objective and theonly question is whether, as a matter of purely objective inference,the injury is sufficient in the ordinary course of nature to causedeath." This judgment was cited with approval in so many latercases such as Rajwant Singh v State of Kerala (supra), HajinderSingh v Delhi Administration (supra) and State of Maharashtra vArun Savalararrt8).
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 toinflict that very injury and not some other injury and that it was notaccidental or unintentional. If this is also held against the offenderthe offence of murder is established."
In Ande v State of RajastharP*> at 151 Indian Supreme Courtremarked thus: "The emphasis in clause thirdly is on the sufficiencyof the injury in the ordinary course of nature to cause death. Thesufficiency is the high probability of death in the ordinary way ofnature and when this exists and death ensues and if the causing ofthe injury is intended, the offence is murder." This judgment wascited with approval and applied by the Indian Supreme Court inRajwant Singh v State of Kerala (supra).
In Sumanasiri vJayasuriya, J., held: "Clause 3 of sec.
294 requires that "the probability of death resulting from the injuryinflicted was not merely likely but very great though not necessarilyinevitable."
In the light of the above judicial decisions and the observationmade by me, I set down here the ingredients that must be proved bythe prosecution in order to prove a charge of murder under third limbof sec. 294.
The accused inflicted a bodily injury on the victim.
The victim died as a result of the above bodily injury.
The accused had the intention to cause the above bodilyinjury.
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The above injury was sufficient to cause the death of thevictim in the ordinary course of nature.
It must be noted that as was pointed out in Virsa Singh case(supra) the intention that is contemplated in third limb of sec. 294 isthe intention to cause bodily injury and not the intention to causebodily injury that is sufficient to cause death in the ordinary courseof nature.
In the instant case, it is undisputed that 1st, 2nd and 3rdingredients stated above had been established. Did the prosecutionestablish the 4th ingredient stated above? Dr. Niranjan referring tothe injuries of Kusumawathi testified that 8th to 14th injuries are fatalin the ordinary course of nature. Referring Chaminda’s injuries Dr.Niranjan testified that injury No. 1 is fatal in the ordinary course ofnature. Thus the prosecution has establish the 4th ingredient statedabove. Since the prosecution has established all four ingredients in3rd limb of sec. 294, the offence of murder has been established.Failure on the part of the learned trial judge to consider the above 220aspect of the law, in my view, has not resulted in a failure of justice.
In this regard I would like to consider the Article 138 of theConstitution which reads as follows:
"The Court of Appeal shall have and exercise subject to theprovisions of the Constitution or of any law, an appellate jurisdictionfor the correction of all errors in fact or in law which shall becommitted by the High Court, in the exercise of its appellate ororiginal jurisdiction or by any court of First Instance, tribunal or otherinstitution and sole and exclusive cognizance by way of appealrevision and restitutio in integrum of all causes, suits, actions, 230prosecutions, matters and things of which such High Court of FirstInstance, tribunal, or other institution may have taken cognizance;
Provided that no judgment, decree or order of any court shallbe reversed or varied on account of any error, defect orirregularity, which has not prejudiced the substantial rights ofthe parties or occasioned a failure of justice."
I apply the proviso to Article 138 of the Constitution and holdthat the said failure on the part of the trial judge is not sufficient tovitiate the convictions. For the above reasons I hold that the
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contention of the learned Counsel for the appellant is devoid of meritand wholly untenable.
Learned Counsel for the appellant next contended that theingredients relating to the common intention had not beenestablished by the prosecution. As regards this contention I muststate here that the prosecution adduced evidence that bothappellants had attacked Kusumawathi, Chaminda and Priyantha andas such the common intention had been well established. For thepurpose of completeness I must mention here when the prosecutionhas established a charge of murder under limb three of sec. 294against the main accused, one can't expect the prosecution to provecommon intention to cause death of the victim which is the intentioncontemplated in limb one of sec. 294 and commonly known as themurderous intention against the other accused persons, charged onthe basis of common intention. In such a situation in order to provethe charge of murder against the other accused, what theprosecution is expected to prove is that they (other accused) sharedcommon 'criminal intention' contemplated in limb three of sec. 294.When the prosecution has established a charge of murder underlimb three of sec. 294 against the main accused, and if theprosecution establishes that the other accused shared the common'criminal intention' contemplated in limb three of sec. 294. i.e. theintention to cause bodily injury, the offence of murder against theother accused is established provided of course the other threeingredients of limb three of sec. 294 discussed above are proved. IfI may put it in a nutshell, in a case of murder where the accusedpersons are charged under sections 32/296 of the Penal Code, whenthe prosecution established a charge of murder against the mainaccused under limb three of sec. 294, the intention contemplatedthere being the 'intention of cause bodily injury', one cannotexpect the prosecution to prove that other accused shared commonmurderous intention when proving the charge against the otheraccused. In a situation of that nature, what the prosecution isexpected to prove is that the other accused shared 'common criminalintention' contemplated in limb three of sec. 294 i.e. the commonintention to cause bodily injury'.
In the instant case, the doctor testified that the injuries 8 to 14of Kusumawathi are fatal in the ordinary course of nature. Injuries 8,
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9,10, and 13 are cut injuries while injury no. 14 is a depressedfracture. Injury no. 14 which was corresponding to injury no. 11 wasa contusion. It was in evidence that the 1st appellant attacked 280Kusumawathi with a club and 2nd appellant with a sword. It appearsfrom the evidence that both appellants entertained intentions tocause bodily injuries to Kusumawathi and the injuries caused byboth of them are sufficient to cause death in the ordinary course ofnature. As regards the injuries caused to Chaminda, the injury no. 1which is a deep cut from which brain substance was peeping out,the doctor said that this was fatal in the ordinary course of nature.Evidence revealed that Chaminda was attacked by both appellants.
The 1 st appellant was armed with a club and the 2nd appellant waswith a sword.The injury no. 13 found on the body of Chaminda was 290a contusion. From the evidence it is crystal clear that the 2ndappellant had entertained a common intention to cause bodily injuryto Chaminda with the 1st appellant which is the intentioncontemplated in limb three of section 294 and the injury caused bythe 2nd appellant was sufficient in the ordinary course of nature tocause death. For the above reasons the contention that theprosecution had failed to prove common intention is untenable.
Learned Counsel for the appellant also contended that thelearned trial Judge had failed to evaluate the evidence and therebyviolated section 283 of the Criminal Procedure Code. The learned 300trial judge has commenced the judgment by referring to the defencesuggestion to the witnesses. The suggestion of the defence was thatthis crime had been done by some people wearing masks. I havegone through the judgment of the learned trial judge and I amunable to agree with the contention of the learned Counsel for theappellant.
Learned Counsel for the appellant also contended that thelearned trial Judge had come to the erroneous conclusion that the1st appellant had handed over the weapons marked P1 and P2 tothe police officer when in fact they had been handed over by the 1st 310appellant. I now turn to this contention. Evidence of the police officerwas that the 1st appellant pointed out the weapons and the policeofficer took them into his custody, [vide 168 and 169 of the brief]. Atthe time of the recovery the 1st appellant was only two feet awayfrom the police officer. It is true that the 1st appellant did not
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personally hand over the weapons to the police officer. When oneconsiders the evidence relating to the recovery of the weapons, theabove contention should be rejected as there is no merit.
Learned Counsel for the appellant next contended that thelearned trial Judge had not rejected or accepted the dock 320statements made by the appellants. The appellants, in their dockstatements, denied the incident. Whilst we do not condone thefailure on the part of the trial Judge to arrive at a conclusion whetherto accept or reject the dock statement, such failure, in my view, hasnot occasioned a miscarriage of justice. I therefore apply the provisoto Article 138 of the Constitution and proceed to reject the saidcontention of the learned Counsel.
I have considered the evidence relating to the 4th count. In myview prosecution has not led sufficient evidence to prove the 4thcount. When 2nd appellant dragged Dilhani near Priyantha, the 1st 330appellant told 2nd appellant to release the child. This evidenceshould be considered in favour of the 1 st appellant. I acquit bothappellants of the 4th count and set aside the sentence imposed onthat count.
For the reasons set out in my judgment, I affirm the convictionand sentences on 1st, 2nd, and 3rd counts.
Subject to the variation in count no. 4 the appeal is dismissed.
SILVA, J. – I agree.
Appeal dismissed subject to variation.