SUMANASIRI v. ATTORNEY GENERAL

• Jurisdiction: Sri Lanka
• Date: 21 September 1998
• Type of Document: New Law Report

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SUMANASIRI
v.
ATTORNEY-GENERAL

COURT OF APPEAL
JAYASURIYA, J.,
DE SILVA, J.
C.A. NO. 141/96
H.C. KALUTARA NO. 136/94
JULY 27, 1998.

Criminal Law - Murder - Novus actus interveniens - Causation - Explanation 1 to section 393 of the Penal Code - Section 294 clause 3 of the Penal Code - Motive.

Held :

1. Death was traceable to the direct cranio-cerebral injury inflicted by the first accused-appellant on the head of the deceased with a heavy sledge hammer using considerable force. The prosecution case thus comes within the purview of clause 3 to section 294 of the Penal Code. An accused person is liable not only for the direct consequences of his act but he is equally liable for the consequences of any supervening condition which is directly traceable to his act.

2. If the original wound was still the operating cause and is a substantial cause and death can property be said to be the result of the wound, although some other cause of death was also operating, the offence is murder, only if it can be said that the original wound was merely the setting in which another cause operates, can it be said that death did not result from the wound. Putting it another way, only if the second cause is so overwhelming as to make the original wound merely part of its history can it be said that death does not flow from the original wound.

3. Any controvented issue relating to causation ought to be decided according to rational and common sense principles. Where there was no breach in the line of causation despite the fact that the surgical operation was performed at a time posterior to the infliction of the injury and at a point

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of time anterior to the death, the offence is murder if the act is done with the intention of causing bodily injury sufficient in the ordinary course of nature to cause death (ie if the injury if left to nature without resorting to proper medical remedies and skilful treatment would cause death).

4. Clause 3 of section 294 requires that 'the probability of death resulting from the injury inflicted was not merely likely but very great though not necessarily inevitable.

5. There is no burden on the prosecution to prove motive as a matter of law. As a matter of fact when the evidence of eyewitnesses is clear and easily intelligible the necessity to prove motive does not arise.

Cases referred to :

1. Rex v. Mubila - (1956) 1 SALR 31.

2. Re Singharam Padyatchi - AIR 1944 Madras 224.

3. Queen v. Mendis - 54 NLR 177, 180.

4. Brandon v. Turvey - (1905) AC 230.

5. Rex v Smith - (1959) 2 All ER 193, 197.

6. Rex v. J. C. Jordan - (1956) 40 Cr. App. Rep. 152.

7. Boiler Inspection and insurance Company of Canada v. Sherwin Williams Company of Canada Ltd. - (1951) AC 319, 339.

8. Weld-Blundell v. Stephens - (1920) AC 956, 986.

9. Leyland Shipping Company v. Norwich Union Fire Insurance Society - (1918) AC 350, 363.

10. Hogan v. Bentick Collienes - (1949) 1 ALL ER 588.

11. R. v. John William Elwood - Court of Appeal Reports 181 All India Reports manual vol. 17 (4th ed.) p 208.

12. King v. Haramanis - 48 NLR 403.

13. King v. Appuhamy - 46 NLR 128, 132.

14. The Queen v. D. A de S. Kularatne - 71 NLR 529, 534.

APPEAL from judgment of the High Court of Kalutara.

Ranjit Abeysuriya, PC with Ms. Priyadarshani Dias and Ms. M. Thalgodapitiya for accused-appellant.

Buvaneka Aluwihare, SSC for Attorney-General.

Cur. adv. vult.

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September 21, 1998.

JAYASURIYA, J.

Five accused were charged before the High Court of Kalutara on three counts upon an indictment and at the end of the trial which was presided over by a High Court Judge without a jury, the learned High Court Judge acquitted all five accused in respect of counts 1 and 2 of the indictment. Count 1 related to the commission of the offence of being members of an unlawful assembly, the common object of which was to cause hurt to Duwage Bandula alias Sumul. The second count related to a charge of the commission of the murder of Duwage Bandula alias Sumul in prosecution of the common object of the said unlawful assembly, an offence punishable under section 146 read with section 296 of the Penal Code. The third count related to the commission of the murder of the said Duwage Bandula alias Sumul by all the five accused, an offence punishable under section 296 of the Penal Code. The learned trial judge, at the conclusion of the trial, convicted the first accused-appellant in respect of the third count in the indictment, but acquitted all the other accused, (being the second to the fifth accused) on the basis that they were not actuated by a common intention and the act which caused the murder had been inflicted only by the first accused-appellant.

Three eyewitnesses, namely, Karunawathie, the mother of the deceased, Jayanthi, the sister of the deceased and witness Nilmini have given evidence to the effect that they saw the first accused inflicting a blow on the head of the deceased with a sizeable wedge hammer These eyewitnesses have testified to the effect that they witnessed the first accused-appellant inflicting the said blow on the deceased's head with considerable force. They have further stated that as a result of the force with which the blow was inflicted, the instrument got wedged into the brain of the deceased and the first accused was unable to remove the instrument from the deceased's head and the deceased was dragged by pulling the wedged in hammer which was stuck to his head. These eyewitnesses, as observed by the trial judge, had given consistent versions

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corroborating each other in regard to the said incident and, although they were subjected to a long-drawn cross-examination, the said protracted cross-examination had produced no impact whatsoever on their testimonial trustworthiness and credibility and the learned High Court Judge has correctly held that the contradiction VI did not relate to the core of the prosecution version and the ingredients which the prosecution was called upon to establish on this charge of murder.

The first accused-appellant made a statement from the Dock in which he alleged that the deceased and his two other friends named Sumith and Kularatne, had pursued him with deadly weapons in their hands and that the first accused had, on seeing the impending apprehension of danger to himself, retreated to his house and had armed himself with a wedge hammer from the Smithy's workshop and that he had inflicted a blow on the deceased in the exercise of the right of self-defence. According to the Dock statement of the first accused, the first accused-appellant had inflicted this blow with the hammer on the deceased's head at a compound which was in close proximity to the blacksmith's workshop. The learned trial judge has rejected the accused's version volunteered from the Dock, in view of the unchallenged real evidence adduced and the evidence given by the Inspector of Police, A. P. G. de Waas Gunawardena, who was the investigating officer into this crime [who was an Assistant Superintendent of Police at the time he gave evidence] and having regard to the evidence given by Thusew Hewage Nilmini. This evidence in regard to the positions where pools of blood and blood-stains were discovered and the drag marks on the sand occasioned by the dragging of the deceased from his own garden to a point close to the blacksmith's workshop, which according to the evidence, had been effected by the first accused and his friends [who happened to be the second to the fifth accused].

The aforesaid inspector investigating into this crime has, in his evidence, stated that in the compound in which the deceased lived and in which compound was affixed a rope manufacturing machine, there was a pool of blood and there were traces of blood from that

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point right up to the roadway. He has also testified to the effect that there were visible drag marks on the sandy surface manifesting that some person had been possibly dragged along the ground. He has also stated that the smithy's workshop was situated opposite the house of a person named Awutin and between the timber shed and this blacksmith's workshop, there were extensive patches of blood on the ground and that there were also blood-stains and patches along the road leading to the smithy's workshop and the timber shed. Witness Nilmini, in her evidence, [which commences at page 139]. has also referred to the aforesaid blood stains on the ground and the process by which the first accused dragged the decesad with the help...