GOMEZ
VS.
STATE

COURT OF APPEAL
SISIRA DEABREW, J.
UPALY ABEYRATNE, J.
CA 168/2004
HC COLOMBO 1036/2002
10TH NOVEMBER, 2008

Penal Code - Section 310, Section 313, Section 316 - Voluntarily causing grievous hurt- Ingredients- two distinct elements- Factum and animus-Absence of direct evidence of intent-Presumption?- Extent.

The accused - appellant was indicted under Section 316 of the Penal Code for voluntarily causing grievous hurt, to one R. After trial he was found guilty and sentenced. On appeal,

Held:

(1) Section 311 Penal Code - sets out the kinds of hurt which fell within the definition of grievous hurt - the requirements for the completion of the offence are in Section 313 - Penal Code. In terms of Section 313 -whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt is said voluntarily to cause grievous hurt.

(2) Offence of voluntarily causing grievous hurt consists of two distinct elements - factum and animus.

The prosecution must prove that the appellant did cause hurt, which hurt fell within the meaning of one of the limbs of Section 311 and then he possessed the requisite intention at the time of the commission of offence to cause such an injury to the victim.

(3) The law, in the absence of direct evidence of intent, will presume an intent from the act itself-but the presumption would be that the accused intended only which was the reasonable and natural consequences of his act.

(4) To be guilty of voluntarily causing grievous hurt, the offender must be proved not only to have caused that grievous hurt - but to have known he was likely to cause.

Per Upaly Abeyrathne, J.

"The prosecution had failed to prove that the appellant had intent or knowledge which the law required to succeed in a charge of voluntarily causing grievous hurt: Court has failed to address its mind to the requirements in Section 313."

APPEAL from the judgment of the High Court, Colombo.

Cases referred to :-

(1) Q vs. Tilakaratne Undiriralage Menikrala - 1887 - 8 SCC 115
(2) Q vs. Alles- 1898 - 3 NLR 109
(3) K vs. Salamon - 38 NLR 1134

Kalinga lndatissa with Sajini Amarawickrema for accused - appellant.

Dappula de Livera DSG for respondent.

cur. adv. vult.

UPALY ABEYRATHNE, J.

The Accused Appellant (hereinafter referred to as the Appellant) was indicted before the High Court Judge of Colombo for an offence punishable under Section 316 of the Penal Code for voluntarily causing grievous hurt on Kumbure Dasanayake Ranatunge on or about 27.05.1998. After trial the

Appellant was found guilty for the said offence and sentenced for a period of 5 years and to a fine of Rs. 2000 carrying a default term of 06 months rigorous imprisonment by the learned High Court Judge by her judgment and order dated 08.10.2004. Being aggrieved by the said conviction and sentence the Appellant preferred the instant Appeal to this court on the following grounds of Appeal.

a. Having regard to the evidence led at the trial the judgment and the conviction cannot be supported.

b. The learned High Court Judge completely confused and misled herself with regard to requirements that the prosecution is obliged to establish a count under Section 316.

c. The judgment of the learned trial judge is completely erroneous in that the learned trial judge has misdirected herself between intention and motive.

d. In any event without prejudice to the above grounds the sentence imposed on the accused is excessive.

In considering the said grounds of appeal it is important to note that the evidence led at the trial reveals that the witness Dayananda Perera who was a police officer attached to Grandpass police station at the time the incident was taking place was on official visit to Victoria police post at Peliyagocla. He said as the vehicles towards Victoria Bridge were not moving due to traffic congestion