KING v. KOLONDA.

KING v. KOLONDA.

D. C., Kurunegala, 2,652.

Attorney-General-Indictment presented by him to District Court-Duty of District Courts in regard to such indictments-Culpable homicide- Grievous hurt-Intention of accused.

LAWRIE, A.C.J.-Under the Courts Ordinance and the Criminal Procedure Code, it is the duty of the Attorney-General to decide on what charges and in what Court an accused shall be tried. If he errs, it is an error which a District Judge cannot correct. It is his duty to hear all the available evidence and give his verdict of conviction or acquittal according to law. He cannot acquit the accused without hearing the evidence for the prosecution.

A man who causes the death of another is not necessarily guilty of culpable homicide. It may be that, though he intended only to cause hurt, such hurt may, from causes beyond his control or knowledge, become grievous and mortal.

The extent of his guilt must be determined by his intention when he struck the blow, and not by its subsequent and possibly unforeseen effects.

Moncreiff. J.-In order to make out a charge of culpable homicide [against a man who caused hurt to a person suffering from a diseased spleen which was ruptured by such assault], it is necessary to prove that the accused knew that the deceased's spleen was diseased.

A verdict of guilty of grievous hurt is receivable, although there is a charge of culpable homicide against the accused, and a District Judge should not acquit him of grievous hurt because in his opinion the charge should have been one of culpable homicide.

Bonser, C.J.-Many serious offences include a number of minor offences. If a person guilty of murder were indicted in the District Court for grievous hurt, it is the duty of that Court to try that charge and give his verdict, notwithstanding ho was of opinion that the facts in the case made out a charge of wilful murder which he had no jurisdiction to try.

If such a case came before a Court competent to try a charge of murder, it would be the duty of the Court to amend the indictment in accordance with the facts proved. But the District Judge, having no power to amend the indictment, must find the man guilty or not guilty of the offence laid in the indictment.

TEN men were indicted in this case for voluntarily causing grievous hurt to one Herathamy on the 24th January, 1901.

On the trial day, Ban Menika gave evidence of the assault on her husband Herathamy as follows: " They seized him by the hands " and by the hair. They beat him and knocked him. My husband " seemed lifeless. It was near dawn. The accused then dragged " him from his room over the stile to the other side of the fence. " Shortly afterwards morning dawned. A little later I went and " found my husband lying dead on the cart road.

Without hearing further evidence, the District Judge (Mr. J. D. Mason) called upon the counsel for the prosecution " to justify

"the indictment for causing grievous hurt. The hurt caused was " not grievous but mortal, and therefore the case falls under section ' 298, explanation 1. The accused were guilty of causing death to " Herathamy."

The medical officer's evidence given before the Police Magistrate was referred to by the District Judge, which was to the effect that the deceased had no external wounds, and that the slight injuries which appeared externally were not sufficient to cause death in the case of a healthy man. There was a contusion on the left side which might have been caused by a kick. It was directly over the spleen, which was very much enlarged, and covered the whole of the left side. It was ruptured, and the man died of hæmorrhage. It was most probable that the blow which caused the contusion on the left side ruptured the spleen.

After hearing counsel the District Judge acquitted the accused, on the ground that the accused should not have been indicted for grievous hurt under section 316, but under section 298, which explains that

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