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 of consequences of assault-No presumption to be drawn from consequences of an act-Penal Code. ss. 293, 311, and 314.

Where the accused was charged before the Assize Court with culpable homicide not amounting to murder and the learned Commissioner of Assize in his charge to the jury directed them " that it was not necessary that the Crown should prove definitely that each of the accused in fact knew that death could be caused by striking a man with a fist and that knowledge of the consequences likely to follow from the assault made on the deceased must be inferred from the actual consequences of the   attack  ".

Held, that it was not a proper direction in law. It is not proper to impute knowledge of the consequences of an act to a person merely because the consequences resulted from it.

Held, further, that in the circumstances the accused were guilty of causing hurt under section 312 of the Penal Code.

THIS was a case stated by the Attorney-General under section 355 (3) X 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 culpable homicide not amounting to murder by causing the death of one Liyana Pathirennehelage Podisingho on or about May 10, 1935, at Wadurawa in the division of Gampaha of the District of Negombo. They were tried before the Hon. Mr. V. M. Fernando, then Commissioner of Assize, and an English-speaking Jury on May 28, 1936, and convicted of the offence with which they were charged by a unanimous verdict. Each of the prisoners was thereupon sentenced to undergo five years' rigorous imprisonment.

The deceased Podisingho had a daughter named Sopi Nona. She was the mistress of the first prisoiner Salamon. On May 9, 1935, Sopi Nona left the house of the first prisoner at Wadurawa and proceeded to Polgahawela. The first prisoner sent Sopi Nona's brother Piyasena to Polgahawela to fetch her back.

On May 10, 1935, about 8 A.M., Sopi Nona returned to Wadurawa to the house of the deceased. About an hour or an hour and a half later the first prisoner entered the house of the deceased accompanied by the other prisoners. The first prisoner struck Sopi Nona with a stick. The deceased asked the first prisoner not to strike his daughter. Then the first prisoner struck the deceased on his shoulder and on the chest. The third prisoner seized the deceased and pushed him against a wall and the second prisoner and the third prisoner also joined in the assault on 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 and that externally there was a contusion over the left side of the front aspect of the chest. On internal examination there was the following injuries : 

(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.

There were also two ruptures of the liver, one over the anterior border of the-liver and the other over the external surface of the liver.

In the opinion of the Medical Officer who gave evidence death was due to haemorrhage and shock resulting from the ruptures of the spleen and of the liver. The spleen was enlarged as a result of disease to twice its normal size and a comparatively light blow would have been sufficient to cause its rupture. The liver was of normal size and in the opinion of the Medical Officer " considerable force must have been used to cause a rupture of the liver. The injuries on the liver were not necessarily fatal in th