[COURT OF CRIMINAL APPEAL]

1952 Present : Nagalingam S.P.J. (President), Gratiaen J. and Pulle J.
MENDIS et al, Appellants, and THE QUEEN, Respondent

APPEALS Nos.76-77 WITH APPLICATIONS Nos. 116-117

S. C. 12-M.C. Balapitiya, 66,743

Charge of murder-Evidence of injury by club blow-Supervening toxaemia causing death-Criminal responsibility of accused-Extent of his criminal liability- " Sufficient in the ordinary course of nature to cause death "-Penal Code, s. 293, Explanation 2, and s. 294, Clause 3.

Where toxaemia supervened upon a compound fracture which resulted from a club blow inflicted by the accused and the injured person died of such toxaemia-

Held that as the injured man's death was not immediately referable to the injury actually inflicted but was traced to some condition which arose as a supervening link in the chain of causation, it was essential in such cases that the prosecution should, in presenting a charge of murder, be in a position to place evidence before the Court to establish that " in the ordinary course of nature " there was a very great probability (as opposed to a mere likelihood) (a) of the supervening condition arising as a consequence of the injury inflicted, and also (b) of such supervening condition resulting in death.

APPEALS, with applications for leave to appeal, against two convictions in a trial before the Supreme Court.

M. M. Kumarakulasingham, with G. C. Niles, for the accused appellants.

Boyd Jayasuriya, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

178

February 8, 1952. GRATIAEN J.-

The appellants were jointly tried for the murder of Yagama Vincent Silva, the offence being alleged to have been committed by them on 21st November,1950. They were both found guilty by the unanimous verdict of the Jury.

The case for the prosecution was that on the morning of 21st November, 1950, the appellants, actuated by a common intention, brutally attacked Yagama Vincent Silva with a sword and a club, causing him grievous injuries with both weapons. The injured man, who was in a collapsed condition and was suffering from shock as the cumulative effect of the injuries sustained by him, was removed to the Government Hospital at Balapitiya where he was examined by the District Medical Officer, Dr. Tissaweerasinghe who gave him such skilled medical attention as the facilities available in that particular hospital permitted. One incised injury in particular would necessarily have caused death " in the ordinary course of nature ", but surgical treatment prevented this result. There was still a risk, however, that death might result from septic poisoning setting in as the result of another injury (the nature of which I shall more particularly describe hereafter). Dr. Tissaweerasinghe had explained in the course of his evidence in the Magistrate's Court that the appropriate serum was not available in his hospital, and it was presumably for this reason that the injured man was despatched to Colombo for treatment at the General Hospital at 10 a.m. on the next day. Unfortunately, however, toxaemia had already set in, and Silva died that evening. A post-mortem examination was conducted at 7.45 a.m. on 23rd November by the Judicial Medical Officer, Dr. G. S. W. de Saram, in whose opinion death was due to " toxaemia from gas gangrene following a compound fracture of the right leg ".

It is evident that toxaemia, which was the immediate cause of death, supervened upon a particular injury resulting from a club blow for which the jury, properly directed and upon ample evidence, have imputed joint criminal responsibility to both appellants. The details of the injury at the time of the autopsy are described as follows by Dr. de Saram :-

" A punctured wound 3/8th inch in diameter by quarter inch deep over the upper right shin three inches below the knee with underlying fracture of both bones of leg. There was blistering and bla