Perera v. Karunatilleka
1966Present:H. N. G. Fernando, J.
PERERA, Appellant, and KARUNATILLEKA (Inspector of Police),
S. C. 8—M. G. Colombo, 9,989
Penal Code—Section 340—“ Using force ”
Placing one’s finger, foot or lips in contact with another’s person or clothesconstitutes the use of force within the meaning of section 340 of the Penal Code.
XXPPEAL from a judgment of the Magistrate’s Court, Colombo.
Colvin S. de Silva, with M. L. de Silva, for thq accused-appellant.George Candappa, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
H. N. QI FERNANDO, J.—Perera v. Karunatilleka
December 20, 1955. H. N. G. Pebkando, J.—
The question of law of some interest in this case is whether a personwho “ molests ” a girl of tender years by touching her private parts afterlifting up her dress, but without using any threat or restraint, commitsthe offence of using criminal force. The first port of the definition of“ using force ” in section 340 of the Penal Code is the following :—
“ A person is said to use force to another if he causes motion, change
of motion, or cassation of motion to that other ”.
It would seem that the essence of this part of the definition is that thereshould be interference with the freedom of movement, by causing eitheran involuntary movement or a movement different from one whichis being performed or an obstruction to free movement. If that viewbe correct, then the act of molesting a person lying on a bed or sitting, on a chair, which is unaccompanied by any force or restraint whichimpedes the person’s ability to continue in the same position or to changeit, or which causes the person to move from that position, does notconstitute the use of force under the first part of the definition.
But the remaining part of the definition does not postulate this ele-ment of interference with movement: an act of placing any substancein contact with a person’s body or clothes, or with anything so situatedthat the contact affects the person’s sense of feeling, does constitutethe use of force. The question therefore is whether the term “ substance ”was intended to denote only something inanimate or else to includealso any part of the human person. While the narrower connotationappears at first sight to be the reasonable one, I think on reflection thatthe wider one was intended, and that placing one’s finger, foot or lips incontact with another’s person or clothes does constitute the placing of a“ substance ” in such contact and can therefore constitute the use offorce within the meaning of the definition. I am confirmed in this opi-' nion by the illustration (/) to section 341 in which it is stated that theintentional pulling up of a woman’s veil constitutes the use of force tothe woman. This could only be so if the hand with which the veil istouched is a “ substance ”, for the act would not necessarily be aninterference with movement which is essential for the first part of thedefinition.
There is nothing in the evidence in the case which would justify inter-ference with the conviction entered under section 343 of the Code. Iam asked to consider the question of sentence, but I think the presentinclination of Magistrates to deal somewhat severely with offences of thisnature is one that should not be discouraged.
The appeal is dismissed.
PERERA, Appellant, and KARUNATILLEKA (Inspector of Police), Respondent