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THE KING v. TAJUDEEN.
C., Colombo, 73,917:
Duty of a Judge trying several persons to consider the case of each separately—Dangerous weapons in the hands of the man arrested—Right of personarresting him to remove such weapons—Joint attack on a man—Liabilityof all persons attacking for grievous hurt caused by one of them—Fractureof rib by use of clenched fist.
When a number of persons are tried together, it is the duty of theJudge to consider and weigh the evidence separately as against each,and arrive at a finding consistent with the evidence.
When a person charged with an offence has in his hands dangerousweapons, it is right on the part of the person arresting him to removethem from him.
When several constables engaged in arresting a person prod him withbatons and beat him with fists, and in the _ common pursuit of suchassault he sustains a fracture of a rib, all those who took part in theassault are equally guilty of grievous hurt.
At the time of the assault they may not have had in their mind anintention to cause grievous hurt, butthey mustbedeemed inlaw to
have intended the likely result of their acts.
Where, in response to a signal- forassistance from a constable, other
constables were sent to aid him, andhe chargedaperson withassault
and called upon the. other constables toarrest him,itis not theirduty to
satisfy themselves as to the truth of the charge, but to assist their,comrade in taking the man to the station.
^N this case five, police constables were indicted and tried'in theDistrict Court of Colombo by the- Additional District Judge,
sitting without assessors, on the charge of having caused grievoushurt to one Allis Appu by fracturing his rib.
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It appeared that all these constables were attached to the police 1902.station at Wellawatta, and that while one of them, Tajudeen, the Januaryfiret accused, was on duty in the streets of Wellawatta, he endea-voured to arrest a man for brawling, who struck him in the faceand ran away. The first accused blew his whistle, which washeard by the sergeant at the police station, who sent out theother four accused to the assistance of their comrade. On theircoming up, the first accused pointed out a man name Alliswho was standing at a boutique, and charged him with being theman who had assaulted him and run away. He seized him and'requested his comrades to assist him in taking Him to the policestation. Allis protested that there was a mistake, and that he haddone nothing, but in spite of his protests he was taken away tothe police station. There Tajudeen charged him with beingdrunk and disorderly, and with having attempted to stab him witha knife. Allis complained that he had been severely beaten, and thesergeant sent him to the hospital, where he was examined by theJudicial Medical Officer, and it was found that one of his rightribs was fractured.
The Additional District Judge sentenced the first accused tonine months’ rigorous imprisonment, the second and fourth toeight months’ rigorous imprisonment, and the third and fifthaccused to four months' rigorous imprisonment.
Bawa, for appellants.—It was legal to arrest and remove the manwho had created the brawl and assaulted the first accused to thepolice station. The first accused might have been mistaken inbelieving that Allis was the offender, but the other accused, whohad been sent from the police station to help their comrade, were-bound to arrest the man whom the first accused pointed out. Allthe accused acted in good faith, and believed themselves justifiedin making the arrest. Section 72 of the Penal Code protects them.
They have all been held guilty of causing the fracture of the rib.,but there was no evidence led to show who caused the fracture.
Some force was necessary to arrest the breaker of the peace, andeven if the accused used their fists on him, they could not haveintended to break his rib. The conviction for grievous hurt istherefore not good.
Fernando, C.G., for the respondent.—There was. no necessity tostrike the man at all. He was willing to go to the station. Theyhad no-reason to arrest him, and even if he resisted, he was withinhis right to do so. When" five men belabour an unoffending man
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1902. and one of them causes grievous hurt, they are all guilty of theJanuary 29. offence, both-as principals and abettors. Prodding a man in theribB with a baton and striking him in the side with clenched fistscannot but break the rib bone. The result is one to be reasonablyexpected.
29th January, 1902. Bonsek, C.J.—
In this case I am sorry to say that I have not had that assistancefrom the judgment of ( the Additional District Judge which thiscourt has a right to expect. When a number of men are triedtogether it is most important that the evidence against eachshould be considered and weighed separately, else there is adanger of one man’s case being confounded with that ofanother; and if the evidence against the- majority i6 found to beconclusive, there is a danger that the others may be involved inthe same condemnation. If the case were tried by a judge witha jury, the Judge would analyze the evidence applicable to eachprisoner, and tell the jury that they must consider each man’scase separately, and point out to them what each witness saidagainst each prisoner. Now, when a District Judge tries a numberof men he ought, in his judgment, to adopt the same course. Itseems to me that, if that course had been adopted in the presentcase, all these men would not have been convicted- The resulthas been that in this Court we have been obliged to analyze theevidence for ourselves.
Now, it appears from the evidence of the sergeant that Allis,when brought to the station by the accused, complained of havingbeen assaulted by three of them, viz., the first, the second, and tbethird accused. The sergeant said he made no complaint againstthe fourth and the fifth accused, although they were present. Anumber of witnesses were called for the prosecution, personsof different nationalities, who had no connection with Allisapparently. ' He seems to have been a stranger both to thewitnesses and to the police constables. Now, one of these witnessesonly speaks to the first accused as prodding the man with hisbaton. Another man, a Moorman, a boutique-keeper, who waslooking on, only speaks of the first accused. The next witness,Don William, says, that he saw the second and fourth accusedstriking the man with their clenched fists. • Peter, the next witnesssays the same. B. Silva says the same. One witness, Fernando,and one witness only, says that he saw No. 5 strike Allis, as wellas No. 4. So we have four witnesses who speak to Nos. 2 and 4as having struck the man with fists, and only one witness as toNo. 5. Not one witness speaks of having seen No. 3 commit any
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assault, and it seems to me that in the circumstances it is highly 1902.improbable that No. 3 should have committed any assault.January 29.
Allis is a carpenter, and was carrying a plank and some Bonsbb, C.Jchisels, and the evidence of some of the witnesses is thatthey saw No. 3 take away the chisels from Allis, which initself was a very proper thing to do. When you are arresting aman you ought not to leave dangerous weapons in his hands.
Peter says that what he saw was this: When the four constableswere taking away A llic to the station, Anthony, No. 3, was about afatbom in advance, carrying the chisels and the plank, and there-fore it seems to me that it is highly probable'that Allis- wasmistaken when he charged Anthony, because there is no witnesswho corroborates him, while, according to one of the witnesses,that was highly improbable, because his hands were otherwiseengaged, carrying these chisels and this plank.
So that, I think, if the District Judge had analyzed theevidence, he must have acquitted No. 3, and No. 3 will beacquitted accordingly. Then, as regards No. 5, it will be observedthat no charge was made against No. 5 at the police station byAllis, and only one witness speaks as to No. 5. It seems veryprobable, therefore, that the witness was mistaken in his identityof No. 5. I think that No. 5 ought to have been acquitted, and hewill be acquitted accordingly.
Then, as regards the others, there is sufficient evidence againstthem that they did beat Allis on the way to the Station, Nos. 2and 4 with their fists and No. 1 by prodding him with his baton.
There is no evidence as to which blow fractured the man’s rib.
But if three men are engaged in the common pursuit ofassaulting a man and beating him, and in that assault he sustainsan injury, they are all equally guilty. Therefore it seems to methat all these three men were rightly convicted of fracturing thisman’s rib.
But it was urged that they did not intend to break the man’srib and, therefore, they could not be convicted of grievous hurt.
No doubt, they had not in their mind at the time -they struckhim with their baton and with their fists any definite idea thatthey were going to break his ribs or any particular rib; but whenpeople cause injuries to a man, their, intent must be judged bythe result of their action. They must be deemed in law to haveintended what they did. It cannot be said that striking a manwith clenched fists in the ribs is not likely to break his rib. Ofcourse, if the result were so improbable and' such that no mancould reasonably expect that a man’s ribs would be broken by theact, then it may be argued, and possibly argued successfully, that
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1902. there was no intent, either actually or in law. But fracturing aJanuary 19. rfb is by no- means an unlikely result of striking a man withBonsbb, C.J. clenched fists in the side, and therefore, as I say, I think thesemen were rightly convicted of causing grievous hurt. At thesame time, the manner in which the injury is caused must betaken into consideration, and grievous hurt produced in this way,by a blow of the fist, is not to be punished so severely asgrievous hurt caused by a dangerous weapon.
The District Judge does not seem to me to have distinguishedbetween the cases of these men as he might have done, and as heought to have done. He says: “ In the first place there was nojustification for taking Allis into custody.” Now, as regardsNo. 1, that may possibly be true, but as regards the other two men,that was not the case at all. They were sent out by their sergeant,knowing nothing of what had happened, to the assistance oftheir comrade, who had given the usual signal for assistance byblowing his whistle. Their comrade points out to them a man ashaving committed an assault on him, and proceeds to arrest himand calls on these men to assist him. They were bound to assisthim. They could not stop to inquire into the' case, as to whatevidence there was, or as to whether' this was the right man orfjhe wrong man. Their duty was to assist their comrade andtake^the man up to the station, where the matter would beinquired, into. Therefore, there was no blame attaching to themso far as the arrest is concerned.
As regards "No. 1, I said that it was possible that blame mightattach to,.him for the arrest, but at the 6ame time it looks to merather like a case of mistaken identity even as regards him(No. 1), for there is no suggestion that No. 1 knew anything ofAllis beforehand, or had any grievance against Allis which hewished to vent upon him, and Allis’ arrest is only referable to amistake on his part as to identity. But first accused, who is said tobe only nineteen years of age, is evidently a precocious scoundrel,for, having arrested him, it may be, under a mistake as to hisidentity, he tacks on a false charge of attempted assault with aknife, and produces a knife to the sergeant as the knife used byAllis, which knife is proved to be one belonging to a fellowconstable. His comrades are not shown to have taken any partin this false accusation, and the blame must therefore rest on himalone. The offence of which they have been convicted is thatof doing violence to a prisoner in their hands without anyjustification. ..N
Now, it seems to me that violence^used by a police constable,the abuse of his powers, when it is proved, ought to be severely
punished. It is very difficult to bring home such a case against 1902.police constables, for the tendency of Courts and their own f*"*u*y M.officers is to support the police in the performance of their siywm, C.J.duties; and the public, too, are very unwilling to come forward,as a rule, against police constables, unless it is a very dear strongcase.
As regards Tajudeen, I can see no mitigating feature in his case.
I think that in his case the sentence of nine months’ rigorousimprisonment was amply deserved. As regards the other twomen, the second and the third accused, who have been sentenced toundergo eight months’ rigorous imprisonment, their case is verydifferent from that of the first accused; but as I have alreadypointed out, the abuse of his powers by a police constable is notto be lightly dealt with. I think that under the oircumstancesa month’6 rigorous imprisonment will suffice in their case.
THE KING v. TAJUDEEN