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WILSON v. COLANDE CANGANY el al.
P. C., Gampola, 22,974.
Using crimhvM force—Mischief—Conviction for two offences in respect ofsame act.
Where accused threw stones at complainant with the object ofhitting or intimidating him, and without a separate intention ofcausing loss to him or injury to his property, and the stones fellon complainant’s house and panes of glass, roof, tiles, and gutteringwere broken thereby—Held, that by the conviction of accusedunder section 343 of the Penal Code of using criminal force, hehad been punished for his criminal act, and that further punish-ment for mischief was impossible.
r|^'HE facts of the case appear in the judgment.
Bawd, for appellant.
Dornhorst, for respondent.
4th October, 1897. Lawrie, A.C.J.—
Seven men were convicted of using criminal force to Mr. Wilsonunder section 343 and were sentenced to three months’ rigorousimprisonment, and the same men were also convicted of mischiefunder section 409 and were sentenced to the same punishment,while two women were at the same time tried and convicted forintentionally insulting Mr. Wilson with intent to provoke a breachof the peace, punishable under section 484.
• The Police Magistrate has reported that since the trial two ofthe seven men have died, the second and the fourth. I take thecase of the two women first.
They used the filthy words set forth in the charge. To warranta conviction it was necessary that the person who uses the wordsgave provocation thereby, and intended or knew that such provo-cation was likely to cause a breach of the public peace or thecommission of some other offence.
It seems to me impossible to hold that these women could intend,or could know it to be Ukely that the provocation given bythem would cause an English gentleman to strike them andbreak the peace. The essence of the offence consists in the effectwhich it is likely to produce upon the person to whom the provo-cation is addressed.
It seems to me that the words spoken by these Tamil coolywomen could not possibly provoke their master into committing
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any offence. Mr. Wilson does not say he felt any inclination tocommit an offence, and he did not yield to the inclination if hefelt it. The Police Magistrate, however, holds the offence proved,and as he has sentenced the women to no more than one month’simprisonment no appeal lies, and the responsibility rests withthe complainant and the Magistrate.
I am not sure that the men were rightly convicted under section343; none of the stones thrown at Mr. Wilson hit him;certainly the accused did not bring any substance into contact withMr. Wilson’s body. Did they cause him to move, to change ofmotion, or to cease to move ? I suppose they did, for Mr. Wilsonhad to move from one point of vantage to another, especially toplace his wife in safety. If the acts of the accused did notamount to criminal force under section 340, they did amount toassault under section 341, and I affirm the conviction and sentencepassed on the first, third, fourth, fifth, and sixth accused (thesecond and the seventh are dead).
Now I think that, although damage was done to Mr. Wilson’sproperty in the course of the assault, though panes of glass, roof,tiles, and guttering were broken, that did not constitute a separateoffence. These were part of the criminal force or assault. AsI understand the evidence, all the stones were thrown withthe object of hitting or intimidating Mr. Wilson; there was noseparate intention of causing loss to bim or injury to his property,and on the principle often lar'd down and acted on that the sameact shall not be twice punished, first as one offence and then asanother, I think it necessary to bold that by the conviction andsentence under section 243 the criminal act of the accused hadbeen punished, and that further punishment is impossible.I set aside the conviction and sentence for mischief.
WILSON v. COLANDE CANGANY et al