021-NLR-NLR-V-49-ALWIS-APPU-et-al.-Appellants-and-BANSAGAYAH.pdf
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SOERTSZ S.P.J.—Aluns Appu v. Bansagayah.
1947Present: Soertsz S-P.J.
ALWIS APPU et al., Appellants, and BANSAGAYAH(P. S. 1399), Respondent.
S. C. 959-960—M. C. Kalutara, 45,455.
Penal Code—Robbery—Voluntarily causing hurt—Sentence on both counts—Legelily-of sentence—Sections 379 and 67.
Hurt is an integral part of the offence of robbery and an accused who issentenced on a charge of robbery cannot be given a sentence on a charge oCcausing hurt.
_/_PPEAB from a judgment of the Magistrate, Kalutara..
V. A. Jayasundara, for the accused, appellant.
Boyd Jayasuriya, C.C., for the Attorney-General-
October 20, 1947. Soehtsz S.P.J.—
The appellants in this case were charged, first, with committingrobbery of a Hercules cycle valued at Rs. 150 from one R. Pi Daniel and,secondly, with at the same time and place voluntarily causing hurt to
1 3 Burge (1st Ed.), 1059-
SOERTSZ S.P.J.-—Alwia Appu v. Bansagayah.
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the said R. F. Daniel by assulting him with hands. The learnedMagistrate after trial convicted the two accused on both charges framedagainst them and- sentenced them as follows :The 1st accused to 6
month’s rigorous imprisonment on charge 1, and 2 weeks’ rigorousimprisonment on charge 2, the sentences to run concurrently, and the2nd accused to 6 months’ rigorous imprisonment and a fine of Rs. 50or a further one month’s rigorous imprisonment on charge 1, and 2 weeks’rigorous imprisonment on charge 2, the sentences to run concurrently.
In regard to the convictions entered against the accused, on the factsthey are amply justified and Counsel for the appellants did not seriouslychallenge the finding of the learned Magistrate in that respect. Inregard to the sentence although Counsel made the submission to me thatthe sentence of 0 months’ rigorous imprisonment in respect of the firstcharge was excessive in the case of the two accused, I do not think soat all. I see no reason to interfere with the conviction or sentence oncharge 1 of either of the accused.
Then there arised another question which is of a substantial characterand that is whether the learned Magistrate was acting within his powerswhen he went on to impose on the second charge, in regard to the 1staccused, 2 weeks’ rigorous imprisonment and in regard to the 2ndaccused, 2 weeks’ rigorous imprisonment. Now, in my opinion, thelearned Magistrate bad no power to do that. Section 67 of the PenalCode provides as follows :—
“ Where anything which is an offence is made up of parts, any ofwhich parts is itself an offence, the offender shall not be punished withthe punishment of more than one of such his offences, unless it be soexpressly provided.”
Now, the section under which the first charge was preferred againstthe two accused is section 380 of the Penal Code and the defining sectionis section 379. Section 379 says :
“ In all robbery there is either theft or extortion. Theft is “ rob-bery ” if, in order to the committing the theft, or in committing thetheft, or in carrying away or attempting to carry away propertyobtained by the theft, the offender, for that end, voluntarily causes,or attempts to cause to any person death or hurt or wrongful restraint&c.”
So that it is prefectly clear that in a case of this kind the robbery is madeup of the theft plus huit. Therefore, the charge of robbery preferredagainst the two accused in respect of charge 1 comes within the wordsof section 67 which says that “where anything which is an offence ismade up of parts, any of which parts is itself an offence, the offender shallnot be punished with the punishment of more than one of such his offences,unless it be so expressly provided.” Here, in the result, the offenderhas been punished for the offence of robbery and is also punished for theoffence of hurt, that being an integral part of the offence of robbery.That is not allowed by law.
Learned Crown Counsel submitted that really no hardship was involvedin this instance because the sentence imposed in respect of the secondcharge is a sentence made to run concurrently with the sentence passed
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DIAS, J—Oliver v. BoreUa Police.
in respect of the first charge. But I do not think that that submission is-entitled to any weight because an accused person is entitled to say that hedoes not desire to have even a conviction entered against him upon acharge although that conviction does not result in any physical hardshipor in the payment of any additional fine.
therefore, set aside the convictions entered against the two accusedin respect of the charge of hurt and a Iso delete that part of the sentencewhich imposes upon them sepaiate sentences in respect of the secondcharge. Otherwise, the appeals are dismissed.
Sentence on second charge deleted.