M. FRANCIS DE SILVA and 4 others, Appellants, and K. T. P. ISURUPALA (Inspector

078-NLR-NLR-V-77-M.-FRANCIS-DE-SILVA-and-4-others-Appellants-and-K.-T.-P.-ISURUPALA-Inspector-.pdf


390
De Silva v. Isurupala
1974 Present: Malcolm Perera, J., and Vythialingam, J.M.FRANCIS DE SILVA and 4 others, Appellants, and
K.T. P. ISURUPALA (Inspector of Police (Crimes),Galle), Respondent
S. C. 563-66/73—M. C. Galle, 72353/APenal Code—Section483—Criminalintimidation—" Threatens “—
Threat may be communicated by means other than words.
The threat contemplated in the definition of criminal intimidationin section 483 of the Penal code can be communicated by meansother than words, for example by a gesture. A verbal threat is pro-bably the commonest means by which a threat is communicated, butthere is no good reason, in principle, why a threatening gestureshould be excluded from the ambit of the definition.
Murukesu v. Karunakara (2 Times 64) and Samaranayake v.Jayasinghe (50 N. L. R. 330) not followed.
MALCOLM PERBRA, J.—De Silva v. Isurupala
391
-A.PPEAL from a judgment of the Magistrate’s Court, Galle.
W. Athulathmudali. with Asoka Somaratne and DenzilGunaratne, for the accused-appellants.
Asoka de Silva, with A. Amaranath, for the Attorney-General.
Cur. adv. vult.
•July 2, 1974. Malcolm Perera, J.—
In this case the accused were charged as follows :—
You the above-named accused with others unknown weremembers of an unlawful assembly whose commonobject was to commit mischief by damaging the houseand household furniture, etc., in the occupation ofS. G. Danawathy and that thereby committed anoffence punishable under section 140 read with section146 Chapter 19 L, E. C.
That at the same time and place aforesaid and in the course
of the same transaction you the above-named accusedwith others unknown to the prosecution were membersof an unlawful assembly being armed with deadlyweapons, to wit: sword and etc. or with anythingwhich used as an offence likely to cause death and thatthereby committed an offence punishable undersection 141 read with section 146 Chapter 19 L. E. C.
That at the time and place aforesaid and in the course
of the same transaction you the above-namedaccused with others unknown were members of anunlawful assembly as set out in count 1 above commithouse-breaking by night by entering into the housein the occupation of S. G. Danawathy of Welipiti-modera with intent to commit mischief, which offencewas committed in the prosecution of the commonobject and that thereby committed an offencepunishable under section 443 read with section 146Chapter 19 L. E. C.
That at the same time and place aforesaid that in thecourse of the same transaction that you the above-named accused with others unknown to the prosecu-tion were members of an unlawful assembly as set out
392
MAXCOLM PERERA, J.—De Silva v. Iaurupala
in count 1 above commit the offence of criminal inti-midation by threatening S. G. Danawathy withinjury to her person with intent to cause her alarmwhich offence was committed in the prosecution ofthe common object as set out in count 1 above and thatthereby committed an offence punishable undersection 486 read with section 146 Chapter 19 L. E. C.
That at the same time and place aforesaid and in thecourse of the same transaction you the above-namedaccused with others unknown to the prosecution weremembers of an unlawful assembly as set out in count 1above with intent to cause wrongful loss to the saidS. G. Danawathy commit mischief by damaging thewhole household causing damage to the extent ofRs. 8,000, which offence was committed in the prose-cution of the common object as set out in count 1 aboveand that thereby committed an offence punishableunder section 140 read with section 146 Chapter 19
E. C.
After trial the learned Magistrate convicted the accused on allcounts on 21.5.73, and on 6.6.73 the learned Magistratesentenced all the accused to 6 months’ rigorous imprisonment oncount 1, 6 months’ rigorous imprisonment on count 2, 6 months’rigorous imprisonment on count 3, one month rigorous imprison-ment on count 4, one year’s rigorous imprisonment on count 5—sentences to run concurrently.
Learned Attorney for the appellants submits : Firstly, thatthe learned Magistrate has not examined the case of eachaccused separately ; Secondly, that each count in the chargehas not been dealt with by him separately ; Thirdly, thatthere was no evidence to substantiate counts 2 and 4 ; andFourthly, that the evidence against the 5th accused isunreliable in that the only witness, namely, Piyaseeli, whoimplicated him, had made a belated statement to the Police.
As regards the first submission, Mr. Athulathmudali moststrenuously contended, not without eloquence, that the learnedMagistrate had not conformed to the provisions of section 306 ofthe Criminal Procedure Code. The matter was fully argued and,in the course of his submission, learned Attorney made athorough scrutiny of the evidence and of the judgment of thelearned Magistrate.
MALCOLM PERERA,J.—Ve Silva v. Isurupala
393
In support of his submissions he relied on the case of ThuraiAiyah v. Pathimany1, 15 C. L. W. 119, where Nihill J. said:
“ Such difficulties as arise in determining this appeal are, I ambound to say, due to an imperfect state of the reasons for theconviction entered on the record by the learned Magistrate. Amere outline of the case for the prosecution and the defence,embellished by such phrases as ‘ I accept the evidence for theprosecution ’, * I disbelieve the defence is by itself an insufficientdischarge of the duty cast upon a Magistrate by section 308 (1)of the Criminal Procedure Code.”
In the case of Ibrahim v. Inspector of Police, Ratnapura"59 N. L. R. 235, de Silva A. J. said “ Nowhere has the Magistrategiven any reasons for his conclusions, nor does he appear to haveconsidered the evidence given by the appellant and his witnesses.The learned Magistrate’s omission to state the reasons for hisdecision has deprived the appellant of his fundamental rightto have his conviction reviewed by this Court and has thusoccasioned a failure of justice.”
With respect, I am in full agreement with the views expressedby the learned Judge in those cases. In this case can it be saidthat the learned Magistrate omitted to state his reasons for hisdecision ? Having carefully examined the evidence and thejudgment, I do not think so. In his judgment—especially at pages51 to 54 and 59 and 60—the learned Magistrate has carefullyexamined the cases of each accused separately and dealt witheach count in the charge and given his reasons for his findings.In the result I am unable to assent to the first and second sub-missions put forward by the learned Attorney for the appellants.
With regard to the third submission urged on behalf of theappellants, I cannot agree that there was no evidence to subs-tantiate count 2 of the charge. In his evidence, Premadasa statedthat he saw the 2nd accused Amarapala damaging the petromaxlamp with a club and striking the wall clock with a club. Thus,there is clear evidence that a member of the unlawful assemblywas armed with a deadly weapon. The learned Magistrate hasaccepted Premadasa’s evidence, and upon his evidence, takenwith the rest of the evidence, count 2 is clearly made out.
It was argued that since no verbal threats were uttered againstDanawathy by anyone of the members of the unlawful assembly,count 4 has not been proved.
(1939) IS O. L. W. 119.
(1957) 59 N. L. R. 23%.
394
MALCOLM PEEEBA, J.—De Silva v. Isurupala
It was the contention of Mr. Athulathmudali that in order tomaintain a charge under section 486 of the Penal Code theremust be the uttering of threatening words. Learned Attorney didnot, however, cite any authorities in support of his submission s~Section 483 of the Penal Code reads as follows : —
“ Whoever threatens another with any injury to hisperson, reputation or property, or to the person or reputationof anyone iii whom that person is interested, with intent tocause alarm to that person, or to cause that person to do anyact which he is not legally bound to do, or to omit to do anyact which that person is legally entitled to do, as the meansof avoiding the execution of such threat, commits criminalintimidation. Explanation—A threat to injure the reputationof any deceased person in whom the person threatens isinterested is within this section.
Illustration
A, for the purpose of inducing B to desist from prosecutinga civil suit, threatens to burn B’s house. ”
The submission of learned Attorney seems to be supportedby the view expressed by Bonser C.J. in 4376 District Court ofBadulla reported in Koch’s Reports p 66. The report reads:
“ Section 486 of the Penal Code refers to threats either by writingor by word of mouth. Pointing a gun at a man is a gesture whichwould cause a person to apprehend that the person making thatgesture is about to use criminal force against him—punishableby section 343 of the Penal Code. ”
A. St. V. Jayewardene A.J. considered a similar situation inthe case of Murukesu v. Karunakara1, 2 Times of Ceylon LawReports p. 64, Jayewardene A.J. said : “ The objection is thatthe facts, even if accepted as true, do not disclose the commis-sion of an offence under section 486 because there was no threat.It has been held that under section 483 which defines criminalintimidation it is necessary that the threat should be eitherverbal or in writing (see judgment of Bonser C.J. 4376 D.C.Badulla reported in Koch’s Report p. 66).
I have gone through the evidence and I find that there is noverbal threat, and the Magistrate himself says that the accusedhad a knife in his hands at the time he went towards thecomplainant, although he did not verbally threaten the com-plainant. Therefore, it is not possible to say that the accused has
1 3 Times 64.
MALCOLM PERERA, J.—De Silva v. Jsurupala
395
committed an offence under section 483 punishable under section486. The Magistrate finds that the accused held up his knife in athreatening manner. If he did so in fact he might have beenguilty of an offence, with which however he was not charged.Considering the circumstances of this case I do not think thatany useful purpose would be served by sending the case backfor a fresh trial on an amended charge. The point of law raisedmust be upheld and the accused acquitted.”
In the case of Samaranayake v. Jayasinghe 1 (50 N.L.R. 330),Basnayake J. (as he then was) said : “ A threat is a declarationof an intention to punish or hurt, and to threaten is to give awarning of the infliction of an injury or to announce one’s,intention to inflict an injury as punishment or in revenge. ”
The answer to the question under discussion can be found inthe meaning of the word 1 threatens ’ in section 383. Accordingto the Short Oxford Dictionary, the word ‘ threaten ’ means :“ (1) to try to influence (a person) by menaces ; (2) to declareone’s intention of inflicting an injury upon another .TheChambers 20th Century Dictionary gives the meaning of theword ‘ threaten ’ as : “ to declare the intention of inflictingpunishment or other evil upon another ; to terrify by menaces ■;to present the appearance of coming evil or of somethingunpleasant. A ‘ menace ’ is a “ show of intention to do harm ”.
I am of the view that a threat can be communicated by a dec-laration or by a show of intention to do harm by means otherthan words, for example by a gesture. A verbal threat is probab-ly the commonest means by which a threat is communicated butit is not the only means by which a threat can be announced. Tosay that there must be a verbal threat in every case of criminalintimidation is to restrict the meaning of the word ‘ threaten ’.I am not inclined to give so narrow a meaning to the word‘ threatens ’ in section 483 of the Penal Code. With respect, Idisagree with the views expressed by Bonser C.J., JayewardeneA.J. and Basnayake J. in the cases mentioned above. I see nogood reason, in principle, why a threatening gesture should beexcluded from the ambit of the definition of the offence given in
section 483 of the Penal Code.
*
In this case witness Danawathy stated in her evidence that“on the night of 13/14th of February, when I was sleeping Iheard a sound as if the glass shutters of the window were beingbroken upon. My son Premadasa had a torch light in his hand.There was a lamp in the house, but it was not burning. Prema-1 (1948) SO N. L. R. 330.
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MALCOLM PERERA, J.—De Silva v. laurupala
dasa flashed his torch. I saw the windows broken. There weresome people in the verandah and some in the garden. When Iand my son came to the verandah, I heard stones being pelted atthe house. The 1st, 2nd, 3rd and 4th accused broke open the reardoor and entered the house
In the light of these facts, I think the learned Magistrate wasright in convicting the accused on count 4.
There appears to be substance in the fourth submission ofMr. Athulathmudali. The only witness who implicates the 5thaccused is Piyaseeli. She states that she identified the 5th accusedby the light of the torch he was flashing that night. She madeher statement to the Police only the day after the incident. It isher evidence that she did not tell her brother or anyone elsethat the 5th accused was one of the culprits.
The learned Magistrate, in considering the evidence of thiswitness in relation to the 5th accused, states :“ One cannot
expect a clear cut, rational behaviour at a stage of this naturewhere all the household articles of considerable value had beenwantonly damaged. ”
In his evidence the 5th accused stated that on the night of30th February at 9.00 p.m. he went to the Police Station at therequest of the brother of the 1st accused. On the 15th he hadreported at the Police Station as requested by the Police.On a consideration of the evidence of Piyaseeli and of the5th accused, a reasonable doubt arises as to whether the5th accused had a hand in the criminal transaction spoken to bythe prosecution witnesses, particularly in view of the belatednessof the statement of Piyaseeli. I give the benefit of this reasonabledoubt to the 5th accused and acquit him.
The question of sentence has given me considerable concern.
In the course of the trial, the 1st accused had died. The learnedMagistrate has inadvertently convicted him and imposedsentences on him. I set aside formally the conviction andsentences imposed on the 1st accused who had died before thelearned Magistrate made his order.
The learned Magistrate has imposed a term of 6 months’rigorous imprisonment on count 3 which is a charge of house-breaking by night with intent to commit mischief and a sentenceof one year’s rigorous imprisonment on count 5 which is a chargeof mischief. The maximum term of imprisonment prescribed forthe offence of house-breaking by night with intent to commit
Svbavr v. Isthikar
397
mischief is 5 years’ rigorous imprisonment, while the maximumfor the offence of mischief is 2 years’ rigorous imprisonment. Ithink the graver of the two offences is the one set out in count 3,for which offence the Magistrate has imposed a term of 6 months’rigorous imprisonment.
I am of the view that while deterrent sentences should beimposed for offences of this nature, the sentence passed in respectof count 5 is excessive in the circumstances of this case. I
I therefore set aside the sentences imposed on the 2nd, 3rd and4th accused in respect of count 5 and substitute in its place asentence of 6 months’ rigorous imprisonment. The sentences areto run concurrently.
Vythialingam, J.—I agree.
Convictions of 2nd, 3rd and4th accused affirmed.