044-NLR-NLR-V-74-M.-K.-FERNANDO-et-al.-Appellants-and-THE-QUEEN-Respondent.pdf
Fernando v. The Queen
[Court of Criminal Appeal]
Present: Sirimrme, J. (President), Alles, J., and Weerainantry, J,
W.K. FERNANDO el al., Appellants, and THE QUEEN,Respondent
C. C. A. Applications Nos. 64-G5/G0S. C. 220/6S—31. G. Colombo, 4133S
Criminal law—Offence of voluntarily causing grievous hurl—Penal Code, s. 317—Sentence of imprisonment mandatory—l’oncr of Court of Criminal Appealto impose such sentence in first instance—Court of Criminal Appcal Ordinance,s. & {3).
Where, at a trial before the Supremo Court, Iho accused is convicted ofvoluntarily causing grievous hurt under section 31 7 of the Penal Code, a sentenceof imprisonment is mandatory. If the trial Judge fails to imposo it, tho Courtof Criminal Appeal may, acting under section 0 (3) of the Court of CriminalAppeal Ordinance, impose such sentence if there is an appeal.
Applications against two convictions at a trial before the SupremeCourt.
K.D. P. Wickrantasinghe, with L. F. Ekanayake (assigned), for theaccused-appellants.
E. R. de Fonseka, Senior Crown Counsel, for tho Crown.
160
SIRIMAXE, J.—Fernando v. The Queen
June 24, 1960. Sirimakje, J.—
In the course of this trial in which the 1st and 2nd accused werecharged with attempted murder and abetment respectively, the 1staccused pleaded guilty to the offence of causing grievous hurt and the2nd accused to the abetment of that offence. The learned Commissionersentenced the 1st accused to pay a fine of Rs. 1,000 in default two years’rigorous imprisonment and the 2nd accused to pay a fine of Rs. 2,003in default two years’ rigorous imprisonment.
The injured person in this case was a young woman 21 years of age.According to the evidence there had been some displeasure betweenthe family of he 2nd accused and that of the injured girl. The 2ndaccused had come there in the afternoon with the 1st accused and pointedout the injured girl’s house. Thereafter the two accused with someothers had thrown stones, entered the house and damaged the furniture.The 2nd accused had dragged the injured girl out of the house by herhair and the 1st accused had stabbed her on her back. According tothe evidence of the doctor recorded in the Magistrate's Court thoinjured girl had a stab wound which had been inflicted with a pointedknife on the back of her chest; the injury had penetrated into thechest cavity and caused a collapse of the lung and bleeding. It wasan injury which in the ordinary course of nature would have resultedin death. The 2nd accused, whom the learned Commissioner hasreferred to as the “ prime mover in this episode ”, is an uncle of the1st accused.
The offence of voluntarily causing grievous hurt is punishable underSection 317 of the Penal Code and the punishment prescribed for thatoffence is that tho offender—
“ shall be punished with imprisonment of either description for aterm which may extend to ten years, and shall also be liable to fine ;and if the person to whom the grievous hurt is caused shall be a womanor child, may in addition bo punished with whipping.”
For an offence under this section, a sentence of imprisonment is,in our opinion, mandatory. It is clear from the punishments proscribedfor offences of a less serious nature that the legislature intenled that aterm of imprisonment must be imposed on a conviction under Section317. If one looks, for an example, at the punishments prescribed foroffences like voluntarily causing hurt under Section 314, or voluntarilycausing hurt with a dangerous weapon under Section 315, one finds that6cnfcnccs of imprisonment or fine may be imposed. Tire sentencesimposed in this case are not warranted by law.
Acting under Section 5 (3) of the Court of Criminal Appeal Act,wo quash the sentences passed by the learn el Counisiioner an.lsubstitute therefor sentences which we think o i 'lit to have been passedin the circumstances of this case. We sentence the 1st accused to two
SAMERAWTCKRAME, J.—Thirima'jagha'n v. Inspector of PoHcc; Jaffna ]G1
years’ rigorous imj riser.ini nt. The 2nd accused is sentenced to twoyears’ rigorous in:} liscrnanf nr cl in addition to a fine of Rs. 2,000 indefault one (1) year’s rigorous imprisonment. If the fine is paid, asum of Rs. 1,000 will be paid to the injured girl as compensation.
Sentence altered.