ABRAHAMS C J.—Marshall v. Veero.
1936Present: Abrahams C.J.
MARSHALL v. VEERO.52S—P. C. Kurunegala, 48,718.
Causing hurt—Using the handle of a closed clasp knife—Sharp-cutting instru-ment—Penal Code, ss. 314 and 315.
The offence of causing hurt with the handle of a closed clasp knife ispunishable under section 314 of the Penal Code.
The handle of a closed knife is not an instrument for cutting within themeaning of section 315 of the Penal Code.
-A.PPEAL from a conviction by the Police Magistrate of Kurunegala.J. R. Jayawardene, for accused, appellant.
Cur. adv. vult.
October 9, 1936. Abrahams C.J.—
The appellant was convicted of the offence of voluntarily causing hurtwith a sharp-cutting instrument, to wit, the handle of a clasp knife, undersection 315 of the Penal Code, and was sentenced to pay a fine of Rs. 50or in default to suffer two months’ rigorous imprisonment. He appealson the ground that an injury caused by the handle of a closed clasp knifeis not punishable under section 315 but under section 314, and he alsocomplains that the sentence is excessive in the circumstances. Theassault appears to have been entirely unprovoked, and the injuries, four,inflicted on the head are not in themselves serious. Nevertheless theywere inflicted on a part of the human person where a comparatively slightblow may result in a serious injury, and were therefore some indicationof a malicious intent! I think, then, that the sentence is not excessive.
J. N. B 32899(1/54)
ABRAHAMS C-J.—Marshall v. Veero.
As regard the section under which the offence falls, the Magistratefollowed S. C No. 102—P. C. Colombo (Itinerating) No. 47,571, whichhe treated as conclusive on the point. That case undoubtedly cannot bedistinguished from this, and there Dalton J. said, “ After hearing part ofthe evidence the Magistrate came to the conclusion that the injury wascaused probably by a knife which was closed at the time of the offence.He then goes on to hold that a closed clasp knife cannot be said to be aninstrument for cutting. I am quite unable to agree with him. Whethera clasp knife is closed or opened it is still a knife, and one of the primaryuses of the knife is for the purpose of cutting ”.
With all due respect, I regret I am unable to agree with the learnedJudge and I have not the slightest doubt that it would be a seriousmisconstruction of section 315 to hold that the handle of a closed knifewas an instrument for cutting. To follow such a construction to itslogical outcome would be to convict of causing hurt by means of aninstrument for shooting a person who struck another on the head withthe butt end of a revolver. In my opinion the section means to penalizethose persons who employ instruments intended or adapted for shooting,stabbing, or cutting, in the way in which they were intended or adaptedfor use. It would appear as if unconsciously the prosecution in this casefollowed this view by the manner in which the charge was actuallydrafted, the error in the charge being that the wrong section was quoted.
Another and a closer way of looking at the true construction of thissection, is by analysis of the word “ instrument ”. The actual instrumentfor cutting is that part of the knife which actually inflicts the cut,namely, the blade.
My attention has been directed by Counsel for the appellant to section 61of the Village Communities Ordinance, No. 9 of 1924. The offence ofvoluntarily causing hurt is in fact triable by a Village Tribunal, and as theoffence was committed within the jurisdiction of a Village Tribunal itshould have been tried by that Tribunal. But under the proviso to thatsection, jurisdiction was given to the Police Magistrate by the action ofthe Police Officer who prosecuted this offence in his Court. Councilsubmits that the Police officer did so because he was of the opinion thatthe case fell under section 315 and was therefore cognizable by the PoliceCourt to the exclusion of a Village Tribunal. It may be so, but the factremains that jurisdiction was given to the Police Court, and was lawfullygiven. If any injustice had been done in the sentence I would haverectified it myself, and therefore no useful purpose would be served byremitting the case for trial to the Village Tribunal. In fact, as I do notconsider the sentence excessive, it might very well be that the VillageTribunal would inflict a sentence which, in my opinion, would be inade-quate. It is desirable, however, that the appellant should have recordedagainst him a conviction for the offence which, in my opinion, hecommitted, and not that which, in my opinion, he did not commit. Itherefore allow the appeal by altering the conviction from one of volun-tarily causing hurt under section 315 to one under section 314. I dismissthe appeal against the sentence.
MARSHALL v. VEERO