022-NLR-NLR-V-49-OLIVER-Appellant-and-BORELLA-POLICE-Respondent.pdf
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DIAS, J—Oliver v. BoreUa Police.
1947Present : Dias J.
OLIVER, Appellant, and BORELLA POLICE, Respondent.
S. C. 1,172—M. G. Colombo, 30,899
Penal Code, s 156-—Fighting in public place—self defence—Is it affray ?
Where a person who is attacked on the public road has to flgbt in order to.defend himself he cannot be said to be guilty of affray, even if the public peace-is disturbed.
ApPEAL from a judgment of the Magistrate, Colombo.
E. B. Wickremanayake, for the 1st accused appellant.
V. Thamttheiam, C.C., for the Attorney-General.
Cur. adv. mdt:
December 2, 1947. Dias J.—
The appellant, S. M. Oliver, is the owner of a servant’s agency. He-also owns a “ coffin business ”. It is alleged that one Waragoda has arival “ coffin business” not far distant from-the appellant’s establish-ment. The 2nd accused, Podiappu, is the Manager of Waragoda.
The appellant and Podiappuhamy were charged and convicted ofcommitting an affray in breach of section 157 of the Penal Code. Theywere each fined Rs. 25 and ordered under section 80 (1) of the CriminalProcedure Code to enter into bonds to keep the peace.
It is alleged that on July 24, 1947, the appellant and Podiappuhamyfought on the road and disturbed the public peace. Two witnesses,Amolis Appuhamy and James Appu, say that they were attracted by acommotion at the junction of Norris Canal Road and Maradana, and whenthey went out to see what it was all about, they found the two menstruggling, and exohanging blows. Neither of them can say how thetrouble started. They saw a cycle lying on the centre of the roan. The-wife of the appellant banded b knife to the Inspector of Police who wentto the scene.
WINDHAM J.—JSenanayaka v. Ooonesekere.
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Podiappuhamy did not give evidence. The appellant, however, did.According to him, he was peacefully cycling along the road when Podi-appuhamy abused him and struck him on the abdomen. The appellantthen fell off the cycle, whereupon Podiappuhamy took a clasp knife fromhis waist and tried to open it. The appellant says that in self-defencehe struggled with Podiappuhamy and disarmed him.
The Magistrate says that he is not prepared to believe that story,because according to him there is no corroboration of his story. Theoverturned cycle, and the finding of the knife at the spot are circumstanceswhich support the appellant. Furthermore, it was for the prosecutionto prove the guilt of the appellant, and not for him to prove that he isinnocent. There is a complete absence of evidence on the part of theprosecution to show that the appellant’s story is untrue. There wasthus a substantial doubt as to whether the charge had been established.When a man has to fight on the public road to defend himself againstthe attack of a thug who knocks him down and pulls out a knife, hecannot be said to be guilty of an affray, evenif the public peace is disturbed.
The Crown Counsel does not support the reasoning of the Magistrate.The appellant is acquitted and discharged.
Appeal allowed.