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PHILLIPPU PILLAI w. NAGANATHAK.
P. C.. Kayts, 6,526.
Penal Code, 5. 31ft— Voluntarily causing hurt with a cutting instrument—Sickle—Injury caused by back of sickle.
Though a sickle be not used by an assailant to cut with its sharpside yet if he used the back of it with such force as to produce an incisedwoimd, he would be guilty of the offence of voluntarily causing .hurtwith a cutting instrument, under section 315 of the Penal (.'ode.
HIS was an appeal against a conviction for voluntarily causinghurt, under section 315 of the Penal Code, by means of a
' Walter Pereira (Elliott with him), for accused, appellant.—The sickle used in this case had a blunt side, and the wound was
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inflicted with the blunt edge. Consequently the sickle was notused as a cutting instrument, nor can the conviction be for usinga cutting instrument. As far as this case goes, the weapon wasnot a cutting weapon at all. If I used the barrel of a gun to strikeat anybody, I would not use an instrument for shooting, thoughordinarily the gun is a shooting instrument. Mr. Justice Lawriehas held that, in order to be convicted for inflicting an injury witha cutting instrument, the accused must be-' found to have used theinstrument as a cutting instrument. A weapon, to be called acutting weapon, must be more likely than not a- cutting instru-ment. Unless the sickle is used as a cutting instrument, itcannot be said to be a cutting instrument. It cannot ordinarilybe said to be so dangerous as to be likely to cause death. Itwas too light for that. Any weapon, even a stick, might other-wise be called a lethal weapon. It must be more likely thannot to cause death. The weapon must be so dangerous in itsnature and so formidable in its size as to be likely to cause death.But here the sickle was not so used. There was nb intention to cut.because the blunt side was used only. If I had a penknife andthrew it at somebody unopened. I could not be said to have useda cutting instrument under this section (Marihamy v. Robartv,9 8. C. C. 68): the instrument must be used intentionally to stabor cut. Where the cut is accidental, this section does not apply.So long as I do not hse an instrument, qua a cutting instrument,..I am not within the purview of this section. T might be guiltyunder some other section, but not under SIS.
Upon the facts of this case I do not see my way to disagree withthe decision come to in the Court below. I have, no reason to sayit was wrong. All I know is. it takes an extremely sensible viewof the facts.
However, a question of law was raised with regard to the con-viction under section 315. As far as I understand the argument,it was this: that the first accused, according to the version of thestory believed by the Magistrate, struck the complainant withthe back of the sickle which he had in his hand. According to themedical evidence, the wound which was found to be upon thecomplainant’s head was one which could only have been causedby a cutting instrument, and the judicial medical officer addedthat the back of the sickle produced before the .Court could nothave caused the injury upon the plaintiff’s head. Upon beingpressed, however, in cross-examination, he modified what he hadsaid, ancl gave it as his opinion that, if the blow was given with
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isbl. the blunt side of the edge of the sickle with very great force, itApril 2-J.might have causedthe injury onthecomplainant’s head. I think
Moncbeiff^hat we are boundto accept it,although no doubt what he said
J.is to some extentweakened bythepositive statement which he
made in the firstplace. Now,theargument founded upon this
part of the evidence is that a blow struck with the back of asickle, granting that a sickle is a cutting instrument, is not sucha blow as is contemplated by section 315 of the Penal Code, becausethe sickle was not used as a cutting instrument. To some extentthis argument is weakened by the later observation of themedical officer, because if that statement is correct, even the backof the sickle, although not intended for cutting might have pro-duced an incised wound.
A case was cited in support of the argument from 9- S. C. C. 68rwhere Mr. Justice Clarence said that, if the defendant inten-tionally used his knife to stab or cut the complainant, or used it on.the man with whom he was fighting, the case falls under section315. If the cuts were inflicted accidentally, then the defendantought not to receive any punishment based on his having used aknife, and that he was not- guilty of an offence under section 315.I am not sure that this opinion is altogether an authority for theargument put forward, but I am not disposed, unless I am author-ized by a superior court, to hold that a cutting instrument is notto be regarded as a cutting instrument within section 315 so longas the blows which were given with it are given with the bluntside. It is possible that, if it were necessary, I should go furtherthan that, but I do not think it desirable to go further than theargument which has been pressed by counsel.
With regard to the sentence, it is difficult for me to form a veryaccurate opinion of the merits of this struggle. Certainly I havenot the same facilities as the Magistrate, and I do not see that Ican alter the sentence passed by him.
PHILLIPPU PILLAI v. NAGANATHAR