136-NLR-NLR-V-48-PILLAYAN-et-al.-Appellants-and-MANAMPERUMA-Police-Sergeant-Respondent.pdf
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WIJEYEWARDENE S.P.J.—Pillayan v. Manamperuma.
1947Present: Wijeyewardene S.P.J.
PILLAYAN et al., Appellants, and MANAMPERUMA (PoliceSergeant), Respondent.
S. C. 663-667—M. C. Batticaloa, 2,568.
Criminal Procedure Code—Section' 298—Evidence taken down in shorthand—Writing in English.
Evidence taken down in shorthand is evidence taken down in writingin English within the meaning of section 298 of the Criminal ProcedureCode.
Attygalle v. Shemsudeen (1905), 4 Thambyah’s Reports, followed.
A
PPEAL against certain convictions from the Magistrate’s Court,Batticaloa.
E. Chitty (with him H. Wanigatunga), for the accused, appellants.
Boyd Jayasuriya, C.C., for the Crown.
August 28, 1947. Wijeyewardene S.P.J.—The five accused were charged with—
Cur. adv. vult.
being members of an unlawful assembly,
having destroyed by fire a Guard Station of the Internal Purchase
Scheme (sections 419 and 140 of the Penal Code).
having caused grievous hurt to Sambasivam, a Guard under the
Internal Purchase Scheme (sections 316 and 140 of the PenalCode),
having committed theft of three bushels of paddy which werein the possession of the aforesaid Sambasivam (sections 369 and140 of the Penal Code), and
(e) having caused hurt to Thambyappah, a Guard under the InternalPurchase Scheme (sections 314 and 140 of the Penal Code) .
The Magistrate tried the case under section 152 (3) of the CriminalProcedure Code. He convicted the accused on all the counts but dealtwith them leniently, as they had no previous convictions and as they“ appeared to be young ”. He passed the following sentences on eachof the accused : —
imprisonment till the rising of the Court and a fine of Rs. 40 on the
first count, in default one month’s rigorous imprisonment;
a fine of Rs. 15 on the second count, in- default two weeks’ rigorous
imprisonment;
a fine of Rs. 25 on the third count, in. default one month’s rigorous
imprisonment;
a fine of Rs. 10 on the fourth count, in default one week’s rigorous
imprisonment; and
a fine of Rs. 10 on the fifth count, in default one week’s rigorous
imprisonment.
WIJEYEWARDENE S.P.J.—Pilliyan v. Manampeurma421
The evidence of the witnesses for the prosecution shows that theaccused had acted in a very high handed manner. The first and fifthaccused went near the Guard Station in question on July 26, 1946, at about4 p.m., carrying some paddy and attempted to pass the Station withoutariy permit for the transport of the paddy. Sambasivam, the Guard atthe Station, seized the paddy and informed them that they should gobefore the Headman. The two accused abused him and went awaysaying that they “ would teach him a lesson All the five accusedalong with several others came to the Guard Station at 1 a.m. on July 27and set fire to the Station and removed some of the paddy. They alsoassaulted the two Guards, Sambasivam and Thambyappah. Samba-sivam had five injuries including a fracture of the right forearm, and hewas in Hospital for about a month. The evidence led by the prosectutionstands uncontradicted, as no evidence was led for the defence.
When the appeal came up before me first on July 16, the accused wereabsent and were not represented by Counsel. As I thought I would haveto enhance the sentences passed by the Magistrate, I gave them anopportunity to appear on July 25.
On July 25 Counsel appeared for the accused and contended that theMagistrate had acted in contravention of the provisions of section 298of the Criminal Procedure Code, as he had got the official Stenographerto record the evidence in shorthand and then transcribe the evidenceso taken down. The relevent portion of that section reads : —
In the District Courts and the Magistrates’ Courts the evidence ofeach witness sh^ll be taken down in writing in English by the DistrictJudge or Magistrate or in his presence and hearing and under hispersonal direction and superintendence ”.
The argument of Counsel was that evidence taken down in. shorthandwas not evidence “ taken down in writing in English and that thesection contemplated not only that the language in which the evidenceis recorded should be English but that ordinary English script and notshorthand should be used in recording the evidence. I find that a 'similar argument was advanced unsucessfully over forty years ago inAtiygalle v. Shemsudeen1 to which my attention was drawn by the CrownCounsel after I reserved judgment. In that case Wendt J. said : —
" It is not denied that the language which the shorthand symbolsexpress is English, nor can it be denied that they are “ writing ”,within the meaning of the definition in section 3. I understand theterm “ in English ” to mean that the language in which the evidenceis expressed shall be English. In my opinion the term was not usedto qualify “ writing ” for it would be a very inapt form of words for thepurpose. If it had been intended that the Magistrate shall employthe characters in which English, is usually written and none other,
I should have expected clearer words to be used. ”
In ihe course of his judgment Pereira J. said : —
“ Whatever may be said as to the meaning -that should have beenassigned to these words (“ in writing in English ”), a contury ago, there* (1905) 4 Tliambyah's Reports 138.
422
Carolis Appuhamy v. Silva.
is no question that in modern times shorthand has become a means of
writing the English language as well recognised as any other means
especially in the matter of legal proceedings. ”
I follow the decision in Attygalle v. Shemsudeen (supra) and hold againstthe accused on the point raised by the Counsel. I may add that Rex v.wijesekere 1 is not applicable to the present case. The decision in thatcase turned largely on the absence of the words “ under the personaldirection and superintendence of the Judge ” in section 169 of the CivilProcedure Code.
The Counsel for the accused desired that a further opportunity be givento the accused to meet the allegations in the affidavit filed by the Crownregarding the ages of the accused. I acceded to his request and askedhim to file the birth certificates of the accused together with an affidavitto show that the birth certificaes filed referred to the accused. Theaccused have now filed two birth certificates one of Pillayan, son ofVerakudy Kathan, born in 1927, and the other of Vinayagamoorthi,son of Mothan Arumugam, born in 1914. In the absence of any affidavitI am unable to identify the persons mentioned in these birth certificatesas two of the accused. According to the affidavit filed by the Crownthe ages of the accused are 25 years, 28 years, 26 years, 25 years and 30years respectively.
I am of opinion that the sentence passed by the Magistrate are grosslyinadequate. I set aside those sentences and sentence each accused to—
one month’s rigorous imprisonment on the first count,
six months’ rigorous imprisonment on the second count,
six months’ rigorous imprisonment on the third count.
one month’s rigorous imprisonment on the fourth count, and
one month’s rigorous imprisonment on the fifth count.
These sentences will run concurrently.
Sentence enhanced.