SOERTSZ J.—Rockwood v. de Silva,
1940Present: Soertsz J. –
ROCKWOOD v. DE SILVA.
654—M. C. Kurunegala, 69,011
Mischief—Throwing human excreta into the examination room of a surgeon
Confession retracted—Penal Code, s. 408.
A person who throws human excreta into the examination room of asurgeon is not guilty of the offence of mischief within the meaning ofsection 408 of the ^enal Code.
A confession made by an accused person is not inadmissible merelybecause he has retracted it.
A PPEAL from a conviction by the Magistrate of Kurunegala.
Nihal Gunesekera, C.C., for complainant, appellant.
Abeywickreme, for accused, respondent.
October 24, 1940. Soebtsz J.—Cur. adv. vult.
This is an appeal, with the sanction of the Attorney-General, from anacquittal on a charge made against the accused-respondent, of aiding andabetting the offence of mischief, by throwing human excreta into theexamination room of the surgeon of the Kurunegala Hospital. Thecharge was laid under sections 102 and 409 of the Penal Code.
The Magistrate acquitted the accused because, he held, that the two con-fessions alleged to have been made by the accused to the witnesses Kandiahand Fonseka could not be taken into account against the accused, becausethe confession to Kandiah fell within the meaning of section 24 of theEvidence Act and was, therefore, inadmissible, and the confession madeto Fonseka was made. under circumstances which made the Magistrate“ feel it unsafe to act upon it in view of the fact that it has been retracted ”,42/14
SOERTSZ J.—Rockwood v. de Silva.
It is not at all clear to me what exactly the Magistrate means to conveywhen he uses these words. It cannot be that the Magistrate questionsthe veracity of the witness Fonseka or is doubtful of his recollection ofthe facts he spoke to, because the Magistrate says in so many words “Iaccept the evidence of Mr. Fonseka that the accused made to him thestatement which Mr. Fonseka related in Court”. The only conjectureI can make in regard to the meaning of the passage I have quoted fromthe judgment is that the Magistrate means to say that the accused madethe confession spoken to by the witness, but that he made it in sanguineexpectation of a benefit, and now that this expectation has not material-ized, the accused’s retraction of this confession results in theconfession becoming “ unsafe to act on ”. As a piece of reasoning, I findthis very weak and unconvincing. The confession made to Fonseka is, ifthis witness' evidence is accepted, clear and unequivocal and is legallyadmissible evidence against the accused. And so is the confession madeto the witness Kandiah. It is clearly not within section 24 of theEvidence Act. For one thing, there was no charge, nor were there anyproceedings against the accused at the time he made the confessions.For another, there was no inducement, threat or promise by or from eitherof the witnesses to influence the accused to make the confession.
In my opinion, the accused has convicted himself on these confessionsof having abetted Podiya to throw human excreta into the examinationroom. The retraction of the confessions is unfortunate and worthless.
The only question left is whether when Podiya threw human excretainto the examination room there was such mischief as is contemplated bysection 408 of the Penal Code. That section provides that “whoever,with intent to cause, or knowing that he is likely to cause, wrongful lossor damage to the public or to any person, causes the destruction of anyproperty, or any such change in any property or the situation thereof asdestroys or diminishes its value or utility or affects it injuriously, commitsmischief ”.
In this case it is dear from the charge made in the summons that theproperty in respect of which the charge of mischief is laid is the examina-tion room. It is not suggested in the evidence that this examinationroom has been destroyed by the act of Podiya. That act, therefore, doesnot come within that part of section 408 which requires “ the destructionof any property ”. Was there then “ any such change in ” the examina-tion room or “ in the situation ” of the examination room “ as destroyed ordisminished its value or utility-or affects it unjuriously ” ? There has beenno change whatever in the “ situation ” of the room, nor has the value orutility of the room been destroyed. Consequently, that part of the defini-tion goes out of the case. It remains to consider whether there has been“ any such change ” in the examination room itself as has resulted in*' diminishing its value or utility ” or in affecting it “ injuriously ”.
In my opinion these words read in the light afforded by the illustrationsappended to section 408 contemplate a change of some permanence inthe composition, texture, from, &c., of the thing in respect of which thecharge is laid, and not such a trivial and temporary change as resultsfrom an act such as that complained against in this case. Maine in hisbook on Indian Criminal Law (8th edition, page 616) says, “the change
SOERTSZ J.—Percro v. Silva.
referred to … . must be a physical change in internal compositionor external form ”. I do not think it can be said that the act complainedof here has resulted in a physical change in the internalcomposition or in the external from of the examination room. There isnot one word of evidence to say or suggest that the value or the utility ofthe examination room ha* been disminished, or that it has been effectedinjuriously.
Moreover, I agree with the Magistrate that on the evidence in this case,it cannot be said that Podiya intended to cause or knew that he was likelyto cause wrongful loss or damage to the public or to any person. It isclear that his intention was to annoy Dr. Kulatilleke.
In my opinion, the charge fails. The appeal is dismissed.
ROCKWOOD v. DE SILVA