RUBEN v. SHEENGHYE

042-NLR-NLR-V-36-RUBEN-v.-SHEENGHYE.pdf


AKBAR J.—Ruben v. Sheenghye,
205
1934Present: Akbar J.
RUBEN v. SHEENGHYE.
120—P. C. Kandy, 43,308.
Dentists, Registration of—Dental operation or service—Meaning of expression—Fitting of artificial teeth—Ordinance No. 3 of 1915, s. 18 (1).
The expression “dental service” in section 18 (1) of the DentistsRegistration Ordinance would include the act of making artificial teethto fit the gap in the teeth of the person to whom the service is done andof fixing it into position.
PPEAL from a conviction by the Police Magistrate of Kandy.
Afhulathmudali, for accused, appellant.
March 16, 1934. Akbar J.—
The accused was convicted under section 18 (1) (c) of the Registrationof Dentists Ordinance, No. 3 of 1915, because he had performed for gaina dental operation or service on November 24 last, in that he had fittedon an artificial tooth to one Punchidppu without being registered as aqualified dentist under that Ordinance. He has been fined Rs. 50.The appeal is from this conviction and fine.
Under the sub-section the prosecution must prove three elements,namely: (1) that the accused was not a registered dentist under theOrdinance, (2) that he performed a service which must amount to a
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AKBAR J.—Ruben v. Sheenghye.
dental service or in other words, dental advice or operation or service,(3) that the accused performed this act for gain. Now Mr. Athulath-mudali has quoted a case in the English Courts, of 1934, under the DentistsAct which is of s.ome importance in this case—the case of Herman & Co.t?. Duckworth.1 The words in the English Act are “ dental operation,dental attendance or advice”. Wills J. stated as follows:—“I saywith some reluctance because, probably, there is no part of a dentist’swork which requires more care and very often more skill than the pre-paration and manufacture of false teeth, and it might very well havebeen that the words would have covered such a case as this. But I donot think that it is possible to say that making the teeth can come under‘ dental attendance or advice Therefore we are really driven to thequestion whether the words ‘ dental operation ’ are sufficiently large toinclude such work as this. It seems to me that a dental operation—anoperation in respect of the teeth—really means an operation in a surgicalsense, something that is to be done, not upon the false teeth, but uoonthe living person, and that what really is charged for here is that whichwas not done upon the person, but was done upon the incomplete sei offalse teeth, in order to make them fit to the person; and I do not thinkthat ‘ dental operation ’ can reasonably be construed to cover such a stateof things as that”. It will be seen from this extract of the judgmentthat the words “ dental operation ” meant something not to be done uponthe false teeth but upon the living person. Unfortunately the words“ dental service ” do not occur in the English Act. Adopting thecriterion suggested by Wills J., one can perfectly explain the meaningof the words “ dental service ” if we consider the words as meaningsome service which will,include the skill of the accused in making artificialteeth to fit the gap in the teeth of the person to whom the service is done,and also in actually fixing it into position in the gap. If such additionalfacts are proved beyond the mere selling of the artificial tooth, the words“ dental service ” will cover such a case.
In my opinion after hearing the evidence which was read out to meVery carefully by Mr. Athulathmudali, I think the conviction is wrongfor the following reasons:—The three prosecution witnesses Punchiappu,Marthelis, and Illukkumbure had a very great interest in the prose-cution. Illukkumbure, who gave information to the Inspector, is apractising dentist and he set the law in motion against the accused.Competition affected his practice considerably and the way he set aboutgetting the Inspector to prosecute was as follows:—he had a servantMarthelis, and, according to Illukkumbure, he made use of a decoy inthe person of Punchiappu to set a trap for the accused. The learnedMagistrate is quite right in his judgment when he says that both ofthem are servants of Illukkumbure. That is the only conclusion towhich one can come from the contradictions that one finds about thestatus of Punchiappu in the evidence of these three witnesses. Accordingto Punchiappu he went to Illukkumbure on the day before November 22,to get a tooth fitted on, later he contradicted it and said it was to get itextracted and a new one fitted; it was Illukkumbure who gave moneyto Punchiappu to go to the Chinese dentist and get a tooth fitted—the
1 Volume 90, Lava Timet, page 546.
AKBAR J.—Ruben v. Sheenghye.
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' J^rence is that it was Dlukkumbure who pulled out the tooth which madeway" for the new tooth—in the presence of Marthelis, but Marthelis saysthat Punchiappu paid his own money and no money was paid to Punchi-appu by Dlukkumbure; further Marthelis admitted in cross-examinationthat Punchiappu used to come frequently to Dlukkumbure to take hismeals there; he also admitted that Punchiappu was not a great friend ofhis. I think from these circumstances and other circumstances whichI need not detail it is not difficult to say that Punchiappu and Martheliswere servants of Dlukkumbure whom he utilized that day for the purposeof the trap. On November 22 Punchiappu went to the accused who is aChinese dentist and ignorant of any knowledge of the Sinhalese languageand asked him to fit on a tooth. He asked for Rs. 4 and was given anadvance of Re. 1 and the accused took an impression of the gap. Punchi-appu was to go on the 24th to have the tooth fitted on, but before hecould go there he was taken by Dlukkumbure to the Police Inspectorand he was shown a gap in the man’s jaw and they arranged that, afterthe tooth was fitted on by the accused, Marthelis was to signal to theInspector and the Inspector was to effect a raid. After that Punchi-appu in the company of Marthelis went to the dentist, the accused, andpaid him Rs. 3 and after an interval of half an hour which the accusedtook in order to fit on the tooth, to file it and accept the money Marthelisstepped on to the pavement and waved his hand; the Inspector wentthere and found Punchiappu with a tooth fixed in the gap. It is extra-ordinary how the Inspector set about on the day in question. Theprosecution had to p^ove that the accused fitted the tooth and that itwas for gain. Rs. 3 was actuaDy paid for the tooth just before theInspector came. The Inspector could have marked these Rs. 3. As amatter of fact, according to the Inspector, when he searched the accusedl^e found no money on him. Further if he took half an hour to fit thetooth, I cannot understand why the Inspector did not effect the raidjust at the critical moment when the tooth was being fitted on. Theaccused is said to have filed the tooth, and one of the witnesses, Punchi-appu, says that he actually pointed out the instrument to the Inspectorbut the Inspector says not a word about finding the file. Marthelissays on this point that he told the Inspector about the filing, “ Punchiappushowed where it was filed. I did not show the instrument to the In-spector ”. Further if Punchiappu is right when he. said that the accusedtook an impression, the wax impression must have been in the accused’sshop. All that the Inspector said that he saw in the accused’s shopwas a number of artificial teeth. These are very important elementsto consider whether the accused was merely selling artificial teeth or ifhe went further and did the acts which would appear to come withinthe words “ dental service ”. For the proof of the third element, namely,that it was for gain, we have to rely on the evidence of Punchiappu andMarthelis, both in my opinion tainted witnesses.
The learned Magistrate in his judgment seems to base his belief of theirevidence on the fact that the contradictions were not grave, but one musttake a proper view of the evidence and when we have interested personsinterested in putting a stop to perhaps the legitimate trade of the accused,and when one finds an Inspector who has not followed the ordinary
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Sellifah Pillai it. Rupasinghe.
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rules of Police detection, all; these factors 1 say mijst fcje taken into accountin judging whether the evidence on a certain point is to be believed so asto tell against the accused. The accused, as 1 have stated, is a Chinesewho cannot talk Sinhalese and that may be the reason perhaps why hewas not called to give evidence.
In my opinion the prosecution fails not only in the absence of anyreliable evidence to prove that the dental service, if it was rendered thatday, was for gain but also on a question of inference in the .chain ofcircumstances against the accused, viz., that if we accept the Inspector’sevidence in full it was possible for Illukkumbure and his two satellites tohave so arranged that the tooth was really provided by Illukkumburehimself and that the accused was not responsible for the supply of eventhe artificial tooth, and that the Inspector was signalled to after the coastwas clear for them to make the Inspector believe that the tooth wasfitted on by the accused.
For these reasons I think the conviction and sentence should be setaside and the accused acquitted.
Set aside.