Present: Dalton J.
SETTINAYAKE v. ADIKARAM el al
848—P. C. Kalvtara, 28,308
Criminal Procedure—Charge laid under section 219 of the- PenalCode—Conviction under section 323—R 'jularity—CriminalProcedure Code, s. 182.
An accused, who is charged under seotion 219 of the Penal Codewith obstructing a railway policeman in the discharge of his duties,may be convicted under section 323 of causing hurt to such police-man in consequence of something done by him in the discharge ofhis duty.
PPEAL from a conviction by the Police Magistrate *ofKalutara.
Deraniyagala, for appellants.
January 22, 1929. Dalton J.—
In the first case the appellants appeal from a conviction ona charge laid under section 219 of the Ceylon Penal Code.
. The offence alleged in the charge is of obstructing a railway police-man in the discharge of his duties. There is ample evidence toshow that the appellants assaulted the constable, when the. firstaccused was asked to produce his railway ticket, but it does notsupport any charge laid under section 219. There is no evidenceto show that they offered any resistance, in making this assault, totheir arrest, or that they had been charged or were even going tobe charged at the time with any offence. The conviction undersection 219, therefore, cannot stand.
On the other hand, the evidence clearly discloses that the appel-lants without any j ustifications at all assaulted the constable. Thatseems to have been the chief matter in dispute in the lower Court.It is the chief question to which both sides have addressed them-selves, the prosecution witnesses deposing to the assault and theaccused denying it. First accused would purport to make outthat the constable was rude to him and then struck him withoutapparently any reason. There is ample evidence to support thefinding of the Magistrate that both accused assaulted thecomplainant, and I agree with his conclusion also that they knew thecomplainant was authorized to ask for and collect tickets, andwas a public servant acting in the discharge of his duties.
( 407 )
Under these circumstances it seems to me that the provisions ofsection 182 of the Criminal Procedure Code may be applied. Itmay well have been in doubt whether the act of the accused con-stituted an offence under section 219 or under sections 323 or 314of the Penal Code. It is obvious from the course the proceedingstook that the defence has addressed itself to a denial of the assaultas the principal part of the case against them. Under the circum-stances here, therefore, I am of opinion that the accused may beconvicted, under the provisions of section 182, of an offence underSection 323. The conviction will therefore be varied, the accusedbeing convicted on a charge of voluntarily causing hurt to a publicServant in consequence of something done in the lawful discharge'.of his duty. I see no reason to vary the sentence passed ; it willtherefore stand, the appeals being dismissed.
With respect to the appeal of the witness D. de Silva, he has beenfined Rs. 25 for contempt of Court under the provisions of section440 of the Criminal Procedure Code. That section provided forsummary punishment for perjury in open Court. The Magistratehas taken two sentences out of the lengthy evidence of this witnessand points out that they are contradictory. This is in my opinionquite insufficient to justify a conviction of perjury. It would seemhowever from the record that the chief cause for finding fault withthe witness is the fact that the Magistrate thought he was underthe influence of liquor. The Magistrate should not have confused,this with any charge he might bring against accused for perjuryunder section 440. Whether or not he found accused was guiltyof a contempt, of Court by being drunk in Court is not clear. Whatis clear is that he has convicted him for perjury under section 440.That conviction cannot stand, as 1 have stated, and this secondappeal must therefore be allowed.
Conviction of witness set aside.
SETTINAYAKE v. ADIKARAM et al