105-NLR-NLR-V-73-THE-ATTORNEY-GENERAL-Petitioner-and-N.-EDIN-SILVA-Respondent.pdf
548
Attorney-General v.'Edin Silva
1970Present: Samerawickrame, J.THE ATTORNEY-GENERAL, Petitioner, andN. EDIN SILVA, Respondent -. S. C. 601170—Application in Revision in 31. C. Kalutara, 43578
Criminal Procedure Code—Section 152 Assumption of jurisdiction thereunder totry an offence of attempted murder—Invalidity.
Where the statements made to the police and the medical evidence disclosepri ra facie an offence of attempted murder, a Magistrate must not assumejurisdiction under section 152 (3) of tho Criminal Procodure Cod o, in order to trythe offence summarily.''
, * 1897 Probate 77.
SAATERAWICKRAME, J.—Attorney-Central v. Edin Silva
549
Application to revise an order of the Magistrate’s Court,Kalutara.
V. S. A. Pullenaycgum, Senior Crown Counsel, with Faisz Mtislhapha,Crown Counsel, for the petitioner.
O.D. C. Weerasinghe, for the respondent.
Cur. adv. vult.
September 27, 1970. Samebawickbasie, J.—
The Attorney-General lias made this application asking that the .orderof the learned magistrate made on 2nd June, 1970, be set aside and thata direction be given that non-summary proceedings should be had upona charge of attempted murder.
The accused-respondent had the following charges preferred againsthim in the Magistrate’s Court of Kalutara :—
"(1) That on 12.3.1970, at Etagama, Paiyagala, within the jurisdictionof the said court, he did voluntarily cause grievous hurt toMawatage Ernalis Mcdonza of Etagama by stabbing him witha pointed knife and thereby committed an offence punishableunder section 317 of the Penal Code.
(2) That at the same time and place as aforesaid and in the course ofthe same transaction the accused-respondent did voluntarilycause hurt to Mawatage Piyasena Mcdonza of Etagama bystabbing him with a pointed knife and thereby committed anoffence punishable under section 315 of the Penal Code.”
The medical evidence disclosed that Mawatage Einalis Medonza hadsuffered a serious injury in the abdomen which endangered life. Thelower jwrt of tholeft lobe of the liver was almost completely severed and. part of the left lobe of the liver and part of the stomach, portion of thelarge intestine and about 3 ft. of the small intestine were protruding outof tho injury. The stomach was perforated and. some blood vesselssupplying blood to the stomach were cut. A large vein situated deeplyon tho right side of the abdominal cavity was also cut. The medicalevidence indicated that but for the prompt surgical treatment receivedby the injured man he would have succumbed to his injuries.
On 2nd June, 1970, the learned magistrate who had assumed jurisdictionunder s. 152 (3) of tho Criminal Procedure Code, proceeded to try theaccused-respondent. The accused-respondent- tendered a pica of guiltyand the learned magistrate records :—
“ The accused states ‘ I am guilty under provocation ’. Tho accusedhad suffered injuries.. I. P., Noordeen for tho prosecution concedesthe facts as mentioned by defence. I hold that there was graveprovocation and the accused acted in self defence.”
550SAMERAYVICKRAME, J.—Attorney-General r. Edin Silva
The magistrate proceeded to convict the accused on the first countof having committed grievous hurt under grave and sudden provocationand on the second count of having caused hurt under grave and suddenprovocation. He imposed a fine of Rs. 20/- in respect of the charge onthe first count and ■warned and discharged him in respect of the chargeon the second count.
The statements made to the police, which I have examined, discloseallegations of two fairly serious incidents of stabbing. It is also correctthat they disclose that the accused had injuries. The observations ofthe police sergeant is as follows :—
“ I find the index finger and the middle finger of the left hand of the
suspect bandaged with a piece of cloth. No other visible injuries
on him.”
The report of the doctor was that the accused had an incised woundof the middle finger and the middle phalanges V in length and superficial.The presence of these superficial injuries on the accused appears tome insufficient by itself to show grave and sudden provocation or selfdefence. It was not implicit in the allegation iu respect of the hurtcaused to Emalis Medonza that there was provocation.
. Learned Senior Crown Counsel submitted that the medical evidencedisclosed an offence of attempted murder. Learned counsel for therespondent submitted that as one of the categories of grievous hurt wascausing hurt which endangers life, the magistrate was correct in takingthe view that the offence disclosed was that of grievous hurt. Hesubmitted therefore that the magistrate had acted legally. While I agreethat the mere fact that an injured person’s life was in danger is insufficientto establish the offence of attempted murder or attempted culpablehomicide, it is an important element in doing so if it is combined withother circumstances which taken together point to the necessary intentor knowledge.
In regard to the injuries caused on Emalis Medonza which was thesubject of the first charge there was not any material in the policestatements of the -witnesses that showed provocation. The injuriescaused were serious and according to the doctor would have resultedin death but for prompt surgical treatment. In those circumstancesthe order accepting the plea of causing grievous hurt under provocation,before the circumstances of provocation had been shown by evidence,and the imposition of a fine of Rs. 20/- which in the circumstanceswas a trifling penalty appears to me unjustified and mistaken. It is anorder which is likely to cause the injured party to feel that he has failedto obtain redress from Court. Orders of this kind may well result ininjured parties losing confidence of obtaining redress from the Courtsand taking the law into their own hands. Such an order therefor© iscalculated to lessen the confidence that people have in the administrationof justice and cannot therefore be allowed to stand.
WIJAYATJLAKE, J —Picri* v. De Soysa
931
On the allegations made by the statements appearing in the policeinformation book I should have thought that the charge to be made isattempted culpable homicide but the learned Attorney-General appearsto take the view that it should be that of attempted murder. I amdisposed to order an inquiry on that charge. No doubt when the factsarc gone into the proper charge on which to put the accused-respondenton trial will become apparent.
I according^- quash the proceedings in this ease, set aside the convictionsand the sentences imposed on the accused-respondent and send the easeback with a direction for an inquiry under Chapter lfi of the CriminalProcedure Code upon a charge of attempted murder, before anothermagistrate.
Proceedings quashed.