124-NLR-NLR-V-43-THE-KING-v.-SILVA-KAVIRATNE.pdf
The King v. Silva Kaviratne.
505
[Court of Criminal Appeal.]
1942Moseley S.PJ., Hearne and de Kretser JJ.
THE KING v. SELVA KAVIRATNE.20—M. C. Balapitiya, 42,647.
Court of Criminal Appeal—Application for extension of time—New ground ofappeal—Not considered by Supreme Court before—Causing grievoushurt whilst housebreaking—Penal Code, s. 445.
Application for extension of time within which to appeal may be grantedwhere the ground upon which it was sought to appeal raised a pointwhich does not appear to have been considered -by the Supreme Court ofCeylon.
Whilst house-trespass, on which the offence of housebreaking isfounded, is complete when the act of entry is complete, the commissionof the offence continues so long as the house-trespass, which follows theact of entering continues.
T
HE accused filed an application for leave to appeal on the facts.
At the hearing of the application, Counsel for the accused statedthat he could not support the points raised in the application but broughtto the notice of the Court an important point of law which had not beenraised hitherto in Ceylon. The application was dismissed, but the Courtsuggested that the accused, if so advised,. might make an applicationfor extension of time to appeal on the law. This application wasaccordingly made and came up -for hearing on August 31, 1942. Theapplication was allowed, and the appeal was argued on the same date.
E. H. T. Gunasekera, C.C., appeared as amicus curiaie.—This is nota murder case, and it is submitted that except on strong, grounds thisCourt will not entertain an application for extension of time for leave toappeal. Vide, for example, R. v. RigbyR. v. Williams ’ is an instancewhere extension of time was granted, but in that case the ground ofappeal was the discovery of fresh evidence. The point of law soughtto be taken in the present case is one which could have been taken atthe trial. It cannot be said that want of legal assistance prevented theaccused from taking the point earlier. Throughout the preliminaryinquiry and the trial the accused was defended by Counsel.
[The objection was overruled, and leave to appeal on the point of lawwas granted.]
H.. W. Jayewurdene, for the appellant.—The conviction and sentenceunder section 445 of the Penal Code cannot be justified in law. Thatsection contemplates that the two acts of housebreaking and causinggrievous hurt should be contemporaneous in point of time. In thepresent case, however, the offence of grievous hurt was committed afterthe : act of 'housbreaking had terminated. The case of Mirza SaidAhamad v. Emperor * is exactly in point. See also Queen Empress v. IsmailKhan * and Enayet Ali v. Emperor ”.
E. H. T. Gunasekera, C.C., for the Crown, was not called upon.
» (1923) 17 pr. App. R. 111.* (1912) 8 Cr. App. R. 71.
3 28 Cr. L. J.J54.
‘ (1886) I. L. R. 8 AU. 649.
36 Cr. L. J. 698.
506
MOSELEY S.P.J.—The King v. Silva Kaviratne.
'September 14, 1942. Moseley S.P.J.—
This matter comes before us by way of an application for extensionof time within which to appeal. Leave was granted inasmuch as theground upon which it was sought to appeal raised a point which does notyet appear to have been considered by the superior Courts of the Island,and in regard to which the few authorities which we had consultedappeared to support the applicant’s contention.
The appellant was charged with—
housebreaking by night;
causing grievous hurt whilst committing housebreaking;
causing grievous hurt.
He was convicted on the first and second counts and sentenced to termsof five and fifteen years’ rigorous imprisonment, respectively.
The facts proved against the appellant are shortly as follows:At
1 a.m. on the morning of December 9, 1941, the house of a woman, James-hamy, was entered in circumstances amounting to housebreaking. Thewoman identified the intruder as the appellant. He struck her onthe head, whereupon she ran to a near-by boutique. The appellant ranafter her to the boutique, where he seized her and dragged her backto the front steps of her house, where he struck her on the legs with aclub, fracturing certain bones. He then held her by the hair and “ flungher inside the house through the doorway ”.
The point taken on behalf of the appellant is that the evidence does notsupport the conviction on count (2) of the indictment, inasmuch as theoffence of grievous hurt was committed after the offence of housebreakinghad terminated. The section of the Penal Code under which count (2)was laid is 445, which is as follows: —
“ Whoever, whilst committing lurking house-trespass or house-breaking, causes grievous hurt to any person or attempts to causedeath or grievous hurt to any person, shall be punished with imprison-ment of either description for a term which may extend to twentyyears, and shall also be liable to fine, or to whipping.”
The decision of the point raised hinges upon the interpretation of theword “ whilst ”, Counsel contended that a necessary ingredient of theoffence is that it must be committed at or within the period of timeoccupied by the act of housebreaking, which act, he argued, is completewhen an intruder has effected entrance of the house in one of the wayscontemplated by section 431 of the Code. He cited the case of QueenEmpress v Ismail Khan and Others', in which it was held that a convictionunder this section could not be had unless the offence of lurking house-trespass or housebreaking had been completed, that is to say, the causingof grievous hurt during an abortive, attempt to commit housebreakingdoes not constitute an offence under this section. “ In other words ”,said Straight J., “ the causing of the grievous hurt …. must bedone in the course of the commission of the offence of housebreaking
1 8 All. 649.
507
MOSELEY S.P.J.—The King v. Silva Kaviratne.
Thosewords, I would say with respect, correctly state
thelaw but the learnedJudgedidnot, nor was he in
thatcase required to,offerany opinion. asto the
meaning of the words '* xn the course of the commission of the offenceof housebreaking A case which is more in point and of more assistanceto the appellant is Mirza Said Ahmad and Another v. Emperior throughRam Karan Singh and Others in which Ashworth J. held that ahousebreaking is complete when the act of entering the house is complete,and that any grievous hurt subsequently caused by the housebreaker•cannot be said to be grievous hurt caused while he was committing house-breaking within the meaning of this section. In that case, the Magistrate,before whom the proceedings were originally taken, had held that nooffenceunder the section could be established, and Ashworth J.
was at first disposed on reading the section to hold that this was takingtoo narrow a view of it.
With respect we would say that, in our opinion, the first impressionof the learned Judge was correct. The offence of housebreaking is definedin section 431 as follows: —
" A person is said to commit ‘ housebreaking ’ who commits house-trespass if he effects his entrance into the house or any part of it inany of the six ways hereinafter described …. ”
The offence of housebreaking is founded upon house-trespass, an offencewhich is committed by entering into or remaining in premises of a certaindescription with a certain intent. House-trespass may thus be committedin a moment of time or may be a proceeding of some duration. It followsin our view, that the same time factors apply to ,the offence of house-breaking. While we agree, with respect, with Ashworth J., that theoffence is complete when the act of entry is complete, in our view thecommission of the offence continues as long as the house-trespass, whichfollows the act of entering, continues. From the point of view of timewe think that the appellant was properly convicted.
The further point was taken that, assuming the law to be as we havestated it to be, the offence of housebreaking had terminated with thefirst departure of the appellant from the house. It will be borne inmind that the grievous hurt was caused at the front steps of the houseto which he had returned. The case of Enayet Ali v. Emperor * wascited in support. In that case, the accused committed lurking house-trespass and also grievous hurt in a courtyard, but it was not possibleto make out from the evidence that the courtyard was a part of thehouse. Guha J. expressed the opinion that if the courtyard had beenproved to be part of the house the act of the accused was an offenceagainst the section. In our opinion, the evidence in this case clearlyleads to the conclusion that the spot at which the grievous hurt wascaused was part of the house. On this point, too, the appeal fails.
• Appeal dismissed.
1 28 Cr. L. J. 554.
* 36 Cr. L. J. 60S.