076-NLR-NLR-V-39-THE-KING-v.-WEERASINGHE.pdf
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ABRAHAMS C.J.—The King v. Weerasinghe.
1936Present: Abrahams C. J.
THE KING v. WEERASINGHE.
92—D. C. (Crim.) Colombo, 11,526.
Sentence—Conviction of robbery and hurt—Consecutive sentence unjust—PenalCode, ss. 390 and 392—Criminal Procedure Code, s. 180 (k).
Where an accused is convicted of robbery under section 380 and ofcausing, hurt under section 382, consecutive sentences should not beimposed as hurt punishable under the section is a necessary ingredientof the offence of robbery.
A PPEAL from a conviction by the District Judge of Golonribo.
JL. A. Rajapakse (with him Siri Perera and Dodwell Goonewardene),for accused, appellant.
M. F. S. Pulle, C.C., for respondent.
Cur. adv. vult.
November 19, 1936. Abrahams C.J.—
This conviction must be affirmed. The learned District Judge believedthat the householder and his wife identified the appellant and there is noreason on the record itself to doubt their evidence. They told a circum-stantial story, and as the learned District Judge was favourably impressedwith their evidence I can see no ground for interference.
1 28 N. L. R. 458.
SOERTSZ J.—Schokman v. Nadar.
271
A measure of criticism has been directed in this appeal towards adiscrepancy between the evidence of the. householder’s wife’s brother,who gave the first information of the burglary to the police, and thestatement he made and signed. I do not agree with the learned DistrictJudge’s conclusions that this witness must have given certain details ofinformation which the police constable omjtted to record and instead ofwhich he actually inserted something else. There is no sacrosanctityabout a first information, but it is a document of some solemnity andthere should be very strong reasons for a Court to conclude that a repudia-tion of it is warranted, especially when as in this case, the informant waswell acquainted with English and the information was recorded in thatlanguage.
I do not think, however, that the veracity of the three prosecutionwitnesses is seriously impugned by the aforesaid contradiction. Aburglary is an exciting episode at any time, and to add to the normalexcitement the lady had the unpleasant experience of having an ornamentforcibly removed from her neck.while she was in bed and suffered a fewface injuries from the act of violence. In these circumstances she mayhave said less to her brother about the burglars than she subsequentlythought, but undoubtedly she did tell him she identified one of them.
The appeal is dismissed, but the sentence require some adjustment.Although by virtue of illustration (k) to section 180 of the CriminalProcedure Code separate convictions can be had in respect of joint.chargesunder sections 380 and 382 of the Penal Code, I am of opinion that sincethe hurt punishable under section 382 is a necessary ingredient of therobbery under section 380 consecutive sentences would be unjust. Atthe same time the aggregate of the three sentences imposed in this case—9 months—is very light and the appellant should certainly suffer noshorter term of imprisonment. I, therefore, increase the sentence undersection 380 to 6 months rigorous imprisonment and direct it to runconcurrently with the sentence of 3 months under section 382. Thesentence of 3 months imposed under section 443 to be served after thetermination of the others.
Sentence varied.