090-NLR-NLR-V-01-THE-QUEEN-v.-NANDUA-et-al.pdf
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THE QUEEN v. NANDUA et al.
D. 0., Kandy (Criminal) 823.
Riot—Voluntarily causing hurt—Ceylon Penal Code, s. 67.
When five or more people assemble with the object of beating aparticular person, and do beat him, they are guilty both of riot andvoluntarily causing hurt; but inasmuch as the act of riot is made up ofthe offences of unlawful assembly and voluntarily causing hurt, whichwas the object of the assembly—
Held, that their case fell under section 67 of the Ceylon Penal Code,and that they should be punished for the principal offence of riot only.
Case of Muniwala v. Davitha, Civ. Min., 11th December, 1895, dis-approved.
T
HE facts of the case appear in the following judgment of theSupreme Court.
Dornhorst, for appellant.
Dias, G.C., for respondent.
Cur. adv. vult.
31st December, 1895. Withers, J.—
In this case nine persons were indicted before the DistrictJudge of Kandy for the two offences, one of riot under section144, Ceylon Penal Code, and the other of voluntarily causinghurt to Spencer Walter Gane under section 314, Ceylon Penal
1896.
December 31.
WlTHras, J.
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ISM. Code, at Holton estate, on the 27th day of August last. The jDtetnber 31. District Judge found all the accused, except the third accused,Withbbs, J. guilty of both offences. The third accused, YamanagedaraHowadia, the District Judge has acquitted of both offenceB, andhas discharged him.
The judgment was pronounced on the 3rd December, and thesentence awarded on the following day.
The first accused was sentenced to nine months’ rigorousimprisonment for the offence of rioting and to three months forvoluntarily causing hurt.
The second accused to six months for rioting and to two monthsfor voluntarily causing hurt.
The ninth accused to four months for rioting and to two monthsfor voluntarily causing hurt.
The fourth, fifth, sixth, seventh, and eighth were on the secondday found to be “ constructively guilty under section 146 of volun-tarily causing hurt.”
The District Judge thought it sufficient to pass one sentence onthem for the two offences. This really makeB a third offence, foron the previous day he had convicted them of rioting andvoluntarily causing hurt.
The sixth accused was sentenced to three months’ rigorousimprisonment because he took a more prominent part than thefourth, fifth, seventh, and eighth.
Mr. Domhorst appeared for the accused appellant, and Mr.Crown Counsel Dias in support of the judgment.
At the close of the case I had no doubt in my own mind thatmost of the accused had been well convicted, at least of oneof the offences, riot or voluntarily causing hurt.
Mr. Domhorst, however, pressed on me a judgment of minerecently pronounced in the case of Muniwala v, Davitha et cil.(498 P. C., Hambantota, 1557). In that case 1 made observationswhich implied that if some five or more people assembled to-gether with the one object of assaulting a person, and they carrytheir purpose into effect, they are guilty of assault rather than ofriot. I took time to consider that proposition, and after considera-tion I think it is not strictly accurate.
Having looked carefully again into our Penal Code, I thinkthat according to that Code if five people or more assemble withthe object of beating a particular person, and do beat him, .theyare guilty both of riot and of assault, but it is quite a differentquestion whether they should have different punishments forthese two offences.
I readily follow what I find appears to have been laid down by
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the Madras High Coart as reported in Prinsep’s Indian Criminal 189*.Procedure Code: “ Where the charge is founded on one single“ continuous transaction, the first thing to be ascertained is what Withzm, J.“is the principal legal offence involved in the conduct of the“ accused ; what would subject him to the greatest amount of“ punishment. That being ascertained should form the first head“ of the charge ; the object of adding others is not the accumulation“ of punishment, but to provide against the event of the evidence“failing to establish the principal charges/’
In this case clearly the principal offent': was ri'it. Some ofthe accused assembled together with the soK r-t^ect < £ assaultingMr. Qane. They effected their purpose. Ri.;t wjb thus theprincipal offence they committed. That ac' if not again wasmade up of two other offences, unlawful hs-s^mbly a*.d voluntarilycausing hurt, which was the object i. the assembly. Theytherefore should only be punished for the principal offence ofriot. This case comes clearly within the provisions of section 67of our Penal Code.
Another point I took time to consider was the nature of theevidence against the fourth accused, Medakotuwe Belinda; fifthaccused, Amunagedara Horatella ; and eighth accused, Udugama-gedara Pasumba.
I have carefully gone over the evidence a second time, and Ithink the evidence against them is of very much the same charac-ter as that against the third accused, and I think they ought to have ‘the benefit of the doubt as to their being present on the occasionof the assault on Mr. Qane.
I therefore reverse the conviction against these appellants andacquit them. The sentences against the first, second, sixth,seventh, and ninth accused, for the offence of rioting, I affirm.
The sentences against the first, second, and ninth, for voluntarilycausing hurt, I set aside.
In the result the first accused, Pitakotuwa Nandua, is sentencedto nine months’ rigorous imprisonment for rioting. The secondaccused, Pituwella Nandua, is sentenced to six months’ rigorousimprisonment for rioting.
The sixth accused, Pitawatugedara Menika, is sentenced to threemonths’ rigorous imprisonment for rioting.
The seventh accused, Pudunay Hawadiya, is sentenced to onemonth’s imprisonment for rioting.
The ninth accused, Pallemad> ta i’ ru'ella, is sentenced to fourmonths’ rigorous imprtso .rnent for noting.
The fourth, fifth, and eight ;. accused are acquitted.