083-NLR-NLR-V-03-THE-QUEEN-v.-SIMANCHI.pdf
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THE QUEEN v. SIMANCHI.D. C. (Criminal), Colombo, 1,526.
1808.May 10.
Criminal Procedure Code, a. 351—Accused incapable of understandingproceedings through deafness—Duty of District Judge trying case.
A District Judge or a Magistrate who finds an accused convictedby him to be incapable of understanding the proceedings shouldnot pass sentence on the acoused, but forward the proceedings tothe Supreme Court under section 351 of the Criminal ProcedureCode.
T
HE acoused was indicted under section 317 of the CeylonPenal Code for voluntarily causing grievous hurt to one
John with a knife. The District Judge (Mr. Pagden) found theaccused guilty on the indictment. He was of opinion that theaccused, though not insane, could not be made to understand theproceedings properly owing to extreme deafness. He thereforeordered the proceedings to be forwarded to the Supreme Courtunder section 351 of the Criminal Procedure Code. Upon thisorder being made, it was suggested for the prosecution that theCourt should pass sentence upon the accused. The DistrictJudge thereupon recorded that he was doubtful whether he shouldsentence the accused, but in case it was necessary his sentence onaccused was twelve months’ rigorous imprisonment and fifteenlashes. This was explained to the acoused, but he said he did notseem to hear the finding or sentence.
The proceedings were ultimately forwarded to the Supreme. Court.
10th May, 1898. Bonsee, C.J.—
In my opinion the Court below ought not to have sentencedthe man, but should have left that to be done by this Court. Letthe man be brought before Mr. Justice Lawrie, who will dealwith the case.
Lawkle, J.”-
I take for granted that the accused cannot read.
I think the best course is for the accused to appeal against theconviction and sentence, when the whole matter will come beforethe Supreme Court.
The record was sent to us the day after the trial. I think itmost likely that the accused would appeal if he understood thathe had been convicted and sentenced to a year’s rigorous imprison-ment and fifteen lashes.
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1808.May 10.
Browne, A.J.—
The learned District Judge has forwarded to this Court therecord of this case in which" he has convicted the prisoner ofvoluntarily causing grievous hurt with a knife and sentencedhim to twelve months’ rigorous imprisonment and to receivefifteen lashes, because he considers that it was his duty to do sounder section 351 of the Criminal Procedure Code, inasmuch asthe prisoner was unable by his extreme deafness to understandthe proceedings properly. I find there is record made of onlyone question in cross-examination by him of the witnesses forthe prosecution, and I conclude he was offered the opportunityand only onoe exercised it. He was not defended by counsel.He made a statement having been informed of his right to giveevidence, and named his mother as a witness for him, and shewas examined doubtless, by the District Judge. Sentence waspassed on the prisoner at the request of prosecuting counsel. TheDistrict Judge had desired only to record his conviction, and inthis, we consider, he was right, for it is for this Court “ to pass such“ order as it thinks fit.”
Assuming that the inability of the accused to hear the evidencegiven against him was as patent to the Magistrate who committedhim for trial as it was to the Judge who tried him, it has to bepointed out that the proceedings should, under the section inquestion, have been referred to this Court before the accused wascommitted for trial. It is to be regretted that this was notdone, as .it appears at present to be possible that the accusedmight never have been committed for trial upon this chargeof grievous hurt to John; for, according to the evidence,Selanchy, the father of John, or some member of his family,blocked with thorns that morning a passage from the land ofUngohamy, prisoner’s cousin or wife’s sister, with whom he lives,which was their means of exit from the land. Prisoner andSelanchy, if not others also, quarrelled over that fact, and prisonerassaulted Selanchy, who was knocked down unconscious and hadhis head “ broken ” by a blow from a mamoty. John at thealarm came up and prisoner and he fought, with the resultthat John when examined by the medical officer had sevencuts varying from one to seven inches in length; had amongstother injuries two contusions on his head, one of which exposedthe bone, and two front teeth dislocated. The questions, therefore,would be: (1) Did prisoner assault Selanchy, and how far washe excusable by provocation ? and (2) How far is John excusablefor provocation for his assault on prisoner, or how far is prisonerexculpated by his having acted in self-defence ? John’s evidence
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is that he chased prisoner, who fell on some logs of wood, andwhen holding prisoner was cut by him. He is unable to accountfor the wounds on the prisoner, save by injuries in falling.Prisoner’s mother deposes that John hit prisoner inside Ungo-hamy’s house, and when prisoner was escaping John chased him,and Appuhamy prevented him from seizing him. I notice thatthe acting village sergeant, in his report to the Magistrate, says:“ Blood was largely found in the compound and in the house where“ it was alleged the quarrel took place and the house of Simanohi“ (prisoner)."
John, by provocation of the injury to his father, may beexcused for having entered the house and assaulted prisoner ina desire to arrest him there, although he ought to have sent forthe headman and had prisoner arrested there, that is, in thehouse where he generally stayed. At all events to the extentthat he would not have been prosecuted. But I would desirethat the District Judge should ascertain from the sergeant’sevidence whether there had been truly a row in the house itself,and whether, in view of the injuries prisoner received, he is to beexcused for having cut in self-defence in view of any appre-hension of further hurt being occasioned to him, it beingremembered that as between the parties the prisoner was on hisown land and in his own house, and that both quarrels occurredthere. I therefore set aside the conviction and sentence andremit the prosecution for further trial to acquittal or convictiononly, after which the District Judge will again remit them to thisCourt.
1898.May 10.
Bbowkb,
A..T.