Present; Abbar J.
TISSERA i>. EDWIN.52—P. C. ChUaw, 25,775.
Right of private defence—Shooting a thief at night—Theft of coconuts—
Assault by thief—Penal Code, 8. 92 (4).
Where the accused, a watcher on an estate, shot at a thief belowthe .knee in the act of running away with stolen coconuts andthen struck the .thief with the gun in self-defence, when assaultedby the latter,—
Held, that the aooused had not exceeded the right of self-defence.y^PPEAL from a conviction by the Police Magistrate of Chilaw.
The accused,-who was the watcher of an estate, was convictedunder section 315 of Penal Code and sentenced to a fine of Rs. 25and bound over in Rs. 100 to keep the peace for one month. Itwould appear that the complainant crept through the wire fence ofthe estate and took some coconuts. When he was challenged bythe accused he ran away, and the accused shot him below the knee.The complainant then stopped, and when the accused went to seizehim flung a coconut at him. The complainant tried to escapewhereupon the accused hit him with the gun. Accused wasconvicted as stated above.
Rajapakse, for accused.—The accused has committed twoassaults, both of which can be justfied by law. The first assaultrelates to. the act of shooting that was done in defence of propertyagainst a thief (the complainant). See section 90 and 97, CriminalProcedure Code. The injury that was caused to the complainantdid not exceed the limits prescribed by law. See section 92 (4).For the accused first challenged the thief, and when the lattertried to run away only did he shoot him below the knees causingsimple hurt.
The second assault was by striking him with the gun. That actwas done primarily in defence of the person. See sections 90 and94. Complainant had defiantly attacked the accused with thecoconuts.,'c>
Counsel also cited Govr, Vol;fe,pp. 583, dec.
Weera8inghe, for respondent.—The Police Magistrate has notdisbelieved the complainant’s version entirely. He finds that theaccused has, in fact, exceed his right of private defence. Therewas no necessity for the complainant to be shot at; and even if
( 409 )
there was, the subsequent assault with the gun was unnecessaryfor the right of private defence, and is not justified by law. Seesection 92 (4).
February 27, 1929. Akbah J.—
The appeal is from a conviction under section 315 of the CeylonPenal Code and a sentence of a fine of Bs. 25 and an order to bebound over in Rs. 100 to keep the peace for one month. On theauthority of Broome v. Carolia1 the accused has the right to appealon the facts. I have heard the evidence read, and the conclusion towhich I have come is that the accused’s version appears to be true..
According to the accused, who is a watcher on the estate of oneMr. Fernando, owing to frequent loss of coconuts on the estate helay in wait for the thief. About midnight he saw the complainantcreeping through the wire fence and taking some coconuts. Hechallenged him, when, the complainant getting excited, came fasttowards him. As the complainant was going away with the nuts heshot him below the knee. The complainant then stopped, and whenthe accused went to seize him the complainant fiung a coconutit him. The complainant then tried to escape, and the accused hadto hit him with the gun to get hold of him.
According to the doctor’s evidence there were twelve pellet woundsin the complainant’s right leg and some contusions ; all the injurieswere non-grievous, and the injured man was eleven days in hospital.
The complainant’s story is that he went to pick medicinal herbsin the estate at midnight. Strange to say this medicinal herb doesnot grow on the estate, but it actually grows in his own garden.;
The proprietor, Mr. Fernando, says that the injuries were slightand that the complainant had a black, span cloth on and that hebegged pardon from him because he had taken only two coconuts.The headman corroborates the proprietor' by saying that thecomplainant was dressed in a black span cloth. I have no doubtthat the complainant’s explanation of how he came to be in theestate is false.
Thus the question resolves itself into one of law, namely, whethertaking the accused’s story as true, he has exceeded the right ofprivate defence. Under section 97 of the Penal Code the accusedhas, in the exercise of the right of private defence, the right tocause any harm other than death, but, of course, the harm used issubject to the restriction containedin section 92, clause 4,of the PenalCode, that is to say, the harm must be proportionate to the purpose
for which the right of private defence is exercised. Under section •98 this right of private defence continues till the property is
recovered or till the assistance of the public authorities is obtained,,which, I think, can only mean till the thief has been arrested.
1 19 N. L. R. 276.
( 410 )
It will lie seen from Volume I. of Gout’s Indian Penal Law(3rd ed.), p. 583, that the Indian Courts allow some latitude whenproperty has been frequently stolen at night. What the Court hasto consider is, not the weapon used, but the injury actually inflicted.The injuries inflicted here were non-grievous, and the fact that theywere caused with a gun does not take away the right the accusedhad of causing hurt to the complainant to prevent him from takingaway the nuts or till he was arrested. I do not think the accusedhas exceeded his right of private defence and therefore set asidethe conviction and acquit th$ accused.
TISSERA v. EDWIN