[COURT OF CRIMINAL APPEAL]

1942 Moseley S.P.J., Hearne and de Kretser JJ.

THE KING v. SILVA KAVIRATNE.

20-M. C. Balapitiya, 42,647.

Court of Criminal Appeal-Application for extension of time-New ground of appeal-Not considered by Supreme Court before-Causing grievous hurt whilst housebreaking-Penal Code, s. 445.

Application for extension of time within which to appeal may be granted where the ground upon which it was sought to appeal raised a point which does not appear to have been considered ,by the Supreme Court of Ceylon.

Whilst house-trespass, on which the offence of housebreaking is founded, is complete when the act of entry is complete, the commission of the .offence continues so long as the house-trespass, which follows the act of entering continues.

THE accused filed an application for leave to appeal on the facts. At the hearing of the application, Counsel for the accused stated that he could not support the points raised in the application but brought to the notice of the Court an important point of law which had not been raised hitherto in Ceylon. The application was dismissed, but the Court suggested that the accused, if so advised, might make an application for extension of time to appeal on the law. This application was accordingly made and came up for hearing on August 31, 1942. The application was allowed, and the appeal was argued on the same date.

E. H. T. Gunasekera, C.C., appeared as amicus curiaie.-This is not a murder case. and it is submitted that except on strong grounds this Court will not entertain an application for extension l time for leave to appeal. Vide, for example, R. v. Rigby [(1923) 17 Cr. App. R. 111]. R. v. Williams[(1912) 8 Cr. App . R . 71] is an instance where extension of time was granted, but in that case the ground of appeal was the discovery' of fresh evidence. The point of him sought to be taken in the present case is one which could have been taken at the trial. It cannot be said that want of legal assistance prevented the accused from taking the point earlier. Throughout the preliminary inquiry and the trial the accused was defended by Counsel.

[The objection was overruled. and leave to appeal on the point of law was granted,]

H., W. Jayewardene, for the appellant.-The conviction and sentence under section 445 of the Penal Code cannot be justified in law. That section contemplates that the two acts of housebreaking and causing grievous hurt should be contemporaneous in point of time. In the present case, however, the offence of grievous hurt was 'committed after the. act of housebreaking had terminated. The case of Mirza Said Ahamad v. Emperor[28 Cr. L. J. 554.]. is exactly in point. See also Queen Empress v. Ismail Khan[(1886) I. L.R. 8All. 649] and Enayet Ali v. Emperor[ 36 Cr. L. J. 698.].

E. H. T. Gunasekera, C.C., for the Crown, was not called upon.

September 14, 1942. MOSELEY S.P.J.

This matter comes before us by way of an application for extension of time within which to appeal. Leave was granted inasmuch as the ground upon which it was sought to appeal raised a point which does not yet appear to have been considered by the superior Courts of the Island. and in regard to which the few authorities which we had consulted appeared to support the applicant's contention.

The appellant was charged with

(1) housebreaking by night;

(2) causing grievous hurt whilst committing housebreaking;

(3) causing grievous hurt.

He was convicted on the first and second counts and sentenced to terms of 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, Jameshamy, was entered in circumstances amounting to housebreaking. The woman identified the intruder as the appellant. He struck her on the head, whereupon she ran to a near-by boutique. The appellant ran afte