1947 Present: Dias J.

ALDIN, Appellant, and SANASGALA (S. I. Police), Respondent.

1,728-M. C. Balapitiya, 56,500.

Sentence-Conviction for causing hurt under Penal Code, s. 315-Hurt not caused by " dangerous knife "-Competency of Magistrate to order whipping-Knives Ordinance (Cap, 20), s. 10.

Under section 10 of the Knives Ordinance, whenever a person is convicted before a Magistrate of an offence under section 315 of the Penal Code, the offender is liable to be whipped, whether the hurt was caused by a " dangerous knife " or not.

APPEAL against a conviction from the Magistrate's Court, Balapitiya.

K. Sivasubramaniam, for the accused, appellant.

Boyd Jayasuriya, C.C., for the Attorney-General.

Cur. adv. vult.

January 13, 1947. DIAS J.-

I see no reason to interfere with the findings of fact of the Magistrate. The appellant who was a baker's boy failed to deliver bread to the injured mar.. Linton Perera on August 24, 1946. On the following day too Linton Perera got no bread. Therefore when he saw the appellant returning to tile bakery after his rounds, Linton Perera accosted the appellant, held the handle bar of his bicycle and asked him why no bread had been delivered. The appellant dismounted, pulled out a knife, stabbed the complainant and took to his heels. The medical evidence shows that Linton Perera sustained a stab wound in his chest 21/4 inches deep. The attack was a wanton one and was inflicted without any justification or provocation.

The appellant who had one previous conviction for causing hurt was sentenced to undergo six months' rigorous imprisonment and to receive 15 strokes with a rattan under the Prohibited Knives Ordinance (Chapter 20). The age of the appellant is twenty-one.

Counsel for the appellant argued that the sentence was excessive, and in particular that the sentence of whipping was illegal. He urged that the Dangerous Knives Ordinance was enacted to prohibit the carrying of " dangerous knives", which by section 15 were defined to mean " any knife .... the blade of which is more than 31/2 inches in length, and is not so rounded or blunted at the point as to be incapable .... of being used as a stabbing instrument". It is submitted that there is no evidence that the knife used by the appellant was such a knife. As the medical evidence showed that the depth of the wound was only 21/4 inches, there was a doubt whether the knife used by the appellant was a dangerous knife. A penal enactment like Chapter 20 should be strictly construed, and there being a doubt, the sentence of whipping cannot stand. That would be a strong argument, but unfortunately for the appellant, this Court on two previous occasions has considered and decided that point against him.

Chapter 20 reproduces the provisions of Ordinance Mo. 28 of 1905. The editor of the revised edition of the Legislative Enactments, in preparing Chapter 20, altered the sequence of the sections of the Ordinance. The orignal section 12 now appears as section 10 in Chapter 20.

The preamble to Ordinance No. 28 of 1906 reads as follows :- " Whereas it is expedient to prohibit the carrying of certain descriptions of dangerous knives; Be it therefore enacted, &c." It is, therefore, clear that the Ordinance is one which is designed to prohibit the carrying of certain kinds of knives. The draftsman of the original section 12, however, provided that " Whenever a person is convicted before a Magistrate's Court of an offence under section 315 of the Penal Code, such Magistrate's Court may, in addition to or in lieu of any punishment to which the offender may be sentenced for such offence, order such offender to be whipped in manner prescribed by the Criminal Procedure Code, but the number of lashes or strokes to be inflicted shall in no case exceed the limit prescribed by the Corporal Punishment Ordinance (Chapter 17)." The construction of this section was considered by de Sampayo J. in