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ALWIS APPU et al. v. BANSAGAYAH
NLR49V66
1947 Present: Soertsz S.P.J.
ALWIS APPU et al, Appellants, and BANSAGAYAH
(P. S. 1399), Respondent.
S. C. 959-960-M. C. Kalutam, 45,455.
Penal
Code-Robbery-Voluntarily causing hurt-Sentence on both counts-Legality of
sentence-Sections 379 and 67.
Hurt is an integral part of the offence of robbery and an accused who is
sentenced on a charge of robbery cannot be given a sentence on a charge of
causing hurt.
APPEAL from a judgment of the
Magistrate, Kalutara.
V. A. Jayasundara, for the accused, appellant. Boyd Jayasuriya, C.C., for the
Attorney-General.
October 20, 1947. SOERTSZ S.P.J.-
The appellants in this case were charged, first, with committing robbery of a
Hercules cycle valued at Rs. 150 from one R. P. Daniel and, secondly, with at
the same time and place voluntarily causing hurt to
the said R. F. Daniel by assaulting him with
hands. The learned Magistrate after trial convicted the two accused on both
charges framed against them and sentenced them as follows : The 1st accused to 6
month's rigorous imprisonment on charge 1, and 2 weeks' rigorous imprisonment on
charge 2, the sentences to run concurrently, and the 2nd accused to 6 months'
rigorous imprisonment and a line of Rs. 50 or a further one month's rigorous
imprisonment on charge 1, and 2 weeks' rigorous imprisonment on charge 2, the
sentences to run concurrently.
In regard to the convictions entered against the accused, on the facts they are
amply justified and Counsel for the appellants did not seriously challenge the
finding of the learned Magistrate in that respect. In regard to the sentence
although Counsel made the submission to me that the sentence of 6 months'
rigorous imprisonment in respect of the first charge was excessive in the case
of the two accused, I do not think so at all. I see no reason to interfere with
the conviction or sentence on charge 1 of either of the accused.
Then there arised another question which is of a substantial character and that
is whether the learned Magistrate was acting within his powers when he went on
to impose on the second charge, in regard to the 1st accused, 2 weeks' rigorous
imprisonment and in regard to the 2nd accused, 2 weeks' rigorous imprisonment.
Now, in my opinion, the learned Magistrate had no power to do that. Section 67
of the Penal Code provides as follows :-
" Where anything which is an offence is made up of parts, any of high parts is
itself an offence, the offender shall not be punished with the punishment of
more than one of such his offences, unless it be so expressly provided."
Now, the section under which the first charge was preferred against the two
accused is section 380 of the Penal Code and the defining section is section
379. Section 379 says :
" In all robbery there is either theft or extortion. Theft is " robbery " if, in
order to the committing the theft, or in committing the theft, or in carrying
away or attempting to carry away property obtained by the theft, the offender,
for that end, voluntarily causes, or attempts to cause to any person death or
hurt or wrongful restraint &c."
So that it is perfectly clear that in a case of this kind the robbery is made up
of the theft plus hut. Therefore, the charge of robbery preferred against the
two accused in respect of charge 1 comes within the words of section 67 which
says that "where anything which is an offence is made up of parts, any of which
parts is itself an offence, the offender shall not be punished with the
punishment of more than one of such his offences, unless it be so expressly
provided." Here, in the result, the offender has been punished for the offence
of robbery and is also punished for the offence of hurt, that being an integral
part of the offence of robbery. That is not allowed by law.
Learned Crown Counsel submitted that really no hardship was involved in this
instance because the sentence imposed in respec
