069-NLR-NLR-V-19-BROOME-v.-CAROLIS-et-al.pdf
( 276 )
1916.
Present: Schneider A.J.
BROOME v. CAROLIS et al.
808 to 810—P. C. Kalutara, 39,672.
Appeal—Sentence of one month's imprisonment and order to give security 'to be of good behaviour—Theft—Wrongful loss—Wrongful gain.
An appeal lies as of right from a sentence by a Police Court ofone month's imprisonment and an order to give security to be ofgood behaviour for six months.
fJlHE facts appear from the judgment.
H. J. C. Pereira (with him J. 8. Jayewardene), for accused,appellants.
Bawa, K.C., for complainant, respondent.
September 14, 1916. Schneider A.J.—
This is an appeal by three accused persons who have been con-victed of theft and sentenced to one month’s rigorous imprisonment,and bound over in Rs. 100 to be of good behaviour for six months.A preliminary objection was taken that no appeal lies, as the sentencewas one of a month’s imprisonment only, and that the binding ofthe accused overtokeep the peace was .nota “ punishment ”
. within the meaning of section 335 (1) (j). The decision in King v.Baronchi1 covers the point raised in regard to the right of appeal.In that case it was held by the Full Bench of this Court that theword “ punishment ” should be given its ordinary meaning, andnot restricted tothepunishmentsdetailed insection52 of the
Penal Code. The appeal was accordingly argued on the facts. Ithink it is well proved that the land in question, which is calledPandegodawatta,hadbeen in thepossessionof theowners of
Glendon estate for some years, but that some villagers had withinrecent times asserted title. The evidence also establishes that some ofthese villagerswere prosecutedin thePoliceCourt of
Kalutara, and “ that they undertook to bring a civil case if theyhad a right.” There is a conflict of evidence as to the circumstancesunder which the first accused came to live on the land in dispute,but I am inclined to take the view adopted by the Police Magistratethat he was living on the land with the permission of the Superin-tendent of the estate. The land in dispute is claimed by a notaryunder deeds dating from 1884, and the evidence establishes beyondany doubt that the three accused in plucking the coconut and jakfruits, to the value of about Rs. 15, did so at the instance of thenotary. In the circumstances, I am inclined to take the view that
i (1914) 17 N. L. R. 444.
1916
the accused cannot be convicted of theft, because it cannot be saidthat they intended by the act of plucking those nuts to causewrongful gain to the notary or wrongful loss to the estate. It maybe that in the case of the first accused he was aware that if thenotary took the nuts the estate would suffer the loss of the nuts,but I do not think the circumstances under which he committedthe act justifies me in saying that he intended to cause wrongfulloss to the estate in plucking those nuts. I, therefore, set aside theconviction of theft, but I am strongly of opinion that people shouldnot be permitted to take the law into their own hands and invade theproperty of third parties, although they may havfe a good claim tosuch property. I, therefore, affirm the sentence in regard to theaccused being bound over for six months. I do this under theprevisions of section 81.
Schneider
A.J.
Broome v.Carolis
Varied.