031-NLR-NLR-V-48-BENEDICT-PERERA-Appellant-and-SIRIWARDENE-S.-I.-Police-Respondent.pdf
CANNON J.—Benedict Perera v. Sirivoardene.
1946Present: Cannon J.
BENEDICT PERERA, Appellant, and SIRIWARDENE(S. I. Police), Respondent.
435—M. C. Colombo, 18,741.
Incest—Evidence of corroboration—Validity of conviction in the absence ofsuch corroboration—Duty of Court to consider question of corroboration—Evidence Ordinance, s. 133—Jurisdiction of Magistrate’s Court to try caseof incest—Marriage Registration Ordinance (Cap. 95), s. 16—CriminalProcedure Code, s. 11 (b).
Where, in a prosecution for incest, the Magistrate gave no reasonsfor convicting the accused in the absence of corroboration, nor anyindication that he had considered that aspect of the case—
Held, that the conviction should be quashed.
Held, further, that the offence being one punishable with imprisonmentfor a term exceeding six months, a Magistrate had no jurisdiction totry the case.
A
PPEAL against a conviction from the Magistrate’s Court,.Colombo.
Frederick W. Obeyesekere, for the accused, appellant.
F. B. P. Jayasuriya, C.C., for the Attorney-General.
December 6, 1946. Cannon J.—
The appellant was convicted of incest with the daugher of his half-sisterand sentenced to 6 months’ imprisonment. The complainant is a girlaged 14 and there was no corroboration tendered of her evidence. Shesaid that the prisoner gave her as a reward small sums of money withwhich she bought ice-cream and although the date of the offence wascharged as “ on or about May 25, 1946 ”, she was allowed to give evidencethat incestuous relations had been carried on for about two years.
There are two main grounds of appeal, namely, that the Magistratehas not considered the question of corroboration and that he had no
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CANNON J.-—Benedict Perera v. Siriwardene.
jurisdiction to try the case. The Magistrate gave as his reasons forconvicting, the following : —
I am satisfied that the girl Edna is speaking the truth when she statesshe was ravished by accused and that the accused did have intercoursewith her on or about May 25, 1946, too. She complained to her sister.At least when her sister found she had come there weeping,she questioned her and got the story from her. The letter PI was writtenby the elder sister to her mother. The witness Claribel, too, is clearlyspeaking the truth and she can have no ulterior motive in bringingthis matter to Court.
Claribel’s evidence embraced a complaint which the girl made to her.This could not be regarded as corroboration of the girl’s evidence ; andthe letter PI was irrelevant to the issue and, therefore, inadmissibleagainst the appellant. The rule of evidence as to accomplices does notappear to have been considered by the Magistrate. On that questionand the relevance of “ complaints ” in sexual cases, Keuneman J. statesthe law in 41 N. L. R. at pp. 367 and 368—
In the language of Lord Hewart C.J. in Rex v. Lowell suchcomplaints are “ not evidence of the facts complained of ” but aremerely “ matters which may be taken into account …. inconsidering the consistency and therefore the credibility of thestory ” . . . . But in the case of an accomplice, the rule ofpractice requires something more than the mere testing of his story.In the language of Lord Reading in Rex v. Baskerville, there “ mustbe independent testimony which affects the accused by connectingor tending to connect him with the crime. In other words, it mustbe evidence which implicates him—that is, which confirms in somematerial particular not only the evidence that the crime has beencommitted, but also that the prisoner committed it ”….
Under section 133 of the Evidence Ordinance, a conviction is notillegal merely because it proceeds upon the uncorroborated testimonyof an accomplice. But, it is necessary that the Magistrate shouldhave clearly before his mind the fact that he is dealing with the evidenceof an accomplice, and he must give clear and satisfactory reasons forconvicting in the absence of corroboration.
In this case the Magistrate gives no reasons for convicting the accusedin the absence of corroboration, nor any indication that he has consideredthat aspect of the case.
As regards jurisdiction, section 16 of the Marriages Ordinance,Chapter 95, under which the appellant was charged, makes the punish-ment for the offence a maximum of one year’s imprisonment. Butsection 11 (b) of the Criminal Procedure Code excludes from theMagistrate’s general jurisdiction offences which are punishable withimprisonment for a term which may exceed six months or with a finewhich may exceed one hundred rupees. The Magistrate, therefore,clearly had no jurisdiction to try this case and the trial is a nullity.
For these reasons the conviction must be quashed and the case sentback for preliminary inquiry by another Magistrate.
Conviction quashed.