068-NLR-NLR-V-54-D.-C.-WEERASOORIYA-et-al-Appellants-and-M.-SABDEEN-Police-Sergeant-Responde.pdf
278
Weerasooriya v. Sabdeen
1953Present : Pulle J.C. WEERASOORIYA, et al., Appellants, and M. SABDEEN(Police Sergeant), Respondent
S. G. 1,034—1,035—M.G., Badulla-Haldumulla, 1P979
Sentence—Previous record of accused—Proof required.
In. passing sentence after conviction, a Court should not be influenced bya statement of the Police that the accused has a worse record than thatrevealed by the previous convictions. It is wrong for the Police to press fordeterrent punishment on grounds which they are not prepared to disclose andestablish by evidence.
1 A. I. R. 1933, Bom. 479 at 481.2 A. I. R. 1940, Madras 196 at 200.
PTJZ.L.E J.—JVeerasooriya v. Sabdeen
279
/xPPEAL from a judgment of the Magistrate’s Court, Badulla-TTa.ldumulla.
J.A. L. Cooray, with J. It. M. Per era, for the 1st accused appellant.
2nd accused appellant, in person.
A. Mahendrarajah, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
January 20, 1953. Pcjlle J.—_
The appellants were convicted of the offences of breaking into a garageon the night of the 2nd December, 1951, and stealing a Lucas batteryfrom a car. There was ample evidence to support the convictions.I have re-read the evidence in the light of the criticism that the learnedMagistrate should not have acted on the evidence of the witnessW. Nandasena and the driver of the motor car in which the stolenbattery was transported from Haputale to Bandarawela. In my opinionthere is no substance in that criticism and the convictions must beaffirmed.
The appellants were sentenced to two years’ rigorous imprisonmenton each count, the sentences to rim concurrently. The second accusedappellant was further fine4 Ps. 100 on each count, in default one year’srigorous imprisonment. to;-run concurrently. In passing sentence theMagistrate stated,r
“ A deterrent sentence is-called for in this case and Police have pressedfor such punishment in view of facts within their knowledge apart fromtheir bad records. ”
The first accused had one previous conviction in 1941 for housebreaking-and theft and the second accused five previous convictions all enteredin 1952, four for dishonest retention of stolen articles and one forhousebreaking and theft.
In my opinion it was wrong for the Police to have pressed for deterrentpunishment on grounds which they were not prepared to disclose andto establish by evidence. The following observations made by theCourt of Criminal Appeal in the case Van Pelz 1 are in point :
“ Police officers are nearly . always called, after conviction, toassist the Court when it is considering the sentence to be passed onconvicted person. We think that in this case we should enlarge a littleon what Lord Alverstone C. J., said in Campbell 2 and what Humphreys J.said in Burton 3. When a police officer is called to give evidenceabout a prisoner who has been convicted, he should in general limithimself to such matters as the previous convictions, if any, and theantecedents of the prisoner, including anything which has beenascertained about his home and upbringing in cases where the age ofthe prisoner makes this information material. It is the duty of thepolice officer, we think, to inform the Court also of any matters, whether
1 (1943) 29 Cr. A. R. 10.2 (1911) 6 Or. A. R. 131.
(1941) 28 Cr. A. R. 89.
280
V'eeravagee 'P-illai v. irabisxa Umma
•or not the subject of charges which are to be taken into consideration,which he believes are not disputed by the prisoner and ought to beknown by the Court. Police officers should inform the Court of anythingin the prisoner’s favour which is known to the police, such as periodsof employment and good conduct. We have no reason to believe that-this is contrary to the present practice of the police who constantlyinform the Court of matters which are in the prisoner’s favour. Wealso think that it is the duty of counsel for the prosecution to see thata police witness, when speaking on all these matters, is kept in hand,and is not allowed, much less invited, to make allegations which areincapable of proof and which he has reason to think will be denied by"the prisoner. ”
In awarding the maximum sentence of imprisonment on each count-the learned Magistrate appears to have been influenced by the statement■of the Police that the appellants -had a worse record than that revealedby the previous convictions. I would, therefore, vary the sentencesas follows : The first accused will undergo eighteen months’ rigorousimprisonment on each count, the sentences to run concurrently andthe second accused to two years’ rigorous on each count without anyfine, the sentences to run concurrently. The period during which theappellants have been on remand after conviction reckoned from22nd August, 1952, will be deemed to be part of the sentence.
Subject to the variation indicated above the appeals are dismissed.
Sentence reduced.