031-NLR-NLR-V-36-KING-v.-WICKREMESINGHE.pdf

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MAARTENSZ A.J.—King v. Wickremasinghe.
: o the offences were against different persons. Section 179 of our Codecorresponds to section 234 of the Indian Code. A conflict of opinion inIndia as to whether the three offences must be committed against thesame person has been met by an amendment of the section 234. Thewords “ whether in respect of the same person or not ” being inserted inthe section after the word “ offences ”,
With due deference to the Indian decisions to the contrary, I prefer tofollow the decision of Wood Renton C.J. in the case of The King v.Senanayake1 where he held that section 179 of the Code did not requirethat the three offences with which the accused was charged should beagainst the same person. I respectfully agree that if that was the in-tention of the legislature it would have been provided for by the insertionof the words “ against the same persons ” in the section. In supportof this view I would point out that these words are to be found in section5 of the Larceny Act of 1881: a section in many respects similar tosection 179 of the Code.
It was also argued that the joinder of the three charges would prejudicethe accused as it would lead the Jury to suspect that each of themseverally must be true. It was contended that this argument wasaccepted by Ennis A.C.J. in the case of The King v. Wijesinghe *. EnnisA.C.J. no doubt refers to the argument in his judgment; but I am clearlyof opinion that he acquitted the accused in that case because inadmissibleevidence had been received and acted upon by the District Judge whotried and convicted him.
It was held by Ennis A.C.J. and Wood Renton C.J. in the casesreferred to that it was always open to the Courts on the application of anaccused person to direct separate trials. But I do not think separatetrials should be ordered merely because of the possibility that a Judge orJury might suspect each of them must be true. Such an argument couldbe addressed to this Court in every case in which three charges arecombined at one trial in pursuance of the provisions of section 179 of theCode. And there would be no purpose in retaining the section in theStatute Book. In my judgment there must be more substantial groundsfor directing separate trials than that contained in the argument I havedealt with. I have read through the depositions and I am of opinionthat accused will not be prejudiced by the three charges being triedtogether.
I accordingly over-rule both objections to the indictment.
Counsel for the defence also objected to any evidence being led ofsimilar acts committed by the accused on the three persons mentionedin the indictment. Counsel for the Crown submitted that such evidencewas admissible under section 14 of the Evidence Ordinance which enacts :
“ Facts showing the existence of any state of mind—such as intention,
knowledge, good faith, negligence, rashness, ill-will or good-willtowards any particular person, or showing the. existence of anystate of body or bodily feeling—are relevant, when the existenceof any such state of mind, or body, or bodily feeling is in issue
or relevant.”
(1917) 20 N. L. R. 83.
1
* (1919) 6 Ceylon Weekly Reporter 327.
Pvnchimenika v. Ukku Banda.
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But he was unable to state definitely the state of mind, the existence ofwhich the evidence would prove.
In support of his contention he referred to the case of The King v. Balland Ball The defendants in that case, a brother and sister, were chargedwith incest, evidence, was tendered and admitted of previous acts of thedefendants with the view of showing what were the relations betweenthem. The House of Lords held, reversing the decision of the Court ofCriminal Appeal, that the evidence was admissible as the object of theevidence was to establish that the defendants had a guilty passiontowards each other and to rebut the defence of innocent association ofbrother and sister.
This decision is not applicable in this case as the evidence of similaracts is not tendered to show a guilty passion between the accused andany of the boys or to rebut the suggestion of an innocent association,but merely to show that the accused is likely to have committed theoffence with which he is charged.
I was also referred to the cases of The King v. Shellaker2 and the case ofHarold Howitt (1925), 19 Criminal Appeal Reports p. 64, where evidenceof similar acts of sexual intercourse with the prosecutrix was held to beadmissible in a charge of unlawful carnal knowledge of a girl under 16.These cases are not distinguishable from the present case. But we aregoverned by the provisions of the Evidence Ordinance of 1895, and I amof opinion that the evidence of similar acts is not admissible unless it canbe shown to establish the existence of a state of mind of the naturereferred to in section 14. Crown Counsel was unable to show that theevidence objected to would serve that purpose. I accordingly hold thatevidence of similar acts is inadmissible.