• Cur. adv. vult.
( 148 )
August 1Z ,and 19.
Lawbib, J.
“ these three accused [pointing out to them | running away from“ the direction of the complainant’s house. If what I say is not the“ truth, within seven days let me be struck with lightning: let“ me die.”
The accused said they were satisfied, and the KachcheriMuhandiram reported to the Court. .
The Magistrate thinks this was regular under the Ordinance No.
9 of 1895, section 9, and he holds that the oath of Banda must beheld to be (conclusive.
I am not of the same opinion. I th'nk that the performancevitiates the whole proceedings. – Certainly, it is in no way conclusive.'
The 9th section of the Oaths Ordinance provides that “ if in any“ judicial proceeding of a criminal nature the accused person desires“ that any' witness for the prosecution shall make any such oath“ or affirmation, the Court may, if it thinks fit, ask such witness or“ cause him to be asked whether or not he will make the oath or“ affirmation.” Such oath or affirmation refers to the 8th section.That is an oath or solemn affirmation in any form common amongst orheld binding, by persons of the race or persuasion to which he belongsand not repugnant to justice or decency.
The Magistrate has omitted to state whether Banda agreed totake an oath at Jetawanarama. I presume he said he was willing.The form of the oath was neither known to nor approved of bythe Magistrate. All he knew was that it was to be taken at thedagoba. The witness used such words and imprecations as hechose. The Magistrate holds that the evidence taken and thesanction on this oath is conclusive against the accused, but that Ithink is wrong. When parties to civil 6uits agree to be bound byan oath it is conclusive, but no conclusiveness is given in criminalcases. Here, no doubt, the accused offered to be bound, but thatoffer could not be accepted by the Court. If after the evidencetaken on unusual form of oath accused persons asked to withdrawtheir claim to be tried and to plead guilty, the Court might allowthat plea to be recorded and then sentence them; but so long asthe claim to be tried stands, the Court cannot convict except onsufficient evidence. All that the Oaths Ordinance does in thismatter is in certain cases to allow evidence to be given under «thesanction of an oath more particularly binding oa the conscience ofthe witness than the oath or affirmation in ordinary use in ourCourts. The effect of the evidence so given is the same as thatgiven after the usual affirmation has been taken.
The Police Magistrate has convicted the accused on the footingthat the evidence of Banda was conclusive. It was not so. I mustquash these proceedings.