049-NLR-NLR-V-55-S.-ARUMUGAM-et-al.-Appellants-and-SEETHEVI-Respondent.pdf
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Arumugam v. Seethevi
Present : K. D. de Silva J.
S. ARUMUGAM et al., Appellants, and SEETHEVI, RespondentS. G. 264—268, with Application 118—M. G. Point Pedro, 16,335
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Evidence—Criminal intimidation—Competency of spouse of accused to give evidence—Penal Code, s. 486—Evidence Ordinance, ss. 100, 120.
Under section 120 (4) of the Evidence Ordinance the wife is a competentwitness for the prosecution where a husband is charged under section 486 of thePenal Cocle with intimidating his wife. 1
1 8 N. L. R. 309.
K. D. DE SELVA J.—Arumugam v. Seethetri
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j/_PPF.AT.K, with application in revision, from a judgment of theMagistrate's Court, Point Pedro.
C. E. Jay&wardene, with S. J. Kadirgamer, for the accused appellants.Cecil 2. G-unawardene. Crown Counsel, as amicu-s curiae.
Cur. adv. vult.
August 25, 1953. K. I>. de Silva J.—
In this case the complainant-respondent charged the five appellantswith committing offences punishable under sections 433, 314 and 486of the Ceylon Penal Code. Muthan Sivapaekiam the 4th accused-appellant is the husband of the complainant, and at the times material tothese proceedings they were living in separation. The story for the prose-cution in brief is as follows :On December 16 last year at about 12 noon
Arumugam the brother of the complainant was going past the house ofthe 1st accused when he met a crowd of people some of whom were theseaccused. On seeing him one person in the crowd shouted out “ get holdof Arumugam we will murder him ”. Through fear Arumugam ran intothe complainant s house and took shelter there. The crowd pursued himand these five accused entered the complainant’s compound and threatenedto murder him and the complainant. These accused also began tocause damage to the house. When the complainant raised cries the 1st,2nd and 3rd accused assaulted her. After trial, the Magistrate convictedall the accused under sections 433 and 486, while the 1st, 2nd and 3rdaccused were also convicted of the charge under section 314 of the CeylonPenal Code. On each of .the counts under sections 433 and 486 theaccused were fined Rs. 10 each while on the other count the 1st, 2nd and3rd accused were fined Rs. 30 each. All the five accused have appealedfrom the conviction and sentence. The 1st, 2nd and 3rd accused havealso applied in revision that the conviction and sentence be set aside.In the petition of appeal it was submitted that the prosecution hadfailed to establish the charge under section 486 and that therefore thelearned Magistrate had no jurisdiction to try the case. This submissionwas certified as a point of law by the Proctor for the appellants. ButI see no merit in that contention. There was quite sufficient evidencefor the Magistrate to hold that the charge under section 486 of theCeylon Penal Code had been established.
When this appeal was argued, Mr. Advocate C. E. Jayawardene, whoappeared for the appellants, raised an interesting point of law. Hecontended that as the learned Magistrate acquitted the 4th accused onthe charge of causing simple hurt to the complainant, the other chargesagainst the 4th accused should have been dismissed, -the reason beingthat the complainant, who is the wife of the 4th accused, was not a compe-tent witness against the latter in respect of such charges. He based thisargument on section 120 of the Evidence Ordinance (Cap. 11). Sub-sections (2), (3), (4) and (5) of that section deal with the competency of aperson to give evidence in criminal proceedings in which bis or herspouse is a party. Sub-section (2) entitles a person charged with an
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K. D. DE SILVA J.—Ajrumugam v. Seethevi
offence to call his or her spouse as a -witness for the defence. Accordingto sub-section (3) “in criminal proceedings against a husband or wifefor any bodily injury or violence inflicted on his or1 her wife orhusband, such wife or husband shall be a competent and compellablewitness Sub-section (4) reads “ In criminal proceedings against ahusband or wife for any attempt to cause bodily injury or violenceon him or her wife or husband, such wife or husband shall be a competentwitness for the prosecution”. Sub-section (5) provides that a person isentitled to give evidence against his or her spouse on a charge of bigamy.
Mr. Jayawardene argued that a wife or husband is not entitled to give-evidence against her or his spouse in criminal proceedings outside thescope of the sub-sections 2 to 5 of section 120. The charges undersections 433 and 486 of the Ceylon Penal Code he maintained are notcovered by these sub-sections and that, therefore, the evidence of thecomplainant against the 4th accused in support of those two chargesis inadmissible. I may here observe that even if the complainant’sevidence is eliminated, those two charges have been established by theevidence of Arumugam whom the Magistrate accepted as a truthfulwitness. But I do not propose to dispose of the appeal on that ground-The point of law raised by the Counsel is of some importance and shouldbe decided after consideration.■>
According to section 118 of the Evidence Ordinance (Cap. 11) allpersons are competent to testify unless they suffer from certain physicaldisabilities referred to therein. The provisions of section 120 restrictthe operation of section 118 in so far as the competency of a person togive evidence for or against his or her spouse is concerned. This restric-tion is primarily based on an English Common Law principle, the reasonsfor the origin of which can be gathered from the following passage—“ Husband and wife, say our books, are considered as one and the sameperson in law, and to have the same affections and interests ; from whenceit has been established as a general rule that the husband cannot be awitness for or against the wife, nor the wife be a witness for or againstthe husband, by reason of the implacable dissension which might be causedby it, and the great danger of perjury from taking the oaths of personsunder so great a bias, and the extreme hardship of the case ” (Best onEvidence-—12th Edition—page 164, paragraph 175). This principle incertain circumstances was calculated to cause injustice and hardship,and therefore its application was relaxed by creating exceptions bycommon law as well as by statute. The competency of a person to giveevidence against his or her spouse in the case of personal injury is one ofthose exceptions which arose out of Common Law (Taylor on Evidence—12th Edition—page 861, paragraph 1370). The Criminal Evidence Act,1898 (61 and 62 Viet. C 36) also created a number of exceptions to this rule,but those exceptions are not relevant to the decision of this case. Section120 of the Evidence Ordinance would appear to incorporate the commonlaw principle as well as the exception relating to personal injury.The charge of intimidation, in my view, would come under sub-section (4)and is covbred by the words “ attempt to cause any bodily injury orviolence ”.
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Mallia Silva v. TTnaph
Strictly construed, it is true, the offence of intimidation is not an attemptto cause bodily injury or violence but it has been held in England that“ a threat of personal violence ” comes within the exception to the generalprinciple. “ To this branch also exceptions are not wanting. Whenone of the married parties used or threatened personal violence to the other,the law would not allow the supposed unity of person in husband and wifeto supersede the more important principle that the State is bound toprotect the lives and limbs of its citizens ” (Best on Evidence, paragraph176 at page 165). A similar view is expressed at page 140 of Roscoe’sCriminal Evidence in the following passage “ a spouse witness is compel-lable for the prosecution or for the defence of the spouse when the offencecharged is personal injury (including threats and attempts) or forcibleabduction and marriage, and only in those cases ”. If sub-section (4)of Section 120 of the Evidence Ordinance is not vide enough to includea charge of intimidation, the provisions of Section 100 of that Ordinancecan be invoked to bring in the English Law of Evidence to operate onthis point. Therefore I hold that the evidence of the complainant wascorrectly admitted to prove the charge under Section 486 of the CeylonPenal Code. I agree with Mr. Jayawardene that if the complainant’sevidence was not admissible as against her husband the 4th accused, herevidence would not have been admissible against the other accused aswell in these proceedings. The 4th accused was also convicted on thecharge of criminal trespass. That charge, however, cannot be maintainedagainst him by the complainant. Therefore I set aside the conviction ofthe 4th accused under Section 433 of the Ceylon Penal Code. Subjectto that variation the appeals and the application in revision are dismissed.
Appeals mainly dismissed.