c 230 )
Present: Ennis A.C.J.
THE KING v. WIJESINGHE.
104—D. C. (Crim.) Kandy, 3,082.
oharges. of cheating three ‘persons on three different occasions—one indict-ment—One trial—Criminal Procedure Code,s. 279—Evidence to
prove that accused cheated others inadmissible—Evidence Ordi-nance, s. 25—Admission by accused to a witness that he was intie habit oftaking illegal gratifications—Inadmissible evidence—
Former statements of a witness made one year after the allegedfact—Corroboration—Evidence Ordinance, s, 157.
Accused was charged on one indictmentwith having cheated
thue different milk vendors and obtained money on false pretenceson three different occasions within one year. The prosecutionwanted tocallwitnesses to prove that accused hadcommitted
other offences of the same kind.
Held, thatsuch evidence – was inadmissible. Section 25 of the
evidence Ordinance allows, evidence of this nature where there is aquestion as to ' whether an act was accidently or intentionally
1 (1854) 10 Ex. Rep., p 222,
toe, or done with a particular knowledge; bat it is admitted onlyto showtheabseneeof accident or the preeenceofintention,but
not to prove the original foot itself.
A witness gave evidence that the accused admitted that he hadbeen in the habit of taking illegal gratifications from milk vendors;no particular milk vendor was mentioned.
Held, that the evidence was inadmissible; it was not a confessionin respeot ofthe offennce oharged, but merely evidence of • bad
Seotion979ofthe Criminal Procedure Code whichprovidesfor
three offencesofthesame kindcommitted withinoneyear being
tried at one trial is only permissive.
Former statements of a witness made one year after the allegedfact tookplaceis inadmissiblefor corroboratingtheevidenceof
’J'HE facts appear from the judgment.
Bawa, K.C. (with him 0. V. Pereta), for the appellant.
Jante, C. C., for the Crown.
September 6, 1919. Ennis A.C.J.— ,
In this case the accused was oharged on one indiotment with threedistinct offences of the same kind alleged to have been committedin the course of one year: (1) That he oheated one Tikiri Menika onJanuary 11, 1917, by pretending that a fee of Rs. 10 wsb payable fora certificate of registration of a dairy, and that he thereby deceivedTikiri Menika and induced her to pay him Rs. 10. He was secondlycharged with cheating one Mudiyanse in similar circumstances in asimilar sum on the same day. He was thirdly oharged with cheatingerne De Silva on January 29, 1917. This charge was originallyframed in respect of a sum of Rs.10. But it would seem that atsome time during the trial—when it does not appear— the chargewas amended, so that it now reads “ that the acoused cheated byfalsely pretending to De Silva that a fee of Rs. 5 was payable for acertificate of registration of a dairy, and that he thereby deceivedDe Silva, and fraudulently and dishonestly induced him to ppyRs. 10. ” Possibly this is a mistake, and it was intended that thefigure Rs. 10 should be altered to Rs. 5 in both places. Be that soor not, the same mistake is repeated in the conviction form whichthe learned Judge has signed. Technically, therefore, the convic-tion on the last count without a proper alteration of the charge andin the conviction sheet is bad.
The evidence against the acoused on the three oharges, when ithas been analysed to eliminate a mass of inadmissible evidence inthe case, resolves itself into the word of Tikiri Menika against theword of the acoused, the word of Mudiyanse against the word of theaccused, and the word of De Silva against the word of the acoused,
21/20( 232 )
and, therefore, the main question for consideration in each case is thequestion as to which of the conflicting statements can be taken asthe more reliable. It was urged on appeal that the accused has beenprejudiced by the trial of three offences at the same time, prejudicedin this that the fact that other charges were made against him has ledto the suspicion that each of them severally must be true. Section279 of the Criminal Procedure Code permits of three offences of thesame kind being tried at one trial. But it is only permissive, and itwas open to the Court, when objection was taken at the beginning ofthis trial, to have directed a separate trial in respect of each of theseparate offences. It did not do so, but .was satisfied to let thetrial proceed as it stood. During the hearing of the case for theprosecution it became clew that the prosecution relied upon theevidence of other offences of the same kind in order to induce abelief that the accused was guilty, and it was actually attempted tocall other witnesses to prove other offences not included within theindictment. The learned Judge very properly over-ruled this.But the conduct of the case shows that the view of the prosecutionwas that such evidence was admissible, and it is exactly that pointwhich has to be considered when one weighs how far the accusedmay have been prejudiced by having three charges to meet at once.Section 15 of the Evidence Ordinance allows evidence of this naturewhere there is a question as to whether an act was accidentally orintentionally done, or done with a particular knowledge, and thenit is open to the prosecution to prove a series of similar acts in eachof which the person doing the act was concerned. But it is signi-ficant to notice that the illustrations show quite clearly that wheresuch evidence is admitted, it is admitted only to show the absenceof accident or the presence of intention, but not to prove theoriginal fact itself. For instance, where an accused was chargedwith burning down his house in order to obtain money for which itwas insured, evidence that the accused had lived in a number ofhouses successively which he had insured and that in each of thema fire had occurred was admissible to show that the fire in the caseunder trial was not accidental; but that evidence is not admissibleto prove the main fact that the accused fired the house.
In the present charge of cheating there is no question of accidentor intention, and there was nothing suggested in the defence to callfor any evidence in rebuttal, so that the evidence of other acts of asimilar kind merely became evidence of character, and to leadevidence of the bad character of the accused is inadmissible andprejudicial to the defence. The conviction, however, does notstand in the judgment on a mere belief in the evidence of TikiriMenika, Mudiyanse, and De Silva. The Judge has dealt verylargely with the evidence of one Dr. Attygalle, and has given reasonsfor accepting the truth of that evidence. The whole of that evidence,so far as I am able to see, was inadmissible, and served only to raise
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a cloud of prejudice against the accused- Dr. Attygalle was allowedto give evidence in corroboration of Tikiri Menika, that she hadmade a statement to Him which was consistent with the statementshe had made to the Court, namely, that she had paid Bs. 10 to thisaccused. But it appears from Dr. Attygalle's evidence that TikiriMenika made these statements to him nearly a year after thealleged act is said to have taken place, and, therefore, under section157 of the Evidence Ordinance, the evidence was wholly inadmis-sible. Further Dr. Attygalle was allowed to give evidence of analleged confession made by the accused. This evidence is mot con-fined to the commission of any offence charged -in the indictment.Dr. Attygalle nowhere says that the accused admitted specifically anyone of these three charges. His words are: “He” (the accused)“ said that he had heard I had reported him to the Chairman fortaking illegal gratifications from milk vendors, and either that I wasgoing to take steps about it, or bring a motion in Council. I toldhim I had done nothing of the kind, but that I was going to reporthim to his superior officer. He begged of me not to do anything. Headmitted that he had done so; and that he followed the practice ofhis predecessor.” Now, this admission is not an admission of anyspecific offence, blit an admission apparently that he had beenin the habit of taking illegal gratification from milk vendors. Noparticular milk vendor is mentioned. It, therefore, was not aconfession in respect of the offence charged. It was merely evidenceagainst the character of the accused, and as such was inadmissible.Now, the story of Dr. Attygalle was sought to be supported byMr. Grenier, who on this point made the following statement:“ He ” (Dr. Attygalle) “ told me that several milk vendors hadcomplained to him that the accused had levied fees for issuing thecertificates; that he had questioned the accused, and the accusedadmitted having taken fees; and that he had two witnesses in anadjoining room who had overheard the conversation between himand the accused.” Here, again, there is no specific mention of anyof the offences in the indictment, but merely a general allegationrelating to several milk vendors. But when it comes to be regardedas corroboration of Dr. Attygalle’s evidence, one. can only remarkthat it’ is singular that it should be sought to support Dr. Attygalle’sevidence by means of proof of a previous statement made by him,instead of by calling the two witnesses who were in the inner roomand overheard the conversation of the accused. It is further to beobserved that Dr. Attygalle in his evidence makes no mention ofthese two witnesses who were in the inner room. Dr. Attygalle’sevidence is inadmissible, and so, in substance, is the whole of Mr.Grenier’s evidence. Dr. Hay was also called. His evidence is to theeffect that he was the authority who issued the certificates, that is to. say, they were signed by him, and were issued through his office bythe accused. Dr. Hay’s evidence is simply to this effect: He swears
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that ho received no complaint of any kind, and it does not appearthat Dr. Bay is in any way inaccessible to milk vendors or others.The admission of the inadmissible evidence against the accusedmust seriously have prejudiced him, and on that ground alone itwould not be safe to leave this conviction. But I would go furtherand examine the evidence such as it is against the accused, and, asI have mentioned, it is the evidence of the three persons, TikiriMenika, Mudiyanse, and De Silva …. Be (the accused)denies specifically the charges against him, and the case, therefore,stands on the oath of an official who had to do his duty against theoath of three milk vendors severally. The evidence of the accusedis not lightly to be set aside, because in the event of a false caseagainst him he is perfectly helpless. Be can do no more than givehis own sworn testimony, and a conviction against him standingin each case on the word of one witness only, and the reliabilityof that witness buttressed up a cloud of inadmissible evidence isdoubtful and should not be allowed to stand. I accordingly setaside the conviction, and make no further order in the case.
THE KING v. WIJESINGHE