054-NLR-NLR-V-62-THE-QUEEN-v.-ALWIS-et-al.pdf
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P ULLE, J.—The Queen v. Alwia
Present: Pulle, J., and H. N. G. Fernando, J.THE QUEEN v. ALWIS et ol.S. C. 313—Application for Revision in D. C. {Crim.) Balapitiya, 13238j 349
Forgery—Evidence—Registration of marriage—Forgery of signature of the “ wife ”
Competency of the “ wife ” as witness for prosecution.
"Where the signature of a woman, was alleged to have "been forged "by a manin a marriage register (in collusion with the Registrar of Marriages) so as tomake out that she was lawfully married to him—
Held, that the woman was a competent witness against the man in a pro •secution for forgery. In such a case, it is not necessary that the marriageshould first be declared null and void in a civil action instituted by the woman.
Application to revise an order of the District Court, Balapitiya.
Ananda Pereira, Crown Counsel, for the Attorney-General.
C. S. Barr Kumarakulasinghe, with V. Arulambalam, for the 3rdrespondent.
Cur. adv. vult.
October 31, 1958. Pulle, J.—
This is an application made on behalf of the Attorney-General torevise an order made by the District Judge, Balapitiya, on 26th June,1958, postponing the trial of three accused persons pending the decisionof a civil case. At the hearing of the application only the 3rd accusedwas represented and learned counsel on his behalf stated that he couldnot support the order. As'there was no argument at the hearing we havetaken time to consider more closely the reasons given by the learned Judgefor the order under review.
The 2nd accused is a Registrar of Marriages who is alleged to havebeen present at and registered a marriage between the 1st accused anda woman named X. P. Gurunanselage Leelawathie on the 8th January,1955. The 3rd accused was. one of the witnesses. The case for theprosecution is that the person truly answering to the name of X. P.Gurunanselage Leelawathie was not even present at the ceremony andthat she did not sign the register. The signature on the register pur-porting to be hers is, therefore, alleged by the prosecution to be a forgeryand six out of the seven counts in the indictment impute to each of theaccused complicity in the forgery.
On the date of trial, namely, the 26th June, 1958, the three accusedpersons were present. They were not, in terms of section 204 of theCriminal Procedure Code, asked to plead to the indictment. A sub-mission was made on behalf of the 1st accused that as according to themarriage certificate one X. P. G. Leelawathie was his wife, the witness
I*TfLLE, J.—The Queen v. JLUtna
2&7
Leelawathie could not be called against him until a court of competentjurisdiction enters, to use the "words of counsel, “ a valid decree to theeffect that the marriage is null and void.” A certified copy of a plaintdated 13th November, 1957; filed by Leelawathie against the 1st accusedwas produced. She has stated in the plaint that the signature on theregister purporting to be hers had been forged and asked for variousdeclarations on the footing that she was not a party to any marriagewhatsoever.
The learned Judge accepted the submission on behalf of the 1st.accusedprincipally for the reason that the entry in the register which wasattacked as a fabrication and forgery was the best, evidence of the marri-age of the 1st accused and the witness Leelawathie and that until suchmarriage was declared null and void it was not open to the prosecutionto call her as a witness. A second reason which influenced the Judgewas that the 1st accused would be denied “ the facilities to place evidencebefore court in regard to the marriage certificate as evidence in theentry in the marriage register. The 1st accused must have the oppor-tunity of having the marriage register produced and calling witnesses inregard to the registration of the marriage and his witnesses would neces-sarily be the Registrar and the attesting witness. But I am told theRegistrar and the attesting witness are the co-accused in this indictment.Therefore,-the 1st accused cannot compel these two other co-accused togive evidence for him.”
The very substance of the case for the prosecution is that the witnessLeelawathie whom it wanted to call was not and could not be the wife.of the 1st accused. This is not a case in which the prosecution is putting"forward a witness who did go through a form of marriage with the 1staccused but which marriage was void ab initio or voidable. In sucha case, unless the decision .of a court of competent jurisdiction declaringthe marriage to be a nullity is given, there would not be any difficultyin holding the witness to be not competent. But this is not such a case,for the prosecution is putting forward a witness as a femme sole to establishthat a transaction to which the three accused were parties was a fab-rication and fraudulent from the beginning to the end. To say in thesecircumstances that the entry impugned as a forgery is the best evidenceof the marriage is not far from pre-judging the very facts in issue arisingon each of the seven counts of the indictment. The prosecution is entitledto shew that what has been called “ the best evidence ” is worthlessfor the purpose of proving a marriage between the 1st accused and thewitness Leelawathie. If Leelawathie has chosen after consulting legaladvice to seek relief in a court of civil jurisdiction that does not alter thestand taken by the prosecution that she did not go through any of theformalities of a marriage with the 1st accused .and that no objectioncould be taken to the admissibility of her evidence.
The second reason given by the Judge for postponing the trial is alsountenable. It is plain that at a trial of two or more persons a witnessis entitled to depose to a fact even though one of the accused cannot
238BASNAYAKE, C.J.—The Queen v. Rupaainghe Perera
compel his co-accused to give evidence contradicting that fact. Thereason given by the Judge that the 1st accused would be handicapped inhifl defence is of no consequence, because a prior decision of the civil easein favouf of Deelawathie would make no difference. The prohibitionagainst one accused Compelling another to give evidence will still remain.Obviously the Judge cotild not have postponed the case on the groundthat either the 2nd accused who was the Registrar who officiated at themarriage or the 3rd accused who was one of the two witnesses requiredby law to attest a marriage could not compel the 1st accused to giveevidence. They were at an equal disadvantage with the 1st accused.
I Would, therefore* set aside the order of the District Judge dated the26th June, 1958* and remit the case for trial in due course.
H. N. G. Fernando, J.—I agree.
Order set aside.