086-NLR-NLR-V-01-TOUSSAINT-v.-ALIMAKANDU-et-al.pdf
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TOUSSAINT v. ALIMAKANDU et al.P. 0., Batticaloa, 10,379.
1-896.
January 23
and 28.
Civil Procetlure Code, ss. 642,843—Wilf id omission to report death of intestate—“ Duty of widow, widower, or next of kin.”
In order to sustain a charge under section 543 of the Civil ProcedureCode, it is necessary to prove that the accused are the lawful widowor next of kin of the deceased ; that he died intestate ; and that theaccused wilfully omitted to report his death.
Semhle, per Laweik, J.—The 542nd section makes the widow or thenext of kin liable. The duty seems first to be laid on the widow, and ifthere be no widow, then on the next of kin. Therefore both shouddnot be convicted unless it is proved that they acted in concert.
n^HE widow and the eon of a deceased person who was alleged'.
to have died intestate were charged with and convicted ofthe offence of not reporting the death of such person, in violationof section 543 of the Civil Procedure Code.
They appealed, and Sampayo appeared for them.
Dias, C-G., for the prosecutor respondent.
28th .January, 1896. Lawrie, J.—Lawbie, j.
The charge is defective. It omits to state that the failure toreport was wilful, a very necessary allegation, because theoffence is created by the Ordinance, and is not a malum in se.
Wilfulness is a material part of the offence. Further, thecharge does not set forth that the deceased died intestate leavingproperty above Rs. 1,000.
The accused are stated to be the next of kin, viz., the widowand the son. The widow is not one of next of kin, and the thirdaccused is only one of several children of the intestate.
The 542nd section makes the widow or the next of kin liable.
The duty seems first to be laid on the widow, and if there be nowidow, then on the next of kin. It is difficult to hold that bothare criminally liable, and I would hesitate to sustain this con-viction of both unless they had been proved to have acted inconcert.
It is not proved that the first accused is the widow. The thirdaccused iB proved to be one of several children of the deceased, allof whom are his next of kin.
It is not proved that the deceased died intestate. On thecontrary, the deed produced by the notary looks very like a lastw ill of which probate must be taken. It ought, under section 516,to have been produced to the Court by the person in whosekeeping it was deposited..
Voii. I.2 R
I8M. I acquit the accused, and I direct the Police Magistrate to** forward the deed No. 1,791 to the District Judge of Batticaloa in——•order that he may take such action thereon as may to him seem
Lawwb’ jnst and according to law.