024-NLR-NLR-V-75-K.-MURUGESU-and-another-Appellants-and-R.-M.-WEERAKOON-S.-I.-Police-Respond.pdf
166
Murugtsu v. Weerakoon
1971
Present: Weeramantry, J.K. MURUGESU and another, Appellants, awl R. M. WEERAKOON(S. I. Police), Respondent
S. C. 129-130171—M. C. Nuwara Eliya, 40539
Penal Code—Section 354—Offence oj kidnapping a girl from lawful guardianship—Burden of proof as to age of girl.
Where a person is charged with kidnapping a girl from lawful guardianshipin breach of section 354 of the Penal Code, the burden is on the prose ution toprove that the girl was under 16 years of age at the time of the offence. Ifthe prosecution has failed to produce the birth certificate of the girl after dateshave been obtained for its production, the mere ipse dixit of the father of thegirl is insufficient to discharge the burden of proof if the girl appears to be of aaage very near to the marginal age.
WEERAMAJNTRY, J.—Murugesu v. Weerakoon
187
A.PPEAL from a judgment of the Magistrate’s Court, Nuwara Eliya.
C.'Motilal Nehru, with A. Chinniah, for the accused-appellants.
K. W. D. Perera, Crown Counsel, for the Attorney-General.
April 20, 1971. Weeramantby, J.—
In this case the 1st accused is charged with kidnapping a girl namedPushpa and the 2nd accused with abetting t he commission of the offenceof kidnapping. The kidnapping was alleged to be from the lawfulguardianship of Kalimuttu wife of Munian and the offence is onepunishable under Section 354 of the Penal Code.
In order to maintain'this charge it was necessary for the prosecution toprove that the girl was under 16 years of age.
Realising the importance of tho girl’s birth certificate in order toprove this matter, the prosecution had on two dates of trial obtainedpostponements stating that the birth certificate had not been obtained.
On the third date the birth certificate had apparently still not beenobtained and the case proceeded to trial. The accused were undefended.The learned Magistrate assumed jurisdiction in terms of Section 152 (3)of the Criminal Procedure Code and after trial found tho accused guiltyand sentenced the 1st accused to 8 months’ rigorous imprisoiunont p.hdthe 2nd accused to 6 months’ rigorous imprisonment.
The girl stated in her evidence that she does not know her age, and hormother has also boon unable to assist tho Court on f lie question of her ageexcept to state that the girl was 1C years of age on the date she gaveevidence. ' Her father has also given evidence but has not explained theabsence of the birth certificate which apparently tho prosecution hadendeavoured to obtain. He has further stated that the child was bornon 7th October, 1955.
In a cirminal case where the burden lies heavily on the prosecution toprove every ingredient of the offence with which the accused is charged,the mere ipse dixit of the father seems in these circumstances to bealtogether insufficient to prove the age of the child, where the age ismaterial to the charge and the child appears to be of an age very near tothe marginal age in question. There should have been evidence as to thereasons for the non-production of the birth certificate, and in the absence ■of the birth certificate, some more satisfactory evidence in regard to themanner in which the exact date of birth was fixed. Reference to someincident at or around the time of the birth may have sufficed for thispurpose, but the mere statement by the father seems insufficient in thiscase to discharge the burden of proof of age which lies upon theprosecution.
168
WEERAMANTRY, J.—Murugesu v. Weerakoon .
Had the accused been represented by counsel he would no doubt havebeen able with ease to shake the evidence of the father on the question ofthe date. In the absence of further material supporting his bare assertionof a particular date, he would in all probability have been quite unable tomaintain the correctness of the precise date he had mentioned.
In any event in a case such as this when two dates had been obtainedfor the production of tho birth certificate, I consider that it wasincumbent on the prosecution to explain to the Court the reasons forits non-production.
In these circumstances I take the view that the prosecution hasfailed to prove a material ingredient of the charge laid against the accused.I therefore quash the convictions and acquit the accused.
Appeal allowed.