101-NLR-NLR-V-66-R.-P.-KANDIAH-and-2-others-Appellants-and-S.-I.-POLICE-NORTON-BRIDGE-Respo.pdf
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TAMBIAH, J.—Kandiah v. S. I. Police, Norton Bridge
1964Present: Tambiah, J.R. P. KANDIAH and 2 others, Appellants, and S. I. POLICE,NORTON BRIDGE, Respondent8. C. 85-87164—M. G. Hatton 7,876
Criminal 'procedure—Summary procedure—Charge—Different offence of attemptdisclosed in course of proceedings—Duty to frame fresh charge—-CriminalProcedure Code, ss. 152 (3) 193 (/).
Evidence—Witness—Indivisibility of credibility—Corroboration.
Where, in a prosecution for an offence triable summarily, the accused isfound guilty of having attempted to commit the offence with which he ischarged, the Magistrate must, under section 193 (1) of the Criminal ProcedureCode, frame a fresh charge before he can convict the accused of attemptingto commit the offence.
It is not permissible, in a criminal case, to disbelieve a witness on a materialpoint and, at the same time, believe him on other points without corroborativeevidence.
Appeal from a judgment of the Magistrate’s Court, Hatton.
Colvin R. de Silva, with M. T. M. Sivardeen, for 1st to 3rd accused-appellants.
D. S. Wijesinghe, Crown Counsel, for the Attorney-General.
March 13, 1964. Tambiah, J.—
The appellants were charged on the following counts :—
The first accused did cheat by personation T. Vythilingampillai
of Lonach Division by pretending to him that he was a “ PriceControl Inspector ” and did thereby dishonestly induce thesaid T. Vythilingampillai to deliver him a sum of Rs. 1,500,to avoid a prosecution and thereby committed an offencepunishable under section 402 of the Penal Code, Chapter 19 L.E.C.
At the time and place aforesaid and in the course of the same
transaction the 2nd and 3rd accused did cheat by personation
T.Vythilingampillai of Lonach Division by pretending tohim that they were officers of the C. I. D. and did thereby dis-honestly induce the said T. Vythilingampillai to deliver a sumof Rs. 1,503 to the 1st accused and thereby committed anoffence punishable under section 402 read with section 32 L.E.C.
At the time and place aforesaid and in the course of the same trans-
action the abovesaid 1st, 2nd and 3rd accused did attemptto commit extortion by putting T. Vythilingampillai of LonachDivision in fear of injury to his reputation by prosecutinghim under the Pood Control Act for possession of imported
TAMBIAH, J.—Kandiah v. S. I. Police, Norton Bridge
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rice and in such attempt did do an act towards thecommission of the offence of extortion to wit by demand-ing that a sum of Rs. 1,500 be paid to the 1st accused to avoidthe prosecution under the Food Control Act and thereby com-mitted an offence punishable under section 373 read with section490 and section 32 of the Penal Code, Chapter 19 L.E.C.
At the time and place aforesaid and in the course of the same
transaction the abovesaid 2nd accused did commit theft ofcash Rs. 59 from the drawer of T. Vythilingampillai’s boutique,property in the possession of the said T. Vytbilingampillai andthereby committed an offence punishable under Section 369of the Penal Code.
At the time and place aforesaid and in the course of the same
transaction the abovenamed 2nd and 3rd accused did committheft of 2 bags of country rice valued at Rs. 125, 6^ lbs.of imported rice valued at 81 ct?. and 12^ lbs. of whitecountry rice valued at Re. 1-62 cts. all to the value ofRs. 12721 *rom the boutique of T. Vythilingampillai andthereby committed an offence punishable under section 369read with section 32 of the Penal Code, Chapter 19 L.E.C.
At the time and place aforesaid and in the course of the same
transaction, the abovenamed 4th accused did aid andabet the 1st, 2nd and 3rd accused in the commission ofthe offence of cheating by personation T. Vythilingampillaiof Lonach Division by pretending to him that the 1st accusedwas the Price Control Inspector and the 2nd and 3rd accusedwore from the C.I.D. and dishonestly induce the said T. Vythi-lingampillai of Lonach Division to deliver a sum of Rs. 1,500to the 1st accused which said offence was committed in con-sequence of such abetment and thereby committed anoffence punishable under section 102 read with section 402of the Penal Code, Chapter 19 L.E.C.
After trial the learned judge convicted and sentenced them to variousterms of imprisonment. The learned judj_e, after trial, found that thecharges on counts 1 and 3 have lot been proved against the 1st and 2ndaccused, but he proceeded to convict them for attemoting to committhe offences set out in counts 1 and 2 vithout framing charges and givingan opportunity to the accused to defend themselves. The learnedMagistrate assumed jurisdiction under section 152 (3). Thereafter itwas incumbent on him to follow the procedure set down in Chapter 18.Section 193 (1) enacts in categorical terms, that the Magistrate mustframe a fresh charge if he wanted to convict the first and second accusedfor attempting to commit the offences set out in counts No. 1 and 2.I am further strengthened by the ruling in Rankira v. Sergeant Schulling 1,
1 (1949) 41 O. L. W. 27.
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TAMBIAH, 3. —Kandiah v. S. I. Police, Norton Bridge
in which a similar view was expressed by Wijeyewardene, C.J. Thereforethe convictions of the 1st accused on counts 1 and 3 and the 1st accusedand 2nd accused on count No. 2 have to be set aside.
Dr. Colvin ft. de Silva further contended that on the facts and thefindings the conviction on the other counts cannot stand. The wholecase rested on the evidence of one Vythilingampillai, a boutique keeper,who stated that the 1ft accused came and posed as a Food ControlInspector and the 2nd and 3rd accused posed as C. I. D. officers anddeprived him of two bagB of rice and relieved him cf Rs. 59. He saidin the course of the evidence that when this alleged incident took place anumber of people were present in the boutique, but it is strange thatnot one of them was called in order to support his evidence. Vythilingamfurther stated in the course of evidence that after the accused had leftthe boutique with the articles and the money the Thalavar had comeand he made a complaint to the Thalavar and thereupon the Thalavar,with the assistance of others, arrested the accused and kept them in. theboutique till the Police came. If this be txue one would expect theThalavar to be called as a witness but it is strange that he was notcalled.
The case, however, does not rest there. Vythilingampillai made astatement to the police, marked Dl. His version in Court differsmaterially from the statement he has made to the police. In the courseof his judgment the learned Magistrate observes: “ Vythilingam’sevidence undoubtedly is contradicted on many points by the first infor-mation he gave to the police marked Dl Then he states the variouspoints on which Vythilingam’s evidence is at variance with the statementmade to the police. Having stated these discrepancies the learnedjudge observes that he does not think that Vythilingampillai is givingfalse evidence.
The learned Magistrate then proceeds to find corroboration to believeVythilingampillai. He states in the course of his judgment thatVythilingampillai’s evidence is corroborated by the evidence of Siva-lingam to this extent, namely, that he had been sent by the accusedto purchase some provisions from the complainant’s boutiques as adecoy. The learned Magistrate disbelieves Sivalingam while he isdealing with the case against the fourth accused, but he statesin the same breath that he thinks it safe to accept the evidence ofSivalingam when the latter said that it was the second and fourth accusedwho asked him to go and buy provisions. It is not permissible for ajudge in a criminal case to disbelieve a witness on a material point andthen believe him on other material points without corroborative evidence.In a criminal case a witness’s credibility cannot be divided. This viewof indivisibility of a witness’s credibility is strengthened by the rulingin Baksh v. Queen1. The Privy Council observed as follows Theircredibility cannot be treated as divisible and accepted against one andrejected against the other.” In Queen v. Vellasamy2, the Court of
1 (1958) Appeal Cases, 162 at 172.
2 (1960) 63 N. L. R. 265 at 270.
Mailvaganam v. Kandiah
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Criminal Appeal upheld the same view. Having stated that Sivalingam’sevidence cannot be accepted against the fourth accused and also againstthe second and third accused the learned Magistrate then proceededto say that he does not think that Sivalingam is a false witness. Iregret I cannot follow the reasoning of the learned Magistrate in thiBcase. His judgment is self-contradictory in certain matters.
The defence position is that the first accused, third accused and fourthaccused had gone for a wedding from an estate to another estate wherethe boutique of Vythilingampillai is situated. It is the case of thedefence that Vythilingampillai did not like the marriage betweenthe first accused and one Mariyay’s daughter. Therefore to preventthis marriage Vythilingampillai had got the first accused arrested on afalse charge. The learned Magistrate in dealing with the defence statesas follows :—“ It may no doubt be true that the first to the fourthaccused did come in connection with the marriage proposal of thefirst accused to Mariyay’s daughter on this estate.” If I understand thejudgment correctly the learned Magistrate takes the view that part ofthe defence version cannot be rejected. According to the evidenceof Rupasinghe, the driver of the car in which these accused came on thethe day in question, the mother of the first accused was also in the car.It seems unlikely that if the second to the fourth accused had cometo attend a wedding of the first accused, they would have committedthis daring robbery, particularly, with the mother of the first accusedin the car. In view of these infirmities it is unsafe to allow this convictionto stand. Therefore, I set aside the conviction on all counts and acquitthe accused.
Appeal allowed.