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MOHIDEEN v. NAMBIRALE et al.
NLR2V147
MOHIDEEN v. NAMBIRALE et al,
P. C., Anurádhapura, 17,938,
" The Oaths Ordinance, 1895," ss, 8 and 9- -Decisory oath in criminal proceedings- How far it binds the accused-Scope of the Ordinance in criminal matters.
Under " The Oaths Ordinance, 1895," when parties to civil suits agree to be bound by an oath, it is conclusive; but it is not, so in criminal, proceedings.
Ho, where an accused party offered to be bound by a particular form of oath to ho taken by a witness for the prosecution, held, that the Court was not right in accepting such offer and convicting the accused on the evidence given on such oath.
If after evidence is taken on an unusual form of oath, an accused person asks to be allowed to withdraw his claim to be tried and to plead guilty, the Court may allow that plea to be recorded and then sentence him; but so long as the claim to be tried stands, the Court cannot convict except on sufficient evidence.
All that the Oaths Ordinance does, as to criminal proceedings, is to allow evidence to be given under the sanction of an oath more particularly binding on the conscience of the witness than the oath or affirmation in ordinary use in our Courts. The effect of the evidence so given is the same as that given after the usual affirmation has been taken.
THE accused in this case were charged with house-breaking by night and theft. They claimed to be tried, and in the course of the trial offered to be bound by the evidence of a witness for the prosecution, if such evidence was given under a particular form of oath suggested by the accused. The Police Magistrate accepted the offer and on statements made by the witness on the oath suggested by the accused convicted them. The. accused appealed.
Dornhorst for appellant.
Cur. adv. vult.
August 17, 1896 Lawrie, J. -
As the Police Magistrate himself admits this charge of house-breaking by night with theft of property above Rs. 100 ought to have gone before the District Court, the reasons which induced the Magistrate to hold that it could be dealt with by him summarily are not recorded. 1 do not know what they were. A strong case was made against the accused, and they wore called on for their defence. Their Proctor re-called Banda, a witness for the prosecution, when the accused said that if Banda would swear on the Jetawanáráma that, he saw the three accused running away from the direction of the complainant's house, they were ready to undergo any punishment the Court might award. The Magistrate then sent the accused and the witness Banda with the Kachcheri Mohandiram to the Jetawanáráma. The accused pointed out a spot where Banda should swear, and then Banda, kneeling down, said: " On the night of the theft I saw
''those three accused [pointing out to them] running away from " the direction of the complainant's house. If what I say is not the " truth, within seven days let me be struck with lightning: let " me die."
The accused said they wore satisfied, and the Kachcheri Muhandiram reported to the Court..
The Magistrate thinks this was regular under the Ordinance No. 0 of 1895, section 9, and he holds that the oath of Banda must be held to be conclusive.
I am not of the same opinion. I think that the performance vitiates the whole proceedings. Certainly, it is in no way conclusive.
The 9th section of the Oaths Ordinance provides that " if in any " judicial proceeding of a criminal nature the accused person desires " that any witness for the prosecution shall make any such oath " or affirmation, the Court may, if it thinks fit, ask such witness or " cause him to be asked whether or not he will make the oath or '' affirmation." Such oath or affirmation refers to the 8th section. That is an oath or solemn affirmation in any form common amongst or held binding by persons of the race or persuasion to which he belongs and not repugnant to justice or decency.
The Magistrate has omitted to st
