1927 Present : Dalton J.

 WEERASINGHE v. DEONIS.

698-P. C, Galle, 28,142.

Forest Ordinance, 1907-Charge under section 21 (1)-Evidence of similar offence-Admissibility-Evidence Ordinance, s. 167.

In a prosecution under the Forest Ordinance, evidence that the accused had been previously convicted of a similar offence is inadmissible.

APPEAL from a conviction under section 21 (1) of the Forest Ordinance of unlawfully and without the permission of the Government Agent clearing up Crown land. The defence of the accused was that he was an employee of a man named Jayasekere who, so far as he was aware, was the owner of the land. Evidence was then led on behalf of the Crown to show that Jayasekere had made claims on previous occasions on other lands and had been prosecuted and convicted for those acts. It was also proved that in a case, in which Jayasekere was convicted, the appellant himself was an accused party. Despite objection the Police Magistrate admitted the evidence and convicted the accused.

 

January 28, 1927. DALTON J.-

This is a case arising under the Forest Ordinance of 1907. The appellant has been convicted on a charge of unlawfully and without the permission of the Government Agent, clearing and breaking up the soil of Puwakgahahena, which is a land at the disposal of the Brown and not included in a reserved or village forest. That charge is laid under the provisions of section 21 (1) of the Ordinance under that section power is also given to the Governor in Council to make rules with respect to any forest or any particular forest. The material rule in question in this case is the first rule of the rules framed for forests in the Government Gazette of July 18, 1913. That rule is in the following terms: -

"No land at the disposal of the Crown shall be cleared for chena cultivation without the permit of the Government Agent of the Province, or the Assistant Government Agent of a district of the Province for his district."

The accused was fined Rs. 15. Certain grounds of appeal were proposed to be argued by Mr. de Zoysa on his behalf, but it is clear that only the fourth ground can be argued that is a matter of law which is duly certified in the Petition of Appeal by a Proctor of the Supreme Court. That ground is to the effect that evidence has been wrongly admitted, which evidence influenced the judgment of the Magistrate so as to cause the Magistrate to convict the accused. The defence of the accused in respect of his action is that he was the employee of a man named Jayasekere, who so far as he was aware was the owner of the land in question. Evidence was thereupon led on behalf of the prosecution to show that Jayasekere had made various claims on previous occasions to other Crown lands, and had been prosecuted, and had further been convicted for those acts. It was also proved by the prosecution that in the second case in which Jayasekere was convicted the appellant himself was an accused party. Then the Chief Clerk of the Police Court of Galle was called and produced records in the cases, which records went to show that Jayasekere and others had been convicted for offences similar to the offence charged, and that one of those others was the present appellant. Objection was taken to that evidence being led at the time, but the Magistrate apparently without going into the objection merely ruled in the following words "The evidence may go in." Therefore at the close of the case for the prosecution the learned Magistrate had admitted evidence to show that on a previous occasion the accused had been convicted of a similar offence. In supporting the admission of that evidence Crown Counsel has argued that the evidence is admissible in view of the defence, for the purpose of showing the state of mind of the accused in the present case that inasmuch as he had previously

been convicted of clearing Crown land together with Jayasekere, that that