1931

Present: Maartensz A.J.

RAJAPAKSE v. SILVA.

184-P. C. Colombo, 23,874.

Charge-Particulars to vague-Period of time at which offence was committed- Irregularity-Criminal Procedure.

The accused was charged with causing hurt to a girl by beating her with a cane during the month of January, but the evidence tended to establish that she had similarly caused hurt during a course of seven months.

Held, that the conviction was irregular as the evidence was not confined to the point of time specified in the charge.

APPEAL from a conviction by the Police Magistrate of Colombo.

H. V. Perera (with him de Jong), for accused, appellant.

May 13,1931. MAARTENSZ A.J.-

The accused-appellant in this case, a Sinhalese lady, was charged (1) with causing hurt to a servant girl about 10 years old named Lizzie Nona " on or about the month of January, 1931 ", by burning her with a candle, and (2) with causing hurt to the girl by beating her with a stick and a cane at the same time and place. She was acquitted on the first count and convicted on the second and sentenced to three months' rigorous imprisonment.

The facts of the case are as follows :- The girl was placed in the accused's employ about July or August, 1930. On February 5, 1931, her mother went to take her back, and on her request being refused informed the police at the Pettah. A police constable was sent with the mother and after some demur the child was given up. The police constable took the child and mother to the Police Station. After he had made an entry- I take it that the child has been restored to her mother-the woman complained that the child had been assaulted and burnt. Lizzie Nona then made a statement to the effect that the accused caned her even for a simple mistake and burnt her mouth with a candle. She was examined by the Judicial Medical Officer the same day. He found circular contusions on various parts of her body, a circular ulcer on the left side of the roof of the mouth, and 37 longitudinal scars on the face, chest, back, buttocks, and thighs.

The girl's evidence is that the scar on her mouth was caused by a lighted candle being forced into her mouth. She enlarged on this by saying that it was relit and put into her mouth five or six times and that the wax fell upwards. This was her evidence on February 13. There can be no doubt that this is a gross falsehood, for if a lighted candle had been introduced into her mouth in the way described by her she would not have escaped with a single ulcer, nor could the

ulcer have been caused by the hot wax of the candle, for the ulcer was in the roof of the mouth and the wax could not possibly have dripped upwards.

Apart from the inherent improbability of the story there is the fact that on the first day she gave evidence, on February 10, she said that the injury to her mouth was caused by medicine she had applied for a toothache, and the doctor was of opinion that the ulcer might have been caused by a drop of creosote.

The Magistrate very rightly came to the conclusion that the accused should not be convicted on this evidence on the charge of having burnt Lizzie Nona, and acquitted her.

As regards the second charge on which she was convicted it was contended that the accused had been prejudiced by the vague charge framed by the Magistrate and by the admission in evidence of hurt caused to Lizzie Nona by caning her during the whole period she was in the accused's employ, which, it was argued prejudiced the Magistrate against the accused. In support of this contention I was referred to two cases.

In the first case, Inspector of Police, Ambalangoda v. Fernando [1 (1919) 6 C. W. R. 296.] the accused was charged with selling rice at his boutique on July 7, 1919, at Rs. 35 per bag in contravention of the order of the Deputy Food Controller fixing the price at Rs. 22 o 27. The charge did not specify a particular sale nor did it give the name of any pu