1934 Present: Maartensz A.J.

[FIRST WESTERN SESSIONS, 1934. ]

KING v. WICKREMASINGHE.

49-P. C. Colombo, 4,165.

    Joinder of charges-Three offences against three different persons-Evidence of similar acts-Criminal Procedure Code, s. 179-Evidence Act, s. 14.

Where an accused was charged with having committed three acts of indecency with three different persons within a period of twelve months,-

Held, that the inclusion of the charges against three different persons in the same indictment was not obnoxious to section 179 of the Criminal Procedure Code.

Held, further, that the evidence of similar acts committed by the accused on the persons mentioned in the indictment was inadmissible.

Held, also, that separate trials should not be ordered in such a case merely because of the possibility that a Judge or Jury might suspect each of them to be true.

THE accused was charged before the First Western Sessions of the J- Supreme Court with having committed three acts of gross indecency with three different boys within a period of twelve months.

E. H. T. Gunasekera, C.C., for the Crown.

S. W. R. Dias Bandaranayake (with him Rajakaruna), for accused.

March 7, 1934. MAARTENSZ A.J.-

The indictment in this case charged the accused with having committed three acts of gross indecency with three different boys within a period of twelve months.

The accused pleaded to the indictment; but before it was read to the Jury two objections Were taken to the indictment. It was contended that section 179 of the Criminal Procedure Code did not justify the indictment

 the offences were against different persons. Section 179 of our Code corresponds to section 234 of the Indian Code. A conflict of opinion in Indian as to whether the three offences must be committed against the same person has been met by an amendment of the section 234. The words " whether in respect of the same person or not" being inserted in the section after the word " offences ".

 With due deference to the Indian decisions to the contrary, I prefer to follow the decision of Wood Renton C.J. in the case of The King v. Senanayake 1[1 (1917) 80 N. L. R. 83.] where he held that section 179 of the Code did not require that the three offences with which the accused was charged should be against the same person. I respectfully agree that if that was the intention of the legislature it would have been provided for by the insertion of the words " against the same persons" in the section. In support of this view I would point out that these words are to be found in section 5 of the Larceny Act of 1881: a section in many respects similar to section 179 of the Code.

It was also argued that the joinder of the three charges would prejudice the accused as it would lead the Jury to suspect that each of them severally must be true. It was contended that this argument was accepted by Ennis A.C.J. in the case of The King v. Wijesinghe 2[ 2 (1919) 6 Ceylon Weekly Reporter 327.] Ennis A.C.J. no doubt refers to the argument in his judgment; but I am clearly of opinion that he acquitted the accused in that case because inadmissible evidence had been received and acted upon by the District Judge who tried and convicted him.

It was held by Ennis A.C.J. and Wood Renton C.J. in the cases referred to that it was always open to the Courts on the application of an accused person to direct separate trials. But I do not think separate trials should be ordered merely because of the possibility that a Judge or Jury might suspect each of them must be true. Such an argument could be addressed to this Court in every case in which three charges are combined at one trial in pursuance of the provisions of section 179 of the Code. And there would be no purpose in retaining the section in the Statute Book. In my judgment there must be more substantial grounds for directing separate trials than that contained in the argument I have dealt w