1945 Present: Wijeyewardene J.

SIVANATHAN,

Appellant, and INSPECTOR OF POLICE,
SLAVE ISLAND, Respondent.

1,027-M. C. Colombo, 6,186.

Evidence-Of unsavoury nature-No ground for rejection where it is necessary.

Indecency of evidence is no objection to its being received where it i" necessary to the decision of a case.

APPEAL against a conviction by the Magistrate of Colombo.

Accused-appellant in person.

E. L. W. de Zoysa, CC., for the Attorney-General.

Cur. adv. vult.

September 25, 1945. WIJEYEWARDENE J.-

The accused was convicted on a charge of cheating one Ramabadaran in respect of a sum of Rs. 490 and sentenced to one year's rigorous imprisonment and two year's Police supervision. The accused has a bad record. He was sentenced to receive a number of cuts on four occasions after 1940 and was sent to the Maggona Reformatory for two years in 1943. These facts do not, of course, relieve a Court from the duty of examining the evidence in a case against the accused and ascertaining whether the particular charge preferred against him in that case is proved.

In view of the somewhat peculiar features of this case, I have read certain extracts from the Police Information Book in the possession of the Crown Counsel and an account book referred to in the evidence of Subarayar, a witness for the prosecution.

The accused, a young Tamil lad, gives his age as sixteen years. The Magistrate thinks that he is older. That may be so. His appearance, however, induced Ramabadaran to put his age even below 16 years. I find that in his complaint to the Police Ramabadaran described the accused as "a small boy aged thirteen years. . . . dressed in shorts and shirt .... and fair ".

The chief witness for the prosecution is Ramabadaran, a partner in a business called Vimto House at Slave Island. He is a young man of twenty-two years. He said that on June 21 the accused who was not known to him came to him at about 10.30 a.m. and offered to supply empty bottles. He agreed to buy ten gross at Rs. 49 per gross and advanced to him Rs. 490. The accused left with him as " security " two notices P1 and P2 sent by the Controller, Post Office Savings Bank, stating that two sums of money have been placed to the credit of the accused in that Bank. Ramabadaran added that the accused wanted a car to go to a place in Grandpass where the bottles were said to be kept, and he engaged a hiring car and the accused left in that car. Subarayar, the cashier, who gave his age as twenty-eight years said that he witnessed the payment of Rs. 490 and made an entry in his book. This book was not shown to the Police or produced before the Magistrate. I called for the book and examined it. The relevant entry in the book has been altered. The last two figures 9, 0, of 490 have been written clearly over some earlier figures like 5, 5. Moreover, all the three figures 4, 9, 0 appear to have been written in dark ink unlike the other entries. The entry itself does not refer to the accused though his name and address were available to Subarayar through P1. and P2. Iyappen, the driver of the car, said that the accused got down from the car at Grandpass and entered a " depot " at 12.30 p.m. Iyappen waited for the accused

till 3.30 p.m. and, as the accused did not come back from the depot he returned to Vimto House and reported the disappearance of the accused to Ramabadaran who made a complaint that day at the Slave Island Police Station only at 7.30 p.m. Subarayar and Iyappen made their statements to the Police on the day after the incident.

The accused gave evidence that he went that morning to Vimto House and was drinking some Vimto when Ramabadaran came up to him and tried to enter into a conversation with him. The accused stated " Ramabadaran had his hand over my trousers and asked me whether I could work there. I declined. He wanted me to wait there for a few hours and then go away. I did n