1946 Present : Dias J. and Nagalingam A.J.

THE KING v. VAVUNIYAM.

113-D.C. (Criminal) Vavuniya, 109/19,441.

Evidence - Hearsay- things said or done by conspirator in reference to common design- Admissibility-Evidence Ordinance, s.10.

The charge against the appellant was that he used as genuine a forged permit which purported to authorize him to transport paddy. The evidence established that there was a conspiracy to smuggle paddy and that the parties concerned were the appellant and two others, one of whom, P, was found by the police transporting some bags of paddy. When p was asked to produce his permit he produced the forged permit in question. The police then took P with the permit to the Kachcheri. At the Kachcheri, when he was requested to point out the person who gave him the permit, P was alleged to have pointed out the appellant. Held, that the evidence alleging that P pointed out the appellant section 10 of the Evidence Ordinance, even though P, when he gave evidence, denied that he pointed out the appellant.

APPEAL against a conviction from the District Court, Vavuniya.

G. E Chitty ( with him F. W. Obeyesekere), for the first accused appellant.

J. A. P. Cherubim, C.C. , for the Attorney-General.

Cur. adv. vult.

November 26, 1946.DIAS J.-

The appellant and one Muttu Seevaratnam were charged on an indictment containing four counts as follows:-

1. The appellant alone was charged under sections 457 and 459 of the Penal Code with having between January 12, 1944, and April 26,1944, fraudulently or dishonestly used as genuine a document forged for the purpose of cheating, namely the document P1 which is an application to the Assistant Government , Agent , Vavuniya, for the removal of paddy purporting to have been signed by one A. Sabapathy.

2. The second accused, Muttu Seevaratnam was charged with the abetment of the above offence.

3. The appellant was charged under sections 457 and 459 of the Penal Code with having on or about April 24,1944 , fraudulently or dishonestly used as genuine a document forged for the purpose of cheating, namely, the document P 2 which purported to be a permit No.078152 dated April 24,1944, purporting to have been issued by the Deputy Food Controller, Mr. V. Kumaraswamy, in Favour of the second accused authorizing him to transport thirty-six bushels of paddy.

4. The second accused was charged with the abetment of the above offence.

The District Judge acquitted the appellant on count I and the second accused on counts 2 and 4. The appellant was convicted on count 3 and sentenced to undergo a term of six months rigorous imprisonment. From that conviction the appellant appeals.

The charge against the appellant on the third court is based entirely on circumstantial evidence. The question I have to decide is whether the relevant and admissible facts which have been established at the trial are only consistent which the guilt of the appellant and are inconsistent with any reasonable hypothesis of his innocence having regard to the ingredients of the offence which the crown had to establish beyond all reasonable doubt.

In order to prevent the smuggling of rice from the Vavuniya District a Food Control Department was attached to the Vavuniya Kachcheri. Mr. V. Kumaraswamy whose signature on the permit P 2 is alleged to have been forged was the Assistant Food controller. The evidence establishes the following facts:- The second accused, Muttu Seevaratnam and the witness Muttu Ponnambalam are brothers. The application P 1 was signed in blank by the second accused. It is dated February 16, 1944 , at Kerudavil in the Jaffna District. It bears an endorsement addressed to the Assistant Government Agent (Emergency), Jaffna from the "D. R. O " giving certain details. It is quite clear on the evidence that the application P 1 was not received at the Vavuniya Kachcheri either by post from Jaffna or delivered by hand in the ordinary