Vnrioi' v. 1'olive.
1946Present: Cannon J.ATTORNEY-GENERAL, Appellant, and VLSUVALINGAM,Respondent.
352—M. C. Kayts, 6,996.
EvUtence—Cmi.tradiclio/as of witnesses- —Jjuly of Court to distinguish beiioeen7iuUeriul and immaterial contrail id ions.
.Before the evidence of it. witness is rejected on the ground of contradic-tions it is very important that the tribunal should direct its mind as towliat contradictions matter and what do not and that the witnessshould be givon an opportunity of explaining those that matter.
PPEAL against an order of acquittal entered by the Magistrate ofKayts.
J. (}. T. Weeraralne, C.C., for the complainant, appellant.
S. y. Rajaratuain (with him .S'. P. M. Rajendraiib), for the aceu .cd,respondent.
May 24, 1940, Oankxpn J.—
lit this ease the complainant, a. woman, charged the accused, a manwith causing her grievous hurt by fracturing three of her ribs with thehandle of an axe.
CANNON J.—Altome.y-Oenr.raf «. VimtvaHngatn.
For the prosecution two eye-witnesses and two medical witnesses gaveevidence. The eye-witnesses were tho complainant herself and herdaughter aged ten. They stated that the complainant was draggedby the accused to a tree to which she was tied and that the accused hither on the bddy a number of times with the handle of an axe. On thesame day Dr. Chelliah examined the complainant and found on her thefollowing injuries :—(1) a contusion on the back of the left chest;(2) a contusion on her left shoulder blade and (3) an abrasion on herright chest. After three days in Jaffna hospital she left. Two dayslater she went to Dr. Ponniah complaining of pain and he decided thatan X’ray examination was advisable. X’ray examination revealedthat her 8th, 9th and 10th ribs were fractured oft the back of the leftside of the chest. It requires no acute powers of reasoning to understandthat the strong probabilities are that the blows which caused the con-tusions on the back of the left chest which Dr. Chelliah found, alsocaused the fractures of the ribs, and there is the evidence of the complain-ant and her daughter that the accused hit her on the body with the handleof an axe. But the Magistrate, without calling upon the accused for hisdefence, acquitted him. Therefore, it is not surprising that the Attorney-General asks this Court to intervene.
The Magistrate in his reasons states that the evidence of the com-plainant is contradicted by the daughter. Now, it is conceded byMr. Rajendram that there is only one contradiction in the evidence ofthese two witnesses. That contradiction relates to something whichhappened after the assault. The complainant said that after the accusedhad gone away she was taken to the hospital by one Sinnadurai whomher child went to bring. The daughter in her evidence stated, “ He camethere having heard about this. I did not go to tell him ”. It is veryimportant that a tribunal should direct its mind as to what contradic-tions matter and what do not. This contradiction seems to have verylittle bearing on the question whether the accused assaulted the com-plainant, and had the witnesses been questioned about it, the mattermight have been explained.
The Magistrate in his judgment further states, “ According to complain-ant’s evidence recorded as far back as May 31, 1945, she makes mentionof accused’s brother only being at the scene and released her ”. Now,on May 31, the complainant gave evidence ; but the record shows thatthat was evidence tendered merely for the purpose of enabling anotherMagistrate to formulate a charge and was, therefore, not necessarilyexhaustive. After this evidence was given the accused was charged andthe trial fixed for October 11, on which date the hearing was continuedby the Magistrate whose reasons are now being examined. On thislatter date the complainant, when she gave evidence, stated in cross-examination that the accused’s family were present at the time of theassault. Apparently the Magistrate thinks that because she did notmention this in her evidence given in May that she must be deliberatelytolling lies, He further-states that the complainant’s evidence is notsupported by the medical evidence given by Dr. Chelliah. I havealready dealt with that point. Dr. Chelliah’s evidence is clearly not
CANNON J.—Attorney-General v. VisuveUwgam.
inconsistent with the evidence of Dr. Ponniah and that of the complain-ant. “ It is not possible ” the Magistrate goes on “ to say whetherthis accused caused the fracture of the ribs on May 10, 1945. When shewas examined on May 15, 1645, by the J. M. O., Jaffna, under X’ray afracture of the ribs was revealed. She had been discharged from thePungudutivu hospital on May 12 ”. If the suggestion here is that thecomplainant had had her ribs fractured between May 12 and 15, I canonly say that there is no evidence to support it nor was it suggested in thecross-examination of the complainant, a cross-examination which did notreveal what the nature of the defence was.
This was clearly a case in which the dofoncc should have been calledupon.
I set aside the order of acquittal and send the case back for re-trialbefore another Magistrate.
Acquittal set aside.
ATTONEY-GENERAL ,Appellant , and VISUVALINGAM, Respondent