( 188 )
Present: De Sampayo J.
MANUEL APPU v. PILORIS SINGHO et cl.595 to 597—P, O. Negombo, 25,354.
Counter cases—Agreement by parties and proctors to read evidence forprosecution in one case as evidence for defence in other case, andvice versflk
There was an encounter on the high road between the com-'plainant and the aocused, out of which two counter cases arose.
It was agrpod by the parties and their proctors that the evidencefor the prosecution in one case should be taken as the evidence forthe defence' in the other case, and vice versd, and the Magistrateafter trial dealt with the evidence in both cases m one judgment,and oonvieWSf' the accused and acquitted complainant.
Held, the proceedings were not irregular.
fJlHE facts appear from the judgment.
Zoysa, for accused, appellant.
July 11, 1S16. De Sampayo J.—
This appeal raises a paint of law as to admissibility of evidence.
There was an encounter on the high road between the complainant
( 180 )
and the accused, out of which two counter oases "arose. In thiscase the complainant charged the accused with theft and assault gAMrAY.(to which the Magistrateadded a charge of wrongful confinement),J*
and in the counter case, No. 25,855, the accused charged theManuel
complainant with theft of a bull. The two oases came on for trial Appu v.on the same day beforethe same Magistrate, and it was agreedsingho
by the parties and theirproctors, in order to save the trouble of
recording evidence twice over, that the evidence for the prosecutionin one case should be taken as the evidence for the defence in theother case, and vice versd. The proceedings, in fact, constitutedone trial, and the Magistrate dealt with the evidence on both sidesin one judgment, with the result that the complainant was acquittedof the charge made against him, and the accused were convicted onthe charge of wrongful confinement. It is objected that it wasirregular to admit against the aooused in this case the evidencegiven by them or. on their behalf in the other case, and Hanniappuv. Babappu1 is cited in support of the objection. The propositionthere laid down that “ no consent on the part of the accused or hisproctor can make depositions of witnesses taken in another * caselegal evidence in a criminal prosecution ” is, of course, quite accept-able. . The facts of that case, however, are not fully reported, thoughit appears that there, too, there were counter cases. Whether thecases were heard in the same way and under the same circumstancesas the present oases were does not appear.. No specific provisionof law has ben cited, and I am unable to regard the decision asgoverning this case. I fail to see on what principle the evidencegiven by and for the accused themselves, and considered by theMagistrate at their own request, oan be ruled out as inadmissible.
This is not a case of depositions falling under section 88 of the;
Evidence Ordinance, which requires certain conditions to exist forthe admission of the depositions in that sense, but it is evidencegiven practically in the same judicial proceeding and for thepudpose of defence against the very charge made by the complainant/though at the same time it was intended to support the countercharge as well. The evidence was taken in the presence of boththe parties, and with the same facilities of examination and cross-examination. The fact that the evidence was recorded in separatepaper books makes, in my opinion, no difference; the evidencefor both sides must, I think, be considered as a whole, and as oneentire body of evidence. If any prejudice was caused to the 'accusedby the nature of the proceedings, I might interfere without referenceto the soundness of the legal objection, but no such prejudice hasbeen or can be suggested as having occurred.
There is no good ground for interfering with the conviction- onits merits, and the appeal, is therefore dismissed.
J (JS85) 1 S. C. R. 120.
MANUEL APPU v. PILORIS SINGHO et al