( 400 )
Present: Bertram C.J.
POLICE VIDANE, KANDANA, v. AMABIS APPU et al662—P. C. Panadwre, 79,458.
Keeping out of Court accused who desires to give evidence—CriminalProcedure Code, 8. 297.—Evidence Ordinance, s. 120—Evidence ofone accused inadmissible against co-accused.
An accused person who desires to give evidence cannot beordered out of Court when the other witnesses are giving evidence.The statement of one accused is inadmissible as against aco-accused.
‘J’HE facts appear from the judgment.
H. V. Perera, for first accused, appellant.
B. Jayetilleke, for second accused, appellant.
Dias, C.C., appeared as amicus curiae.
November 9, 1923. Bertram C.J.—
This is a very singular case. The conviction cannot stand againsteither accused, because the learned Magistrate has unfortunatelymade a fatal mistake in regard^ to each one of them. The twoaccused are charged with causing hurt to a Police Vidane by shootinghim with, a gun. The only evidence against them was that one mansaw them going to the place where the Police Vidane was shot, thefirst accused carrying a gun, and that another man saw them comingaway. But the second accused made a statement which implicatedthe first. The learned Magistrate was obviously much impressed bythe statement, because in language which is, perhaps, unnecessarilypicturesque he says: “ In this statement he had almost made aconfession as regards himself, and had implicated most damnablythe first accused.” After that remark by the Magistrate, it isimpossible to say that the statement of the second accused, which hewas by law precluded from taking into account (see B. v. UkkuBanda1) did not decisively influence his mind against the first.The conviction of the first accused must, therefore, be quashed.
With regard to the second accused, the Magistrate’s error isequally fatal. At a certain stage in the proceedings it was intimatedthat the second accused intended to give evidence. The learnedMagistrate thereupon ordered him out of Court as a witness in thecase. His proctor would appear to have consented to this course,but apparently thought that, when the accused person came baekinto Court to give evidence, all the evidence previously taken againsthim in his absence would be read. The Magistrate refused to allow1 (1923) 24 N. L. R. 327.
this, and thereupon the proctor discontinued his defence. Thisappears to be a misapprehension on the part of both the learnedMagistrate and the proctor. The learned Magistrate justifies his pro-cedure by a reference to section 120 (4) of the Evidence Ordinance,which declares that the accused may give evidence in the samemanner and with the like effect and consequences as any otherwitness. He says that one of the consequences of a man being awitness is that he must go out of Court while the other witnessesare giving their evidence, and he considers that section 297 of theCriminal Procedure Code, which requires that, generally speaking,all evidence should be taken in the presence of the accused, mustbe read subject to the above-cited requirement. If this propositionwere right, every accused would have to decide at the beginningof the trial whether he would give evidence, and if he decided toexercise this privilege conferred upon him by the law, the trialwould have to take place in his absence. If there is any apparentconflict between the two enactments, the express provision of theCriminal Procedure Code must prevail. The learned Magistrateseems to have thought that he was acting in accordance with apractice sanctioned by English procedure. But here he is undera misapprehension. There is no authority for the procedure whichhe adopted. If authority were required in the other direction, itmay be found in the case of Peries v. Per era} where my predecessor.Sir Alexander Wood Renton, discussed the question with hiscustomary force. The error, therefore, was fatal, and the con-viction of the second accused cannot 3tand also.
The only question now is whether I should direct a new trial withnon-summary proceedings. Mr. Jayatilleke, however, has putbefore me very forcible considerations with regard to the facts,I think it highly unlikely that, if these two persons set out to shootat the Police Vidane and passed the first witness, who is a Vel-Vidane, on the way, they would have persisted in the attempt. Iagree also that it is very unlikely that, if they had carried out thiscriminal act they would have walked quietly away together.When they were noticed by the second witness, he does not seemto have observed any signs of perturbation. It is also very unlikelythat the second accused, who had no grudge against the PoliceVidane, would have set out with the first on this positively murder-ous errand, and would have accompanied him after he had carriedout his design. The fact of the case are ‘very tortuous and peculiar.It is involved in a very high degree of doubt, and I question, evenif the two witnesses who allege that they saw the two accused arebelieved, whether the evidence would be sufficient to justify aconviction. I would make no order, therefore, for further trial,and allow the appeal.
11 Bal. Notes of Cases 3
PoliceVidant,K and ana,v. Amaris