514 SOERTSZ A.C.J.—Sub-Inspector of Police, Eheliyagoda v. Posathamy.
1939Present: Soertsz A.C.J.
SUB-INSPECTOR OF POLICE, EHELIYAGODA v. POSATHAMY.
173—M. C. Avissatoella, 19,480.
Causing evidence to disappear—Request made to persons not to identify theaccused—Elements of offence—Penal Code, s. 198.
Where the accused was alleged to have requested two persons to whomone P had sold some rubber and who, the accused thought, would beasked by the Police to identify the man who sold the rubber to them, tosay that they could not be sure that it was P who Sold the rubber tothem,—
Held, that the act of the accused did not amount to the offence ofcausing evidence to disappear with the intention of screening an offenderwithin the meaning of section 198 of the Penal Code.
^^PPEAL from a conviction by the Magistrate of AvissaweUa.
H. V. Perera, K.C. (with him C. V. Ranawake), for the accused,appellant.
D. Jansze, C.C., for the complainant, respondent.
May 24, 1939. Soertsz A.C.J.—
The accused in this case was convicted of the offence of havingattempted to cause evidence to disappear with the intention of screeningthe offender from legal punishment, knowing or having reason to believethat the said offender had committed offences of housebreaking, theft,and disposing of stolen property. It was alleged that the accusedcommitted this offence by requesting two persons to whom one Podi-mahatmaya alias Dingirimahatmaya had sold some rubber, and who,he thought, would be asked by the Police to indentify the man who soldthat rubber to them, to. say that they could not be sure that it wasDingirimahatmaya alias Podimahatmaya the alleged offender, who soldthat rubber to them on that day.
The accused was convicted and sentenced to one month’s rigorousimprisonment.
It is obvious that the conviction cannot stand. The offence contem-plated by section 198 is causing evidence already in existence todisappear. Assuming all the facts to be as stated by the prosecution,
Vaitilingam v. Volkart Bros.
the most that can be said against the acccused is that he attempted totamper with a probable source of evidence, or to put it in another way,he was trying to interfere with evidence in posse, and not to makeevidence ' in esse1 to appear. The two men had not given anyevidence in Court. Not that, I think, it matters if they had, for instance,given evidence-in-chief and were approached while they were awaitingcross-examination, for in that case, whatever else the offence of theaccused might have been, it is not the offence of causing evidence todisappear. What section 198 deals with and has in view is some presentobjective evidence. In Dr. Gout’s comment on the corresponding Indiansection 201, I find it stated, “the disappearance of evidence does notinclude disappearance of a witness who would have given evidence in theease …. It is here used in its primary sense as meaning anything that is likely to make the crime evident or manifest—in short, itmeans such facts as may probably lead to the proof of a crime. Aneyewitness is not such a fact, for the value of his evidence depends on hiscredibility ”.
In other words, my view is that section 198 deals chiefly with suchthings as the corpus delicti, instruments or weapons of offence, marks,stains and other relevant indications of the commission of an offence. Itmay conceivably extend to cases of causing evidence already given bywitnesses to disappear, for instance the evidence given by a witness whois dead or cannot be called, but whose evidence could have been readunder section 33 of the Evidence Act, but it certainly does not extend toa case like this.
I set aside the conviction and acquit the accused.
SUB- INSPECTOR OF POLICE, EHELIYAGODA v. POSATHAMY