HOWARD C.J.—The King v. Dingiri Banda.
[Court of Criminal Appeal.]
1942Present: Howard C.J., Moseley S.P.J. and Hearne J.
THE KING v. DINGIRI BANDA.4—M. C. Kurunegala, 2,916.
Evidence—Clerk of Assize called to produce record of Magistrate’s proceed-ings—Evidence with regard to witnesses summoned to .prove alibi— •
Improper admission—Evidence Ordinance, s. 91.
The Clerk of Assize was called by the accused to prove certaininconsistencies between the evidence given by one of the witnesses for theprosecution at the trial as compared with the evidence tendered by'thatwitness at the Magisterial inquiry.
In cross-examination by Crown Counsel the witness proceeded tosay that according to the Magistrate’s record the accused wished certainwitnesses to be summoned to prove an alibi.
The defence of the accused was that he was acting under grave andsudden provocation. No comment was made by the learned Judgewith regard to- the alleged request of the accused to call witnesses toestablish an alibi. The Jury were not asked to disregard this evidence.
Held, that the Magistrate should have been called to give evidenceif it was desired to prove that the accused had said that the witnesseswere to be called to prove an alibi and that the evidence of the Clerk ofAssize on the point, which was improperly admitted, may have affectedthe verdict.
The Magistrate, in recording the words “ to prove an alibi ", has gonefurther than the duty imposed upon him by law, which was merely torecord whether the evidence to be tendered by the witnesses was asto fact or as to character.
ASE heard before a Judge and Jury at the Midland Circuit.
F. Guneratne, for the appellant.
E. H. T. Gunasekera, C.C., for the Crown.
Cur. adv. vult.
March 31, 1942. Howard C.J.—
The only point that arises in this case is whether certain evidencewhich was tendered by Mr. Sinnatamby, Clerk of Assize, was properlyadmitted. Mr. Sinnatamby was called by the appellant to prove certain
HOWARD C.J.—The King v. Dingiri Banda.
inconsistencies between the evidence given by one of the witnesses for theprosecution at the trial as compared with the evidence tendered by thatwitness at the Magisterial inquiry. In cross-examination by CrownCounsel Mr. Sinnatamby was referred to the record of the proceedingsof the Magistrate’s Court in the case. He then proceeded to say thataccording to the Magistrate’s record the accused elected to be tried byan English-Speaking Jury and wished the following witnesses to be.summoned:Herath Mudiyanselage Podi Appuhamy of Waduwewa,
and G. K. William Silva of Waduwewa, to prove an alibi. The point istaken by Mr. Gunaratne that the alleged statement of the accused thatthese witnesses were to be called to prove an alibi has not been properlyproved. It is contended that if it was desired to prove this statement ofthe accused the Magistrate himself should have been called. Mr. Guna-sekera, on the other hand, maintains that it was the duty of the Magistrateto record the names of the witnesses and also whether they were witnessesto fact or witnesses to character. Having made that record, it wasadmissible, under section 91 of the Evidence Ordinance in view of the factthat it was the duty of the Magistrate to record this statement of theaccused.
It seems to us that the Magistrate in recording the words “ to provean alibi" has gone further than the duty imposed upon him by law.which was merely to record whether the evidence to be tendered by thewitnesses was as to fact or as to character. He has purported todistinguish the particular point on which evidence as to fact was to begiven. Moreover, it is not clear whether the Magistrate recorded thewords of the accused or merely his own opinion as to the nature of thetestimony the accused intended to call. In these circumstances, we areof opinion that, if it was desired to prove that the accused has said thatthe witnesses were to be called to prove an alibi, the Magistrate shouldhave given evidence .himself as to that fact or someone who heard what-the accused had said should havg testified thereto. This evidence wastherefore improperly admitted.
No exception has been taken to the summing up of the learned Judge,particularly with regard to the question as to whether the accused wasacting under grave and sudden provocation. No comment was madeby the learned Judge, in the course of his unexceptionable charge, withregard to the alleged request of the accused to call witnesses to establishan alibi. The Jury were net asked to disregard this evidence. Thi?evidence: was before the Jury and it may be that they came to theconclusion that the defence of grays and sudden provocation was pytforward at the last moment and was therefore not bona fide. It isimpossible to say that this evidenc, which was not proved in accordancewith legal requirements, could not have affected the verdict of the Jury.In these circumstances, the conviction of the accused cannot be supported.The verdict of the Jury is set aside and there will be a fresh trial beforeanother Jury.
Verdict set aside.Fresh trial ordered.
THE KING v. DINGIRI BANDA