HOWARD C.J.—The King. v. Kadirgaman.
[Court of Criminal Appeal.]
1940 Present : Howard C.J., Moseley S.P.J. and Wijeyewardene J.
THE KING v. KADIRGAMAN et al.
1—M. C. Jaffna, 6,734.
Evidence—Contradiction of witness by deposition in Magistrate’s Court—Proofof deposition—Crown’s right of reply—Evidence Ordinance, s. 80,Criminal Procedure Code, ss. 237 (2) and 296 (2).
Where a witness is asked at a trial before the Supreme Court whetherhe made a particular statement in the lower Court his reply must beaccepted unless the record of the case is produced to contradict him.
The deposition of a witness cannot be used in evidence without formalproof.
The production in evidence on behalf of the accused of the depositionof a witness gives the Crown the right of reply.
The evidence by a witness of a threat, to kill him if he continued .togive evidence, uttered by the accused in the course of the trial isadmissible.%
PPEAL from a conviction for abetment of an attempt to commitculpable homicide not amounting to murder at the Second Northern
J. E. M. Obeyesekere, for appellant.
H. T. Gunasekera, C.C., for the Crown.
Cur. adv. vult.
September 9, 1940. Howard C.J.—
This is an appeal by the second accused who was convicted of abettingthe attempt to commit homicide not amounting to murder of oneSinnapodian Velupillai, which offence was committed in consequence ofsuch abetment and of thereby committing an offence punishable undersections 300 and 102 of the Penal Code. After conviction the appellantwas sentenced by the learned Judge to five years’ rigorous imprisonment.The main ground of appeal submitted on behalf of the appellant was
HOWARD C.J.—The King v. Kadirgaman,
that the evidence did not establish the offence of abetment. Under.section 100 of the Penal Code a person abets the doing of a thing who—
instigates any person to do that thing; or
engages in any conspiracy for- the doing of that thing; or
intentionally aids, by any act or illegal omission, the doing of that
Section 102 provides that “ whoever abets any offence shall, if the actabetted is committed in consequence of the abetment, and no expressprovision is made by this Court for the punishment of such abetment, bepunished with the punishment provided for the offence
The evidence of the injured man, Velupillai, -was to the following-effect:—On the previous day he met the two accused and a man calledNannian Kandan about 6 p.m; on the road close to the house of theappellant’s brother. Velupillai states that he was going along the roadsinging when the first accused said: “You fellow, why are you singingalong the road. I will break your teeth ”. The appellant said : “ Youshould not come this way singing like this ”. Velupillai said: “ Why, itis I who sang ”; on which the appellant replied “ Let us see when you comesinging hereafter ”. About 7 p.m. the following day Velupillai went tothe boutique of Thambiah accompanied by a boy called Rasiah. Whilstthere Nannian Kandan spoke to him and asked him to accompany him.He walked some distance with Nannian, Rasiah being fifteen yards behindholding a hurricane lamp. The two accused were standing near theVyrava Temple. The appellant seized him round the body whilst thefirst accused gave him a blow on the head with an iron rod. Velupillaifurther states that he was pushed by the appellant, given a blow on thenape of the neck by Kandan and then fell down and lost consciousnesswhich was not regained until he had been in hospital.
Medical examination at the hospital indicated a contused wound on theleft side of the head with fracture of the bone. The injured man’s lifewas in danger for a week and the injury was consistent with its beingcaused by an iron rod.
The evidence of Velupillai is corroborated by the boy Rasiah whostates that the appellant held Velupillai from a side pinning his arms.The first accused then struck Velupillai with a club or an iron rod, whilstthe appellant pushed him and the third man gave him a blow on the napeof his neck with a club.
We agree that on this evidence it would not be possible to hold thatthe appellant instigated the first accused to attempt the murder ofVelupillai. On the other hand there was evidence oh which the Jurycould find that the case came within paragraph (2) and (3) of section 100.The act of the appellant in holding Velupillai and pinning his arms directlycontributed to the commission of the offence by the first accused. More-over there was evidence that Velupillai was lured by the decoy, NannianKandan, to the place where the assault was committed. Nagamuttu,the mother of Velupillai, also testified to events that took place on theprevious day which clearly indicated the intention of the two accused todo Velupillai an injury. There is thus evidence that the first accused,the appellant and Kandan were acting in concert. The act of each ofthem was therefore an intentional aid in prosecution of the common
HOWARD C.J.—The King v. Kadirgaman.
object. This is not a case of mere presence at the scene of a crime.From the nature and effect of the facility given by the appellant hisintentions must be presumed.
It has also been contended on behalf of the appellant that, even if theevidence implicating the appellant indicated that abetment of attemptedmurder had been committed, it should not have been accepted by theJury inasmuch as it depended on the testimony of Velupillai alone. Inthis connection reference was made, to that part of the learned Judge’scharge in which he directed the jury that they could infer that Rasiahwas not an eye-witness, or, if he was an eye-witness, he was not ableto identify the assailants. The question of Velupillai’s credibility was,however, left for the jury to decide and if he impressed them as a witnessof truth they were entitled to act on his evidence alone.
Counsel for the appellant also complained that in the learned Judge’scharge to the jury he made two misstatements of fact. He informedthe jury (a) that the blow was dealt with an iron rod and (b) that but formedical aid Velupillai would have died. Although these statementswere not absolutely correct, Velupillai did state that an iron rod was usedand the medical evidence was to the effect that Velupillai’s life was indanger. We are of opinion that these statements even if not strictlyaccurate did not prejudice the defence of the appellant.
Reference was also made to what is described as an “ unfortunateincident ”. Rasiah on being called upon to resume his evidence onJuly 9, 1940, stated as follows : —
“ I am afraid to give evidence any further because when the accusedwere being brought to Court this morning the second accused threatenedto kill me if I gave evidence ”.
The learned Judge after giving both Counsel an opportunity of askingRasiah any question on this point saw them both in his Chambers. Onreturning to Court, Counsel for the defence put questions to Rasiahsuggesting that this allegation was not true. Rasiah however persistedthat he was speaking the truth and maintained that the threat was madein the presence of the Fiscal’s peon. The incident was closed by HisLordship in the following words : —
“ I do not think it is necessary to be afraid of this threat. Youcarry on ”.
Counsel for the appellant argued that the Judge assumed that thethreat was made and such an assumption must have had a prejudicialeffect on the mind of the Jury. Before making such an assumption hecontends that the Fiscal’s peon should have been questioned. We are ofopinion that there was nothing improper in Rasiah giving evidence of thisalleged threat which was relevant and admissible. It was open to thedefence to have rebutted it by calling the Fiscal’s peon. An applicationcould, moreover, have been made for the discharge of the jury. Insteadof doing this Counsel for the defence participated in the inquiry into thetruth of Rasiah’s allegation. In these circumstances we do not considerthat the appellant has suffered prejudice as the result of this incident.
The only remaining question for consideration relates to a matter ofsome general importance in regard to criminal trials in the Supreme
HOWARD CJ.—The King v. Kadirgaman.
Court. At an early stage in the hearing Counsel for the defence wishedto contradict what a witness had said in the lower Court. He wasinformed by the Judge that, if he asked what a witness said in the lowerCourt, he would be bound by his answer unless he produced the record inthe case to contradict the witness. Counsel was also informed that ifhe produced the deposition it would affect the order of speeches. Counselthen replied as follows : —
“ I am only concerned with the question whether I am entitled to
use this record to contradict a witness ”.
Later on Counsel for the defence informed the Court that he was puttingthe depositions in and was informed that it was not necessary to call theChief Clerk of the Magistrate’s Court to do so. At the close of the casefor the prosecution Counsel for the defence stated he did not propose tocall any evidence for the defence and that he would address the jury,formally putting in'the depositions which had been put to the witnesses.Counsel then read these depositions and addressed the jury. CrownCounsel then addressed the jury.
On this aspect of the case Counsel for the. appellant in this Court hasraised three contentions as follows : — (1) By reason of sections 237- (2) and296 (2) of the Criminal Procedure Code the final word with the jury isonly lost when evidence other than that of the person or persons chargedis called for the defence.
The depositions formed part of the “ record transmitted to theCourt of trial under section 165e of the Criminal Procedure Code and weretherefore under section 80 of the Evidence Ordinance admissible asevidence and in fact were admitted without formal production by awitness ;
The only evidence tendered by the defence in this case was thereforenot given by any “ person or persons ” and hence not within the meaningof this term as employed in these two provisions of the Criminal ProcedureCode.
If the argument of Counsel for the appellant that the depositions beingpart of the record are in evidence by reason of their transmission to theCourt of trial, it would follow that all other documents so transmittedwith the record are equally admissible. We cannot admit this contentioneven after taking into consideration the provisions of section 186 (2) of theCriminal Procedure Code which provides that every indictment shallcontain a list of the witnesses which the prosecution intends to call at thetrial and another list of all documents and things intended to be producedat the trial, which documents and things are herein called “ productions ”.The argument is, moreover, untenable when consideration is given tospecial provisions of the Criminal Procedure Code providing that in certaincircumstances normal and formal proof of documentary evidence isdispensed with. Thus in section 233 of the Criminal Procedure Code it isprovided that all statements of the accused recorded in the course of theinquiry in the Magistrate’s Court shall be put in and read in evidencebefore the close of the case for the prosecution. No similar provision,for the reception and reading in evidence of the deposition of any ordinarywitness taken in a Magisterial Court is to be found either in the CriminalProcedure Code or in the Evidence Ordinance. Hence if an accused
HOWARD C.J.—The King. v. Kadirgaman.
person desires to make use of such depositions under section 145 or 155of the Evidence Ordinance, we are of opinion that he must prove sudhdeposition and thereby such deposition becomes evidence given by or onhis behalf and allows Counsel for the prosecution the right of reply inaccordance with sections 237 (2) and 296 (2).
"The only point remaining for decision is the question as to the mannerof proof required by law of a deposition tendered by the defence in thecircumstances specified. It has been contended by Counsel for thedefendant that a deposition being a memorandum of the evidence of awitness given in a judicial proceeding can under section 80 of the EvidenceOrdinance be handed in by Counsel and thereby becomes evidencewithout formal proof. Formal production by a witness, so it is contended,is unnecessary. We are of opinion that section 80 does not go to theextent of rendering formal production unnecessary. It merely providesthat the Court shall make certain presumptions on the production of adocument to which the section applies. Those presumptions are asfollows: —;
That the document is genuine, that is to say in the case of a
deposition that it is a record of evidence given and that thesignature appended is that of the Judge or Magistrate by whomit purports to be signed ;
that any statements as to the circumstances under which the
document was taken purporting^ to be made by the personsigning are true. If it is stated that the deposition was readover to the witness it must be presumed that this is so ;
that the document was duly taken, that is to say that all the
conditions required by law have been fulfilled.
Section 80 allows these presumptions and on the strength of themdispenses with the necessity of proving by direct evidence what it wouldotherwise be necessary to prove. Thus in Queen Empress v. Viran *, itwas held that section 80 of the Indian Evidence Act which is similar tosection 80 of the Ceylon Evidence Ordinance merely gives legal sanctionto the maximum omnia praesumuntur rite esse acta with regard todocuments taken in the course of a judicial proceeding. In Reg. v.Shivya it was held that the fact that the accuracy of the record, thepresence of the Magistrate and the voluntary nature of a confession werestated on the face of the document, permitted the Court under section 80as to draw the presumption of their "having occurred and dispensed withtheir proof by direct evidence.
In Empress v. Zawar Rahman3, Counsel for the accused contended that_ hejwas entitled to read to the jury the depositions of witnesses takenbefore the committing Magistrate for the purpose of showing that theirevidence in the Sessions Court was contradictory to that given before theMagistrate, and he tendered those depositions after the case for theprosecution had closed. The Court composed of five Judges held that thecontention of Counsel for the accused was not correct and Henderson J.stated in his judgment that it seemed to him that until depositions in theCourt below are tendered and received in evidence or under section 288of the Code of Criminal Procedure are treated by the Presiding Judge as» /. L. R. 0 Mad'. 224.2 I. L. R. I Boxi. 2V1.3 I■ £. R. 31 Cal. 142.
Theobald v. Commissioner of Income Tax.
evidence they cannot be used as evidence in the case. Section 288 ofthe Indian Criminal Procedure Code is worded as follows : —
“The evidence of a witness duly recorded in the presence of theaccused under Chapter XVIII. may in the discretion of the presidingJudge, if such witness is produced and examined, be treated as evidencein the case for all purposes subject to the provisions of the IndianEvidence Act, 1872 ”.
This section enables the Judge to use a deposition as part of the evidencein the case for all purposes subject to the provisions of the Indian EvidenceAct. No formal proof is therefore required. A provision similar tosection 288 of the Indian Criminal Procedure Code is not to be found inthe Ceylon Criminal Procedure Code. In these circumstances we are ofopinion that, if the deposition of a witness is to be used as evidence, itmust be produced on the sworn evidence of a witness. This witness inproducing the document should having regard to the presumptionreferred to in section 80 of the Evidence Ordinance merely testify to thefact that it comes from proper custody. Hence any officer of the SupremeCourt connected with the custody of the record of the case will suffice forthis purpose.
From a perusal of the English cases of Regina v. Hallett1; Regina v.Riley and another"; Regina v. Wright*; and Regina i). Hearn it wouldappear that English law requires the proof of a deposition if the defenceproposes by such evidence to contradict the evidence of a witness. It isnot, however, necessary in such circumstances to call as a witness eitherthe Magistrate who took the deposition or his clerk.
For the reasons given in this judgment we are of opinion that the appealshould be dismissed.
THE KING v. KADIRGAMAN et al