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Present: Shaw J.
THE KING v. KANDAPPU.67—D. C. (Critn.) Trincomalee, 103.
Admissibility of evidence given at Police Court inquiry by ' absentwitness—Evidence Ordinance, s. 33.
It is only inextremecases of delay or expensethat the personal
attendance of a'witnessshould be dispensed with,and the evidence
given by him before the committing Magistrate referred to.
rJ*HE facts appear from the judgment.
A. St. V. Jayewardenel for the appellant.
Grenier, G.C., for the Crown.
April 4, 1917. Shaw J.—
In this case the accused, who is a Police Headman, is convictedof an offence against section 194 read with 190 of the Penal Codefor having signed a certificate knowing the certificate to be false inamaterial point.Severalobjections are taken tothe proceedings.
The first is, that the conviction is in respect of anoffence which is
not charged in the indictment. I do not think that objection is asound .one. I think the count in the indictment under which theconviction has gone does charge the offence with which the accusedhas been convicted. It is true that it goes on to allege some furtherthing, but the first two lines of the count charging the accused with
signing a certificate knowing the certificate tc be false will cover theconviction which has been made. There is another objection whichseems to me to be of a more serious nature, that is, that the Judgeadmitted in evidence the depositions in the Police Court of a witness,Bawter, who was the second witness on the indictment. It appearsthat this witness was not bound over to appear and give evidenceat the trial, as he should have been under the provisions of the law.Accordingly, summons had to be issued for his attendance by theprosecution. He was a very important witness, being the personfor whom the accused had signed the certificate. Summons wasalso issued for his attendance by the defence, showing that theaccused was anxious that he should be present in Court. Theevidence of this witness was absolutely necessary for the purposeof obtaining a conviction, and the Judge himself in his judgmentsays that he could not have convicted on the evidence of the docu-ments had not certain facts been provided by the verbal evidenceof this witness, Bawter. The deposition before the Magistrate wasadmitted under section 83 of the Evidence Ordinance, which allows' depositions taken at an earlier stage of the judicial proceedings to beread in evidence when the witness is dead, or cannot be found, or isincapable to give evidence, or is got out of the way by the adverseparty, or if his presence cannot be obtained without an amount ofdelay or expense which, under the circumstances of the case, a Courtconsiders unreasonable. (The process server was called. It appearsthat the witness was supposed to be at Tamankaduwa, but that theprocess server was unable to get there owing to floods. It appearsthat a river near that place was in a flooded state, and the processserver could not get a boat. If he had been able to get a boat, hesays he could have got across. Instead of making any efforts toget round the flood by going by the river, or by procuring a boat orcanoe, the process server returns without any further attempt toserve the summons. It is quite clear from his evidence that thereason for his non-serving of summons and the non-appearance ofthe witness was due to the neglect of duty of the Magistrate notbinding him over to appear to give evidence in the District Court,and in the neglect of the process server in not taking more energeticmeasures to serve the summons. At the time of the trial it seemsto me that it was impossible to say that the presence of the witnesscould not be obtained without an amount of delay or expense wM°kwas unreasonable. The expenses would have been nothing toprocure the attendance of the witness at the subsequent sitting ofthe District Court, because the floods would have abated by thattime. The delay would only have been for some short period of amonth or so. I agree 'with the opinion expressed by Sir DouglasStraight in the case-reported in the Indian Law Reports, 2 AUahabad646, that it is only in extreme cases of delay or expense that theprovisions of section 33 should be brought into operation. It is
t 20 1
The Ki ng v.Kandtipp*
an important safeguard of the accused that the witnesses who speakto material facts against him should be present in Court and shouldbe seen by the Judge or jury who has to decide on the evidence, andit is important, in the interests of the prisoner, that such witnessesshould be, if desired by the accused, subjected to cross-examinationby counsel defending the prisoner. This is so especially in thiscountry, where accused are very often not represented' by counselin the lower Court, or, at any rate, are not represented by sucheminent lawyers as in the later stage of the proceedings. Thedeposition of this witness being, in my opinion, inadmissible underthe circumstances of this case, there was not sufficient evidence onwhich the accused could have been convicted. I, therefore, setaside the conviction appealed from, and I remit the case to theDistrict Court for re-trial after proper measures have been taken forthe purpose of procuring the attendance of the witness Rawter. »Inthe circumstances, as- the Judge has expressed a definite opinion inthis case on evidence which, in my opiniou, was inadmissible, it willbe better that the case should be heard before another District Judge.
THE KING v. KANDAPPU