KOCH J.—Abdeen v. J. A. Perera.
1938Present: Koch J.
ABDEEN v. J. A. PERERA et al.
248 and 249—P. C. Negombo, 20,295.
Criminal procedure—Case and counter case—Evidence in one imported intothe other—Irregularity.
It is irregular for a Judge to import into a trial before him evidencewhich has been given in a counter case and permit himself to be influencedthereby.,
^^PPEAL from a conviction by the Police Magistrate of Negombo.
Cyril E. S. Perera, for accused, appellants.
E. H. T. Gunasekara,C.C., for Crown, respondent.
Cur. adv. vult.
June 22, 1938. Koch J.—
There were four accused in this case. The first accused was chargedunder section 316 of the Penal Code with having caused grievous hurt taone Marceline Perera by hitting him with a stone and fracturing his nasalbone and also under section 314 with having caused hurt to the saidMarceline Perera by striking him with a stone.
The second accused was charged under section 314 with voluntarilycausing hurt to one Eugin Nona by striking her with a club and a stone.Both the first and the second accused were further charged under section409_with committing mischief by causing .damage to the house of MarcelinePerera.
It is not necessary to state the charges against the third and fourthaccused as they were acquitted at the close of the case for the prosecutionfor insufficiency of evidence against them.
KOCH J.—Abdeen v. J. A. Perera.
The first and the second accused were duly called upon for their defence.The 1st accused did not give evidence on his own behalf but the secondaccused did. Two other witnesses were called, namely, Dr. T. S. Nairand B. Abdeen, the Inspector of Police, Negombo.
The Magistrate then proceeded to convict both accused, the first undersections 316 and 314, and the second under section 314. The firstaccused was sentenced to three weeks’ rigorous imprisonment undersection 316 and to 1 week’s rigorous imprisonment under section 314,the sentences to run consecutively; and the second accused was sentencedto pay a fine of Rs. 20 in default to two weeks’ rigorous imprisonment.
It would appear that the first accused had instituted a counter case inconnection with the incidents complained of in this one, and that thatcase was also fixed for trial on the same day as this. The first accusedhad given evidence in the counter case at some previous date. Thelearned Magistrate in giving his reasons for convicting the accused hasat various stages of his judgment made references to what the firstaccused stated in the counter-case and has compared that evidence withthe evidence given by the second accused in this case, and by doing sohas held that “it is impossible to reconcile the evidence of the secondaccused with that of the first accused related in the connected case overthe same incident ”. He also says that “ the second accused’s evidenceis a tissue of lies giving a different story to that of the first accused relatedin the connected case ”. He further comments on the fact that the firstaccused was not called to give evdence on his own behalf as he would havebeen confronted with the evidence he had given in the counter case.
It is clear therefore that the Magistrate has imported into this caseevidence which has been led in a counter-case and that that evidence hasmaterially contributed to his having rejected the defence. It would alsoappear from the petition of appeal that exception was taken by accused'sCounsel. to such a proceedng. Whether objection was taken or not, ithas been held by this Court in a series of decisions that it is highly irregularfor a Judge to import into a trial before him evidence which has been givenin a counter-case and thus permit himself to be influenced thereby—vide(1) Hamiappu v. Babappu1 (2) The Queen v. Tissera"; (3) Karthie v.Velupillai (4) Marikar v. Hanifa'.
It has also been held by this Court that a Judge is not permitted tocomment adversely on the failure of an accused to give evidence on hisown behalf.
Crown Counsel who appears for the respondent very frankly admitsthat he is unable to sustain the convictions owing to this serious irregu-larity and does not also press for a new trial.
I do not myself see why the appellants should be put to the expenseand anxiety of another trial. Had the Magistrate ignored the evidencein the counter-case and brought an unprejudiced mind to bear it is quitepossible that the story for the defence might have been accepted and theaccused acquitted. In these circumstances I will not order another trial.The convictions must be set aside and the accused acquitted.
'3 Tainb. 42.
*14 C. L. Rec. 202.
•IS. C. R. 120.2 1 N. L. R. 108.
ABDEEN v. J. A. PERERA et al