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Present: Jayewardene A.J.
BINDUWA v. ’ SIRIYA.211—P. C. Kandy, 17,806.
' Evidence—Previous statement by witness—Contradicted by evidence inCourt—Evidence Ordinance, s. 160 (3)—Criminal Procedure Code,s. 122 (3).
A previous statement made., by a fitness, which he admits to betrue, but which is contradicted by his evidence in Court, cannot beused as substantive cvidenco against the accused.
Rex v. Charles Percra 1 followed.
HJ3 accused was convicted of causing hurt to the complainant: With a knife, under secMon 315 of the Penal Code. In their
statements to the Korala the complainant and his witnesses statedthat the accused had deliberately stabbed the complainant in thecourse, of a quarrel. But in Court the complainant attempted ;tomake, out that the injury was caused accidentally. When thestatement recorded by the Korala- was read out to him- the com-plainant admitted that- it contained the truth. Other witnesses:were called, and they also stated that the injury was caused accident-ally.. Then the Korala gave evidence and produced hi6 notes. Onhis evidence the learned Police Magistrate convicted the accused.
S. W. E. Dias Bandaranaike, for accused, appellant.
May 13, 1926. Jayewardene A.J.—
This case.raises the question of the admissibility in evidence of aformer statement which the person who made it admits to be true,but which is contradicted by the evidence given by him in Court.
In this case the accused was charged with causing hurt to thecomplainant with a knife, an offence punishable under section 315of the Penal Code. He was convicted and sentenced to undergotwo months' rigorous imprisonment. In their statements to thepolice officers, among whom was the Korala of the district, thecomplainant and his witnesses ha-cl stated the accused haddeliberately stabbed the complainant in the course of a quarrelwhibh followed ; a game of cards. The complainant had himselfbitten the accused's nose in the struggle. But in Court the parties',who are relations, attempted lo make out that the injury was causedaccidentally. The complainant said he asked the accused for :apiece out of an nrecanut which he was peeling at the time. Accuse^
1 3 S. C. D. 67.
slipped, and tried to save himself by catching hold of the complainant.The knife just caught his ami. He also said that he could not .saythat the accused voluntarily stabbed him and that he got cut- in thestruggle. In cross-examination he added that the accused did notdeliberately seek to injure him. With regard to the statement madeby him* to the Korala he said he was examined by the Korala thirteen' days after the incident, that he signed the statement made to theKorala, which was in English, and did not know exactly what1 the Korala wrote down. In re-examination the statement recorded bythe Korala was read out to the witness. That statement- wasas follows: —
On Januaiy 25, at about 9 a.m., I, with accused, KondedeniyeGedara Tikiriya, and Ukkuwa played cards, but not forstakes. Witness, Ukkuwa, shuffled the pack of cardsand divided the leaves to me. He put into my heap one cardextra. I suggested to divide the pack of cards again.The accused did not agree with my suggestion. I refusedto take part in the play. The accused abused me in dirtylanguage. I also insulted him. He got up and caught mybody. He stabbed me with a knife. Witnesses, Ukkuwaand Siriya, caught the accused and stopped him. I was atthe hospital for four* days. Binduwa Vidane came to thespot. He took the accused's knife into his hand. OtherVidane recorded the statements and sent me down to thehospital.’*
. With, regard to tins statement the complainant said:” 1 admit
. the Korala just now read out the statement I made to him. It was. translated to me, and I heard it. I admit it is what I told theKorala, and that it is the truth.” Several witnesses who werepresent when the complainant received his injury were called, andthey also stated that the injury was' caused accidentally and sup-ported the complainant’s evidence as given in Court. The Koralaalso gave evidence and produced his notes. On this evidence thelearned Magistrate has convicted the accused.
It is contended for the accused that there is no legal evidence onwhich a conviction can be based. I think it is clear that- the Magis-trate has based his finding on the admission of the complainant thatthe statement he made to the Korala was true. I entirely agreewith the Magistrate in thinking that the story narrated by thecomplainant and his witnesses in Court is untrue, and that thestatement made to the Korala probably contains the truth. Butcan a conviction be based on a statement of a witness made to thepolice officer or other person which he admits is true, but which isinconsistent with his evidence given in Court? Under our EvidenceOrdinance, a former statement made , by a witness, whether writtenor verbal, can be used for the purpose of contradicting a witness and28/12
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thereby impeaching his credit (section 155 (3)) or of corroboratingthe testimony of the witness (section 157), and under section 122 (3)of the Criminal Procedure Code, if the statement is not the firstcomplaint of the commission of an offence, a statement made by anyperson to a police officer or an Inquirer in the course of an investi-gation under Chapter XII. cannot be used otherwise than to provethat a witness made a different statement at a different time. Theseappear to be the only purposes for which a former statement can beused under our law. Former statements cannot be used under ourlaw as substantive evidence (Rex v. Charles Perera (supra) ). In thepresent case the statement of the complainant to the Korala has beenused, not to contradict or corroborate evidence given in Court, but assubstantive evidence against the accused, because the witness whomade the statement says it is true. I do not think that such a useof a former statement is authorized by law. The question whethera former statement is true or false does not arise in a case like this,and it seems to me doubtful whether a Court can ascertain from awitness whether such a statement is true or not for the purpose ofutilizing it os evidence in the case. It would, of course, be differentif the witness repeats on oath what he had said in his former state-ment. Further, the Korala appears to .have been acting in thismatter as an Inquirer under Chapter XII. of the Criminal ProcedureCode, as he says he held the preliminary inquiry into the case. Ifst>, then section 122 (3) prohibits the use of a statement made to anInquirer in the course of an investigation otherwise than to provechat a witness made a different statement at a different time or torefresh the memory of the person recording it.
In the circumstances, I do not think that the statement can beused as substantive evidence against the accused. If this statementis excluded, there is no legal evidence to prove that the accused: voluntarily caused hurt to the complainant, and the convictionmust be set aside. I do so, however, with considerable reluctance.The appeal is allowed.
BINDUWA v. SIRIYA