SDOIETAMBY, J.—Per era v. Ja-ela Police
1959Present: Sinnetamby, J.6. A. PERERA, Appellant, and, J A-ELA POLICE, Respondent8. G. 158—M. C. Negontbo, 93374
Criminal procedure—Evidence recorded in the presence of the accused prior to framingof charge—Duty to recoil the witnesses at the trial—Criminal Procedure Code,ss. 148 (I) (6), 151 (1) proviso U, 152 (3), 187, 189 (2), 297, 425.
Evidence—Witness disbelieved in part—Can the rest of his evidence be acted upon f
Where a Magistrate records evidence in the presence of the accused after-service of summons on him and prior to framing of the charge, he should recallthe witnesses after the charge is framed, re-examine them and tender themfor cross-examination. Accordingly, a witness whose evidence is taken intoconsideration by the Magistrate in deciding to assume jurisdiction undersection 152 (3) of the Criminal Procedure Code must be tendered at the trialsfor cross-examination.
Before a Magistrate who rejects parts of the evidence of a witness can actupon certain other parts of it, there should be strong corroborative evidencein support of those other parts.
/APPEAL from a judgment of the Magistrate’s Court, Negombo.
S. B. Lehamge, for 2nd Accused-Appellant.
W. Paul, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
June 14, 1959. Sinnetamby, J.—
The Police, in this case, filed in Court a report under Section 148 (1)(&) charging the three accused with robbery, ■voluntarily causing grievous-hurt and with causing hurt in the course of robbery. The offences arepunishable under sections 380, 318 and 382 respectively of the PenalCode. The Magistrate issued summons on the accused.
The Magistrate could have, at this stage, before issuing summons, hadhe so desired, recorded some evidence in terms of proviso 2 of section
(1) of the Criminal Procedure Code. He, however, did not do so.On the day the summons was returnable the accused were present.The Magistrate then proceeded to record the evidence of the prosecutingInspector, presumably with a view to assuming jurisdiction under section
(3). In his evidence, the Inspector stated that Weerasinghe com-plained that he was assaulted by the three accused, robbed of a purse-containing Rs. 64, a driving licence, fountain pen and a wristlet watch
SINNETAMBY, J.—Perera v. Ja-ela Police
valued at Rs. 200. The "witness was not subjected to cross-examinationand the Magistrate, thereupon, assumed jurisdiction as AdditionalDistrict Judge.
Strictly speaking, if the Magistrate fails to record evidence undersection 151 (1) proviso (ii) before the issue of summons, once the accusedappears on a summons if it is a non-summary case, the Magistrate shouldtake non summary proceedings but if it is a summary case, he shouldproceed in the matter indicated in section 1S7 onwards. I can, however,see no valid objection to his recording some evidence in order to assumejurisdiction as Additional District Judge, though he may do so afterperusing any police reports that may have been submitted to Court.If he does record evidence it should, in my opinion, be evidence of wit-nesses to facts and not hearsay evidence of an Inspector who merelyrecorded the statement of such witnesses. Having recorded the evidence,the Magistrate is naturally affected by that evidence even in regard to theproceedings subsequent to the framing of the charge. Indeed it is aftera consideration of that evidence that he decides to assume jurisdictionunder section 152 (3). In this case, the Magistrate having assumedjurisdiction charged the accused in terms of the police plaint from acharge sheet. Thereafter, the prosecution led the evidence in supportof the charges but the Inspector of Police was not recalled nor was hetendered for cross-examination. It is to be noted that even in the easeof evidence recorded in the absence of the accused section 297 of theCriminal Procedure Code requires that such evidence should be at leastread over in the presence of the accused and the witness tendered forcross-examination. If that evidence is taken in the presence of the accusedsection 297 has no application. In the case of Isidor Fernando v. BoyPerera1 it was held that evidence recorded under section 187 (1) cannotbe utilised by the Magistrate by merely recalling the witnesses and ten-dering them for cross-examination. Their evidence must be recordedde novo after the charge has been framed. In the case of a witness whogives evidence in the presence of the accused the ordinary rules of evidenceas laid down in the Evidence Ordinance should he observed. Section138 of the Evidence Ordinance provides that every witness shall beexamined and then cross-examined if the adverse party so desires, videalso section 189 (2) of the Criminal Procedure Code. In the presentcase this was not done.
There is no doubt that prejudice would have been caused to theaccused by the Judge acting on the evidence of the witness who spokeon robbery by the accused of a purse, fountain pen, and a wristlet watch.It was suggested that only witnesses called at the trial, i.e., after the okargehad been framed, who need he tendered for cross-examination. I donot agree. To accede to that proposition it would mean that witnesseswhose evidence is recorded in the absence of the accused must undersection 297 of the Criminal Procedure Code be tendered for cross-examina-tion but witnesses whose evidence is recorded in the presence of theaccused need not be. The difficulty in the present case is caused by thefact that there is no express provision in the Code enabling a Magistrate
1 (1947) 48 N. L. B. 203.
262SINSTETAMBY, J.—Par era v. Ja-ela Police
to record evidence after the issue of summons and prior to the framingof the charge. If he does so, he should at least recall the witness andre-examine him. In this case the Magistrate did not do so. One canconceive of a similar situation arising where on a summary charge anaccused person is produced by the prosecutor otherwise than on a sum-mons or warrant and the Judge is obliged to record some evidence underthe provisions of section 151 (2). Before the amendment of the Codein 1938 there was express provision enabling the accused to cross-examinea witness who is so called. Now there is none.
How then should a Magistrate act when he finds himself in such asituation ? The only proper course for him to adopt is to recall the wit-nesses after the charge is framed, re-examine them and tender them forcross-examination. Otherwise, in the event of an appeal, I a-m of opinionthat the irregularity is not of a kind that can be regarded as cured bythe provisions of section 425 of the Code. The appeal in the presentcase must on this ground alone be allowed but it seems to me that on themerits too the learned Magistrate has eome to a wrong conclusion.
The injured man Weerasinghe in his evidence says that the 3rd accusedcame drunk with some others earlier in the day at about 7.00 p.m. andtried to assault him in his brother-in-law’s house. Subsequently, atabout 11.45 p.m. when he was coming home a van drove up and a partyof people from that van including the three accused began to assault him.In regard to the 1st accused, he said that he dealt a blow with a knifewhich he warded off but which had alighted on the left ear severing it.He then grappled with the 1st accused when the 2nd accused, a lad of 18years, brought a log from the car and struck him on the leg fracturing it.He says he was then taken in a passing jeep to the Police Station. The1st accused also had some injuries one of which according to the Doctorwas a lacerated wound inches long skin deep on the left thigh. Theinjured man Weerasinghe had a lacerated wound 1£ inches long acrossthe left ear. The Doctor expressed the view that the lacerated woundcould not have been caused by a knife for he says that it is a result ofa club blow. The complainant was unable to account for the injurieson the 1st accused. Two witnesses were called, namely, Aron Appuhamyand Albert Silva and neither of them could say anything about the fightitself. Albert Silva was awakened by cries and when he came near thescene he saw Weerasinghe getting into a military jeep and going away.He did not speak to Weerasinghe and find out what the trouble was.The other witness Aron Appuhamy says he saw the injured complainantlimping and going towards Negombo and the jeep subsequently takinghim. away.. Curiously enough he too did not speak to the injured personnor did the injured man speak to him or tell him who had assaulted him.The 2nd accused alone gave evidence. According to him when heand two others were travelling in the van the accused jumped across thevan and stopped it. Then he pulled out the 1st accused and stabbedhim with a knife. They struggled and fell down. He thereupon gotdown and struck Weerasinghe with a log but on the ear. Upon this evi-dence the learned Magistrate discharged the 1st and 3rd accused buthe eonvicted the 2nd accused of causing grievous hurt. If he was not
SIXXETA1EBY, J.—Per era v. Ja-ela Police
prepared to accept the evidence of Weerasinghe in regard to the 1staccused, it is difficult to see on what basis he accepted it as against the2nd accused. This is particularly so, having regard to the nature ofWeerasinghe’s evidence that the 1st accused used a knife which severedhis ear : a fact which has been estaclished to be untrue by the medicalevidence. As against this the injury on the ear is consistent with theevidence of the 2nd accused, namely, that he struck the injured man witha club which alighted on the ear. It is also curious that when the Doctorwas in the witness box the prosecution case appears to have been thatinjury No 1 on the 1st accused was caused by the* blunt side of a mannaknife. That question was put to the Doctor by the prosecuting officer.Apparently then it was the prosecution case that a manna knife had beenused on the 1st accused, presumably by the injured man. It was notsuggested that injury No. 1 was inflicted in the corn’s© of the strugglebecause it was only in regard to the other injuries that the d octor was askedif they were caused in the course of a struggle.
The learned Magistrate after reciting the evidence of Weerasinghe inhis judgment states that the two witnesses Albert Silva and Aron Appu-hamy both corroborated Weerasinghe. That certainly is not correct.They only corroborate him in regard to the cries he raised and are notin any way helpful in establishing the charge. The Magistrate alsostates that Dr. Fernando corroborates Weerasinghe which again is anincorrect statement. Dr. Fernando far from corroborating contradictsWeerasinghe for he says that the injury No. 1 on the ear was caused bya blunt instrument and not as suggested by Weerasinghe by a knife.
In rejecting the two accused’s evidence the Magistrate observes thatthe 2nd accused stated that he had gone to the Kandana and Ja-elaPolice to lodge a complaint and that no evidence was led in support ofthis but if only the Magistrate had recalled the Inspector after chargingthe accused, as he should have done, the evidence would most certainlyhave been forthcoming either in answer to questions asked by the accusedor by the Magistrate himself if he desired to ascertain the truth of the2nd accused’s evidence.
In my view, before a Magistrate who rejects parts of a witness’s evidencecan act upon certain other parte of it, there should be strong corroborativeevidence in support of those other parte. The Magistrate in more thanone place states that Weerasinghe is supported by bis two witnesses andthe Doctor : the contrary is the ease. On this point the Magistrate hasobviously misdirected himself and his conclusions cannot therefore bepermitted to stand. The chief objection, however, is the faet that theInspector’s evidence was taken into consideration by the Magistrate indeciding to assume jurisdiction but the same evidence was not subjectedto cross-examination. To what extent this evidence influenced theMagistrate in arriving at his verdict, it is difficult to say.
The conviction and sentence of the 2nd accused are accordingly set asideand he is acauitted.
G. A. PERRERA, Appellant, and JA-ELA POLICE , Respondent