038-NLR-NLR-V-49-GOONASEKERE-et-al.-Appellants-and-INSPECTOR-OF-POLICE-KIRIELLA-Respondent.pdf
WlruiiTTAM J.—Ratnayaie v. Sub-Inspector, Police, Dunogdha.119
1947Present: Windham J.
GOONESEKERE et al., Appellants, and INSPECTOR OF POLICE,KIRIELLA, Respondent.
S. O. 1,382-5—M. C. Patnapura, 6,690.
Evidence—Corroboration of witness-—Led before evidence which it is intended to cor-roborate—Does it vitiate trial ?—Prejudice-—Evidence Ordinance, section 157.
Where evidence which is called in corroboration under section 157 of theEvidence Ordinance is called before the evidence which it is intended to cor-roborate a trial is not vitiated, unless prejudice is caused to the accused.
King v. Majeed (1914) 17 N. L. R. 254 and King v. Silva (1928) 30 N. L. R.193, referred to.
120
WINDHAM J.—Ooonesekere v. Inspector of Police, KirieUa.
-A-PPEAX from a judgment of the Magistrate of Ratnapura.M. M. Kumarahvlasingham, for the appellants.
V. T. Thamotrteram, C.C.., for the Attorney-General.
December 10, 1947. Windham J.—
This is an appeal against the conviction of the four accused on the-charges of house trespass and theft. The appeal must be dismissed.The only point of appeal that calls for consideration is the following :—The first witness called for the prosecution was not an eyewitness to thecommission of the offence, but he stated in evidence that his daughterimmediately after the incident complained to him as to what had hap-pened, stating that she had seen the accused committing the offence.He related in some detail what she had told him. The second witnessto be called was the daughter herself, and she gave evidence that shehad seen the accused committing the offence. Her evidence as to whatshe had seen tallied in all respects with the evidence of her father as towhat she had told him she had seen. It is contended for the defencethat the evidence of the daughter should have been called before theevidence of the father, the contention being that evidence which iscalled in corroboration under section 157 of the Evidence Ordinanceshould be called after and not before the evidence which it corroboratesor is intended to corroborate. The cases, King v. Majeed 1, and King v.Silva 2, are relied on. It is true that in both those cases the practiceof calling evidence under section 157 of the Eivdence Ordinance, beforeevidence which it is proposed to corrobarate, was condemned. Butin neither of these was it decided that the calling of such evidence inadvance vitiates the trial. In both those cases the direct evidencewhich was later called failed to support the “ corroborating ” evidence.In such a case clearly an accused is prejudiced, and it is the danger ofevidence which has been anticipated failing to materialize which makesthe practice of anticipating such evidence by hearsay a vicious one.But where as in this case the direct evidence is forthcoming and differsin no material respect from the evidence which was adduced to “ corro-borate ” it in advance, no prejudice can be caused to an accused person.Certainly no prejudice was caused to these accused. The appeal iaaccordingly dismissed.
Appeal dismissed.
(1914) 17 N. L. R. 254.
(1928) 30 N. L. R. 193.