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Present: Garvin J.
PARUPATHAM v. KANDIAH.
277—P. C. Kalmunai, 12,136.
Evidence—Statement by complainant—Not recorded and signed—Criminal Procedure Code, e. ISO (1).
The statement of a complainant which was made in the absenceof the accused and which was not recorded in the mannor indicatedin section 150 (1) of the Criminal Procedure Code cannot betreated as evidence in the case.
PPEAL from a conviction by the Police Magistrate ofKalmunai.
H. V. Perera (with Ponnambalam and Svbramaniam), foraccused, appellant.
CrosseUe Thambiah, C.C., for Crown, respondent.
July 27, 1928. Garvin J.—
The appellant was at the dates material to this prosecutionAssistant Postmaster at Kalmunai. He was convicted of havingcaused grievous hurt to Kandiah Parupatham, a little girlapproximately of the age of ten years, who had since December,1927, been in his service having been engaged to assist his wife.She was admitted to hospital on January 11, and the medicalexamination disclosed the following injuries:—(1) Severalhealed up linear contusions and abrasions on the back, arms, andlegs; (2) several contusions and infected abrasions on bothbuttocks ; (3) three infected ulcers on the inner aspect of right leg.She remained in hospital for a period of twenty-four days unableto follow her ordinary occupation by reason of her injuries.There is, therefore, evidence that some person or persons hadvoluntarily caused grievous hurt to this girl. Now apart fromthe evidence of Parupatham, which it will be necessary to considermore fully later, the only independent evidence tendered toestablish that her assailant was the appellant is that of thewitnesses Casipillai and Sarny. Samy states that he saw the girlbeing thrashed by the appellant while she was tied to a post in hishouse. The learned Police Magistrate found himself unable toattach any value at all to the evidence of Samy. Havingconsidered his evidence myself, I entirely agree that the storyhe tells as to the circumstances under which he happened to be a
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witness of what he alleges he did witness, renders the whole of 1928.his story utterly improbable. The Magistrate was in my judgment Gabvin j
quite right in refusing to act on his testimony. It will be
convenient to discuss Casipillai’s evidence at a later stage.Parupatham
The rest of the evidence consists of the testimony of two or Kandiahthree witnesses mainly officials who each state that Parupathamindicated the appellant as the person who assaulted her. Butthis evidence which consists of a former statement made by aperson purporting to be a witness of the fact in issue is onlyadmissible under section 157 of the Ordinance for the purpose ofcorroborating that witness. It is only admissible therefore inso far as Parupatham herself gives evidence charging the accused,in which case the Court would be right in admitting it to corroborateher evidence.
When the girl was first produced before the Magistrate she madea long statement in which she stated that she ran away from thehouse of the appellant on several occasions as she wished to returnto her parents’ house in Jaffna and that on each occasion she wasdiscovered and brought back and on each occasion thrashed.
She stated that it was the appellant who thrashed her. Uponthis examination the Police Magistrate issued process. On theday appointed for the trial the evidence so recorded was readand her own counsel proceeded to examine her further. The onlyevidence given by her in the presence of the accused was asfollows :—“ This is not the accused I charge. Kandiah a servantboy employed by this accused assaulted me with a tulip branchbecause I wanted to run away home. The accused did nothingto me. He was not even present when I was assaulted by theservant Kandiah. Before I gave evidence on the last day in CourtI was tutored by Casipillai and the Udayar to state what I thenstated to Court. What I then stated to Court is not true.” TheCourt therefore at this stage had before it an earlier statementin which this girl charged the accused as the person who assaultedher, and a later statement (the only evidence given by her in thepresence of the accused) that it was not the accused but his servantKandiah who is responsible for the injuries found on her person.
Now it is urged that the earlier statement should not in thiscase have been treated as evidence against the accused. It is abroad principle of justice that a person who is charged with acriminal offence is entitled to be confronted with those who accusehim and it is only in very rare and exceptional cases that state-ments made by persons who are not called can be admitted asevidence at the trial of a person accused of an offence. The onlyprovision of the law which can be invoked to justify the receptionof that statement as evidence is section 189 of the CriminalProcedure Code, which directs that the Police Magistrate when
proceeding to try a person accused “ shall read over to him theevidence (if any) recorded under section 150.” Sub-section (2)of this section makes it a condition that the accused should bepermitted to cross-examine the person whose evidence has been“ so recorded.” It is objected that this is not a statementrecorded as required by section 150. That the statement wasrecorded for the purpose of the issue of process is not denied,but it is contended that before a statement could be read underthe provisions of section 189 and thereafter treated as evidencein the case it must be recorded in the manner prescribed bysection 150. That section requires that the examination heldunder section 149 shall be reduced into writing, that it shall beread and if need be interpreted to the person examined, that itshall be signed by the person examined and also by the Magistrate.Now the earlier examination of Parupatham was reduced intowriting but it has not been signed by her nor is there the certificatewhich is customarily attached whenever the law required that astatement should be read over and interpreted to a witness. It isnot possible therefore to say that this is a statement which hasbeen recorded in the manner prescribed by section 150. Sincethis is hot a statement recorded under section 150 it cannot be•treated as evidence in the case (vide Cadasar v. Muttamma i).
There is therefore no evidence proceeding from Parupathamagainst the appellant, but on the contrary only her evidence givenat the trial in which she says her assailant was not the appellantbut his servant. Her evidence and the large body of evidence ofpersons called to give in corroboration of her story evidence ofstatements made by her at or about the time of the incident goes-out of the case. Indeed this body of evidence should not have beenadmitted when it became evident that the only admissible evidencewhich proceeded from Parupatham was her statement that it wasKandiah the servant and not the appellant who caused herinjuries. The evidence of Sarny has been disbelieved. The onlyevidence left is that of Casipillai. He spoke to having witnessedan assault on Parupatham on January 5 on the road oppositethe Post Office. The girl who had run away was brought backwhen the appellant struck her five or six blows with his hand andkicked her once. The appellant then dragged her by her hairand put her on the ground. He then asked his servant Kandiahto take her in and tie her up. This evidence has been acceptedby the Police Magistrate and I see no reason to differ from hisjudgment on this point. There is therefore definite evidence of anassault by the appellant on January 5.
Now it is clear from the story told by the girl as well as themedical evidence that the injuries found on her person were the
1 3 Browne 93.
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cumulative effect of a series of assaults over a period of about a 1928.month and that some of her injuries if not most of them indicate GiSTIN jas she herself says that they were caused by a stick or cane.
There is no proof that the appellant inflicted any injuries PaTUP^hamother than those spoken to by Casipillai. It is at least possible Kandiahthat, as Parupatham stated in her evidence, it was Kandiah theservant who committed the other assaults. In the state of theevidence the appellant can only be convicted of the offencedisclosed by the evidence of Casipillai. No weapon was thenused by the accused and she did not sustain grievous injury as aresult of that assault. The offence which the appellant is provedto have committed is that of having voluntarily caused hurt toParupatham and the conviction will be altered to one undersection 314.
An application has been made by the Solicitor-General forenhancement of the sentence passed by the Magistrate. Thisapplication was made on the footing that the appellant had beenrightly held responsible for the various assaults the cumulativeeffect of which was to cause grievous injury to Parupatham.
The evidence falls far short of this. Whatever suspicions mayenter one’s mind, the appellant can only be convicted and punishedfor the offence which he is proved to have committed. But theassault spoken to by Casipillai is not one to which a girl of tenderyears should have been subjected.
I shall therefore leave the sentence imposed by the PoliceMagistrate unaltered, although that sentence was imposed for thegraver offence of grievous hurt which the Magistrate thoughthad been established.
PARUPATHAM v. KANDIAH