061-NLR-NLR-V-66-S.-STEPHEN-and-3-others-Appellants-and-THE-QUEEN-Respondent.pdf
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SANSONI, J.—Stephen v. The Queen
1963Present: Sansoni, J., and H. N. G. Fernando, J.S.STEPHEN and 3 others, Appellants, and THE QUEEN, Respondent8. C. No. 60-63—D. C. (Crim.) Kandy, 739
Evidence■—Indictable offence—Deposition of a deceased witness—Mode of proving it.
In a trial upon an indictment, the deposition made by a witness at the non-summary inquiry is not admissible in evidence after his death unless theoriginal record of the non-summary proceedings is duly produced in evidencetogether with a certified copy of the deposition.
Appeals from a judgment of the District Court, Kandy.
Colvin R. de Silva, with 8. D. Jayewardene, for the 1st Accused-Appellant.
No appearance for the 2nd Accused-Appellant.
3rd and 4th Accused-Appellants, in person.
P. Colin-Thome, Crown Counsel, for the Attorney-General.
November 11, 1963. Sansoni, J.—
Mr. de Silva lias brought to our notice an irregularity which has takenplace in the course of the trial. A witness, Abeyewardena, whose namewas on the back of the indictment, had died before the trial began. TheCrown Advocate who was prosecuting called evidence to prove thefact of death and then, according to the record, he moved to mark thedeposition of the deceased witness, Abeyewardena, as PI 7 and to readit in evidence. He also moved to amend the indictment formally soas to include this deposition PI 7 as item 23 on the back of the indictmentin the list of productions. The trial Judge allowed these applications.
But no witness was called to produce the deposition of the deceasedwitness made before the inquiring Magistrate. The correct course wasfor the orginal record of the non-summary proceedings to havebeen produced in evidence by the Chief Clerk of the Magistrate’s Courtor any officer of the District Court connected with the custody of therecord—See The King v. Kadirgamar A certified copy of thedeposition should also have been produced by the witness. As theseessential steps were not taken, the deposition was not in evidence.
We formally set aside the convictions in this case and send the caseback for a re-trial before another Judge.
H. N. G. Fernando, J.—I agree.
Case sent back for re-trial.
1 {1940) 41 N. L. It. 534.