The King v. Ahamadu Ismail.
Present: Nihill J.
THE KING v. AHAMADU ISMAIL.
5—M. C. Ratnapura, 26,161.
Evidence—Statement by accused to Police denied—Right of Crown to provestatement—Evidence in rebuttal—When the Judge’s discretion shouldbe exercised—Criminal Procedure Code, s. 122 (3)—Evidence Ordinance,s. 155 (c).
Where an accused denies in cross-examination statements made byhim to the Police, the prosecution is entitled to call evidence to provethem.
In exercising his discretion under section 237 Oof the Criminal ProcedureCode whether the prosecution should be allowed to call evidence inrebuttal the Judge should take the following considerations into account: —
Whether the prosecution has been taken by surprise.
Whether the rebutting evidence could have been given in chief.
Whether it does or does not surprise the defence.
Whether it places the defence at a disadvantage.
298NIHJLL J.—The King v. Ahamadu Ismail.
ASE heard before Judge and jury at the 4th Western Circuit.
V. F. Gunaratne (with him S. R. Wijayathilake and P. Malalgoda),for the accused.
G. E. Chitty, C.C., for the Crown.
December 20, 1940. Nihill J.—
Counsel for the prosecution has asked for leave to call witnesses inrebuttal—(1) to call the Inspector of Police, to prove certain statementsmade by the accused to the Police on October 16, 1939. These passageswere put to the accused when he gave evidence in cross-examinationand were denied by him. (2) The prosecution also wishes to call oneFareed to rebut the suggestion made by the accused that on October 16 theaccused went to Jalaldeen’s boutique for the purpose of selling gems toJalaldeen at the instance of Fareed. The learned Counsel for the defencehas submitted that to neither of these should permission be given. Thematter is one within my discretion under section 237 of the CriminalProcedure Code.
With regard to (1) I have no hesitation in allowing the evidence. Theaccused elected to give evidence and his statement which was put to himin cross-examination did not amount to a confession. He chose to denycertain passages in that statement and the prosecution is bound by thosedenials unless it is given an opportunity to prove the contrary. Thestatement not being a confession, the prosecution having used it tocontradict the evidence of the accused, must be given the opportunityof proving it. This the prosecution is entitled to do under section 122 (3)of the Criminal Procedure Code and under section 155 (c) of the EvidenceOrdinance.
With regard to (2) the matter is somewhat more difficult. The accusedin his first statement did give an explanation as to how he came to be inpossession of a considerable sum of money. He said that he had goneto a certain boutique on October 16 and sold gems there and that hecould identify a boy in that boutique if he saw him who had seen thetransaction. He did not mention the name of Fareed at all. In hisevidence in this trial he has given the name of this boy as Fareed, andstated that he went to the boutique on that particular day—October 16—at Fareed’s suggestion in order to sell the gems to Fareed’s Mudalali.The prosecution therefore did have some notice that with regard to theaccused’s possession of a large sum of money which the prosecutionsuggests is the hire money for his crime. The. accused had an explanation,and I think therefore it cannot be said that the prosecution has beentaken completely by surprise by this part of his defence.
The question is whether my discretion in allowing evidence in rebuttalis limited wholly to matter which has taken the prosecution by surprise.It is submitted by Counsel for the prosecution that he could not havecalled Fareed as a witness for the prosecution because at that stagethere was no relevant evidence which he could give. Mr. Chitty hascalled my attention to the case of King v. Crippen1 in which the question
> (1911) 1 K. B. 149.
Ranmenika v. Appuhamy.
when rebutting evidence can be properly called was consideredby the Court of Criminal Appeal. It was there laid down thatin exercising the discretion a Judge should consider inter alia, whe-ther there has been surprise, whether the rebutting of the evidencecould have been given in chief, whether it does or does not surprise thedefence, and whether it places the defence at a disadvantage. In thepresent case with regard to the evidence of Fareed it seems to me that theprosecution could not have given it as a part of its case against theaccused. It was only after the accused had given evidence on the pointthat the evidence became relevant. The accused himself has purportedto give a certain account of his movements on "the day following theburning of the deceased and the reason why he went to a particularvillage at a particular time. Furthermore, he has stated what he did' inthat village and how it was that he went there. In that connection hehas stated that his presence there was due to the invitation of the manFareed. If the prosecution is in* a position to prove that this part of theaccused’s explanation of his conduct and movements after the crime isfalse, I consider that that is a matter which can properly be proved byway of rebuttal.
I therefore allow the prosecution to call the evidence under bothheads.
THE KING v. AHAMADU ISMAIL