015-NLR-NLR-V-39-THE-KING-v.-GABRIEL-et-al.pdf
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The King v. Gabriel.
1937 Present: Hon. Mr. A. E. Keuneman, Commissioner of Assize.
THE KING v. GABRIEL et al.
31—P. C. Avissawella, 12,421.
Statement to Police Officer—Statement challenged by defending Counsel—
Correct version given by Police Officer—No contravention of section 122
(3) of the Criminal Procedure Code—Evidence Ordinance, s. 157.
Where a statement made to a Police Officer by a witness was challengedby the defending Counsel in cross-examination of the witness and thePolice Officer in the course of his evidence gave a correct version ofthe statement, refreshing his memory by reference to the recordedstatement,—
Held that the use of the statement was not a contravention of section122 (3) of the Criminal Procedure Code.
Held further, that the statement, in the circumstances in which it wasmade, was a voluntary complaint made to the Police Officer and not astatement under section 122 of the Criminal Procedure Code and wastherefore admissible under section 157 of the Evidence Ordinance.
Rex v. Pabilis (25 N. L. R. 424) referred to.
' 34 N. L. R. 185.
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A. E. KEl/NEMAN, Com. of Assize.—The King v. Gabriel.
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HIS was an application to state a case under section 355 (1) of theCriminal Procedure Code.
The facts are fully stated in the order of the Commissioner of Assize.R. L. Pereira, K.C. (with him R. G. C. Pereira), for third accused.
M. M. I Kariapper, C. C., for the Crown.
Cur. adv. vult.
June 21, 1937. Order.
This is an application made on behalf of the third accused undersection 355 (1) of the Criminal Procedure Code requesting me to state acase on the ground that the statement made by the witness Menthononato the Police Inspector concerning the third accused was explained by meto the jury, and that the statement could not be used for the purpose ofcorroborating Menthonona’s statement under section 122 (3) of thatCode. The facts of the case stated shortly are as follows : —
Seven accused including the third accused were indicted under twelvecounts of unlawful assembly, rioting, housebreaking by night, abduction,robbery, and rape. The ninth count charged all the accused with theoffence of abducting Menthonona in order that she may be forced toillicit intercourse' under section 357 of the Ceylon Penal Code. Thetwelfth count charged the first, fifth, and sixth accused with com-mitting rape on Menthonona under section 364 of that Code.
Evidence was led by the prosecution to prove an episode about 6.30 p.m.on the night of June 19, 1936, in which the woman Menthonona whileleaving Kannalota estate was slapped and dragged by certain of theaccused. On this occasion she is said to have been rescued. Thisepisode however was not made the subject of any charge. Evidencewas also led to show that later in the night, while Menthonona,Dissanayake (who was keeping her as a mistress), and a servant girl Nellywere in their room with the door bolted, a number of men includingsome of the accused came to that place, asked the. inmates of the roomto get out. forced open the door, and insisted on their leaving the estate.Upon this, Menthonona, Dissanayake, and Nelly left the room and wereproceeding out of the estate with a lantern, and had gone less than a 100yards, when they were set upon by a number of men, including some ofthe accused. Dissanayake was seized and blindfolded, and Mentho-nona was dragged away and raped, and Nelly had to hide under a teabush till morning.
Menthonona in her evidence purported to identify the first, third, andsixth accused as being among the persons who were on the verandah ofher room as she came out after the door was forced. She also said thatat the time of the assault she identified the third, fifth, and sixth accused,and said that the sixth seized her and dragged her away, and was laterassisted by the first and fifth accused, that she was taken to a spotwhere there was jungle and rubber and was raped first by the sixth,then by the first, and then by the fifth accused. She further stated thatthe fifth and sixth accused, then left her in charge of the first accused,who stayed with her through the night, and in’ the small hours of themorning took her to some abandoned lines, beyond the boundary of the39/8
40A. E. KEUNEMAN, Com. of Assize.—The King v. Gabriel.
estate, and there tied- her mouth and hands and raped her again. -Herbandages were eventually untied, and she cried out for help, and a manKiribanda came, and after the first accused had gone away took her tohis mother’s house, where the woman remained in an exhausted condition.Meanwhile Kiribanda went in search of the headman or the Police.Kiribanda met the Inspector on his way and brought him to his housewhere Menthonona was at the time. Menthonona made a statementto him there and also later at the spot where it was recorded. In cross-examination by Mr. R. L. Pereira who appeared for the first to fifth andseventh accused, Menthonona was questioned with regard to the state-ment she had made to the Inspector. The cross-examination was basedupon a report dated June 20, 1936, made by the Inspector to the PoliceCourt. The relevant paragraph in this report which was read to her bycross-examining Counsel is as follows : —
“ I found the wife of the complainant in the house of one Kiribanda.She had blood on her clothes and injuries on her body. She stated thatshe had been raped by Gabriel and two other men whose names she didnot know but whom she could identify.” Gabriel is the name of thefirst accused. Counsel for the defence made a point of the fact thatMenthonona did not mention the name of the fifth accused whom sheadmitted she knew to be Martin. I. do not remember any cross-examina-tion with regard to the absence of any reference to the other personsbesides these three who were mentioned, but it was possible to draw aninference from the. report that she had only referred to three persons.
The evidence of Dissanayake, Nelly, and other witnesses was also led.When the Inspector (Mr. Schokman) was in the box, Crown Counselproceeded among other things to obtain from him oral evidence of thestatement made to him by Menthonona. No objection was taken thenor at any time before the verdict of the jury was given to the admissionof this evidence. At an early stage the Inspector asked permission torefresh his memory by referring to his notebook and I thought itreasonable in the circumstances of the case to allow him to do so.Mr. R. L. Pereira thereupon claimed and was allowed the right toexamine the Inspector’s notebook, and the notebook Was in fact handedto him and examined by him.
The Inspector explained that the report of June 20, 1936, was veryshort, and in some respects incorrect. It had been drawn up in a hurrylate at night, owing to a desire of the Proctor for the accused to transferthe prisoners from Police custody to the custody of the Fiscal, with aview to the obtaining of bail. He proceeded to give oral evidence of thefull statement of Menthonona disclosing in the course of his evidence,that Menthonona had given the names of two men who had raped her,namely, of Gabriel (first accused) and Martin (fifth accused) and not asstated in the report, only of Gabriel, and had also spoken of her recog-nition of the third accused among the persons who were present after thebreaking down of the door and also at the later assault, and she alsospoke to the other incidents of that night.
The Inspector was subjected to a considerable amount of cross-examination with regard to this evidence partly directed to showingdiscrepancies, between Menthonona’s statement to the Police and her
A. E. KEUNEMAN, Com. of Assize.—The King v. Gabriel.
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statement before me and showing among other things that her allegeddescription of the sixth accused did not tally with the appearance of thesixth accused, and also with regard to the differences between theInspector’s evidence and his report.
In the course of my address to the Jury, I explained to them Mentho-nona’s statement made on various occasions, including her statementto the Police. I also dealt with the various statements made by theother witnesses on various occasions as elicited in evidence. I warnedthe jury that the evidence of the witnesses given in the Supreme Court,if believed, was the evidence on which they could act.
By their verdict, the jury found the first, fifth, and sixth accusedguilty under counts nine and twelve, and the third accused guilty undercount nine of abduction. The verdict was given on the evening of June17, 1937, and I deferred sentence till the next morning.
On the morning of the 18th Mr. R. L. Pereira appeared in Court andmade the application I have mentioned. Up to that time no objectionwas taken on this ground. I am certainly of opinion that this objectionshould have been made at an earlier state, but I do not make that aground for refusing this application.
The relevant section of the Criminal Procedure Code is section 122,sub-section (3).
“ No statement made by any person to a Police Officer or an Inquirerin the course of any investigation under this chapter shall be used other-wise than to prove that the witness made -a different statement at adifferent time, or to refresh the memory of the person recording it. ”
It is to be noted in this case that the statement made by Menthononato the Police was first brought into question by cross-examining Counsel,who depended upon the Inspector’s report to the Police .Court, and thatthis report was used for the purpose of discrediting the witness. Thereport was a very short statement as far as Menthonona’s evidence wasconcerned, and once an allegation was made that this was her statement,I cannot see any principle of law or justice which can prevent the correctversion of the statement from being proved, nor do I think that it can besaid that the statement is being used for the purpose of corroboratingthe witness.
Further, Menthonona’s statement to the Police was in itself the subjectof cross-examination by defending Counsel when the Inspector was in thebox, and certain portions of that statement were utilized by defendingCounsel for the purposes of the defence.
I think the evidence of Menthonona’s statement to the Police wasadmissible in evidence.
There is another reason why I think this evidence may be regarded asadmissible. While it is true that the first information of the events ofthe night in question was given by Dissanayake at the Police Station,on that occasion he only spoke to what he knew. The only informationof the carrying away and the rape was that supplied by Menthononato the Inspector. I am not satisfied that her statement to the' Policeis one that properly comes in under section 122.
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A. E. KEUNEMAN, Com. of Assize.—The King v. Gabriel.
I may refer in this connection to Rex v. Pabilis1. In this case twoyoung women met a group of six men who were near a tavern. Two o:fthese young men seized the women and carried them off separately to thefields. One of the young women succeeded in escaping and made a formalcomplaint at the Police Station. When she had finished and the state-ments of certain other witnesses were being recorded, the other youngwoman who had yielded to the desire of her assailant appeared at theStation and made her statement.
Oral evidence was permitted as regards both the statements and on acase stated the Divisional Court held that both these statements wereproperly admitted.
In the present case, it is in evidence that Kiribanda was sent to fetchthe Headman or Police Inspector, and happened to meet the latter on theway, and brought him eventually to the house where Menthonona was.
J think that the statement of the woman Menthonona may be regardedas a voluntary complaint made to the Inspector, and not a statementunder section 122 of the Criminal Procedure Code, and that the statementcan be admitted under section 157 of the Evidence Ordinance.
One other matter may be mentioned. What is forbidden by section122 (3) ? Is it the production of the recorded statement of the witness ?Or, is there a further prohibition of any oral evidence given by therecording Police Officer of the statement made to him ? – On this pointI have been given a number of authorities by defending Counsel (Hameedv. Kathan", King v. Cooray % King v. SoysaWickremasinghe v. Fernando*).These cases are based upon the decision in Dal Singh v. The KingEmperor which approved of the decision in Queen Empress v. Mannur.In all these cases the point turned on the admission of the recordedstatement itself.
If we examine the language of section 122 (3) we find that the“ statement ” shall not be used otherwise than “ to prove that thewitness made a different statement at a different time or to refresh thememory of the person recording it ”. The second alternative appears toindicate that the' “ statement ” in question is the recorded statement orwriting. There would be ho meaning in the recording officer using theverbal statement for the purpose of refreshing his memory.
The only authority I have been able to find on this point is the dictumof Bertram C.J. in Rex. v. Pabilis (supra).“ A difficulty has from
time to time arisen with regard to the words ‘ to refresh the memory ofthe person recording it ’. These words have always seemed to me toimply that an officer recording such a statement may (where the lawallows it, e.g., under section 157 of the Evidence Ordinance) give oralevidence as to the terms of that statement, but may not put in thewritten . statement itself. He may only use that statement to refreshhis memory, though of course, Counsel for the defence may call for astatement so used under section 161 of the Evidence Ordinance.”
’ 25 N. L. R. 424.‘ 26 N. L. R. 324.
– 4 C. W. R. 363.s 29 N. L. .R. 403.
’ 28 N. L. R. 74.* 116 L. T. 621.
■ 1 L. R. 19 AU. 390.
FERNANDO A.J.—Arunachalam Chettiar v. Paulis Appuhamy. 43
This appears in the reference to the Divisional Court but that Courtrefrained from deciding the point. I have consulted the Indian authori-ties under section 162 of the Indian Criminal Procedure Code, but theyare not exactly in point, as the section in the Code of 1898 only limitedthe use of the writing and a later amendment prohibited both thestatement and the writing.
But at the time when the writing was prohibited, the Indian Courtsgenerally permitted the leading of oral evidence by the recording officer.There were however in a few cases expressions of opinion that even theoral evidence cannot be allowed.
With respect I am inclined to agree with the dictum of Bertram C.J.and think that he sets out a reasonable interpretation of the section.
It is not however necessary for me to give a decision on this point,and had this been the onlv point, I should have been agreeable to statea case for decision.
The application is refused.
Application refused.