086-NLR-NLR-V-17-THE-KING-v.-MAJID.pdf
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1M4
Present ; Pereira J.
THE KING v. MAJID.
10—D. C. {Grim.) Kalutara, 2,667.
Hearsay evidence*—Corroboration of direct evidence by means of statementsmade by witness out of Court—Witness giving direct evidenceshould be first called.
Hearsay should not be elicited in the course of a trial in anticipa-tion of corroborating a witness to be called later in the case. 'Whenit is sought to corroborate a witness in terms of section 157 of theEvidence Ordinance by means of an extra-judicial statementmade by him, the witness should be called first, and the person towhom the statement was made called or (if he has given evidencealready) recalled thereafter, and in no case should the order bereversed.
fJlHE facts appear from the judgment.
Abdul Cadet, for second accused, appellant.
De Saramt 0.0., for respondent.
Cur. adv. vult.
February 19, 1914. Pereira J.—
As against.the appellant (the second accused) there is a mass ofhearsay recorded in the case. The statements that I refer to shouldnever have been, elicited by the Crown Proctor, and should neverhave been recorded. Police Constable Nayar is allowed to say thatAron told him that the second accused had sold him a shirt, thatAdris told him that he had bought a sarong from the second andthird accused, and that Constable Deen told him that he had boughttwo shirts from the second and third .accused. This is hearsay ofa bad type. Such facts are sometimes elicited in non-summaryinquiries to ascertain what evidence is available in support of acharge, but they are entirely out of place in a trial, especially a jbrisblon an indictment. It is said that such evidence is led in anticipationof evidence to be given by the informants named. If so, it is avicious practice, and one that has been condemned by this Courtmore than once. Statements made by witnesses to police' con-stables and others may, no doubt, be admissible as corroborativeevidence under section 157 of the Evidence Ordinance, but the verydesignation “ corroborative evidence " implies that it is evidenceled to corroborate the testimony of witnesses already called. Thepractice of anticipating evidence in .criminal cases cannot be toostrongly condemned. In the present case Aron, Adris, and Deenshould have been called first, and then the witness Nayar shouldhave been called or recalled (if he had already been called) jbocorroborate their testimony, if that were possible. Aron, Adris,
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and Deen have not given the expected evidence, and the hearsaythat I have referred to stands on the record as a target for vehement,though perfectly legitimate, denunciation by counsel. The evidenceof Deen, as a whole, does not implicate the second accused. Whathe says in cross-examination is: "It was from the bundle of thethird accused that the shirts were given, but I bought from boththe accused. I mean that both the accused were there,. I gave themoney to the third accused. In the second accused's bundle therewere no shirts, but only,* sarongs and other things."
Aron says that he did not buy anything from any of the accused.Adris (or Agris) also gives no evidence against the second accused.Had these witnesses been called at the right time, Police ConstableNayar’s evidence would have been altogether inadmissible for theprosecution. Then there is the witness Muttu. The District Judgevery* properly says that there is a strong suspicion that he is anaccomplice, whose evidence must be received with caution. Asregards the second ‘ accused, there is really no corroboration of theevidence of Muttu, and I cannot therefore see my way to uphold theconviction of the second accused, and I set it aside and acquit him.
Set aside.
♦1914.
Pkrbxba J.
The Kingv. Majid