028-NLR-NLR-V-42-THE-KING-v.-MOHOTTIHAMY.pdf
The King v. Mohottihamy. '•
121
[Court of Criminal Appeal.]
1941 Present: Howard C.J., Moseley S.P.J., and Cannon J.
THE KING v. MOHOTTIHAMY.1—M. C. Ratnapura, 32,040.
Deposition of witness—Proof that accused was abscotiding essential—Use ofdeposition at trial—Refresh the memory of witness—Evidence Ordinances. 159—Criminal Procedure Cade, ss. 407 and 297—Court of CriminalAppeal Ordinance, s. 5 (2).
A deposition taken under section 407 of the Criminal Procedure Codecannot be read in evidence at the trial unless proper proof wasforthcoming that the accused was absconding at the time.
Where evidence is taken under section 153 of the Criminal ProcedureCode in a charge of culpable homicide instituted under section 148 ofthe Criminal Procedure Code, evidence taken in the absence of theaccused may be read to him under the provisions of section 297 of theCriminal Procedure Code.
Quaere whether section 159 of the Evidence Ordinance has reproducedthe English law so far as to allow a witness to refresh his memory by-referring to the deposition made by him in the lower Court.
Even if a witness may refresh his memory by referring to his deposition,the deposition cannot be read out to him nor can it be made evidence atthe trial.
Where an appeal has been allowed, but, where there was evidencebefore the jury upon which the appellant might reasonably have beenconvicted but for the irregularity upon which the appeal was allowed,the Court of Criminal Appeal will order a new trial.
A
PPEAL from a conviction by a Judge and Jury before the FourthWestern Circuit. The facts are stated in the judgment.
C. Suntharalingam, for accused, appellant.—Before evidence canbe recorded under section 407 of the Criminal Procedure Code it must beproved that the accused had absconded.' This has not been done.See Rustom v. Emperor ‘; Fazal Rahim, v. Emperor *; R. v.Appusinno*; Bhika v. Emperor'. In this latter case the Judges opinedthat the depositions recorded without proof of absconding might be usedfor refreshing memory but that was only an obiter. The instructions ofthe Attorney-General to the committing Magistrate raised doubts as tothe regularity of the proceedings. The waiver by the proctor on behalfof the accused is bad in law. See the Privy Council decision,The Attorney-General for New South Wales v. Bertrand 5, and The DeputyLegal Remembrancer of Bengal v. TJpendra Kumari Ghose Section 297of the Criminal Procedure Code lays down the mode of taking and record-ing evidence in relation to the presence or absence of the accused. Thatsection has not been complied with as the absence of the accused " hadnot been dispensed with ”.
The use of depositions in refreshing memory is not justified under ourlaw. The law of evidence in Ceylon is statutory but the law in England
1 A. I. R. (1915) AU. 411.1 A. 1. R. (1924) Lah.G05.
1 A. I. R. (1934) Pish. 70.• 16 L. T. 752.
3 22 X. L. R. 353.* 12 C. IF. -V. 110.
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HOWARD C.J.—The King v. Mohn,,:hauiy.
is mainly common. . Our Code is silent as to the actual manner of refresh-ing memory. Under the casus ommissus section English practice willapply. Witness can have in his hand the copy of the writing from whichhis memory is to be refreshed. He can read it to himself and fromrecollection of the facts give his evidence, R. v. Beardmore'. Theevidence cannot be read out to him in open Court, R. v. Quin'-. Therewas a further difficulty in this case. Section 159 (2) requires that if thewriting is made by any other person it must be read by the witness.Under section 299 of the Criminal Procedure Code depositions are readover to witnesses. In this case the deposition of a chief witness wasrecorded in ^English but he was ignorant of the English language. Thewriting could not therefore be held to have read by him. Theleading questions were improperly put and the marking in evidence ofthe depositions of two witnesses was irregular.
Nihal Gunasekera, C.C., for the Crown.—Although the evidence ofcertain witnesses is recorded as having been taken under section 407 ofthe Criminal Procedure Code it can be regarded as having been recordedunder section 153, the Magistrate having gone to the spot in a case ofculpable homicide and examined the available evidence in the absence ofthe accused. This evidence was later read over to the accused undersection 297 of the Criminal Procedure Code. The deposition of a witnessmay be used by him to refresh his memory under section 159 (2) of theEvidence Ordinance. The requirement of the sub-section that thewriting must be read by the witness at the time it is made is fulfilled bythe deposition having been read over to him and admitted by him tobe correct. (See Bhika v. Emperors.) Under the English law the de-position of a witiiess can be produced if the witness admits its correctnessbut has no "independent recollection of the facts.
Cur. adv. vv.it.
January 13, 1941. Howard C.J.-—
In this case Counsel for the appellant has put forward several groundswhy the appeal, should be allowed. The first three grounds may beconsidered together. They relate to the manner in which the depositionswere taken. It is desirable that the procedure followed in taking thedepositions should be set out in detail.
The offence was committed on April 11, 1926. At 7.30 a.m. on April14, 1926, the Police Magistrate of Ratnapura proceeded to the locus in quoand held an inquiry. At that stage in the proceedings the only personaccused was the appellant. In the record of the proceedings there is anote by the Magistrate that the appellant was absconding and that he isrecording evidence under section 407 of the Criminal Procedure Code.The Magistrate on that day then proceeded to record the evidence ofPunchihamy, Podiappuhamy, Collette, Paulis Appu, Diasnamy, thewidow of the deceased and P. M. Rammalhamy the associated wife ofBandulahamy who was afterwards charged with complicity in this murder.On April 26, 1926, the inquiry was resumed at Ratnapura. On thisoccasion Bandulahamy was also said to be an accused person. Bothaccused are stated in the record to be absconding. On this day the
"■‘73 E. It. 4SC.* 176 E. R. 374.
3 A. I. ft. (1924), Lah. 60S.
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HOWARD C.J.—The King v. Mohottihamy.
evidence of Dr. G. F. Bartholomeusz, acting District Medical Officer,Ratnapura, was recorded. On April 28, 1926, the inquiry was resumed.The accused are still stated to be absconding and the evidence of theGan-Arachchi and a man called Malhamy was recorded. On May 24,1926, with the accused still absconding the evidence of Sub-InspectorRajapakse was recorded. On July 12, 1926, the accused Bandulahamywas produced before the Magistrate and after being addressed in terms ofwhat was then section 155 of the Criminal Procedure Code made a state-ment. The inquiry was resumed on August 6, 1926, and Bandulahamywas discharged on the ground that there was not sufficient evidence towarrant his committal for trial. At the same time he made a statementwhich was recorded by the Magistrate. The inquiry was resumed beforea different Magistrate on December 20, 1939, when the appellant waspresent. Collette, Punchihamy, Podiappuhamy, Paulis Appu, Rammal-hamy and the Gan-Arachchi gave evidence. Further evidence was takenon subsequent dates in the presence of the appellant who on February 19,1940, was committed by the Magistrate for trial to the Supreme Court.In consequence of instructions received from the Attorney-General, theinquiry was re-opened on September 27,1940, when Mr. Jansz,
Settlement Officer, the Magistrate who held the inquiry in 1926, gaVeevidence and stated as follows : —
“ At the time of this offence I was Police Magistrate, Ratnapura. Ivisited the scene of offence on 14th April, 1926. As a result of question-ing the Police, headman and the villagers I got the impression that theperson who was accused of the crime was absconding, and there was noimmediate prospect of arresting him in the near future. I accordinglymade the entry that the accused was absconding and I was recordingevidence under section 407, Cr. P. C. I visited the scene on 13.4.26with the acting D. M. O. ”.
On October 17, 1940, in consequence of further instructions receivedfrom the Attorney-General all the witnesses were recalled and the followingwas recorded by the Magistrate : —
“ Accd. R. A. Mohottihamy pt : on remand.
Mr. O. M. L. Pinto for accused.
Mr. Pinto submits that he does not want the evidence of the witnesseswho had given evidence in the absence of the accused to be re-recordedand he waives on behalf of the accused the right to object to theevidence as recorded.
In view of the accused’s proctor waiving his right to object to theevidence recorded in the absence of the accused I do not proceed tore-record the evidence of the witnesses whose evidence was taken whenaccused was absconding.
Remand accused. Forward record to S. C. and brief to A.-G. ”.
Counsel for the appellant contends that the depositions recorded onApril 14, 1926, were taken in pursuance of the provisions of section 407 ofthe Criminal Procedure Code. Before use could be made of such deposi-tions in subsequent proceedings strict compliance should have been madewith this section. He maintains that strict compliance has not been somade inasmuch as it was not proved that the appellant had absconded
124HOWARD C.J.—The King v. Mohottihamy.
and there was no immediate prospect of arresting him, and, moreover,there was no finding by the Magistrate to this effect. In these circum-stances it was not open to the Magistrate to make use of the depositionsin the way he did. In support of this proposition the case of Rustom v.King Emperor1 was cited. In this case a murder was committed in 1897.The accused ran away at that time and was not heard of till he wasarrested in 1915. The witnesses were examined in 1897 on behalf of theprosecution to prove the commission of the offence by the accused. TheMagistrate, however, did not record any finding that in his opinion theaccused had absconded and that there was no immediate prospect of hisarrest. The accused was convicted on the evidence recorded in 1897.On an interpretation of section 512 of the Indian Criminal ProcedureCode, which is worded similarly to section 407 of our Code, it was heldthat the evidence given in 1897 was inadmissible to prove the guilt of theaccused and that the conviction was bad. Fazal Rahim v. King Emperor1was also cited as an authority for the proposition that before the provisionsof section 512 of the Indian Criminal Procedure Code can become operative,proper proof of the absconding of the accused must be forthcoming. InR. v. Appu Singho ’ a witness gave evidence before, the Magistrate whenthe accused was not present. The magistrate issued a warrant but theaccused was not arrested for some months. The witness had by this timedisappeared and consequently he was not recalled for cross-examinationby the accused. The deposition of the witness was read at the trial beforethe jury without objection. It was held that the evidence was inadmissibleand should not have been read to the jury. The principle laid down bythese cases is that, without proof of absconding the consequences resultingon the -taking of a deposition under section 407 as formulated in the secondhalf of this provision do not follow. A deposition taken in suchcircumstances can be put in evidence at the trial.
In the present case, however, the deposition of witnesses whoseevidence was recorded in the absence of the appellant were not put inevidence at the trial. Recourse for such a purpose was not had to thesecond part of section 407. Moreover it has been contended that althoughthe Magistrate had recorded that the evidence taken on April 14, 1926,was recorded under section 407 it was in fact, recorded under section 153.We think there is substance in this argument. The proceeding wasinstituted under section 148, the case was one of culpable homicide, theMagistrate had gone to the spot where the offence appeared to have beencommitted, and in the absence of the accused held an examination ofsuch persons as seemed to him to be able to give material evidence. Inthese circumstances the evidence tendered on this day was recorded inlawful and regular manner and in accordance with section 297 of theCriminal Procedure Code which formulates the general proposition thatevidence shall be taken in the presence of the accused. We think thatsection 153 expressly provides that in the circumstances mentionedtherein evidence can be recorded in the absence of the accused. In thiscase the presence of the accused had not been “ dispensed with ”, but the- taking of evidence without his being present was “ otherwise expresslyprovided The evidence so taken was according to the record read13 {1915) A. I. It. All. 4)1.1 {1934) A. 1. R. Pesh. 70.3 22 N. L. R. 353.
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HOWARD C.J.—The King v. Mohottihamy.
over to the various witnesses on December 20, 1939, in the presence ofthe appellant. Hence compliance has been made with the proviso tosection 297. The case of Herath v. Jabbar1, contains nothing contraiyto this proposition inasmuch as the evidence held in that case to havebeen improperly recorded was not taken in the absence of the accused byvirtue of any of the exceptions to the general rule that “ all evidencetaken at inquiries and trials shall be taken in the presence of the accused ”.In Mudiyanse v. Appuhamy3, when two accused were charged in the.sameplaint, one accused surrendered to Court after the other was convictedand the Magistrate recalled the witnesses and read over to the accusedthe evidence already recorded and put further questions to the witnessesand submitted them for cross-examination it was held that the procedurefollowed was sanctioned by section 297 of the Criminal Procedure Codeand it was necessary to hold an entirely independent trial.
Although the procedure prescribed by the Criminal Procedure Code hasbeen followed with regard to the recording of the deposition taken onApril 14, 1926, the same cannot be said of those recorded at Ratnapuraon April 26 and 28, and May 24, 1926. We are of opinion, however,that the evidence tendered on April 14, 1926, and subsequently read overto the0 witnesses supplemented by further evidence recorded in thepresence of the appellant constituted a prima facie case of murderwarranting the committal of the appellant to take his trial before theSupreme Court. This committal was, therefore, in accordance with thelaw and in these circumstances the effect in law of the waiver on October17, 1940, by the proctor for the appellant of his right to have the evidenceof the witnesses recorded does not require consideration.
Grounds TV. and VI. which it is also convenient to consider togetherrelate to the use made of the depositions of the witnesses Podiappuhamyand T. F. Collette during the course of the trial. It appears from therecord of the trial that during the examination-in-chief of the witnessPodiappuhamy, Crown Counsel asked the learned Judge if he was entitledto remind the witness of what he had said. The learned Judge replied asfollows : —“ You can refresh his memory. The value of the evidence is adifferent matter, it is admissible ”. Parts of the evidence given by thiswitness in the lower Court were then put to him in the form of questionsand he stated what he remembered. A similar procedure was adopted inthe case of the witness Collette who was a surveyor. Later on . in thecourse of the trial the learned Judge made the following order : —
“ On resuming after the adjournment Crown Counsel brings to mynotice the fact that Mr. Collette refreshed his memory in the course ofgiving his evidence in this Court by having the evidence of his given inthe Court below read to him. He himself did not read the evidencegiven by him in the Court below, nor did he verify his signature at thefoot of that evidence in the record of the proceedings taken down bythe Magistrate. Crown Counsel thinks that by way of abundantcaution it would be advisable to apply strictly the section of theEvidence Act and to let the witness refresh his memory by referring to1 16 C. L.W. 125.* 22 N. L. R 169.
42/13
126
HOWARD C.J.—The King v. Mohottihamy.
the statement made by him at a time when his recollection of thatstatement was fresh in his memory or by referring to the rgcord of astatement made by him and taken down by another person; in thiscase the Magistrate. He moves to call Mr. Collette for this purpose.
I allow the application
Collette was then re-sworn, the record of his evidence in the lower Courtwas handed to him and he stated it was what he had said to the Magistrate.Podiappuhamy was re-affijmed and stated he gave evidence before theMagistrate which evidence was read out to him and he acknowledged itwas correct. Crown Counsel then called the clerk of assize who formallyproduced the record of proceedings in the lower Court and referred inparticular to the evidence of these two witnesses. Reference was madeto the depositions of these two witnesses for the purpose of refreshingtheir memory. The point at issue is whether there was any irregularityin the procedure that was adopted. There is no doubt that English lawpermits a witness to refresh his memory by referring to his deposition,vide R. v. Quinand R. v. Beardmore2 It is clear, however, on theauthority of these cases that the witness can only look at the depositionto revise or assist his memory and to bring to his mind a recollection of thefacts. The deposition cannot be read to him nor can it be made evidence.There seems, however, to be some doubt as to whether section 159 of theEvidence Ordinance has reproduced the English law so far as to allow awitness to refresh his memory by referring to the deposition made byhim in the lower Court. It is clearly not a “ witness made by himself ”and hence not within the ambit of sub-section (1). Nor does it seem tocome within sub-section (2) as “ a writing made by any other person andread by the witness ”. Depositions are read “ to ” and not “ by ”witnesses. At the same time the commentary by Ameer Ali on thecorresponding section of the Indian Evidence Act seems to record such-use being made of a deposition. At page 1033 of the 9th edition thefollowing passage occurs: —
“ So it has been said that a witness at sessions might be shown hisformer deposition before the committing Magistrate in order to refreshhis memory a couple of months after, if such first deposition were takenafter the occurrence. ”
We have some difficulty in reconciling this observation with thephraseology of section 159 (2).
There is no doubt that section 159, 160 and 161 of the EvidenceOrdinance substantially reproduce the English law. Even if thedeposition can under section 159 be used to refresh his memory, it canonly be used in the manner contemplated by the cases of R. v. Quin andR. v. Beardmore. Section 160 of the Evidence Ordinance provides thata witness may also testify to facts mentioned in any such document asis mentioned in section 159, although he has no specific recollection ofthe facts themselves if he is sure that the facts were correctly recorded inthe document. In the present case Collette states that he recollects that
1 170 E. R. 374.
* 173 E. R. 486.
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HOWARD C.J.—The King v. Mohottihamy.
——
his deposition is a correct statement of the evidence given by him beforethe Magistrate and that he signed it because he acknowledged it as a1 correct statement of his evidence. Podiappuhamy merely states thathe gave evidence which was read out and acknowledged as correct whenthe facts were fresh in his memory. Neither witness states that he issure the facts were correctly recorded in his deposition. In thesecircumstances the witnesses should not have had put to them a series ofquestions framed with the idea of bringing to the notice of the jury whatthey had said soon after the offence was committed. Nor were thesedepositions themselves admissible in evidence. In this particular casethe depositions were read to the witnesses and made evidence. Such usewent beyond what is sanctioned by English law or. sections 159 and 160-of the Evidence Ordinance. It is also necessary to add that, if the use ofthese depositions was not warranted by these sections for the purpose ofrefreshing memory, their use is not permissible under any other provisionof the law. They cannot be said to have been used under section 157to corroborate the testimony of a witness.
Mr. Nihal Gunasekera for the Crown has asked us to say that even ifthere has been an irregular admission of evidence there has been nosubstantial injustice and therefore the case should be treated as comingwithin the proviso to section 5 (1) of the Court of Criminal Appeal Ordi-nance. We are unable to take this point of view for the following reason.The point on which Collette’s memory failed was as to his recollection ofthe mention by the principal witness Punchihamy of the name of thedeceased’s assailant. The- gap in this evidence was completed by thepassage in his deposition in the lower Court in which he stated that theappellant was named as the assailant. This piece of evidence was beforethe jury. Collette was a surveyor and therefore a man of superioreducation and also unbiassed. The jury was invited by the learned Judgeto accept his evidence. What he said in the lower Court corroboratedthe evidence of the principal witness Punchihamy. In this connectionit must be remembered that at the time of the commission of the offencethe latter was a young girl. She was at the trial testifying to events thathappened fourteen years previously. The additional testimony suppliedby Collette’s evidence in the lower Court might have influenced the juryto return a verdict of guilty. It cannot be said that the verdict musthave been the same if this evidence had not been admitted. In thesecircumstances the proviso to section 5 (1) cannot be applied.
In the circumstances mentioned it is not necessary to consider grounds
, VII. and VIII.
For the reasons I have given the conviction is quashed. We are,however, of opinion that there was evidence before the jury upon whichthe appellant might reasonably have been convicted but for the irregu-larity upon which the appeal has been allowed. Under the proviso tosection 5 (2) we therefore order a new trial.
Conviction quashed.
New trial ordered.