002-NLR-NLR-V-46-THE-KING-v.-P.A.-KADIRESU-et-al.pdf
The King v. P. A. Kadiresu.
[Court of Criminal Appeal.]
Present: Keuneman, de Kretsep and Jayetileke JJ.
THE KING v. P. A. KADIRESU et «/.
10-—-M. C. Mallakam, 23,165.
Statement made to a Police Officer—Use of statement to contradict witness—In atrial other than that for offence under investigation—Sentence of whip-ping—Alternative punishment—Power of Supreme Court to revise anillegal sentence imposed per incuriam—Criminal Procedure Code, s. 123(3); 317 and 318.
A statement made to a Police Officer in the course of an investigationunder Chapter XII. of the Criminal Procedure Code may be used for thepurpose of contradicting a witness in any other case than the trial of thatoffence during the inquiry into which it was made to the Police Officer.
A trial Judge has power to revise an illegal sentence imposed perincuriam.
There is .no provision in the Criminal Procedure Code for imposingan alternative punishment in the event of a sentence of whipping noibeing executed.
Where a sentence of whipping is in fact wholly or partially preventedfrom being carried into execution, the Court that passed the sentencehas power to impose an additional sentence of imprisonment.
A
PPEAL against conviction by a Judge and Jury before the NorthernCircuit.
11, V. Perera, K.C. (with him M. M. Kumarakulasingham), for first tothird accused, appellants.—1The three accused in this case have beenconvicted of robbing, on the highway, a certain medical officer and hiewife. The chief ground of appeal is that a statement made by the secondaccused to a police officer while the latter was investigating into 6omeother offence was wrongly admitted at the trial in the present case. Astatement made under Chapter 12 of the Criminal Procedure Code cannot,according to section 122 (3), be used in any other case than at the trialof that offence during the inquiry into which it was made to the police
KKT7 NEMAN-The King r. P. A. Kadi resit.
&
officer or inquirer. The word “ witness ” in the section may be particu-larly noted. Suoh a statement canno.t be regarded as the written state-ment of the person examined, because it is neither sworn to nor signedby the person examined. It is only a memorandum made by the inquirerof what he considers is relevant. In the circumstances section 155 of theEvidence Ordinance does not render it admissible. See also Disaanayakev. Ounaratna '. The permission which supersedes the prohibition insection 122 (3) of the Criminal Procedure Code is not absolute—Maxtvell ».Director of Public Prosecution 2.
As regards the punishment imposed on the accused there are severalirregularities. The sentence originally passed was 10 years rigorousimprisonment and 10 lashes. The sentence of lashes was irregularin view of section 57 of the Penal Code. The trial Judge, therefore,altered the whole sentence subsequently to years’ imprisonment and 10lashes. It is submitted that he had no jurisdiction to revise the sentence.Further, if whipping could not be carried out an alternative sentence ofadditional imprisonment was passed. This alternative sentence too isirregular and was a misapplication of section 318 of the Crimnal ProcedureCode.
E. H. T. Gunasekara, C.C., for the Crown.—A statement made underChapter 12 of the Criminal Procedure Code can be used for other proceed-ings than the case in respect of which the investigation was made—Chitty et al. v. Peries 3. The statement in question in the present casewas put in at the request of the Counsel for the defence.
A sentence passed per incuriam can be revised by the Supreme Court—The Police Officer of Hawaii a v. Galapatha *; In revision P. C. Batticaloa83065.*
Cur. adv. vult.
November 3, 1944. KeuneMan J.—
The following points have been argued for the appellants: —
It was urged that it was irregular and illegal to admit in this case.,for the purpose of establishing a contradiction, a statement made by thesecond accused in the course of an inquiry under Chapter 12 of theCriminal Procedure Code into another offence alleged to have beencommitted by the second accused. It was contended that the words
otherwise than to prove that a witness made a different statement at adifferent time ” amounted to a permission only to contradict a witnessin the course of the trial which resulted from the particular inquiryunder Chapter 12, and not at any other criminal trial. We do not agreethat the wide language used should be given such a restricted meaningand think that the statement in question was properly admitted andproved.
The statement in question was that the first accused was employedat the time of this offence by the second accused. In his evidence thesecond accused admitted that the first accused had been in his employmentup to six months before the offence, but stated that the first accused hadthen leffhis service.
> {1938) 11 C. L. W. 12 at 14.3 (1940) 41 N. L. R. 145.
* (1934) 151 Law Times (N.S.) 477 at 481.4 (1915) 1 C. W. R. 197.
* (1921) 23 N. L. R. 475.
ft
KEUNEMaK .T.—The King r. P. A. Kailirrsu.
The trial Judge did not specifically say that the statement which wasdenied was not evidence in the case. It was argued, we think correctly,that this amounted .to a non-direction. But the trial Judge dealt fullyboth with the statement and the denial and stated towards the end ofhis charge—•“ There is another point which by no means is conclusive atall. It is that all these three men are known to each other,—two of themlive within a quarter mile of the scene, one has been under the employ ofthe second accused, and two of them are brothers.
The trial Judge has hero correctly stated the effect of the evidence.Even if there was a non-direction, the matter was of little or no import-ance. The main question was whether the three accused had beencorrectly identified. All the elements necessary to constitute the offencesof unlawful assembly', robbery and hurt- hud been abundantly proved.We do not think the non-direction could have in any way influenced thejury in arriving at their verdict.
Certain alleged irregularities with regard to the first identificationparade were stressed, but we do not think they -are of substance or tluitthey affected the credibility of the witnesses. These alleged irregularitieswere fully explained to the jury.
The original sentences imposed under counts 3 and C were certainlynot justified in law, viz., 10 years rigorous imprisonment on each of thesecounts together with 5 lashes on each of these counts, i.e., 10 lashes in all.The next day the prisoners were produced before Court- and theirCounsel pointed out that under section 57 of the Penal Code no personwho had been sentenced to death or to imprisonment for more than fiveyears shall be punished by whipping. The trial Judge thereupon alteredthe sentences on the counts 2, 4, 5, and 0, reducing the sentences underthe 3rd and 4tli counts to 5 years rigorous imprisonment each. Undercounts 5 and fi he imposed 5 years rigorous imprisonment- and f> lasheson each count, all sentences to be concurrent. It is contended that hehad no power to dp this. We are, however, of opinion that the trial Judgehaving imposed an illegal sentence per iuevriam had the power to setaside the illegal sentence and to impose a legal sentence; see PoliceOfficer of Mawalla v. Gatapatha’. in this connection.
There is a further point. The Trial Judge added a further provisionthat if the accused were not given the whipping the sentence was to be 1*2years rigorous imprisonment. This we think the trial Judge had nopower to do. There is provision in the Criminal Procedure Code forimposing a sentence of imprisonment in default of the payment of a fine,but there does not appear to be any section which authorises an alternativepunishment- in the event of n sentence of whipping not being executed.
Where sentence of whipping is in fact wholly or partially preventedfrom being carried into execution under section 817 of the CriminalProcedure Code, the Court that passed the sentence can revise it undersection 318, and has power t.o impose an additional sentence of imprison-ment. This is a reasonable provision, for it is advisable to wait until it isknown whether the sentence of whipping has been even partially executedbefore the Court decides what further steps should be taken in punishingthe offender. We are of opinion that the alternative sentence of 12 years
* 1 C. II'. ft. 197.
DE KBETSER J.—Scliokman. and Sirisena.
r
rigorous imprisonment if there was no whipping was not justified in law,:und we delete that portion of the sentence. The sentences of five yearsrigorous imprisonment and five lashes under each of the counts 5 and 6will stand, as will the punishments imposed under the other counts,the sentences of imprisonment being concurrent.
Subject to the deletions indicated above, the appeals and applicationsare dismissed.
Appeals dismissed.