090-NLR-NLR-V-25-THE-KING-v.-PABLIS.pdf
( 424 )
1924.
Present: Bertram C.J., De Sampayo J., and Garvin A.J.THE KING v. PABILI8.
9~P. C. Kurunegala, 20,431.
Evidence—Statement made by complainant at ike police station*—Mayvrritten record from information book be produced in evidence by theprosecution ?— Corroboration.
A spontaneous complaint made at the police station to a policeofficer by an aggrieved person, though it may become the found-ation of an investigation under chapter XII. of the CriminalProcedure Code, is not itself to be regarded as a statement made bya person examined orally under section 122, and that, consequently,this complaint having been reduced to writing, the written state-ment may be given in evidence under section 157 of the Evidence ,Ordinance independently of any restrictions which may be supposed^to be prescribed by section 122, sub-section (3), of the CriminalProcedure Code.
r R ^HE Chief Justice referred the point involved in this case to a
Bench of three Judges by the following order :—
«
May 26, 1924. Bbbtbam C.J.—
In this case the accused person was convicted under section 357of the Penal Code of the abduction of a young woman with intentthat she might be seduced to illicit intercourse. I have thought itnecessary in connection with this case to reserve for further consider-ation a question under the Law of Evidence. That question is theextent to which complaints entered in the police information bookby an officer in charge of a station may be used as evidence againstan accused person.
The facts of the ease are as follows:—Two young women*who had been to visit a relative at a village some way from theirhome were returning home in the dusk of the evening. They;
passed on the road near a tavern a group of six young men who hadobviously been drinking. Two of these young men seized theyoung women and carried them off separately into the fields. Thecries Of the complainant in this case brought an irrigation headmanto her rescue. The assailant escaped without having done anyharm. She was taken first to the arachchi, and then to the policestation, where she formally made a complaint which was dulyentered in-the information book. When she'had finished it, andwhile the statement of the irrigation headman and arachchi werebeing taken, the other young woman appeared at the station. Shehad yielded to the desires of her assailant, who hact finally aban-doned her on the roadside, whence she made her way to the station.She thereupon without hearing what had been said by the firstyoung woman made her own statement. It was very material toascertain in this case, as in all such cases, whether in fact there wasforcible abduction, or whether the complainant yielded to overtures,anil only made a charge because she was surprised by the irrigationheadman into whose garden she had been in fact taken.
The complaints of these women obviously come within theterms of section 157 of the Evidence Ordinance, They were writtenstatements relating to the fact at or about the time when the facttook place, and, moreover, they were made before an authoritylegally competent to investigate the fact: But it appears to havebeen recognized that this section must be read as subject to theparticular enactments of chapter XII. of the Criminal ProcedureCode, which was enacted after the passing of the Evidence Ordinance.
Section 122 of that chapter provides that when a policeofficer is making anjnquiry under that chapter, he may examineorally any person supposed to be acquainted with the facts, andshall reduce, into writing any statement made by the person soexamined. This statement, or a copy of it, must be recorded in theinformation book.' A person so examined is bound to answer trulyall questions put to him. But the section then proceeds to enactthat no statement so made shall be used otherwise than—
i
“ To prove that a witness made a different statement at a
different time, or
To refresh the memory of the person recording it.”
A difficulty has, from time to time, arisen with regard to thewords “ to refresh the memory of the person recording it.” Thesewords have always seemed to me to imply that an officer recordingsuch a statement may (where the law allows it, e.g., under section 157of.the Evidence Ordinance) give oralevidence as to the terms of thatjjtatement, but may not put in the written statement itself. Heffiay only use that statement to refresh his memory, though, ofcourse, counsel for the defence may call for a statement so usedunder section 161 of the Evidence Ordinance.
( 426 )
1984.
Bebtbam
C..J.
The Kingv, Pabilie
In this . case the question arose whether, assuming th$t I,have correctly interpreted the provision just discussed, the-twostatements made by the young women came within the terms ofthe sub-section thus interpreted ; i.e., whether the prosecution was.precluded from putting in these statements, and whether the officergiving evidenoe with regard to them, could only use them for the .purpose of refreshing his memory.
I ruled that a spontaneous complaint made at the police’station to a police officer by an aggrieved person, though it maybecome the foundation of an investigation under chapter XII., isnot itself to be regarded as a statement made by a person examinedorally under section 122, and that, consequently, this complainthaving been reduced to writing, the written statement may begiven in evidence under section 157 of the Evidence Ordinanceindependently of any restrictions which may be supposed to beprescribed by section 122, sub-section (3), of the Criminal. Procedure Code. In the present case counsel for the defence raisedno objection to the full statements of the complaints being putin, but as the question whether this may legitimately be done,from time to time arises, I have referred that question for anauthoritative decision.
Akbar, A.S.-G. (with him Barber, C.C., and R. F. Dias, C.G.), forthe Crown.
June 2, 1924. Bertram C.J.
We are all agreed that the ruling given in this case was correct.There was a clear distinction between the initial voluntary com-plaint made to an officer under section 121, reduced to writing andsigned by the informant, and another subsequent statement whichmay be made in the course of an investigation conducted by the«officer on the basis of the original complaint. Whatever may bethe restrictions imposed by section 122 upon the use of statementsmade in the course of the investigation, and we are not to be takenas giving any ruling upon the question of those restrictions, theydo not apply to the original voluntary complaint. There is nooccasion to make any order with reference to the conviction, exceptformally to confirm it.
De Sampayo J.—Agreed.
Garvin A.J.—Agreed.
Conviction confirmed.