The King v. Don Samel.
[Coubt of Cbiminal Appeal.]
1946 Present: Kenneman S.P.J. (President), Jayetileke and Dias JJ.THE KING v. DON SAMEL.
Application 169 of 1946.
S.C. 3—M. C. Matara, 56,551.
Evidence—Statement of 'witness to police officer in course of investigation—Written statement alone, and not oral evidence of it, admissible—Only tocontradict ■witness—Divisibility of the statement into two parts—Relevantportion alone admissible—Criminal Procedure Code, s. 122 (3)—Evidence Ordinance, s. 91.
Where a statement made by a witness to the Police under section 122(3) of the Criminal Procedure Code is put to the witness at the trial of theaccused—
Held, (i.) that, by reason of section 91 of the Evidence Ordinance, thewritten statement should be proved. The admission by the -witnessthat he made the statement cannot be regarded as anything more thanoral evidence of the statement and does not amount to proof of the•written statement which alone is admissible;'
(ii.) that the statement is admissible only to contradict the witnessand not to give support to his testimony ;
(iii.) that, where the statement is divisible into two parts, one of whichis relevant and the other inadmissible, the relevant portion alone isadmissible.
1 (1905) 1 Baiasingham’s Reports, 194.
I. L. R. (1884) 9 Bom. 131.
KEUNEMAJST S.P.J.—The King v. Don Samel.
PPLICATION for leave to appeal against a conviction in a trialbefore the Supreme Court.
Mahesa Satnam, for the first accused, applicant.
H. A. Wijemanne, C.C., for the Crown.
Conviction quashed.Seasons later.
October 11, 1046. Keueemae S.P.J.—
The first accused in this case, Don Samel, was convicted of murderby the unanimous verdict of the Jury. The second accused Don Andiriswas acquitted.
The points urged against the conviction of the first accused are asfollows :—
(1) Oral evidence was admitted of a statement alleged to have beenmade by one of the eye-witnesses, Premawathie, to the Police, and thecontents of this statement were used to give support to the evidence ofPremawathie at the trial as against this first accused.
(2) That the first information (P6) given to the Police by the witnessDon Davith affecting this accused was proved, and that no adequatewarning was given that that evidence was not substantive evidence.Don Davith in his statement to the Police asserted that he was an eye-witness of the assault, but at the trial he denied that he made the state-ment in question, and stated that he came on the scene after the assaultwas over and merely received information ot the assault from Premawathie.He added that he saw the two accused going away from the scene.
As regards (1) it seems quite clear that the statement made by thewitness Premawathie to the Police was put to her for the benefit of thesecond accused, for in her statement she said that the second accusedthough present did no harm ; at the trial she said that the second accusedparticipated in the assault on the deceased. Her statement to the Policewas therefore important in order to contradict her testimony againstthe second accused. What happened at the trial was that the whole ofher statement to the Police was put in in two parts. Premawathieadmitted that she made the first part of the statement which relatedto the acts of the first accused on that occasion. As to the secondpart of her statement relating to the presence of the second accused at thescene and to the fact that she did not see him do any harm, she made noreply. In point of fact no attempt was made by any counsel to provethe written statement made by her.
Counsel for the appellant relied on the decision of the Court of CriminalAppeal in The King v. Haramanissal. In that case the effect of section 91of the Evidence Ordinance on statements made to the Police undersection 122 of the Criminal Procedure Code was considered. The findingof the Court is summarised as follows :—
“ (1) A statement made to a Police Officer or inquirer by any person,which expression includes a person accused in the course of any investi-gation under Chapter XII. of the Criminal Procedure Code, must bereduced into writing.
1 (1944) 45 N. L. R. 532.
KEUNEMAN’ S.P.J.—The King v. Von Hamel.
“(2) By reason of section 91 of the Evidence Ordinance only the writtenrecord of a statement within the ambit of (1) is admissible in evidence.Hence oral evidence of such a statement is inadmissible. The effect ofour finding on this point is to render the words “ or to refresh the memoryof the person recording it ” almost nugatory, since there would appearto be no circumstances in which oral evidence regarding the contentsof the statement would be admissible. This is one of the matters towhich we would invite the attention of the Legislature.
“ (3) The written record of such a statement is admissible by virtue ofsection 122 (3) of Cap. 16 to contradict a witness after such witness hasgiven evidence
In this case the written statement made by Premawathie to the Policehas not been proved. In our opinion the admission by Premawathieat the trial that she made a part of that statement cannot be regardedas anything more than oral evidence of that part of the statement, anddoes not amount to proof of the written statement which alone could beadmitted.
We are not at present concerned with that part of the statementto which she made no reply. The second accused has already receivedthe benefit of that, although perhaps he was not legally entitled to thatbenefit.
The further point argued is that the portion of Premawathie’s statementto the Police, which she admitted, has been used to give support to hertestimony against the first accused at the trial. We have carefullyconsidered that matter. In his charge the trial Judge made a point of thefact that Premawathie, in her statement to the Police, said that the firstaccused attacked the deceased with a sword, before the medical examina-tion revealed that the attack had been made with a long-bladed weapon.The trial Judge suggested that this may be “ circumstantial evidence tocorroborate the oral testimony ” of Premawathie. At a later stage ofthe charge also the trial Judge stated that with regard to the first accusedPremawathie was “ consistent ” in her statement to the Police and in herevidence at the trial.
It is true that in the charge the trial Judge twice repeated to the Jurythe warning that a statement made outside the Court by a witness couldbe used for the sole purpose of contradicting that witness and for no otherpurpose, and that it was not substantive evidence of a fact. But thematters earlier referred to may have been understood by the Jury to giveadditional support to the testimony of Premawathie and consequentlyprejudice may have been caused to the defence of the first accused.
We may add that in this case the statement made by Premawathiewas easily divisible into two parts, and that the only portion of thestatement admissible for the purpose of contradicting the witness waschat which related to the fact that the second accused though presentdid no harm to anyone. That portion of the statement which relatedto the acts of the first accused was not relevant for the purpose ofcontradicting the witness.
As regards the other eye-witness Somawathie the position is verysimilar and no special comment need be made, except to say that only
WIJEYEWARDENE J.—Watson v. Ramiah.
that portion of her statement which contradicted her testimony in respectof the second accused appears to have been put to her. In the chargehowever the two girls were dealt with on the same footing.
(2) The statement P 6 made by the witness Don Davith was the firstinformation to the Police and was not made in the course of the Policeinvestigation. The statement has been properly proved. It wasrelevant and important as it tended to contradict the evidence of thewitness and to discredit him. The warning by the trial Judge referred toearlier was emphatic and should have been understood by the Jury asshowing that this statement was not substantive evidence in the case.Although we think that a special reference to the fact that it was notsubstantive evidence was perhaps advisable, we do not think that theabsence of such specific reference caused prejudice to the first accused.
For these reasons under heading (1) we have already quashed theconviction of murder entered in this case and have ordered that a newtrial be held, and we trust that this will be held without delay.
New trial ordered.