41 NLR 534

• Jurisdiction: Sri Lanka
• Court: Supreme Court (Sri Lanka)
• Citation: 41 NLR 534
• Date: 09 September 1940
• Case Number: NLR41V534
• Type of Document: Case report

534

[COURT OF CRIMINAL APPEAL.]

1940 Present: Howard C.J., Moseley S.P.J. and Wijeyewardene J.

THE KING v. KADIRGAMAN et al.

1-M. C. Jaffna, 6,734.

Evidence-Contradiction of witness by deposition in Magistrate's Court-Proof of deposition-Crown's right of reply-Evidence Ordinance, s. 80, Criminal Procedure Code, ss. 237 (2) and 296 (2).

Where a witness is asked at a trial before the Supreme Court whether he made a particular statement in the lower Court his reply must be accepted unless the record of the case is produced to contradict him.

The deposition of a witness cannot be used in evidence without formal proof.

The production in evidence on behalf of the accused of the deposition of a witness gives the Crown the right of reply.

The evidence by a witness of a threat, to kill him if he continued to give evidence, uttered by the accused in the course of the trial is admissible.

APPEAL from a conviction for abetment of an attempt to commit culpable homicide not amounting to murder at the Second Northern Circuit.

J. E. M. Obeyesekere, for appellant.

E. H. T. Gunasekera, C.C., for the Crown.

Cur. adv. vult.

September 9, 1940. HOWARD C.J.-

This is an appeal by the second accused who was convicted of abetting the attempt to commit homicide not amounting to murder of one Sinnapodian Velupillai, which offence was committed in consequence of such abetment and of thereby committing an offence punishable under sections 300 and 102 of the Penal Code. After conviction the appellant was sentenced by the learned Judge to five years' rigorous imprisonment. The main ground of appeal submitted on behalf of the appellant was

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that the evidence did not establish the offence of abetment. Under section 100 of the Penal Code a person abets the doing of a thing who-

(1) instigates any person to do that thing; or

(2) engages in any conspiracy for the doing of that thing; or

(3) intentionally aids, by any act or illegal omission, the doing of that thing.

Section 102 provides that "whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Court for the punishment of such abetment, be punished with the punishment provided for the offence ".

The evidence of the injured man, Velupillai, was to the following effect:-On the previous day he met the two accused and a man called Nannian Kandan about 6 P.M. on the road close to the house of the appellant's brother. Velupillai states that he was going along the road singing when the first accused said: " You fellow, why are you singing along the road. I will break your teeth ". The appellant said : " You should not come this way singing like this ". Velupillai said : " Why, it is I who sang "; on which the appellant replied " Let us see when you come singing hereafter ". About 7 P.M. the following day Velupillai went to the boutique of Thambiah accompanied by a boy called Rasiah. Whilst there Nannian Kandan spoke to him and asked him to accompany him. He walked some distance with Nannian, Rasiah being fifteen yards behind holding a hurricane lamp. The two accused were standing near the Vyrava Temple. The appellant seized him round the body whilst the first accused gave him a blow on the head with an iron rod. Velupillai further states that he was pushed by the appellant, given a blow on the nape of the neck by Kandan and then fell down and lost consciousness which was not regained until he had been in hospital.

Medical examination at the hospital indicated a contused wound on the left side of the head with fracture of the bone. The injured man's life was in danger for a week and the injury was consistent with its being caused by an iron rod.

The evidence of Velupillai is corroborated by the boy Rasiah who states that the appellant held Velupillai from a side pinning his arras. The first accused then struck Velupillai with a club or an iron rod, whilst the appellant pushed him and the third man gave him a blow on the nape of his neck with a club.

We agree that on this evidence it would not be possible to hold that the appellant instigated the first accused to attempt the murder of Velupillai. On the other hand there was evidence on which the Jury could find that the case came within paragraph (2) and (3) of section 100. The act of the appellant in holding Velupillai and pinning his arms directly contributed to the commission of the offence by the first accused. Moreover there was evidence that Velupillai was lured by the decoy, Nannian Kandan, to the place where the assault was committed. Nagamuttu, the mother of Velupillai, also testified to events that took place on the previous day which clearly indicated the intention of the two accused to do Velupillai an injury. There is thus evidence that the first accused, the appellant and Kandan were acting in concert. The act of each of them was therefore an intentional aid in prosecution of the common

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object. This is not a case of mere presence at the scene of a crime. From the nature and effect of the facility given by the appellant his intentions must be presumed.

It has also been contended on behalf of the appellant that, even if the evidence implicating the appellant indicated that abetment of attempted murder had been committed, it should not have been accepted by the Jury inasmuch as it depended on the testimony of Velupillai alone. In this connection reference was made to that part of the learned Judge's charge in which he directed the jury that they could infer that Rasiah was not an eye-witness, or, if he was an eye-witness, he was not able to identify the assailants. The question of Velupillai's credibility was, however, left for the jury to decide and if he impressed them as a witness of truth they were entitled to act on his evidence alone.

Counsel for the appellant also complained that in the learned Judge's charge to the jury he made two misstatements of fact. He informed the jury (a) that the blow was dealt with an iron rod and (b) that but for medical aid Velupillai would have died. Although these statements were not absolutely correct, Velupillai did state that an iron rod was used and the medical evidence was to the effect that Velupillai's life was in danger. We are of opinion that these statements even if not strictly accurate did not prejudice the defence of the appellant.

Reference was also made to what is described as an " unfortunate incident". Rasiah on being called upon to resume his evidence on July 9, 1940, stated as follows: -

" I am afraid to give evidence any further because when the accused were being brought to Court this morning the second accused threatened to kill me if I gave evidence ".

The learned Judge after giving both Counsel an opportunity of asking Rasiah any question on this point saw them both in his Chambers. On returning to Court, Counsel for the defence put questions to Rasiah suggesting that this allegation was not true. Rasiah however persisted that he was speaking the truth and maintained that the threat was made in the presence of the Fiscal's peon. The incident was closed by His Lordship in the following words : -

".I do not think it is necessary to be afraid of this threat. You carry on ".

Counsel for the appellant argued that the Judge assumed that the threat was made and such an assumption must have had a prejudicial effect on the mind of the Jury. Before making such an assumption he contends that the Fiscal's peon should have been questioned. We are of opinion that there was nothing improper in Rasiah giving evidence of this alleged threat which was relevant and admissible. It was open to the defence to have rebutted it by calling the Fiscal's peon. An application could, moreover, have been made for the discharge of the jury. Instead of doing this Counsel for the defence participated in the inquiry into the truth of Rasiah's allegation. In these circumstances we do not consider that the appellant has suffered prejudice as the result of this incident.

The only remaining question for consideration relates to a matter of some general importance in regard to criminal trials in the Supreme

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Court. At an early stage in the hearing Counsel for the defence wished to contradict what a witness had said in the lower Court. He was informed by the Judge that, if he asked what a witness said in the lower Court, he would be bound by his answer unless he produced the record in the case to contradict the witness. Counsel was also informed that if he produced the deposition it would affect the order of speeches. Counsel then replied as follows : -

"I am only concerned with the question whether I am entitled to use this record to contradict a witness ".

Later on Counsel for the defence informed the Court that he was putting the depositions in and was informed that it was not necessary to call the Chief Clerk of the Magistrate's Court to do so. At the close of the case for the prosecution Counsel for the defence stated he did not propose to call any evidence for the defence and that he would address the jury, formally putting in the depositions which had been put to the witnesses. Counsel then read these depositions and addressed the jury. Crown Counsel then addressed the jury. ,

On this aspect of the case Counsel for the appellant in this Court has raised three contentions as follows : - (1) By reason of sections 237 (2) and 296 (2) of...