KING v. THEGIS et al.

KING v. THEGIS et al.

Evidence-Ordinance No. 14 of 1896, s. 120 (4) and s. 167-'" Witness in his own behalf "-Improper rejection of evidence-New trial.

Under section 120 (4) of the " Evidence Ordinance, 1898," an accused criminal trial is "a competent witness in his own behalf," which means that he may go into the witness box and give a full account of all that happened, stating who were present and what each did.

Where an accused admitted in the witness box that be inflicted a wound, but pleaded that he did so in self-defence, being single-handed- in the presence of a large part of assailants, and he was asked whether his two co-accuseds were present at the quarrel,-

Held, that that question was one which should have been allowed to be put, and that its rejection by the presiding judge justified a reversal of the conviction and sentence, and the ordering of a new trial, under section 167 of the Evidence Ordinance,

AT the instance of the counsel for the accused (who were tried and sentenced to death for murder), the Attorney-General, acting under section 355 (3) of the Criminal Procedure Code, certified to the Supreme Court as follows:'-

" M. Thegis, W. Irishamy, and M. Agris were tried before Mr. Justice Browne at the Supreme Court Extra Sessions held at Galle this year (1901) and were on the 5th day of July last convicted of the offence of murder and sentenced to death.

" During the examination of Agris as a witness in his own behalf, under the provisions of sub-section (4) of section 120 of the Evidence Ordinance, 1895, the presiding judge ruled that he could not give any evidence to show that the other two accused persons were not present at the time and place of the murder.

" The question of law as to the correctness of the ruling not having been reserved by the presiding judge under the provisions of sub-section (1) of section 355 of the Criminal Procedure-Code, I hereby certify, under the provisions of sub-section (3) of that section, that in my opinion that question of law ought to be further considered."

It appeared that, after the case for the prosecution had been closed, the counsel for the accused called the three prisoners to give evidence on their own behalf. The first and second accused stated that they were not present at the quarrel, in the course of which the deceased man received the fatal wound. Agris, the third accused, deposed that on the evening in question he and the deceased met on a path and had a quarrel, that the deceased struck him on the rib and fractured it, and that thereupon he used a weapon in self-defence. His counsel then put to Agris the-following question: " At the time you and the deceased quarrelled, was either the first or the second accused present?"

Mr. Justice Browne. disallowed the question, on the ground that an accused person could give evidence on his behalf only, but not for his co-accuseds.

Mr. Justice Browne, after closing the Galle sessions, left Galle for Jaffna on the Northern Circuit, and from there he forwarded to the Registrar of the Supreme Court at Colombo a special case (dated 25th July) upon the point already certified by the Attorney-General. His Lordship said: -

" I refused to allow the question to be put, inasmuch as his answer (which, after their evidence and his that he was coming by himself, might be expected to be that they were not there) would have been evidence in their defence, and in my judgment the third prisoner, under section 120 (4) of the Evidence Ordinance, was allowed to be only ' a competent witness in his own behalf.'

" The question I would reserve for the judgment of the Collective Court is whether the question should have been put to third prisoner and his answer received. If it should have been allowed, there may arise another question whether the exclusion of that testimony necessitates the acquittal of the first and second prisoners.

"I do not know whether the section in qu

Click Here to Read the rest of this document