Present  : Wood Renton C.J.   1915.

THE KING v. PERERA et al.

53 and 54-D.C. (Crim.) Kalutara, 2,814.

Witnesses named on the back of the indictment-Should the Crown call all the witnesses so named ? - Right of accused to cross-examine witnesses not called by the Crown.

In a criminal prosecution the Crown should as an ordinary rule call the attention of the Court and of counsel for the accused to the fact that it does not propose to call certain witnesses as its own, should state the reason why this is considered undesirable, and should tender the witnesses in question to the accused for cross-examination. It is equally desirable that counsel for the accused should actively watch the proceedings of the Crown in this matter, and should ask that any witness whom the Crown does not propose to examine should be called, if he requires the evidence of that witness for any purpose. The Courts of first instance should enter as matter of record everything that has taken place in this connection.

THE accused in this case was convicted in the District Court of Kalutara of having caused grievous hurt to a girl Baba Nona and hurt to her mother Meihamy. The first accused was sentenced to six months' rigorous imprisonment on the first count and one month's rigorous imprisonment on the second. The second was sentenced to twelve months' rigorous imprisonment on the first count and one month's rigorous imprisonment on the second. The accused appealed.

F. M. de Saram, (with him A. St. V. Jayewardene), for the appellants.

V. M. Fernando, C.C., for the Crown.

April 29, 1915. WOOD RENTON C.J.-

His Lordship, after dealing with the other points raised, continued:-

The other point taken in support of the appeals is, however, more important, and as it is constantly raised both in the Courts of first instance, in the Supreme Court on the hearing of single judge appeals, and in the Assize Court, I propose to deal with it in detail, in the hope of being able to lay down certain principles which may be of practical use to the legal profession and to the Courts themselves. The point is made in the petition of appeal that the Crown had failed to call at the trial in the District Court a certain woman named Wasanahamy, who had been examined in the Police Court, and whose name was on the back of the indictment. In her deposition in the Police Court this woman had stated that she did not see the stabbing of the girl Baba Nona. The accused's counsel, Mr. F. M. de Saram, strenuously argued, in the first place, that the Crown was under a general obligation to call every witness whose name was on the back of the indictment; and, in the second place, that if this woman had been examined, her negative evidence in regard to the stabbing would have shaken the faith of the learned District Judge in the story of the other witnesses who gave positive evidence on the same point. If I had been persuaded that this latter contention were sound, I should certainly at least have sent the case back for further inquiry and adjudication. But I do not see anything in the evidence of Wasanahamy which is necessarily inconsistent with that of the other witnesses. She was at a distance of seven or eight fathoms from the struggle, and while she speaks to the use of a mamoty, which could easily be seen, she may well have not perceived the use of such an instrument as a knife. Moreover, this witness does say that she saw Baba Nona bleeding from her forehead, and the medical evidence establishes the fact that the injury on Baba Nona's forehead was caused by o sharp cutting instrument. But while this would be sufficient for the

purpose of disposing of these appeals. I desire to say something as to the position of the Crown in regard to the calling of witnesses whose names appear on the back of an indictment. The question was raised before me many years ago in the Attygalle murder case, and i dealt with it t