1926 Present : Jayewardene A. J.

BINDUWA v. SIRIYA.

211?P. C. Kandy, 17,806.

Evidence-Previous statement by witness-Contradicted by evidence in Court-Evidence Ordinance, s. 155 (3)-Criminal Procedure Code, s. 122 (3).

A previous statement made by a witness, which he admits to be true, but which is contradicted by his evidence in Court, cannot be used as substantive evidence against the accused.

Rex v. Charles Perera 1 followed.

THE accused was convicted of causing hurt to the complainant with a knife, under section 315 of the Penal Code. In their statements to the Korala the complainant and his witnesses stated that the accused had deliberately stabbed the complainant in the course, of a quarrel. But in Court the complainant attempted to make out that the injury was caused accidentally. When thy statement recorded by the Korala was read out to him the complainant admitted that it contained the truth. Other witnesses were called, and they also stated that the injury was caused accidentally. Then the Korala gave evidence and produced his notes. On his evidence the learned Police Magistrate convicted the accused.

S. W. R. Dias Bandaranaike, for accused, appellant.

May 13, 1926. JAYEWARDENE A. J.-

This case raises the question of the admissibility in evidence of a former statement which the person who made it admits to be true, but which is contradicted by the evidence given by him in Court.

In this case the accused was charged with causing hurt to the complainant with a knife, an offence punishable under section 315 of the Penal Code. He was convicted and sentenced to undergo two months' rigorous imprisonment. In their statements to the police officers, among whom was the Korala of the district, the complainant and his witnesses had stated the accused had deliberately stabbed the complainant in the course of a quarrel which followed a game of cards. The complainant had himself bitten the accused's nose in the straggle. But in Court the parties, who are relations, attempted to make out that the injury was caused accidentally. The complainant said he asked the accused for a out of an arecanut which he was peeling at the time. Accused

1 3 S. C. D. 57.

slipped, and tried to save himself by catching hold of the complainant. The knife just caught his arm. He also said that he could not say that the accused voluntarily stabbed him and that he got cut in the struggle. In cross-examination he added that the accused did not deliberately seek to injure him. With regard to the statement made by him to the Korala he said he was examined by the Korala thirteen days after the incident, that he signed the statement made to the Korala, which was in English, and did not know exactly what the Korala wrote down. In re-examination the statement recorded by the Korala was read out to the witness. That statement was as follows: -

"On January 25, at about 9 A.M., I, with accused, Kondedeniye Gedara Tikiriya, and Ukkuwa played cards, but not for stakes. Witness, Ukkuwa, shuffled the pack of cards and divided the leaves to me. He put into my heap one card extra. I suggested to divide the pack of cards again. The accused did not agree with-my suggestion. I refused to take part in the play. The accused abused me in dirty language. I also insulted him. He got up and caught my body. He stabbed me with a knife. Witnesses, Ukkuwa and Siriya, caught the accused and stopped him. I was at the hospital for four days. Binduwa Vidane came to the spot. He took the accused's knife into his hand. Other Vidane recorded the statements and sent me down to the hospital.''

With regard to this statement the complainant said: " I admit the Korala just now read out the statement I made to him. It was translated to me, and I heard it. I admit it is what I told the Korala, and that it is the truth." Several witnesses who were present when the complainant received his injury were called, and they