Present: Garvin J.

PARUPATHAM v. KANDIAH.

 277-P. C. Kalmunai, 12,136.

    Evidence-Statement by complainant-Not recorded and signed- Criminal Procedure Code, s. 150 (1).

The statement of a complainant which was made in the absence of the accused and which was not recorded in the manner indicated in section 150 (1) of the Criminal Procedure Code cannot be treated as evidence in the case.

APPEAL from a conviction by the Police Magistrate of Kalmunai.

H. V. Perera (with Ponnambalam and Subramaniam), for accused, appellant.

Crossette Thambiah, C.C., for Crown, respondent.

July 27, 1928. GARVIN J.-

The appellant was at the dates material to this prosecution Assistant Postmaster at Kalmunai. He was convicted of having caused grievous hurt to Kandiah Parupatham, a little girl approximately of the age of ten years, who had since December, 1927, been in his service having been engaged to assist his wife. She was admitted to hospital on January 11, and the medical examination disclosed the following injuries:-(1) Several healed up linear contusions and abrasions on the back, arms, and legs; (2) several contusions and infected abrasions on both buttocks ; (3) three infected ulcers on the inner aspect of right leg. She remained in hospital for a period of twenty-four days unable to follow her ordinary occupation by reason of her injuries. There is, therefore, evidence that some person or persons had voluntarily caused grievous hurt to this girl. Now apart from the evidence of Parupatham, which it will be necessary to consider more fully later, the only independent evidence tendered to establish that her assailant was the appellant is that of the witnesses Casipillai and Samy. Samy states that he saw the girl being thrashed by the appellant while she was tied to a post in his house. The learned Police Magistrate found himself unable to attach any value at all to the evidence of Samy. Having considered his evidence myself, I entirely agree that the story he tells as to the circumstances under which he happened to be a

witness of what he alleges he did witness, renders the whole of 1928. his story utterly improbable. The Magistrate was in my judgment quite right in refusing to act on his testimony. It will be convenient to discuss Casipillai's evidence at a later stage.

The rest of the evidence consists of the testimony of two or Kandiah three witnesses mainly officials who each state that Parupatham indicated the appellant as the person who assaulted her. But this evidence which consists of a former statement made by a person purporting to be a witness of the fact in issue is only admissible under section 157 of the Ordinance for the purpose of corroborating that witness. It is only admissible therefore in so far as Parupatham herself gives evidence charging the accused, in which case the Court would be right in admitting it to corroborate her evidence.

When the girl was first produced before the Magistrate she made a long statement in which she stated that she ran away from the house of the appellant on several occasions as she wished to return to her parents' house in Jaffna and that on each occasion she was discovered and brought back and on each occasion thrashed. She stated that it was the appellant who thrashed her. Upon this examination the Police Magistrate issued process. On the day appointed for the trial the evidence so recorded was read and her own counsel proceeded to examine her further. The only evidence given by her in the presence of the accused was as follows :-" This is not the accused I charge. Kandiah a servant boy employed by this accused assaulted me with a tulip branch because I wanted to run away home. The accused did nothing to me. He was not even present when I was assaulted by the servant Kandiah. Before I gave evidence on the last day in Court I was tutored by Casipillai and the Udayar to state what I then stated to Court.