1935   Present: Dalton S.P.J., Maartensz and Koch JJ.

THE KING v. GRANIEL APPUHAMY

 101- P. C. Chilaw, 44,534.

Misdirection to jury-Defence of alibi-Statement to police-Accused cross-examined on statement-Denial of statement-Failure of Crown to prove statement-Charge to jury-Failure of Judge to ask the jury to exclude the statement.

Where a statement alleged to have been made by an accused person to the police was put by the Crown to the accused in order to discredit him when giving evidence on his behalf in support of his plea of an alibi, and where the statement, on being denied by the accused, was not legally proved by the Crown,-

Held, that the failure of the presiding Judge to direct the jury in his charge to disregard the unproved statement, in considering the evidence for the defence, amounted to a misdirection.

THIS was a case stated by the Commissioner of Assize, Western Circuit, under the provisions of section 355 (1) of the Criminal Procedure Code.

The facts are stated in the reference as follows :-

" When the accused was giving evidence on his own behalf in support of his plea of an alibi, Crown Counsel, with the intention of discrediting the evidence of the accused, put to him a statement, alleged to have been made by him to the prosecuting Sub-Inspector of Police, E. G. Arendtsz, to the effect that he had heard that a drunken man was lying fallen on the road, and had gone to the spot and seen the man there, and later saw him being removed to the Police Headman's house. Counsel for the defence objected, under section 25 of the Evidence Ordinance to the alleged statement being admitted, but I overruled the objection, on the authority of King v. Cooray[128 N. L. R. 74.] as the statement was not in the nature of an admission or confession, but an exculpatory one, and I concluded the prosecution intended to prove it. In my charge to the jury I made reference to this alleged statement in the following terms :-

' The accused is alleged to have made a statement to the Inspector that he heard a drunken man was lying fallen on the road, and he went there and saw him, and later saw him being removed to the Police Headman's house. I allowed the questions to be put to the accused as the statement was not in the nature of an admission, or confession, and the questions were put with the object of discrediting the witness. The accused has denied making this statement. You have to make up your minds whether the accused was present and assaulted the injured man, as alleged, or was at the local option polling station at the time."

" As the statement had not been proved, my purpose in referring to it was to indicate to the jury that it was only a statement, alleged to have been made, by the accused, which he had denied; that it had not been proved, and there was no evidence therefore that it had been made

" Learned Counsel for the defence, however, informed me that he, at the time, made a note of my reference to this statement, and that I had omitted to mention to the jury that there was no evidence of its having been made, and I, therefore, allowed the application.

"5. It was contended by Counsel for the defence that I should, in express terms, have told the jury that there was no proof that the statement had been made, and that they should exclude it from their purview when considering the evidence for the defence.

" The following case would therefore arise for consideration:-

' Where a statement, alleged to have been made to the police by the accused, when put to the accused by the Crown in order to discredit him when giving evidence on his own behalf in support of his plea of an alibi, is denied by the accused and the said statement although it discredits the evidence of the accused in respect of his plea, is not legally proved by the Crown, does the failure of the presiding Judge expressly to direct the jury, in his charge to them, to excl