1937   Present : Hon. Mr. A. E. Keuneman, Commissioner of Assize.

THE KING v. GABRIEL et al.

 31-P. C. Avissawella, 12,421.

Statement to Police Officer-Statement challenged by defending Counsel- Correct version given by Police Officer-No contravention of section 122 (3) of the Criminal Procedure Code-Evidence Ordinance, s. 157.

Where a statement made to a Police Officer by a witness was challenged by the defending Counsel in cross-examination of the witness and the Police Officer in the course of his evidence gave a correct version of the statement, refreshing his memory by reference to the recorded statement,-

Held that the use of the statement was not a contravention of section 122 (3) of the Criminal Procedure Code.

Held further, that the statement, in the circumstances in which it was made, was a voluntary complaint made to the Police Officer and not a statement, under section 122 of the Criminal Procedure Code and was therefore admissible Under section 157 of the Evidence Ordinance.

Rex v. Pabilis (25 N. L. R. 424) referred to.

THIS was an application to state a case under section 355 (1) of the Criminal Procedure Code.

The facts are fully stated in the order of the Commissioner of Assize.

R. L. Pereira, K.C. (with him R. G. C. Pereira), for third accused.

M. M. I Kariapper, C. C, for the Crown.

Cur. adv. vult.

June 21, 1937. Order.

This is an application made on behalf of the third accused under section 355 (1) of the Criminal Procedure Code requesting me to state a case on the ground that the statement made by the witness Menthonona to the Police Inspector concerning the third accused was explained by me to the jury, and that the statement could not be used for the purpose of corroborating Menthonona's statement under section 122 (3) of that Code. The facts of the case stated shortly are as follows: -

Seven accused including the third accused were indicted under twelve counts of unlawful assembly, rioting, housebreaking by night, abduction, robbery, and rape. The ninth count charged all the accused with the offence of abducting Menthonona in order that she may be forced to illicit intercourse under section 357 of the Ceylon Penal Code. The twelfth count charged the first, fifth, and sixth accused with committing rape on Menthonona under section 364 of that Code.

Evidence was led by the prosecution to prove an episode about 6.30 P.M. on the night of June 19, 1936, in which the woman Menthonona while leaving Kannatota estate was slapped and dragged by certain of the accused. On this occasion she is said to have been rescued. This episode however was not made the subject of any charge. Evidence was also led to show that later in the night, while Menthonona, Dissanayake (who was keeping her as a mistress), and a servant girl Nelly were in their room with the door bolted, a number of men including some of the accused came to that place, asked the inmates of the room to get out. forced open, the door, and insisted on their leaving the estate. Upon this, Menthonona, Dissanayake, and Nelly left the room and were proceeding out of the estate with a lantern, and had gone less than a 100 yards, when they were set upon by a number of men, including some of the accused. Dissanayake was seized and blindfolded, and Menthonona was dragged away and raped, and Nelly had to hide under a tea bush till morning.

Menthonona in her evidence purported to identify the first, third, and sixth accused as being among the persons who were on the verandah of her room as she came out after the door was forced. She also said that at the time of the assault she identified the third, fifth, and sixth accused, and said that the sixth seized her and dragged her away, and was later assisted by the first and fifth accused, that she was taken to a spot where there was jungle and rubber and was raped first by the sixth, then by the first, and then by the fifth accused.