King V. Kadirgaman Et Al.,

[COURT OF CRIMINAL APPEAL.] 

1940 Present: Howard C.J., Moseley S.P.J. and Wijeyewardene J. 

THE KING v. KADIRGAMAN et al.

1-M. C. Jaffna, 6,734. 

Evidence-Contradiction of witness by deposition in Magistrate's Court-Proof of deposition-Crown's right of reply-Evidence Ordinance, s. 80, Criminal Procedure Code, ss. 237 (2) and 296 (2).

 Where a witness is asked at a trial before the Supreme Court whether he made a particular statement in the lower Court his reply must be accepted unless the record of the case is produced to contradict him. 

The deposition of a witness cannot be used in evidence without formal proof. 

The production in evidence on behalf of the accused of the deposition of a witness gives the Crown the right of reply. 

The evidence by a witness of a threat, to kill him if he continued to give evidence, uttered by the accused in the course of the trial is admissible. 

APPEAL from a conviction for abetment of an attempt to commit culpable homicide not amounting to murder at the Second Northern Circuit.

 J. E. M. Obeyesekere, for appellant.

 E. H. T. Gunasekera, C.C., for the Crown. 

Cur. adv. vult. 

September 9, 1940. HOWARD C.J.- 

This is an appeal by the second accused who was convicted of abetting the attempt to commit homicide not amounting to murder of one Sinnapodian Velupillai, which offence was committed in consequence of such abetment and of thereby committing an offence punishable under sections 300 and 102 of the Penal Code. After conviction the appellant was sentenced by the learned Judge to five years' rigorous imprisonment. The main ground of appeal submitted on behalf of the appellant was

that the evidence did not establish the offence of abetment. Under section 100 of the Penal Code a person abets the doing of a thing who-

(1) instigates any person to do that thing; or 

(2) engages in any conspiracy for the doing of that thing; or

 (3) intentionally aids, by any act or illegal omission, the doing of that thing. 

Section 102 provides that "whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Court for the punishment of such abetment, be punished with the punishment provided for the offence ".

 The evidence of the injured man, Velupillai, was to the following effect:-On the previous day he met the two accused and a man called Nannian Kandan about 6 P.M. on the road close to the house of the appellant's brother. Velupillai states that he was going along the road singing when the first accused said: " You fellow, why are you singing along the road. I will b

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