[COURT OF CRIMINAL APPEAL.]

1941     Present: Howard C.J., Moseley S.P.J., and Cannon J.

THE KING v. MOHOTTIHAMY.

1- M. C. Ratnapura, 32,040.

" Deposition of witness-Proof that accused was absconding essential-Use of deposition at trial-Refresh the memory of witness-Evidence Ordinance s. 159-Criminal Procedure Code, ss. 407 and 297-Court of Criminal Appeal Ordinance, s. 5 (2).

A deposition taken under section 407 of the Criminal Procedure Code cannot be read in evidence at the trial unless proper proof was forthcoming that the accused was absconding at the time.

Where evidence is taken under section 153 of the Criminal Procedure Code in a charge of culpable homicide instituted under section 148 of the Criminal Procedure Code, evidence taken in the absence of the accused may be read to him under the provisions of section 297 of the Criminal Procedure Code.

Quaere whether section 159 of the Evidence Ordinance has reproduced the English law so far as to allow a witness to refresh his memory by referring to the deposition made by him in the lower Court.

Even if a witness may refresh his memory by referring to his deposition, the deposition cannot be read out to him nor can it be made evidence at the trial.

Where an appeal has been allowed, but, where there was evidence before the jury upon which the appellant might reasonably have been convicted but for the irregularity upon which the appeal was allowed, the Court of Criminal Appeal will order a new trial.

APPEAL from a conviction by a Judge and Jury before the Fourth Western Circuit. The facts are stated in the judgment.

C. Suntharalingam, for accused, appellant.-Before evidence can be recorded under section 407 of the Criminal Procedure Code it must be proved that the accused had absconded. This has not been done. See Rustom v. Emperor1; Fazal Rahim v. Emperor2; R. v. Appusinno3; Bhika v. Emperor4. In this latter case the Judges opined that the depositions recorded without proof of absconding might be used for refreshing memory but that was only an obiter. The instructions of the Attorney-General to the committing Magistrate raised doubts as to the regularity of the proceedings. The waiver by the proctor on behalf of the accused is bad in law. See the Privy Council decision, The Attorney-General for New South Wales v. Bertrand 5 and The Deputy Legal Remembrancer of Bengal v. Upendra Kumari Ghose6. Section 297 of the Criminal Procedure Code lays down the mode of taking and record­ing evidence in relation to the presence or absence of the accused. That section has not been complied with as the absence of the accused "had not been dispensed with ".

The use of depositions in refreshing memory is not justified under our la