1944 Present: Wijeyewardene J.

THE KING v. FERDINANDS et al.

46-M. C. Matara, 49,741.

Evidence-Evidence given by an accused incriminating himself and another accused-Admissibility-Evidence Ordinance, s. 30.

Evidence given by "n accused incriminating himself as well as a co-accused is admissible against the co-accused.

The fact that such evidence is given is in itself no ground for ordering separate trails.

THIS was a case heard before Wijeyewardene J. and a Jury in the third Western Circuit.

Nihal Gunesekera (with him Vernon Wijetunge), for the first accused.

G. E. Chitty (with him H. Wanigatunge), for the second accused.

H. Sri Nissanka, K.C. (with him J. Fernandopulle and Ananda Pereira), for the fourth accused.

U. A. Jayasundera (with him S. E. J. Fernando and J. V. T. de Fonseka), for the. fifth and seventh accused.

The third, sixth and eight accused were undefended.

E. H. T. Gunasekera, C. C. (with him E. L. W. de Zoysa, C.C.), for the Crown.

August 10, 1944. WIJEYEWARDENE J.

The eight accused are charged with the offence of conspiracy to commit or abet the offence of giving false evidence in a judicial proceeding The sixth accused is now in the witness box giving evidence " in his own behalf ". In the course of his evidence he inculpated several of the other accused and then commenced to speak of what happened on March 21, 1942. At that stage the Crown Counsel intimated to me that it would be desirable to ask the Jury to retire, as, perhaps, I might have to consider certain questions of law in respect of the evidence which the sixth accused might proceed to give. I asked the Jury to retire and directed the sixth accused to go on with his evidence. That evidence was as follows:-. .

 " When he, the first accused asked me that question I told him that I knew Abdeen. Then he asked me ' You know that Abdeen is my informant? ' and I said, ' Yes, I know it '. Then he said ' When I went on leave the second accused took Abdeen to the barracks and assaulted him. Hinniappu is also one of my informants. He was taken to the barracks and he was thrashed and killed there '. Then he uttered a threat saying ' I will do a nice thing and he went away with the headman Burampy. At about 5 or 5.30 P.M. that day the alarm bell was rung and all the police officers fell in. and assembled in the recreation room in their shorts and banians. The A. S. P. came in with Dingiya ' .

Before giving my ruling as to the admissibility of that evidence I asked the defence Council whether they wished to be heard. The Council for the second accused, thereupon, contended that the evidence so given was inadmissible and then proceeded to submit that the entirety of the evidence given by the sixth accused would be highly prejudicial to all the other accused and moved.

(1) that I should direct the sixth accused to stand his trial separately,

(2) that the other accused be tried in this case,

(3) that I should direct the Jury to ignore all the evidence given by the sixth accused.

After the luncheon interval the Counsel for the second accused made an alternative submission, namely, that I should confine the present case to the sixth accused and direct the other accused to be tried in other proceedings. The Counsel for the first, fourth, fifth and seventh accused adopted the argument of  Mr. Chitty. The third, sixth and eighth accused did not make any submission.

I have, considered the matter and I am unable to adopt either of the suggestions made by the defence. The evidence given, by the sixth accused before the Jury retired was admissible. The evidence given by an accused person exculpating himself and inculpating his .co-accused is admissible under our law. The evidence given by the sixth accused in this case may incriminate not-only the other accused but also himself. He may be giving this evidence in the honest belief that he is entitled to an acquittal, if he acted on the