[COURT OF CRIMINAL APPEAL]

1944 Present : Howard C.J., Moseley S.P.J. and Wijeyewardene J.

THE KING v HARAMANISA.

3-M. C., Karunegala, 12,250.

Evidence-Charge of murder-Circumstantial evidence-Erroneous statement of fact in charge to jury-Statement to Police Officer in course of investigator-Oral evidence of statement inadmissible-Purpose for which the statement is used-Criminal Procedure Code, s. 122 (3), Evidence Ordinance, s. 155.

The accused was charged with murder and the evidence against the accused was of a purely circumstantial character. The main circumstances was the fact that finger impressions of the accused were proved to have been discovered on a glass chimney found near the dead body of the deceased.

In his charge to the jury the presiding Judge made an erroneous statement of fact regarding the circumstances in which the accused testified to his having touched the glass chimney.

Held, that the accused had been prejudiced in his defence and that the conviction could not be sustained.

A statement made to a Police Officer in the course of an investigation under Chapter 12 of the Criminal Procedure Code by a person-which expression includes an accused person-must be reduced to writing. Oral evidence of such statement is inadmissible.

The investigation made by a Police Officer is not limited merely to the examination of persons by the putting of questions. It includes the search for incriminating evidence and the examination of the locus in quo and the locality in the vicinity of the scene of the crime.

The written record of such a statement is admissible by virtue of section 122 (3) of the Criminal Procedure Code to contradict a witness after such witness has given evidence.

The written record of the statement of a witness as formulated in sub-section (3) is not substantive evidence of the facts stated therein, but is available for impeaching the credit of a witness as laid down by section 155 of the Evidence Ordinance.

Failure on the part of the presiding Judge to make it clear to the jury that such evidence is available only for the purpose of impeaching the credit of a written amounts to non-direction.

APPEAL against a conviction by a judge and jury before the second Midland Circuit 1944.

G. E. Chitty (with him M. M. Kumarakulasingham), for applicant.

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

Cur. adv. vult.

October 30, 1944. HOWARD C.J.-

The accused in this case appeals against his conviction on a charge of murder. The appeal is based on the following grounds:-

(a) That the accused was prejudiced in his defence by an erroneous statement of fact in the learned Judge's charge to the jury regarding the circumstances in which the accused testified to his having touched the exhabit P 5, a glass chimney found with certain finger impression of the accused;

b) That there was misreception of evidence in the proof by the Inspector of the Police of the statement made to him by the accused under section 122 (3) of the Criminal Procedure Code;

c) That there was no direction in the charge that the statement referred to in (b) was not original evidence against the accused.

Crown Counsel at commencement of the hearing of this appeal conceded that the charge did contain an erroneous statement of fact and in these circumstances he could not support the conviction. The evidence against the accused who was indicated with another person, who was acquitted was of a purely circumstantial character. The main circumstance was the fact that finger impressions of the accused were proved to have been discovered on a glass chimney found near the dead body of the deceased, who was Buddhist Priest. The appellant did not deny that the finger impressions on the glass chimney were his, but in the witness-box gave an explanation as to the circumstances in which he handled the chimney. In his evidence-in-chief he stated as follows:-

"I went inside the temple, to