King V. Kadiresu, P.A. Et Al.,

[COURT OF CRIMINAL APPEAL.]

1944 Present: Keuneman, de Kretser and Jayetileke JJ.

THE KING v. P. A. KADIRESU et al.

10-M. C. Mallakam, 23,165.

Statement made to a Police Officer-Use of statement to contradict witness-In a trial other than that for offence under investigation-Sentence of whipping-Alternative punishment-Power of Supreme Court to revise an illegal sentence imposed per incuriam-Criminal Procedure Code, s. 122 (3); 317 and 318.

A statement made to a Police Officer in the course of an investigation under Chapter XII. of the Criminal Procedure Code may be used for the purpose of contradicting a 'witness in any other case than the trial of that offence during the inquiry into which it was made to the Police Officer.

A trial Judge has power to revise an illegal sentence imposed per incuriam.

There is no provision in the Criminal Procedure Code for imposing an alternative punishment in the event of a sentence of whipping not being executed.

Where a sentence of whipping is in fact wholly or partially prevented from being carried into execution, the Court that passed the sentence has power to impose an additional sentence of imprisonment.

APPEAL against conviction by a Judge and Jury before the Northern Circuit.

H. V. Perera, K.C. (with him M. M. Kumarakulasingham), for first to third accused, appellants.-The three accused in this case have been convicted of robbing, on the highway, a certain medical officer and his wife. The chief ground of appeal is that a statement made by the second accused to a police officer while the latter was investigating into some other offence was wrongly admitted at the trial in the present case. A statement made under Chapter 12 of the Criminal Procedure Code cannot, according to section 122 (3), be used in any other case than at the trial of that offence during the inquiry into which it was made to the police

officer or inquirer. The word " witness " in the section may be particularly noted. Such a. statement cannot be regarded as the written statement of the person examined, because it is neither sworn to nor signed by the person examined. It is only a memorandum made by the inquirer of what he considers is relevant. In the circumstances section 155 of the Evidence Ordinance does not render it admissible. See also Dissanayake v. Gunaratna1[(1938) 11 C. L. W. 12 at 14.]. The permission which supersedes the prohibition in section 122 (3) of the Criminal Procedure Code is not absolute-Maxwell v. Director of Public Prosecution 2[(1934) 151 Law Times (N. S.) 477 at 481.].

As regards the punishment imposed on the accused there are several irregularities. The sentence originally passed was 10 years rigorous imprisonment and 10 lashes. The sentence of lashes was irregular in view of section 57 of the Penal Code. The trial Judge, therefore, altered the whole sentence subsequently to .5 years' imprisonment and 10 lashes. It is submitted that he had no jurisdiction to revise the sentence. Further, if whipping could not be carried out an alternative sentence of additional imprisonment was passed. This alternative sentence too is irregular and was a misapplication of section 318 of the Criminal Procedure Code.

E. H. T, Gunasekara, C.C., for the Crown.-A statement made under Chapter 12 of the Criminal Procedure Code can be used for other proceedings than the case in respect of which the investigation was made- Chitty et al. v, Peries 3[ (1940) 41 N. L. R. 145.]. The statement in question in the present case was put in at the request of the Counsel for the defence.

A sentence passed per incuriam can be revised by the Supreme Court--The Police Officer of Mawalla v. Galapatha 4[ (1915) 1 C. W. R. 197.] In revision P. C. Batticaloa 8306 5[(1921) 23 N. L. R. 475.].

Cur. adv. vult.

November 3, 1944. KEUNEMAN J.-

The following points have been argued for the appellants: -

(1) It was urged that it was irregular and

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