[COURT OF CRIMINAL APPEAL.]

1946 Present: Keuneman S.P.J. (President), Jayetileke and Dias JJ

THE KING v. DON SAMEL.

Application 169 of 1946.

S.C. 3-M. C. Matara, 56,551.

Evidence-Statement of witness to police officer in course of investigation-Written statement alone, and not oral evidence of it, admissible-Only to contradict witness-Divisibility of the statement into two parts-Relevant portion alone admissible-Criminal Procedure Code, s. 122 (3)-Evidence Ordinance, s. 91.

Where a statement made by a witness to the Police under section 122 (3) of the criminal Procedure Code is put to the witness at the trial of the accused-

Held, (i) that, by reason of section 91 of the Evidence Ordinance, the written statement should be proved. The admission by the witness that he made the statement cannot be regarded as anything more than oral evidence of the statement and does not amount to proof of the written statement which alone is admissible.

      (ii) that the statement is admissible only to contradict the witness and not to give support to his testimony:

     (iii) that, where the statement is divisible into two parts, one of which is relevant and the other inadmissible, the relevant portion alone is admissible.

APPLICATION for leave to appeal against a conviction in a trial before the Supreme Court.

Mahesa Ratnam, for the first accused, applicant.

H. A. Wijemanne, C.C., for the crown.

Conviction quashed.

Reasons later.

October 11, 1946. KEUNEMAN S.P.J. -
   
The first accused in this case, Don Samel, was convicted of murder by the unanimous verdict of the Jury. The second accused Don Andiris was acquitted.

The points urged against the conviction of the first accused are as follows -

(1) Oral evidence was admitted of a statement alleged to have been made by one of the eye-witness, Premawathie, to the Police, and the contents of this statement were used to give support to the evidence of Premawathie at the trial as against this first accused.

(2) That the first information (P6) given to the Police by the witness Don Davith affecting this accused was proved, and that no adequate warning was given that the evidence was not substantive evidence. Don Davith in his statement to the Police asserted that he was an eye witness of the assault, but at the trial he denied that he made the statement in question, and stated that he came on the scene after the assault was over and merely received information of the assault from Premawathie. He added that he saw the two accused going away from the scene.

As regards (1) it seems quite clear that the statement made by the witness Premawathie to the Police was put to her for the benefit of the second accused, for in her statement she said that the second accused participated in the assault on the deceased. Her statement to the Police was therefore important in order to contradict her testimony against the second accused. What happened at the trial was that the whole of her statement to the Police was put in to two parts. Premawathie admitted that she made the first part of the statement which related to the acts of the first accused on that occasion. As to the second part of her statement relating to the presence of the second accused at the scene and to the fact that she did not see him do any harm, she made no reply. In point of fact no attempt was made by any counsel to prove the written statement made by her.

Counsel for the appellant relied on the decision of the Court of Criminal Appeal in The King v . Haramanissa [1(1944) 45 N. L. R. 532.]. In that case the effect of section 91 of the Evidence Ordinance on statement made to the police under section 122 of the Criminal Procedure Code was considered. The finding of the Court is summarized as follows:-

?(1) A statement made to a Police Officer or inquirer by any person, which expression includes accused in the course of any investigation under Chapter XII of