[COURT OF CRIMINAL APPEAL]

1946 Present : Wijeyewardene J. (President), Cannon J.
and Canekeratne J.

Appeal No. 52, with Applications 195, 196 and 198.

S.C. 57-M.C. Galle, 50.

Evidence-Hearsay evidence led on material point-Jury invited to consider all the evidence, which included the hearsay evidence-Probability of prejudice to accused by such direction.

Where hearsay evidence formed part of the evidence upon which the Jury were invited to decide a vitally important question arose in the hearsay evidence.

APPEAL, with applications for leave to appeal, against three convictions in a trail before the Supreme Court.

H. V. Perera, K. C. (with him J. Fernandopulle), for the second accused in Appeal no. 52 and Application No. 19.

F. A. Hayley, K.C. (with him H. W. Jayewardene), fro the third accused in Application No. 196.

H. W. Jayewardene, for the first accused in Application No. 198.

H. A, Wijemanne, C.C., for the Crown in Appeal No. 52.

Cur. Adv. Vult.

December 12, 1946. WIJEYEWARDENE J.-

The first accused was charged with attempting to commit murder by causing the death of one Mohammadu and the third accused were charged with abetting the first accused. All the accused were convicted and each of them sentenced to six years' rigorous imprisonment.

The first accused has applied for leave to appeal against the sentence and the third accused for leave to appeal against conviction and sentence. We refuses those two applications.

The second accused has appealed against the conviction on questions of law and has also applied for leave to appeal against the conviction on matters other than law.

According to the evidence given by Mohammadu, there was some unpleasantness between him and his father-in-law, second accused, over certain money transactions. In November, 1945, Mohammadu caused his Rs. 4,000. On December 24, the second accused sent him a message through one Samath inviting him to meet the second accused at the latter's residence on the following day between 2and 4 P.M. When he went in the sitting room and said, "It is useless our going to Court. I will settle all matters today.

 I will bring a lawyer". The second accused then went to the verandah, giving him the impression that the second accused wanted to see if the a few minutes and sat close to him. Immediately afterwards, the third accused came and with the active assistance of the second held him down, while the first accused "rushed" from the direction of the verandah and stabbed him once on the chest. He released him-self from the grip of the second ad third accused and stood up when these two accused ran away. He walked up to the gate of the compound and laid himself on the ground when Azeez, the Crown witness, came there. Pointing to the first accused who close by him into a rickshaw and took him to the police Station and them to the Hospital.

Azeez who is a tenant of Mohammadu was called ass a witness by the Crown. He said that the second accused came to his house that after-noon-about fifty yards from the second accused's house-and asked him "to come and intervene" as Mohammadu "was creating a disturbance". He went to the gate of the second accused's compound, when Mohamadu pointed to the first accused and said, "This man stabbed me". Just then, one Sheriff came and both he and Sheriff accompanied Mohammadu to the Police Station and the Hospital. According to Azeez, it was when Mohammadu had gone about a quarter of a mile from the second accused's house that he said that the second and third accused held him down when the first accused stabbed him. Under cross-examination, Azeez admitted that he made two statements to the Police Station day-a short statement when he accompanied Mohammadu t other Police Station after leaving Mohamadu at the Hospital. Azeez admitted further that he did not mention to the Police in either of those statements the information given to him by Mohamm