1947 Present: Dias J.

WIJERATNE Appellant, and EKANAYAKE, Respondent.

S C 1770-M C Kandy, 20,680

Evidence-Summary trial-Denial by accused of previous statement to police- Evidence Ordinance, s 355 (c) No evidence in rebuttal-Effect of such failure.

In a summary trial in the Magistrate's Court, the prosecuting officer in order to discredit the accused cross-examined him in regard to a statement by him recorded in the information Book which was inconsistent with his defence. The accused denied the statement which was not thereafter proved in rebuttal.

Held, that no prejudice was cause to the accused it the Magistrate addressed his mind to the warning that such statement should be disregarded in assessing the credit to be attached to the evidence of the accused.

Quaere, whether evidence in rebuttal can in no circumstances be led in a summary trial.

Welipenna Police v. Pinessa (1944) 45 N. L. R. 155 referred to.

APPEAL against a conviction from the Magistrate's Court, Kandy.

R. L. Pereira, K.C. (with him Mackenzie Pereira), for the accused, appellant,

Boyd Jayasuriya, C. C, for the Attorney-General.

Cur. adv. vult.

July 1, 1947. DIAS J.-

The accused-appellant when under cross-examination stated-" I made a statement to the Police Inspector, Ukkubanda did not run after me and strike me with a mamotty. I cannot say if he threw a stone. I did not say that Ranbanda struck me with a mamotty and the blow accidentally struck Heenbanda and that I was assaulted with mamotties by Heenbanda and others. I deny I said my clothes were covered with mud". It is obvious that these were answers to leading questions put by the prosecuting officer in terms of section 155 (c) the the Evidence Ordinance in order to discredit the evidence of the accused based on alleged statements recorded in the Information Book. After the close of the case for the defence, the prosecution did not call the officer who recorded the statement of the appellant to prove such statements.

It is argued that the failure of the prosecution to do this is an irregularity which vitiates the conviction.' This contention is based on the following passage in the judgment of Dalton J. in the Divisional Bench case of R, v. Graniel Appuhamy 1[(1935) 37 N. L. R. at p. 284.] In our opinion, the questions based upon this statement should not have been put to the accused at all, unless the prosecution was prepared to go further in the event of the accused denying he had made the statement. At the close of the defence no request was made by the prosecution to call any evidence in rebuttal, although the sub-inspector in question was one of the Crown witnesses and had given evidence earlier ". The law on this subject is summarised by the Court of Criminal Appeal in R, v. Harmanissa 2 [(1944) 4 N. L. R. at p. 540.](3) The written

record of such a statement is admissible by virtue of section 122 (3) of Chapter 16 to contradict a witness after such witness has given evidence (4) The written record of the statement of a witness used as formulated in (3) is not substantive evidence of the facts stated therein, but is available for impeaching the credit of such witness as laid down by section 155 of the Evidence Ordinance"

I am unable to agree that the railure of the prosecution to prove the statements from the Information Book which were put to the appellant under cross-examination and denied by him necessarily vitiates the conviction. The case of R, v. Graniel Appuhamy (supra) shows that the learned trial Judge in that case failed to tell the jury that if the alleged previous inconsistent statement was not, legally proved, the jury should disregard the unproved statement in assessing the credit of the witness. Dalton J. said: " The jury were not directed that there was no evidence at all on this point, except his (accused's) denial. This omission, on a most material point, was a misdirection". The rule of evid