[COURT OF CRIMINAL APPEAL]

1955 Present: Rose C.J. (President), Gunasekara J.
and Weerasooriya J.

RUPARATNE, Appellant, and THE QUEEN, Respondent
APPEAL 10 OF 1955, WITH APPLICATION 13

S. C. 34-M. C. Kurunegala, 8,934

Criminal Procedure-Evidence of accused-Contradictory of previous statement to Police-Right to prove such statement-Evidence in rebuttal-Impeaching credit of witness-Evidence Ordinance, ss. 120 (6), 155 (c)-Criminal Procedure Code, ss. 122 (3), 237 (1).

The accused in a trial for murder gave evidence on his own behalf which; differed from a statement that had been made by him to an Inspector of Police-to the effect that about a, month prior to the deceased's murder the deceased.

and his brother had assaulted the accused. Although oral evidence of that statement to the Police could have been adduced by the prosecution as part of its case on the basis that the statement was an admission by the accused relating to a probable motive for the commission of the alleged murder, there were certain circumstances which deterred the prosecution from adducing evidence of it in the first instance. When, however, the accused denied in cross-examination that he had made such a statement, the trial Judge permitted the Crown, to call the Inspector of Police to give evidence of the statement for the purpose, as stated by him, of showing that " the witness made a different statement to the Police". The jury were also warned, in the summing-up, that the effect of the evidence of the accused's statement to the Police could not properly be treated as substantive evidence of any fact.

Held (by the majority of the Court), that the trial Judge was not wrong in permitting the Crown, after the case for the defence had been closed, to lead evidence of the statement made by the accused to the Inspector of Police.

" As was pointed out in the case of Rasiah v. Suppiah [(1949) 50 N. L. R. 265] the right given to a party under Section 155 (c) of the Evidence Ordinance of impeaching the credit of a witness by proving a former statement which is inconsistent with his evidence is, strictly speaking, not a right to adduce rebutting evidence for which, by leave of the Judge (in the case of a trial before the Supreme Court), special provision is contained in Section 237 (1) of the Criminal Procedure Code. "

Thuraisamy v. The Queen (1952) 54 N. L. R. 449, distinguished.

APPEAL, with application for leave to appeal, from a conviction an a trial before the Supreme Court.

W. E. M. Abeysekera, with L. F. Ekanayake, for the accused appellant.

Vincent T. Thamotheram, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

March 14, 1955. WEERASOORIYA J.-

The substantial point that was raised in this appeal relates to what is alleged to be an improper exercise of the learned trial Judge's discretion in permitting the Crown to call certain evidence in rebuttal.

The appellant was charged with the murder of one Ran Banda by shooting, and the evidence against him consists in the main of the evidence of an eye-witness Dingiri Appu, supported by certain items of circumstantial evidence.

The prosecution had in their possession a statement which was alleged to have been made by the appellant to the Inspector of Police in which the appellant was recorded as having said that about a month prior to the deceased's murder the deceased and one Dingiri Banda (a brother of the deceased) assaulted him because he had held the hand of their stepsister Kawamma. Although this statement was one which was made to the Inspector of Police in the course of the investigation under Chapter XII of the Criminal Procedure Code it would seem on the authority of decision in Rex v. Jinadasa [1 (1950) 51 N. L. R. 529 at 540.] that oral evidence of it could have been

adduced by the prosecution as part of its case on the basis that the statement was an admission by the appellant relating to a probable motive