1964 Present: G. P. A. Silva, J.

G. W. PERERA and another, Appellants, and E. M. V. NAGANATHAN,
Respondent

S. C. 226-227/1963-M. C. Jaffna, 24240

Evidence-Cognizable offence-Statement made by a person to a police officer during investigation-Use of it by Court as evidence-Illegality-Reception of evidence of bad character of accused-Effect-Finding of fact in a criminal case-Circumstances when appellate Court will reverse it-Burden of proof in a criminal case-Criminal Procedure Code, ss. 122 (3), 190-Evidence Ordinance, ss. 145,
155,165, 167.

At the trial of a cognizable offence, the accused led evidence in terms of section 122 (3) of the Criminal Procedure Code, read with sections 145 and 155 of the Evidence Ordinance, to show that the prosecution witnesses had, in their statements to the Police in the course of the investigation of the offence, made certain statements which were contradictory of their evidence at the trial. After the evidence in the case was concluded, the Magistrate caused to be produced the full statements made to the Police by the prosecution witnesses, in order to satisfy himself " that nothing has been taken out of their context" and also " to go through the record of the statements in the light of statements of counsel for the defence ". On the next morning he pronounced his verdict finding the accused guilty and, two weeks later, delivered his reasons. In his reasons, however, he made no reference to the statements made to the Police.

Held, (a) that the use made by the Magistrate of the statements to the Police was contrary to the provisions of section 122 (3) of the Criminal Procedure Code. The failure of the Magistrate to advert, in his judgment, to the statements and to say in what way he used them was a fatal irregularity. Silence on the matter left the appellate court without any material to adjudicate on the question as to the use made of the statements or as to the extent to which the Magistrate was influenced by them in arriving at his decision. Further, the note by the Magistrate that he would also like to go through the record of the statements in the light of the statements of the Counsel for the defence suggested that he might quite unwittingly have put these statements to a use other than that which was authorised by the Code.

       (b) that, if the statements to the Police were produced in terms of section 165 of the Evidence Ordinance in order to discover or obtain proper proof of relevant facts, and the Magistrate made use of such statements which he caused to be produced of his own motion in arriving at his verdict under section 190 of the Criminal Procedure Code, acting on such evidence was a flagrant violation of the provisions of section 122 (3) of the Criminal Procedure Code.

Held further :  Where irrelevant evidence as to the character of the accused has been admitted and the other evidence against the accused is by no means overwhelming and is unsupported by any independent circumstance and there is no indication by the Judge that he has not been in any way influenced by the inadmissible evidence, the conviction of the accused would be set aside. In such a case, the provisions of section 167 of the Evidence Ordinance are not applicable.

The court of appeal will not lightly interfere with a finding of fact by the trial court in a criminal case, but where there is good ground to do so in the circumstances of the case or where the judgment is unsound, not merely has the appellate court the right but it is under a duty to reverse such finding.

In a criminal trial the trial Judge must not convict the accused by merely expressing a preference of the prosecution version to that of the defence. It is incumbent on him not merely to have a preference for the prosecution version but to be satisfied beyond reasonable doubt. Implicit in an expression of preference is a reasonable doubt.

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