169-NLR-NLR-V-47-DHANAPALA-Appellant-and-D.-R.-O.-VAVUNIYA-Respondent.pdf
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CANEKERATNE J .—Dhanapcda v. D. R. O., Vavu: Ay a.
1946
Present: Canekeratne, J.DHANAPALA, Appellant, and D. R. O., VAVUNIYA, Respondent.
531—M. C., Vavuniya, 20J.03.
Criminal procedure—Evidence of witness recorded under section 151 (2) ofCriminal Procedure Code—Need not be taken de novo on date of trial ofaccused—-Criminal Procedure Code [Cap. 16), ss. 148 [1) (d), 151 [2),297.
In proceedings instituted under paragraph (d) of section 148 (1) of theCriminal Procedure Code the evidence of a witness recorded undersection 151 (2) need not be taken de novo on the date of the trial of theaccused. It would be sufficient if it is read over to the accused andhe is given an opportunity of cross-examining the witness.
PPEAL against a conviction from the Magistrate’s Court, Vavuniya.
Frederick W. Obeyeselcere for the accused, appellant.
P. Wijetunge, C.C., for the Attorney-General.
Cur. adv. vult.
July 4, 1946. Canekeratne J.—
The appellant and one Diogiri Banda were convicted of committingtheft of three articles. The main ground urged by counsel for the
CA’NKKERATNE J.—Dltarutjtala *. D. R. O.j Vatfimiya.
479
appellant is that evidence, improperly recorded, is''to lie found in thiscase and that the conviction is vitiated thereby.
The record shows that the aocused were produced in Oourt on January1, 1946 ; they were on remand till January 7, on which date they wereproduced on remand and a plaint was filed. A portion on page 2 of thereeord reads thus :
7.1.46. Complainant: D. R. O. V. S.
Accused: 1. H.Dhanapala—present.
H. Dingiri Banda—present.
Mr. Pasupathy for accused.
After the examination of X. V. Ausadhahamy, the Village Headman,the learned Magistrate framed a charge against the accused, recordedtheir pleas and fixed the date of trial. When the ease came on forhearing on March 6, the first witness oalled was Ausadhahamy andafter his previous evidence had been read over he was cross-examinedby the proctor for the accused.
The general rule is that all evidence taken at an inquiry or trial shall betaken in the presence of the accused (section 297 of Cap. 16 of LegislativeEnactments of Ceylon) , this rule is subject to the followingexceptions :—
(i.) Where express provision has been made in the Code.
(ii.) Where the personal attendance of the accused has been dispensedwith and the evidence is taken in the presence of his pleader.A Court is empowered by section 154 to dispense with thepersonal attendance of an accused person and to permit apleader to appear on his behalf.
The evidence of a witness taken in the absence of an accused person mustbe read over to the accused in the presence of sueh witness and theaccused must be given a full opportunity of oross-examining such witness ;this provision need not be followed where the Court has dispensed withthe personal attendance of the accused. One of the oases for whichspecial provision is made by the Code is that referred to in section151 (2).
The proceedings in this case were instituted under paragraph (d) ofsection 148 (1) of the Code. The learned Magistrate, in terms of section151 (2), examined the headman who was able to speak to the facts of thecase : as he was of opinion that there was ground for presuming thatthe accused had committed an offence triable by him, he framed a chargeagainst them, read the same to each of them and asked each of themwhether he pleads guilty or has any defence to make. The trial thencommenced against the accused. On the date of hearing he properlyread over the evidence previously given by the headman. The case
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CANEKERATNE J.—Dhanapala v. D. R. O., Vavurviya.
quoted by counsel for the appellant, Wilfred v. Inspector of PolicePanadwe1 deals with the general rule : it has no application to thiscase. The view which I have taken in regard to section 297 is supportedby that of Heame, J., in Herath v. Jabbar2—a judgment of a DivisionalBench.
The appeal is dismissed.
Appeal dismissed.
1 {1045) 4G N. L. Ii, S53.
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