003-NLR-NLR-V-49-WALBERT-Appellant-and-ZOYSA-Respondent.pdf
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W albert o. Zoysa.
1947Present : Dias J.
WARBERT, Appellant, and ZOYSA, 'Respondent.
S.C. 831—M. C. Balapitiyp, 58,755.
Maintenance—Illegitimate children—Corroboration of applicant's evidence—Statementby respondent in the course of an inquiry under Chapter 22, Criminal ProcedureCode—Admissbility of statement—Section 122 (3), Criminal Procedure Code—Does it apply to civil proceedings ?—Maintenance Ordinance {Chap. 76.),section 6.
A statement by a person recorded under section 122 (3) of the CriminalProcedure Code to the effect-that he is the father of the applicant’s illegitimatechild cannot be used as substantive evidence in a maintenance case againsthim in order to corroborate the applicant’s evidence.
The first sentence of section 122 (3) of the Criminal Procedure Codo is notconfined to criminal cases.
Appeal from a judgment of the Magistrate, Balapitiya.
A. Hayley, K.C ■—(with him H. W. Jayewardene and VernonWijetunge), for the defendant, appellant.
P..J. Kurukulasuriya (with him Conrad Dias), foi the applicant,respondent.
»(1X94) P. 293.
Cur. a^v. vnlt.
DIArf J.— Walbar! v. Zoy.ta.
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November 4, 1947. Dias J.—
The question for decision is whether the statement of the putativefather of two illegitimate children recorded in the Police InformationBook under section 122 (3) of the Criminal Procedure Code in the coursesof an investigation into a charge of house-breaking, is admissible assubstantive evidence in order to corroborate the testimony of the motherunder section 6 of the Maintenance Ordinance, 1889 (Chap. 76), whenhe is sued for maintenance 1
The mother gave evidence to the effect that she had been the mistressof the appellant for several years, that she bore him two children, andthat she registered the birth of one child giving the appellant’s name asbeing the father. She also stated that the appellant had maintainedboth the children until six months previous to the filing of the main-tenance case. No attempt, however, was made by her to establish thesefacts by independent evidence.
There had been an alleged burglary in the applicant’s house, and shecomplained to the police who held an inquiry under Chapter XII of theCriminal Procedure Code. In the course of that investigation, thePolice questioned the appellant and recorded his statement. Thisstatement P 1 was tendered as substantive evidence by the applicantand admitted by the Magistrate despite an objection to its admissibilityon behalf of the appellant. The relevant portion of P 1 reads : “ JosalineJayatissa was my mistress for about eight or ten years. I have two
children by her and they are with herAfter this incident I
left Josaline as I learned that she was visiting the house of Victor”
If the statement P 1 is legally admissible as substantive evidence, thecase against the appellant is established, because P 1 would be independentcorroboration of the mother’s evidence by an admission of the fatherof the illegitimate children. On the other hand, if P 1 is not legallyadmissible, it is conceded that there bieng no independent corroborationof the mother’s evidence, the claim must fail.
Section 6 of the Maintenance Ordinance requires that when a claimfor mintencance is made on behalf of an illegitimate child, before liabilitycan attach it is necessary that the evidence of the mother shall be _“ corroborated in some material particular by other evidence to thosatisfaction of the Magistrate ”. Clearly, the words “ other evidence ”means legally admissible evidence. In the case of Ponnammah v.Seenitamby1 a Divisional Court held that the necessity for corroborationof the woman’s evidence would be satisfied by any kind of corroborationwhich is recognized by law.
In Sinnatangam. v. de Silva2 a statement made by the mother to thoPolice who were investigating a charge against her of attempted abortion,was held not to be corroboration of her story in the maintenance case,because it was not a material question at the Police inquiry to ascertainwhether the respondent was the father of the child. The question wasnot raised or decided whether the mother’s statement, having beenrecorded under section 122 (3) of the Criminal Procedure Code, was at
(1921) 22 N. L. R. 395.
(1926) 28 N. h. R. 212.
u
DIAS J.— Walbert v. Zoysa.
all admissible. The decision turned on the question whether the state-ment was admissible as corroboration under section 157 of the EvidenceOrdianaee. In Dona Carlina v. Jayakoddy1 two statements of the womanrecorded in the Police information book under section 122 (3) of theCriminal Procedure Code were relied on as furnishing corroborationof her story. In that case too the question whether such statementswere admissible at all in view of the terms of section 122 (3) of the CriminalProcedure Code was not considered. The decision turned on whetherthe statements came within the provisions of section 157 of the EvidenceOrdinance.
In the present case, however, it is not a statement of the motherwhich is relied on as furnishing corroboration but a statement by,, thealleged father amounting to an admission that he was keeping the motheras his mistress who bore the two illegitimate children to him. Unless thereis some legal bar to the admissibility of the statement P 1, it would supplystrong corroboration of the applicant’s evidence.
Section 122 (3) of the Criminal Procedure Code provides that “ Nostatement made by any person to a Police officer in the course of anyinvestigation under this Chapter shall be used otherwise than to provethat a witness made a different statement at a different time, or torefresh the memory of the person recording it. But any criminal Courtmay send for the statements recorded in a case under inquiry or trialin such Court, and may use such statements or information not as evidencein the case, but to aid it in such inquiry or trial”. The sub-sectiongoes on to create two exceptions when statements recorded under section122 (3) can be used as substantive evidence, namly, in order to provea dying declaration under section 32 (1) of the Evidence Ordiannce,or as evidence in a charge under section 180 of the Penal Code.
I cannot accede to the argument of the respondent’s counsel that theprovisions of section 122 (3) apply only to criminal cases, and that ina civil proceeding (which a maintenance case is) a statement recordedunder section 122 (3) can be used as substantive evidence in order tocorroborate the person making the statement or some other person.
It is true that section 122 (3) appears in the Criminal Procedure Code,and that the majority of instances when that sub-section has comebefore this Court for consideration are criminal cases. I can, however,find no warrant for restricting the first four lines of section 122 (3) tocriminal cases. The fact that the Legislature in the very next sentencerefers to a “ criminal Court ” implies that the general words whichpreceded it are of general application. It is to be taken as a funda-mental principle, standing as it Were at the threshold of the whole subjectof interpretation, that the plain intention of theJLegislature, as expressed.by the language employed, is invariably to be accepted and carried intoeffeet, whatever may be the opinion of the juducial interpreter of itswisdom or justice. If the language admits of no doubt or secondarymeaning, it is simply to be obeyed ”2. Section 122 (3) says in effectthat no statement recorded under its provisions shall be used either ina civil, cirminal, or other legal proceedings except in the following cases
1 (1931't 33 N. L. B. 165.* Maxwell (6th Ed.), pp. 93-94.
711 S .T.— VSalhzr;
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(a) as substantive evidence to prove a dying declaration under section32 (1) of the Evidence Ordinance or to establish a charge under section180 of the Penal Code, and (6) in order to discredit the maker of suchstatement under section 155 (c) of the Evidence Ordinance or to refreshthe memory of the officer who recorded the statement. It is, however,open to a criminal Court to send for and peruse the statementsrecorded under section 122 (3) not as evidence, but merely to aid it insuch inquiry or trial. Except in the two cases specially provided for,a statement recorded under section 122 (3) cdnn'Ot be used as substantiveevidence in any proceeding, civil or criminal. Under no circumstancescan a statement recorded under, section 122 (3) be used to corroboratethe maker of the statement or some other person, although it can beused to contradict the maker of the statement when he gives evidence.
That section 122 (3) can be utilised in a civil action in order to dis-credit a witness is to be seen in Chitty v. Peries1. In a proceeding tostrike a proctor off the rolls for misconduct, a Divisional Court held thatthe law prohibits the reception in evidence of statements recorded undersection 122 (3) except for the purposes specified in that section. In thatcase because the statement was sought to be utilised for purposesnot specified in section 122 (3) the evidence was rejected—Attorney-General v. Ellawala2.
It is a settled rule of evidence that once a statement recorded undersection 122 (3) has been utilised in order to impeach the credit of a wit-ness, the force of that statement is exhausted, and cannot thereafterbe relied on as substantive evidence in the case—R. v. Haratnanisa3,R. v. Sudu Banda*. No doubt, these vp criminal cases, but the principleis of general application. Therefore, the fact that P 1 was put to theappellant under cross-examination and denied by him, cannot makethat statement substantive evidence in the case.
In a maintenance case it is not enough for the Magistrate to say “I believethe applicant and I disbelieve the respondent; and I, therefore, findfor the applicant ”. He must be able to say "I believe the applicant,and she is corroborated in some material particular by such and suchlegally admissible independent evidence ”. In this case he cannotso hold, because the only independent evidence relied on as corroborationis P 1 .which is not admissible as substantive evidence in the case. Theevidence of jthe woman, therefore, stands uncorroborated, and theclaim must necessarily fail. This appears to be a hardship, but inreality it is not so. If it is the fact that the appellant was openly keepingthe applicant as his mistress for a great many years, and was actuallymaintaining the two children as his own, these facts should have beencapable of proof by independent evidence. K
The order appealed against is, therefore, set aside and the claim formaintenance is dismissed. As the appellant succeeds on a legal techni-cality and hig case discloses no merits, I direct that each party shallbear their own costs both here and below.
Appeal allowed
(1940) 41 N. L. R.'l45.z (1944) 45 N. L. R.532.
(1926) 29 X. h. R. 13.* (1946) 47 N. L. R. 183.