H. N. G. FERNANDO, C.J.—Somasiri v. The Queen
[Court of Criminal Appeal]
1969 Present:H. N. G. Fernando, C.J. (President), Sirimane, J.,and Weeramantry, J.SOMASIRI, Appellant, and THE QUEEN, RespondentC. C. A. 37 of 1969, with Application 498. C. 77/68—M. C. Hambantota, 58198
Evidence—Charge of murder—Motive for the crime—Inadmissibility of hearsayevidence—Evidence Ordinance, s. CO (1).
The accused was charged with murder. Ho and the deceased had been goodfriends for a long period. In order to provo that the accused had a motive forthe alleged offence the prosecution led the evidence of tv/o witnesses whostated that the deceased had, a few days before the alloged murder, informedhis father that he had told the accused not to come to his house becausehis sisters were there.
Held, that the fact that the deceased did warn the accused to keep away fromhis house could be proved only by the evidence of a witness who heard thewarning being given to the accused (s. GO (1) of the Evidenco Ordinance), or bythe evidence of some conduct or admission of the accused.
Appeal against a conviction at a trial before the Supreme Court.
Colvin-R. de Silva, with P. 0. Wimalanaga, I. S. de Silva, T. B.Dilimuni and (assigned) M. Nassim, for the accused-appellant.
E. B. de Fonseka, Senior Crown Counsel, for the Crown.
Cur. adv. vult.
Jane 23, 1969. H. N. G. Fernando, C.J.—
This appeal is against the conviction of the appellant of the murderof one Pemasiri. According to the evidence of Ariaratne, he and thedeceased man, and also the deceased’s father, mother and two sistershad been asleep in a house consisting of four rooms. Ariaratne sleptonly a few feet away from the deceased, but because of a comer in thewall the place where the deceased slept was not visible to him. He waswoken up by a cry of the deceased “ Buddu Ammo ”, whereupon hewent with his torch to the deceased’s bed-side: he then saw a manrunning away whom he identified as this accused, and he also saw thedeceased’s parents in the act of lifting up the deceased. He saw thatthe deceased had been injured, and the deceased expired a few minutes
H. N. O. FERNANDO, C.J.—Somasiri v. The Queen
later. Ariaratne then went for assistance, and a message was sent to thePolice. But he admitted at the trial that he did not mention to anyoneat all (not even to the deceased’s parents) the fact that he had seen thisaccused. For this omission, he gave the somewhat unsatisfactoryexplanation that he waited until the Police came to state the name of theaccused. The deceasod’s parents apparently hod not seen the allegedassailant, and the evidence of the deceased’s mother did not assist theprosecution to establish the guilt of the accused.
The prosecution led evidence to prove that this accused had a motivefor this alleged offence. It was clear that the accused and the deceasedhad been good friends for a long period, and that the accused, whooccupied a neighbouring “ wadiya ”, used to come frequently to thedeceased’s house. But it was suggested that after the deceased’s twoBisters had recently come to stay with him, the deceased did not like theaccused to continue visiting his house. According to the evidence ofAriaratne and the deceased’s mother, the deceased had a few daysbefore this incident informed his father that he had told the accused notto come to his house because his sisters were there.
The purpose of this evidence was obviously to establish the truth ofthe statement alleged to have been made by the deceased to his father.If the deceased did actually warn the accused to keep away from hishouse, there, was reason for the accused to entertain ill-feeling towardsthe deceased. The question which arises therefore is whether the factthat the deceased did warn the accused was proved by lawful evidence.This fact could be proved only by the evidence of a witness who'heardthe warning being given to the accused (s. 60 (1) (b) of the EvidenceOrdinance), or by evidenco of some conduct or admission of the accused.But here neither of the witnesses heard the fact which the prosecutiondesired to prove. Their evidence, while being relevant to prove that thedeceased made a certain statement to his father, was only hearsay evidenceof the alleged fact of the warning given to the accused.
Learned Senior Crown Counsel contended that proof of the deceased’sstatement to his father could entitle the Jury to infer as a matter of factthat what the deceased said to his father was true. He Bought to justifythis contention on the decision in The King v. Sathasivam x. The accusedin that case was charged with the murder of his wife. Sometimes priorto her death the wife had made a complaint to the Police stating herfear that the accused might use violence on her, and the prosecutionproposed to lead evidence of this complaint and of the fact that theaccused had been informed of the complaint. The prosecution claimedthat such evidence would lead to the inference that the accused felt 4strong resentment against his wife foi having made the complaint andwould thus establish a motive for the crime. Gratiaen J. refused toadmit this evidence, ruling that he would admit it only if there wasavailable some independent testimony that the complaint had in factinduced such resentment in the accused’s mind.
1(1953) 55 N. L. B. 255.
Punchirala v. The Queen
This ruling contradicts Crown Counsel’s present contention. GratiaenJ. made it clear, both that the statement of the deceased wife to thepolice was inadmissible to prove the truth of its contents, and that evenproof of the accused’s knowledge that such a statement had been madeby his "wife could not justify an inference that he felt resentment on thataccount.
Applying this ruling, the statement said to have been made by thedeceased to his father was not admissible as proof that the deceasedhad given a warning to the accused"; and even the fact that the deceasedmade such a statement is of less significance than the correspondingfact in Sathasivam's case, because here there was no evidence whatsoeverto show' that the accused had become aware of the statement made by
the deceased to his father.
The verdict of the Jury establishes their confidence in Ariaratne asan honest witness, but since the prosecution depended entirely uponhis evidence in order to prove the identity of the person who had stabbedthe deceased, the Jury could not reasonably convict this accused unlessthey were confident also of the accuracy of Ariaratne’s identificationof this accused. That confidence they might well have gained becausethere was evidence before them of the deceased’s statement concerningthe warning said to have been given to the accused. That evidence(as we have just shown) was wrongly admitted, and it is not possiblefor us to say that the Jury would have accepted Ariaratne’s identificationif the content of the deceased’s alleged statement had not been broughtto their notice.
Wo set aside the verdict and sentence, and order that the accused betried afresh on the same charge.
Case sent back for a fresh trial.
D. SOMASIRI, Appellant, and THE QUEEN, Respondent