( 490 )
Present ; Jayewardene A.J.
DISSANAYAKE v. PERERA.249—P. C. Colombo, 38,488.
Unlawful possession—Tea found in box of rickshaw—Presumption oftheft—Evidence of accomplice—Statement to Police Officer.
Where tea was found in a box under the seat of a rickshaw, theperson travelling in the rickshaw cannot be said to be in thepossession of the tea within the meaning of section 4 of OrdinanceNo. 38 of 1917.
^JPPEAL from a conviction of the Police Magistrate of Colombo.
De Jong, for accused, appellant.
June 14, 1928. Jayewardene A.J.—
The accused was charged with possessing 13£ lb. of tea andbeing unable- to give a satisfactory account of his possession underOrdinance No. 38 of 1917.
( 491 )
The tea was found under the seat of the rickshaw, in whichthe accused was travelling. The rickshaw belongs to Mr. Drury. The; jaybwab*rickshaw cooly was charged with this accused and pleaded guilty dekbAJ.and was fined Rs. 25 and imprisoned till the rising of the Court. Die^tnayqk^The crucial question in the case is Whether the appellant can be •*said to have – been in the conscious possession of the tea. TheMagistrate says that the accused travelled in Mr. Drury’s privaterickshaw, and when the rickshaw was searched the parcel of tea wasfound in the box below the seat of the rickshaw, and the accused wasthus found in possession of 18} lb. of tea. To my mind this doesnot follow. A person travelling in a rickshaw cannot be said tobe in possession, necessarily, of what is in the box under the seat.
The rickshaw cooly, Madappen, gives the most important evidenceon the point. He says that the appellant himself gave him ttfe'parcel of tea and asked him to keep it in the rickshaw, at about6 p.m., at Forbes & Walkers’. If his (Madappen’s) statement is true,the tea was not in his possession, and his conviction is wrongs'
Madappen has, however, pleaded guilty and must be looked upon,,in any event, as an accomplice. His evidence must be viewed withcaution, and unless corroborated should not be accepted. The'learned Magistrate says that he believes Madappen. His evidence'was objected to, but the Magistrate was right in holding that hisevidence was admissible. His judgment, however, does not show'whether he regarded him as an accomplice. Accomplices are notlike ordinary witnesses in respect of credibility, but their evidenceis tainted and should be carefully scrutinized before being accepted, “and therefore the presumption that an accomplice is unworthy ofcredit, unless corroborated in material particulars, has become arule of practice of almost universal application, (Ameer AIVbEvidence Act, 5th ed,t p. 831.)
Lord Abinger C.B., in summing up in Rex u. Father]1 told the jury:
“ It is a practice which deserves all the reverence of Law. .
The danger is, that when a man is fixed, and knows that his ownguilt is detected, he purchases immunity by falsely accusing others.**
There is no difference between the English law relating toaccomplices and our own law as contained in sections 144 and 183of the Evidence Act. (E. v. Loku Nona.2)
As regards the material point, whether the appellant handed thetea to Madappen, there is no corroborative evidence implicating theappellant. The Magistrate says that he believed Madappen, buthe has not considered this aspect of his evidence.
In regard to the confessions made to the Police Officers, section 25of the Evidence Act enacts that no confession made to a PoliceOfficer shall be proved as against a person accused of any offence.
> (1837) 8C.&P. 106.» (1907) 11 N. L. J*. 4.
29/36( 492 )
titt -''.fa R. v. Hurribole Chunder,1 Garth C.J, remarked: " I think itbetter in construing a section such as the 25th, which was intended&g a wholesome protection to the accused, to construe it in its widestand• most popular signification." The rule enacted by the section£is- without limitation or qualification. There are numerous local
Perm*decisions on the point: King v. Kalu Banda, 3 Appuhamy v. Palis, 3
anA Nambiarv. Fernando *
Any relaxation of the strictness with which such statements havebeen excluded in Ceylon would, as observed by Branch C.J. inWeerakoon. v. Ranghamy, Vbe followed by abuses which the Legis-lature intended to guard against.
t J3Che record, does not show that the accused was defended by anAdvocate or Proctor,.; but he probably was defended. The incrimi-nating statements made to the constables were elicited in cross-examination. Sergeant Dissanayake stated:"The accused said
he had got a little tea and asked me to let him go. He said also* my pension will also be taken.’ I did not record his statementin my notebook. P. C. Tambimuttu heard the conversation.At the Police Station accused, said he knew nothing about thetea."
r -The sergeant gives no excuse for not recording this all-importantstatement. The constable, Tambimuttu, stated, also in cross-examination, " Sergeant, asked me to search; accused did not expresssurprise when the tea was found. He said,- ‘ there is tea, and whyd6 you want to take
' These two statements are somewhat at variance. The Magistratesays in his judgment that he believes Sergeant Dissanayake andP. 0. Tambimuttu when they say accused admitted his possessionat the time the tea was found. In criminal cases evidence oforal confession of guilt ought to be received with great caution.(Taylor on Evidence, 10th ed., p. 605.).
It would have been more satisfactory ■ if the Magistrate had ex-amined the Police Officers more fully in regard to the circumstancesunder which the incriminating statements as to his possessionwere made, and whether they were made under the influence of hopeor fear. In R. v. Thompson, 6 Cave J., after, considering the authori-ties, laid down the test by which the admissibility of a confessionmay be; decided as follows: "Is it proved affirmatively that theconfession was free and voluntary, that is, was it preceded by anyinducement to make a statement held out by a person in authority?If so, and the inducement has not clearly been removed before thestatements were made evidence of, the statement is inadmissible."
1 (1576) X* If. R. 1 Cal. 215.4 (1925) 27 N. L. R. 404..
* (1912) 15 N. L. R. 422.B (192$) 27 N. L. It. 267.
•4 0. W. R. 355.• (1595) 2 Q. B. 12.
( 498 )
I should like to draw attention to the observations of Camduff J. 1Win Barindra Kumar (those v. Emperor x:" There is, however, one jaybwab-
remark regarding confessions which I am anxious to odd before mwbA. J.leaving the subject. For very obvious reasons there can be no iHsaanayvk*surer foundation of conviction. But for equally obvious reasons,p^^
confessions have always been, and always will be regarded byJudges with suspicion^ and I trust that nothing I have said in thisjudgment will be viewed as an incentive to the Police to aim atsecuring evidence of this class."
In Queen v. Matthews ,a a Police Officer under cross-examinationstated that the prisoner, when arrested, said that some Chinamenat the time of the occurrence came out with hatchets. In re/-examination he stated that the accused used the words *' at thetime I struck the deceased, " On objection, Field J. held that thatevidence could not be given. In the course of the argument counselfor the defence preferred the whole statement made by the accusedto the Police Officer to be given, as the whole statement showedthat the accused did not strike the deceased with a knife. Field J.would not permit it, holding that the law was imperative in exclud-ing what comes from an accused person in the custody of the Police,if it incriminates him.
In my opinion it would not be safe to accept the evidence ofMadappen or the statement alleged to have been made to thePolice Officers. The accused is a Police pensioner, who has alwaysborne a good character.
I quash the conviction and acquit the accused.
Set aside. 1
1 (1909) Z. L. R. 37 Cal. 467, at p. 515.
• (1384) Z. fc R. 10 Cal. 1022.
DISSANAYAKE v. PERERA