Present : De Sampayo J.
JOSEPH v. PERIS et at.
232—P. C. Panadure, 78,014.
Statement by one accused implicating the other accused mode outsideCourt—Inadmissible as against other accused—’Agreementby
accused to pay compensation on the suggestion of the master of theaccused—Impliedconfession—Isconfession admissible against
The complainant charged the two accused with theft of certainarticles. Theconvictionof the first accusedwas basedon two
circumstances:(1) 'Thesecond accused madea statementto the
District Engineer implicating the first accused ;(2) the first
accused on the suggestion of the District Engineer offered topay Bs. 46 to the complainant as compensation.
Held, (1)that theconfession made bythe secondaccused
outside Court to the District Engineer was inadmissible in evidenceagainst first accused (section 30 of vthe Evidence Ordinance) ; (2)that as the District Engineer was a person in authority over thefirst accused(servant), the implied confessionof the firstaccused
wasinadmissible, as he supposed thatby making the settlement
withthe complainant as suggested byhis master hewould gain
an advantage or avoid an evil.
T HE facts appear from the judgment.
May 18, 1923. De Sampayo A.C.J.—
I think this appeal by the first accused must succeed. He andthe second accused were convicted of the offence of theft of somearticles of clothing and cash belonging to one Joseph. The com*plainant, Joseph, was a watcher employed under the DistrictEngineer. The first and second accused were also employedas coolies under the District Engineer. On March 23 last, thecomplainant lost from his room a . box containing the articles ofclothingandthe cash referred to. Thecomplainantsuspected
the first accused, because on the day previous the first accusedhappened to come into the room and had seen the box containingthearticles.But the evidence against him is neitherdirect nor
given by any witnesses. His conviction is said to be based on twocircumstances, which, according to the Police Magistrate, whencombined, establish his guilt. 'The first circumstance is that thesecond accused made a statement to the District Engineer impli-cating the first accused. But that statement was not repeated bythe second accused iu Court, although he gave evidence. As amatter of fact he said that he was coerced into'making that state-ment by the complainant, and he denied the truth of what he isalleged to have stated. Consequently, there is nothing against thefirst accused in the sworn evidence of the second accused in Court.
( 486 )
But the Police Magistrate utilized the statement the second accused
Tin fliWBtvn made to the District Engineer outside the Court and under circum-
stances which does not bring the statement within the provisionsof the law.
Mr. H. V. Perera, for the accused, points out section 30 of thecEvidence Ordinance, which shows that statement to be whollyinadmissible. Section 30 enacts: ‘'When more persons than oneare being tried jointly for the same offence, and a confession madeby one of such persons affecting himseHT"and spine other of suchpersons is proved, the Court shall not take into consideration suchconfession as regards such other person.” I am bound to holdthat, in view of that provision the confession made by the secondaccused to the District Engineer was inadmissible, and does notfurnish uny evidence against the first accused. The result ofthat ruling is that one of the circumstances, which, when combinedwith another, is said to form evidence against the first accused,disappears. The other circumstance is that the first accusedoffered to setttle matters with the complainant. That happenedin this wise: The District Engineer, who appears to be a goodmaster to all his servants, took some interest iu the incident of thecomplainant’s loss and the suspicion as against the first accused,and suggested to the first accused that it was better for him tosettle matters. The first accused then offered to pay the com-plainant Us. 45, of which, on a subsequent occasion, he paid Rs. 25.From this is drawn an implied confession on the part of the firstaccused as,against the charge made against him. In itself, I thinkthat this circumstance cannot reasonably be utilized to foundsuch a large inference; for even an innocent man might, under themoral pressure brought upon him by his master, consent to settlematters with the person who is making a claim against him. ThePolice Magistrate quite appreciates that weakness, but he saysthat when that circumstance is combined with the second accused'sconfession, it makes a sufficiently strong case against the firstaccused. But I have already shown that the second accused'sconfession must be eliminated. So we are left only with the othercircumstances. Moreover, the provisions of section 24 of the Evi-dence Ordinance might be applied to cover the case of the firstaccused's act in settling matters with the complainant on the adviceof his master, the District Engineer; for that section declares anyconfession to be irrelevant which is made by an inducement proceed-ing from a person in authority, and which inducement is sufficientin the opinion of the Court to give the accused person reasonablegrounds for supposing that by making it he would gain an advantageor avoid any evil of a temporal nature in reference to the proceedingsagainst him. In this case it is quite clear that the District Engineeracted through .pure kindness, and not with a view to extracting aconfession. Nevertheless, the suggestion proceeded from him.
( 487 )
who, with reference to the first accused, was a person in authority, *****and it is not difficult to understand that the first accused supposed jy& Samtasvthat by making the settlement with the complainant as suggested A*Q*9,by his master, he would gain un advantage or avoid an evil. In Joseph v.
any case, this circumstance, the Police Magistrate himself states, is Petri*hardly sufficient to base any adverse inference against the firstaccused. The result of these considerations is that there is noevidence against the first accused, and he is, therefore, entitledto ask that he lie discharged from the prosecution.
The conviction of the first accused is set aside.
JOSEPH v. PERIS et al