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[Crown Case reserved.]
Present: Lascelles C.J. and Pereira and Ennis JJ.
KING v. KALU BANDA.11—P. C. Kegalla, 16,189.
[Second Criminal Sessions, Midland Circuit, 1912.]
Confession—Plea of self-defence—Evidence of police officer . that accused
did not in his statement to him set up pica of self-defence—Evidence
Ordinance, s. 26.
The accused,who wag charged with having caused grievous
hurt to one Balahamy, set up the defence that he was acting inself-defence.
The prosecution proved that the accused had . made a certainstatement to a police officer, and that in that statement he hadnot chargedBalahamy with having attacked or threatened to
Held, that this evidence of the police officer was not admissible.The police officer was allowed to give evidence of what was insubstance a confession by the accused.
“ If police officers are allowed to go into the box and say, ‘ Theaccused, soon after the' crime, made a statement to me, but in thatstatement he said not one word of the defence he set up beforethe Magistrate,' the object of the Legislature will be to some extentfrustrated.”
1J1 HE facts are set out in the judgment of the Chief Justice.
Elliott (with him Gurusamy and B. F. de Silva), for the accused.—The headman was called to prove that the accused did hot pleadself-defence when he made a statement to him. The effect of thatevidence on the jury would have been tantamount to a confessionby the accused that he did not act in self-defence. This evidence istherefore inadmissible; if admitted, the provisions of the EvidenceOrdinance re admissibility of confessions to police officers would bevalueless. [Lascelles C.J.—The statement is a self-exculpatoryexcused.] Even a self exculpatory excuse may amount to a con-fession. (Beg. v. Pandharinath;1 Ameer Ali on Evidence 435.)' Evenif the point was raised in cross-examination, the prosecution has noright to clear it up in re-examination by eliciting an incriminatingstatement by the prisoner. (Queen Empress v. Mathews.2)
1 6 Bom. 34.
2 10 Cal: 1032.
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Although the statement made by the accused was hot admitted, 1912.what he did not say was elicited. It would have been more fair if King v.the whole statement of the accused was put in evidence. (Queen K<Ou Band*Empress v. Jamcharam.’)
It has been held in Deonis v. Peris Appu 2 that evidence of thiskind is inadmissible.
Bawa, K.C., Acting S.-G., tor the Crown.—The Evidence Ordi-nance does not expressly exclude this evidence. The fact thataccused did not make a statement is not a confession.
This is evidence of conduct only; it is not .evidence oral ordocumentary. See King v. Francis Per era*
[Ehnis J.—Without proving the statement of the accused, youare seeking to prove the effect of it.]
In all the cases cited the statement made by the accused waselicited in evidence. We are only seeking to prove the conduct ofthe accused in this case.
Gut. adv. vult.
September 23, 1912. Lascelles C.J.—
This is a question with regard to the admissibility of evidencewhich has been reserved for the decision of this Court under section355 of the Criminal Procedure Code. The circumstances uponwhich the question has arisen are fully set out in the case stated bymy brother Wood Benton, and it is only necessary here to refer tothem briefly. The accused was convicted of causing grievous hurt toone Balahamy. The defence set up by the accused in hisstatutory declaration in the Police Court, and also in the SupremeCourt, was that he had struck Balahamy with a mamoty, but- thathe had done so whilst defending himself against an attack whichBalahamy was making upon him with a knife. The questionwhich we have to determine arose in connection with the statementswhich the accused made to the police headmen shortly after Bala-hamy was injured. Counsel for the Crown asked the headmenwhether the accused had made a statement to them. The answerto this question was in the affirmative. He then proposed to provethat, although the accused had made a statement .to the headmen,he had not in that statement charged Balahamy with havingattacked or threatened to attack him with a knife, or made anyreference to the use of a mamoty by himself. Objection havingbeen made to questions having this purpose in view, the objectionwas over-ruled; and Crown Counsel elicited from the headmenthat the accused in his statement had not said that Balahamy hadattacked or threatened him with a knife, or that the accusedhimself had used a mamoty. The learned Judge was of opinionthat the failure of the accused to disclose to the headmen the grounds119 Bom. 366.2 7 Tam. S3.2 9 N. L. R. 1SS.
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1912. of his ultimate, defence must have influenced the jury in arriving
. at their verdict.of guilty; and he suggested that if his view as to
■ c.J. the admissibility of the evidence in question was held to be incorrect,
~ the conviction should be set aside and the accused acquitted.
Kalu Banda Mr. Elliott, for the appellant, contended that under section 25 of“ The Evidence Ordinance, 1895,” the headmen, who are admittedlypolice officers, should not have been allowed to prove the omissionof the accused to set up the defence on which he relied in the PoliceCourt. Section 25 enacts that “ No confession made to a policeofficer shall be proved as against a person accused of any offence.”By section 17 (2) a confession is defined to be “ an admission madeat any time by a person accused of an offence stating or suggestingthe inference that he has committed that offence. ’ ’ By the preced-ing sub-section an admission is defined to be “a statement, oralor documentary, which suggests any inference as to any fact inissue or relevant fact which is made by any of the persons and underthe circumstances hereinafter mentioned.”
The question, then, which we have to determine is whether theevidence which the headmen were allowed to give was evidence ofan admission made by the accused stating or suggesting the inferencethat he had committed the offence with which he was charged.
The case for the Crown is that evidence that the accused wassilent with regard to his plea of self-defence was not evidence of a“ statement, oral or documentary,” by the accused; and it wasfurther contended that what the accused said to the headmen didnot amount to a confession.
It seems to me that when the headmen were allowed to provethat the accused, shortly after the offence was committed, made astatement to them, and that in that statement he made no referenceto the plea of self-defence, they were in effect allowed to prove thatthe accused made a statement which was different from and incon-sistent with the defence which he afterwards set up.. I cannotregard this as admissible under section 8.‘ It is, of course, in onesense evidence of conduct. But it is more than that. It is evidenceof part of the substance of the statement; for the value of a state-ment by an accused person in some cases depends on what theaccused omitted to say not less than on what he said. The effecton the mind of the jury could hardly have been different if theheadmen had been allowed to give evidence of what the accusedhad actually said. But then arises the question whether what theaccused said to the headmen amounts to an admission; whetherit stated or suggested the inference that the accused had committedthat offence. It is true that if regard is had to the object withwhich the statement was made, it cannot be regarded as an admis-sion; for nothing was further from the mind of the accused thanto make any admission of his guilt. On this point we were referredto several Indian decisions to the effect that statements made by
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accused persons to police officers, although intended to be madein self-exculpation and not as a confession, may nevertheless amountto admissions of incriminating circumstances, and so being capableof proof under the section of the Indian Evidence Ordinance,which corresponds to section 25 of the Ceylon Ordinance (vide Beg.v. Pandharinath,1 Queen Empress v. Jamcharam,a Queen Empress v.Mathews *).
We were also referred to the decision of Hutchinson C.J. inDeonis v. Peris Appu reported in 7 Tambyah 28. In that cas£the accused was charged with being in possesion of a stolen cowand a constable was allowed to depose that the accused, whenasked by him whose the cow was, stated that it was his own, and,that he bought it some years ago. It was there held that thisstatement, although made without any intention of making aconfession of guilt, was an admission within section 17 (1), inasmuchas it suggested an inference as to the material fact that the accusedwas in possession of the cow.
After hearing the arguments of Counsel and referring to the caseswhich were cited in argument, I am of opinion that when the head-men were allowed to prove the facts that the accused had madestatements to them, and that he had not in these statements setup the plea of self-defence, the headmen were allowd to giveevidence of what was in substance a confession by the accused.They were allowed indirectly to disclose part at least of thesubstance of the accused’s statement, the effect of this disclosurebeing such as to suggest the inference that the defence on which theaccused relied was not set up by him at the time when, if true,it would naturally have been set up, and that it was therefore false.
If regard be had to the intention and object of the Legislaturein enacting section 25 of the Evidence Ordinance, I think theconclusion must be the same.
It was recognized that police officers in Ceylon, as in India, arenot always proof against the temptation of deposing that theaccused made some statement the effect of which is to strengthenthe case for the prosecution, or to clinch the charge against theaccused.
In order to prevent this abuse, and in view of the difficulty oftesting the truth of statements made to police officers, the Legisla-ture had recourse to drastic means, and declared that no confessionsmade to a police officer shall be proved as against accused persons.But if police officers are allowed to go into the box and say.“ The accused, soon after the crime, made a statement to me, butin that statement he said not one word of the defence he set upbefore the Magistrate,” the object of the Legislature will be to someextent frustrated; police officers will be allowed in effect to exercise
‘ 6 Bom. 34.2 19 Bom. 3&.
» 10 Cal. 1092.
King v.Kalu Banda
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n power which the Legislature cnsidered could not be safelyentrusted to them. For so far as the probative effect of theevidence is concerned, there is little difference between a policeofficer giving the particulars of a statement which is inconsistentwith the defence and his stating in general terms that the accused,in his statement to him, did not mention the defence which heafterwards set up. The evidence in either case tells heavily againstthe accused. In many cases it will turn the 'scale against him.
For the above reasons, I am of opinion that the headmen shouldnot have been allowed to give the evidence in question, and in viewof paragraph 6 of the case I would set aside the conviction of theaccused and direct him to be acquitted.
The accused' was on, his trial for having voluntarily caused grievoushurt to one Balahamy, or, possibly, for a higher offence, as a resultof his having caused such hurt; tad the' prosecution proved thatthe acused had made a certain statement to a police officer, andthat in that statement he had not charged Balahamy with havingattacked or threatened to attack him with a knife, or mentionedthat he himself had struck Balahamy with a mamoty. Theaccused’s defence, as it appeared in bis statutory statement madebefore the. Police Court, was that he had acted in self-defence instriking Balahamy with a mamoty, inasmuch as Balahamy wasabout to attack him with a knife. Presumably, the statement thatthe accused is alleged to have made to the police officer was a state-ment explanatory of the cause of injury on Balahamy, and thequestion is whether evidence was properly admitted of the factthat a statement had been made by the accused, and that in it hehad not said that he was about to be attacked by Balahamy witha knife, or that he himself had struck Balahamy with a mamoty.Now, the jury had before it evidence, led by the prosecution, to showthat the accused had struck Balahamy with a mamoty. If, inview of that fact, they treated as significant only that portion ofthe police officer’s evidence, in which it appeared that the aeeusedhad omitted in his statement to the police officer to say that hewas about to be attacked by Balahamy, and drew from thatomission the inference that the accused was not attacked by Bala-hamy with a knife, then the police officer’s evidence would, ineffect, have wiped out the only exculpatory circumstance in thestatutory statement made by the accused, leaving that statementas an unqualified admission of the fact that the accused had struckBalahamy wth a mamoty. This is a contingency which, I think,may legitimately be taken into account in the present case. In thecircumstances mentioned above, did section 25 of the EvidenceOrdinance apply? The- Acting Solicitor-General argued, in thefirst place, that there was no evidence of any actual statement
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made by the accused; and, in the next place, the evidence of the 1912.
police officer did not amount to evidence of any confession by _
the accused. The term “ confession ” is defined in our Evidencec.J.
Ordinance, but it is left undefined in the Indian Evidence Act,——
with the result that in India in more than one case it was given a KduBandastrict interpretation. In Queen v. Macdonald1 and Empress v.
Debt Prasad 2 it was held that there was a distinction in the Actbetween admissions and confessions, and that unless a statementamounted to an outright confession it would be receivable inevidence. Field, in his book on the Law of Evidence m Britishlndia% cites later cases, and observes (page 148): “From theserulings it would seem doubtful whether Queen v. Macdonald 1 andEmpress v. Debi Prasad 2 should now be followed.'* There are stilllater decisions in which the Indian Courts, would appear to havegiven the term f< confession ” the meaning given to it in the definitionin Stephen's Digest of the Law of Evidence, and that definitionappears in its entirety in section 17 (2) of our Evidence Ordinance.
Omitting parts immaterial to the present question, it may be saidthat section' 17 enacts that an admission is a statement whichsuggests any inference, as to any fact in issue or relevant fact, anda confession is an admission made by a person accused of an offencesuggesting the inference that he committed that ’ offence. Now,it was argued that, in the present case, evidence was not givenof any specific statement made by the accused, and that, therefore,section 25 did not apply. The evidence led was to the effect thatthe' accused had made a statement, and that in that statement,there was no mention of the fact that he himself had been attackedby Balahamy. It is, I think, clear that if evidence of an actualstatement suggesting an inference adverse to the accused isinadmissible, a fortiori would evidence be inadmissible which, in away, is merely descriptive of a statement, and which carries with itthe insinuation that an exculpatory circumstance relied on by theaccused for hfe defence was no part of that statement. The greaterincludes the less. In the present case the jury had before it thestatutory statement made by the accused-, in which he had shownthat his defence was that he had acted in the exercise of the rightof private defence of the person. The evidence in question in thiscase was calculated to have in • the mind of the jury the effect ofeliminating from the statutory statement of the accused the onlycircumstance he relied on in that statement as a defence, namely,the circumstance that he himself had been attacked. The evidencewas as much open to objection as it would have been had it beenevidence of the actual contents of the statement alleged to havebeen made by the accused to the police officer.
Another view that might be taken is that the evidence given by thepolice officer was tantamount to evidence of a statement by the
1 10 B. L. R. 2.
* 61. L. R. Cal. 660.
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Fere ib a. J.
accused to the effect that Balahamy did not attempt to attackhim with a knife.
I think that the principles on which the exclusion of evidenceof outright confessions is based have equal application to theexclusion contended for in the present case.
As regards section 8 of the Evidence Ordinance, I need only saythat although evidence of conduct may be led under that sectionthe evidence should be such as would not contravene the provisionsof any other section of the Ordinance.
In view of the above, and of what is stated by . my brother WoodBenton in the 6th paragraph of his statement of facts, I think thatthe conviction should be set aside and the accused acquitted.
In this case evidence by a police officer was admitted that theaccused had made a statement to him which differed froi astatement made by. the accused to the Police Magistrate.
Section 25 of the Evidence Ordinance says, “ No confessk „made to a police officer shall be proved as against a person accusedof any offence. ”
It is conceded that under this section it was not open to theprosecution to prove any statement made by an accused to a policeofficer relating to circumstances which would incriminate theaccused.
To allow evidence by a police officer of the substance of astatement made to him by an accused from which incriminatingcircumstances may be inferred would, I consider, be contrary tothe intention of section 25. For if the statement really werean admission of some incriminating circumstance, it could not beproved, and if not such an admission, and therefore not a confessiondefined by section 17 (2) of the Evidence Ordinance, no inference• incriminating the accused could safely be drawn from the statementor from the substance of it.
The police officer’s evidence was to the effect that a statementmade by the accused differed from one made to! the Magistrate,and, in my opinion, leads to an inference that the accused hadmade a “ confession. ” The evidence, I consider, went further thanmere evidence of conduct. Moreover I think it would not beadmissible as evidence of conduct under section 8 of the EvidenceOrdinance. Explanation 1 of that section seems to me to precludeit. In this case it would be evidence of conduct from a statementby showing what the statement did not contain.
therefore, consider the evidence relating- to the nature of thestatement made by the accused in this case to the police officerwas inadmissible.
I would acquit the accused.
KING v. KALU BANDA