Present : Bertram C.J-.
MONIS APPU v. HEEN HAMY et q,L. 577—P. C- Panadure, 82,822.
Evidence—Co-accused—Statement from the' dock by one implicatinganother—Evidence Ordinance, 8. 30.’
• A statement made by an accused person .‘from the dock impli-cating a1 co-accused is not admissible in evidence ’ against the latter.
PPEAL from a conviction by the Police- Magistrate of Pana-dure. The two. accused in this case were charged with, the
theft of cattle. Both' absconded I The second accused was arrested.'-first and produced by the police. On the charge being explained-to him from the warrant, he stated: “ I saw Heen Hainy (i.e., thefirst accused) removing the bull about 12 o'clock." The* firstaccused was not produced for another fortnight. He pleaded notguilty. Later the second – accused repudiated the statement andsaid that it was made under police coercion. The learned Policel^pstrate expressed his disbelief of the allegations against the
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1924. police, and relying on the statement oi the second accused held;
M&UsAppu “ -^ow* taking this confession as a genuine one, and the rest of thev. Been evidence led in the case as corroborative of that confession, I thinkJHamy there is no other conclusion that is possible than that both accusedare guilty.
-No appearance for accused-appellants.
November 4, 1924. Bertram C.J.—
This, is an ordinary cattle theft case, with the usual difficulties.that present themselves in the evidence in such cases. There is a*further difficulty, however, which arises .out of a statement by oneof the prisoners, and the manner in which it has been dealt withby the learned Magistrate. According to the story of the prosecu-tion, the owner of the .animal woke up and saw the two accusedtaking it away. He woke his son and gave him their names. They. went in pursuit, and met the principal witness, Konja, who toldthem he had . seen and recognized the thieves. The .son, however,in giving his evidence in the Police Court, some three.and a half/months after the event, said that when Konja met 'them he statedhe had seen the thieves, Heen Hamy. and Peter. “ My father askedwhich Peter. Konja said: 4 Mr. Wickrarage Peter of Handapan-goda. * Further asked who this Heen Hamy was, he said JakodigeHeen Hamy. ” He persists, however, that his father gave himtheir names when he woke him up. This evidence at once suggestsa doubt as to whether the prosecutor did recognize the thieves,and whether he told his son their names. He repotted the matterthat morning to the Vidane Arachchi, who was acting for thelocal headman. To this man he gave no names.* The YidaneArachchi said that he made no inquiries. It is difficult to believe-that any headman receiving a report of .a cattle theft would not askwho were the witnesses. A belated witness; Raphael, .turned uplater in the day, and his name was given to the headman twodays afterwards..- *1
The case, therefore,. on the -face of it, was a dubious one, butboth accused absconded. The second accused .was arrested andproduced by the police a month later, and on the charge beingexplained to Him' from- the warrant, he stated: 4* I saw Heen Hamyremoving the bull about 12 o'clock. I went out to answer a callof nature, then I saw him. *' Heen Hamy, the first accused, was*not produced for another fortnight. He pleaded not guilty. Insubsequent proceedings, the second accused repudiated his state-ment and said that he made it under police coercion.
The learned Magistrate in his judgment drew attention to thisstatement as a special feature of the case, expressed his disbelief ofthe allegations of police coercion, and said: “ Now, taking this
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confession as a genuine one and the rest of the evidence led in the Wcase as corroborative of that confession, I think there is no other nrom.nconclusion that is possible than that both the accused are guilty of P-J-the offence with which they are charged. ”Monia App%f
v. Been ■
When this case came up on appeal, the accused were not represented Bcmyby counsel. The attention of the learned Magistrate was drawnto section 30 of the Evidence Ordinance as precluding him fromtaking into consideration as against the first accused any *’ con-fession ’ ’ made by the second, and he was asked for a further report..on the facts. The learned Magistrate replied by pointing but thatby the Full Bench decision in Rex v. Ukku Banda1 it was ruledthat section 30 related solely to. “ confessions ” made before theactual trial. Whereas this confession was made in the course ofthe trial itself. This is certainly a most pertinent comment by thelearned Magistrate, but there is only one circumstance which some-what mitigates its effectiveness, and that is, that the' statementwas not made in the course of the trial of the first accused againstwhom it is used, but was made before he was arrested and wasproduced against him afterwards. The learned Magistrate hasnevertheless drawn attention to a question which deserves consider-ation, namely, what is the legal effect of a statement made in thedock by one prisoner which implicates another ? The learnedMagistrate is quite right in pointing but that, strictly interpreted,seetion 30 does not apply to a statement of this, nature, but onlyapplies to statements, previously made which are tendered in evidence -at the trial. It applies, for example, to a statement made to theMagistrate in a non-summary inquiry, which is afterwards tenderedin evidence at the trial, But what if. the case is being disposed ofsummarily ? The answer to this inquiry is, I think, that it is onlyon evidence that a case can be decided. If one prisoner makes astatement implicating himself, this is an admission which may betaken into account. But if one prisoner standing in the dock makesan unsworn statement implicating the' other, this is not evidence.
It has no more effect than, an ejaculation uttered by an auditor inCourt. Attention has been already drawn to this matter in theFull Bench case to which the learned Magistrate refers on pages883-334.
' It. was not competent, therefore, to the learned Magistrate totreat this utterance of the second accused, which he rightly describesas being in law a “ confession, ’’ as evidence against the first accused.
But this . aspect of the case presents itself. Supposing theevidence leaves the mind of the Magistrate in doubt ,as to whetherthere was any actual identification-, and as to whether the chargemay not be based on mere conjecture or on malice. One of theprisoners in .the dock thereupon makes a statement Which discloses
1 (1923) 24 AT. L. R. 327.
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19ft4ithat he was onthe spot at-the time ofthe theft. He says in effect:
“ I was there,but it was the otherman who stole the. animal. ”
0.9,• This stateinent shows that the prisoner making it was, at any rate,
MonjeAppu on spot, and-that the; case for the prosecution is not a pure .. v. B«eninvention. AMagistrate . thereuponmay feel more confident in
Sarny<acting on the evidence against theaccused person making ■ the
statement,* even though that statement is' exculpatory in intention.May he not at the same time say: “ The witnesses are, at any rate,right about this man. I feel more confident therefore in acting ontheir evidence against the other. ■* I have carefully consideredthis aspect of the case, but I have come to the conclusion that thiswould be a dangerous course to pursue. In cases of identification,particularly where ;the identification is said to have been made at -night, it is important that the case against .each prisoner should befully, established. Let us suppose that there was a case in whichthe1 evidence o,f identification was not satisfactory, and that after-wards a witness appeared and said: “ I saw two men carrying offthe animal. One I recognized as Appu Hamy, but I could not seethe face of the other as it was wrapped in a shawl. ” Let-us supposethat'there was some circumstance which made the evidence of thissupervening witness absolutely unimpeachable, should-we be justi-fied in saying: 11 The witnesses are proved to be right about AppuHamy, we may therefore rule that they are right about the other- man. ” I feel that this , would be a dangerous principle to adopt.I think that the question of the guilt of each prisoner must be.separately * considered, and that, if the evidence against himsuggests a doubt, he is entitled to the benefit of that doubt.
Acting- on, this principle, I confirm the sentence against thesecond accused, and allow the- appeal of the first.
MONIS APPU v. HEEN HAMY et al