JAYETILEKE G.J.—Sinniah v. The King
[Court of Criminal Appeal]
19S0 Present: Jayetlleke C.J. (President), Pulle J. and Swan J.SINNIAH, Appellant, and THE BUNG, RespondentAppeal 35 with Application 75 of 1950S. C. 5—M. C. Jaffna, 18,097
Court of Criminal A-ppeal—Evidence—Statement made to police officer during investi-gation into offence—Admissibility—Difference between oral statement andrecorded statement—Criminal Procedure Code [Cap. 16), S. 122 [3).
The prohibition contained in section 122 (3) of the Criminal Procedure Codeapplies to the written record of the statement made by a person, and no legalobjection can be taken to oral evidence being given of the statement.
R. v. Jinadasa [I960) 51 N. L. R. 529 followed.
Appeal, with application for leave to appeal, against a convictionin a trial before a Judge and Jury.
H. V. Perera, K.C., with M. M. Kumarakulasingham, E. B. Satturu-kulasinghe, K. Sivasubramaniam and G. K. C. Sunderampillai, for theaccused appellant.
G. Allest Crown Counsel, for the Crown.
Cur adv. vult.
September 22, 1950. Jayf.tit.f.kf, C.J.—
The appellant was convicted of the murder of one Annammah andsentenced to death.
The evidence shows that on the night of January 20, 1950, the witnessSinniah was attacked by a party of men with clubs and swords and, in thecourse of the attack, a shot was fired by the accused which struck Annam-mah and killed her. The principal witnesses for the prosecution wereKanagasabai and Vvthilingam. They said that the night was a very darkone but they were able to identify the accused as the person who fired theshot with the aid of a hurricane lantern which was in the hands of a womancalled Paruvathan who was with the assailants. The question whetherParuvathan had a lighted lantern in her hands was a very important one,and, judging by a question which the Foreman desired to put to Sub-Inspector Vandervert, the jury seem to have realized it. There is nonote in the record of the question put by the Foreman and the ordermade by the presiding Judge, but there is a passage in the summing-upwhich indicates what they are. It reads,
“ Then I want to refer to the ques£ion which you, Mr. Foreman,wanted to ask the Sub-Inspector with regard to whether a statement- was made about a hurricane lantern. You will remember, I said thatwas a question which could not be put to the Sub-In spec uor of Police
■TA V Kl'n.T.KK C-J.—Sinniah v. The King
under our law. Let me put the matter this way. Certain contradic-tions were placed before you by Counsel for the defence. If there wasa contradiction on this point you would expect that such a contradic-tion too would have been placed before you. That is all so far as I cantake the matter. That would have been a vital contradiction withregard to the hurricane lantern, but no attempt was made to show thata different statement with regard to a hurricane lantern was made. Sothat you would have to draw your own inference from that ”.
It is clear from this passage that the learned Judge has not only ruledthat the question suggested by the Foreman could not be put under ourlaw, but he has, in effect, directed the jury, that, as Counsel for thedefence did not suggest to the witnesses that they did not mention intheir statements to Sub-Inspector Vandervert that Paruvathan had alighted hurricane lantern in her hands, they were entitled to draw theinference that the witnesses did in fact mention in their statements thatParuvathan had a lighted hurricane lantern in her hands. The verdictimplies that the jury followed the direction given by the learned Judge.
The said ruling and the said direction seem to us to be wrong. InIt. v. Jinadasa 1 a Divisional Bench* of this Court held that the statementreferred to in S. 122 (3) of the Criminal Procedure Code is the writtenrecord of the statement made by a person and that no legal objectioncould be taken to oral evidence being given of the statement. Evenif the answer to the question put by the Foreman was in the negativethere is. in our view, nothing in S. 122 (3) to render it inadmissible becauseit cannot be said that the witnesses made different statements at differenttimes. We are, therefore, of opinion that the question suggested by theForeman should have been allowed to be put to the witness. Withregard to the direction given by the learned Judge it will be sufficientfor us to say that it presupposes that Counsel for the accused had in hishands a copy of the statements made by the witnesses to Sub-InspectorVandervert, and it overlooks the positive provision in S. 122 (4) of theCriminal Procedure Code that neither the accused nor his agents shall beentitled to call for such statements.
We are of opinion that the appellant has been prejudiced by the ordermade by the learned Judge disallowing the question put by_the Foremanand by the direction given by him that the Jury were entitled to drawtheir own inference from defence Counsel’s omission to question thewitnesses whether they did not omit to mention in their statements toSr.b-Inspector Vandervert that Paruvathan had a lighted hurricanelantern in her hands. We do not think it is necessary to decide whether,in the circumstances of this case, the learned. Judge was justified in with-drawing from the jury the question whether the appellant had merelythe knowledge that his act was likely to result in death.
We would set aside the conviction and sentence and direct that theappellant be retried.
Case sent back for retrial.
(1950) 51 N. L. R. 529.
SINNIAH, Appellant, and THE KING, Respondent