116WIJEYEWARDENE J.—The King v. Cassim.
[Court of Criminal Appeal.]
1946Present: Wijeyewardene J. (President), Cannon J.
and Canekeratne J.
THE KING v. CASSIM et al.
Appeal No. 52, with Applications 195, 196 and 198.
S. C. 57—M. C. Galle, 50.
Evidence—Hearsay evidence led on material point—-Jury invited to considerall the evidence, which included the hearsay evidence—Probability ofprejudice to accused by such direction.
Where hearsay evidence formed part of the evidence upon which theJury were invited to decide a vitally important question which arosein the case—
Held, that it was likely that the Jury were influenced by the referenceto the hearsay evidence.
PPEAL^ with applications for leave to appeal, against three con-victions in a trial before the Supreme Court.
H. V. Perera, K.C. (with him J. Fernandopulle), for the second accusedin Appeal No. 52 and Application No. 195.
A. Hayley, K.C. (with him H. W. Jayewardenej, for the third accusedin Application No. 196.
H. W. Jayewardene, for the first accused in Application No. 198.
H. A. Wijemanne, C.C., for the Crown in Appeal No. 52.
Cur. adv. vuIt.
December 12, 1946. Wijeyewardene J.—
The first accused was charged with attempting to commit murder bycausing the death of one Mohammadu and the second and third accusedwere charged with abetting the first accused. All the accused wereconvicted and each of them was sentenced to six years’ rigorous imprison-ment.
The first accused has applied for leave to appeal against the sentenceand the third accused for leave to appeal against conviction and sentence.We refuse those two applications.
The second accused has appealed against the conviction on questionsof law and has also applied for leave to appeal against the sentence andagainst the conviction on matters other than law.
According to the evidence given by Mohamadui there was some un-pleasantness between him and his father-in-law, the second accused, overcertain money transactions. In November, 1945, Mohamadu caused hisProctor to send a letter of demand to the second accused for Rs. 4,000.On December 24, the second accused sent him a message through oneSamath inviting him to meet the second accused at the latter’s residenceon the following day between 2 and 4 p.m. When he went there at theappointed time, the second accused offered him a seat in the sitting roomand said, “ It is useless our going to Court. I will settle all matters today.
WUEYEWARDENE J.—The King v. Cassim.
I will bring a lawyer The second accused then went to the verandah,giving him the impression that the second accused wanted to see if thelawyer was coming. The second accused returned to the sitting room withina few minutes and sat close to him. Immediately afterwards, the thirdaccused came and with the active assistance of the second accused heldhim down, while the first accused “ rushed ” from the directionof the verandah and stabbed him once on the chest. He released him-self from the grip of the second and third accused and stood up whenthese two accused ran away. He walked up to the gate of the compoundand laid himself on the ground when Azeez, the Crown witness, came there.Pointing to the first accused who was close by he told Azeez, “ Father(first accused) stabbed me while Cassim (second accused) and Saraeen(third accused) held me Azeez put him into a rickshaw and took himto the Police Station and then to the Hospital.
Azeez who is a tenant of Mohamadu was called as a witness by theCrown. He said that the second accused came to his house that after-noon—about fifty yards from the second accused’s house—and askedhim “ to come and intervene ” as Mohamadu “ was creating a disturbance ”.He went to the gate of the second accused’s compound, when Mohamadupointed to the first accused and said, “ This man stabbed me ”. Justthen, one Sheriff came and both he and Sheriff accompanied Mohamaduto the Police Station and the Hospital. According to Azeez, it was whenMohamadu had gone about a quarter of a mile from the second accused’shouse that he said that the second and third accused held him down whenthe first accused stabbed him. Under cross-examination, Azeez admittedthat he made two statements to the Police that day—a short statementwhen he accompanied Mohamadu to the Police Station and a longer onewhen he returned to the Police Station after leaving Mohamadu at theHospital. Azeez admitted further that he did not mention to the Policein either of those statements the information given to him by Mohamaduimplicating the second and third accused.
The Crown did not call Sheriff as a witness at the trial, though he wascalled as a witness for the prosecution at the non-summary inquiry.Sheriff who was called as a witness by the second accused said that hewas close to Azeez at the second accused’s gate when Mohamadu said,“This man stabbed me”. He did not say that Mohamadu made a state-ment relating to second and third accused on the way to the Police Station.It was not even Suggested by the Crown Counsel in cross examinationthat he had made a statement either at the Police Station or in theMagistrate’s Court to the effect that Mohamadu mentioned to him the.names of the second and third accused at any time that day.
The defence of the second accused was that Mohamadu came to hishouse that day unexpectedly and then created a disturbance questioninghim about a petition. The second accused ran out and told Azeezand Sheriff “ my son-in-law has come there and is creating a disturbancePlease come ”. Azeez and Shreiff went to his compound and he followedthem when he saw Mohamadu injured and the first accused standing closeby, with a knife in his hand. He denied that he sent Samath to Moh nduinviting Mohamadu to come that day.
118WIJEYEWARDENE J.—The King v. Cassim.
The Counsel appearing for the second accused raised a number ofpoints in the course of his argument but I think it sufficient to consideronly two of those points.
The first point arises in respect of the evidence which Mohamadu waspermitted to give, namely, that Samath brought a message from thesecond accused inviting him to the second accused’s house. The Crowndid not call Samath. The only evidence on behalf of the defence of thethree accused on this point is the denial of the second accused that hesent a message by Samath. The evidence, therefore, of Mohamadu thatSamath brought a message from the second accused was hearsay. In thecourse of his charge to the Jury the learned trial Judge said—
“ That brings you ultimately to this most important question,that is to say, the question whether on all that you have heard andseen in this case you think this is a case in which the injured man camethere unexpectedly to create a disturbance, or whether this is a case,as the injured man himself says, he came there by appointment.”
Clearly, the question mentioned therein is whether Mohamadu’sarrival at the house of the second accused was expected or unexpectedby the second accused. If the second accused had, in fact, sent amessage by Samath there could be no doubt that Mohamadu’s visit wasarranged and expected by the second accused. That is a vitallyimportant question as that would prove that the second accused deli-berately planned to get Mohamadu to his house that afternoon. Thatwould be an incriminating item of evidence against the second accusedon the charge of abetment since the case of the Crown was, as pointedout in the charge, that the second accused abetted the first accusedby “ engaging in a conspiracy ” and “ intentionally aiding ” the firstaccused. Through an oversight the Jury was invited to decide thatquestion by a consideration of all the evidence heard by them and thatwould include the hearsay evidence referred to.
I shall now proceed to consider the second point. It will be seen fromthe summary of the evidence given above that the statement of Moha-madu that he mentioned to Azeez the names of the second and thirdaccused, as he was lying injured at the second accused’s gate, is contra-dicted by Azeez who said that the statement was made sometime afterwhen Mohamadu was being taken to the Police Station. The secondaccused relied on the omission of Azeez to make any reference to thesecond accused in the statements to the Police to show that at no timeMohamadu had mentioned the name of the second accused to Azeez.The second accused relied also on the evidence given by Sheriff. It wasin these circumstances that the Proctor for the second accused drewthe attention of the trial Judge at the close of his charge to the Juryto the fact that he had omitted to refer to the evidence of Azeez andSheriff and the statements made by Azeez to the Police as disprovingthe evidence of Mohamadu that he mentioned the name of the secondaccused to Azeez or Sheriff. The learned trial Judge, thereupon, said—“ On no occasion, in no statement, did Azeez say the parts playedby the second and third accused were these, but then you will bearin mind, gentlemen, that in an emergency such as this people are
Harmed v. Thuraisamy Nadar.
generally concerned—I mean unless people are very careful to crosstheir t’s and dot their i’s—with the main incident, who stabbed,and that is the way in which the Crown says this happened. But thefact remains, as was elicited I think in the evidence, that the injuredman made a dying deposition that night in which the second and thirdaccused were implicated, and that is why the Police arrested thesecond accused and were in search of the third accused.”
Now the dying deposition was not in evidence in the case. The onlyrelevant reference to the dying deposition is in the evidence of theInspector of Police who said—
“ It is only as a result of the dying deposition of Mohamadu that Iobtained a warrant against the third accused. ”
It would thus be seen that the reference in the charge to the Juryto the dying deposition is incorrect so far as it relates to the secondaccused.
This is a case with peculiar features as stated by the learned trialJudge and we think it likely that the Jury may have been influencedagainst the second accused by the reference to the hearsay evidence ofSamath and the statement with regard to the dying deposition and maythus have found an explanation of the “ peculiar features ” and reacheda decision against the second accused.
We would, therefore, quash the conviction of the second accused anddirect his re-trial.
Convictions of first and third accused affirmed.
Conviction of second accused set aside and re-trial ordered.
THE KING v. CASSIM et al