The King v. Davith Singho.
1936Present: Dalton S.P.J., Akbar and Poyser JJ.
THE KING v. DAVITH SINGHO.
93—P. C. Panadure, 29,864.
Statements recorded by Police—Investigation under Chapter XII. of theCriminal Procedure Code—Witnesses cross-examined on statement—For purpose of contradicting them—Regularity—Judge’s direction tojury—Criminal Procedure Code, s. 122 (2) (3).
It is not a contravention of section 122 (3) of the Criminal ProcedureCode to read to the jury the entirety of the statements of witnesses,recorded by a Police Officer under section 122 (1) during an inquiry,where it is done for the purpose of contradicting them.
Where the trial Judge directed the jury that they were entitled totake into consideration these statements to decide for themselves whetheror not they were prepared to belive the evidence given by the witnessesduring the trial,—
Held, it was not an improper direction in law.
HIS was a case stated under section 355 (3) of the Criminal ProcedureCode.
The accused was charged with murder and convicted of the offence inthe Assize Court, Colombo.
At the trial among those who gave evidence for the prosecution weretwo witnesses, viz., Thepanis and Kumatheris, whose statements hadbeen recorded by a Sub-Inspector of Police in the course of his inquiry.When the former witnesses gave evidence they were cross-examined byCounsel for the accused, suggesting that their original statements to thePolice differed from their evidence given at the trial.
When the Sub-Inspector gave evidence he was questioned about thestatements made to him and he stated that he could not remember thecontents. The learned Judge thereupon asked for the officer’s note-book and found that the statements made to the Sub-Inspectordiffered on certain points from the evidence given in Court. As a result,the learned Judge allowed the Sub-Inspector to read them from thewitness-box.
Siri Perera (with him Mackenzie Pereira and R. M. E. Rajapakse), foraccused.—A direction to the jury by the learned trial Judge that “ they wereentitled to take into consideration the statements made by these wit-nesses at the investigation made by the Sub-Inspector of Police in orderto decide for themselves whether or not they were prepared to believe theevidence given by the witnesses during the trial ”, is tantamount to adirection that the jury were entitled to take into their considerationthese statements as a reason for deciding to believe the evidence givenby these witnesses during the trial. In other words, it was a directionthat if the jury found it as a fact that these statements corroboratedthe evidence given at the trial, that then they could decide to believethem. Inasmuch as this is a direction that the jury were entitled toregard the statements in question as corroborative evidence, it is anincorrect direction in law, for the reason that such a use of the statementsin question would be plainly contrary to the provisions of section 122 (3)of the Criminal Procedure Code. Under section 122 (3) of the CriminalProcedure Code, statements made to a Police Officer conducting an
DALTON S.P.J.—The King v. Dainth Singho.
investigation tinder Chapter XII. of the Criminal Procedure Code can beused only for two purposes, i.e., (a) to refresh the memory of the personrecording the statement, and (b) to prove that a witness made a differentstatement at a different time. The effect of the statements of the twowitnesses, Thepanis and Kumatheris, in the net result was to corroboratetheir testimony given in Court, despite the fact that on one or two pointstheir statements to the Police Inspector were at variance with thattestimony. That it was apparently not the intention of the learnedtrial Judge to contradict them by these statements is obvious from thefact that he did not follow the procedure laid down for that purpose insection 145 of the Evidence Ordinance. Therefore it was clearly illegalto read out to the jury the whole of the statements of these two witnesses,since such a procedure is manifestly contrary to the provisions of section122 (3) of the Criminal Procedure Code.
J.E. M. Obeyesekere, Acting Deputy S.G. (with him Kariapper, C.C.),for the Crown.—Section 122 (3) of the Criminal Procedure Code may beused for one of three purposes, namely, (a) to prove that a witness madea different statement at a different time ; (b) to refresh the memory of theperson recording the statement ; (c) to aid the Court in the inquiry ortrial. It is improper to use such a statement to corroborate a witness(The King v. Soyza ’). Counsel also referred to Paulis Appu v. Don Davith 1and to King Emperor v. Dal Singh3. If the trial Judge intended to usethe statements recorded in the Information Book to contradict Kuma-theris and Thepanis, the points of contradiction should first have beenput to these witnesses and their explanations obtained. Thereafter, theInspector should have been permitted to testify only to those passages,which contradicted the evidence given by these witnesses in Court. Itwas improper to read to the jury the whole of their statements as theycontained, in parts, corroboration of the evidence they gave. Thelearned Judge’s direction to the jury that they could take these statementsinto account in deciding whether they were prepared to believe thewitnesses or not, was in effect a direction that they may make use of thestatements to corroborate the evidence given in Court. But an improperuse of statements recorded in the Information Book will not necessarilyvitiate a conviction. Counsel referred to The King v. Soyza (supra) andto Horan v. James Silva3. If the conviction can be sustained by theother evidence in the case, a Court of Review should not interfere.Counsel referred to the case of Elahee Buksh ° and to King v. Beecham *and 'King v. 'Williams and another.1
Cur. adv. vult.
January 24, 1936. Dalton S.P.J.—
This matter comes before us in the form of a case stated by the Attorney-General under the provisions of section 355 (3) of the Criminal ProcedureCode. The accused was charged with murder committed on or aboutDecember 6, 1934, and was convicted of that offence in the Assize Court,Colombo, on November 19 last by a verdict of the jurors of five to two.
* (1924) 26 N. L. R. 324.< 7 Times L. R. 136.
2 (1930) 32 N. L. 11. 336.5 S Sutherland's Weekly Reporter 80.
2 44 Calcutta S76.« (1921) 3 K. B. 470.
r 34 C. A. R. 135.
DALTON S.P.J.—The King v. Davith Singho.
At the trial, amongst those who gave evidence for the prosecution,were two witnesses named Thepanis and Kumatheris. A Sub-Inspectorof Police, S. H. de Zoysa, was also called for the Crown. He had beencalled to the scene of the murder very soon after the deceased was killed,and investigated the circumstances of the offence, in the course of hisduty recording statements from the witnesses whom he had taken to thePolice Station.
In the course of the case for the prosecution at the trial questionswere put to Thepanis, Kumatheris, and other witnesses for the Crownby Counsel for the accused, suggesting that their original statements tothe Police differed from their evidence given at the trial incriminatingthe accused, and that they had been instigated by the Police, and pre-sumably by Sub-Inspector de Zoysa, to change their original statements;it was further alleged that they had been coerced into giving evidenceagainst the accused. The witnesses Thepanis and Kumatheris deniedthese allegations, and it may be stated here that no attempt was madeby the defence to substantiate these charges against the Police. Theaccused in his evidence does say that the only reason he can give whythe deceased’s wife should give evidence against him was because shewas instigated to do so by the Police, but apart from that there wasnothing adduced in support of the charge, and it would seem to havebeen very recklessly made.
When Sub-Inspector de Zoysa came into the witness-box, he wasquestioned about the statements made to him, but stated he could notremember the contents of them owing to the length of time that hadpassed, nearly one year, since the offence was committed. The learnedtrial Judge thereupon asked for the officer’s notebook containing thestatements and examined it. He then found that Thepanis and Kuma-theris had made statements to the Sub-Inspector, which differed oncertain points from the evidence they had given in Court. It wasclearly in the interests of the accused therefore that the original state-ments should be before the jury, since they went to contradict the twowitnesses on some important points.
As a result of what he found in the statements contrary to the evidencegiven at the trial, the learned Judge allowed the Sub-Inspector to readthem from the witness-box. No objection at all was raised by counselfor the accused to this being done, for it was in the interests of the accused.He asked for and obtained inspection of the notebook, and cross-examinedthe Sub-Inspector upon the entries in question. He also continuedhis charge against the Police, suggesting to the witness that he hadintimidated the prosecution witnesses.
In the course of his charge to the jury, the learned Judge told thejury “ in the clearest terms that they had to return their verdict upon theevidence given by the witnesses at the trial, but that they were entitledto take into consideration the evidence given by the witnesses in thePolice Court and the statements made by them at the investigation bythe Sub-Inspector of Police to decide for themselves whether or notthey were prepared to believe the evidence given by the witnesses during
DALTON S.P.J.—The King v. Davith Singho.
the trial before them He went on to warn them against acceptingthe evidence of one Crown witness, the wife of the deceased man, on anypoint.
There can be no doubt that the instructions to the jury referred to inquotation marks above were given because the statements of the twowitnesses read out by the Sub-Inspector contradicted their evidencegiven in Court on certain important points, and the jury were entitled tohave those contradictions before them in deciding as to the truth orotherwise of the evidence of these witnesses at the trial.
The questions we are asked to answer in this case are two in number: —
Whether the trial Judge was right in causing to be read to the jury
the whole of the statements made to the Sub-Inspector of Policeby the witnesses Thepanis and Kumatheris ?
Whether the trial Judge’s direction to the jury that they were
entitled to take into consideration the statements made by thesewitnesses at the investigation by the Sub-Inspector of Policein order to decide for themselves whether or not they wereprepared to believe the evidence given by the witnesses duringthe trial is a proper direction in law ?
The position taken up by counsel for the accused now is that the twostatements read by the Sub-Inspector were used to corroborate, andhad the effect of corroborating, the evidence of the two witnesses givenat the trial, and that the use of them was contrary to the provisions ofsection 122 (3) of the Criminal Procedure Code.
The evidence of Thepanis at the trial was shortly to the effect thaton the evening just before the deceased was killed, he heard cries and sawthe accused chasing the deceased along the road. He followed but didnot approach them. It was a dark night but he stated that the accusedhad a torchlight in his hand and he noticed the light following the deceased.There were no lights on the road, but he made it clear to the Court that heidentified the accused by two means, (1) the torchlight in the accused’shand, and (2) a cry by the deceased that the accused (giving his name)was chasing him. On the second point, in view of what the witness hadstated in the Police Court, he was cross-examined by counsel for theaccused to the effect that the deceased had not called out any name atall when he was being chased, but merely “ Murder ”. A reference tothe Police Court evidence shows that Thepanis there mentioned no cryby the deceased that the accused was chasing him. With regard to thefirst point, however, the presence of the torchlight in the accused’s hand,counsel was not in a position to suggest that Thepanis’ evidence in thePolice Court differed from his evidence at the trial, but he (Thepanis)made it clear, beyond any doubt when before the Magistrate, that althoughit was dark, he was able to identify both the accused and the deceasedby means of the accused’s torchlight. In his cross-examination at thetrial he stated for the first time that he (the witness) also had a torch-light in his hand, an addition to his earlier evidence which showedprobably that even he appreciated the important part some artificiallight on a dark night played as a means of identifying the assailant.
DALTON SJPJ.—The King v. Davith Singho.
With this somewhat unsatisfactory evidence of Thepanis on thequestion of a light before him, the learned Judge, when Sub-Inspectorde Zoysa was in the witness-box, became aware of the contents of theearliest statement of Thepanis, namely, the statement to de Zoysamade very early on the morning of the day following the murder.The statement, a very short one, was as follows: —
“ Yesterday at about 8 p.m. I was in the store when I heard shoutsfrom the direction of the road. These shouts were ' murder ’.I came up towards the road where I saw Baby Singho runningfollowed by Davith Singho at this spot. I saw both fightingand then I saw Baby Singho falling down. I ran towardsHorana to inform the Police Vidane and I told him that Babyis lying injured. ”
It mentions no artificial light or torch in the hands of anyone when hepurported to identify the accused and the deceased. If one may say so,the learned Judge appreciated the importance of this omission to theaccused, and quite properly allowed it to go to the jury.
The objection to the course he took raised by counsel for the accusedbefore us is that the statement corroborates the evidence of Thepanison some points, for example, that about 8 p.m. he heard shouts on theroad, and that he saw the accused and the deceased fighting. Thereal question, however, was whether Thepanis was sneaking the truthwhen he said he had identified the assailant. On both points referredto above, (1) the cry of the deceased giving the name of the accused and(2) the presence of the torchlight in the hand of the accused or of anyoneelse, the statement to the Sub-Inspector contradicts, or is at variancewith, his evidence at the trial. The only cry he mentions in his earlieststatement was one of “ murder ”, and he makes no mention of anytorchlight at all. The statement clearly therefore went to contradictand discredit the evidence given by him at the trial that he had identifiedthe accused as the assailant of the deceased.
It was then urged that, if it was sought to discredit Thepanis by theproduction of this earliest statement of his, he should have been recalledand the statement put to him, as required by section 145 of the EvidenceOrdinance. That was a course which it was open to counsel for the defenceto follow if he thought it necessary, for we think it must have beenapparent to him that it was in the interests of the accused to have thestatement of Thepanis to Sub-Inspector de Zoysa before the jury tohelp them in arriving at the worth of his evidence at the trial. He didnot take that course, neither did the learned Judge do so, possiblybecause Thepanis had already been fully cross-examined on both reasonshe had given for identifying the accused that night.
The statement of the witness Kumatheris to Sub-Inspector de Zoysawas as follows :—
“ To-day at about 8 p.m. I was in the house of Baby Akka when I heardshouts from the direction of Baby Singho’s house. I cameup . running when I saw Baby Singho and Davith on the roadnear Baby’s house. Davith had a torch in one hand and aknife in the other hand. I then saw Davith stabbing one blow
DALTON S.P.J.—The King v. Davith Singho.
at Baby Singho. I cannot say where the blow alighted. ThenBaby Singho shouted out ‘ murder ’ and came running towardsHorana followed by Davith. Davith was flashing the torch atthe time. Baby Singho came up to the spot where the body islying now, and Davith stabbed him several times and BabySingho fell down. Several people' came running with me.Davith ran away and I cannot say where he ran. I went homeand informed Arthur and hid myself and later appeared. ”
This evidence given by Kumatheris at the trial differs on two importantpoints from the statement he made to the Sub-Inspector, and there isanother minor difference which in the circumstances might have somebearing on his credibility at the trial. The witness makes it plain at thetrial that it was, to use his words, “ a very dark night ”, and that heidentified both the accused and the deceased, and was able to makethem out by means of a light thrown on the road from a house near by.He adds that he also identified 'the deceased (but not the assailant) bymeans of a light thrown on him from a torch in the hands of the assailant.The impression one gets from the statement to the Sub-Inspector is thatit was the torch being flashed in the hands of the assailant that helpedthe witness to identify both the accused and the deceased. No otherlight at all is mentioned by him on that occasion, and he does not saythat anything spoken by the assailant assisted him in recognizing theaccused as the man.
Another important difference is as to the actual stabbing he allegedhe saw. At the trial he said he only saw the accused stab the deceasedonce, that thereafter the deceased ran away, the accused chasing him,there was then a struggle, the deceased fell down, and the accused wentaway. He stated in cross-examination at the trial that he did not seethe accused stabbing the deceased when he lay fallen. That cross-examination was doubtless based upon his statement on this matterin his evidence in the Police Court, which is the same as his statementto the Sub-Inspector. There he said he saw the accused stab the deceasedseveral times at the spot where the body was eventually found lying.The question would naturally arise, whether, having made these twocontradictory statements on most important points, he had seen theaccused stabbing the deceased at all.
The remarks made above in respect of the contradictions in theevidence Off Thepanis that came to the notice of the learned trial Judgeapply equally to the evidence of Kumatheris, and the answer to theobjection raised by counsel before us to this evidence is exactly the same.The two statements were used for the purpose of contradicting the twowitnesses and were properly put before the jury. In that case there wasno contravention of the provisions of section 122 (3) of the CriminalProcedure Code.
The Acting Deputy Solicitor-General took up the same position ascounsel for the accused in respect of the first question raised in the casestated, namely, that the learned trial Judge should not have allowedthe whole of the statements to Sub-Inspector de Zoysa to be read, andthat the two witnesses whom it was sought to discredit should have beenrecalled, but that argument has been dealt with above. He further
Saibo v. Abuthahir.
urged, however, that, apart altogether from the evidence of Thepanisand Kumatheris, there was ample evidence to justify the verdict of thejury.
With regard to the second question, assuming that the answer to thefirst question was in the affirmative, namely, that the trial Judge wasright, counsel for the accused urged that his direction to the jury wasnevertheless wrong. The Acting Deputy Solicitor-General was unableto agree with counsel for the accused on this point. Counsel for theaccused argued that, on the assumption referred to, the only directionthe trial Judge could give was that the evidence given at the trial couldnot be acted upon by the jury at all. With that argument we are unableto agree. Having come to the conclusion that the trial Judge was correctin admitting the statements made to the Sub-Inspector, we are of opinionthat he correctly directed the jury as to how they were entitled to makeuse of them. Both questions must therefore be answered in theaffirmative.
It is necessary to make one more remark. When the argument beforeus was opened, counsel for the accused informed us that there were somestatements in the learned trial Judge’s order of November 20, refusingto state a case for this Court, which to the best of his recollection wereincorrect. These alleged inaccuracies related to the cross-examinationof the two witnesses by counsel for the accused, suggestions by him ofintimidation by the Police, inspection of the Sub-Inspector’s notebook,and the statements therein, and cross-examination of the Sub-Inspectorthereon by counsel for the accused. The report of the learned Judgethereon was before us when the argument was continued on January 20,and counsel has frankly accepted the correctness of that report and thathis own recollection was at fault. In that event no more will be said onthe subject.
Akbar J.—I agree.
Poyser J.—I agree.
THE KING v. DAVITH SINGHO