SOERTSZ J.—The King v. Fernando.
1939Present: Soertsz J.
THE KING v. FERNANDO.M. C. Panadure, 1937.
[4th Western Circuit at Kalutara.]
Evidence—Statement to Police different from evidence in Court—Right of
Crown to put the statement to accused—Statement not exculpatory—
Evidence Ordinance, s. 25 (Cap. 11).
The accused, giving evidence, said that he shot in the direction of Peduru,the witness, taking care not to hurt him, when he was on a suriya treewith a katty in his hand and about to leap on to the land of the accused.In his statement to the Police having admitted that he fired a shot, theaccused said “ I do not know where it went. I had proceeded about4 or 5 yards from the latrine towards my house when I fired. I firedas I was running into my house. After firing I got into my houseand slept. Later, a Police Constable came and told me that I killed a man.Till then I did not know that I had shot anyone ”.
Held, that the Crown was not entitled to cross-examine the accusedon the statement as it was obnoxious to section 25 of the EvidenceOrdinance.
Held, further, that the statement could not be regarded as an exculpa-tory statement, as it was capable of being construed as establishing aprima facie case against the accused.
King v. Attygalle (.39 N. L. R. 60) and King v. Cooray (28 N. L. R. 4)distinguished.
HE accused in this case was charged with murder before the fourthWestern Circuit at Kalutara.
R.L. Pereira, K.C. (with him D. D. Athulathmudali), for accused.
H. T. Gunasekera, C.C., for the Crown.
November 23, 1939. Soertsz J.—
Crown Counsel proposes to question the accused on a statement he issaid to have made to the Police, in which he does not appear to havesaid what he now says in the witness box, namely, that he shot in thedirection of Peduru, the witness, taking care not to hurt him when hewas on a “ suriya ” tree, with a katty in his hand, and about to leap on
SOERTSZ J.—The King u. Fernando.
to the land of the accused. Crown Counsel has shown me the statementsaid to have been made by the accused, and there can be no doubt butthat in that statement the accused has given a different version of howhe came to fire the gun.
Counsel for the accused objects to his client being questioned on thestatement made or said to have been made by him, on the ground thatquestioning him in the manner proposed is obnoxious, if not to the lettercertainly to the spirit of section 25 of the Evidence Act.
Crown Counsel, however, submits that section 25 of the Evidence Actapplies to a confession made by an accused person to a Police Officer, andhe contends that the statement he proposes to question the accused uponis not a confession, but an exculpatory statement. He relies on the rulingof Akbar J. in the case of The King v. Attygalle *. In that case Akbar J.ruled that the statement relied upon in that case was not a confessionwithin the meaning of section 25 of the Evidence Ordinance as it wasexculpatory in effect. I have read the statement made by the accusedAttygalle in that case and if I may say so with respect, Akbar J. rightlydescribed it as an exculpatory statement. As such it falls within thePrivy Council ruling in Dal Singh v. King Emperor", that a statementwhich “ is in no sense a confession ” is admissible against the accused whomade it to the Police. Similarly in The King v. Cooray’, a DivisionalBench admitted a statement made by an accused to the effect, “ thereyour Inspector is killed ”. That statement does not imply that theaccused was present at the killing nor does it suggest the complicity of theaccused in any way at all. It is certainly not a confession.
Now, I have carefully examined and considered the statement said tohave been made by the accused in this instance and I cannot agree thatit is an exclupatory statement, because in the course of the statement theaccused admits having fired a shot. He says, “ I do not know where itwent. I had proceeded about 4 or 5 yards from the latrine towards myhouse when I fired. I fired as I was running into my house. After firingI got into my house and slept. Later a Police Constable came and toldme that I had killed a man. Till then I did not know that I had shotanyone This, as far as I can make out, is an admission by the accusedthat as a result of his firing the gun a man was shot and that he died inconsequence. Such a statement is capable of being construed as estab-lishing a prima facie case against the accused, because the offence ofmurder is constituted inter alia by a man doing an act which is so immi-nently dangerous that it must in all probability cause death. I mustregard the statement from that point of view, and looking at it in thatway, to say the least, I am doubtful that it can be properly described asan exculpatory statement.
There is also the Divisional Bench case of The King v. Kalu Banda which I think has a bearing on the point involved in this matter. Inthat case it was sought to prove that the accused who, at his trial, set upthe plea of self-defence, had not set up such a defence in the statementhe had made to the Police and Lascelles C.J. in the course of his judg-ment said, “ After hearing the arguments of Counsel, and referring to
1 37 N. h. R. 60.* 28 N. L. R. 74.
* (1917) 86 L. J. P. C. 140.* IS N. L. R. 422.
Jayasena v. Karlinahamy.
the cases which were cited in argument, I am of opinion that when theheadmen were allowed to prove the facts that the accused had madestatements to them, and that he had not in these statements set up theplea of self-defence, the headmen were allowed to give evidence of whatwas in substance a confession by the accused. They were allowedindirectly to disclose part at least of the substance of the accused’sstatement, the effect of this disclosure being such as to suggest the in-ference that the defence on which the accused relied was not set up byhim at the time when, if true, it would naturally have been set up, andthat it was therefore false.
If regard be had to the intention and object of the Legislature inenacting section 25 of the Evidence Ordinance, I think the conclusionmust be the same ”.
In this instance too Crown Counsel declares that his object in elicitingthe statement said to have been made by the accused to the Police is toshow that the accused did not set up his present defence. The case ofThe King v. Kalu Banda (supra) rules that that may not be done wherean inference of guilt is likely to be drawn from this divergence of pleas.-In the case before us now the position is worse in that as I have pointedout it is possible to regard the statement as a confession.
Although it is possible for a different view to be taken of the questionthat arose in The King v. Kalu Banda from that taken by theDivisional Bench that decided it, we are, at present, bound by thatdecision. In India, there is a great divergence of judical opinion on thepoint, and, to say the least, if the question whether a statement made byan accused to a Police Officer should or should not be admitted, cannotbe answered clearly against the accused, it is safer and more proper toreject it. I, therefore, refuse to allow the accused to be questioned inthe mannar proposed.
THE KING v. FERNANDO