The King v. Pitchoris Appu.
'[Cotirtr or Criminal Appeal.]
Present: Howard C.J., Moseley S.P.J., and Keuneman J.
– THE KING r. P-ITCHORIS APPU.84—M. C. Galle, 31,956.
'iaiement by accused to Police Sergeant—Failure of qccused to give evidenceStatement admissible as corroboration only—Confession may be■proved on behalf of accused—Criminal Procedure Code, s. 122 (-3).The accused who was charged with murder made a statement to aPolice Sergeant immediately after his arrest to the effect that he wasassaulted by someone and that he stabbed W,
Held, that if the accused had gone into the witness-box and testifiedon oath that he had been assaulted, the statement to the Police Sergeantwould have been admissible as corroboration under section 157 of theEvidence Ordinance.
Held, further, that the statement was not subject to the provisions ofsection 122 (3) of the Criminal Procedure Code. .
Obiter, a confession may be proved to assist a person accused of anyoffence.
.' i–.SE heard before a Judge and Jury at the 2nd Western Circuit.
J. E. M. Obeyesekere and A.. C. Alles, for accused, appellant, who isalso the applicant in the application..
H T. Gunasekera, C.C., for the Crown.
Cur. adv. vult.
HOWARD C.J.—The King v. Pitchoris Appu.
May 11, 1942. Howard C.J.—
This case involves an appeal on the law and an application for leave toappeal against the conviction of the accused on a charge of murder onMarch 24, 1942. The only grounds of any substance raised by Counselfor the accused are (a) that the trial Judge’s ruling, that the accused’sstatement to Police Sergeant Nair, immediately after his arrest, to theeffect that he was assaulted by someone and that he stabbed Mr. Wije-ratne is inadmissable in evidence, was erroneous in law and (b) that thetrial Judge failed to direct the Jury that, in considering the gravity ofthe provocation, if any, received by the accused, they could take intoaccount his state of intoxication.
In connection with (b), Mr. Obeyesekere referred the Court to thecase of The King v. Punchirala In holding that the Court or Jury indetermining whether in any particular case the provocation receivedwas grave may take into account the intoxication of the person receivingit, Bertram C.J., in that case, stated as follows : —
“ But, in my opinion, this principle should be applied with caution.It must be borne in mind that, in the first place, there must be‘provocation’ of some kind. Provocation is, in my opinion, somethingwhich a reasonable man is entitled to resent. In the second place,there must be definite evidence on which the Jury would be justifiedin finding that the accused’s faculties were in fact impaired by intoxi-cation. In the third place, although the term is a relative one,nevertheless the provocation must still be grave. ’’
In the present case, the only evidence with regard to the conditionof t'he accused was that of Dr. Seneviratne, the Judicial Medical Officer,who stated that he smelt of alcohol, that of Sergeant Nair, who statedthat he was smelling of liquor but not strongly, and that of Wijelileka,the petition drawer, called by the accused, who stated that the lattersmelt of toddy and was somewhat drunk. On this testimony it cannotbe said that there was definite evidence on which the Jury would bejustified in finding that the accused’s faculties were in fact impairedby intoxication. The second condition formulated by Sir AntonBertram has, therefore, not been fulfilled, and ground (b) fails.
With regard to ground (a), the learned Judge, in holding that thestatement of the accused was inadmissible, stated as follows : —
“ I am of opinion that this evidence is inadmissible. It containsa confession by the accused. It cannot be regarded in any way as anexculpatory statement. The admission of this statement will clearlyprejudice the accused. Moreover, it is not a statement in fact, but isan answer to a question put by the Sergeant after the accused wasarrested. I may add that Mr. Obeyesekere stated in reply to mein the course of the argument that he did not at that stage intend tocall the accused as a witness. ”
The learned Judge has rejected the statement, first of all because hedeemed it a. confession and therefore inadmissible by reason of section 25of the Evidence Ordinance. Mr. Obeyesekere has invited our attentiontd the phraseology employed in this section and in particular to the words
125 N. L. if. as.349
HOWARD C.J.—The King v. Pitchoris Appu.
“ as against a person accused of any offence He contends that thesewords indicate that a confession can be proved to assist a person accusedof any offence. Although, for reasons which I shall give, it is not neces-sary to decide this point, we are of opinion that Mr. Obeyesekere’scontention is correct. The Court is also in agreement with Mr. Obeye-sekexe’s further contention that, inasmuch as Sergeant Nair was neitheran inquirer nor an officer in charge of a Police Station nor holding aninquiry under Chapter XIX. of the Criminal Procedure Code, the state-ment made to him by the accused was not subject to the provisions ofsection 122 (3) of that Code. He argues that it is admissible undersection 21 (c) of the Evidence Ordinance. Section 21 provides thatadmissions are relevant and may be proved as against the person whomakes them. They cannot, however, be proved by the persons who makethem, except in the cases formulated in paragraphs (a), (b) and (c). Ofthese paragraphs, Mr. Obeyesekere calls in aid only paragraph (c), whichis worded as follows: —
“ (c) an admission may be proved by or on behalf of the person makingit if it is relevant otherwise than as an admission.”
Mr. Obeyesekere asks us to hold that the statement made by the accusedto Sergeant Nair is relevant, otherwise than as an admission, undersection 3 (1) and section 11 (b) of the Evidence Ordinance. Section 3
is worded as follows : —
“ (1) Any fact is relevant which shows or constitutes a motive or pre-paration for any fact in issue or relevant fact. ”
The accused desires to put in evidence the fact that he made a statementto Sergeant Nair to the effect that he had been assaulted. The factthat he made this statement does not in our opinion show or constitutea motive or preparation for any fact in issue or relevant fact. The factthat the accused was assaulted would no doubt be relevant as showingmotive for the attack on the deceased. It seems to us that the proofof the statement to Sergeant Nair in the manner suggested would becontrary to the principle formulated in section 21 of the EvidenceOrdinance that a man shall not be allowed to make evidence for himself.We do not, therefore, think that the statement is relevant under section8 (1). Nor do we think that the statement is admissible under section 11.The fact that the accused made the statement cannot be said to makethe existence of the alleged assault on him highly probable. To holdotherwise would also, in our opinion, permit a person to manufactureevidence for himself. Moreover, to admit such a statement would beacting contrary to the principle laid down in section 60 of the EvidenceOrdinance.
The position, as regards the admissibility of the statement to SergeantNair, would have been different if the accused had gone into the witness-box and- testified on oath to the fact that he had been assaulted. Thestatement would then have become admissible as corroboration undersection 157 of the Evidence Ordinance. The accused did not takethis course and hence the statement was quite properly rejected by thelearned Judge.
For the reasons I have given the appeal and application are dismissed.
Appeal and application dismissed.
THE KING v. PITCHORIS APPU