MOSELEY J.—The King v. Samarakoon Banda.
[Court of Criminal Appeal.]
1943 Present: Moseley A.C.J., Keuneman and Jayetileke JJ.THE KING v. SAMARAKOON BANDA.
15—M. C- Kandy, 7,211.
Dying declaration—Charge of murder of person other than declarant—Right of. private defence—Evidence of relevant facts—Statement admissible—Evidence Ordinance, s. 32 (1).
The accused was charged with the murder of A, in the course of whichhe also inflicted fatal injuries on B. The accused pleaded the right ofprivate defence.
The Crown put in a dying declaration by B, giving the circumstancesin which he met with his death and which also brought A to the scene.
Held, that the dying declaration was admissible under section 32 (1)of the Evidence Ordinance.
PPEAL from a conviction by a Judge and Jury before the3rd Midland Circuit, 1942.
S. Mahadeva for the appellant.
E. H. T. Gunasekera, C.C., for the Crown. –
Cur. adv. vutt.
March 15, 1943. Moseley A.C.J.—
The appellant was charged with the murder of one Kiri Banda.According to the evidence for the prosecution the killing of the deceasedwas one incident in a transaction, in the course of which three personswere done to death by the appellant. One of them, Punchi Banda, fatherof the deceased, survived his injuries long enough to make two statements,one to the headman, the other on affirmation to the magistrate. . Eachwas made within a few hours of the incident. These statements wereproduced in evidence. It is now urged on behalf of the appellant thatthey are inadmissible on the ground that the cause of Punchi Banda’sdeath is not a fact in issue and that a. statement made by a deceasedperson “ as to the cause of his death, or as to any of the circumstancesof the transaction which resulted in his death ” is only relevant “ in casesin which the cause of that person’s death comes into question.” Thewords quoted are taken verbatim from section 32 (1) of the .EvidenceOrdinance (Cap. II) upon which Crown Counsel relies for the admissibilityof the two statements.
It must, of course, be conceded that the main facts in issue in' the casewere the causing of Kiri Banda’s death by the appellant and the intentionunderlying his act. The defence, which was1 indicated in the course ofcross-examination of the prosecution witnesses was that of privatedefence. The existence of circumstances justifying, wholly or partially,
• the act of the appellant therefore became a fact in issue at .an early stageof the trial. The appellant" in giving evidence was at first disinclinedto admit knowledge of any incident, in the course of which several people,were stabbed but, after admonishment by his Counsel to tell the truth,claimed to have been assaulted by five persons including the three, deceased
170Letchuman Chettiar and Municipal Council, Colombo.
and admitted that he drew his knife and stabbed aimlessly, through fearof being killed. That, indeed, was the line adopted by Counsel for thedefence who obtained from the first witness put into the box the followinganswer : —“ I deny that long before the first knife blow was dealt by theaccused, my father (Punchi Banda) , my elder brother and my uncle hadsurrounded the accused armed with clubs,” Since Punchi Banda wasaccording to the witnesses for the prosecution, the first person to beattacked by the appellant, it seems to us that at that stage of the trialthe cause of Punchi Banda’s death came into question. By virtue ofsection 32 (1) any statement made by Punchi Banda of relevant facts is arelevant fact. Now, in each of the statement's to which objection istaken, Punchi Banda brings Kiri Banda to the scene and in the firstspeaks of him being chased, and in the second of being stabbed by theappellant. It cannot be disputed that these are relevant facts. Itfollows that the statements themselves are relevant.
We have arrived at this conclusion on what appears to us to be theclear wording of the section. No authority exactly in point was broughtto our notice. Crown Counsel, however, cited the case of Lalji Dusadh v.Emperorl, in which it was held that a statement made by a person whohad been robbed, and subsequently killed, regarding the robbery and theassault, committed in the course thereof, was admissible in evidence at thetrial of the assailant for robbery. In the words of Mullick A.C.J.,“ the words of section 32 are very wide and it is not necessary that thecharge should be one of homicide.” The same view was expressed inNga Ba Min v. .Emperor'. As we have indicated, these cases are notexactly in point, but they are useful as indicating that the Patna andRangoon High Courts are not prepared to restrict the scope of section 32 (1)to the narrow rule of English law that a dying declaration as to the causeof death is only admissible when the causing of that death is the subjectof the charge.
In the circumstances of the case before us we are of opinion that eachof the statements made by Punchi Banda is relevant and was properlyadmitted. The appeal is dismissed. There was also an application forleave to appeal on questions of fact. No ground of any substance wasadvanced. The application is therefore dismissed.
THE KING v. SAMARAKOON BANDA