( a» )Present ; Jayewardene A.J.THE KIN;G v. SUDAHAMMA.
66—D. C. (Criminal), Colombo, 7,219.
Charge of forgery of a withdrawal form /or drawing money from 8avingrBonk—Statement by accused m presence of Police Inspectorthat he handed the form to the Chief Clerk, and that witness Rwas the person who wrote the form for him—Are statements-admissible t—Confession—Roidence Ordinance, ss. 25 and 27.
The accused was charged with theft of a Savings Bank bookand with the forgery of a withdrawal form. The Chief Clerk of the*Savings Bank stated that when the Inspector of Police broughtthe accused to his counter he identified the accused, and that theaccused said that he had handed the notice of withdrawal to him.Another witness B said that the Inspector came with the accused*to the Bsnkt and that accused pointed B oat as the man whowrote and filled'tip the application for him.
Hejd, that the first statement amounted to a confession and wasnot' admissible, and that the second statement was admissibleunder section 97 of the Evidence Ordinance, although it amountedto a confession, as the witness B was discovered in consequence ofthe information.
fpHE facts are set out in the judgment.
L. Pereira, for accused, appellant.
Vellava Bayan, C.C., for the Crown.
August 8, 1924. Jayewardene A.J.—
In' this case a young Buddhist priest of the ErrSWela. temple wascharged with the theft of a Savings Bank book in a building usedas a human dwelling and with the forgery of a withdrawalform, offences punishable under sections 369 and 466 and 459 of thePenal Code. . He has been convicted on both counts and sentencedto four months* rigorous imprisonment on each count, sentences torun concurrent^’. The Bank book belonged to a fellow priest whowas temporarily resident at the temple. By means of a forgedwithdrawal form, the accused has drawn Bs. 160 from the Bank.
The Crown placed before the Court strong and ample evidence in• proof of the accused's guilt, and the Judge has accepted and acted,on that evidence. It was, however, contended for the accused thatthe Court had received in evidence certain statements amountingto confessions and 'mAde in the presence of or*to a police officer, thereception of which is prohibited by section 25 of the Evidence
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Ordinance, and vitiates the conviction. One of the statements 19M.objected to appears in the evidence of the witness Mr. Dassenaike, jATBwar~Chief Clerk of the Post Office Savings Bank, who stated that when dkkk A.J.Inspector Koelmeyer brought the accused to his counter he identified TheKingv.the accused. “ Then the accused said he ha<| handed the notice Sudahamma./—(that is the notice ' F ’ to withdraw a sum of Rs. 150) to me.”
This statement amounts to a confession, it was made to or in thepresence of a police officer, its admission is prohibited by section 25.
But the learned Judge says that the witness made this statementbefore he could stop him. He says it is inadmissible, and has nottaken it in to consideration in deciding the case..
The Judge is a judge of great experience, and he has not beeninfluenced by this statement in coming to a conclusion on the facts.
Therefore its mere presence in the record does not necessarily vitiatethe conviction.
The other statement objected to is a statement by the witnessBruin who said: ‘ ‘ Inspector Koelmeyer came with the accused to theGeneral Post Office, and accused pointed me out to Mr. Koelmeyeras the man who wrote (and) filled up the application for him.”
This is a repetition of a statement made by the accused to a policeofficer. It was not objected to at the trial, and has been admittedin evidence and considered by the Judge. I think it is admissibleunder section 27 of the Evidence Ordinance which forms an ^excep-tion or proviso to the prohibition in section 25.
Under section 27 “ when any fact is deposed to as discovered inconsequence of information received from a person accused of anyoffence, in the custody of a police officer, so much of suchinformation, whether it amounts to a confession or not, as relatesdistinctly to the fact thereby discovered, may be proved.”
Here the information given by the accused led to tile discoveryof the witness who filled up the application form for him. It relateddistinctly to the fact discovered. The fact that the discoverywas made not in consequence of the information given by theaccused, but by the act of the accused himself, does not makesection 27 inapplicable.
A similar question arose in a case decided by a Full Bench of theBombay High Court (Queen Empress «.. liana ’). In that casethe accused told the police that he had buried the property in thefields. He then took the police to the spot where the property wasconcealed, and with his own hands disinterred the pot in which theproperty was kept. He made a second statement when pointingout- the spot to the effect that he had buried the property there.
It was held that the statement of the accused that he had buried tiieproperly in the fields was admissible in evidence under section 27which is identical with our section 27, as it put the police ip motionand led to the discovery of the property.
1 (1889) 14 Bain. 280.
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1924. This view has been adopted by the Calcutta High Court:—See•JaVbwar- Legal Remembrancer v. Naehyai 1 and Arni$uddin and Ahmed v.dhnbA.J. King Emperor.2
The King v. If, instead of pointing out the wituess Bruin, the accused&udahamma ^a(j described Bruin with such particularity as to enable the police todiscover the man who filled up the application form for him, theinformation so given would have been admissible under section 27.
X accordingly hold that the witness Bruin who states that hefilled up the application form at the request of the accused wasdiscovered in consequence of information given by the accusedwithin the meaning of section 27, and that the statement made bythe accused to the Inspector and deposed to by Bruin, although itamounts to a confession, has been rightly admitted in evidence.
/ It was made a matter of complaint by counsel for the accusedthat two witnesses in the list on the back of the indictment were not.called for the prosecution. They were W. D. H. Perera and liisbrother Francis. The accused is said to have shown the Bank bookto Perera. As the case involved a serious charge against a priest, Idirected that these two witnesses and the Inspector of Police shouldbe summoned to give evidence before this Court. They wereexamined before me on the 6th instant. The evidence of thesewitnesses has not improved the case for ^the defence. I acceptthe evidence of Perera that the accused showed the Bank book tohim and asked him how much money could be withdrawnwithout notice. Perera communicated this fact to his brotherFrancis who informed the complainant priest. There are certaindiscrepancies in the evidence of these witnesses with regard todates, but I am not prepared to reject their evidence on that account.There is no reason why they should give false evidence against theaccused. Independently of their evidence there is sufficient reliableand trustworthy evidence cn the record to support the conviction.
Having considered the case anxiously and carefully, I have cometo the conclusion that the accused is guilty, and that the convictionought to be affirmed. As I said the accused is a young Buddhistpriest. He is only twenty-two years of age. I have also carefullyconsidered the question of sentence, and especially the questionwhether I should release him as a first offender. The offencescommitted by him are serious and are ordinarily tried before,theSupreme Court. * I think a term of imprisonment is necessary.
I would, however, while maintaining the term to which he hasbeen sentenced, direct that the imprisonment be simple and notrigorous.
With this variation the appeal is dismissed.
» (1497) 25 Cal. 413.
(1917) 27 C.L.J.148.
THE KING v. SUDAHAMMA